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Wilson v. The Kroger Co.

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

May 21, 2019

KRISTIN A. WILSON, Plaintiff,
v.
THE KROGER CO., Defendant.

          AMENDED OPINION AND ORDER

          THOMAS W. THRASH, JR., UNITED STATES DISTRICT JUDGE

         This is a slip-and-fall case removed to this Court on the basis of diversity jurisdiction. It is before the Court on the Defendant's Motion for Partial Summary Judgment [Doc. 82]. For the reasons set forth below, the Defendant's Motion for Partial Summary Judgment [Doc. 82] is DENIED.

         I. Background

         The Plaintiff Kristin A. Wilson slipped and fell in Defendant Kroger Co.'s store on May 29, 2015.[1] The Plaintiff contends that her fall was caused by a spill on the floor and that store employees were aware of the spill but failed to follow the store's safety protocols.[2] The Plaintiff contends that she sustained injuries to her lower back, right knee, and right foot as a result of the fall.[3]

         A 2012 X-ray showed arthritis in the Plaintiff's right knee.[4] At some point between September of 2013 and April of 2014, the Plaintiff injured her right knee when she slipped and fell in the breezeway in front of her home.[5]In April of 2015, the Plaintiff sustained a “Lisfranc” injury to her right foot.[6]A Lisfranc injury results from bone fractures or ligament tears in the middle region of the foot.[7] An X-ray conducted on April 16, 2015, showed fractures to the Plaintiff's metatarsal bones and the reviewing doctor hypothesized that the Plaintiff's ligament was likely torn as well.[8] The Plaintiff's treating physician, Dr. Raj Bhole, placed the Plaintiff in a walking cast on May 5, 2015.[9] Dr. Bhole removed the cast on May 14, 2015, shortly before the Plaintiff embarked on a cruise to Mexico.[10] Dr. Bhole cleared the Plaintiff for the trip but provided the Plaintiff with a post-op shoe and instructed her to rest as much as possible.[11]The Plaintiff slipped and fell in the Defendant's store on the same day that she returned from the trip.[12] The Plaintiff was wearing flip-flops when she fell.[13]The Plaintiff originally filed this action in state court, seeking recovery from various corporate entities and individual “John Doe” defendants on a theory of premises liability. The Defendant removed to this Court pursuant to 28 U.S.C. §§ 1332 and 1441(b) after the state superior court dismissed the individual defendants and non-diverse corporate entities from the action.[14]The Defendant now moves for partial 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.[15] The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant.[16] The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact.[17] 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 exists.[18]

         III. Discussion

         Before proceeding to the parties' substantive arguments on summary judgment, the Court finds it necessary to resolve certain points of confusion in the parties' briefing. First, the Defendant's motion for partial summary judgment contains inconsistent requests for relief. The Defendant's brief begins by requesting that the Court enter summary judgment in its favor on the following questions:

(1) whether the Plaintiff's fall caused her right knee injuries;
(2) whether the Plaintiff's fall caused her right foot injuries; and
(3) whether the Plaintiff was contributorily negligent.[19]

         The brief concludes, however, by requesting that the Court enter summary judgment in the Defendant's favor on a set of overlapping but distinct questions:

(1) whether the Plaintiff's fall caused her right knee injuries;
(2) whether the Defendant had actual knowledge of the hazard;
(3) whether the Plaintiff has made out a cognizable claim for lost wages;
(4) whether the Plaintiff has made out a cognizable claim for attorneys' fees.[20]

         In the body of the brief itself, the Defendant argues that the record lacks expert medical testimony regarding the Plaintiff's theory of causation and that the Plaintiff was contributorily negligent because she allegedly ignored her doctor's instructions regarding appropriate footwear. The Defendant does not, however, put forward any arguments regarding its actual knowledge of the hazard or lack thereof. Nor does the Defendant mention the Plaintiff's purported claims for lost wages and attorneys' fees.[21] Therefore, the Court concludes that the Defendant erred and does not intend to seek summary judgment on these issues.[22] Moving forward, the Court will assume that the Defendant is seeking summary judgment only on those issues with which it opens its brief.

         Second, both parties demonstrate substantial confusion about whether state or federal law applies in a diversity action. The Plaintiff cites exclusively to Georgia state procedural law throughout her response brief.[23] The Defendant, despite pointing out that the Plaintiff improperly relies on state law discovery rules, nevertheless relies on state law evidentiary rules in its request to exclude certain attachments to the Plaintiff's response brief.[24]“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.”[25] Furthermore, “[r]ules of procedure encompass rules of evidence, and therefore, the Federal Rules of Evidence, not state evidentiary laws, apply.”[26] Consistent with Erie and relevant Eleventh Circuit precedent, the Court will apply federal procedural rules in this case, including federal rules of discovery and evidence.

         The Court turns now to the substantive arguments raised in the parties' summary judgment briefs. The Plaintiff in this case brings a premises liability action pursuant to O.C.G.A. § 51-3-1.[27] “To prevail in a premises liability action, a plaintiff must show: (i) the existence of a defective or hazardous condition on the premises; (ii) that the defendant had either actual or constructive knowledge of this condition; and (iii) that the plaintiff had no knowledge of the condition, despite the exercise of ordinary care.”[28] As in any negligence action, the Plaintiff must demonstrate that the Defendant's breach caused the Plaintiff's injury.[29]

         The Defendant makes two arguments at summary judgment. First, the Defendant argues that the Plaintiff cannot show that the allegedly dangerous condition caused the Plaintiff's knee and ankle injuries without expert medical testimony. Second, the Defendant argues that the Plaintiff was contributorily negligent because she allegedly ignored her doctor's instructions to wear a post-op shoe while recovering from her Lisfranc injury. The Court takes up each of these arguments in turn.

         A. Whether the Plaintiff can prove that the fall caused her injuries

         The Defendant argues that the Plaintiff must offer expert medical testimony to prove causation, and that her failure to do so is fatal to her claim. Under Georgia law “expert evidence typically is not required to prove causation in a simple negligence case.”[30] The Georgia Supreme Court has recognized an exception to the general rule, however, in cases where the Plaintiff's theory of causation raises “medical questions” that “can be answered accurately only by witnesses with specialized expert knowledge.”[31] Expert medical testimony is generally required to prove causation when the “continuance of a disease” is at issue.[32] The Plaintiff's medical records show that the Plaintiff has arthritis in her right knee and that the Plaintiff sustained a Lisfranc injury to her right foot the month before her fall. The Defendant's expert, Dr. John D. Henry, Jr., opines that the “pain, stiffness, and intermittent swelling” that the Plaintiff reported in her right knee was caused by her preexisting arthritis and not by her fall.[33] Another expert ...


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