Wright v. Wal-Mart Stores East, LP

Filing 127

OPINION and ORDER granting defendant's 92 Motion for Summary Judgment. Signed by Judge Clarence Cooper on 1/11/2021. (jta)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DIANNE WRIGHT,
Plaintiff,
vs.
WAL-MART STORES EAST, LP,
Defendant.

:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
1:18-CV-1006-CC

OPINION AND ORDER
This premises liability case is before the Court on Defendant Wal-Mart
Stores East, LP’s Motion for Summary Judgment [Doc. No. 92]. For the reasons
stated below, the Court GRANTS the Motion for Summary Judgment.
I.

BACKGROUND
Plaintiff Dianne Wright (“Plaintiff” or “Mrs. Wright”) alleges that on

November 6, 2016, she was shopping at the Wal-Mart store (the “Store”) in Lithia
Springs, Georgia, when she slipped and fell at approximately 1:25 p.m. due to a
clear, slippery substance in the water aisle of the beverage area. (Statement of
Material Facts as to Which There is No Genuine Issue to be Tried “DSMF” [Doc.
No. 92-2] ¶ 1; Plaintiff’s Statement of Material Facts as to Which There Are
Genuine Issues for Trial “PSMF” [Doc. No. 97-3] ¶ 1.) After Mrs. Wright left
church, she went to Wal-Mart with her daughter for the sole purpose of obtaining

water, while her daughter obtained personal items. (PSMF ¶ 2.) While Mrs.
Wright’s daughter was in the checkout line, Mrs. Wright walked to the back of the
Store to the water aisle and instantly felt herself “sliding” or losing her balance
and “just gliding down the aisle.” (Id. ¶ 3.) After she fell to the ground, Mrs.
Wright picked up her purse, retrieved the water, and searched for a manager to
report her incident because she was hurt. (Id. ¶ 4.) The entire incident was
captured on two (2) of Wal-Mart’s in-store cameras.1 (DSMF ¶ 2.)
Video 1 depicts the aisle along the back wall of the beverage area where it
intersects with the end of the “water aisle.” (Id. ¶ 4; PSMF ¶ 14.) Video 2 shows
the “water aisle” as it runs into the back wall, and this is the aisle where Mrs.
Wright fell. (DSMF ¶ 4; PSMF ¶ 14.) The videos accurately depict the area of Mrs.
Wright’s fall for a two-hour period. (DSMF ¶ 4.)
In the front of the water aisle, approximately ten (10) to twenty (20) feet
away, is a double door, employee-only entrance that leads to the Store’s
warehouse, claims department, managers and personnel offices, clock-in and -out
station, and the only breakroom/employees lounge in the Store. (PSMF ¶ 16.) The
employee-only double door is the closest entrance to the dry grocery paper and

1

 The two (2) Store videos are attached to Plaintiff Dianne Wright’s Deposition, as Exhibit

16, and the nine (9) screenshots, taken from the Store videos, are attached to the
Declaration of Asset Protection Manager Isaiah Thomas. (Id. ¶ 3.) 
2 

chemical, dairy, and infant departments and has an adjoining action alley that
leads to the door. (Id. ¶ 17.)
In Video 2, at 1:12:09 p.m., an unknown male customer and two (2) male
companions are depicted in the back aisle where it meets the water aisle. (DSMF
¶¶ 7, 18.) The male customer drops a bottle from his cart, and it breaks. (Id.; PSMF
¶ 18(h).) Video 1 shows the unknown male customer looking down at the broken
bottle on the floor. (DMSF ¶ 8.) The broken cap can be seen behind him. (Id.) In
Video 1, the unknown male customer picks up the cap and bottle and hands them
to one of his companions in a blue shirt. (Id. ¶¶ 9, 19.) In Video 2, the companion
in the blue shirt drops the bottle on the floor again and then kicks the broken bottle
under the shelving. (Id. ¶¶ 10, 20.) The customers then leave. (Id. ¶¶ 10, 20.)
In Video 2, the broken bottle and cap cannot be seen on the floor. (Id. ¶ 11.)
The spill substance also cannot be seen in Video 2. (Id.) At 1:20:58 p.m., Video 2
shows a woman customer enter from the back of the water aisle where the male
customer dropped the bottle. (PSMF ¶ 18(i).) At 1:21:26 p.m., the same woman
customer notices something on the floor where the bottle was dropped and where
Mrs. Wright subsequently fell; she steps in the substance and wipes her left shoe
back and forth on the floor in an attempt to remove the substance from her shoe.
(Id. ¶ 18(j).) She wipes her shoe in the exact location where Mrs. Wright fell. (Id.)

