Powell v. Variety Wholesalers Inc et al
Filing
72
ORDER granting in part and denying in part 40 Motion for Summary Judgment; granting in part and denying in part 46 Motion in Limine; granting 47 Motion for Leave to File. The court grants Defendant's Motion in Limine to exclude Mr. Lodge's testimony but denies without prejudice the motion to exclude Ms. Mock's testimony. Signed by Chief Judge J. Randal Hall on 07/09/2018. (maa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JANICE POWELL,
*
*
Plaintiff,
*
*
V.
*
CV 617-58
*
VARIETY WHOLESALERS, INC.;
JOHN DOE NO. 1; JOHN DOE NO. 2;
*
*
JOHN DOE NO. 3; and JOHN DOE NO. *
4,
*
*
Defendants.
*
ORDER
Before the Court are Defendant Variety Wholesalers, Inc.'s
Motions for Summary Judgment and in Limine.
(Doc. 40, 46.)
The
Clerk has given Plaintiff notice of the summary judgment motion
and the summary judgment rules, of the right to file affidavits
or
other
default.
materials
(Doc.
in
41.)
opposition,
Therefore,
and
the
the
notice
consequences
of
requirements of
Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per
curiam),
have
been
satisfied.
The
motions
have
been fully
briefed and are ripe for decision.
I.
On
March
18,
2015,
BACKGROUND
Plaintiff
granddaughter, Madison Powell,
Janice
Powell
and
her
went to Defendant's department
store to shop for clothes.
(M. Powell Dep., Doc. 40-3, at 7.)
After trying on some clothing. Plaintiff and her granddaughter
exited
the
changing
room
and
walked
several
steps
until
Plaintiff slipped and fell on a coat hanger that was lying in
the middle of the aisle.
(I^ at 15.)
Plaintiff was helped to
her feet by her granddaughter and, after briefly speaking with
one of Defendant's employees about the accident. Plaintiff and
her granddaughter left the store.
The
employee
Plaintiff
(Id. at 21-23.)
spoke
(Williams Dep., Doc. 58, at 20.)
with
was
Amanda
Williams.
Although Ms. Williams denies
witnessing the accident, she does claim that she had inspected
the aisle where Plaintiff fell ten minutes before and did not
see a coat hanger.
Williams
provided
(Id. at 37.)
inconsistent
whereabouts before the accident.
Yet during her deposition, Ms.
testimony
regarding
Initially, Ms. Williams said
that she had no contact with Plaintiff before the fall.
30.)
she
her
(Id. at
Later in her deposition, however, Ms. Williams stated that
unlocked
the
changing
room
door
for
Plaintiff
and
her
granddaughter right before inspecting the aisle where Plaintiff
fell.
(Id. at 35-37.)
Plaintiff and her granddaughter deny
that they had any contact with Ms. Williams before the accident
and insist that they let themselves into the changing room.
Powell Dep., Doc. 40-2, at 112; M. Powell Dep. at 13, 18.)
(J.
On March 16, 2017, Plaintiff initiated this action against
Defendant in the State Court of Screven County, Georgia.
1-2, at 22.)
(Doc.
Plaintiff claims that Defendant was negligent for
failing to properly maintain its store and for using clear coat
hangers, which allegedly created a tripping hazard.
Defendant
removed this case on April 26, 2017, and now moves to exclude
the testimony of two of Plaintiff's expert witnesses and for
summary judgment on Plaintiff's claims.
II.
DEFENDANT'S MOTION IN LIMINE
Defendant moves to exclude the testimony of Thomas Lodge
and Melinda Mock, R.N.^
The proponent of expert testimony bears
the burden of demonstrating that the testimony complies with
Federal Rule of Evidence 702.
1260 (11th Cir. 2004).
U.S. v. Frazier, 387 F.3d 1244,
The Eleventh Circuit has identified a
three-part inquiry, considering whether;
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the
methodology
by
which
the
expert
reaches
his
conclusions
is
sufficiently
reliable
as
to
be
^ Plaintiff objects to the Court considering Defendant's Daubert motion, which
was filed one day after the deadline for filing such motions. (See Docs. 8,
34.)
Defendant's counsel filed a motion for leave and explained that his
untimeliness was due to the fact that he could not find the password to e-
file Defendant's motion.
Though counsel's mistake was careless, Plaintiff
does not claim that she suffered any prejudice or that Defendant's motion
would harm the Court's interest in efficient judicial administration.
See
Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996)
(finding that the "absence of prejudice to the nonmoving party" and "the
interest of efficient judicial administration" are to be accorded "primary
importance" when determining excusable neglect).
