Wiggins et al v. Belk's Department Store of Savannah, Ga., Inc.
Filing
58
ORDER denying 33 Motion for Summary Judgment; granting in part and denying in part 38 Motion in Limine. Signed by Judge B. Avant Edenfield on 1/17/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
HOLLIE K. WIGGINS and LARRY F.
WIGGINS, JR.,
Plaintiffs,
v.
4:11-cv-88
BELK, INC.,
Defendant.
ORDER
I.
INTRODUCTION
Plaintiffs Hollie K. Wiggins (“Mrs.
Wiggins”) and Larry F. Wiggins Jr. (“Mr.
Wiggins”) (collectively, “Plaintiffs”) filed a
complaint against Defendant Belk, Inc.
(“Defendant”) arising out of injuries
incurred by Mrs. Wiggins from a trip and
fall incident while Mrs. Wiggins was a
customer at a Belk’s store in Savannah,
Georgia on December 26, 2009. See Doc. 1
at 7-9. Mr. Wiggins is suing for loss of
consortium. See Doc. 1 at 8. Before the
Court are Defendant’s Motion for Summary
Judgment and “Motion and Brief in Support
of Motion to Exclude Expert Testimony”
(“Motion to Exclude”). See Docs. 33; 38.
II.
BACKGROUND
On December 26, 2009 Mrs. Wiggins
and her mother, Margaret V. Knox, visited a
Belk department store at Oglethorpe Mall in
Savannah, Georgia to return a Christmas gift
on the second floor of the store. See Doc.
36-1 at 28. After returning the gift, Mrs.
Wiggins and her mother began making their
way out of the store. See id. at 40.
Because the store was crowded, in order
to exit, they had to walk down a narrow aisle
filled with merchandise. See id. at 42. The
aisle was too small for the two to walk sideby side. See Doc. 36-2 at 12. Ms. Knox
was walking slightly ahead and to the “right
about a half to one stride ahead” of Mrs.
Wiggins. See Doc. 36-1 at 43. As they
exited, Mrs. Wiggins was looking and
touching the merchandise. See id. at 42;
Doc. 36-2 at 1. No one was hurrying or
crowding her. See Doc. 36-2 at 15.
According to Mrs. Wiggins, as they were
nearing the end of the aisle, she stepped on
an electrical outlet, lost her balance, and fell.
See Docs. 36-1 at 42-43; 36-3 at 24. The
outlet was not covered or hidden, but
because Mrs. Wiggins was walking close to
her mother, she did not see the outlet. See
Doc. 36-3 at 34.
After Mrs. Wiggins fell, her mother
helped her from the ground to a sitting
position on a wooden display. See Doc. 362 at 15. The two sought assistance from a
Belk employee who returned with the
manager. See id. at 16. Mrs. Wiggins wrote
down her “name and address” for the
manager. See id. As a result of the fall, she
injured her right ankle and subsequently had
surgery on the ankle on January 11, 2010.
See id. at 32, 39.
III.
MOTION TO EXCLUDE
Defendant moves for this Court to
exclude the testimony of Dean E. Phillips
(“Phillips”). See Doc. 38.
Plaintiffs retained Phillips to testify as to
(1) the height of the electrical outlet in
question; (2) whether the outlet violates an
applicable building code; and (3) whether
such an outlet violates custom for safety.
See Doc. 50 at 1-2. Plaintiffs intend to
utilize Phillips as both a fact and expert
witness. See id. at 2.
methodology was unreliable because it is
incapable of validation or reproduction. See
id. Defendant avers that Phillips
manipulated the carpet while measuring the
outlet, and because Phillips did not measure
the pressure applied to the carpet, it is now
impossible to quantify and replicate the
pressure and measurement. See id.
Defendant avers that Plaintiffs have
failed to cite a single slip or trip and fall case
where a federal court admitted expert
testimony. See Doc. 57 at 2. This argument
is non-dispositive, and also its implication is
incorrect. See Ahuja v. Cumberland Mall,
LLC, 2011 WL 4479216, at *4 (N.D. Ga.
Sept. 26, 2011) (admitting testimony of
human factors engineer in “slip and fall”
case).
After consideration of the record and the
parties’ briefs, the Court is of the opinion
that Phillips may testify as a fact or lay
witness as to the height of the electrical floor
outlet in question as it is within his personal
knowledge and does not require inquiry
under Federal Rule of Evidence 702. See
Kuithe v. Gulf Caribe Maritime, Inc., 2009
WL 4694790, at *5 n.8 (S.D. Ala. Nov. 25,
2009) (allowing expert to testify as lay
witness to certain measurements).