3 

In Video 2, at 1:25:26 p.m., Mrs. Wright enters from the front of the water
aisle, opposite of where the male customer dropped the bottle, and walks towards
the back of the aisle. (DSMF ¶ 12; PSMF ¶ 18(k).) In Videos 1 and 2, Plaintiff slips
and falls in the same area where the bottle was dropped approximately thirteen
(13) minutes earlier and where the woman customer wiped her foot back and
forth. (DSMF ¶ 13; PSMF ¶ 18(l).)
Before the substance was cleaned and before Mrs. Wright found a manager
to report her incident, a different woman customer, pushing a shopping cart,
enters from the back of the water aisle where the male customer dropped the bottle
and looks back towards the substance where Mrs. Wright fell. (PSMF ¶ 18(m).)
The woman customer pointed in the substance’s direction and warned a male
customer of the substance. (Id. ¶ 18(n).)
At 12:57:06 p.m., on November 6, 2016, approximately twenty-eight (28)
minutes before Mrs. Wright’s fall, employee Sophia Gusmao walked to the end of
the water aisle. (DSMF ¶ 14.) She stopped within a step or two of the exact area
where Mrs. Wright later fell to pick up a case of water for an online order. (Id.)
Gusmao avers in a declaration that the aisle floor was clean and hazard free. (Id.
¶ 16.) According to her testimony, there was no spilled substance on the aisle floor
when she was picking up her case of water at 12:57:06 p.m. (Id.)

4 

There is a factual dispute, however, as to whether Gusmao inspected or
reasonably inspected the area. In this regard, Plaintiff contends that Video 2 shows
that Gusmao did not actively look at the aisle floor for any hazards, that she was
distracted by a device held in her right hand, and that she actually walked past a
paper hazard without picking it up. (PSMF ¶ 18(g).) Trevor Johnson, Dry Grocery
manager of the area where Mrs. Wright fell, testified that, based on Video 2, the
paper hazard on the floor would indicate that no one inspected the aisle. (Id. ¶
38.) Manager Johnson testified that the hazard should have been removed. (Id. ¶
39.)
Defendant’s corporate representative, Victor Effah, admitted that Wal-Mart
has no written documentation regarding whether any of its employees performed
any inspections of the water aisle, including a safety sweep, zone, or clean-as-yougo on November 6, 2016, prior to Mrs. Wright’s fall. (Id. ¶ 32.) When asked “how
do you all determine when a sweep has actually been performed,” Mr. Effah
replied “[w]hen the floor is free of debris.” (Id. ¶ 34.) Wal-Mart admits that it does
not (1) “generate or maintain records” or logs of its inspections, (2) “retain or
archive the work schedules” of its employees, or (3) “set times when inspections
must be performed.” (Id. ¶ 46.)
Videos 1 and 2 show that no employee was present in the water aisle when
the spill occurred. (DSMF ¶ 21.) No employee walked through the water aisle
5 

after the spill was created and before Plaintiff’s fall, thirteen (13) minutes and
twenty-five (25) seconds later. (Id. ¶ 22.) The Store videos show, and Mrs. Wright
admitted, no employee was in the aisle at the time of her fall. (Id. ¶ 23.)
No one reported the spill to any Wal-Mart employee before Mrs. Wright’s
fall.2 (Id. ¶ 24.) Both Support Manager Sarah Krasner and Cap II Supervisor
Marcellus Bonner were working on November 6, 2016, in the Dry Goods
department, which included the water aisle. (Id. ¶ 25.) They averred they had no
knowledge of the spill in the water aisle before Mrs. Wright’s incident. (Id.)
Bonner averred that none of the fifteen (15) employees under his supervision who
worked in the Dry Goods department reported the spill to him. (Id. ¶ 26.)
General Merchandise Support Manager Dawkins was in the front of the
Store checking returns with Grocery Support Manager Sarah Krasner and was
unaware of the spill until Mrs. Wright reported it. (Id. ¶ 27.) Dawkins and Krasner
came to the accident scene after Mrs. Wright’s fall to assist with guarding the spill
and did not witness Mrs. Wright’s fall. (Id. ¶ 28.) Co-Manager Anthony Santos,
who was the salaried member of management to investigate the incident, testified
no one had reported the spill until Mrs. Wright did so and no employee knew of

