Pullins v. Bi Lo Holdings, LLC et al

Filing 40

ORDER granting Defendants' 33 Motion for Summary Judgment; denying Plaintiff's 34 Motion for Reconsideration re 27 Order on Motion to Dismiss. The Clerk is directed to enter an order closing this case. Signed by Judge Lisa G. Wood on 10/23/2017. (ca)

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in t|ie ^mteb ^taten Bisstritt Court for tfie ^outliem Biotrict of <(leor8ta Bmnotoicft Btbtoton BRIDGETT PULLINS, Plaintiff, 2:15-cv-162 V. BI-LO HOLDINGS, LLC; DELHAIZE AMERICA, LLC, * * * Defendant. * ORDER This motions. matter comes before the Court on two different First is the Defendants' Motion for Summary Judgment (Dkt. No. 33), and second is Plaintiff Bridgett Pullins's Motion for Reconsideration (Dkt. No. 34) of the Court's Order (Dkt. No. 27) (''December Order") dismissing Defendants Samson Merger Sub, LLC ("Samson") and Retained Subsidiary One, LLC ("Retained").^ Both Motions are fully briefed and are now ripe for review. For the and reasons stated below. Defendants' Motion is GRANTED Plaintiff's Motion is DENIED. ^While the December Order dismissed claims against Samson, Retained, and Southeastern, Plaintiff's motion only seeks reconsideration of the dismissal of Samson and Retained. A0 72A (Rev. 8/82) FACTUAL BACKGROUND A. Events at Harvey's Plaintiff complains of actions that occurred when she was shopping at a Harvey's grocery store on December 6, 2013. No. 6 1 7; Dkt. No. 33-2, Ex. A. 32:22-33:21. Dkt. While inside, she heard a ''loud explosion" coming from a "floor buffing machine" then "jump[ed] backwards and f[e]ll back." Id. at 33:24-35:8. Nothing in the store physically touched her to make her fall. Id. at 36:23-37:1. Plaintiff has never inside that Harvey's store before or since. heard such a noise Id. at 38:21-39:3. After hearing the noise. Plaintiff lost her balance and fell over her daughter who was behind her. Id. at 37:2-9. B. Ownership of Harvey's The undisputed evidence in this case shows that J.H. Harvey Co., LLC owned the Harvey's Supermarket located at 955 South First Street in Jesup, Georgia in December 2013. 5 3. Dkt. No. 33-4 While J.H. Harvey Co., LLC no longer exists, the evidence shows that its liabilities have been acquired by Retained. Dkt. No. 33-4 SISI 5, 9, Ex. 1. C. Procedural History Plaintiff America, LLC sued Bi-Lo ("Delhaize"), Holdings, LLC Southeastern ("Bi-Lo"), Grocers, Delhaize LLC d/b/a Harvey's Supermarket ("Southeastern"), and Samson on November 12, 2015 for actions that occurred at the Harvey's in Jesup, Georgia. Dkt. No. 1. complaint to add On December 23, 2015, she amended her Retained to the action. Dkt. No. 6. Defendants then filed a 12(b)(5) Motion to Dismiss on March 24, 2016, alleging that neither Samson nor Southeastern nor Retained was properly served. Dkt. No. 18. Plaintiff filed her reply on April 11, 2016, asking the Court to extend time for service of process because the supermarket's ownership Dkt. No. 20. Meanwhile, Retained was served on April 6, 2016, and Samson was served on April 11, 2016. In was ^^confusing." asking the Court to excuse Dkt. No. 34-2, 34-3. its failure to serve Defendants Samson and Retained, Plaintiff failed to mention that she had in fact served them. And no one alerted the Court of these facts by the time it decided that motion. So, this Court dismissed Plaintiff s claims against Southeastern, Retained, and Samson. Dkt. No. 27. In fact, when the Court issued its order on December 12, 2016, Defendants Retained and Samson had been served, unbeknownst Plaintiff asks the to the Court Court. to In light reconsider of that fact. its December Order dismissing Defendants Samson and Retained. On the same day that Plaintiff filed her motion for reconsideration. Defendants Bi-Lo and Delhaize moved for summary judgment. Both motions are now before the Court. LEGAL STANDAIO) A. Motion for STunmary Judgment The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. 