Phillips visited the Belk store on May
23, 2011, and using a Johnson USA tri-mitre
square with a level, he measured the outlet
in question as being elevated 9/16 of an inch
above the floor. See Doc. 44-1 at 37.
Describing how he obtained his
measurement, Phillips attests:
Lay witnesses must testify to matters
within their personal knowledge. See F ED.
R. E VID. 602. Under Federal Rule of
Evidence 701, lay witnesses may offer
opinions which are “(a) rationally based on
the perception of the witness, (b) helpful to
clearly understanding the witness’s
testimony or to determining a fact in issue,
and (c) not based on scientific, technical, or
other specialized knowledge within the
scope of Rule 702.” No rule prevents
witnesses from offering both expert and lay
testimony. F ED. R. E VID. 701 advisory
committee’s note (2000 amendment).
(“Certainly it is possible for the same
witness to provide both lay and expert
testimony in a single case.”)
For each measurement, I placed
the end of square next to the base of
the outlet, lowered the level portion
of the square to the top of the outlet,
slightly depressing the carpet
beneath the end of the square to
ensure an accurate measurement
from the top of the hard surface of
the carpet (by pressing lightly on the
fibers on top of the carpet) to the top
of the outlet, checked to make sure
the device was level, secured the
level portion of the square with the
screw, and read the measurement.
See Doc. 50-1 at 2.
As to Phillips’s proposed testimony
regarding building codes, in a footnote in its
reply, Defendant contends that Phillips’s
Defendant argues that Phillips’s
measurement is inadmissible. See Doc. 38
at 6-7. Defendant contends that Phillips’s
2
concerning the height and location [sic]
electrical floor outlets.” See Doc. 44-5 at 9.
The report did not mention any building
code or standard. See id. at 6-10. In
contrast, although principally discussing
what he deemed as custom, Phillips testified
in his August 31, 2011 deposition that his
measurement indicated a code violation.
See Doc. 44-1 at 25-27. Such code or
industry standard concerned “floor walking
areas” and required ramping for “raised
areas in excess of a half-inch.” See Doc. 441 at 27, 42; see also Doc. 44-3 at 6-7.
Defendant thus had an opportunity to
question Phillips about his opinion that a
code violation existed. Subsequently,
Phillips’ affidavit, attached to Plaintiffs’
response and dated October 13, 2011,
attested that the electrical outlet in question
violated three applicable building codes.
See Doc. 50-1 at 1-2.
subsequent affidavit concluding that “three
different building codes” had been violated
should be excluded as an improper and
untimely supplementation of his earlier Rule
26 expert report and in violation of Local
Rule 26.1. See Doc. 57 at 4 n.1. Defendant
otherwise provides minimal explanation for
the aforementioned argument.
Plaintiffs contend that the outlet violated
the Georgia Accessibility Code, which
provides that “[c]hanges in level greater than
1/2 inches (13 mm) shall be accomplished by
means of a ramp . . . .” § 120-3-20.16(2).
This provision has the same requirements as
the American Society of Testing and
Materials (“ASTM”) and the American
National Standards Institute (“ANSI”). See
Doc. 50-2 at 1.
Federal Rule of Civil Procedure 26(a)(2)
provides that parties must disclose any
expert opinions they intend to offer at trial.
Rule 26(e)(1) imposes on parties the
continuing duty to supplement their expert
disclosures, “both to information contained
in the report and to information provided
through a deposition of the expert” up until
the time the parties’ pretrial disclosures
under Rule 26(a)(3) are due. F ED. R. C IV. P.
26(e)(1). “There is . . . no obligation to
provide supplemental or corrective
information that has been otherwise made
known to the parties in writing or during the
discovery process, as when . . . an expert
during a deposition corrects information
contained in an earlier report.” F ED. R. C IV.
P. 26 advisory committee’s note.
Because he had testified during his
deposition to his belief that the outlet
constituted a violation of general building
codes, Phillips’ affidavit did not constitute a
complete reversal of his earlier deposition
testimony nor even his initial expert report,
which stated that there are no known
specific code requirements referencing
electrical floor outlets.
“[T]he burden of laying the proper
foundation for the admission of expert
testimony is on the party offering the expert,
and the admissibility must be shown by a
preponderance of the evidence.” McCorvey
v. Baxter Healthcare Corp., 298 F.3d 1253,
1256 (11th Cir. 2002) (internal quotation
omitted). Federal Rule of Evidence 702,
which governs the admissibility of expert
testimony, provides:
Phillips’s initial report, dated June 20,
2011, remarked that “[t]here is no known
specific building code
requirement
3
If scientific, technical, or other
specialized knowledge will assist the
trier of fact to understand the
evidence or to determine a fact in
issue, a witness qualified as an
expert by knowledge, skill,
experience, training, or education,
may testify thereto in the form of an
opinion or otherwise, if (1) the
testimony is based upon sufficient
facts or data, (2) the testimony is the
product of reliable principles and
methods, and (3) the witness has
applied the principles and methods
reliably to the facts of the case.
and has never designed “electrical
receptacles.” See Doc. 57 at 3. Phillips is a
member of the American Society of Civil
Engineers, the National Society of
Professional Engineers, and the Georgia
Society of Civil Engineers. See Doc. 44-2 at
32. He has an engineering degree from the
University of Iowa, where he majored in
structural and sanitary engineering. See
Doc. 50-1 at 8. He has a Connecticut
engineering license but recently allowed his
Georgia engineering license to lapse. See
Doc. 44-2 at 28. Moreover, he has over
forty years of work experience in the
engineering field and has undertaken
numerous building inspections. See Doc.
50-1 at 5-6.
See also Flury v. Daimler Chrysler Corp.,
427 F.3d 939, 944 (11th Cir. 2005) (noting
that in diversity cases, the Federal Rules of
Evidence governs the admissibility of
evidence).
Based on his education, training, and
experience, the Court concludes that Phillips
is qualified to proffer expert testimony in
this case.
Rule 702 requires the district court to
undertake a gate-keeping function in
admitting expert testimony. Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579,
597 (1993). The Court should use a threepart inquiry in assessing whether to admit
expert testimony: (1) the expert must be
qualified to testify competently regarding
the matters he intends to address, (2) the
methodology must be reliable under
Daubert, and (3) the testimony must assist
the trier of fact through the application of
scientific, technical, or specialized expertise
to understand the evidence or determine a
fact in issue. Hendrix ex rel. G.P. v. Evenflo
Co., 609 F.3d 1183, 1194 (11th Cir. 2010).
As to reliability, the Daubert Court
listed four factors for courts to consider in
determining whether an expert’s
methodology was reliable: (1) whether the
theory or technique “can be (and has been)
tested,” (2) “whether the theory or technique
has been subjected to peer review and
publication,” (3) “in the case of a particular
scientific technique, . . . the known or
potential rate of error,” and (4) whether the
theory of technique is generally accepted in
the relevant scientific community. 509 U.S.
at 592-94. Yet, this list is non-exhaustive,
and district courts have “substantial
discretion” in determining how to test an
expert’s reliability. Hendrix, 609 F.3d at
1194; see Sumner v. Biomet, Inc., 2011 WL
2749640, at *6 (11th Cir. July 15, 2011). As
a result, “the trial judge must have
In its reply, Defendant challenges
Phillips’s qualifications, asserting that he
does not have a Georgia engineering license
4
considerable leeway in deciding in a
particular case how to go about determining
whether particular expert testimony is
reliable." Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999).
“customarily, anything under a quarter-ofan-inch is quite acceptable.” See id. at 7.
He later attested that such floor outlets were
generally not more than 3/16 of an inch in
vertical height. See Doc. 50-1 at 3. Such
averment seems to partially rely on the fact
that Hubbell, the manufacturer of the outlet
at issue, no longer advertises the outlet in
question and no floor outlet currently
advertised by the company exceeds the
“thickness of 3/16” of an inch. See id.
“[I]t is not the role of the district court
to make ultimate conclusions as to the
persuasiveness of the proffered evidence.”
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK
Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).
“Quite the contrary, ‘vigorous crossexamination, presentation of contrary
evidence, and careful instruction on the
burden of proof are the traditional and
appropriate means of attacking shaky but
admissible evidence.’” Id. (quoting
Daubert, 509 U.S. at 596).
“[E]xperience in a field may offer
another path to expert status.” United States
v. Frazier, 387 F.3d 1244, 1260-61 (11th
Cir. 2004). The Committee Note to the
2000 Amendments of Rule 702 expressly
states that:
Defendant attacks Phillips’s conclusions
that the height of the electrical outlet at issue
violated custom which Phillips claims is to
have a “floor walking area as level and
smooth as possible.” See Doc. 44-2 at 22.
Defendant contends that Phillips has cited
no authority for this belief, and argues that
Phillips’ testimony on customary heights of
floor outlets is contradictory. See Doc. 38 at
5. Moreover, Defendant argues that much
of the basis for Phillips’s “custom” opinion
is a series of unreliable photographs of
electrical outlets, none of which were
measured by Phillips and many were not
even seen by him in person. See Docs. 38 at
7; 44-2 at 42.
