Dever v. Family Dollar Stores of Georgia, LLC et al

Filing 32

ORDER granting Defendant Martin's 25 Motion for Summary Judgment; granting Defendant Family Dollar's 27 Motion for Summary Judgment. The Clerk is DIRECTED to enter judgment accordingly and close this case. Signed by Judge Lisa G. Wood on 12/20/2017. (ca)

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tISntteb

29tsitrtct Court

for tfie ^outfiem Btotrirt of <(^eor8ta
PrtttiOltiick IBtbiOton
PATRICIA D. DEVER,

Plaintiff,
2:17-cv-19

V.

FAMILY DOLLAR STORES OF

GEORGIA, LLC and DARRYL MARTIN,

individually and as employee
and agent of Family Dollar
Stores of Georgia, LLC,
Defendants.

ORDER

This

Martin

matter

and

Dollar")

Family

Motions

Plaintiff

comes

opposes

Martin's Motion.

ripe for review.

before

Dollar

for

Stores

Summary

Family

the

Court

of

Defendants'

Georgia,

Judgment.

Dollar's

on

Motion

LLC's

Dkt.
but

Nos.

does

Darryl

{^'Family
25,

not

27.

oppose

These Motions have been fully briefed and are

For the following reasons, both Motions are

GRANTED.

FACTUAL BACKGROUND

On

March

13,

2015,

Plaintiff

Dever

and

her

Odom, woke up to a rainy morning in Brunswick, GA.

A0 72A

(Rev. 8/82)

friend,

Linda

Dkt. No. 27-

5/29-1 1 1; Dkt. No. 21-2, 10:4-9.

for the day's planned activities.

Plaintiff wanted a poncho

Dkt. No. 27-5/29-1 5 10; Dkt.

No. 21-2, 10:7-9; Dkt. No. 27-3, 45:5.

So, Plaintiff and Odom

went to Family Dollar to purchase one.

Id.

just

a

few

staying.

doors
Dkt.

down

No.

from

the

27-5/29-1

hotel

5 2;

Dkt.

Family Dollar was

where
No.

Plaintiff
27-3,

was

41:6-8.

Plaintiff and Odom got into Plaintiff's car, and Plaintiff drove

to the Family Dollar parking lot.

Dkt. No. 27-5/29-1 f 11; Dkt.

No. 27-2, 12:15; Dkt. No. 27-3, 44:16-23.

when they parked in front of the store.
SI 12;

Dkt.

No.

27-2,

14:2-6.

Odom

It was still raining

Dkt. No. 27-5/29-1

entered

the

store

first.

Dkt. No. 27-5/29-1 SI 12; Dkt. No. 14:1-6, 15:3; Dkt. No. 27-3,

47:19.

Shortly after Odom entered the store. Plaintiff exited

the car and walked through the rain into the store.

Dkt. No.

27-5/29-1 SI 14; Dkt. No. 27-2, 17:1-4; Dkt. No. 27-3, 47:8-15.

Plaintiff was wearing flip flops and talking on her cell phone
with a friend.
25.

Dkt. No. 27-5/29-1 SI 15; Dkt. No. 27-3, 45:21-

When she entered the store, she noticed some water on the

floor just inside the doorway.
No. 27-3, 49:19-25, 50:3.

Dkt. No. 27-5/29-1 SI 16; Dkt.

Plaintiff stated in her deposition

that she stepped on the concrete floor adjacent to the water on

the floor but did not step in the water itself.
5/29-1

SISI 18-19;

Dkt.

No.

27-3,

stepping on the floor next to the

A0 72A

(Rev. 8/82)

51:14-16,

Dkt. No. 27-

51:1-6.

While

water and ending her phone

call. Plaintiff's right foot slipped out from under her, and she
fell

to

the

floor.

Dkt.

49:1-11, 53:1, 52:9-16.
to fall.

No.

27-5/29-1

5 20;

Dkt.

No.

27-3,

Plaintiff does not know what caused her

Dkt. No. 27-5/29-1 f 21; Dkt. No. 27-3, 61:1.

On the day of the incident, non-party Deon Manning was the
manager of the Family Dollar and was present that morning.
No.

27-5/29-1

SI 4; Dkt.

No. 27-4, 8:18-25.

After

Manning called 911 to obtain help for her.
SI 22; Dkt. No. 27-4, 24:9-15.

Dkt.

Dever fell.

Dkt. No. 27-5/29-1

He then took photos of the area

and reviewed video footage of the incident.

