Peeples et al v. Custom Pine Straw, Inc. et al

Filing 26

ORDER granting 13 Motion for Summary Judgment. The Clerk of Court is directed to close the case. Signed by Judge William T. Moore, Jr on 3/29/16. (wwp)

IN THE UNITED STATES DISTRICT b(JT JEØR
9:03
THE SOUTHERN DISTRICT OF iffpm
SAVANNAH DIVISIO
,

RAYMOND T. PEEPLES and MARTHA

UF GA.

PEEPLES,

Plaintiffs,
CASE NO. CV415-039

V.

CUSTOM PINE STRAW, INC. and

WESTFIELD INSURANCE COMPANY,
Defendants.

ORDER
Before the Court is Defendants' Motion for Summary
Judgment. (Doc. 13.) For the following reasons, Defendants'
motion is GRANTED.

The Clerk of Court is DIRECTED to close

this case.
BACKGROUND
This case involves' an injury Plaintiff 2 Raymond T.
Peeples suffered while working at a Lowe's Home Improvement
store. On June 15, 2012, Defendant Custom Pine Straw
('CPS") delivered a load of pine straw to the Lowe's store
For the purposes of ruling on Defendants' Motion for
Summary Judgment, the Court construes the facts in the
light most favorable to Plaintiffs. See Matsushita Elec.
Indus. Co. v. Zenith Radio Cop, 475 U.S. 574, 577-78
(1986)
2
Because Plaintiff Martha Peeples's loss of consortium
claim is entirely derivative, the Court will refer to
Plaintiff Raymond Peeples as Plaintiff.

in Peeler, Georgia. (Doc. 17 at 1-2.) Defendant CPS loaded
the pine straw on a trailer and transported it 215 miles
from Branford, Florida. (Id. at 1-2, 9.) Defendant CPS left
the trailer in the

Lowers parking lot, adjacent to the

store's garden center, where the pine straw was available
for purchase. (Id. at 2.)
On June 28, 2012, Plaintiff was assisting a customer
with the selection of grass sod. (Id.) Lowe's stored the
sod underneath Defendant CPS's trailer to protect the sod
from the extreme summer heat. (Id. at 2-3.) Plaintiff was
kneeling beneath the trailer when its front, outer tire
exploded. (Id. at 3.) Defendant was around five feet from
the tire at the time of the explosion. (Id.) The violent
nature of the explosion caused Defendant to strike his head
on the underside of the trailer, and suffer hearing loss
and tinnitus. 3
Based on the explosion, Plaintiff filed a complaint in
the State Court of Chatham County. (Doc. 1, Ex. A.)
Tinnitus is "a sensation of noise (as a ringing or
roaring) that is caused by a bodily condition (as a
disturbance of the auditory nerve or wax in the ear) and
typically is of the subjective form which can only be heard
by the one affected." Merriam,-Webster,
http://www.merriam-webster.com/medical/tinnitus
(last
visited Mar. 25, 2016)
4

Defendants invoked this Court's diversity jurisdiction and
timely removed the complaint to this Court pursuant to

28

U.S.C. § 1332. (Doc. 1.) In his complaint, Plaintiff
alleges that his injuries—permanent hearing loss and
tinnitus—were caused by Defendant CPS's negligence. (Doc.
1, Ex. A 91 30-33.) Also, Plaintiff brings a "Direct Action"
for insurance coverage against Defendant CPS's insurer—
Defendant Westfield Insurance Company ("Westfield"). (Id.
¶91 38-41.)
In their Motion for Summary Judgment, Defendants argue
that Plaintiff has failed to present any evidence that
Defendant CPS breached any duty owed to Plaintiff. (Doc.
13, Attach. 1 at 7.) Specifically, Defendants maintain that
there is no evidence in the record as to the cause of the
tire explosion. (Id. at 5-7.) In response, Plaintiff
generally asserts that there was no evidence to suggest
that the explosion was caused by anything other than
incorrect tire maintenance by Defendant combined with the
heat of the asphalt in the Lowe's parking lot. (Doc. 18 at
5-7.)

