Scott v. Wal-Mart Stores East, LP et al

Filing 47

ORDER: Court HEREBY GRANTS Defendant's 34 Motion for Summary Judgment. See order for more details. The Clerk is DIRECTED to close this case. Signed by Judge J. P. Boulee on 11/22/21. (bnw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VELMA SCOTT,
Plaintiff,
v.

CIVIL ACTION NO.
1:20-CV-01445-JPB

WAL-MART STORES EAST, LP,
D/B/A WAL-MART STORE # 787, et
al.,
Defendants.
ORDER
This matter comes before the Court on Wal-Mart Stores East, LP’s
(“Defendant”) Motion for Summary Judgment [Doc. 34]. This Court finds as
follows:
BACKGROUND
The Court derives the facts of this case from Defendant’s Statement of
Material Facts as to Which There Is No Genuine Issue to Be Tried [Doc. 34-1] and

Velma Scott’s (“Plaintiff”) Statement of Disputed Material Facts1 [Doc. 43]. The
Court also conducted its own review of the record.2
The Local Rules of this Court require a respondent to a summary judgment
motion to include with its responsive brief “[a] response to the movant’s statement
of undisputed facts.” LR 56.1(B)(2)(a), NDGa. The Local Rules make clear that
the Court
will deem each of the movant’s facts as admitted unless the
respondent: (i) directly refutes the movant’s fact with concise
responses supported by specific citations to evidence (including page
or paragraph number); (ii) states a valid objection to the admissibility
of the movant’s fact; or (iii) points out that the movant’s citation does
not support the movant’s fact or that the movant’s fact is not material
or otherwise has failed to comply with the provisions set out in LR
56.1(B)(1).
LR 56.1(B)(2)(a)(2), NDGa.

Plaintiff filed a document titled “Statement of Disputed Material Facts.” [Doc. 43].
However, this document is more accurately described as Plaintiff’s response to
Defendant’s Statement of Material Facts as to Which There Is No Genuine Issue to Be
Tried. [Doc. 34-1]. In the “Statement of Disputed Material Facts,” Plaintiff only
responds to the facts presented by Defendant and does not offer any new facts. See LR
56.1(B)(2)(a), NDGa. Plaintiff did not otherwise file a statement of additional facts that
she contends are material and present a genuine issue for trial. See LR 56.1(B)(2)(b),
NDGa.
2
With permission from this Court, see [Doc. 46], Defendant filed a surreply in which it
argued that Plaintiff’s Response to the Motion for Summary Judgment and other
associated documents should not be considered by the Court because of their untimely
filing, see [Doc. 45-2]. However, the Court exercises its discretion to review and
consider Plaintiff’s untimely Response and related filings as part of the record in this
case. See LR 7.1(F), NDGa.
1

2

Plaintiff filed a Statement of Disputed Material Facts in which she objected
to several of Defendant’s alleged facts. [Doc. 43]. However, the majority of
Plaintiff’s objections are not proper under Local Rule 56.1(B)(2)(a)(2). Plaintiff
does not refute Defendant’s facts by providing citations to evidence, noting that the
given citation does not support the fact or arguing that the fact is not material.
Instead, Plaintiff primarily objects to Defendant’s facts on admissibility grounds,
but Plaintiff does not cite to any applicable rules from the Federal Rules of
Evidence. For many objections, Plaintiff seems to suggest that the fact at issue is
inadmissible because it is improper lay opinion testimony and because it pertains
to an ultimate issue in the case. Under Federal Rule of Evidence 701, opinion
testimony by lay witnesses is admissible if it is “rationally based on the witness’s
perception,” “helpful to clearly understanding the witness’s testimony or to
determining a fact in issue” and “not based on scientific, technical, or other
specialized knowledge” such that it would fall under the ambit of expert opinion.
The facts to which Plaintiff objects as inadmissible lay opinion testimony meet
Rule 701’s parameters: the facts relate to witnesses’ observations and descriptions
of a physical item whose properties are at issue in the case. These observations are
therefore “rationally based on the witness[es’] perception[s]” and “helpful . . . to
determining a fact at issue.” Fed. R. Evid. 701. And as mere descriptions of a

