United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE
Wal-Mart Stores East, LP moves for summary judgment. For the
following reasons, that motion (Doc. 16) is
November 25, 2015, Plaintiff Darryl Cartwright entered a
Wal-Mart store on his wheelchair to purchase tennis shoes,
socks, and groceries. Doc. 17-1 at 34. Almost immediately
after entering the store, the Plaintiff decided to use the
restroom located at the back of the store. Id.
Thinking he could use the exercise, the Plaintiff parked his
wheelchair next to the restroom door, got up, and walked in.
Id. at 36. The Plaintiff used the toilet in the
stall and walked to the sink to wash his hands, all the while
holding on to his surroundings to keep his balance.
Id. at 36-37. Then, as he turned to leave the
restroom after washing his hands, the Plaintiff slipped and
fell. Id. at 37-38.
was no one else in the restroom at the time he fell.
Id. at 36. When asked whether he knew what caused
him to fall, the Plaintiff testified: “It was my leg or
the water, one of them. I don't know.” Id.
at 40. Though not certain, the Plaintiff guesses the water
appeared on the floor as a result of a man changing his
child's diaper next to the sink. Id. at 41. The
Plaintiff does not explain how diaper-changing leads to water
on the floor. See id.
the store does not have a camera inside the restroom, it does
have one outside. Store video shows the man and his child
entering the restroom approximately two minutes before the
Plaintiff did. Video at 3:29:43 p.m. About a minute after the
Plaintiff entered the restroom, the man and his child exited.
Id. at 3:33:16 p.m. The store video also shows that
about seven minutes before the Plaintiff entered the
restroom, one of the Defendant's employees, Travis
Johnson, was in the restroom for about a minute and a half.
Id. at 3:23:19 p.m. - 3:24:40 p.m. Johnson states in
his affidavit that while he was in the restroom, he conducted
a “safety sweep” of the area, which means
visually scanning the area to ensure the floor was clean and
clear of any hazards. Doc. 16-3 ¶ 4. This “safety
sweep” was in accordance with the Defendant's
safety policies and procedures that were in effect on
November 25, 2015. Id. ¶¶ 4-5. Johnson
states that when he inspected the area, the “entire
floor appeared to be clean, dry and hazard free. Specifically
there was no water, no liquid and no hazardous substance at
the sink area, the urinals or near the toilets.”
Id. ¶ 6.
after the Plaintiff fell, employees Brian Hegler and Glendon
Bedeau were notified of the incident and arrived at the
scene. Docs. 16-4 ¶ 9; 16-5 ¶ 11. They both noticed
the Plaintiff lying on what they described as a floor with
“no water, no liquid and no wetness.” Docs. 16-4
¶ 11; 16-5 ¶ 12. Hegler also states in his
affidavit that when he asked the Plaintiff what had happened,
the Plaintiff told him “his right leg had given out and
he had fallen over.” Doc. 16-4 ¶ 10. Hegler states
he did not see “any wetness” on the
Plaintiff's clothing. Id. ¶ 12.
Summary Judgment Standard
must 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). A factual dispute is not genuine unless,
based on the evidence presented, “‘a reasonable
jury could return a verdict for the nonmoving
party.'” Info. Sys. & Networks Corp. v.
City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002)
(quoting United States v. Four Parcels of Real
Prop., 941 F.2d 1428, 1437 (11th Cir. 1991));
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The movant may support its assertion that a fact is
undisputed 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)(A). “When
the nonmoving party has the burden of proof at
trial, the moving party is not required to ‘support its
motion with affidavits or other similar material
negating the opponent's claim' in order to
discharge this ‘initial responsibility.'”
Four Parcels of Real Prop., 941 F.2d at 1437-38
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Rather, “the moving party simply may
‘show[ ]-that is, point[ ] out to the district
court-that there is an absence of evidence to support the
nonmoving party's case.'” Id.
(alterations in original) (quoting Celotex, 477 U.S.
at 324). Alternatively, the movant may provide
“affirmative evidence demonstrating that the nonmoving
party will be unable to prove its case at trial.”
burden then shifts to the non-moving party, who must rebut
the movant's showing “by producing …
relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1315 (11th Cir. 2011) (citing
Celotex, 477 U.S. at 324). The non-moving party does
not satisfy its burden “if the rebuttal evidence
‘is merely colorable, or is not significantly
probative' of a disputed fact.” Id.
(quoting Anderson, 477 U.S. at 249-50). Further,
where a party fails to address another party's assertion
of fact as required by Fed.R.Civ.P. 56(c), the Court may
consider the fact undisputed for purposes of the motion.
Fed.R.Civ.P. 56(e)(2). However, “credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge. … The evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson, 477 U.S. at
an owner or occupier of land, by express or implied
invitation, induces or leads 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.” O.C.G.A. § 51-3-1. To prevail on a claim
for negligence in a slip and fall case in Georgia, “an
invitee must prove (1) that the defendant had actual or
constructive knowledge of the hazard; and (2) that the
plaintiff lacked knowledge of the hazard despite the exercise
of ordinary care due to the actions or conditions within the
control of owner/occupier.” Robinson v. Kroger
Co., 268 Ga. 735, 748, 493 S.E.2d 403, 414 (1997).
Defendant argues that it is entitled to summary judgment for
two reasons. First, the Defendant argues there is no evidence
that any hazard caused the Plaintiff's fall. Doc. 16-1 at
5. In the alternative, the Defendant argues there is no
evidence that it had actual or constructive knowledge of any
hazard. Id. at 8. While the evidence strongly
suggests, even by the Plaintiff's own admission, that the
Plaintiff's fall was the result of his leg giving out,
the Court assumes for the purposes of resolving this motion
that there was water on the restroom floor at the time the
Plaintiff fell. Thus, the issue is whether there is evidence
the Defendant had actual or constructive knowledge of the
hazard. Jones v. Ingles Markets, Inc., 231 Ga.App.
338, 340 n.1., 498 S.E.2d 365, 367 n.1 (1998) (noting ...