3

ANALYSIS
I.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered if the pleadings,

depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). 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)

(citing 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. DeLong Equip. Co. v. Wash. Mills
Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989)
As the Supreme Court explained:

4

[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.
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 material to the
nonrnovant'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, 933-34 (11th Cir. 1989)

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff must satisfy four elements to prove a claim
for negligence: (1) a legal duty to conform to a standard
of conduct; (2) a breach of that duty; (3) an injury; and
(4) some causal connection between the breach and the
injury. Heston v. Lilly, 248 Ga. App. 856, 857-58, 546
S.E.2d 816, 818 (2001) (Quoting Bradley Ctr., Inc. v.
Wessner, 250 Ga. 199, 200, 296 S.E.2d 693, 695 (1982)) . In
this case, there is no evidence that Defendant breached any
duty owed to Plaintiff. The entirety of Plaintiff's
evidence can be summarized as follows: Defendant CPS
delivered the trailer, a tire on the trailer exploded after
sitting in the parking lot for thirteen days, and Plaintiff
believes that the tire explosion could only have been
caused by Defendant CPS's failure to adequately maintain
the tire. However, Plaintiff's mere opinion that there
appeared to be no other cause than an improperly maintained
tire on a hot asphalt parking lot falls woefully short of
establishing that a breach of some duty by Defendant CPS
caused the explosion. No reasonable jury would be entitled

N
.

to rely on such rank speculation to find Defendant CPS
negligent.
Plaintiff's attempted use of the doctrines of res ipsa
loguitur and negligence per se to perform an end-run around
the evidentiary deficiency gains little ground. Even
ignoring the fact that Plaintiff pled neither theory in his
complaint, both are inapplicable to this case. The record
is clear that the trailer was parked in the Lowe's parking
lot, unattended by Defendant CPS, for thirteen days prior
to the accident. (Doc. 18 at 2.) In no way was the trailer
within the exclusive control of Defendant during this time.
See Aderhold v. Lowe's Home Ctrs., Inc., 284 Ga. App. 294,
295, 643 S.E.2d 811, 812-13 (2007) (quoting Kmart Corp. v.
Larsen, 240 Ga. App. 351, 352, 522 S.E.2d 763, 765 (1999))
(requiring exclusive control as element of res ipsa
loquitur doctrine). Plaintiff's negligence per se theory is
equally inapplicable for several reasons, chief among them
the fact that the regulation

upon which Plaintiff relies

Plaintiff's negligence per se theory relies on the
following regulation:
(1) No motor vehicle shall be operated on a tire
which has a cold inflation pressure less
7

was not intended to protect individuals crouched under
trailers from losing their hearing or suffering from
tinnitus. See Groover v. Johnston, 277 Ga. App. 12, 13, 625
S.E.2d 406, 408 (2005) (citing Brown v. Belifante, 252 Ga.
App. 856, 861, 557 S.E.2d 399 (2001)) (noting that
negligence per se applicable only where "person harmed
falls within the class of persons the legislation was
intended to protect and J the harm or injury actually
suffered was the same harm the statute was intended to
guard against")
In this case, Plaintiff's evidentiary shortcomings are
bountiful and Defendant 025 is obviously entitled to
summary judgment. As a result, Plaintiff's claim against
Defendant Westfield necessarily fails, as does Plaintiff
Martha Peeples's claim for loss of consortium. At this

than that specified for the load being
carried.
(2) If the inflation pressure of the tire has
been increased by heat because of the recent
operation of the vehicle, the cold inflation
pressure shall be estimated by subtracting
the inflation buildup factor shown in Table
1 from the measured inflation pressure.
49 C.F.R. § 393.75(h).

stage in the game, it takes evidence to ante in. Having
none, Plaintiff must sit out this hand.
CONCLUSION

For the foregoing reasons, Defendants' Motion for
Summary Judgment (Doc. 13) is GRANTED.

The Clerk of Court

is DIRECTED to close this case.
SO ORDERED this

8ay of March 2016.
F

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA