Ahuja v. Cumberland Mall, LLC, et al
Filing
61
ORDER and OPINION granting in part and denying in part 30 defendant Millard's Motion for Summary Judgment; granting in part and denying in part 31 defendant Cumberland's Motion for Summary Judgment; granting in part and denying in part 52 defendant Millard's Motion to Exclude Testimony of Ruston Hunt; and granting as unopposed 56 defendant Cumberland's Motion to Join Millard's Motion to Exclude. Signed by Judge Julie E. Carnes on 9/23/11. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GINNY AHUJA,
Plaintiff,
CIVIL ACTION NO.
v.
1:10-CV-1038-JEC
CUMBERLAND MALL, LLC, MILLARD
MALL SERVICES, INC., JOHN DOE,
AND XYZ CORP.,
Defendant.
ORDER AND OPINION
This case is before the Court on defendant Millard’s
Motion
for Summary Judgment [30], defendant Cumberland’s Motion for Summary
Judgment [31], defendant Millard’s Motion to Exclude the Testimony
of Ruston Hunt [52], and defendant Cumberland’s Motion to Join in
the Motion to Exclude [56].
The Court has reviewed the record and
the arguments of the parties and, for the reasons set out below,
concludes that Millard’s Motion for Summary Judgment [30] should be
GRANTED in part and DENIED in part, Cumberland’s Motion for Summary
Judgment [31] should be GRANTED in part and DENIED in part,
Millard’s Motion to Exclude [52] should be GRANTED in part and
DENIED in part, and Cumberland’s Motion to Join in the Motion to
Exclude [56] should be GRANTED as unopposed.
AO 72A
(Rev.8/82)
BACKGROUND
This is a premises liability case arising out of plaintiff’s
slip and fall at Cumberland Mall in September 2009.
Defendant
Cumberland Mall, LLC (“Cumberland”) is the owner of the premises
where the fall occurred.
Removal [1].)
(Compl. at ¶ 5, attached to Notice of
At the time of plaintiff’s fall, defendant Millard
Mall Services, Inc. (“Millard”) was responsible for janitorial and
cleaning services on the premises.
(Id. at ¶ 6.)
Plaintiff sued
both defendants in Gwinnett County State Court to recover for
injuries sustained in her fall. (Id. at ¶¶ 1-2.) With Cumberland’s
approval, defendant Millard removed the case to this Court pursuant
to 28 U.S.C. § 1332.
(Notice of Removal [1] at ¶ 8.)
The relevant facts underlying plaintiff’s fall are as follows.
It was drizzling at the time of plaintiff’s accident, but not
raining heavily. (Pl.’s Dep. [36] at 36-38.) Plaintiff entered the
mall through a covered side entrance adjacent to a covered parking
deck.
(Id. at 33-34, 38.)
Immediately inside the doors where
plaintiff entered the mall, there was a large carpet.
[34], attached to Johnson Aff. [32] at Ex. A.)
(See Video
A freestanding sign
was located at the edge of the carpet, directly in front of the
doors.
1-2, 8.)
(Id. and Expert Report of RM Hunt (“Hunt Report”) [57] at
A wet-floor cone was placed just inside and to the right
of the doors, up against the wall.
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(Id.)
Based on a surveillance video that was taken at the time of the
fall, plaintiff walked through the doors and slightly altered her
course to avoid hitting the freestanding sign.
(Id.)
As she
entered the mall, the wet-floor cone was located on the floor to
plaintiff’s right. (Id.) It is hard to tell from the video whether
plaintiff
noticed
the
wet-floor
cone,
but
at
her
deposition
plaintiff testified that she did not remember seeing either the cone
or the sign prior to her accident.1
(Pl.’s Dep. [36] at 51-52, 77,
133.) After stepping to the side of the sign and off of the carpet,
plaintiff almost immediately slipped and fell.
(Id.)
After her fall, plaintiff noticed a wet substance on her hands
and clothes.
(Id. at 61-63.)
Plaintiff cannot remember where the
substance came from, or the amount of the substance that was on the
floor at the time of her accident.
(Id.)
Apparently, plaintiff’s
recall of this detail was impaired by the fact that she was in
excruciating pain after the fall, having shattered her elbow. (Id.)