Thus, Defendant's motion
for leave (doc. 47) is GRANTED.
determined by the sort of inquiry mandated in Daubert;
and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or
specialized expertise, to understand the evidence or
to determine a fact in issue.
Id.
"While there is inevitably some overlap among the basic
requirements—qualification,
reliability,
and
helpfulness—they
remain distinct concepts and the courts must take care not to
conflate
them."
Id.
"Thus,
for
example,
while
an
expert's
overwhelming qualifications may bear on the reliability of his
proffered
testimony,
reliability."
they
are
by
no
means
a
guarantor
of
Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK, Ltd.,
326 F.3d 1333, 1341 (11th Cir. 2003).
A. Thomas Lodge
Mr. Lodge
will testify that using a clear hanger on a
light-colored floor causes the hanger to be more inconspicuous
and therefore hazardous and that Defendant's inspection policy
was unreasonable.
I. Clear Hangers
Plaintiff has not met the burden of demonstrating that Mr.
Lodge's opinions regarding clear hangers are the product of a
reliable methodology.
Mr. Lodge's opinion is entirely based on
one line from the National Safety Council's (the "NSC") Data
Sheet 1-495, Falls on Floors, which provides "[c]onsider using
colored hangers that contrast with the floor color for easy
identification."
(See Lodge Report, Doc. 13, at 5.)
Yet Mr.
Lodge provides no information about the NSC nor does he state
whether
the
industry.
NSC's
guideline
has
been
adopted
by
Defendant's
Mr. Lodge also fails to explain the methods or data
the NSC used when it recommended using colored hangers.
Without
such
Lodge's
information,
the
Court
testimony is reliable.
cannot
verify
that
Mr.
See Seamon v. Remington Airms Co., 813
F.3d 983, 988 (11th Cir. 2016) ("In assessing reliability, the
court must focus ^solely on principles and methodology, not on
the conclusions that they generate.'" (quoting Daubert, 509 U.S.
at 591)).
Failing to describe the methods utilized by the NSC also
undermines the helpfulness of Mr. Lodge's opinions.
Without
knowing why the NSC recommends using colored hangers, it is
impossible
to
determine
whether
Mr.
Lodge's
testimony
is
anything more than a common-sense conclusion that the jury is
equally qualified to make.
See U.S. v. Christian, 673 F.3d 702,
710 (7th Cir. 2012) (excluding expert opinions where they can be
derived from common sense).
Even if Mr. Lodge had included information about the NSC
and
its
methods,
the
language
of
Data
Sheet
1-495
does
not
create a duty that could support a premises liability claim.
The
guideline
hangers
that
tells its audience
contrast
with
to
the
consider using
floor
color
colored
for
identification." (See Lodge Report at 5 (emphasis added).)
easy
Such
precatory language does not impose a duty on Defendant to color
coordinate
its
hangers
and
floors.
See
Petre
v.
Norfolk
Southern Ry. Co., 458 F. Supp. 2d 518, 533 {N.D. Ohio 2006)
(finding that the precatory language of a company's policy did
not give rise to a duty to follow that policy).
2. Defendant's Safety Policy
Mr. Lodge's opinions regarding Defendant's safety policy
are also inadmissible.
relates
that
In his expert witness report, Mr. Lodge
Defendant's
inspection
policy
employees to inspect the store every two hours.
required
its
(Lodge Report
at 9 ("The store must be inspected at 9 AM, 11 AM, 1 PM, 3 PM, 5
PM, 7 PM, and at closing.").)
Mr. Lodge concludes that "[h]ad
[Defendant's employees] performed [their] routine inspection at
3:00 [p.m.], the hanger on the floor should have been identified
by the employee performing inspections and been removed as a
slipping
hazard."
(Id.)
This conclusion is based on
the
assumption that the hanger Plaintiff tripped over was on the
floor of the aisle at 3:00 p.m.
When Defendant's counsel asked
Mr. Lodge about this assumption, he admitted that it was pure
speculation.
(Lodge Dep., Doc. 46-7, at 83, 85-86.)
Rule 702
requires expert opinions to be supported by more than subjective
belief or unsupported assumptions.
Daubert, 509 U.S. at 590.
Thus, because Mr. Lodge has no reason to believe the hanger was
on the floor at 3:00 p.m., his conclusion that Defendant did not
conduct
an
inspection
or
that
the
inspection
conducted
was
unreasonable is unfounded.
Because
Mr.
