Diamond v. Publix Super Markets, Inc, No. 4:2017cv00030 - Document 24 (S.D. Ga. 2017)
Court Description: ORDER granting 17 Motion for Summary Judgment. The Clerk is directed to close the case. Signed by Judge William T. Moore, Jr on 12/14/17. (wwp)
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Diamond v. Publix Super Markets, Inc Doc. 24 THE UNITED SdATES DISTRICT COURT!FQ* uNsTHtcTCOUBT THE SOUTIIERN DISTRICT OF GEORGIeSt$*:tilaf [Jlstllct of G.. n Fil6d Oftlce Fil6d [n Oftlce sAvAltNAH DIVISION SONYA DIAMOND, Plaintiff, CASENO. CV417-O3O PUBLIX SUPER MARKETS, INC. , Defendant . ORDER Before the (Doc, Judgment. GRANTED. As is motion Eor I'1.) (Doc. DIMISSSED. L, Ex. ]tfte of is complaint Pfaintiff's The Clerk A.) Sumnary Defendant's reasons/ following result, a for Motion Defendant's is Court is Court DIRECTEDto thi s close BACKGROUND case arises Thls Publix locaf store's tripped entryway. Diamond was I, Ex. nafe*d:nr's cart Street, A !l 5.) After emnlovees and began walking Attach. 1 at and On or shopping 5500 Abercorn from an incident 56-51 . ) about aL over fell a January Defendant's Suite #2, Pfaintiff tooK which in scale 21, a customer at 2015, g-rocery store for BecaUse of the to her located and vehicl-e. brightness of on (Doc. 31405. groceries, groceries Plaintifl's wit.h PLaintiff her the Sonya Plaintiff Savannah. Georgia, paid near located a one of shopplng (Doc. 17' the sun. Dockets.Justia.com Look for employee. q r,r.racsas i n l-er orlrse as she walked behi nd rhe at plAinriff er.lra near did she whife her Before same Publix at with of the ha c^ar6 rr^. aL On february Court based on in nr r a eml .i q. oJ L . P Plaintiff's 2 0 1 1, cl a -ms rhaL this case that li:bilirrzt,j . --ve cfaim for relief y r-l:im must (Id. her. shopped at the opening. (Id. trips shopping She testified norma-L paLh to even admiLLed suit brought diversity co c 1 nn o E a l^z i " 9 fact 17, it' over of store's 79.) at that in that enLer and previously Lo 59.) Charham CounLy seek inq fall. front prevlous on her P-Iaintif f initially Plaintiff Defendant (rd. focation. (1!.) store. Lhe the was aware lcom rhese passed Lhe scale sl-e Eypical ly see in to tripped she the focated scale testified had previousLy Plaintiff and its scafe fater when scafe a over Pfaintiff once a week since least at the forward her ability injury, Plaintilf 54.) see not (Id. employee out of the folfow 'cll and (Id. ) exit. interfered nothing exir le-- r i 4 F nvn a , l P v store's the to continued As Plaintiff 58.) her and began to lenses bifocaf removed. her Pfaintiff (Doc. Lhere (Doc. is no would allow In P.Laintiff S n o r r 6 : r - a vt et v - I fail 71.) ' because t case to 1, ) genu ine to the scale the this Defendant is its drspure )a-or-.lenl I of Court caused by removed the jurisdiction. ' State injuries her Defendant i , ie , i9 rm r v rlr-q ,v ^ ran J the motion, of materLal prevail on her :r.r.-Fq was open that and reasonabfe care in by that certain argulng of view her lnhibited the incident the any with that claim act she did and that responded of day negating scale, was open and obvious, scale on the conditions act has Plaintiff scale. the avoiding with to failed Pf a'intiff alternatlvely/ and/ obv.ious, the reasonable CAIC. AIiIAIYSI S STANDARD OF REV]EW to According party may nove the defense-or r.-.1^m6n- part en rnhr fact of " there and the movant is T...l Th6 .t^,jrn-<a and to assess nerr''rc n !f u Pu-yJJr noer] Radio Corp., 56 advisory -ria].' for make a e rElrLclrL wifl Catrett, in is to order 587 (1986) tn *if Efec. fLa (quoting of law." r- laa'linrrc there whether Indus. Lhe any materiaL rni6r.