257 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, The nonmovant may satisfy this burden in two ways. First, the nonmovant ''may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). forward directed with additional verdict motion evidentiary deficiency." Second, the nonmovant "may come evidence at sufficient trial based JA. at 1117. to on withstand the a alleged Where the nonmovant instead attempts to carry this burden with nothing more "than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981). B. Motion for Reconsideration A district court has the discretion to revise or reconsider interlocutory orders at any time before final judgment has been entered. Fed. R. Civ. P. 54(b) ('MW]hen multiple parties are involved . . . any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities."). [R]econsideration of a previous order is an extraordinary remedy to be employed sparingly." Groover v. Michelin N. Am., Inc., 90 F. Supp. 2d 1236 (M.D. Ala. 2000). reconsideration generally is appropriate A motion for where there is: '"(1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact." Bryant v. Jones, 696 F. Supp. 2d 1313, 1320 (N.D. Ga. 2010). should have been ''Additional facts and arguments that raised in the first instance appropriate grounds for a motion for reconsideration." 90 F. Supp. 2d at 1256. "[A]ny arguments are not Groover, which the party inadvertently failed to raise earlier are deemed waived." McCoy V. Macon Water Auth., 966 F. Supp. 1209, 1223 (M.D. Ga. 1997). DISCUSSION A. Premises Liability ^^Where an owner or occupier of land, by express or implied invitation, induces or leads 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." ^'[T]he injured basis of on the an owner/occupier's premises is the O.C.G.A. § 51-3-1. liability to an owner/occupier's invitee superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm." Bartlett v. McDonouqh Bedding Co., 722 S.E.2d 380, 382 (Ga. Ct. App. 2012). "'In premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor." Drew v. Istar Fin., Inc., 661 S.E.2d 686, 689 (Ga. Ct. App. 2008) (quoting Sunlink Health 2007). Sys. v. Pettiqrew, 649 S.E.2d 532, 534 (Ga. Ct. App. Instead, 'Mt]he true basis for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitee[] to an unreasonable risk of harm." Id. (emphasis in original). ^The parties agree that Georgia law governs this dispute because the events complained of occurred in Georgia. In order for a plaintiff to recover in a premises liability action, an invitee must prove (1) the existence of a hazard, (2) the defendant's knowledge of the hazard, and knowledge of the actual (3) that the or constructive plaintiff lacked hazard despite the exercise of ordinary care. Drew, 661 S.E.2d at 689. '''If the owner has no actual or constructive knowledge of hazard, the appropriate." summary judgment in its favor would be Id. In this case. Plaintiff has failed to bring forth proof of a hazardous condition, and the undisputed Defendants had no superior knowledge. facts show that A hazardous condition is one that '"constitute[s] an unreasonable risk of harm." Flaqstar Enters., Inc. v. Burch, 600 S.E.2d 834, 835 (Ga. Ct. App. 2004). "To create a question of fact as to the existence of a hazardous condition, a 'plaintiff cannot rely upon speculation.'" Carroll V. Krystal Co., 692 S.E.2d 869, 870 (Ga. Ct. App. 2010) (quoting Burch, 600 S.E.2d 834, 836 (Ga. Ct. App. 2004). Here, Plaintiff testified that she fell because of a loud sudden noise coming from a floor buffing machine. She fails to point to any case where a loud noise constitutes a dangerous condition. No law suggests that a loud noise poses an unreasonable risk of harm. That a loud noise is not a hazardous condition is further shown in this case by Plaintiff s lack of evidence that anyone else in the store reacted the way she did, on that day or at any other time. She has also failed to point to any evidence suggesting that Defendants knew or should have known that such a loud noise would occur. The "smokiness" or "'film" in the air coming from the machine is all that Plaintiff has identified in attempting to prove Defendants' superior knowledge. Not only is there no evidence that Dkt. No. 33-2, 39:23. smoke from a machine indicates the eruption of a noise, but also Plaintiff had equal knowledge of the knowledge of a smoke. When condition as the the plaintiff defendant, necessarily cannot have superior knowledge. has the same the defendant Plaintiff has also failed to produce evidence that the floor-buffing machine had ever made a "loud noise" before. To the contrary. Defendants have produced evidence that it had not. 26. In short. Defendants on when asked Plaintiff points to nothing which notice that a loud noise what Dkt. No. 33-2, Ex. C Defendants should would occur. have done to would put Notably, make the condition safer or warn her of it. Plaintiff testified, "I don't know. I don't know how to answer that. that." I wasn't prepared for Dkt. No. 33-2, Ex. A 39:12-19. Plaintiff's attempt to rely on the doctrine of res ipsa loquitur is misguided. Res ipsa loquitur is authorized only where (1) "the injury is of a kind which ordinarily does not occur in caused