Carter v. Belk, Inc. et al
Filing
50
ORDER denying 28 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 3/31/15. (bcw)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOAN CARTER,
Plaintiff,
CASE NO. CV414-053'!
km
BELK, INC., d/b/a Belk of
Savannah, Acting through its
Agents and Employees,
Defendant.
ORDER
Before the Court is Defendant's Motion for Summary
Judgment. (Doc. 28.) Plaintiff has filed a response in
opposition (Doc. 39), to which Defendant has filed a reply
(Doc. 41) . For the following reasons, Defendant's motion is
DENIED. This case will proceed to trial.
BACKGROUND
On or about May 14, 2012, Plaintiff was shopping in
the women's apparel section of Defendant's department store
in Savannah, Georgia.' (Doc. 39, Attach. 1 at 1.) After
perusing the store's offerings, Plaintiff eventually
selected two items she wanted to try on. (Id. at 2.) After
removing the items from a rack, Plaintiff turned to move
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For the purposes of ruling on Defendant's motion for
summary judgment, the Court construes the facts in the
light most favorable to Plaintiff. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 577-78
(1986)
toward the dressing rooms. (Id.) When turning, however,
Plaintiff tripped over the leg of a mobile clothes rack
that had been left in the aisle. (Id.) The mobile clothes
rack, known as a z-rack, has a broad-bottom structure with
an extended wheel base. (Id. at 3.) As a result of her
fall, Plaintiff suffered a dislocated shoulder along with
various other injuries. (Id.)
On February 6, 2014, Plaintiff filed a negligence
action against Defendant in the state court of Chatham
County, Georgia. (Doc. 1 at 8.) On March 17, 2014,
Defendant removed the case to this Court pursuant to 28
U.S.C. § 1446. (Doc. 1.) Defendant subsequently filed this
Motion for Summary Judgment. (Doc. 28.) In its motion,
Defendant argues that Plaintiff has not presented
sufficient evidence to show the existence of a hazard and,
even if a hazard did exist, it was within Plaintiff's plain
view such that she should reasonably have avoided it.
ANALYSIS
I.
STANDARD OF REVIEW
According to Federal Rule of Civil Procedure 56(a),
"[a] party may move for summary judgment, identifying each
claim or defense—or the part of each claim or defense—on
which summary judgment is sought." Such a motion must be
granted "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Id. The "purpose of
summary judgment is to 'pierce the pleadings and to assess
the proof in order to see whether there is a genuine need
for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56
advisory committee notes)
Summary judgment is appropriate when the nonmovant
"fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
The substantive law governing the action determines whether
an element is essential. DeLonq Equip. Co. v. Wash. Mills
Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).
As the Supreme Court explained:
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district 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.
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Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 587-88.
However, the nonmoving party "must do more than simply show
that there is some metaphysical doubt as to the material
facts." Id. at 586. A mere "scintilla" of evidence, or
simply conclusory allegations, will not suffice. See, e.g.,
Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir.
1998) . Nevertheless, where a reasonable fact finder may
"draw more than one inference from the facts, and that
inference creates a genuine issue of material fact, then
the Court should refuse to grant summary judgment."
Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989)
With regard to premises liability issues, the supreme Court
of Georgia has cautioned that "the 'routine' issues of
premises liability, i.e., the negligence of the defendant
and the plaintiff, and the plaintiff's lack of ordinary
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care for personal safety are generally not susceptible of
summary adjudication, and that summary judgment is granted
only when the evidence is plain, palpable, and undisputed."
Robinson v. Kroqer Co., 268 Ga. 735, 748, 493 S.E.2d 403,
414 (1997)
II. EXISTENCE OF A HAZARD
"The threshold point of inquiry in a slip and fall
case is the existence of a hazardous condition on the
premises." Flagstar Enters., Inc. v. Burch, 267 Ga. App.
856, 856, 600 S.E.2d 834, 835 (2004) . In addition, mere
evidence of a fall is insufficient to substantiate a claim
against a defendant. Sunlink Health Sys., Inc.
V.
Pettigrew, 286 Ga. App. 339, 341, 649 S.E.2d 532, 534
(2007) . A case will be dismissed for lack of causation
where Plaintiff relies on pure speculation or conjecture.
El Ranchero Mexican Rest., No. 10, Inc. v. Hiner, 316 Ga.
App. 115, 117, 728 S.E.2d 761, 763 (2012) (quoting Pinckney
v. Covington Athletic Club & Fitness Ctr., 288 Ga. App.
891, 893, 655 S.E.2d 650, 653 (2007)) . However, the law
does not impose a high burden on a plaintiff to show
causation at this stage. See J.H. Harvey Co. v. Reddick,
240 Ga. App. 466, 468, 522 S.E.2d 749, 752 (1999) (denying
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summary judgment despite Plaintiff admitting she did not
know what caused her to fall because there was spilled
produce nearby)
Defendant argues that because Plaintiff cannot
conclusively identify what she tripped over, there should
be no cause of action. (Doc. 28, Attach. 2 at 6.)
Specifically, Defendant points out that Plaintiff testified
that she did not see the hazard upon which she tripped
either before or after her fall. (Id.) Rather, Plaintiff
testified only that she tripped over "a rack." (Id.)
Accordingly, Defendant insists Plaintiff's claim must fail
because she is unable to prove that she tripped over the zrack as opposed to one of the store's stationary racks.
(Id. at 7.)
The Court finds Defendant's argument unpersuasive.
Here, Plaintiff testified that she felt a piece of iron hit
her foot that caused her to trip. (Id. at 2.) In addition,
a surveillance video of the incident clearly shows the zrack being knocked off to the side as Plaintiff falls. As a
result, the Court finds this evidence amounts to more than
mere speculation that the z-rack caused Plaintiff's fall.
