United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr, District Judge.
This matter is before the Court on Defendant QuikTrip Corporation's ("Defendant" or "QuikTrip") Motion for Summary Judgment  and Motion for Oral Argument .
On July 28, 2012, Plaintiff Michael Flanagan ("Plaintiff" or "Flanagan") visited a QuikTrip gas station in Lawrenceville, Georgia. (Def's Statement of Material Fact ("DSMF")  ¶ 1). Plaintiff parked his vehicle at Pump 8, with the driver side of his vehicle next to the pump. (Id. ¶¶ 3-4). Plaintiff stepped out of his vehicle, swiped his credit card at the pump, and put the gas pump nozzle into his gas tank, which was located on the driver side of the vehicle. (Id. ¶¶ 5-6). While the gas was pumping, Plaintiff got his "re-fill cup" from his vehicle, walked into the QuikTrip store and purchased a cup of coffee. (Id. ¶ 7). Plaintiff walked back to his vehicle, put his cup on the roof of his car, and returned the gas pump nozzle to its cradle on the pump. (Id. ¶ 8). Plaintiff walked a few steps to get the glass cleaning squeegee from the windshield valet and he cleaned the driver side of his windshield. (Id. ¶ 9). Plaintiff walked around the front of his vehicle, and as he turned the corner toward the passenger side, he "stepped on something slippery and [he] fell" to the ground. (Flanagan Dep. 30:7-11). Plaintiff's fall occurred at approximately 10:00 a.m. (DSMF ¶ 1).
After he fell, Plaintiff saw on the ground a "spot, " which was seven (7) or eight (8) inches in diameter, circular, and dark gray or brown in color. (Flanagan Dep. 32:15-33:10; 41:18-20). Plaintiff asserts that the spot was "roughly circular in shape [and] looked like it had been caused by some sort of a liquid at one point, but it had dried, mostly. And [he] could clearly see the mark from [his] shoe in it, " which he described as a "smear." (Id. 32:20-33:3; 47:17-22). Plaintiff cannot identify the liquid on which he claims he fell and he does not know the source of the liquid or how long it had been on the ground before he fell. Plaintiff testified:
Q. Do you know what you fell on, the substance?
A. No. I don't know what it was.
Q. So I'm calling it "oil", but it doesn't necessarily have to be oil?
A. I have no way of knowing what it was.
Q. Okay. Did you touch it?
Q. Do you know how long it had been there?
A. It clearly had been there for some period of time, but I don't know how long.
Q. Why do you say it had been there for some period of time?
A.... I didn't, you know, analyze it. But it appeared that it had been a liquid at one point, but was clearly no longer completely wet or anything like that. It wasn't a puddle. It was dried and it was light - it was a relatively light color.
(Id. at 34:17-35:13).
On October 18, 2013, Plaintiff filed his Complaint [1.1] in the State Court of Gwinnett County, Georgia. Plaintiff asserts claims for negligence, alleging that Defendant failed to keep its premises safe and failed to remove a hazard. Plaintiff also alleges that Defendant failed to train its employees concerning safety procedures for inspecting, cleaning and maintaining the premises, and failed to adopt policies and procedures to make sure that appropriate inspections of the premises were performed.
On November 19, 2013, Defendant removed the Gwinnett County Action to this Court based on diversity of citizenship jurisdiction. (Notice of Removal ).
On September 8, 2014, Defendant moved for summary judgment. Defendant asserts that it maintains a reasonable inspection procedure, that the procedure was in place at the time of Plaintiff's fall, and that a QuikTrip employee actually inspected the area of Plaintiff's fall within thirty (30) minutes of the accident and did not observe any liquid where Plaintiff fell.
A. Legal Standard on Summary Judgment
A 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). Parties "asserting that a fact cannot be or is genuinely disputed must support that assertion 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." Fed.R.Civ.P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties "need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings." Id.
The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only "to the extent supportable by the record." Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). "[C]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury...." Graham, 193 F.3d at 1282. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Herzog, 193 F.3d at 1246. But, "[w]here the record taken as a whole could not lead a ...