2

  Plaintiff denies this statement of fact and several others as self-serving statements that

lack evidence. However, the statements are supported by deposition and declaration
testimony. Therefore, the Court deems the statements admitted. (See DSMF ¶¶ 24-27,

29-30, 61-63.)
6 

the spill before Mrs. Wright’s fall. (Id. ¶ 29.) There is no evidence that any
employee had any actual knowledge of the spill before Mrs. Wright’s fall. (Id. ¶
30.)
Mrs. Wright testified she walked down the water aisle to pick up a case of
water on the back wall, when she fell on a clear substance. (Id. ¶ 31.) She identified
herself in the video falling at 1:25:34-35 p.m. (Id.) Mrs. Wright testified she was
looking where she was walking as she entered the water aisle, and it appeared
clean and safe. (Id. ¶ 32.) She saw nothing on the aisle floor that gave her any
concern before she fell. (Id. ¶ 33.) Nothing in the aisle blocked or obstructed her
view of the floor. (Id. ¶ 34.) She admitted the Store was well-lighted. (Id. ¶ 35.)
Mrs. Wright did not know what she had slipped on. (Id. ¶ 36.) Mrs. Wright
never saw the spill before or immediately after her fall. (Id.) When Mrs. Wright
returned to the water aisle after reporting her fall, she stated she could not see the
clear spill, only the smudge caused by her foot slipping in the spill. (Id. ¶ 37.) Mrs.
Wright could not identify the spilled substance or its source. (Id. ¶ 38.)
Mrs. Wright admitted she did not see the slippery substance before or after
her fall because it was clear and blended with the tan floor. (Id. ¶ 39.) Mrs. Wright
admitted she was looking down the aisle, but not actually at the floor; however,
she testified she would not have been able to see anything on the floor even if she
had looked. (Id. ¶ 40.) Mrs. Wright admitted the substance was not visible, even
7 

if she had been standing directly over it. (Id. ¶ 41.) When questioned by her own
counsel, Mrs. Wright stated:
Q.

And why do you think you cannot see that substance on that video?

A.

It blends in with the color of the floor.

Q.

And do you know if it blended in with the floor when you were at

Walmart? Were you able to tell that this substance was on the floor while
you were there?
A.

I wasn’t able to see it, because I mean, it blended in the floor. I just

know I slid in something wet.
Q.

So even had you been looking down at the moment you fell, do you

believe you would have seen the substance?
A.

No.

(Id.)
Mrs. Wright admitted she did not know what the clear substance was that
caused her fall, where it came from, or how it got on the floor. (Id. ¶ 42.) Mrs.
Wright admitted she did not know how long it had been on the floor before her
fall or if it had been on the floor an extended period of time. (Id. ¶ 43.) Mrs. Wright
admitted she did not know if the spilled substance was created by a customer or
employee, adult or child. (Id. ¶ 44.) Mrs. Wright did not know the last time the
area had been inspected. (Id. ¶ 45.)
8 

General Merchandise Support Manager Yolanda Dawkins and Dry Grocery
Department Co-Manager Anthony Santos initially responded to Mrs. Wright’s
incident. (PSMF ¶ 5.) Mrs. Wright directed them to the end of the aisle where the
substance was located, but she did not walk back to the area where she fell to look
at the substance she described as slippery and wet. (Id. ¶ 6.) Mrs. Wright
overheard the employees who responded to her incident discussing why there
was no wet floor sign in the area where she fell. (Id. ¶ 7.) The employees were
unable to remove all of the substance off the floor, so they called a maintenance
employee to use a floor scrubber machine to clean it up. (Id. ¶ 9.) The maintenance
employee cleaned the area with a machine. (Id. ¶ 18(r).)
Co-Manager Santos, during his investigation, found a clear, slippery
substance on the water aisle floor, which was hard to see until you got “really close
up on it.” (DSMF ¶ 46.) By examining the spill, Co-Manager Santos identified the
clear substance as tire shine or possibly “Goo Gone.” (Id. ¶ 47.) Goo Gone was
not a water product or any drink product sold on the water aisle or in the beverage
department. (Id. ¶ 48.) Co-Manager Santos also confirmed the substance was a
tire cleaner or Goo Gone based on the shape of the container. (Id. ¶ 49.) CoManager Santos stated the spill was caused by an unknown customer dropping
the bottle. (Id. ¶ 50.)