Defendants suggest that the substance was water, which plaintiff
tracked into the store herself and which caused her fall.
(Def.
Millard’s Br. in Supp. of Mot. for Summ. J. [30] at 14 and Def.
Cumberland’s Reply [53] at 6.)
1
Defendants argue that the video shows plaintiff looking at
the warning cone as she walked by it. (See Millard’s Br. in Supp.
of Mot. for Summ. J. [30] at 2.) Having viewed the video, the Court
does not agree.
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Chris Bailey, a third party bystander who was walking behind
plaintiff at the time of the accident, witnessed her fall.
Aff. [37].)
(Bailey
Bailey states that he did not see the wet-floor cone
as he walked into the mall, although he noticed water on the floor.
(Id. at ¶¶ 3-5.)
In fact, Bailey says that he only saw the cone as
he was waiting for help to arrive for plaintiff.
(Id. at ¶ 6.)
Bailey explains that the reason he did not notice the cone as he
entered the mall is that it was placed against the wall to the right
of the doors.
(Id. at ¶ 7.)
There is evidence that both the cone and the sign were
misplaced at the time of plaintiff’s accident.
(Video [34] and
Galvez Dep. [36] at 30-32, 37-39.) Per Millard’s training, the sign
should have been farther away from the entrance, and the cone should
have been on the tile, just beyond the carpet.
at 30-32, 37-39.)
(Galvez Dep. [36]
Moreover, a Millard staff member should have
walked outside the door to ensure that the cone was visible to
someone coming into the mall.
(Id. at 32.)
Immediately after
plaintiff’s accident, the Millard porter who was responsible for
that area of the mall cleaned the carpet at the entryway and moved
the cone to its proper location.
(Id. and Video [34].)
Plaintiff contends that she sustained medical expenses and lost
wages in excess of $100,000 as a result of her fall.
at ¶¶ 11-12.)
In her complaint, plaintiff seeks to recover those
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AO 72A
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(Compl. [1]
expenses, in addition to damages for pain and suffering, punitive
damages, and attorney’s fees.
(Id. at 8-9.)
In support of her
right to recovery, plaintiff asserts claims against defendants for
negligence and premises liability.
(Id. at ¶¶ 21-23.)
Following discovery, defendants filed motions for summary
judgment on plaintiff’s claims.
(Def. Millard’s Mot. for Summ. J.
[30] and Def. Cumberland’s Mot. for Summ. J. [31].)
motions are presently before the Court.
Both of those
Also before the Court is
defendant Millard’s motion to exclude the testimony of plaintiff’s
expert Ruston Hunt, which defendant Cumberland has moved to join.
(Def. Millard’s Mot. to Exclude Expert Testimony [52] and Def.
Cumberland’s Mot. to Join [56].)
DISCUSSION
I.
Motion to Exclude Expert Testimony
In support of her claims, plaintiff relies on the report of
human factors expert Ruston Hunt. (Hunt Report [57].) Hunt’s report
includes the following three opinions:
1.
An unreasonably dangerous situation existed at
entrance of Cumberland Mall on September 20, 2009.
2.
The mall management could and should have acted to
eliminate the hazard, or at least mitigate the hazard by
warning patrons of its existence.
3.
Plaintiff’s own conduct and behavior did not contribute
in any way to her fall.
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the
(Id. at 11.) Millard moves to exclude these opinions under Rule 702
of the Federal Rules of Evidence.2
[52].)
(Def. Millard’s Mot. to Exclude
Defendant Cumberland seeks to join Millard’s motion to
exclude [56].
As there is no opposition to Cumberland’s motion to
join [56], it is GRANTED as unopposed.
Plaintiff agrees with Millard’s assessment of Ruston’s three
opinions cited above. (Pl.’s Resp. to Mot. to Exclude [57] at 2-3.)
In her response to the motion to exclude, plaintiff concedes that
these opinions are beyond the scope of Hunt’s expertise.
2-3.)
(Id. at
Accordingly, the Court GRANTS Millard’s motion to exclude
[57] as to these specific opinions.
