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McCullough v. Michaels Stores, Inc.

United States District Court, N.D. Georgia, Atlanta Division

September 30, 2014

MICHAELS STORES, INC. and USM, INC., Defendants.


RICHARD W. STORY, District Judge.

This case comes before the Court on Defendant Michaels Stores, Inc.'s Motion for Summary Judgment [47], Defendant USM, Inc.'s Motion for Summary Judgment [48], Plaintiffs' Motion to Strike Affidavit of Christina Hayes [54], and Motion to Strike Affidavit of Anita McCormack Maxwell [61]. After reviewing the record, the Court enters the following Order.


On October 22, 2010, Plaintiff Holly McCullough went to a Michaels Store located in Conyers, Georgia, to make some purchases and return other items. One week before, on October 15, 2010, Michaels discovered that one of the toilets in the bathroom had a leak, and former employee Anita Maxwell reported to USM, Inc., a contractor that performed maintenance work for Michaels, that the toilet needed repairs. Michaels states that it put up three signs warning customers of the leak: one in the hallway, one on the entrance to the bathroom, and one in the bathroom. However, Plaintiff denies that there were any warning signs posted. She does agree that there was an out-of-order sign posted on one of the stall doors. Michaels also states that as a standard procedure it inspects the bathrooms six times per day.

At one point during her visit, Plaintiff made her way to the women's restroom, which was located near the back of the store. Plaintiff did not see any water in the hallway leading to the bathroom. Maxwell had been in the restroom and walked out as Plaintiff entered. Maxwell did not see any water on the floor in the hallway as she left. Plaintiff states that there was no water inside the bathroom, either. However, when Plaintiff exited the bathroom and stepped into the hallway, she slipped on water and fell just outside the bathroom door.

Plaintiffs Holly and Tom McCullough initiated this premises-liability action in the State Court of Rockdale County on October 22, 2012, and Defendants removed on November 21, 2012. In their complaint, Plaintiffs allege that Defendants Michaels Stores, Inc. ("Michaels" and USM, Inc. ("USM" negligently maintained the premises of the Conyers Michaels craft store, and as a result Plaintiff Holly McCullough suffered $650, 000 in damages from physical and mental injuries. (See generally Compl., Dkt. [1]. Specifically, Plaintiff maintains that Michaels failed to take reasonable steps to prevent injuries arising from the leaking toilet in the women's restroom. Plaintiff also maintains that USM failed to fix the leak and failed to warn customers of the dangerous conditions. Defendants move for summary judgment.


I. Plaintiff's Motions to Strike

Plaintiff moves to strike the affidavits of Anita Maxwell and Christine Hayes, two former employees of Michaels [54, 61]. Plaintiff objects to Maxwell's affidavit because Michaels submitted it with its reply brief and "produced new substantive evidence at the last moment without affording the Plaintiff the opportunity to respond to the affidavit." (Pls.' Br., Dkt. [61-1] at 5. Michaels responds that it was not able to get in touch with Maxwell until after it filed its motion for summary judgment. Furthermore, Michaels states that the affidavit does not raise new evidence because Maxwell testifies to the same facts raised in Michael's motion for summary judgment: that she passed Plaintiff as she exited the restroom and did not see any water on the hallway floor. (See Michael's Statement of Material Facts, Dkt. [47-3] ¶¶ 15-16. When it moved for summary judgment, Michaels initially provided evidence of Maxwell's observation through hearsay evidence in another employee's affidavit. (See Hayes Aff., Dkt. [47-2] ¶ 26. Moreover, Michaels identified Maxwell and her statement that she did not see any water in Michaels' Responses to Plaintiffs' First Interrogatories. (See Dkt. [63-2] ¶ 13. By obtaining Maxwell's affidavit once it got in touch with her, Michaels submitted the same evidence in a different form, and therefore Maxwell's subsequent affidavit does not prejudice Plaintiffs. Consequently, Plaintiffs' Motion to Strike [61] is due to be DENIED.

Plaintiff also moves to strike [54] the Hayes affidavit, arguing the affidavit fails to meet the requirements of Federal Rule of Civil Procedure 56, is not based on personal knowledge, is inconsistent with some of Michaels' interrogatory responses, and contains hearsay statements. Rule 56 requires that an affidavit "used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." FED. R. CIV. P. 56(c(4. The Court finds that Hayes's affidavit meets the requirements of Rule 56 because it is sworn, notarized, and based on Hayes's personal knowledge. (See Hayes Aff., Dkt. [47-2]. To the extent her statements contradict any of Michael's responses, those contradictions do not rise to the level of a "sham affidavit, " as Plaintiff argues. Finally, the Court finds that any hearsay statements in Hayes's affidavit fall under a hearsay exception or could otherwise be reduced to an admissible form at trial. For these reasons, Plaintiffs' Motion to Strike the Hayes Affidavit [54] is DENIED.

II. Summary Judgment Legal Standard

Federal Rule of Civil Procedure 56 requires that summary judgment 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." FED. R. CIV. P. 56(a. "The moving party bears the initial responsibility of informing the... 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.'" Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259 (11th Cir. 2004 (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986 (internal quotations omitted. Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 257 (1986.

The applicable substantive law identifies which facts are material. Id . at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id . An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id . at 249-50.

Finally, in resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp. , 277 F.3d 1294, 1296 (11th Cir. 2002. But, the court is bound only to draw those inferences which are reasonable. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson , 477 U.S. at 249-50 (internal citations omitted; see ...

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