Accordingly, viewing the evidence in the light most
M
.
favorable to Plaintiff, the Court finds summary judgment
inappropriate as to this issue.
III. KNOWLEDGE OF THE PARTIES AND ORDINARY CARE
Under Georgia law, a premises owner owes a duty of
reasonable care to its invitees, and can be held liable for
its failure to exercise ordinary care in keeping the
premises safe. Am. Multi-Cinema, Inc. v. Brown, 285 Ga.
442, 444, 679 S.E.2d 25, 27 (2009) . However, a premises
owner is not liable for all injuries that occur on its
property. See Gibson v. Consol. Credit Corp., 110 Ga. App.
170, 173, 128 S.E.2d 77, 79 (1964). To recover in a
traditional trip and fall action such as this, Plaintiff
must show that (1) Defendant had actual or constructive
knowledge of the hazard and (2) Plaintiff lacked knowledge
of the hazard despite the exercise of ordinary care due to
actions or conditions within Defendant's control. Robinson,
268 Ga. at 748, 493 S.E.2d at 414.
Here, Defendant does not dispute that it had actual
knowledge of the existence of the z-rack. Indeed, Defendant
admits that its employee moved the z-rack into the aisle
prior to Plaintiff's fall. (Doc. 28, Attach. 2 at 9.)
Accordingly, the Court need only consider whether Plaintiff
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lacked knowledge of the hazard despite exercising
reasonable and ordinary care.
Defendant argues that Plaintiff's claims must fail
because the z-rack was an obvious peril in Plaintiff's
plain view. (Id. at 7-8.) The plain view doctrine states
that "one is under a duty to look where he is walking and
to see large objects in plain view which are at a location
where they are customarily placed and expected to be."
Stenhouse v. Winn Dixie Stores, Inc., 147 Ga. App. 473,
474, 249 S.E.2d 276, 277-78 (1978); see also Emory Univ. v.
Duncan, 182 Ga. App. 326, 328, 355 S.E.2d 446, 448 (1987)
("It was incumbent upon [plaintiff], as a matter of law, to
use her eyesight for the purpose of discovering any
discernible obstruction or defect in her path.") . However,
"[t]his 'plain view' doctrine must be considered in
conjunction with the duty of the merchant to keep his
premises in a safe condition." Sears, Roebuck & Co. v.
Chandler, 152 Ga. App. 427, 429, 263 S.E.2d 171, 174
(1979) . The Plaintiff "is not bound to avoid tripping or
stumbling over articles which are not usually obstructing
aisles of a store, and which in the exercise of ordinary
care [she] did not observe." Id. at 428, 263 S.E.2d at 173.
Here, the z-rack was not in Plaintiff's direct lineof-sight. Rather, the z-rack was positioned behind and to
the right of Plaintiff up until the moment she turned to
walk toward the dressing room. (Doc. 39, Attach. 1 at 3.)
Accordingly, the Court finds a jury could reasonably
conclude that the z-rack was not in Plaintiff's "plain
view" such that she should have avoided it through the
exercise of reasonable care. See Adams
V.
Sears,
Roebuck & Co., 227 Ga. App. 695, 711, 490 S.E.2d 150, 162
(1997) (holding obstacle not in plain view where plaintiff
turned around and tripped on clothes hanger)
Defendant also argues that merchants customarily place
merchandise in aisles while restocking shelves and the zrack was so obvious a peril that Plaintiff had a duty to
avoid it. (Doc. 28, Attach. 2 at 8.) While courts have
acknowledged that goods are ordinarily left in aisles at
times, "[t]he merchant must so place these articles so as
not to threaten danger to those using the aisle and so that
they are in full sight and within the observation of
everyone." Riggs v. Great Atl. & Pac. Tea Co., 205 Ga. App.
608, 610, 423 S.E.2d 8, 10 (1992) . Here, the z-rack was not
placed in a main aisle, but rather tucked in a narrow
corridor among similar-looking clothing racks. In addition,
the surveillance video shows that the z-rack was left
untouched up until the moment of Plaintiff's fall in what
may potentially be a violation of Defendant's store safety
procedures. (Doc. 39, Attach. 1 at 3.) As a result, the
Court finds that there exists at least a jury question as
to whether the z-rack constituted an obvious peril.
In addition, even if the z-rack was an obvious peril,
Plaintiff points out that the store exhibited a number of
colorful and eye-catching displays that could have
distracted Plaintiff. (Id. at 7-9.) Indeed, the
surveillance video shows Plaintiff moving around the
department, pulling clothes off of racks, and checking
price tags. As a result, the Court concludes a reasonable
jury could excuse Plaintiff's failure to observe the z-rack
as she was reasonably distracted by Defendant's displays.
Finally, while the video shows Plaintiff looking in
the general direction of the z-rack roughly twenty minutes
before she tripped over it, the Court cannot conclude as a
matter of law that she saw it. Plaintiff testified that she
did not see the z-rack at any point. (Id. at 5.) Even if
Plaintiff did see the z-rack being moved, it does not
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follow that she was aware of the its broad wheel base and
the leg upon which she tripped. Rather, the surveillance
video suggests that the z-rack's legs would have been
obscured from Plaintiff's vantage point when it was first
moved into the aisle. As a result, the Court finds there is
at least a genuine issue of material fact as to whether
Plaintiff was acting with reasonable care when she tripped
over the z-rack. Accordingly, Defendant's Motion for
Summary Judgment must be denied.
CONCLUSION
For the foregoing reasons, Defendant's Motion for
Summary Judgment (Doc. 28) is
DENIED.
This case will
proceed to trial.
SO ORDERED this
3/- day of March 2015.
MOORE, J
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
WILLI~iM T. -
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