Carter v. Belk, Inc. et al

Filing 43

ORDER denying 33 Motion to Compel. Signed by Magistrate Judge G. R. Smith on 8/25/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOAN CARTER,
Plaintiff,
v.

Case No. CV414-053

BELK, INC., d/b/a BELK OF
SAVANNAH, and JANE DOE,
Defendants.

ORDER
Joan Carter brought this premises liability case against Belk, Inc.
(Belk). Doc. 1-2. She was injured after “she tripped and fell over the
bottom wheeled portion of a mobile clothes hanging rack” that was
“obscured by the densely crowded stationary racks of hanging clothes” in
the women’s apparel section of Belk’s store. Doc. 1-2 1111 5, 7. 1 But
during her deposition, Belk now contends, Carter “clearly stated that she
did not see what she tripped over.” Doc. 28-2 at 1. Hence, it moves for
complete summary judgment, doc. 28, contending that she “can produce

For the purpose of this Order only, the Court is accepting her factual assertions as
true.
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no evidence to support her claims against Belk such that a reasonable
jury would find in her favor.” Doc. 28-2 at 4. 2
That motion is before the district judge. Before the undersigned is
Belk’s Fed. R. Civ. P. 35 motion to compel Carter to submit to an
Independent Medical Examination (“IME”) for her damages claims. Doc.
33. Carter opposes on undue expense grounds and proposes a more local
IME physician. Doc. 42. Belk’s summary judgment motion is fairly well
supported and, if granted, its IME motion will be moot and both parties
will be spared substantial expense. The Court DENIES Belk’s motion to
compel (doc. 33) without prejudice to its right to renew that motion
should it not prevail on its summary judgment motion. The Court will
grant any needed discovery extension to that end.

SO ORDERED, this 25th day of August, 2014.

UNITED SlATES MAGISTRATE JUDGE
SOUTFLLRT DISTRICT OF GEORGIA

Put another way, Belk “did not breach any duty owed to Plaintiff, and therefore,
she cannot recover from it. [Carter] is unable to identify the hazard which caused
her to fall, and consequently, is unable to establish the existence of a dangerous
condition, which is necessary in order to bring a claim under the theory of premises
liability.” Doc. 41 at 1.

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