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physical object, these facts do not require “scientific, technical, or other specialized
knowledge.” Id. Finally, “[a]n opinion is not objectionable just because it
embraces an ultimate issue.” Fed. R. Evid. 704(a). The Court thus declines to
sustain Plaintiff’s objections that are based on admissibility.3
In accordance with the Local Rules, this Court will not consider unsupported
facts. The Court will, however, use its discretion to consider all facts the Court
deems material after reviewing the record. The facts of this case, for the purpose
of adjudicating the instant motion, are as follows:
On May 22, 2018, around 3:55 PM, Plaintiff walked to a bus stop via an
exterior sidewalk near the Garden Center exit at the Wal-Mart Store in Riverdale,
Georgia. [Doc. 43, pp. 1–2]. Within five to six feet of the exit, Plaintiff tripped
and fell on an exposed piece of circular metal protruding from the sidewalk
pavement. Id. at 2. After the fall, Plaintiff saw a cut pipe sticking up from the
pavement by—in Plaintiff’s words—“maybe an inch or two,” which she thought
caused her fall. Id. at 3. Plaintiff admitted that she did not measure the metal
circle. Id. at 4. The sidewalk area was well-lit, and the weather was clear. Id. at
2–3. Nothing blocked Plaintiff’s view of the sidewalk when she left the store. Id.

Plaintiff objected to other facts in Defendant’s Statement of Material Facts that the
Court does not consider material for the purposes of adjudicating this Motion. As such,
the Court will not address those objections.
3

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at 4. Plaintiff did not see the cut pipe beforehand, though, because she was not
looking down while she walked. Id.
After the incident, Assistant Manager for Defendant, Cateshia Gantt,
visually inspected the sidewalk where the fall occurred and obtained six
photographs of the cut pipe in the pavement. Id. The photos show a dark metal
circle, where a pole had been removed, that is visible against the light-colored
sidewalk pavement. Id. at 5. Plaintiff identified the metal circle from these
photos. Id. at 4. Both Gantt, who supervised the Garden Center, and LaQuontea
Ignont, a Garden Associate of ten years, inspected and cleaned this exterior
sidewalk on a daily basis, id. at 5, although neither employee witnessed Plaintiff’s
incident, id. at 10. They described the cut edge of the metal circle as slightly
irregular but virtually flush with the sidewalk itself. Id. at 5. Both Gantt and
Ignont testified that a small portion of the circle’s irregularity was slightly above
the sidewalk by approximately 1/8th of an inch. Id. at 6–7. Ignont stated that the
metal circle was level with the sidewalk but that some of the cut edges were a little
rough. Id. at 6. According to both Gantt and Ignont, the metal circle had been in
the sidewalk for the entirety of their respective periods of employment at the store,
and neither reported having ever received any complaints about it. Id. at 9. Prior

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to Plaintiff’s incident, neither Gantt nor Ignont knew of anyone who had tripped,
slipped or fallen as a result of the metal circle in the pavement. Id. at 10.
Plaintiff filed a complaint in the State Court of Clayton County on January
28, 2020, bringing a claim of negligence against Defendant.4 [Doc. 1-2, p. 5].
Defendant removed the case to this Court on April 3, 2020, on the basis of
diversity jurisdiction. [Doc. 1, p. 3]. Defendant filed the instant Motion for
Summary Judgment on April 14, 2021. [Doc. 34].
ANALYSIS
A.

Legal Standard
Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” A material fact is
any fact that “is a legal element of the claim under the applicable substantive law
which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997). A genuine dispute exists when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson

Plaintiff also named as Defendants John Does 1–3, who are allegedly “unknown
owners, managers, employees, contractors, and/or operators or other entities” affiliated
with Defendant. [Doc. 1-2, pp. 4–5]. However, as a general rule, “fictitious-party
pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738
(11th Cir. 2010). The Court will therefore not further address these unnamed Defendants.
4

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Ultimately, “[t]he basic issue
before the court on a motion for summary judgment is ‘whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.’” Allen, 121 F.3d at
646 (citation omitted).
The party moving for summary judgment bears the initial burden of showing
that no genuine issue exists as to any material fact, “and in deciding whether the
movant has met this burden the court must view the movant’s evidence and all
factual inferences arising from it in the light most favorable to the nonmoving
party.” Id. After the movant satisfies this initial burden, the nonmovant bears the
burden of showing specific facts indicating that summary judgment is improper
because a material issue of fact does exist. Id. However, “[a] mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (quoting Anderson, 477 U.S. at 251).
If the record taken as a whole cannot lead “a rational trier of fact to find for the
non-moving party, there is ‘no genuine issue for trial.’” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

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B.