If the witness is relying solely or
primarily on experience, then the
witness must explain how that
experience leads to the conclusion
reached, why that experience is a
sufficient basis for the opinion, and
how that experience is reliably
applied to the facts. The trial court’s
gatekeeping function requires more
than simply “taking the expert’s
word for it.”
F ED. R. E VID. 702 advisory committee’s
note (2000 amendment).
To the extent, if any, that Phillips’s
opinion relies on the referenced
photographs, his “custom” argument is
unreliable. Almost all of the photographs
are of electrical outlets or receptacles that
Phillips did not even measure, and almost all
are, as Phillips admits, “worthless” overhead
shots, providing no accurate or quantifiable
measurements. See Doc. 44-2 at 48. Yet,
Phillips relies on his experience and
personal observations to justify his
conclusion that custom dictates that any
object at floor level be as “close to flush
with the surface as possible.” See Doc. 44-3
at 6-7. Nevertheless, he also testified that
5
Phillips’s opinion is not completely founded
on such photographs.
outlets could be tripping hazards. See Doc.
50 at 10-11.
Phillips attests that he has conducted
over ten thousand building inspections over
his career, including inspections for safety
and for structural, mechanical, and electrical
systems. See Doc. 50-1 at 2, 6. He claims
such inspections included checking for trip
hazards. See Doc. 44-3 at 4.
“[E]xpert testimony is admissible if it
concerns matters that are beyond the
understanding of the average lay person. . .
Proffered expert testimony generally will
not help the trier of fact when it offers
nothing more than what lawyers for the
parties can argue in closing arguments.”
Frazier, 387 F.3d at 1262 (citation omitted).
The Court concludes that based on
Phillips’s experience as an inspector and in
the engineering field, he may opine that
floor walking areas should be as level and
smooth as possible. See Doc. 44-2 at 22.
Beyond that he may not postulate as to what
exact heights of floor outlets fit this
“customary” mold. Phillips may, however,
testify to the availability of lower profile
floor outlets.
The Court has concluded that Phillips
may testify to his measurement of the
electrical outlet. Phillips may also testify to
applicable general building codes as such
codes or industry standards are not within
the “understanding of the average lay
person” and thus will assist the jury.
Moreover, the Court concludes that
Phillips’s testimony of available lower
profile floor outlets and that walking areas
should be as level and smooth as possible
will assist the jury in determining a fact at
issue, whether the floor outlet constituted a
trip hazard.
In addition, Defendant contends that
Phillips’s proposed testimony will not assist
the fact finder to understand the evidence or
determine a fact in issue because the
standard of installing elevated floor outlets
involves a common sense analysis, not
amenable to expert testimony. See Doc. 38
at 8.
Finally, Defendant argues that Phillips’s
proposed testimony in his report concludes
with an inadmissible legal opinion. See
Doc. 38 at 9. Federal Rule of Evidence
704(a) provides that “testimony in the form
of an opinion or inference otherwise
admissible is not objectionable because it
embraces an ultimate issue to be decided by
the trier of fact.” Yet, “[a]n expert may not .
. . merely tell the jury what result to reach.
A witness also may not testify to the legal
implications of conduct; the court must be
the jury’s only source of law.” Montgomery
v. Aetna Cas. & Surety Co., 898 F.2d 1537,
1541 (11th Cir. 1990) (citation omitted).
Plaintiffs counter that Phillips’s
testimony will assist the trier of fact by
explaining and discussing applicable
building codes of which he is
knowledgeable because of his expertise in
engineering. See Doc. 50 at 9-10. Likewise,
Plaintiffs contend that because of his
decades of experience, see Doc. 50-1 at 2,
Phillips has the requisite credentials and
authority to discuss customary use of
electrical outlets and will assist the trier of
fact by explaining why or how certain
6
Specifically, Phillips’s report concludes:
and the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(a). In
ruling on summary judgment, the Court
views the facts and inferences from the
record in the light most favorable to the nonmoving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); United States v. Four Parcels of
Real Prop. in Greene and Tuscaloosa
Cntys., 941 F.2d 1428, 1437 (11th Cir.
1991).
I believe that the owners of Belk
and the people responsible for the
safety of the store’s clientele knew or
should have known that domed floor
fixtures . . . pose a distinct hazard,
and that injuries . . . should have
been anticipated . . . It is my opinion
that the owners or operators of Belk
were negligent in allowing this
hazardous condition to exist and
their negligence was the direct cause
of Mrs. Wiggins’s injuries.
“The moving party bears ‘the initial
responsibility of informing the . . . court of
the basis for its motion, and identifying
those portions of the pleadings, depositions,
answers to interrogatories, and admissions
on file, together with the affidavits, if any,
which it believes demonstrate the absence of
a genuine issue of material fact.’” Four
Parcels, 941 F.2d at 1437 (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
See Doc. 44-5 at 10. To the extent that
Phillips intends to so testify, the Court
concludes that such legal proclamations are
inadmissible. Phillips cannot simply
expound the elements of a negligence claim
and then tell the jury that Defendant was
negligent.