Dkt. No. 27-5/29-1

SISI 23-24; Dkt. No. 27-4, 24:16-18, 55:10-16.

Earlier

that

morning.

Manning

had

opened

the

store

placed a wet floor sign in the front area of the store.
Nos. 27-5/29-1 SI 6; Dkt. No. 27-4, 25:18-25.
store had a set of double doors.

and

Dkt.

The front of the

Dkt. Nos. 27-5/29-1 SI 7; Dkt.

No. 27-4, 26:1-5, 28:22-25, 29:1-4.

The left hand door had a

mat in front of it, but there was no mat in front of the right
hand door.

Id.

Plaintiff filed a premises liability action against Martin
and Family Dollar in the State Court of Glynn County on January

11, 2017.

liquid

Dkt. No. 1-1.

substance"

at

She alleges that she had fallen ^'on a

the

Family

Dollar

and

sought

special

damages in excess of $62,000 plus damages for pain and suffering
and

other

medical

expenses

and

special

damages.

Id.

SI 8.

Defendants
2017.

removed

the

action

to

this

Court

on

February

15,

Dkt. No. 1.

LEGAL STANDARD

Summary judgment is appropriate

only

when

the

pleadings,

depositions, and affidavits submitted by the parties show that
no genuine issue of material fact exists and that the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may

be drawn in the light most favorable to the nonmovant.
V. S.H.

Kress

&

Co., 398

U.S. 144, 158-59 (1970).

Adickes

The

party

seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact.

Celotex Corp.

V. Catrett, 477 U.S. 317, 323-24 (1986). The burden then shifts

to the nonmovant, who must go beyond the pleadings and present
affirmative evidence to show that a genuine issue of material
fact does exist.
257

(1986).

The

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Court

is

mindful

that ''^routine'

issues

of

premises liability, i.e., the negligence of the defendant and
the

plaintiff,

personal

and the

safety

are

plaintiff's lack of ordinary care for
generally

not

susceptible

of

summary

adjudication, and that summary judgment is granted only when the
evidence

is

plain,

palpable,

and

undisputed."

Kroqer Co., 493 S.E.2d 403, 414 (Ga. 1997).

Robinson

v.

DISCUSSION

I.

Martin's Motion for Summary Judgment
Plaintiff Dever filed this premises liability case against

both

Family Dollar and Martin.

Plaintiff sued

under O.C.G.A.

§ 51-3-1, which gives an invitee on certain premises a cause of
action against the owner or occupier of the premises.
V.

See Poll

Deli Mgmt., Inc., 2007 WL 2460769, *4 (N.D. Ga. 2007) ("As

its

language

indicates,

liability

may

only

be

imposed

under

O.C.G.A. § 51-3-1 against an owner or occupier of the subject
premises.").

Whether

a

person

is

an

owner

or

occupier

of

certain premises is a question that can be decided as a matter
of law.

Food Giant, Inc. v. Witherspoon, 359 S.E.2d 223, 225

(Ga. Ct. App. 1987).
Defendant Martin did not even work at the store at the time

of

the

fall.

Understandably, "Plaintiff

does

not

oppose

grant of summary judgment to Defendant Darryl Martin."
29-2,

p.

1.

Therefore,

the

Court GRANTS Martin's

the

Dkt. No.

Motion

for

Summary Judgment.
II.

Family Dollar's Motion for Summary Judgment

As set forth below. Family Dollar's Summary Judgment Motion
must

also

be

granted,

albeit for

different

reasons.

"When

a

premises liability cause of action is based on a ^trip and fall'

or ^slip and fall' claim . . . ., [t]he plaintiff must plead and
prove

that;

(1)

the

defendant

had

actual

or

constructive

knowledge

of

the

exercising

hazard;

ordinary

care

and

for

(2) the

his

or

her

plaintiff,
own

despite

personal

safety,

lacked knowledge of the hazard due to the defendant's actions or
to

conditions

Food

Servs.,

under

LLC,

the

defendant's

756

S.E.2d

control."

721,

724

Pinder

(Ga.

Ct.

v.

App.

H

&

H

2014)

(quoting Am. Multi-Cinema, Inc. v. Brown, 679 S.E.2d 25, 27-28
(Ga. 2009)).

Plaintiff

alleged

in

her

fell on a liquid substance.

Complaint

that

she

Dkt. No. 1-1 5 8.

slipped

and

No smooth or

slippery conditions were mentioned, although she did reference
generally

^'defective

or

hazardous

conditions."

Counsel's brief has a different focus.