Lodge's
opinions regarding
the
use
of
clear
hangers and Defendant's safety policy are unhelpful and based on
unreliable methods, Plaintiff will not be allowed to rely on Mr.
Lodge's testimony at trial.
Accordingly, Defendant's motion to
exclude Mr. Lodge's testimony is GRANTED.
B.
Melinda Mock
Defendant also moves to exclude the testimony of Ms. Mock.
Ms. Mock
will testify about the reasonable and customary fee
charged for the medical procedures that Plaintiff needed because
of her injury.
Defendant claims that because Ms. Mock is not
qualified to identify which medical procedures were necessitated
by Plaintiff's accident and which were the result of a pre
existing injury, her testimony is inadmissible.
Ms. Mock has thirty-five years of experience in medical
billing.
{Mock Report, Doc. 14, at 2.)
While she is not
competent to testify about causation, Ms. Mock is qualified to
discuss the reasonable and customary fee charged by Plaintiff's
providers.
Accordingly, so long as another qualified expert has
attributed a certain procedure to Plaintiff's fall, Ms. Mock can
testify about the amount charged for that procedure.
See Fed. R.
Evid. 104(b) (allowing courts to admit evidence the relevance of
which will be decided later).
Nevertheless,
given
that
Plaintiff's
providers
will
presumably reveal the amount they charged for their services,
Ms. Mock's testimony could be duplicative.
See Tran v. Toyota
Motor Corp., 420 F.3d 1310, 1315-16 (11th Cir. 2005) (finding
that
court
did
not
abuse
its
discretion
when
it
excluded
the
testimony of a second expert, where the first expert testified
on the same topics).
Accordingly, unless the amount charged by
Plaintiff's providers is challenged by Defendant,
testimony
will
be
presently
determine
inadmissible.
whether
Because
Defendant
the
intends
Ms. Mock's
Court
to
cannot
make
this
challenge, excluding Ms. Mock's testimony would be premature.
Accordingly, Defendant's motion is DENIED without prejudice.
III.
A.
DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Legal Standard
A motion for summary judgment will be granted if there is
no disputed material fact and the movant is entitled to judgment
as a matter of law.
Fed. R. Civ. P. 56(a).
they could affect the results of the case.
Lobby, Inc., 477 U.S. 242, 248 (1986).
Facts are material if
Anderson v. Liberty
The court must view
facts in the light most favorable to the non-moving party and
draw all inferences in its favor.
Matsushita Elec. Indus. Co.,
Ltd.
V.
Zenith
Radio
Corp., 475
U.S.
574,
587
(1986).
The
movant initially bears the burden of proof and must demonstrate
the
absence
of
a
disputed
material
Catrett, 477 U.S. 317, 323 (1986).
fact.
Celotex
Corp.
v.
The movant must also show no
reasonable jury could find for the non-moving party on any of
the essential elements.
Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).
If the movant carries its burden, the non-moving party must
come forward with significant, probative evidence showing there
is a material fact in dispute.
Id. at 1116.
The non-movant
must respond with affidavits or other forms of evidence provided
by Federal Rule of Civil Procedure 56.
Id. at 1116 n.3.
The
non-movant cannot survive summary judgment by relying on its
pleadings or conclusory statements.
1032, 1033-34 (11th Cir. 1981).
Morris v. Ross, 663 F.2d
After the non-movant has met
this burden, summary judgment is granted only if "the combined
body of evidence is still such that the movant would be entitled
to
a
directed
verdict
at
trial
-
that
is,
reasonable jury could find for the non-movant."
F.3d at 1116.
such
that
no
Fitzpatrick, 2
B.
Premises Liability
Plaintiff claims that Defendant breached its duty to keep
its premises safe by using clear hangers and failing to adopt a
reasonable inspection policy.
I.
Defendant's Liability for Using Clear Hangers
Under Georgia law, a landowner who invites people onto its
property owes a duty of ordinary care to keep those premises
safe.
O.C.G.A. § 51-3-1; Begin v. Ga. Championship Wrestling,
Inc., 322 S.E.2d 737, 739 (Ga. Ct. App. 1984) ("An occupier of
premises is under a duty to inspect the premises to discover
possible dangerous conditions of which he does not know and to
take reasonable precautions to protect the invitee from dangers
which
are
foreseeable
premises.").
plaintiff
hazardous.
To
must
from
prevail
first
the
on
a
show
arrangement
premises
that
the
and
use
liability
premises
of
claim,
are
the
a
indeed
Cohen v. Target Corp., 567 S.E.2d 733, 735 (Ga. Ct.