Defendant’s Motion to Exclude is
GRANTED in PART and DENIED in
PART. Phillips may testify as to his
measurement of the electrical outlet and to
the building codes and standards. Phillips
may also testify that in his experience, floor
walking areas should be as smooth as
possible and that lower profile floor outlets
are available. Yet, he may not postulate as
to what exact heights of floor outlets fit this
“customary” mold nor may he testify to the
legal conclusion addressed above.
The nonmoving party then “may not rest
upon the mere allegations or denials of [his]
pleadings, but must set forth specific facts
showing that there is a genuine issue for
trial.” Gonzalez v. Lee Cnty. Hous. Auth.,
161 F.3d 1290, 1294 (11th Cir. 1998). “A
factual dispute is genuine ‘if the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party.’” Four
Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). A fact is material only if
it might affect the outcome of the suit under
governing law. See Anderson, 477 U.S. at
248.
IV. MOTION FOR SUMMARY
JUDGMENT
A. Standard of Review
B. Analysis
“The court shall grant summary
judgment if the movant shows that there is
no genuine dispute as to any material fact
Under Georgia law, “[t]o recover on a
theory of premises liability, a plaintiff must
7
show injury caused by a hazard on an owner
or occupier of land’s premises or approaches
that the owner or occupier should have
removed in the exercise of ordinary care for
the safety of the invited public.” See Am.
Multi-Cinema, Inc. v. Brown, 285 Ga. 442,
444 (2009); see also O.C.G.A. § 51-3-1
(“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.”).
Id. at 445.
Furthermore:
issues such as how closely a
particular retailer should monitor its
premises and approaches, what
retailers should know about the
property’s condition at any given
time, how vigilant patrons must be
for their own safety in various
settings, and where customers should
be held responsible for looking or
not looking are all questions that, in
general, must be answered by juries
as a matter of fact rather than by
judges as a matter of law.
To survive a motion for summary
judgment, a plaintiff “must come forward
with evidence that . . . the defendant had
actual or constructive knowledge of the
hazard.” See Am. Multi-Cinema, 285 Ga. at
444-45.
Id. at 445.
Thus, “summary judgment is granted
only when the evidence is plain, palpable,
and undisputed.” Robinson v. Kroger Co.,
268 Ga. 735, 748 (1997).
At that point, the burden of
production shifts to the defendant to
produce evidence that the plaintiff’s
injury was caused by his or her own
voluntary negligence (intentional
disregard of a known risk) or causal
negligence (failure to exercise
ordinary care for one’s personal
safety). If the defendant succeeds in
doing so, the burden of production
shifts back to the plaintiff to come
forward with evidence that creates a
genuine dispute of fact on the
question of voluntary or causal
negligence by the plaintiff or tends to
show that any such negligence
resulted from the defendant’s own
acts or conditions under the
defendant’s control.
“[P]roof of a fall, without more, does
not give rise to liability on the part of a
property owner or proprietor.” Gibson v.
Symbion, Inc., 277 Ga. App. 721, 722
(2006). The basis for the owner’s liability is
the owner’s ‘superior knowledge . . . of the
existence of a condition that could subject
the invitee to an unreasonable risk of
injury.” Bonner v. S. Rest. Grp., Inc., 271
Ga. App. 497, 499 (2005) (internal quotation
omitted).
The Court notes at the outset that
Defendant relies on several pre-Robinson
cases in its briefs. “In light of Robinson ’s
significantly lightening the plaintiff’s load in
proving a trip and fall case, and its reminder
that most routine issues in such cases are not
subject to summary adjudication, pre8
Robinson cases affirming summary
judgment must be carefully scrutinized.”
Hamilton v. Ky. Fried Chicken of Valdosta,
Inc., 248 Ga. App. 245, 247 (2001).
508 (2005). Mrs. Wiggins testified that she
had not been in this particular Belk store
since 1990. See Doc. 36-1 at 27. Moreover,
her mother purportedly obstructed her view
of the outlet. See Doc. 36-3 at 34.
After a review of the record, the Court
concludes that Plaintiffs have produced
sufficient evidence to survive summary
judgment.
Next, Defendant asserts that it had no
knowledge that the electrical outlet was a
hazard. See Doc. 34 at 8; Metts v. Wal-Mart
Stores, Inc., 269 Ga. App. 366, 367 (2004)
(“Without evidence of the existence of a
dangerous condition, there can be no
evidence that the defendant had any
knowledge of the danger, and therefore no
recovery for the plaintiff.”). Defendant
argues that knowledge cannot be imputed to
it because it neither constructed nor placed
the outlet in the floor. See Doc. 34 at 8.