Id.

5 10.

The water on the floor,

the brief urges, distracted her from noticing the smooth nature
of the

that

concrete,

ultimately

interrogatory

and

it is the

smooth

nature

caused

her

fall.

Dkt.

responses

are

consistent

of the

No.

with

concrete

29-2.

the

Her

complaint.

Those answers state that she ^^slipped on water as she walked in
the store."

Dkt. No. 31-1, p. 2.

A. Rainwater as hazardous condition

Plaintiff first
the

rainwater

on

alleged

the

that

floor.

Dkt.

the
No.

hazardous

condition

1-1 5 8.

The

was

Georgia

Court of Appeals has ''held that the normal accumulation of water
at

the

entrance

of

unreasonable hazard.

a

business

during

a

rainy

day

is

not

an

This is so because it is not the duty of

persons in control of such buildings to keep a large force of

moppers to mop up the rain as fast as it falls or blows in, or
is carried in by wet feet or clothing or umbrellas."
Outback Steakhouse of

Ct. App. 2007).

Fla.,

Inc.,

Roberts v.

641 S.E.2d 253, 254-55

{Ga.

In a rain case, a plaintiff can establish a

hazardous condition by showing an unusual accumulation of water

in the entrance way.

Drew v. Istar Fin., Inc., 661 S.E.2d 686,

689 (Ga. Ct. App. 2008).

An unusual accumulation of water is

not shown where the witnesses ^^merely testified that the floor

near the entrance was wet, which is to be expected on a rainy

day . . . ."
Here,

Roberts, 641 S.E.2d at 255.

Plaintiff

has

accumulation of water.

produced

no

evidence

of

an

unusual

Instead, she testified that she could

not recall how much rainwater was on the floor, elaborating that

she could not approximate the size of any potential puddle on

the ground.

And Plaintiff's friend, Odom, who entered the store

shortly before Plaintiff, testified that she noticed no water on
the floor.
as

to

nothing

the

Dkt. No. 27-2, 15:6-7.
amount

unusual

of

or

water

shows

remarkable

What little evidence exists
undisputedly

about

it.

As

that

a

there

was

result,

the

rainwater on the floor cannot constitute a hazardous condition.
B. Smooth concrete floor as the hazardous condition
Plaintiff now characterizes her case as more nuanced than a

^'typical rainy day slip and fall case."

A0 72A

(Rev. 8/82)

Dkt. No. 29-2, p. 3.

She argues that while ^'the rainwater on the floor played a part
in

the

smooth

causal chain,

or

slippery

entrance."

Id.

the immediate

surface

of

the

cause

of the

concrete

fall

just

was the

inside

the

She contends ^'that her attention was distracted

by the water, which caused her not to see how smooth the floor

was."

was

Id.

She seems to be arguing that the hazardous condition

either:

(1)

the

static

condition

of

the

"slippery

and

smooth" floor; (2) the absence of a mat at the door on a rainy
day; or (3) the combination of the rainwater with the existing

slipperiness of the floor.

Under any of these theories, she

cannot prevail.
Plaintiff

speculates

that

the

smoothness

created a hazardous static condition.

of

the

floor

See Dkt. No. 29 SI 1.

But

she has not produced evidence under Georgia law to support this
conclusion.
held

that

It remains a bare allegation.

neither

concrete

nor

tile

nor

Georgia courts have

marble

nor

brick—even

where smoothly worn from use and "extremely slick and dangerous"
when

wet—created

hazardous

conditions.

Gibson

v.

Consolidated

Credit Corp., 138 S.E.2d 77, 78-79 (Ga. Ct. App. 1964).

All

Plaintiff has proffered to the contrary is an allegation that
the

floor

was

too

smooth.

No

testing,

expert

testimony,

or

physical evidence has been submitted.

Another way to interpret Plaintiff's argument is that the
hazardous condition

was the absence of a

8

mat on

a

rainy day.

See Dkt. No. 29-2, p. 2 5 2.
by Georgia precedent.

This argument, too, is foreclosed

The Georgia Court of Appeals held in Key

V. J.C. Penney Co. that a landowner is not negligent in failing
to place mats at the entryway on a rainy day where the evidence

established that the plaintiff could plainly see that no mat was
present

and

was

aware

of the

weather

conditions.

299 S.E.2d

895, 897 (Ga. Ct. App. 1983); see also Gibson, 138 S.E.2d at 80
(^^The

mere

failure

to

remove

water

collecting

near

the

entranceway of a large store because of the constant passing in
and out of pedestrians during a period of rain, and the failure
to place mats in the aisle at such a place would not be evidence
of

a

lack

of

reasonable

care

. . . .")
.