However, plaintiff still intends to rely on Hunt’s more focused
opinion that she was unable to perceive the water hazard or the wetfloor cone due to the placement of the freestanding sign.
4.)
(Id. at
Hunt notes that the cone was not directly in plaintiff’s path
as she entered the mall, and that plaintiff had to adjust her
direction of travel to avoid the freestanding sign.
2
(Id.)
From
Millard also objects to Hunt’s testimony because it is not
supported by an affidavit or deposition as required by Rules 801 and
802. (Def. Millard’s Resp. to Pl.’s Statement of Material Facts
[50] at ¶ 5.) The Court overrules this objection. Hunt’s Report
satisfies the requirements of the Rules of Civil Procedure. See FED.
Moreover, there are no issues regarding the
R. CIV. P. 26(a).
authenticity of the report, nor any suggestion that defendants were
unable to depose Hunt. Indeed, Millard’s motion extensively cites
to Hunt’s deposition.
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these facts, Hunt concludes that plaintiff fixated on the sign and
was unable to see the wet-floor cone or water on the floor.
(Id.)
According to plaintiff, Hunt is qualified to render this opinion,
which is both reliable and relevant to the issues in the case.
(Pl.’s Resp. to Mot. to Exclude [57] at 4.)
A.
Applicable Standard
Rule 702 of the Federal Rules of Evidence provides that:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise.
FED. R. EVID. 702.
Pursuant to Rule 702, expert testimony is
admissible when (1) the expert is qualified to testify competently,
(2) the expert’s methodology is reliable, and (3) the expert’s
testimony will assist the trier of fact to understand the evidence
or to determine a fact at issue in the case. Allison v. McGhan Med.
Corp., 184 F.3d 1300, 1309 (11th Cir. 1999).
See also Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993).
The Daubert Court emphasized the district court’s “gatekeeping”
role to ensure that scientific testimony is relevant and reliable
before it is admitted as evidence.
Daubert, 509 U.S. at 589-90.
See also Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1342
(11th Cir. 2003)(noting the “emphasis the Supreme Court has placed
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upon the district court’s ‘gatekeeping’ role in the determination
of whether expert evidence should be admitted”).
Daubert applies
“not only to testimony based on ‘scientific’ knowledge, but also to
testimony based on ‘technical’ and ‘other specialized’ knowledge.”
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
Its
overarching goal is to ensure that an expert “employs in the
courtroom the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field.”
Id. at 152.
Under Rule 702, the proponent of expert testimony has the
burden of showing that the testimony complies with Daubert.
Cook
ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d
1092, 1108 (11th Cir. 2005).
To meet its burden as to Hunt,
plaintiff must demonstrate that Hunt’s proffered opinion satisfies
each prong of Rule 702.
Hendrix ex rel. G.P. v. Evenflo Co., Inc.,
609 F.3d 1183, 1194 (11th Cir. 2010). Assuming that plaintiff meets
the basic requirements of Rule 702, “it is not the role of the
district
court
to
make
ultimate
persuasiveness” of Hunt’s testimony.
conclusions
as
to
the
Quiet Tech. DC-8, Inc. v.
Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). Rather,
“‘[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible’” expert
testimony.
Id.
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B.
Analysis
Defendants do not dispute that Hunt is qualified to give the
limited opinion for which plaintiff proffers him.
Reply [58].)
(Def. Millard’s
Hunt has an undergraduate degree in industrial
engineering and a Ph. D. in mechanical engineering.
[57] at Ex. B.)
(Hunt Resume
For the past eight years, he has taught courses on
human factors engineering at Southern Polytechnic State University,
where he currently serves as Dean.
(Id.)
numerous
concerning
peer
engineering.
reviewed
(Id.)
articles
Hunt has published
human
factors
Hunt’s research, education and experience in
the field of human factors qualify him to offer an opinion on how
a reasonable mall patron would perceive the site of plaintiff’s
accident. See U.S. v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004)
(“expert status may be based on knowledge, skill, experience,
training, or education”)(internal quotations and emphasis omitted).
The Court also finds that Hunt’s opinion is reliable.
Hunt’s
analysis is based on his review of the surveillance video and an
onsite inspection.
(Hunt Report [57] at Ex. A.)
