Wiggins et al v. Belk's Department Store of Savannah, Ga., Inc.
Filing
32
ORDER denying 21 Motion to Compel; granting 25 Motion for protective motion. Signed by Magistrate Judge G. R. Smith on 09/01/2011. (lmm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
HOLLIE K. WIGGINS and
LARRY F. WIGGINS, JR.,
)
)
Plaintiffs,
v.
Case No. CV411-088
BELK, INC.,
Defendants.
ORDER
Before the Court is plaintiffs’ Fed. R. Civ. P. 37(a)(3)(B) motion to
compel discovery in this slip-and-fall case. (Doc. 21.) Hollie Wiggins
claims that she tripped over a protruding outlet at a Savannah, Georgia
Belk department store. 1 (Id. at 2.) Plaintiffs request information from
30 additional Belk stores within 150 miles of Savannah relating to
similar claims.2 (Id.) Defendant objects to plaintiffs’ request and seeks a
Fed. R. Civ. P. 26(c) protective order. (Doc. 25.)
She broke bones in her ankle and foot and contends that she remains a
partially disabled from her injuries. (Doc. 1 at 8.)
1
Initially plaintiffs requested the information from more than half of Belk’s
305 department stores. (Doc. 21 at 4.) They now seek the information only from
those stores within 150 miles of Savannah. ( Id.)
2
At issue are five interrogatories -- numbers 3, 7, 8, 10, and 17. In
interrogatory number 3, plaintiffs ask Belk to identify any documents
concerning injuries or alleged injuries resulting from tripping on an
electrical outlet in Belk stores in Georgia or the Carolinas since 1995.
(Doc. 21 at 7.) Number 5 asks Belk to identify every claim for injury
caused by tripping on an electrical outlet. ( Id. at 8.) Number 7 asks for
every incident or other report related to tripping on an electrical floor
outlet at Belk Savannah and all other Belks within 150 miles. ( Id. at 12.)
In number 8, plaintiffs seek all documents reflecting all tripping and
falling claims of any customer or employee since 1995. ( Id. at 13.)
Number 10 asks Belk to identify documents relating to tripping injuries
relating to “objects or things” and to specify which of the incidents were
caused by electrical floor outlets. ( Id. at 9.) And finally, interrogatory 17
requests the name and location of every Belk store that has raised outlets
substantially the same as the one at issue here and that has outlets that
are level with the floor. 3 (Id. at 10.) Plaintiffs, however, have since
specified that they only seek discovery from the thirty stores nearest the
Savannah location rather than from all Belk stores in the Carolinas and
3 Additionally, plaintiffs ask the defendant to produce each document pertinent
to the above interrogatories. (Doc. 21 at 14.)
2
Georgia. (There are 154 stores in the Carolinas and Georgia, and there
are 305 total Belk stores.) Hence, some of the interrogatories are
substantially less burdensome than they initially appear. (Id. at 2.)
Belk has broken its objections into three groupings. First, as to
interrogatories 3, 5, 7, and 8, defendant argues that it would be forced to
perform an inordinate amount of work to produce information which is
of little value. (Doc. 25 at 4-9.) While it maintains a limited, centralized
computerized database of its general liability claims ( id. (citing McGann
aff.)), the database simply categorizes the claims as “(1) slip/trip/fall; (2)
object strike/fall; or (3) other.” ( Id. at 6.) The database does not contain
specifics of each incident, and it does not include information for any
incidents that occurred prior to February 2005. (Id.) Moreover, it only
reports incidents where medical treatment was sought or contemplated
at the time of the injury. ( Id.) A response, then, would require
defendant to search the centralized database for every single incident
that occurred in the 30 targeted stores and then assign an employee to
manually search each available claim file. ( Id.) According to Belk policy,
it only maintains those files centrally for three years. ( Id.) It would thus
have to assign an employee at each store to manually review the contents
of the store’s incident report packets. (Id. at 7.) Since those records are
not computerized, they would take hours to perform, which would
require Belk either to hire a consulting firm to review them or pull
employees off the retail floor. ( Id.)
Belk also asserts that the information sought is not even helpful.
“Belk is not a ‘box store.’ Most of its stores are leased and many were
taken over when Belk acquired another retailer.” ( Id. (quoting McGann
aff.).) Accordingly, Belk stores are not identical and do not have the
same or similar electrical fixtures. (Id. at 7-8.) Each outlet must be
viewed in its entirety. Its attributes are determined by the contractor
who installed it, the type of flooring surrounding it, the substrate into
which it is installed, and its visibility relative to the surrounding floor.
(Id. at 8.) Since there is no way to ensure any consistency from outlet to
outlet, much less store to store, Belk argues that any information about
falls relating to electrical outlets at other stores would be inadmissible
and irrelevant. ( Id.)