-F see sunmary n.anLed as to or Co. v. ls a Zenith Fed. R. Civ- P. c o m m jL L e e n o L e s ) the is F. il-ai L burden 411 U.S. appropriate sufficient showing cs>crrLro bear irrr-lomeni 4 5'7 , Summary judgment to r rj " Matsushita 475 U.S. ha judgment as a matter to entitfed proof the mrqr no genuine dispute is e u ta r s r L mLm :! r defense on whlch nnr:nn Such "Ia] each clajm identilying of claim each 56(a), Procedure Civif summary judgment. for movant shows that of Rufe Federal 3I1 , of 322 to nr-i Pa! \ L y/ r c proof when the establish ^Aq^ at the ^- and triaL, " nonmovant "fai1s existence .,l. l ^!- Cefotex (1986) . The substantive rl- -+ Lria L of an ^--+., Ly Pa! Corp. v. law governing (1lth hlash. Mitls v. Co. Eouio. whether determines actlon the element an is 887 Co., Abrasi-re DeLong essential. 1'499, l-505 F.2d 1989) . cir. As the Supreme Court exPLained: tAl par:ty seeking sununary judgment always bears the court of informing the drstrlct responsibility initral those and identifying for 1ts motion, of the basis answers to portions the p-leadinEfs, depositions, of together wrth and admissions on file, interrcgatories, demonstrate if any, which it believes the affidavits, the absence of a genuine lssue of materiaL fact. to nonmovant The by goingt establish, a genuine issue there is case. Clark burden 323, at U. S. 41'/ Celotex, as to beyond Lhe fact s rnaterial to to shifts p. eadings, the that the nonmovant' s 929 E.2d 604, 6AA (11th Cir. Coats & Clar:k' v. then 1qql\ The to nonmoving party "must m er e "sc j nci-LIa" wifl not 1425 LITd L ! (11th nr ^ g \ f r L -LlIIE t do more than "'l LCIIUg .FL/ ano - :qh- Fl^F l r r q nJ ^ Y 'r" r.-..I/rr than r o Ve,'v'..! 4 there at where i<e.rc a from nf IS 586. A < 1r l c g d L - r w r r ' ) t Car:ter Prods., one inference non,,ino favorabfe fd. facts," r99B . Nevertheless, n"o fe nosl- show that simply TidweLL v. a-I-t reasonable 587-BB. However, the at the naterial evidence, Cir. 'r 4 15 U . S . See, sufflce. ai ndar ! rrrv! and of lr from doubt as to some metaphvsical ev idence the nonmovant. Matsushita' the I422, arisjng i nferences factual review must Court LttaLcjl 135 F.3d reasonable lhe lcr-L facts, BB3 F.2d 923, 933-34 (11th Cir. Brierton, v. Barfiefd a s pr:e m i s e s a n d a p p r o a c h e s d oe s urer pr cr-rnr i ^* or -ar'l occupier' s App. aF because a S O mo h r . r w l,.lcon hi S fo t in an invitee ro itee C X e !renr iJc -i rn9n . n a za r : d ' s nrdin:rrr v-J'.-L!.y existence controf. 493 S.E.2d 403, In rhis The F^-|a- to l-he r - r c .a err r due r , h! o - , to that hazard; nl:inr |,-u-r,-' actions Robinson v. if r this in f - or Kroger owner an Inc., a 196 :nq]]-ar an sLate.") l iabiliuy (2) l:r-lu o r-l . had actual thaL, Lhe or despite l' t tn- n tr/ ^ !rul Yo r j r r a r v r ! cond.itions Of Rather, theory, defendant and has nf rl.- the 268 Ga. 135, Co., within 148, 413-L4 (1991 case, krnwlecioe parr ies, not (1) prove: know-Ledge of def endant's is on proprietor nrOn-ial/1 .recover under a premise must be abfe consL rucrive hF.l v which lhe an ("To presume that the that -he r^rn|l r.l naka n e o l i!oY snr fL ! e ' rrLY qa'c store is is Doors, (1990) 55 54' a Peachtree duty there in j.rred is its this fand the that or invitee an S.E.2d in of .invitees, when faffs customer However' occupier See Petrkins v. 8 19 , 3 9 7 ^,'ef ."rar'c or its of i -ro4ss land, 878, invitees. owner safety the of for occuprer keeping in care ordj-nary safe the mean that not owner or store exercise to duty statutory a S 51-3-1. O.C.G.A. to