As evidenced by
his report, Hunt’s methods are in line with those commonly employed
by others in his field.
(Id.)
In addition, Hunt’s theories can be
tested, and have been subjected to peer review as a result of Hunt’s
extensive publications in the field.
(Id.)
See Daubert, 509 U.S.
at 593-95 (including in a list of reliability factors whether the
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theory at issue (1) can be tested, (2) has been subjected to peer
review and publication, and (3) is generally accepted in the field).
In fact, defendants do not present any evidence to suggest that
Hunt’s methods are unreliable.
Rather, defendants contend that
Hunt’s opinion is unsupported by the facts of the case because it
contradicts plaintiff’s deposition testimony that she did not recall
seeing the freestanding sign.
(Def. Millard’s Reply [58] at 2-5.)
That plaintiff did not recall seeing the sign does not necessarily
foreclose the possibility that she altered her course to avoid it.
Thus,
Hunt’s
plaintiff’s
opinion
is
testimony.
In
not
any
necessarily
case,
to
the
inconsistent
extent
with
defendants
challenge the factual basis of Hunt’s opinion, that is an issue that
goes to the credibility and weight of his testimony, as opposed to
its admissibility.
(8th Cir. 2001).
Bonner v. ISP Tech., Inc., 259 F.3d 924, 929
See also Maiz v. Virani, 253 F.3d 641, 667 (11th
Cir. 2001)(permitting an accounting expert to opine on forensic
accounting issues based on “reasonable assumptions regarding the
requirements of the applicable contracts”).
Finally, the Court finds that Hunt’s proffered opinion is
relevant to plaintiff’s negligence claim, because it bears on
plaintiff’s knowledge of the hazardous condition that allegedly
caused her accident.
See Robinson v. Kroger Co., 268 Ga. 735, 737
(1997) (an invitee must exercise ordinary care for her personal
10
AO 72A
(Rev.8/82)
safety in order to recover on a premises liability theory) and
Allison,
184 F.3d at 1309 (expert testimony is relevant if it will
assist the trier of fact to understand the evidence or to determine
a
fact
at
issue
in
the
case).
Accordingly,
Hunt’s
opinion
concerning the placement of the freestanding sign and the wet-floor
cone
at
the
time
of
plaintiff’s
requirements of Rule 702.
accident
meets
all
of
the
The Court thus DENIES Millard’s motion
to exclude [52] with respect to that particular opinion.
II.
Motions for Summary Judgment
A.
Summary Judgment Standard
Summary
judgment
is
appropriate
when
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.
FED. R. CIV. P. 56(c).
A fact’s
materiality is determined by the controlling substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue
is genuine when the evidence is such that a reasonable jury could
return a verdict for the nonmovant.
Id. at 249-50.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits.
Instead, Rule 56 of the Federal Rules of Civil
Procedure mandates the entry of summary judgment against a party who
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fails to make a showing sufficient to establish the existence of
every element essential to that party’s case on which that party
will bear the burden of proof at trial.
477 U.S. 317, 322 (1986).
Celotex Corp. v. Catrett,
In such a situation, there can be no
genuine issue as to any material fact, as a complete failure of
proof concerning an essential element of the non-moving party’s case
necessarily renders all other facts immaterial.
Id. at 322-23
(quoting FED. R. CIV. P. 56(c)).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by merely “‘showing’-- that is, pointing out to the
district court--that there is an absence of evidence to support the
non[-]moving party’s case.”
Id. at 325.
After the movant has
carried his burden, the non-moving party is then required to “go
beyond the pleading” and present competent evidence designating
“specific facts showing that there is a genuine issue for trial.”
Id. at 324.
While the court is to view all evidence and factual
inferences in a light most favorable to the non-moving party,
Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988),
“the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for
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summary judgment; the requirement is that there be no genuine issue
of material fact.”
B.
Anderson, 477 U.S. at 247-48 (1986).
Plaintiff’s Premises Liability Claim Against Cumberland
Under Georgia law, a premises owner owes a duty of reasonable
care to its invitees, and can be held liable for its failure to
exercise ordinary care to keep the premises safe. Am. Multi-Cinema,
Inc. v. Brown, 285 Ga. 442, 444 (2009) and O.C.G.A. § 51-3-1.