1. Belk’s Knowledge
Defendant first argues that the electrical
outlet is a static condition and therefore not
a hazard. See Doc. 34 at 7.
“A static condition is one that does not
change and is dangerous only if someone
fails to see it and walks into it.” Bullard v.
Marriot Int’l Inc., 293 Ga. App. 679, 681
(2008). Defendant is incorrect in its broad
contention that a “static condition is not a
hazard.” See Doc. 34 at 7. “[T]he fact that
the [outlet] is a static condition, ostensibly
open and obvious, cannot automatically
absolve the owner/occupier from liability, if
any from its failure to exercise ordinary care
. . . . To do so would ‘relegate a business
patron to licensee status by requiring the
patron to be on the alert to discover and
avoid defects . . . .” Jackson v. Waffle
House, Inc., 245 Ga. App. 371, 374 (2000).
Plaintiffs aver that Defendant had actual
knowledge of the hazard because Defendant
admits to knowing of the outlet’s existence.
See Doc. 45 at 7. Defendant counters that it
had no notice or actual knowledge of the
outlet’s hazardous condition as “no one ever
reported that the outlet was a dangerous
condition or caused any slip, trip, fall or
injury.” See Doc. 34 at 9. Sanford W.
Foskey (“Foskey”), Belk’s regional and
store manager at the time of the incident,
averred that he had no personal knowledge
of any complaints about a customer tripping
and falling over a electrical outlet in the
Belk store. See Doc. 40-1 at 6, 45-46.
This is not a case where Mrs. Wiggins
was a frequent customer or passerby through
this particular area or store. “[A] claim
involving a static defect differs from other
slip and fall cases in that when a person has
successfully negotiated an alleged dangerous
condition on a previous occasion, that
person is presumed to have equal knowledge
of it and cannot recover for a subsequent
injury result therefrom.” Trans-Vaughn
Dev. Corp. v. Cummings, 273 Ga. App. 505,
The lack of prior trips, falls, or incidents
involving the outlet may ultimately weigh
against a finding that Defendant had
constructive or superior knowledge. See
Bonner, 271 Ga. App. at 499; Mech. Equip.
Co. v. Hoose, 241 Ga. App. 412, 414 (1999);
Steele v. Rosehaven Chapel, Inc., 233 Ga.
9
App. 853, 854-55 (1998); Lindsey v. Ga.
Bldg. Auth., 235 Ga. App. 718, 720 (1998).
But, the lack of prior accidents is not
dispositive on the issue of knowledge. See
Landrum v. Enmark Stations, Inc., 310 Ga.
App. 161, 162 (2011); Cocklin v. JC Penney
Corp., 296 Ga. App. 179, 182-83 (2009);
Wood v. Winn-Dixie Stores, Inc., 244 Ga.
App. 187, 188 (2000) (stating that failure to
institute a reasonable inspection procedure
demonstrates constructive knowledge,
regardless of lack of prior incidents).
in such matters. This includes
inspecting the premises to discover
possible dangerous conditions of
which the owner/occupier does not
have actual knowledge, and taking
reasonable precautions to protect
invitees from dangers foreseeable
from the arrangement or use of the
premises
268 Ga. at 740 (internal citation omitted).
“[N]o constructive knowledge of an
unknown defect is inferred if the defect
could only have been discovered by an
inspection requiring the exercise of
extraordinary care.” Ferguson v. Premier
Homes, Inc., 303 Ga. App. 614, 617 (2010).
Nevertheless, notice of the defect is
presumed in cases of defective construction,
including code violations. Cocklin, 296 Ga.
App at 182; see also Rutherford v. Revco
Discount Drug Ctrs., Inc., 301 Ga. App.
702, 703 (2009). Citing an unpublished
2007 Eleventh Circuit opinion, Jones v.
Wal-Mart Stores, Inc., Defendant argues that
because it did not install the outlet,
knowledge of any defect cannot be imputed
to it. See Doc. 34 at 8; 256 F. App’x 292
(11th Cir. 2007).
Plaintiffs cite Perkins v. Val D ’Aosta Co.
and American Multi-Cinema for the
proposition that knowledge of the condition
but not its hazardous quality does not
automatically entitle the proprietor to
summary judgment. See Doc. 45 at 8-9.
Defendant attempts to distinguish American
Multi-Cinema, where the court held that the
defendant had actual knowledge of the
hazard, by stating that the plaintiff there
presented evidence that the sign easily
collapsed in pedestrian traffic. See Doc. 54
at 3-4.
