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Cartwright v. Wal-mart Stores East LP

United States District Court, M.D. Georgia, Macon Division

May 7, 2019

DARRYL CARTWRIGHT, Plaintiff,
v.
WAL-MART STORES EAST, LP AND JOHN DOES NOS. 1-10, Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE

         Defendant Wal-Mart Stores East, LP moves for summary judgment. For the following reasons, that motion (Doc. 16) is GRANTED.

         I. BACKGROUND

         On 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.

         There 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.

         While 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.

         Shortly 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.

         II. DISCUSSION

         A. Summary Judgment Standard

         A court 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.” Id.

         The 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 255.

         B. Analysis

         “Where 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).

         The 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 ...


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