To
prevail on a premises liability claim, a plaintiff must show that
she was injured by a hazard that the owner “should have removed in
the exercise of ordinary care for the safety of the invited public.”
Am. Multi-Cinema, 285 Ga. at 444.
As applied to a slip and fall
case, the plaintiff must present some evidence that:
(1) the
defendant had actual or constructive knowledge of a hazard on the
premises, and (2) the plaintiff, despite exercising ordinary care
for her personal safety, lacked knowledge of the hazard due to the
defendant’s actions or to conditions under the defendant’s control.
Id.
Ordinarily,
findings
concerning
relative
negligence
knowledge of a hazard are the province of the jury.
Ga. at 748.
Robinson, 268
This means that:
issues such as how closely a particular
retailer should monitor its premises and
approaches, what retailers should know about
the property’s condition at any given time, how
vigilant patrons must be for their own safety
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and
in various settings, and where customers should
be held responsible for looking or not looking
are all questions that, in general, must be
answered by juries as a matter of fact rather
than by judges as a matter of law.
Am. Multi-Cinema, Inc., 285 Ga. at 445.
Summary judgment is thus
only appropriate in cases where the evidence is “plain, palpable,
and undisputed.” Robinson, 268 Ga. at 748. This case does not fall
into that narrow category. Accordingly, for the following reasons,
the Court DENIES defendant Cumberland’s motion for summary judgment
[31] as to plaintiff’s premises liability claim.
1.
Cumberland’s Knowledge
Plaintiff has presented sufficient evidence to show that
Cumberland had knowledge of a hazardous condition on its premises,
which condition ultimately caused her fall.
There is an incident
report indicating that the mall floor was mopped fifteen minutes
prior to plaintiff’s fall.
(Incident Report, attached to Pl.’s
Resp. to Mot. for Summ. J. [37] at Ex. 2.)
undisputed
that
a
wet-floor
cone
was
In addition, it is
located
near
the
mall
entranceway at the time of the accident, although the cone was
misplaced.
(Video [34] and Galvez Dep. [36] at 30-32.)
Based on
these facts, a jury could infer actual and/or constructive knowledge
of a hazardous condition, namely a wet floor, on the part of
Cumberland.
See Mairs v. Whole Foods Mkt. Grp., Inc., 303 Ga. App.
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638, 639 (2010)(by mopping the floor, Whole Foods is presumed to
have knowledge of water on the floor).
2.
Plaintiff’s Knowledge And Care
Neither does the evidence conclusively demonstrate plaintiff’s
equal or superior knowledge of the hazard, or her failure to use
reasonable care for her own safety. As an initial matter, the Court
rejects
Cumberland’s
suggestion
that
the
surveillance
video
evidences a lack of care by plaintiff because it shows her walking
straight
ahead
and
not
looking
down
at
the
floor.
Cumberland’s Br. in Supp. of Summ. J. [31] at 13-14.)
(Def.
Georgia law
does not require a plaintiff to be on the lookout for hazards that
are not likely to be present on the premises, including a floor that
is wet because it was recently mopped. Id. Nor does the law demand
that a plaintiff look continuously at the floor for any possible
defects.
Robinson, 268 Ga. at 743.
On the contrary, all that the law requires is that a plaintiff
employ the same level of prudence as the ordinarily careful person
in a similar situation.
Id.
Based on the evidence in the record,
including the surveillance video and plaintiff’s testimony, a jury
might conclude that plaintiff’s actions at the time of her fall meet
that standard. See Mairs, 303 Ga. App. at 639 (denying Whole Food’s
motion for summary judgment where the plaintiff only noticed that
the floor was wet after she fell).
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Particularly in light of the
bystander testimony concerning the placement of the wet-floor cone
and the condition of the mall floor, a jury might find that
plaintiff exercised reasonable care for her own safety under the
circumstances.
Id.
The Court likewise rejects Cumberland’s argument that plaintiff
had equal or superior knowledge of the hazard because (1) it was
raining when plaintiff entered the mall and (2) a wet-floor cone was
located at the mall entranceway. (Def. Cumberland’s Br. [31] at 1416.)