9 

General Merchandise Support Manager Dawkins confirmed the spill was
clear and difficult to see from a standing position. (Id. ¶ 51.) Dawkins testified
that she had to actually bend over the spill to photograph the spill. (Id. ¶ 52.)
Dawkins confirmed the spill was not water, but an oily substance, because when
they tried to clean it up with paper towels, it spread further. (Id. ¶ 53.) Dawkins
testified she examined the broken bottle cap and determined it did not match any
product sold in the water aisle. (Id. ¶ 54.) Dawkins examined substance on the
cap and the paper towels used to clean the substance from the floor, and it did not
look or smell like water. (Id. ¶ 55.)
Wal-Mart has specific policies and procedures regarding the prevention and
cleanup of spills and other safety hazards. (Id. ¶ 56.) All employees are trained to
conduct “zone defense” and “safety sweeps” of their area, meaning they were to
visually scan the area they were working in to ensure the floor was clean and clear
of any hazards to customers. (Id.) If a hazard was found, employees were trained
to immediately remove it.3 (Id. ¶ 58.) If the hazard could not be removed, the
employee was required to guard the hazard until it could be removed. (Id.)

  Plaintiff contends that Video 2 demonstrates the employees were not properly trained
to immediately remove hazards found. However, while the video footage may show that
the employees did not act consistently with their training, the video footage does not
create a dispute of fact as to whether employees were trained to immediately remove a
discovered hazard.
3

10 

Wal-Mart’s Slip, Trip, and Fall Guidelines set forth at least three (3) types of
basic inspection practices, which include (1) “clean-as-you-go method,” which
requires employees to clear their work area as they work, remove trash, and
debris, and “[c]lean up spills, debris and slip and trip hazards immediately;” (2)
“safety sweeps,” which require employees to “check the entire area including
floors,” visually “look for potential hazards” from “start of shift to close of shift,”
and “watch for and correct potential hazards” to and from lunch breaks; and (3)
“zone,” which requires employees to make sure merchandise is in its proper place
and ensure the area is clean, nice, and presentable. (PSMF ¶ 19.)
Furthermore, Wal-Mart’s written policies contain demonstrative photos to
show employees how to properly perform inspections. (Id. ¶ 21.) One of the
photographs depicts a female employee working while a piece of paper is on the
floor. (Id. ¶ 22.) Next to the photograph, Wal-Mart specifies that the floor is not
free of debris, and the associate is “not aware of her surroundings” because she
bypassed the paper hazard debris on the floor. (Id. ¶ 23.) According to the
photograph, the employee’s behavior is “wrong.” (Id. ¶ 24.)
Store management ensured that all employees were trained on Wal-Mart’s
policies and procedures through orientation, computer-based learning, and onthe-job training. (DSMF ¶ 60.) Store management sought to ensure that all
employees followed these policies and procedures through continual supervision
11 

called “coaching by walking around.” (Id. ¶¶ 61-62.) Co-Manager Anthony Santos
testified that managers who “coach” the employees on how to perform inspections
only coach “as needed.” (PSMF ¶ 43.) He further testified that the maintenance
employees who physically sweep the floors only sweep “as needed.” (Id. ¶ 44.)
Co-Manager Anthony Santos, Support Manager Yolanda Dawkins, Dry
Goods Department Manager Trevor Johnson, CAP II Supervisor Marcellus
Bonner, Grocery Department Support Manager Sarah Krasner, and Online
Grocery Pickup Associate Sophia Hart Gusmao confirmed that they were familiar
with and trained upon Lithia Spring Walmart’s specific safety policies and
procedures regarding the prevention and cleanup of spills and other safety
hazards, including safety sweeps, zoning, and visual inspections of the floors,
which were in effect on November 6, 2016. (DSMF ¶ 62.) On the afternoon of
November 6, 2016, CAP II Supervisor Marcellus Bonner and Support Manager for
Dry Goods Sarah Krasner both averred they were working in the Dry Goods
department, which included the water aisles of the beverage department. (Id. ¶
63.) During the time they were working on November 6, 2016, they followed
Walmart safety policies and procedures, including safety sweeps, zoning, and
visual inspections. (Id.)

12 

Three days after Mrs. Wright fell, she sent spoliation correspondence to
Defendant to preserve video surveillance footage the day of her injury. (PSMF ¶
13.) Defendant only kept two (2) videos from the incident. (Id. ¶ 14.)
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 requires the entry of summary judgment

when no genuine issue as to any material fact is present and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In seeking summary
judgment, the moving party bears the initial responsibility to demonstrate that
there is no genuine issue as to any material fact and that summary judgment is
appropriate. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L.
Ed. 2d 142 (1970); Allen v. Bd. of Public Educ., 495 F.3d 1306, 1313 (11th Cir. 2007).
“Only when that burden has been met does the burden shift to the non-moving
party to demonstrate that there is indeed a material issue of fact that precludes
summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991).
When evaluating the merits of a motion for summary judgment, the court
must view all evidence and factual inferences raised by the evidence in the light
most favorable to the non-moving party and resolve all reasonable doubts
concerning the facts in favor of the non-moving party. Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999) (citation omitted). The court is not
13 

permitted to make credibility determinations, weigh conflicting evidence to
resolve disputed facts, or assess the quality of the evidence. Reese v. Herbert, 527
F.3d 1253, 1271 (11th Cir. 2008).
A fact is material if proof of its existence or nonexistence would affect the
outcome of the case under controlling substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Additionally,
an issue of fact is genuine when the evidence is such that a reasonable jury could
return a verdict in favor of the non-moving party. Id. An issue of fact is not
genuine if it is unsupported by evidence or if it is created by evidence that is
“merely colorable”or “not significantly probative.” Id. at 249-250. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).
III.

ANALYSIS
A. Spoliation Claim
Before addressing the merits of Plaintiff’s premises liability claim, the Court

will address Plaintiff’s claim that Defendant failed to preserve video surveillance
of the front of the aisle where she fell, despite having received spoliation
correspondence from Plaintiff requesting that Defendant preserve video
surveillance footage from the day of her injury. Plaintiff further claims that such
14 

surveillance video would have shown every employee who walked past the water
aisle to reach the employee-only double door that leads to the Store’s warehouse,
claims department, managers and personnel offices, clock-in and -out station, and
the only breakroom/employee lounge in the Store.

Plaintiff argues that an

adverse inference should be drawn against Defendant regarding whether any
employees were in the vicinity to discover the hazard that caused her injury.
“Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” Graff v. Baja Marine Corp., 310 F. App’x 298, 301 (11th Cir.
2009) (internal quotation marks and citation omitted). A district court has broad
discretion to impose sanctions for spoliation as part of its “inherent power to
manage its own affairs and to achieve the orderly and expeditious disposition of
cases.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). As an
evidentiary matter, the imposition of spoliation sanctions is governed by federal
law in diversity suits. Id. However, federal law in the Eleventh Circuit does not
set forth specific guidelines in determining whether sanctions for spoliation are
appropriate. Id. As a result, the spoliation analysis is “informed by Georgia law,”
which the Eleventh Circuit has found to be “wholly consistent with federal
spoliation principles.” Id.

15 

A party seeking spoliation sanctions must meet the initial burden of proving
that (1) the missing evidence existed at one time, (2) the alleged spoliator had a
duty to preserve the evidence, and (3) the evidence was crucial to the movant
being able to prove its prima facie case or defense. In re Delta/Air Tran Baggage
Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011). If spoliation has
occurred, Georgia courts further evaluate the following five factors in determining
whether spoliation sanctions are warranted: (1) whether the movant was
prejudiced 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 is not excluded. Flury, 427 F.3d at 945 (citing Chapman v. Auto Owners
Ins. Co., 220 Ga. App. 539, 542, 469 S.E.2d 783 (1996)).
In Flury, the Eleventh Circuit looked to Georgia law for guidance in defining
the elements of spoliation and, in the process, arguably diminished the role of bad
faith in the spoliation analysis by identifying bad faith as only one factor for
consideration. Stanfill v. Talton, 851 F. Supp. 2d 1346, 1362 (M.D. Ga. 2012).
However, the Eleventh Circuit previously held that “[m]ere negligence in losing
or destroying the records is not enough for an adverse inference, as it does not
sustain an inference of consciousness of a weak case.” Bashir v. Amtrak, 119 F.3d
929, 931 (11th Cir. 1997) (internal quotation marks and citation omitted). The
16 

Bashir court further stated without qualification that, in the Eleventh Circuit, “an
adverse inference is drawn from a party’s failure to preserve evidence only when
the absence of that evidence is predicated on bad faith.” 119 F.3d at 931 (citation
omitted). The Eleventh Circuit recently confirmed this in Tesoriero v. Carnival
Corp., 965 F.3d 1170, 1184 (2020). Thus, a showing of bad faith continues to be
required to impose sanctions.
In the case at bar, Plaintiff has not met her burden of showing that spoliation
occurred. Plaintiff contends that “there appears to be at least seven potential cameras
that would have captured” every employee who walked past the water aisle to
enter the employee-only double door. (Doc. No. 97-1 at 8) (emphasis added).
Plaintiff also states that the video evidence “may have captured the front of the
water aisle.” (Id. at 19) (emphasis added). However, only speculation and
conjecture back Plaintiff’s contentions that there were cameras and that the
cameras would have captured footage of this area of the Store. Moreover, even if
there were cameras in the places Plaintiff contends, Plaintiff has absolutely no
evidence that footage of the day in question from these cameras ever existed.
When Plaintiff deposed Wal-Mart’s representative, Victor Effah, Mr. Effah
testified that he thought the globes Plaintiff claims to be cameras were lights.
(Deposition of Victor Effah “Effah Dep.” [Doc. No. 98] at 312:14-21.) Further,
assuming they were cameras, Mr. Effah testified that he did not know if they
17 

would be able to show the front end of the beverage area. (Id. at 312:21-23; 313:813.) Simply put, there is no evidence whatsoever of any additional footage that
existed, and Plaintiff’s speculation is insufficient to establish a spoliation claim.4
In re Delta/AirTran Baggage Fee Antitrust Litigation, 770 F. Supp. 2d at 1309.
B. Premises Liability Claim
To prevail on a cause of action for negligence under Georgia law, the
plaintiff must establish the essential elements of duty, breach of duty, proximate
causation and damages. Black v. Georgia S. & Fla. Ry. Co., 202 Ga. App. 805, 806,
415 S.E.2d 705 (1992). Under Georgia law, the owner or occupier of real property
owes a duty to its invitees to exercise ordinary care in keeping its premises safe.
O.C.G.A. § 51-3-1. “This includes inspecting 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.” Robinson v. Kroger
Co., 268 Ga. 735, 740, 493 S.E.2d 403 (1997) (citations omitted). By encouraging
others to come onto the property to further the purpose of the owner or occupier,
the owner or occupier impliedly represents that reasonable care has been exercised
to make the premises safe for those who come for that purpose, and that
representation is the basis of the owner or occupier’s liability for injuries sustained

4

 Plaintiff makes no attempt to address the issue of bad faith.

18 

by an invitee in a slip-and-fall case. Id. at 741. Notwithstanding the foregoing, a
property owner is not an insurer of the safety of entrants, and a mere showing that
an injury occurred while on the premises of a proprietor is not sufficient, by itself,
to create a presumption of negligence. Lee v. Food Lion, 243 Ga. App. 819, 820,
534 S.Ed2d 507 (2000); see also Sunlink Health Sys., Inc. v. Pettigrew, 286 Ga. App.
339, 341, 649 S.E.2d 532 (2007) (“[P]roof of a fall, without more, does not give rise
to liability on the part of the proprietor.”).
To establish an owner’s liability for injuries sustained in a slip-and-fall case,
the plaintiff must plead and prove: (1) the defendant had actual or constructive
knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for
his or her own personal safety, lacked knowledge of the hazard due to the
defendant’s actions or to conditions within defendant’s control. Robinson, 268 Ga.
at 748. “The true basis for an owner’s liability is his superior knowledge of the
existence of a condition that could subject his invitees to an unreasonable risk of
injury.” Garrett v. Hanes, 273 Ga. App. 894, 895, 616 S.E.2d 202 (2005) (emphasis
added). Thus, if the owner has no actual or constructive knowledge of the hazard,
the owner is entitled to summary judgment. Drew v. Istar Fin., Inc., 291 Ga. App.
323, 325, 661 S.E.2d 686 (2008).
Here, Plaintiff does not argue that Defendant had actual knowledge of the
hazard that caused her fall.