Pursuant S 1989). PREMISE LIABIL]TY II. in summarY juogmenr grant Lo refuse should Court the then Lhere js of Lhe however, do -o I isnrrl a as scafe focated .lisnrrlo 5 to in u,hpt hcr whether the store plaintiff Defendant entrance. Iacked knowledge was a scale prevrously Defendant 1t. In -re n- u aerv: e c l p lu in rhe .,].h^ar^1rc " sraljc even iI Prince 254, 251 of ic m o r r e L r lc a .r* -Lrr -r-i* P-Ld gane. A'1q statlc rrr 1d.; l annn porLabLe or roveable. The Georgia the cne middfe court oI reasoned in that t-he crame was . . :r-c,w v see l rrd i nc condition ---J still ^ . r r l ^-.rr- r9 r- also .rh:' a nvhJ.Lf v Rohland, -. -L a because there although a rr-rt z u vis.f 280 Ga. App. aE s rgn A sLaLic inherently noL 530, can be considered Iound RenLZ '1 91 S.E.2d 390, that a corn- aI: a was no evidence condition the because condition r .(Ll u I tu e ^ L e . l polfao. e scafe dealersh j p was a static a car stat.ic the 280 Ga. App. 38B, Appea ls of CourL sca-le. For example. in 340 Ga. App. A.Lbany, Inc.. (20L1 ), is 419 (2006) . A condition is noLe game locared condition. USA, Inc., on Defendant. that and avoid see the condiLion, change' noL Murplry Oif 411, 534 S.E.2d docs thaL Q^Lrl:n.l 532, ^'-'ic to conditions ro Defendant YWdY 'one " is certain her abi- icy - - en1 Lr-- Plaintj'ff that have been abfe that with agrees Court she condition, static a the Court agrees with considerationf the condjLion v. alleges j nhibiced had presumption a and should he incjdenc First, is there Plaintiff response, careful As entryway. condition the dav r-' the that contends was aware of After in observed the admitted Pl-aintiff that condition static contends that it motion, wlthin conditions or actions Defendant's In control. Defendant's to due scale the of orts v,ew 532,634 gas that it was of the S.E.2d statfon the was at was a sign had ever of the At a customerf s view obstructed anything that moved or the sign) . In the case. this provides Plaintiff outset, nrcv inrrs'v that The fall. is was scale aL on Drevious r r r ' + h i" ^ ^ , L scaf e. In 'ac- Rentz. 1,\j l-rar !rLrriv scale vlsitors, condition. had the However, t-he disavowing a an to there ^r " lra tesl scafe. finds the a rzi cil- rhat locacion that the is in in no to which observe and be aware of 1s no evldence nad Plaintiff's Plaintiff store if ied fhF-e oncil-ron this its case that :hiIifr.' nrs/ 'I she had if (Doc. 17, Attach desj gnated Court nrs. q^nF the for :nrz Lhe scale that moved before enough Iong trips as status scafe's rnr:_i recencly P a'r^t'ff woufd have seen the the 4.) at record the d i f ferent focated l east rL.^ As in in was scale Lhe arry 2I the in I ocated felf .Iocation. stat ic "a1leged Court' s concl.usi on would be Lhe the evidence Pl a intift ^^^l^ (Doc. challenge however, same, WhiLe there evidence an briefs, did Plaintiff condition, n^ar as scale contrary. condition; scafe as a static Even if the the to any argument expressly provides never Plaintiff static her lhroughout condition" argument no to refers simply Pfaintiff condi t i on static was a scale and scafe 1 at na lzarl cha I was was rrieihle - hrr ^+-+ l ^ finds law, "a person S. Gr.p., 132-33 Capitaf, (quotlnq (2005) Inc., Ga. 249 8 2 - l, App. 399, ?28 S.E.2d qJ n rLo m. . i J L p e U.' -Annr)l F 58C (2A12) ("one who is 577, Fa-.\\/ar\/ r "e -l Y. , - - \rvvwvr failing in -:rr,, h.