As for the remaining interrogatories, Belk contends that the
number 10 request for every trip and fall, regardless of cause and time, is
far too broad. ( Id. at 9.) And Belk claims that interrogatory 17,
4
requesting Belk to identify those stores that have outlets that are
substantially the same as the outlet on which plaintiff Hollie Wiggins
allegedly tripped, would require a store by store search performed by illequipped retail staff. (Doc. 25 at 11-14.) It notes that the parties’ rival
engineer witnesses in this case cannot even agree on the height of the
electrical box in question. ( Id. at 13.) Hence, having 30 untrained
individuals attempt to measure fixtures and determine code compliance
would be utterly fruitless. ( Id.) Instead, Belk states that plaintiffs are
welcome to send their own experts to review each of the 30 stores. ( Id. at
14.)
The Court agrees with Belk. While these interrogatories could lead
to useful information for plaintiffs, they really amount to little more
than a fishing expedition, and plaintiffs have conceded as much in their
later briefs. For instance, they do not dispute that the second floor of the
Savannah Belk, which is where Wiggins was injured, was remodeled, at
which time the boxes were likely installed. (Doc. 28 at 3.) Hence, the
second floor of the Savannah store is unique among all Belk department
stores. And plaintiffs fully anticipate that “none of the Belk stores -- the
30 which have been requested to be reported -- none will have the floor
devices more than 3/16th inch (.187 inch) above floor level -- and none of
these will reflect accidents.” (Doc. 28 at 4.) Indeed, “it will be a surprise
if any of the 30 stores have electrical devices over 3/16th inch above
walking surface, and likewise, a surprise if any accidents involved such.”
(Id. at 7.) Moreover, plaintiffs have suggested that even if Belk did have
multiple injuries from raised outlets, it would be irrelevant to the issue of
Belk’s knowledge of the danger they posed. They point out that under
the applicable statute, O.C.G.A. § 51-3-1, Belk is presumed to have
knowledge of “static” dangers like the one in this case. (Doc. 28 at 5
(citing, inter alia, Cocklin v. JC Penney Corp., 296 Ga. App. 179, 182-83
(2009).) If Belk is presumed to have knowledge, it stands to reason that
Belk’s knowledge of other such incidents has little or no bearing on this
case. 4
The interrogatories are also exceedingly broad. 5 Some seek
4 In their initial brief, plaintiffs claimed that Belk’s knowledge of the outlet
was critical to the claim, and hence the existence of other raised outlet injuries was
relevant. (Doc. 21 at 5.) In a subsequent reply, however, plaintiffs suggested that
knowledge is irrelevant to such “static” dangers. (Doc. 28 at 5.)
5 The Court is not convinced that the electrical-outlet requests are entirely
irrelevant. After all, the relevancy standard for discovery is far more elastic than for
admission of evidence at trial. Plaintiffs need only show that the information it seeks
is relevant within the broad discovery standard set forth by Fed. R. Civ. P. 26(b)(1).
Nevertheless, the discovery requests are exceedingly burdensome and seek
information that likely will be of little use in their case.
information regarding every outlet-related, trip-and-fall incident as to
both customers and employees. Others seek information regarding every
raised outlet in multiple Belk stores. And interrogatories 8 and 10 seek
information regarding every single trip-and-fall incident. This particular
incident, however, involved a raised outlet in a customer walkway.
General trip-and-fall claims are largely irrelevant. As for the remaining
requests, raised outlets hidden under or behind Belk wares would not be
helpful to plaintiffs’ claims, other than to show in a general sense that
Belk understood that such outlets were dangerous. 6 A jury can likely
infer as much based upon the evidence plaintiffs have already gathered,
showing that such outlets are exceedingly rare (and for the good reason
that they pose an obvious hazard).
Finally, the cost of undertaking such discovery would prohibitively
expensive. Plaintiff Hollie Wiggins’ medical expenses totaled only
$35,000. (Doc. 1 at 8.) Certainly plaintiffs seek further compensatories
and punitives, but discovery as broad as plaintiffs seek could conceivably
exceed the total amount in controversy. After all, Belk would likely have
to hire a team of experts to pore over their files and examine every
And that is all plaintiffs are likely to uncover. They acknowledge in their
briefs that such raised outlets are incredibly uncommon in customer walkways.
6
7
square inch of several enormous retail stores over a large geographic
area.
For the reasons explained above, plaintiffs’ motion to compel (doc.
21) is DENIED. Defendant’s counter-motion for a protective motion
(doc. 25) is GRANTED. Finally, the Court is satisfied that the
circumstances of this case do not warrant payment of expenses. See Fed.
R. Civ. P. 37(a)(5). While plaintiffs did not prevail, their motion was
substantially justified.
SO ORDERED this 1st day of September, 2011.
,
•f
I
7c çn.'.-A
1JN1TED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?