United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
THOMAS W. THRASH, Jr., District Judge.
This is a personal injury action. It is before the Court on the Defendant's Motion for Summary Judgment [Doc. 146], the Defendant's Motion for Partial Summary Judgment or, in the Alternative, Motion to Add ML Healthcare Services, LLC [Doc. 148], and the Plaintiff's Motion to Strike Answer, or Fact and Issue Preclusion [Doc. 166]. For the reasons stated below, the Defendant's Motion for Summary Judgment is DENIED. The Plaintiff's Motion to Strike Answer, or Fact and Issue Preclusion is DENIED. The Defendant's Motion for Partial Summary Judgment is DENIED.
On July 24, 2012, the Plaintiff, Robin Houston, visited a Publix Supermarket in McDonough, Georgia. The Plaintiff claims that while she was in aisle 13, the dairy aisle, she slipped and fell in water. She testified that she was paying attention to where she was going, but did not see the water before she fell. After the incident, the Plaintiff claims that she could see small puddles of water on the floor. Three Publix employees inspected the floor after the fall and could see no water.
Multiple Publix employees also inspected the floor prior to the fall. From 7:28 A.M. to 7:29 A.M., Tiffany Roy, a Customer Service Manager, inspected aisle 13. At that time, there was no water on the floor. Ms. Roy walked through the area in which the Plaintiff fell. At 7:34 A.M., Garrett Peterson walked down aisle 13 and saw no water on the floor, despite scanning the area to look for hazards. From 7:42 A.M. to 7:44 A.M., Tony Brock, a Publix bread vendor, pushed bread trays through aisle 13. Mr. Brock stated that the bread carts were dry, and he does not recall seeing any water on the floor. Additionally, at 7:50 A.M., Mr. Peterson dust mopped aisle 13 while scanning for hazards. At that time, there was no water on the floor. All of the employees stated that if they had seen a hazard, they would have removed it or notified someone else to remove it while waiting with the hazard. The Plaintiff fell at 7:54 A.M., just four minutes after the last inspection. After the fall, at approximately 8:02 A.M., Ronald Beauvais, a Publix employee, cleaned up a small spot of milk from the floor, about five feet from the area of the fall. The Plaintiff filed suit in the State Court of Gwinnett County, Georgia, asserting a negligence claim against the Defendant Publix Supermarkets. Publix removed the case to this Court and now moves for summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. The party seeking summary judgment must first identify grounds to show the absence of a genuine issue of material fact. The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. "A mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party."
A. The Defendant's Motion for Summary Judgment
The Plaintiff alleges that Publix should be sanctioned for preserving only an hour of video footage surrounding the fall at issue here. Spoliation sanctions are governed by federal law, but informed by state law. Georgia law on spoliation is consistent with federal law. Georgia courts assess five factors in determining whether spoliation sanctions are warranted: (1) prejudice to the defendant as a result of the destruction of evidence, (2) whether any prejudice can be cured, (3) the importance of the evidence, (4) whether the spoliator acted in good or bad faith, and (5) the potential for abuse if expert testimony about the evidence was not excluded.
There is no evidence that the missing video prejudices the Plaintiff. The preserved video shows thirty minutes prior to the fall and after the fall, including the entire time the Plaintiff was in the store. Additionally, as discussed below, there is no indication that more video pre-fall would have any relevance whatsoever. Further, there is no evidence that Publix acted in bad faith. Rather, Publix followed its video retention policy the day after the incident - July 25. No spoliation letters were sent requesting more footage until the middle of August. This Court therefore declines to impose any sanctions on Publix. Furthermore, the Plaintiff's Motion to Strike Answer should be denied because this Court finds that there was no spoliation warranting sanctions.
2. Negligence Claim
Under Georgia law, "[w]here an owner or occupier of land, by... invitation, induces... others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." The owner's duty to exercise ordinary care "requires the owner to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge." In the context of slip-and-fall cases, "[t]o prove negligence... the plaintiff must show (1) the defendant had actual or ...