USCA11 Case: 21-11116 Date Filed: 02/03/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11116
Non-Argument Calendar
____________________
KAITLIN SMITH,
Plaintiff-Appellant,
versus
WALMART STORES EAST, LP,
(Delaware),
JOHN DOES 1 AND 2,
Defendants-Appellees.
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2 Opinion of the Court 21-11116
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:19-cv-00138-SCJ
____________________
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Kaitlin Smith appeals the district court’s grant of summary
judgment to Walmart Stores East LP on her complaint to recover
damages she suffered after she slipped and fell on a liquid substance
while shopping at a Walmart store. The district court concluded
that Walmart lacked either actual or constructive notice of the haz-
ard. On appeal, Smith contends that summary judgment was inap-
propriate because genuine issues of material fact exist as to
Walmart’s constructive knowledge. After careful review, we agree
that summary judgment should not have been granted, and we va-
cate and remand for further proceedings.
I.
On the night of May 31, 2018, Smith was shopping at
Walmart with her boyfriend. As they headed to the store’s pet de-
partment, they walked without incident through an area of the
store called “action alley,” a larger aisle running perpendicular to
the other aisles which contained pallets with goods to stock, among
other things. After obtaining cat food from the pet department,
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21-11116 Opinion of the Court 3
they walked back through action alley, traversing “the general
area” they had previously walked through. On the way, at approx-
imately 11:13 p.m., Smith slipped and fell.
Around that time, there were two Walmart stockers work-
ing in or near the area where Smith fell. At approximately 11:03
p.m., Walmart stocker Jorian Wofford used a pallet jack to move a
pallet from the area of action alley where Smith would walk soon
after. Wofford did not remember seeing any substance either on
the pallet or the floor, but he acknowledged he did not specifically
look at the floor where the pallet had been after he moved it. Mean-
while, Walmart stocker William Whigham walked past that same
area multiple times while stocking, including between when the
pallet was moved and Smith’s fall. Whigham testified that he was
in a position to see and “would have cleaned” the substance if any-
thing was on the floor, but he did not see anything on the floor
before the falling incident.
The evidence reflects that Walmart’s inspection policies re-
quire each employee to continuously look for safety hazards,
which employees must immediately clean up, remove, or guard
until someone else can assist. That includes checking the floor after
a pallet is moved to ensure that nothing fell or leaked from the pal-
let and created a hazard.
Whigham testified that he followed these inspection policies
at all relevant times and inspected the floor multiple times when
he was in the area before Smith’s fall. In the available surveillance
footage, however, Whigham does not appear to be looking at the
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4 Opinion of the Court 21-11116
ground where the pallet had been. Instead, a reasonable jury could
conclude that he was looking for or moving carts and materials to
stock, as his job was a stocker, and not inspecting the floor for haz-
ards. In addition, while Wofford believed there was nothing on the
floor, he admitted he did not specifically check the floor under the
pallet after he moved it. Other Walmart employees likewise
claimed to have conducted inspections when passing through the
area in the hour or so preceding the fall, but these inspections oc-
curred before the critical time after the pallet was moved at 11:03
p.m. After the pallet was moved, the surveillance footage shows
just one other person besides Whigham and Wofford, apparently a
patron, passing by the incident area, but the person took a different
route than Smith and her boyfriend.
After the fall, Smith noticed her leg was covered in “liquid,
sticky stuff,” which she believed was some “type of soapy liquid.”
Smith went to the bathroom to clean up, and the substance
“foamed up” when she put water on it. When she returned to the
scene of the fall, she saw a “shiny” substance that “looked, like,
streaked” and was “darker than the floor in areas.” Smith’s boy-
friend described seeing on the floor a “shiny” substance with a “blu-
ish tint” that “had been smeared” and had a “fragrant smell.” Ac-
cording to her boyfriend, the smeared substance “wasn’t hard to
see.” Whigham, for his part, responded to Smith’s fall and ob-
served a “clear/light” liquid substance on the floor that had been
smeared.
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21-11116 Opinion of the Court 5
A picture of the floor taken on the night of the incident, con-
strued in the light most favorable to Smith, depicts a white blob
and a streak that are not present in later pictures of the same area,
suggesting these two marks were temporary. There is also evi-
dence that, on the night of the incident, Walmart employees dis-
covered that a pallet of pet food was partially covered in a foamy
substance. The parties dispute whether the pallet Wofford moved
at 11:03 p.m. was the same pallet that had the foamy substance on
it, and the testimony on this point is far from clear. Although
Whigham was adamant that the pallets were distinct, he also testi-
fied that the pallet with the foamy substance was moved “through-
out the night” and could not fully account for its location, so his
testimony does not rule out the possibility that the foamy pallet
traversed the area where Smith fell. In any case, the pallet dispute
is not material to our resolution of this appeal.
