Rogers v. Walgreens Family of Companies

Filing 32

OPINION and ORDER granting 23 Motion for Summary Judgment. Signed by Honorable Bruce Howe Hendricks on 8/1/17.(alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION

CYNTHIA ROGERS,

)
)
Plaintiff, )
vs.
)
)
WALGREENS FAMILY OF COMPANIES )
)
Defendant. )
_________________________________ )

Civil Action No. 7:15-4293-BHH

Opinion and Order

This matter is before the Court on Defendant Walgreens Family of Companies’
(“Defendant” or “Walgreens”) Motion for Summary Judgment (ECF No. 23). For the
reasons set forth in this Order, Defendant’s Motion is granted.
BACKGROUND
On March 24, 2013, Plaintiff Cynthia Rogers (“Plaintiff”) was walking in a
Walgreens store located in Gaffney, South Carolina and was startled by an employee
dressed as the Easter Bunny. She alleges that, as a result of being startled and falling
back against a shelf, she suffered injuries that ultimately resulted in her need for back
surgery nearly a year and a half later. (ECF No. 1-1 ¶¶ 2 & 4; Rogers Dep., ECF No. 232.) On the day in question, Plaintiff had been shopping at Lowe’s for her son when she
and her then-husband, Joel Rogers, left Lowe’s and went to the Walgreens located in
Gaffney. Plaintiff frequented this Walgreens and shopped there often. While her
husband remained in the car, Plaintiff went inside to buy pistachios. (Rogers Dep. 51:920, ECF No. 23-2.) After finding the pistachios, she went toward the front of the store to
check out. At the front of the store, Walgreens had a display being used for customers

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to take their picture with the Easter Bunny. Misha Foster, the store manager, rented a
bunny costume and Walgreens employee, Derek Grigsby, played the part. Grigsby is
estimated to be approximately 5 feet, 8 inches tall. (Foster Dep. 23:5-14, 24:23-26:12,
ECF No. 23-3.) The marquee sign out front advertised that the photo display would be
in the store that day. (Id. at 51:3-21.)
On this day, it was raining and customer traffic was slow. Foster and Grigsby
were sitting across from each other in front of the photo display chatting as Plaintiff
made her way to the cash register to check out. Plaintiff asserts that as she walked by
the photo display where Foster and Grigsby were sitting, she was startled. Plaintiff
testified that, turning the corner of the aisle towards checkout, “out of the corner of my
eye I saw like fairly close to me like a large animal with some type of movement.”
(Rogers Dep. 53:6-12, ECF No. 23-2.) As a result, she states:
And like in fear, I attempted to try to run, and I twisted my body around like really
violently trying to run like to get away, and my feet felt like they wouldn’t move.
They were like froze with fear is what—I don’t know. Maybe like you would walk
up on a snake or something. My heart was pounding, and I twisted my body
around trying to run. And then I clutched my chest and then I fell backward and
there were some shelves behind me. I fell up against the shelf.
(Id. at 53:12-22.)
Plaintiff couldn’t tell if the person in the rabbit costume was sitting or standing,
just that it was “large.” The employee in the costume didn’t say anything to her. She is
not sure her body struck anything in the store, but claims that she “twisted.” She did not
fall to the ground or come in contact with the person in the bunny costume. After being
“startled,” she left the area of the photo display and walked to the cashier to check out.
She paid for her items and left the store. (Id. at 61:7-25, 63:7-64:24, 65:3-8, 69:3-11.)
When Plaintiff got back to her vehicle, she claims she began to “hurt.” Plaintiff

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had no outward signs of injury, but complained to her husband that she was hurting and
that she had been startled by the rabbit in the store. She testified that when she sat
down, “it felt like 10 or 20 pounds of weight was on my back, and I had like, more like a
crushing feeling all across my buttocks area and then pain shot down into my left leg,
and it felt very heavy.” (Id. at 72:1-14.) Plaintiff’s husband did not witness the incident
and was not present in the store at the time. He went into the store and began
“snapping some pictures” of the Easter Bunny because he felt that Grigsby had scared
his wife on purpose. (Joel Rogers Dep. 34:4-9, 35:1-36:16, 40:1-15, 41:20-23, ECF No.
23-4.)
Store manager Foster testified that the first time she saw Plaintiff was when
Plaintiff was walking down the aisle headed toward the front of the store and the cash
register. Plaintiff walked between Foster and Grigsby as they were talking. Foster saw
Plaintiff react as she walked between the two of them, and Plaintiff grabbed her chest.
Foster heard Plaintiff say, “Oh, you scared me. I didn’t know there was a real person in
there.” Foster did not see Plaintiff twist or fall or strike anything. Foster testified that
Grigsby did not make any sudden movements or say anything to Plaintiff. Grigsby did
not get up from his seat, but waved to Plaintiff as she walked by. Foster watched
Plaintiff proceed to the cash register, check out, and leave the store. Joel Rogers soon
came into the store upset about his wife being injured, but Foster made no connection
between what she had just observed and Mr. Rogers’ agitation because Plaintiff
appeared to be fine when she walked out of the door, was not limping or bent over, and
had an apparently normal conversation with the cashier at the front desk. (Foster Dep.
26:1-27:3, 31:21-32:13, 39:16-23, 42:1-20, 45:7-25, ECF No. 23-3.)