In support of the first point, Cumberland cites a line of
Georgia cases denying recovery for falls on “floors made wet by
rain[y] conditions.”
677, 680 (2006).
Walker v. Sears Roebuck & Co., 278 Ga. App.
The “rainy day” cases are not an exception to
premises liability law, but rather an application of its wellsettled principles.
See Helms v. Wal-Mart Stores, Inc., 806 F.
Supp. 969, 973-975 (N.D. Ga. 1992) (discussing Georgia’s rainy day
slip and fall authority).
During rainy weather, it is common
knowledge that some water might accumulate at an entranceway where
patrons are continuously passing in and out of the rain.
Id.
An
invitee who falls under such conditions cannot recover from the
premises owner, because the invitee should be just as aware as the
owner of a potentially hazardous wet floor.
Id.
Depending on the findings of the jury, Cumberland might prevail
on its “rainy day” defense at trial.
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However, the record does not
support granting summary judgment on that ground.
There is a
question of fact concerning whether the conditions outside caused
or even contributed to the hazard that resulted in plaintiff’s fall.
Plaintiff testified that it was “drizzling” on the morning of her
fall, but not raining hard. (See Pl.’s Dep. [36] at 36-38.) As she
recalled, her shoes were not wet when she walked into the mall. (Id.
at 66.) Moreover, none of the patrons seen entering the mall on the
surveillance video are wearing rain gear or carrying an umbrella,
suggesting that the rain had stopped by the time plaintiff reached
the mall.
(Video [34].)
Even assuming that it was raining at the time of plaintiff’s
fall, plaintiff entered the mall through a covered entrance adjacent
to a covered parking deck.
(Id. at 33-34, 38.)
Under the
circumstances, it would not necessarily be “common knowledge” that
the mall floor would be wet, particularly as plaintiff had to cross
a large carpet before she reached the floor. See Dickerson v. Guest
Serv. Co. of Virginia, 282 Ga. 771, 773 (2007)(where stairs were
connected to a covered portion of the premises, a reasonable person
could presume that they would not be wet).
Finally, there is
evidence suggesting that the floor was wet because it was mopped,
not because it was raining outside.
2.)
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(Incident Report
[37] at Ex.
As to the wet-floor cone, there is evidence that the cone was
not in its proper location at the time of plaintiff’s fall. (Galvez
Dep. [36] at 30-32 and Hunt Report [57] at 1-2, 8.)
Plaintiff
testified that she did not see the cone prior to her fall, and
neither did bystander Chris Bailey.
Bailey Aff. [37] at ¶ 4.)
(Pl.’s Dep. [36] at 51-52 and
Bailey explained that the reason he did
not see the cone is that it was placed up against the wall. (Bailey
Aff. [37] at ¶¶ 5-6.)
Furthermore, plaintiff’s expert opines that
plaintiff was not likely to notice the cone because she was
distracted by the freestanding sign.
(Hunt Report [57] at 8-9.)
It is thus unclear whether plaintiff was on notice of the wet floor
hazard prior to her fall.
See Sutton v. Winn Dixie Stores, Inc.,
233 Ga. App. 424, 427 (1998) (holding that a misplaced and unseen
warning sign was not sufficient to place plaintiff on notice of the
potential hazard).
C.
Plaintiff’s Negligence Claim Against Millard
1.
Premises Liability
As previously mentioned, a landowner owes its invitees a duty
of care under O.C.G.A. § 51-3-1 to keep the premises safe.
Because
this duty is derived from statute, it is non-delegable, even where
a third party is contractually obligated to provide maintenance
services on the premises.
508, 510 (1998).
Johnson v. Kimberly Clark, 233 Ga. App.
Thus, the duties imposed on a premises owner by
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§ 51-3-1 are not applicable to an independent contractor that
provides maintenance services on the premises.
Wiggly S., Inc., 230 Ga. App. 508, 509 (1997).
Piedmont
Janitorial
Serv.,
Inc.,
220
Kelley v. Piggly
See also Greene v.
Ga.
App.
743,
744
(1996)(Georgia’s premises liability statute does not apply to an
independent contractor).