^ ad',:- na.ns 6^1,:1 lznarr larino nf Co. v. case, pafpable, as the that .1-orl ng Atranta the facLual nothing LeCroy v. Bragg. Ga., or Gas Lrgnr (quoting evidence obstructed her." of such suITr,ryd judgmenL rn Tl oI the Convention the discover Lng ir oi and thus (2013) where (a,t--:'- tl^e granc whether 3 the of I ioenCe defect Iscale] to with 392, 394 S.E.2d 345, 346 (1990))). to I, 2L7, 22A (2003)) . t 291 Ga. 397, familiar reo patent a defendant i efan.F applieo see the 739 S.E.2d Baptist av Lhe Lssue is have been visjble 886, it< and undisputed to abitity wirh cresham, 260 Ga. 39I , "ConseqJently, rhis correct to defendant -hc I n.r / 186 184, S'E.2d. WilIiams, v. 129, Partners Overseas 549 829, Inc. 610 S.E.2d 499, v. Christensen the Bonner v. occasion." 497, Ga. App. 27L stat'ic la negotiated successfully on a previous condition Inc. , has of knowledge aLso Georgia sca1e. Within the have to persdn that dangerous Rest. presumed is when conditlonl alteged had knowledge of Plaintiff that Court the condition' static scaLe was a Because the defect plain' IPfaintiff's] was or should 3l-9 Ca. App. Thomas v. 262 Ga. App. is 315, Exec, 319, 884, Corun. of 585 S.E.2d In She had observed the scale, lhe on and should scale this contends that Pfaintlff I inht inr.r r-onrlitionsof pl:int i f Lf! qln4 asqes I view naFa--tF--. the of q sca.Le. inhibited Lr{!-Lrr9. the In obvious on a r- fact, her abiLity fLa Pfaintiff to see groceries. (Doc' at 2I r,his she r" in the states of However' (Id., In her on Attach. sun inhibited never inhibiued front Plaintiff's puttingt was that herself rhe and 4.) sun. -.rL brief' aSsertion. the Plaintiff snonnrn.] Defendanl's that contends Moreover, scafe. her of sizell with that rpss h-ioLf she never Fi.n In,roa that cLaims view her nothing that as of she was \ru. Because rebutLing ll^e o' However, 58. ) at her wd her-a rsa the srnoort noLes Pfaintlff testimony, *o av:der.e any In evidence clear is there ..r nrorzi des i/!vvrv!r her of loaded carc is there unless evidence. such was obstructed. " scale the no knowLedge of had view of the scale. "[b]ecause r-he shopping employee, view is there case. trips' shopping she it avoided she had an obstructed evidence that In have as same locatlon previous her knowledge of have the presume that will Court in scale on incident the this Therefore, the of date the presumed to 1s Pfaintiff case, this the Pfa int i ff presumpl.on of her condition static theory fa L.Leo to has of of, the premise fiability ident i fy knowledge as scale, fai1s. any ev idence Lo Lhe open and Plaintiff's Plaintiff cfain based knew about rFhrL,rr-6.] - ^ , . - h r 'h r-1 9 Lr ! drly of rhe based near h^r She had at question. as scale the exit. As a no offered .ahili-rr rr- r.ie\^, evidence the SCaIe to and, result, Defendant lhe the that day in existence cannoL now recover therefore, negr ;gence alleged show on as much knowledge of least Defendant D ef e n d d n t ' s on and locat.ion sca.Le's the in is plac i ng Lhe scale entitfed to M o Li o n Ior summary -t I udgmenc . - coNcr,usroN For Judgment rne is foregoing reasons, GRANTED. As DISMISSED. The Clerk t S O O R D E R E Dh i s a resuft, of Court is l3!auy Defendanc's PLainlLff's Sum,nary complainr D I R E C T E Dt o c L o s e t h i s is case. o f D e c e m b e r2 0 1 7 WILLIAM T. MOORE, JE4 U N I T E D S T A T E SD I S T R I C T C O U R T D S O U T H E R N I S T R T C TO F G E O R G I A '- r r^ -^F i^* n^f err-],=n' F en a F.rFs that LO ne iS enritled to acL with ordinary failed sunmary judgmenu becaL.,se Prainti If finds that Defendant Because the Court care to avoid the scale. g rounds. che Court sees Lo summary j udgment on olher is enLiLled second arqument. no reason to address Defendant's 10
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