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Defendant filed a Motion for Summary Judgment on November 7, 2016, arguing
that Defendant is entitled to summary judgment because: (1) Plaintiff’s Complaint
alleges no recognizable duty, and (2) even if a duty exists, there was no breach of said
duty by Defendant. (ECF No. 23 at 4-8.) Plaintiff responded on November 28, 2016
(ECF No. 24), and Defendant replied on December 5, 2016 (ECF No. 25.) The Court
has thoroughly reviewed the parties’ briefs and the record, and now issues the following
ruling.
LEGAL STANDARD
The Court shall grant summary judgment “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.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of
demonstrating that summary judgment is appropriate; if the movant carries its burden,
then the burden shifts to the non-movant to set forth specific facts showing that there is
a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a
movant asserts that a fact cannot be disputed, it must support that assertion either by
“citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials;” or “showing . . . that an adverse party cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must
demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is
entitled to judgment as a matter of law. As to the first of these determinations, a fact is

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deemed “material” if proof of its existence or non-existence would affect disposition of
the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue of material fact is “genuine” if the evidence offered is such that a
reasonable jury might return a verdict for the non-movant. Id. at 257. In determining
whether a genuine issue has been raised, the Court must construe all inferences and
ambiguities against the movant and in favor of the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of
the non-moving party’s position is insufficient to withstand a summary judgment motion.
Anderson, 477 U.S. at 252. “Genuineness” of the disputed issue(s) “means that the
evidence must create fair doubt; wholly speculative assertions will not suffice.” See
Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248.
DISCUSSION
Defendant argues that Plaintiff’s Complaint alleges no recognizable duty, and
that even if a duty were recognized, there was no breach of such a duty by Defendant.
To assert a negligence claim in South Carolina, Plaintiff must show that: (1) Defendant
owed her a duty of care; (2) Defendant breached this duty by a negligent act or
omission; (3) Defendant’s breach was the actual and proximate cause of her injuries;
and (4) Plaintiff suffered injury or damages.” Dorrell v. S.C. Dep’t of Trans, 605 S.E.2d
12, 15 (S.C. 2004) (citing Steinke v. S.C. Dep’t of Labor, Licensing & Regulation, 520

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S.E.2d 142, 149 (S.C. 1999)). “In order for liability to attach based on a theory of
negligence, the parties must have a relationship recognized by law as providing the
foundation for a duty to prevent an injury.” McCullough v. Goodrich & Pennington Mortg.
Fund, Inc., 644 S.E.2d 43, 46 (S.C. 2007) (citing Huggins v. Citibank, N.A., 585 S.E.2d
275, 277 (S.C. 2003)). “An affirmative legal duty may be created by statute, contractual
relationship, status, property interest, or some other special circumstance.” Id.
Plaintiff’s Complaint alleges that Defendant was “negligent, reckless, willful and
wanton in its care and safety in that it failed to exercise that degree of care and safety
ordinarily employed in similar circumstances,” and that “Defendant failed to use
reasonable care and diligence and was negligent and/or reckless in roaming its store
with a person dressed in a giant rabbit costume appearing suddenly to patrons and in
failing to exercise due care to such patrons.” (ECF No. 1-1 ¶ 3.) When asked in her
deposition what, in her view, Walgreens did wrong, Plaintiff stated: “I don’t think that
they should have had him there just blended in with everything and then like any
sudden movement or anything, and then all of a sudden it looks like an animal, like
maybe a wild animal or something, you know.” (Rogers Dep. 79:2-9, ECF No. 23-2.)
The parties agree that Plaintiff was a business invitee at the time she entered
Defendant’s store. (See ECF Nos. 23-1 at 6-7, 24 at 3.) Her status as a business invitee
could create a relationship for which Defendant owed her certain duties. For example,
Defendant owed Plaintiff, as an invitee, the duty of exercising reasonable or ordinary
care for her safety, which includes “refraining from any act which may make the invitee’s
use of the premises dangerous or result in injury to [her].” Hughes v. Children’s Clinic,
P.A., 237 S.E.2d 753, 756 (S.C. 1977). Plaintiff did not specifically allege that Defendant