App. 2002) (rejecting a claim where the plaintiff "proffered no
expert affidavit about the construction or maintenance of the
incline
or
ordinances,
any evidence
or
that
standards
defendants
pertaining
Furthermore, "[m]erely stating
that a
violated
to
the
condition
does not constitute evidence that it is so."
structure.").
is
dangerous
Ford v. Bank of
Am. Corp., 627 S.E.2d 376, 378 (Ga. Ct. App. 2006).
10
any rules,
Here, the
only evidence Plaintiff offers to show that clear hangers are
hazardous is Mr. Lodge's testimony.
Given that the Court has
decided that his testimony is inadmissible, Plaintiff has failed
to establish that clear hangers are dangerous.
2.
Defendant's
Failure
to
Maintain
its
Store
in
a
Reasonably Safe Condition^
Plaintiff also claims that Defendant is liable for failing
to remove the hanger that caused Plaintiff's fall.
In a "trip
and fall" case, the plaintiff must present evidence that: (1)
the owner had actual or constructive knowledge of the hazard,
and (2) the plaintiff lacked such knowledge, despite exercising
reasonable care.
McLemore v. Genuine Parts Co., 722 S.E.2d 366,
368 (Ga. Ct. App. 2012) (quoting Prikle v. Robinson Crossing,
LLC, 612 S.E.2d 83, 84 (Ga. Ct. App. 2005)).
A plaintiff is
only required to satisfy the second element when the defendant
has come forward with evidence of the plaintiff's negligence.
Id. at 368.
Because Defendant has not come forward with such
evidence, only the first element is in dispute.
Plaintiff claims that Defendant had constructive knowledge
of the hanger that caused Plaintiff's fall.
Under Georgia law,
constructive knowledge can be proven by demonstrating that the
owner lacked a reasonable inspection policy.
Landrum v. Enmark
Stations, Inc., 712 S.E.2d 585, 588 (Ga. Ct. App. 2011).
In
^ Defendant concedes that the presence of a hanger in the middle of an aisle
is a hazardous condition.
(Doc. 46, at 14.)
11
order for an owner to prevail on summary judgment based on lack
of
constructive
^^demonstrate
knowledge,
not
only
the
that
it
burden
is
had
reasonable
a
on
the
owner
to
inspection
program in place, but that such program was actually carried out
at the time of the incident."
Shepard v. Winn Dixie Stores, 527
S.E.2d 36, 39 {Ga. Ct. App. 1999).
Defendant
constructive
first
argues
knowledge
that
because
Plaintiff
Amanda
cannot
Williams,
prove
Defendant's
employee, inspected the aisle where Plaintiff fell ten minutes
before
her
fall.
When
"a
proprietor
has
shown
that
an
inspection occurred within a brief period prior to an invitee's
fall, [Georgia courts] have held that the inspection procedure
[is] adequate as a matter of law."^
S.E.2d
386,
testified
388
(Ga.
that she
Ct.
App.
inspected
Medders v. Kroger, 572
2002).
the
aisle
Here,
where
Ms.
Williams,
Plaintiff
fell
after unlocking the dressing room door for Plaintiff and her
granddaughter.
(Williams Dep. at 35-36.)
Yet Ms. Williams
testified earlier in her deposition that she had no contact with
Plaintiff before the fall, which was corroborated by Plaintiff
and her granddaughter.
(Williams Dep. at 30; J. Powell Dep. at
112;
at
^
M.
Powell
Dep.
13.)
Ms.
Williams'
inconsistent
A "brief period" can mean anything up to fifteen minutes before the
accident.
See Roberson v. Winn-Dixie Atlanta, 544 S.E.2d 494, 495-96 (Ga.
Ct. App. 2001) (store was not liable when evidence showed that an employee
inspected the floor and saw no obstruction fifteen minutes prior to the
customer's fall); Bolton v. Wal-Mart Stores, Inc., 570 S.E.2d 644, 645 (Ga.
Ct. App. 2002) (ten to fifteen minutes).
12
testimony
about
her
regarding
whether
Plaintiff's fall.
inspection
to
whereabouts
she
creates
conducted
an
a
question
inspection
of
shortly
fact
before
Thus, Defendant cannot rely on Ms. Williams'
demonstrate
adequate as a matter of law.
that
its
maintenance
policy
is
Cf. Markham v. Schuster's Enters.,
Inc., 601 S.E.2d 712, 714 (Ga. Ct. App. 2004)
{finding that
summary
manager
judgment
was
appropriate
when
the
gave
"uncontradicted testimony" that he inspected area shortly before
the plaintiff's fall).
Even
without Ms.