The analysis therefore focuses on constructive
19 

knowledge. A plaintiff may demonstrate a proprietor’s constructive knowledge
of a hazard by showing that “(1) a store employee was in the immediate area of
the hazard and could have easily seen the substance or (2) the foreign substance
remained long enough that ordinary diligence by the store employees should have
discovered it.” Johnson v. All Am. Quality Foods, Inc., 340 Ga. App. 664, 666, 798
S.E.2d 274 (2017) (citation omitted).
Defendant is entitled to summary judgment in this case first because there
is no evidence that an employee was in the immediate area of the hazard. The
uncontroverted video evidence is that there was no employee on the water aisle
from the time the spill occurred until the time of Plaintiff’s fall.

In these

circumstances, the first method of demonstrating constructive knowledge fails.
Plaintiff also cannot establish constructive knowledge by the first method
because the substance on which she slipped was not easily visible. As such, even
if an employee had been in the immediate area of the hazard or had inspected the
area pursuant to a reasonable inspection program, the substance would not have
been easily discovered and removed. Georgia law is well established that a
proprietor is not liable under these circumstances. See Womack-Sang v. Publix
Super Markets, Inc., No. 1:12-CV-4189-ODE, 2013 WL 12067480, at *8 (N.D. Ga.
Nov. 1, 2013), aff’d, 556 F. App’x 912 (11th Cir. 2014) (awarding summary
judgment because, among other reasons, liquid on which plaintiff slipped did not
20 

contrast with the tiled floor and was only “barely visible” when “in close
proximity”); Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 250, 699 S.E.2d
439 (2010) (finding no inference of constructive knowledge where the plaintiff
admitted that the grease spot on which he slipped “was not easily visible to him
prior to the fall”); Hardee’s Food Sys. v. Green, 232 Ga. App. 864, 502 S.E.2d 738
(1998) (upholding summary judgment where the plaintiff admitted that the
alleged hazard was not readily visible and no evidence suggested that the alleged
hazard was on the floor for any length of time); Rodriguez v. City of Augusta, 222
Ga. App. 383, 384, 474 S.E.2d 278 (1996) (holding that defendant was entitled to
summary judgment where plaintiff admitted that the alleged dangerous substance
was not visible).
In the case at bar, Plaintiff admitted she did not see the slippery substance
before or after her fall because it was clear and blended with the tan floor. Plaintiff
testified she was looking down the aisle but not actually at the floor; however, she
testified she would not have been able to see anything on the floor even if she had
looked. Plaintiff admitted the substance was not visible, even if she had been
standing directly over it. Plaintiff testified that, even if she had been looking down
at the moment she fell, she did not believe she would have seen the substance.
The testimony of employees who investigated the incident corroborated
that the spill was invisible or very difficult to see. Support Manager Dawkins
21 

confirmed the spill was clear and difficult to see from a standing position. She
testified she had to actually bend over the spill to photograph the spill. CoManager Santos similarly testified that his investigation revealed a clear, slippery
substance on the water aisle, which was hard to see until getting really close up on
it.
Plaintiff tries to create an issue of fact as to the visibility of the hazard by
pointing out video evidence of other customers who purportedly noticed the
hazard before and after her fall. However, the visibility of the substance after
Plaintiff fell is irrelevant. See Host/Taco Joint Venture, 305 Ga. App. at 250
(“Brown’s claim that the grease spot could be seen after his fall fails to address the
pertinent inquiry as to whether the grease spot was easily visible before the fall.”)
Plaintiff claims that one of the videos shows that, prior to Plaintiff’s own fall, a
customer noticed something on the floor where the bottle was dropped and where
Plaintiff subsequently fell. Plaintiff claims the video shows the customer then
stepped in the substance and wiped her left shoe back and forth on the floor in an
attempt to remove the substance from her shoe. Notably, if this customer noticed
the hazard on the floor, it is nonsensical that she then would have stepped in it. A
justifiable or reasonable inference that this customer noticed the substance and
that the substance was therefore easily visible cannot be drawn in Plaintiff’s favor
from the video evidence. Most importantly, this customer was never identified
22 