the absence an agency by of someone's or negligence; instrumentality (2) it within the must be exclusive control of the defendant; and (3) it must not have been due to any voluntary plaintiff." action or contribution on the part of the Giannotti v. Beleza Hair Salon, Inc., 675 S.E.2d 544, 642 (Ga. Ct. App. 2009). Plaintiff cannot satisfy the first element. Res ipsa loquitur does not apply to ^^mechanical devices because they get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone." Miller v. Ford Motor Co., 653 S.E.2d 82, 84 (Ga. Ct. App. 2007) (quoting Millar Elevator Svc. Co. v. 0'Shields, 475 S.E.2d 188, 190 (Ga. Ct. App. 1996)). To the extent that Plaintiff has shown any causation the down, she between cannot floor use res buffing ipsa machine loquitur and to evidentiary gap regarding Defendants' negligence. her fill falling in the Because she fails to satisfy the first element, the Court need not analyze the remaining elements for application of res ipsa loquitur. Therefore, Plaintiff has failed to produce evidence of the essential elements for premises liability. B. Ownership of Harvey's Even if Plaintiff had been able to produce evidence of each of the elements for this premises liability action, the proof shows that Bi-Lo and Delhaize were not owners or occupiers of the premises in question. Plaintiff testified that the events giving rise to this action occurred at the Harvey's in Jesup, Georgia. Dkt. No. 33-2, 34:7-9. The evidence shows that J.H. Harvey Co., LLC owned the Harvey's Supermarket located at 955 South First Street in Jesup, Georgia. Dkt. No. 33-2, Ex. C 3 3. While J.H. Harvey Co., LLC no longer exists, the evidence shows that its liabilities were acquired by Retained. Ex. C SISI 5, 9, Ex. 1. Dkt. No. 33-2, In any event, neither Bi-Lo nor Delhaize owned or occupied the premises where the events occurred. provides independent grounds for summary judgment in This their favor. C. Motion to Reconsider Dismissal of Samson and Retained On Samson, December Retained, 12, 2016, and this Court Southeastern from Plaintiff failed to timely serve them. dismissed this Defendants action Dkt. No. 27. because Plaintiff now asks the Court to reconsider that decision as to Samson and Retained, explaining that, though she failed to point it out at the time. Retained and Samson had in fact been served in April 2016, eight months before the Court issued its order. If this motion were standing alone, the Court would deny it. The deadline to serve Defendants Plaintiff missed that deadline. were ultimately respectively. served Plaintiff on February 10, 2016. Although Retained and Samson April failed was to 10 6 and bring April this to 11 of the 2016, Court's attention thirty-four days Moreover, she had several opportunities to do so. later. until June 19, 2017-four hundred She could have informed the Court of the "completion of service when she filed her opposition to Defendants' motion to dismiss on April 11, 2016. She could have done so at any point from April until December, when the Court issued its order. She could have done so immediately upon learning the outcome of the Court's order dismissing those Defendants. Instead, she waited until the remaining Defendants filed a summary judgment motion to ask the Court to bring back the previously dismissed Defendants. Plaintiff has offered no reason why she waited so long to tell the Court about the completion of service. And although the December Order was based on facts Plaintiff much later sought to correct, the facts kept from the Court were known to Plaintiff reconsideration inappropriate. all along. This makes See Groover, 90 F. Supp. 2d at 1256; McCoy, 966 F. Supp. at 1223. But this motion benefit of all of does not stand the evidence and weakness of Plaintiff's claims. its December (albeit claims one Order because Plaintiff against Samson it had the and alone. a full The Court assessment has the of the Even if the Court reconsiders was based power Retained to on an erroneous correct). would fail fact Plaintiff's for the same reasons that her claims against Bi-Lo and Delhaize fail: she has 11 not shown a hazardous condition or superior knowledge of such a condition. CONCLUSION For these reasons. Defendants' Motion for Summary Judgment (Dkt. No. 33} is GRANTED, and Plaintiff's Reconsideration {Dkt. No. 34) is DENIED. for The Clerk of Court is directed to enter an order closing the case. SO ORDERED, this 23^° day of October, 2017. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 12 Motion

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