Williams' inspection. Defendant insists
that its inspection policy is adequate as a matter of law.
Defendant
points
out
that
its
employees
were
directed
to
"[c]ollect unused hangers that have fallen on the floors" and to
perform
^ 3.)
safety sweeps."
(Doc. 69-1; Williams Aff., Doc. 40-4,
Nevertheless, whether an inspection policy is reasonable
is often a question that cannot be answered through summary
judgment.
798
S.E.2d
See, e.g., Johnson v. All Am. Quality Foods, Inc.,
274,
277
(Ga.
Ct.
App.
2017)
(reversing
summary
judgment despite evidence of an inspection procedure that was
conducted on the day of the accident); Shepard, 527 S.E.2d at 39
("The length of time the substance must remain on the floor
before the owner should have discovered it and what constitutes
a reasonable inspection procedure vary with each case, depending
on the nature of the business, the size of the store, the number
13
of customers,
the nature of
store's location.") -
the dangerous condition, and the
Moreover, as previously mentioned, whether
Defendant's employees followed the inspection policy at the time
of Plaintiff's injury is a disputed question of fact.
Because a
jury could find that Defendant's inspection policy is inadequate
or was not carried out at the time of the accident. Plaintiff
has presented evidence of Defendant's constructive knowledge.
B.
Negligent Hiring
Plaintiff also alleges that Defendant is liable for failing
to properly train its employees to keep its floors free from
debris.
Under Georgia law, however, "subjecting a defendant to
vicarious
liability
through
respondeat
superior
precludes
a
redundant claim of negligent hiring or retention against the
same
defendant."
Bramlett v. Bajric,
2012 WL 4951213,
at *5
(N.D. Ga. Oct. 17, 2012) (citing Bartja v. Nat'1 Union Fire Ins.
Co. of Pittsburgh, 463 S.E.2d 358, 360-61 (Ga. Ct. App. 1996)).
"In
cases
alleging
both
respondeat
superior
and
negligent
entrustment against an employer for the acts of its driver where
no punitive damages are sought, [the Georgia Court of Appeals
has] stated that a defendant employer's admission of liability
under respondeat superior establishes the liability link from
the negligence of the driver . . . rendering proof of negligent
entrustment unnecessary and irrelevant."
14
Bartja, 463 S.E.2d at
361.
"This
rule
arises
from
the
countervailing
problems
inherent in protecting the employee from prejudicial evidence of
his prior driving record and general character for recklessness
in driving while admitting the proof necessary for the negligent
entrustment
case
to
proceed."
Id.
In
the
instant
case,
Defendant concedes that it will be held liable if Ms. Williams
is
found
to
be
negligent.
(Doc.
68
at
15.)
Given
that
Plaintiff does not seek punitive damages, her negligent hiring,
supervision, training, and entrustment claims would be redundant
and are therefore precluded as a matter of law.
IV.
Plaintiff
has
not
CONCLUSION
demonstrated
hangers is inherently dangerous.
that
the
use
Nevertheless,
of
clear
because
the
Court cannot find that Ms. Williams inspected the aisle where
Plaintiff fell shortly before her fall, there Is evidence in the
record that Defendant had constructive knowledge of the hanger
that caused Plaintiff's fall.^
Accordingly, Defendant's Motion
for Summary Judgment (doc. 40) is GRANTED IN PART AND DENIED IN
^
To the extent that Defendant's motion for summary judgment relies on
Plaintiff's failure to cite evidence in her response to Defendant's Statement
of Material Facts Not in Dispute (doc. 40-5), Defendant's motion is DENIED.
While Local Rule 56.1 requires the movant to file a separate statement of
material facts, the respondent is only required to file a statement that
controverts those facts.
See S.D. Ga. L.R. 56.1.
Plaintiff has satisfied
this burden by citing evidence in her brief in opposition to Defendant's
motion for summary judgment. (See Doc. 62; see also Bank of the Ozarks v.
Kinqsland Hospitality, LLC, 2012 WL 5928642, at **4-5 (S.D. Ga. Oct. 5, 2012)
(finding that a responsive brief satisfied the respondent's requirements
under Local Rule 56.1).)
15
PART.
Further, as explained above, Defendant's Motion in Limine
(doc. 46) is GRANTED IN PART AND DENIED IN PART.
This case will
proceed to trial on Plaintiff's negligent inspection claim in
due course
I ORDER ENTERED
at Augusta, Georgia this
day
of
J—UVA^. 2018.
//
J. RANDijp HALL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHBi^ DISTRICT OF GEORGIA
16
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?