“[E]ven where there is no proof of actual
knowledge, the failure to discover an alleged
defect ‘through the exercise of reasonable
care in inspecting the premises gives rise to
constructive knowledge where the owner or
occupier had an opportunity to discover the
dangerous condition and to remedy it.’”
Perkins v. Val D’Aosta Co., 305 Ga. App.
126, 128 (2010) (quoting Cocklin, 296 Ga.
App. at 182-83). Robinson provides that
the proprietor must:
Nevertheless, Georgia courts’ more
recent application of the principle of
presuming notice may not be interpreted as
to narrowly apply only to the actual builder
or designer of the condition or structure.
See Cocklin, 296 Ga. App. at 182-83
(presuming notice and finding constructive
knowledge on the part of JC Penney as
deriving from the store’s duty to inspect the
premises to discover possible dangerous
conditions and take reasonable precautions);
Exercise the diligence toward
making the premises safe that a good
business person is accustomed to use
10
Rutherford, 301 Ga. App. at 703 (finding
drug store had constructive knowledge
where ramp’s slope exceeded ADA
standards).
closely a particular retailer should monitor
its premises and approaches” should
generally be decided by a jury. Am. MultiCinema, 285 Ga. at 445.
Although recognizing that no code exists
specifically referencing electrical floor
outlets, Plaintiffs contend that the electrical
outlet violated applicable general building
codes and standards because the outlet
extended 9/16 of an inch above the walking
surface. See Doc. 45 at 3. Changes in level
of more than 1/2 an inch above the walking
surface, without a ramp, is a violation of the
code and industry standards. See id.; see
also Rutherford, 301 Ga. App. at 703 (expert
testified that slope of ramp exceeded
standards mandated by Americans with
Disabilities Act); Davis v. GBR Props., Inc.,
233 Ga. App. 550, 551 (1998) (evidence that
handrails violated national promulgated
standards constituted evidence of hazardous
condition); Flournoy v. Hosp. Auth. of
Houston Cnty., 232 Ga. App. 791, 792
(1998) (evidence admitted that ramp
violated standard building code).
2. Mrs. Wiggins’s Knowledge and Care
Even a code violation does not excuse
the invitee from the duty to exercise
ordinary care for her safety. Febuary v.
Averitt Props., Inc., 242 Ga. App. 137, 140
(2000).
Defendant argues that Mrs. Wiggins
failed to exercise care for her own safety.
See Doc. 34 at 9. Defendant argues that the
plain view doctrine controls and establishes
that Mrs. Wiggins failed to exercise ordinary
care. See id. at 11.
Under this doctrine, “an invitee has a
duty to look where she is walking and is
imputed with constructive knowledge of
large objects which are in plain view at a
location where they are customarily found
and expected to be.” Ward v. Autry
Petroleum Co., 281 Ga. App. 877, 880
(2006). Defendant argues that the outlet
would have been in plain view if Mrs.
Wiggins had not chosen to walk “one-half to
one step behind her mother.” See Doc. 54 at
2.
It is undisputed that Defendant knew of
the floor outlet’s existence. Moreover,
Defendant was on constructive notice of
what a reasonable inspection would have
revealed about the floor outlet, such as its
location and height. Phillips’s testimony
presents a fact or jury question over whether
the raised outlet, located in an aisle
frequented by customers, constituted a
tripping hazard, of which Defendant should
have been aware and remedied. See also
Perkins, 305 Ga. App. at 127-29 (expert’s
affidavit created jury question on
defendant’s knowledge of a hazardous
condition). The Court is mindful that “how
Defendant cites MARTA v. Fife, 220 Ga.
App. 298 (1996), but Fife has been called
into doubt by the Georgia Court of Appeals
after Robinson. See Freyer v. Silver, 234
Ga. App. 243, 246 (1998) (noting the case’s
similarity with Fife but concluding the
binding effect of Robinson).
Plaintiffs, in contrast, argue that Mrs.
Wiggins was distracted and the distraction
theory controls. See Doc. 45 at 11. “[O]ne
11
is not bound by the same degree of care in
discovering or apprehending danger in
moments of stress or excitement or when the
attention has been necessarily diverted . . . .”
Robinson, 268 Ga. at 744 (quotation
omitted). “Application of the doctrine has
the effect of excusing an invitee from
exercising the otherwise required degree of
care because of the circumstances created by
the purported distraction.” Id.
“Rather, the issue is whether, taking
into account all the circumstances
existing at the time and place of the
fall, the invitee exercised the
prudence an ordinarily careful person
would use in a like situation.”
Ward, 281 Ga. App. at 881-82.