Here,

the

evidence

shows that Plaintiff knew that it was raining and that there was
no

mat in front of the

50:23-25,

51:19-23

right

hand door.

(explaining

that

See

she

concrete floor as she stepped inside).

Dkt.

saw

No. 27-3,

water

on

the

So the absence of a mat

cannot be deemed a hazardous condition.

Yet another way to interpret Plaintiff's argument is that
the

the

combination

hazard.

foreclosed

manufactured

because

of

Dkt.

by

App. 2002).

of

Cohen

the

smooth

No.
v.

29-2,

Target

floor

pp.

and

3-4.

Corp.,

567

the

rainwater

This
S.E.2d

created

argument
733 (Ga.

is
Ct.

There, the plaintiff slipped on a rainy day on the
concrete

the

slick,

incline

yellow

and

testified

painted

surface

that

of

she

the

fell

incline

which created a '"slip-n-slide" when moistened by the rain.
at 734.

Id.

The Court of Appeals affirmed the trial court's grant

of summary judgment to the defendant because of the absence of
evidence that the incline

violated

an

applicable

previously fallen there.
To

the

extent

was negligently maintained, that it

building

code,

Id. at 735.

Plaintiff

is

or

that

anyone

had

Such is the case here.

relying

doctrine, her reliance is misplaced.

on

the

distraction

The distraction doctrine

applies when a plaintiff s attention is distracted by a natural
and usual cause, particularly where the distraction is placed by
the defendant or where the defendant should have anticipated the

distraction.

Ga. Jur. § 37:53 (citing McLemore v. Genuine Parts

Co., 722 S.E.2d 366 (Ga. Ct. App. 2012)).

excusing
degree

a

of

plaintiff
care

distraction.

imposes

from

because
Ga.

liability

Jur.

of

exercising
the

the

otherwise

circumstances

§ 37:53.

^'because

It has the effect of

The

of

the

required

created

distraction

proprietor's

knowledge of the . . . item creating the distraction."

by

the

doctrine

superior
Ramirez

V. Kroger Co., 429 S.E.2d 311, 313 (Ga. Ct. App. 1993) (citing
Sears, Roebuck & Co. v. Chandler, 263 S.E.2d 171, 174 (Ga. Ct.

App. 1979)).
The
While

it

required

distraction
does
degree

excuse

doctrine
a

does

plaintiff

of care, it does

10

not

help

from

the

not excuse

Plaintiff
exercise
a

here.

of

the

plaintiff from

showing

a

hazardous

condition.

distracted

Plaintiff

from

The

carefully

fact

that

observing

rainwater

the

surface does not make that floor any more hazardous.
must

show

the

existence

of

a

hazardous

issue of her own ordinary care arises.

condition

floor's

Plaintiff
before

the

Because she has failed

to do so, the distraction doctrine cannot come to her aid.

Nor

did Family Dollar have any superior knowledge of the rainwater,
as evidenced by her testimony that she saw the water.

27-3, p. 13.

Dkt. No.

True, the Georgia Supreme Court held in Barentine

V. Kroger that an invitee presented evidence of his exercise of

ordinary care for his own safety when he offered a specific
reason for not looking at the floor, 443 S.E.2d 485, 486 (Ga.
1994); and the court clarified in

plaintiff

need

not prove

survive summary judgment.

Robinson v. Kroger that the

his lack

of negligence in

order to

But both of those cases prescribe the

legal standard only once the issue of the plaintiff s negligence
arises.

Here, once again, the Court has not and need not even

reach the issue of Plaintiff's negligence

because she has not

produced evidence of a hazardous condition.
Therefore, as a

matter of law.

presence of a hazardous condition.
the

remaining

issues,

and

Plaintiff cannot show

The Court need not examine

Defendants

judgment.

11

the

are

entitled

to

summary

CONCLUSION

Defendant

Martin's

25) is GRANTED.

Judgment

(Dkt.

Motion

for

Summary

Judgment

(Dkt.

Defendant Family Dollar's Motion for Summary

No.

27)

is

GRANTED.

The

Clerk

of

Court

DIRECTED to enter judgment accordingly and close the case.

SO ORDERED, this 20th day of December, 2017.

HONJt^ISA GODBEt WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

12
A0 72A

(Rev. 8/82)

No.

DISTRICT OF GEORGIA

is