Wise v. The Kroger Co.

Filing 16

ORDER granting Defendant's unopposed 11 Motion for Summary Judgment; and dismissing Plaintiff's claims. Signed by Judge J. Randal Hall on 09/18/2014. (jah)

IN THE UNITED

STATES

DISTRICT

COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

HETTIE WISE,

Plaintiff,
v

THE KROGER CO. and/or A.B.C. that
individual partnership or profit

*
*

corporation doing business as the

*

same on October 11,

*

2011 when

CV 114-005

plaintiff fell at the Kroger store
located at Wrightsboro Road,
Augusta, Georgia,
Defendant

ORDER

Presently pending before the Court is Defendant's Motion for

Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure.

(Doc.

no.

11.)

Defendant contends that there are no

genuine issues of material fact requiring trial.
failed

to

unopposed.

respond

LR

to the

7.5,

SDGa.

motion,1

so it

("Failure

to

is

Plaintiff has
therefore

respond

deemed

within

the

applicable time period shall indicate that there is no opposition
to

a

motion.'').

All

material

facts

set

forth

in

Defendant's

Statement of the Material Facts are deemed admitted for the purpose

of this motion because Plaintiff did not controvert them by filing
her own statement of facts.

LR 56.1, SDGa.

("All material facts

set forth in the statement required to be served by the moving

Plaintiff's response was due July 21, 2014.

(Doc. no. 14.)

party

will

be

deemed

to

be

admitted

unless

controverted

by

a

statement served by the opposing party.").

Upon due consideration, this motion is hereby GRANTED.
II.

BACKGROUND

Plaintiff alleges that, on October 11, 2011, while shopping at

the Kroger
Georgia,

doorway.

store located at

3435 Wrightsboro Road

in Augusta,

she slipped and fell on a rug at the entrance of the

(Compl. 1 2.)

As set forth in Defendant's Statement of

Material Facts, "[t]he floor mat on which the plaintiff tripped was

laying flat on the floor, and was not puckered or balled up, as the

plaintiff approached it
fall

was

(Id.

caused

by

(Doc. no. 11-2 % 1.)

"

2.)
III.

her

own

foot

flipping

the

Plaintiff's
mat

upwards.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if "there is no genuine

dispute as to any material

fact and the movant

judgment as a matter of law."

Fed. R. Civ. P.

is entitled to

56(a).

Facts are

"material" if they could affect the outcome of the suit under the

governing substantive law.
U.S. 242, 248 (1986) .

Anderson v.

Liberty Lobby,

Inc.,

477

The Court must view the facts in the light

most favorable to the non-moving party, Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all

justifiable inferences in [its]
Real

Prop.,

941

F.2d

1428,

favor."
1437

U.S. v. Four Parcels of

(11th

Cir.

1991)

(en

banc)

(internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court,

by

reference

to materials

Celotex Corp.

v. Catrett,

on

file,

477 U.S.

the basis

317,

323

for

(1986).

the motion.
How to carry

this burden depends on who bears the burden of proof

at trial.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
When the non-movant has

the burden of

proof at

trial,

the movant

may carry the initial burden in one of two ways — by negating an
essential element of the non-movant's case or by showing that there

is no evidence to prove a fact necessary to the non-movant's case.
See Clark v.

1991)
and

Coats & Clark,

Inc.,

929 F.2d 604,

606-08

(11th Cir.

(explaining Adickes v. S.H. Kress & Co. , 398 U.S. 144 (1970)

Celotex Corp.

v.

Catrett,

477 U.S.

317

(1986)).

Before the

Court can evaluate the non-movant's response in opposition,
first

consider

whether

the

movant

has

met

its

initial

it must

burden

of

showing that there are no genuine issues of material fact and that
it is entitled to judgment as a matter of law.
Columbus,

120 F.3d 248, 254

(11th Cir. 1997)

Jones v. City of

(per curiam).

A mere

conclusory statement that the non-movant cannot meet the burden at
trial is insufficient.

Clark,

929 F.2d at 608.

If — and only if - the movant carries its initial burden, the

non-movant may avoid summary judgment only by "demonstrat[ing] that
there

is

judgment."
trial,
which

indeed

a

Id.

material

movant

of

fact

that

precludes

summary

When the non-movant bears the burden of proof at

the non-movant
the

issue

must tailor its response

carried

its

initial

burden.

to the method by
If

the

movant

presents evidence affirmatively negating a material fact, the nonmovant

"must

respond

with

evidence

sufficient

to

withstand

a

directed verdict motion at trial on the material fact sought to be

negated."

Fitzpatrick,

2 F.3d at 1116.

absence of evidence on a material fact,
show

that

ignored"

the

record

contains

by the movant or

If the movant

shows an

the non-movant must either

evidence

that

was

"overlooked

or

"come forward with additional evidence

sufficient to withstand a directed verdict motion at trial based on

the alleged evidentiary deficiency."

Id. at 1117.

The non-movant

cannot carry its burden by relying on the pleadings or by repeating
conclusory allegations contained in the complaint.
Ross,

663

movant

F.2d 1032,

must

1033-34

(11th Cir.

respond with affidavits or

1981).

as

See Morris v.
Rather,

the non-

otherwise provided by

Federal Rule of Civil Procedure 56.

In this action,

the Clerk of the Court gave Plaintiff notice

of the motion for summary judgment and informed her of the summary

judgment rules,
opposition,
Therefore,
F.2d 822,

the right to file affidavits or other materials in

and

the

consequences

of

default.

(Doc.

no.

14.)

the notice requirements of Griffith v. Wainwright,
825

(11th Cir.

1985)

(per curiam),

are

satisfied.

772
The

time for filing materials in opposition has expired, and the motion
is now ripe for consideration.
IV.

DISCUSSION

The Court "cannot base the entry of summary judgment on the

mere fact that the motion was unopposed, but, rather, must consider
the merits of the motion."

(11th Cir. 2013)

Howard v. Gee,

539 F. App'x 884,

(internal quotation marks omitted).

891

Under Georgia law,
and fall,

to recover for injuries sustained in a slip

the plaintiff must prove: "(1)

that the defendant had

actual or constructive knowledge of the hazard; and (2) that the

plaintiff lacked knowledge of the hazard despite the exercise of

ordinary care due to actions or conditions within the control of
the owner/occupier."
(Ga.

1997).

Robinson v. Kroger Co.,

It

is

414

"Whether a hazardous condition exists is the threshold

question in a slip and fall case."
S.E.2d 686,

493 S.E.2d 403,

689 (Ga. Ct.
clear

to

the

App.

2008).

Court

at the time of Plaintiff's

Drew v. Istar Fin., Inc., 661

that

fall.

no hazardous

condition

existed

The mat on which she slipped was

lying flat on the floor and her own foot caused the edge of the mat

to flip up.

Consequently, Plaintiff's claim fails and Defendant's

motion for summary judgment is GRANTED.
V.

For

the

reasons

Summary Judgment

set

(Doc. no.

CONCLUSION

forth

11)

above,

Defendant's

Motion

for

is GRANTED and Plaintiff's claims

should be DISMISSED.

ORDER ENTERED at Augusta,
September,

Georgia,

this

//>&- day of

2014.

lL

HALL

IITED /STATES DISTRICT JUDGE
DISTRICT

OF GEORGIA