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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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