and never provided sworn testimony regarding what she saw or knew. Plaintiff
urges the Court to deny summary judgment based on her own speculation and
conjecture, but her speculation and conjecture are not competent evidence of
Defendant’s constructive knowledge of the hazard and do not create or
demonstrate a genuine issue for trial. See Anderson, 477 U.S. at 249-50. Plaintiff’s
failure to point to evidence demonstrating that the hazard was easily visible prior
to her fall and her admission that it was not are fatal to her claim.
When a plaintiff cannot show that an employee was in the position to have
easily seen a hazard and removed it, the plaintiff must show that the hazard was
on the floor for such a time that it would have been discovered and removed had
the proprietor exercised reasonable care in inspecting the premises. Sanderson
Farms, Inc. v. Atkins, 310 Ga. 423, 426, 713 S.E.2d 483 (2001). As explained below,
video evidence establishes that the substance at issue in this case was on the floor
of the water aisle for an insufficient amount of time to have been discovered and
removed.
Under Georgia law, “the proprietor may . . . produce evidence . . . that the
foreign substance had not been on the premises long enough to have been
discovered by a reasonable inspection, regardless of whether inspection
procedures had been instituted and complied with.” Johnson v. Autozone, 219
Ga. App. 390, 394, 465 S.E.2d 463 (1995); see also All Am. Quality Foods v. Smith,
23 

340 Ga. App. 393, 396, 797 S.E.2d 259 (2017) (finding that hazard on floor for six or
seven minutes was present for insufficient period of time as a matter of law to hold
that proprietor should have discovered and removed the liquid prior to the
plaintiff’s fall); Gleaton v. APAC-Georgia, 228 Ga. App. 52, 55, 491 S.E.2d 138
(1997) (“In cases involving grocery stores, parking lots, and restaurants, we have
found that 15 or 20 minutes was a legally insufficient amount of time for a
proprietor to discover a foreign substance on the floor.”); Mazur v. Food Giant,
183 Ga. App. 453, 454, 359 S.E.2d 178 (1987) (“Where it appears a foreign object
had not been present for more than 10 to 15 minutes, the allegations show no
actionable negligence on the part of the proprietor in failing to discover it.”).
In Johnson, the proprietor produced evidence that the hazard had existed
only 15 to 20 minutes prior to the plaintiff’s fall. The Georgia Court of Appeals
granted the proprietor summary judgment, holding that the hazard had not been
on the premises for a sufficient period of time to have been discovered by a
reasonable inspection procedure. Id.
The uncontradicted evidence indicates that the spill in this case was created
by an unknown customer or customers thirteen (13) minutes and twenty-five (25)
seconds prior to Plaintiff’s fall. Based on the authorities cited above, this is a
legally insufficient period of time for Wal-Mart to have discovered and removed
the substance on which Plaintiff slipped.
24 

In light of the above evidence and findings, Plaintiff’s arguments about the
inadequacies of Wal-Mart’s inspection program and whether proper inspections
were carried out prior to her fall are irrelevant. See Hartman v. Clark, 341 Ga.
App. 513, 514, 801 S.E.2d 66 (2017) (holding that any factual questions about
inspection procedures and whether they were followed were irrelevant where tenminute period of time that hazard was on floor was insufficient to demonstrate
actionable negligence by proprietor); All Am. Quality Foods, 340 Ga. App. at 395
(finding inspection-related evidence irrelevant where video evidence showed that
hazardous substance was on grocery store floor for insufficient amount of time to
have been discovered and removed).

In sum, Plaintiff cannot rely on any

argument or evidence that Wal-Mart failed to put in place or follow a reasonable
inspection policy to create an issue of fact.
The evidence of record establishes, plainly and palpably, that Wal-Mart did
not have actual or constructive knowledge of the presence of this clear substance
on the floor of the water aisle, which had only been present thirteen (13) minutes
and twenty-five (25) seconds before Plaintiff slipped and fell. In response to
Defendant’s Motion for Summary Judgment, Plaintiff had the burden to come
forward with specific evidence creating a genuine issue of material fact concerning
whether Wal-Mart’s knowledge of the hazard was superior. Plaintiff has not

25 

satisfied that burden. For that reason, Wal-Mart is entitled to summary judgment
as a matter of law.
IV.

CONCLUSION
Based on the foregoing, the Court GRANTS Defendant Wal-Mart Stores

East, LP’s Motion for Summary Judgment [Doc. No. 92].

SO ORDERED this 11th day of January, 2021.
s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE 

26