Defendant
Millard
contends
that
it
is
an
independent
contractor, and is thus not subject to premises liability under §
51-3-1.
9.)
(Def. Millard’s Br. in Supp. of Mot. for Summ. J. [30] at
Consistent with Millard’s argument, the relevant contract
provides that
Cumberland and Millard “are independent contractors
with respect to one another.”
attached
to
Furthermore,
Millard’s
the
Mot.
contract
(Maintenance Contract at ¶ 16,
for
Summ.
expressly
J.
[30]
disavows
at
any
Ex.
3.)
“agency,
partnership, joint venture, co-employ[ment] or employment or other
such relationship” between the parties.
(Id.)
Plaintiff has not presented any evidence to contradict the
plain language of the contract as to the relationship between
Cumberland and Millard.
The Court thus agrees that Millard is an
independent contractor, with no liability under § 51-3-1.
See
Perkins v. Compass Grp. Use, Inc., 512 F. Supp. 2d 1296, 1301 (N.D.
Ga. 2007)(finding that the defendant was an independent contractor
where the language of a service agreement clearly defined him as
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such). Accordingly, the Court GRANTS defendant Millard’s motion for
summary judgment [30] as to plaintiff’s premises liability claim
under § 51-3-1.
2.
Duties Arising Out Of Millard’s Contract
Nevertheless, Millard may be liable to plaintiff for injuries
arising from the negligent performance of Millard’s duties under the
maintenance
contract.
See
Kelley,
230
Ga.
App.
at
509
(an
independent contractor has a “duty to use ordinary care in [its]
floor cleaning and cleanup assignment”).
All that is required to
hold Millard liable for negligence under Georgia law is:
(1) a
duty, (2) breach of the duty, and (3) injury to plaintiff as a
result of the breach.
See Womack v. Oasis Goodtime Emporium I,
Inc., 307 Ga. App. 323, 328 (2010).
There is sufficient evidence
on all three elements to avoid summary judgment on plaintiff’s
negligence claim against Millard.
Millard concedes that it was contractually obligated to warn
mall patrons of potential hazards, such as wet floors.
(Def.
Millard’s Br. in Supp. of Mot. for Summ. J. [30] at 17-18 and
Millard Contract at ¶ 1.B.)
As discussed above, there is evidence
in the record suggesting that Millard’s efforts in this regard were
deficient. (See Bailey Aff. [37] at ¶¶ 5-6, Galvez Dep. [36] at 3032, and Hunt Report [57].)
Millard does not dispute that plaintiff
was injured as a result of her fall.
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Accordingly, Millard’s motion
for summary judgment [30] as to plaintiff’s negligence claim is
DENIED.
D.
Plaintiff’s Remaining Claims
Both defendants also move for summary judgment on plaintiff’s
claims of negligent retention and supervision, punitive damages, and
attorney’s fees.
(Def. Millard’s Mot. for Summ. J. [30] at 19-23
and Def. Cumerland’s Mot. Summ. J. [31] at 16-18.)
Plaintiff fails
to address these claims in her response.
Accordingly the Court
finds
claims
that
plaintiff
has
abandoned
her
for
negligent
retention and supervision, attorney’s fees and punitive damages, and
GRANTS the motions for summary judgment [30] and [31] with respect
to these claims.
See Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995)(“grounds alleged in the complaint but
not relied upon in summary judgment are deemed abandoned”) and Otu
v. Papa John's USA, Inc., 400 F. Supp. 2d 1315, 1328 (N.D. Ga.
2005)(Thrash, J.)(“[p]laintiff's failure to respond to [the] legal
arguments relating to a claim . . . constitutes abandonment of the
claim”).
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES
in part defendant Millard’s Motion for Summary Judgment [30], GRANTS
in part and DENIES in part defendant Cumberland’s Motion for Summary
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Judgment [31], GRANTS in part and DENIES in part defendant Millard’s
Motion to Exclude the Testimony of Ruston Hunt [52], and GRANTS as
unopposed defendant Cumberland’s Motion to Join Millard’s Motion to
Exclude [56].
SO ORDERED, this 23rd day of September, 2011.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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