Thus, the Court must look at the totality
of the circumstances. See Robinson, 268
Ga. at 748. Per Mrs. Wiggins’s testimony,
Ms. Knox obstructed Mrs. Wiggins’s view
so that Mrs. Wiggins could not see the
electrical outlet. See Doc. 36-3 at 34; see
also Brewer v. Atlanta S. 75, Inc., 288 Ga.
App. 809, 810 (2007) (“Atlanta South has
produced no evidence to disprove Brewer’s
testimony that his properly parked truck
prevented him from seeing the height
differential.”). Whether Mrs. Wiggins was
reasonable in walking “one half to one step
behind” her mother while looking at the
displayed merchandise is a question for the
jury, not for the Court as a matter of law.
Yet, a plaintiff cannot benefit from the
distraction theory if the distraction is selfinduced. See id. Although recognizing
cases that ruled to the contrary, the Robinson
court remarked that “[l]ooking at displayed
merchandise . . . has been repeatedly found
to constitute a self-induced distraction.” Id.
Nevertheless, the Robinson court
determined that Georgia appellate courts had
been applying the “plain view” doctrine too
broadly and invading the province of the
jury. See id. at 742 (noting that the plain
view doctrine “has been used in such a
manner as to remove any reasonable limits
on its application”). Because one inspecting
a “post-fall scene can observe a hazard from
a standing position is not dispositive of
whether or not the injured invitee was
exercising ordinary care for personal safety
before the fall.” Id. at 743.
In addition, the Court is mindful that
Mrs. Wiggins was not required “to look
continuously at the floor for defects . . .
since [she] is entitled to assume that the
owner/occupier has exercised reasonable
care to make the premises safe for the
invitee and continues to exercise such care
while the invitee remains on the premises.”
Robinson, 268 Ga. at 743.
“[A]n invitee’s failure to
exercise ordinary care is not
established as a matter of law by the
invitee’s admission that [she] did not
look at the site on which [she] placed
h[er] foot or that [s]he could have
seen the hazard had [s]he visually
examined the floor before taking the
step which led to h[er] downfall.”
Likewise, the plain view doctrine more
naturally applies to “ large objects.” Rozy
Invs., Inc. v. Bristow, 276 Ga. App. 278, 282
(2005). The electrical outlet cannot be
considered a large object.
Therefore, the Court concludes that
sufficient evidence has been presented to
12
create a jury question on whether Mrs.
Wiggins exercised reasonable care in
negotiating her way through the aisle. The
evidence here is not “plain, palpable, and
undisputed.” Robinson, 268 Ga. at 748.
nothing, other than the outlet, in the area
where she rolled her ankle. See id.
Navigating the turbulent waters of the
Georgia slip and fall jurisprudence is
threatening to the careers of lawyers and
judges. When the slippery slope of statutes,
and judicial reasoning and opinions have
been perused and a conclusion reached, only
temporary relief is granted. The decision is
a one-way ticket good for today only. Alas,
tomorrow holds the real promise that
another decision will come forth from some
court or authority which, under our law, is
binding upon this Court. For that reason,
this case will need to proceed with alacrity.
3. Causation
Defendant also argues that Plaintiffs
have failed to establish causation,
specifically whether a hazardous condition
caused Mrs. Wiggins’s fall. See Doc. 34 at
13-14.
Causation is always an essential
element in slip or trip and fall cases.
Where the plaintiff does not know of
the cause or cannot prove the cause,
there can be no recovery, because an
essential element of negligence
cannot be proven. Where the
plaintiff cannot identify the cause of
the fall, summary judgment is
appropriate . . . because causation
cannot be established, and therefore,
the defendant’s knowledge of the
dangerous condition, which actually
caused the fall, cannot be shown as a
precondition for liability.
In conclusion, Defendant’s Motion for
Summary Judgment is DENIED.
V. CONCLUSION
Defendant’s Motion for Summary
Judgment, see Doc. 33, is DENIED.
Defendant’s Motion to Exclude, see
Doc. 38, is GRANTED in PART and
DENIED in PART.
This 17th day of January 2012.
Moore v. Teague, 255 Ga. App. 220, 222
(2002).
The Court concludes that Plaintiffs have
presented sufficient evidence to prove that
the floor outlet caused Mrs. Wiggins’s fall
and to survive summary judgment.
Although Mrs. Wiggins did not see the
outlet before she stepped on it and fell, see
Doc. 36-2 at 4, she felt a change in elevation
in the floor with her foot and also looked
and saw the outlet after falling. See Doc.
36-3 at 26. She testified that there was
B_ AVANT FT)ENFIELØ, JUDGE
AVANT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
13
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?