Houston v. Publix Supermarkets, Inc.
ORDER denying 146 Motion for Summary Judgment; denying 148 Motion for Partial Summary Judgment; denying 148 Motion to Add Party. ; denying 166 Motion to Strike. Signed by Judge Thomas W. Thrash, Jr on 12/31/2014. (ss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
CIVIL ACTION FILE
PUBLIX SUPERMARKETS, INC.,
OPINION AND ORDER
This is a personal injury action. It is before the Court on the Defendant’s
Motion for Summary Judgment [Doc. 146], the Defendant’s Motion for Partial
Summary Judgment or, in the Alternative, Motion to Add ML Healthcare Services,
LLC [Doc. 148], and the Plaintiff’s Motion to Strike Answer, or Fact and Issue
Preclusion [Doc. 166]. For the reasons stated below, the Defendant’s Motion for
Summary Judgment is DENIED. The Plaintiff’s Motion to Strike Answer, or Fact and
Issue Preclusion is DENIED. The Defendant’s Motion for Partial Summary Judgment
On July 24, 2012, the Plaintiff, Robin Houston, visited a Publix Supermarket
in McDonough, Georgia.1 The Plaintiff claims that while she was in aisle 13, the dairy
aisle, she slipped and fell in water.2 She testified that she was paying attention to
where she was going, but did not see the water before she fell.3 After the incident, the
Plaintiff claims that she could see small puddles of water on the floor.4 Three Publix
employees inspected the floor after the fall and could see no water.5
Multiple Publix employees also inspected the floor prior to the fall. From 7:28
A.M. to 7:29 A.M., Tiffany Roy, a Customer Service Manager, inspected aisle 13.6
At that time, there was no water on the floor.7 Ms. Roy walked through the area in
which the Plaintiff fell.8 At 7:34 A.M., Garrett Peterson walked down aisle 13 and saw
Pl.’s Statement of Facts ¶ 1.
Id. ¶¶ 2-3.
Id. ¶ 3.
Roy Decl. ¶¶ 7-8; Beauvais Decl. ¶¶ 6-7; Peterson Decl. ¶ 10.
Roy Decl. ¶¶ 5-6.
Id. ¶ 6.
Kennett Decl. ¶ 8, Ex. D.
no water on the floor, despite scanning the area to look for hazards.9 From 7:42 A.M.
to 7:44 A.M., Tony Brock, a Publix bread vendor, pushed bread trays through aisle
13.10 Mr. Brock stated that the bread carts were dry, and he does not recall seeing any
water on the floor.11 Additionally, at 7:50 A.M., Mr. Peterson dust mopped aisle 13
while scanning for hazards.12 At that time, there was no water on the floor.13 All of the
employees stated that if they had seen a hazard, they would have removed it or
notified someone else to remove it while waiting with the hazard.14 The Plaintiff fell
at 7:54 A.M., just four minutes after the last inspection.15 After the fall, at
approximately 8:02 A.M., Ronald Beauvais, a Publix employee, cleaned up a small
spot of milk from the floor, about five feet from the area of the fall.16 The Plaintiff
filed suit in the State Court of Gwinnett County, Georgia, asserting a negligence claim
Peterson Decl. ¶¶ 8-9.
Brock Decl. ¶ 4.
Id. ¶¶ 4-5.
Peterson Decl. ¶ 9.
Brock Decl. ¶ 5; Roy Decl. ¶ 6; Peterson Decl. ¶ 7.
Def.’s Statement of Facts ¶ 10.
Kennett Decl. ¶¶ 6, 9; Beauvais Decl. ¶ 7; Roy Decl. ¶¶ 7-8.
against the Defendant Publix Supermarkets. Publix removed the case to this Court and
now moves for summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show no genuine issue of material fact exists and
that the movant is entitled to judgment as a matter of law.17 The court should view the
evidence and any inferences that may be drawn in the light most favorable to the
nonmovant.18 The party seeking summary judgment must first identify grounds to
show the absence of a genuine issue of material fact.19 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.20 “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”21
FED. R. CIV. P. 56(a).
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
The Defendant’s Motion for Summary Judgment
The Plaintiff alleges that Publix should be sanctioned for preserving only an
hour of video footage surrounding the fall at issue here. Spoliation sanctions are
governed by federal law, but informed by state law.22 Georgia law on spoliation is
consistent with federal law.23 Georgia courts assess five factors in determining
whether spoliation sanctions are warranted: (1) prejudice to the defendant as a result
of the destruction of evidence, (2) whether any prejudice can be cured, (3) the
importance of the evidence, (4) whether the spoliator acted in good or bad faith, and
(5) the potential for abuse if expert testimony about the evidence was not excluded.24
There is no evidence that the missing video prejudices the Plaintiff. The
preserved video shows thirty minutes prior to the fall and after the fall, including the
entire time the Plaintiff was in the store. Additionally, as discussed below, there is no
indication that more video pre-fall would have any relevance whatsoever. Further,
Heath v. Wal-Mart Stores East, LP, 697 F. Supp. 2d 1373, 1377 (N.D.