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owed her a duty based on her status as a business invitee, and the Complaint merely
avers Defendant’s putative negligence, recklessness, willful and wanton conduct with
regard to “its care and safety.” (See ECF No. 1-1.) Indeed, the Complaint does not even
squarely allege that that presence of an employee in an Easter Bunny costume
somehow created a dangerous condition inside the store, likely because such an
allegation would be patently ridiculous. The Court is under no obligation to redraft
Plaintiff’s Complaint or read cognizable legal elements into a pleading when they are
absent. Like the South Carolina Supreme Court in McCullough, this Court “will not
extend the concept of a legal duty of care in tort liability beyond reasonable limits.” 644
S.E.2d at 46 (citing Huggins, 585 S.E.2d at 277). Accordingly, the Court finds that
Plaintiff has failed to allege a recognizable duty owed by Defendant to Plaintiff, and
Defendant is entitled to summary judgment on this most basic component of a personal
injury case.
However, even if the Court were to find that Plaintiff alleged a recognizable duty
with sufficient clarity and particularity, it is readily apparent that no jury could find that
Defendant breached a duty to exercise reasonable or ordinary care for Plaintiff’s safety.
“To recover damages for injuries caused by a dangerous or defective condition on a
storekeeper’s premises, [a] plaintiff must show either (1) that the injury was caused by a
specific act of the respondent which created the dangerous condition; or (2) that the
respondent had actual or constructive knowledge of the dangerous condition and failed
to remedy it.” Garvin v. Bi-Lo, Inc., 541 S.E.2d 831, 832 (S.C. 2001) (citations omitted).
For the sake of argument, we will read Plaintiff’s Complaint to aver that the employee
dressed in the Easter Bunny costume created a dangerous condition that resulted in her

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injury. But even with this generous perspective, Plaintiff’s deposition testimony defeats
her own claim. Plaintiff stated that she did not come into contact with the employee in
the costume, nor did the employee speak to her at any point during her time inside the
store. Therefore, Plaintiff is essentially alleging that the Easter Bunny’s mere presence
in the store, and/or wave of the hand to Plaintiff as she walked toward the register,
created a dangerous condition for which Defendant should be liable. If this was enough
to constitute breach of a duty of care, Halloween costume stores ought to take caution
nationwide. Fortunately for the costume industry, it is not, and both Halloween stores
and organizers of the Macy’s Thanksgiving Day Parade1 can breathe a collective sigh of
relief.
Defendant openly displayed on its store marquee that the “Easter Bunny” would
be in the store and available for photographs, and there was a large display inside the
store indicating where the photos were being taken. Nothing in the record indicates that
Mr. Grigsby, the employee in the bunny costume, did anything to purposefully startle the
Plaintiff, or that his presence, in costume, created a situation that was otherwise
dangerous for any reason.
While there may be a factual dispute as to whether Plaintiff was injured as a
result of her being startled by the bunny costume, such a dispute is immaterial and will
not prevent the entry of summary judgment. As stated above, a fact is deemed
“material” if proof of its existence or non-existence would affect disposition of the case
under applicable law. Anderson, 477 U.S. at 248. Assuming the veracity of Plaintiff’s
alleged back injury, and assuming that such injury arose from her being “startled” by the

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The Court takes judicial notice that the Macy’s Thanksgiving Day Parade includes floats in the shape of
large animals with waving arms.

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bunny costume, the existence of these facts would not affect disposition of this case
because Defendant breached no duty owed to Plaintiff. In other words, there is no
genuine dispute of material fact with regard to breach and Defendant is entitled to
judgment as a matter of law. Therefore, any question of putative damages is inapposite,
and Defendant cannot be liable for injuries Plaintiff may have sustained while in
Walgreens on the day in question.
CONCLUSION
After careful consideration of the parties’ briefs and the relevant portions of the
record, and for the reasons set forth above, the Court grants Defendants’ Motion for
Summary Judgment (ECF No. 23).
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
August 1, 2017
Greenville, South Carolina

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