Negligence
Plaintiff brought a sole claim of negligence against Defendant. In Georgia,

an owner or occupier of land is liable to an invitee “for injuries caused by [the
owner’s or occupier’s] failure to exercise ordinary care in keeping the premises
and approaches safe.” O.C.G.A. § 51-3-1. A “plaintiff's first burden in a premises
liability case is to show the premises were defective or hazardous,” Beman v.
Kmart Corp., 501 S.E.2d 580, 582 (Ga. Ct. App. 1998), because “[p]roof of a fall,
without more, does not create liability on the part of a proprietor or landowner,”
Flagstar Enters., Inc. v. Burch, 600 S.E.2d 834, 835 (Ga. Ct. App. 2004) (citations
omitted). Unless a plaintiff shows that a dangerous condition exists, “there can be
no evidence that the defendant had any knowledge of the danger, and therefore no
recovery for the plaintiff.” Metts v. Wal-Mart Stores, Inc., 604 S.E.2d 235, 237
(Ga. Ct. App. 2004). To succeed in a premises liability action, then, “a plaintiff
must show: (i) the existence of a defective or hazardous condition on the premises;
(ii) that the defendant had either actual or constructive knowledge of this
condition; and (iii) that the plaintiff had no knowledge of the condition, despite the
exercise of ordinary care.” Warner v. Hobby Lobby Stores, Inc., 741 S.E.2d 270,
273 (Ga. Ct. App. 2013).

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According to Defendant, the metal circle in the pavement was not a tripping
hazard.5 See [Doc. 34-2, p. 5] (“The edge was not uneven enough or high enough
above the sidewalk to trip anyone or for the metal circle to be considered a tripping
hazard.”). Plaintiff claims that “whether the cut-off pole constituted a tripping
hazard” is an unsettled question of fact that should be resolved by a jury. [Doc. 44,
p. 3].
“The threshold point of inquiry in a slip and fall case is the existence of a
hazardous condition on the premises.” Flagstar Enters., 600 S.E.2d at 835. A
“hazard” is “[a] danger or risk lurking in a situation which by chance or fortuity
develops into an active agency of harm.” Gresham v. Bell’s Food Market, Inc.,
534 S.E.2d 537, 538 (Ga. Ct. App. 2000) (alteration in original) (quoting Black’s
Law Dictionary (4th ed. rev.)).

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Defendant argues more specifically that the metal circle was an open and obvious static
condition. “A static condition is one that does not change and is dangerous only if
someone fails to see it and walks into it.” Gervin v. Retail Prop. Tr., 840 S.E.2d 101, 104
(Ga. Ct. App. 2020) (citation omitted). Defendant cites Tanner v. Larango, 502 S.E.2d
516, 517 (Ga. Ct. App. 1998), for the proposition that an open and obvious static
condition cannot provide a basis for a landowner’s liability. See id. (“It is common
knowledge that small cracks, holes and uneven spots often develop in pavement; . . .
where there is nothing to obstruct or interfere with one’s ability to see such a static
defect, the owner or occupier of the premises is justified in assuming that a visitor will
see it and realize the risk involved.” (quoting Freyer v. Silver, 488 S.E.2d 728, 731 (Ga.
Ct. App. 1997))). According to Defendant, the metal circle in this case was open and
obvious, and nothing obstructed Plaintiff’s view of it. Therefore, Defendant contends,
the metal circle was neither dangerous nor hazardous.
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Defendant provided photographs illustrating the cut pipe in the pavement.
[Doc. 34-6]. It is undisputed that these photos show “a dark metal circle visible
against the light-colored sidewalk pavement, where a pole had been removed.”
[Doc. 43, p. 5]. Defendant’s employees testified that they received no complaints
about the metal circle in the pavement during the periods of their respective
employment.
In contrast, Plaintiff did not present any evidence showing that the metal
circle in the pavement was hazardous or dangerous. In her Response to the Motion
for Summary Judgment, Plaintiff notes that “Defendant concedes in both its Brief
and Statement of Material Facts that Plaintiff ‘tripped and fell over a metal circle’
that came out of the ground less than 1/8 of an inch.” [Doc. 44, p. 6]. Plaintiff
goes on to say that “[t]herefore, . . . there is evidence that the cut-off pole was a
danger or risk constituting a hazard.” Id. Plaintiff seems to argue that because she
tripped, the metal circle is necessarily hazardous. However, Georgia courts do not
accept this line of reasoning, and this Court may not do so either. “Proof of the
occurrence of an injury, without more, is insufficient to establish liability on the
part of a proprietor.” Metts, 604 S.E.2d at 237 (citation omitted). A plaintiff is
obliged to “come forward with evidence that the proprietor had superior knowledge
of a dangerous condition that was unknown to [Plaintiff] that caused her injuries.”