Bridgestone/Firestone N. Am. Tire, LLC v. Campbell, 258 Ga. App. 767,
there is no evidence that Publix acted in bad faith. Rather, Publix followed its video
retention policy the day after the incident – July 25.25 No spoliation letters were sent
requesting more footage until the middle of August.26 This Court therefore declines
to impose any sanctions on Publix. Furthermore, the Plaintiff’s Motion to Strike
Answer should be denied because this Court finds that there was no spoliation
Under Georgia law, “[w]here an owner or occupier of land, by . . . invitation,
induces . . . others to come upon his premises for any lawful purpose, he is liable in
damages to such persons for injuries caused by his failure to exercise ordinary care in
keeping the premises and approaches safe.”27 The owner’s duty to exercise ordinary
care “requires the owner to protect the invitee from unreasonable risks of harm of
which the owner has superior knowledge and to inspect the premises to discover
possible dangerous conditions of which the owner does not have actual knowledge.”28
Pl.’s Statement of Facts ¶ 61.
Id. ¶ 63.
O.C.G.A. § 51-3-1.
Kauffman v. Eastern Food & Gas, Inc., 246 Ga. App. 103, 104 (2000);
see also Robinson v. Kroger Co., 268 Ga. 735, 740 (1997) (“The owner/occupier is
. . . required . . . to exercise the diligence toward making the premises safe that a good
business person is accustomed to use in such matters” and “[t]his includes inspecting
In the context of slip-and-fall cases, “[t]o prove negligence . . . the plaintiff must show
(1) the defendant had actual or constructive knowledge of the foreign substance and
(2) the plaintiff lacked knowledge of the substance or for some reason attributable to
the defendant was prevented from discovering it.”29
Here, there is no evidence that Publix had actual knowledge of the alleged
foreign substance on the floor. In fact, every Publix employee who had been in the
area testified that they saw nothing on the floor. Instead, the Plaintiff must
demonstrate a genuine issue of material fact regarding the Defendant’s constructive
knowledge of the substance. Constructive knowledge may be shown if (1) “an
employee of the defendant was in the immediate area of the hazard and could have
easily seen it, or (2) . . . the foreign substance remained long enough that by ordinary
diligence the defendant should have discovered it.”30 Because a Publix employee, Mr.
Beauvais, was in the immediate area of the incident, there is a genuine issue of fact
as to whether Publix had constructive knowledge of the puddle of water.
the premises to discover possible dangerous conditions of which the owner/occupier
does not have actual knowledge, and taking reasonable precautions to protect invitees
from dangers foreseeable from the arrangement or use of the premises.”).
Shepard v. Winn Dixie Stores, Inc., 241 Ga. App. 746, 747 (1999).
Mock v. Kroger Co., 267 Ga. App. 1, 2 (2004).
The Georgia courts have repeatedly held that “regardless of any inspection
program, when a proprietor has shown that an inspection occurred within a brief
period prior to an invitee’s fall, . . . the inspection procedure was adequate as a matter
of law.”31 When a defendant presents evidence that the area was inspected
immediately prior to a slip-and-fall incident, any attack on that defendant’s inspection
procedures is without merit.32 Inspections as long as thirty minutes before a fall have
been considered reasonable as a matter of law.33 Here, Ms. Roy inspected the aisle
twenty-five minutes before the fall and Mr. Peterson inspected the aisle a mere four
minutes before the fall. The bread vendor, Mr. Brock also testified that he was in the
aisle ten minutes before the fall and that there was no water on the floor. The video
of the incident confirms that these inspections took place. However, the Plaintiff’s
testimony that there was a puddle of water on the floor creates a genuine issue of fact
as to whether the inspections were adequate and reasonable.
Medders v. Kroger Co., 257 Ga. App. 876, 878 (2002).
Matthews v. The Varsity, Inc., 248 Ga. App. 512, 513 (2001).
See, e.g., Funez v. Wal-Mart Stores East LP, No. 1:12-cv-0259-WSD,
2013 WL 123566, at *5 (N.D. Ga. Jan. 9, 2013) (collecting cases).
For the reasons stated above, the Defendant’s Motion for Summary Judgment
[Doc. 146] is DENIED, the Defendant’s Motion for Partial Summary Judgment or, in
the Alternative, Motion to Add ML Healthcare Services, LLC [Doc. 148] is DENIED,
and the Plaintiff’s Motion to Strike Answer, or Fact and Issue Preclusion [Doc. 166]
SO ORDERED, this 31 day of December, 2014.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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