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Id. Further, “[m]erely stating that a condition is dangerous does not constitute
evidence that it is so.” Ford v. Bank of Am. Corp., 627 S.E.2d 376, 378 (Ga. Ct.
App. 2006).
Other than the mere incident of her fall, Plaintiff has not brought forward
any evidence establishing that the metal circle in the pavement was dangerous or
hazardous. She has not offered expert testimony about the metal circle, for
example, or provided “any evidence that [Defendant] violated any rules,
ordinances, or standards pertaining to the [cut-off pipe].” Cohen v. Target Corp.,
567 S.E.2d 733, 735 (Ga. Ct. App. 2002). Plaintiff also has not shown “the
existence of a hazard by evidence that others had fallen in the area,” id.; in fact,
Plaintiff admitted that Defendant received no records of complaints about the metal
circle. Furthermore, while the fact of Plaintiff’s fall does not suffice to show the
existence of a hazardous condition, neither does—standing alone—the presence of
an irregularity in the sidewalk. See, e.g., Tanner v. Larango, 502 S.E.2d 516, 517
(Ga. Ct. App. 1998) (“Occupiers of premises whereon the public is invited to come
are not required to keep their parking lots and other such areas free from
irregularities and trifling defects. One coming upon such premises is not entitled
to an absolutely smooth or level way of travel.” (citation and punctuation
omitted)). Plaintiff’s claim thus cannot survive summary judgment. See Holmes

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v. Dogencorp, LLC, No. 1:17-CV-2460-MHC, 2019 WL 1499469, at *3 (N.D. Ga.
Feb. 7, 2019) (“At the summary judgment stage, to create a question of fact as to
the existence of a hazardous condition, a plaintiff must offer some evidence that
the condition of the location where the incident occurred ‘constituted an
unreasonable risk of harm.’” (quoting Flagstar Enters., 600 S.E.2d at 835)); see
also Cohen, 567 S.E.2d at 734–35 (holding that “summary judgment was
warranted on the first ground urged by defendants—that [plaintiff] failed to show
the existence of any defect or hazard”).
Nonetheless, Plaintiff argues that there is a “material factual dispute as to the
measurements of the cut-off pole.” 6 [Doc. 44, p. 3]. Defendant’s employees
testified that the metal circle protruded above the sidewalk by approximately 1/8th
of an inch or that it was “virtually flush” with the sidewalk. [Doc. 34-4, pp. 4, 10].
According to Plaintiff, the metal circle was raised above the sidewalk by “maybe
an inch or two,” but she “[couldn’t] really say.” [Doc. 43, p. 3]. However,
Plaintiff still has not presented any evidence that the metal circle posed a hazard,
regardless of whether it measured 1/8th of an inch or one inch above the pavement.

Plaintiff makes this argument in her Brief in Support of her Response to Defendant’s
Motion for Summary Judgment. [Doc. 44]. As noted earlier, see supra note 1, Plaintiff
did not file a statement of additional material facts that present a genuine issue for trial,
pursuant to Local Rule 56.1(B)(2)(b). The Court addresses Plaintiff’s argument
nonetheless.
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And, as noted above, the mere occurrence of her fall and resulting injury are not
enough to establish the Defendant’s liability.
Because Plaintiff has not provided evidence that the metal circle was
dangerous or hazardous, the Court cannot conclude that a hazard existed of which
Defendants had superior knowledge. See Ford, 627 S.E.2d at 378 (“Without first
establishing that a dangerous condition existed, the plaintiff cannot establish that
the defendant knew about the danger and therefore cannot recover.”). As such,
Defendant is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, this Court HEREBY GRANTS Defendant’s
Motion for Summary Judgment [Doc. 34]. The Clerk is DIRECTED to close this
case.
SO ORDERED this 22nd day of November, 2021.

_______________________
J. P. BOULEE
United States District Judge

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