II.
Smith sued Walmart for negligence in state court, and
Walmart removed the action to the U.S. District Court for the
Northern District of Georgia based on diversity jurisdiction. See
28 U.S.C. § 1332. Following discovery, Walmart moved for sum-
mary judgment. The district court granted that motion, conclud-
ing that Walmart lacked either actual or constructive notice of the
hazard. The court found that Walmart employees conducted rea-
sonable inspections of the area immediately before Smith’s fall and
did not see anything on the floor. Smith now appeals.
III.
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We review the district court’s grant of summary judgment
de novo, construing the evidence and drawing all reasonable infer-
ences in favor of Smith, the non-moving party. Carlson v. FedEx
Ground Package Sys., Inc.,
787 F.3d 1313, 1317 (11th Cir. 2015).
Summary judgment is appropriate if “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).
Because this is an action in diversity, see
28 U.S.C. § 1332,
state substantive law determines the elements of Smith’s negli-
gence claim and the materiality of evidence. See Carlson, 787 F.3d
at 1326. Nevertheless, “the sufficiency of evidence to require jury
submission in diversity cases is a question of federal law.” Lighting
Fixture & Elec. Supply Co. v. Cont’l Ins. Co.,
420 F.2d 1211, 1213
(5th Cir. 1969). 1 We therefore do not apply state-law rules regard-
ing the sufficiency of evidence or the drawing of inferences. See,
e.g., Lovins v. Kroger Co.,
512 S.E.2d 2, 4 (Ga. Ct. App. 1999) (“In
passing on a motion for summary judgment, a finding of fact which
may be inferred but is not demanded by circumstantial evidence
has no probative value against positive and uncontradicted evi-
dence that no such fact exists.”). Rather, we apply a federal stand-
ard, under which “a verdict based on circumstantial evidence is not
infirm simply because the evidence supports an equally probable
1
This Court adopted as binding precedent all Fifth Circuit decisions prior
to October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
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21-11116 Opinion of the Court 7
inference to the contrary. It is the jury that chooses among allowa-
ble inferences.” Daniels v. Twin Oaks Nursing Home,
692 F.2d
1321, 1323–26 (11th Cir. 1982).
A.
In Georgia, “a slip-and-fall plaintiff must introduce evidence
which affords a reasonable basis for the conclusion that it is more
likely than not that the conduct of the defendant was a cause in fact
of the result.” J.H. Harvey Co. v. Reddick,
522 S.E.2d 749, 751 (Ga.
Ct. App. 1999) (quotation marks omitted). To do that, the plaintiff
must establish that the defendant had actual or constructive
knowledge of the hazard.
Id. “The mere existence of a dangerous
condition does not render the proprietor liable, for the proprietor
is not a guarantor of the invitee’s safety.” Moore v. Food Assoc.,
437 S.E.2d 832, 834 (Ga. Ct. App. 1993).
Because it is undisputed that Walmart lacked actual
knowledge of the hazard, we must determine whether a genuine
issue of material fact remains as to its constructive knowledge. See
Food Lion, Inc. v. Walker,
660 S.E.2d 426, 428 (Ga. Ct. App. 2008).
To establish constructive knowledge, “the plaintiff must show the
defendant could have found and removed the hazard.” Blake v.
Kroger Co.,
480 S.E.2d 199, 201 (Ga. Ct. App. 1996).
Constructive knowledge may be inferred in two scenarios.
The first is where a store employee was “in the immediate vicinity
of the dangerous condition and could easily have noticed and re-
moved the hazard.” Daniel v. John Q. Carter Enters., Inc., 460
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11116
S.E.2d 838, 839 (Ga. Ct. App. 1995). Evidence of a store employee’s
mere presence “in the area of the hazard is not sufficient, standing
alone, to raise a jury question” of constructive knowledge. Blocker
v. Wal-Mart Stores, Inc.,
651 S.E.2d 845, 847 (Ga. Ct. App. 2007).
Rather, “it must be shown that the employee was in a position to
have easily seen the substance and removed it.”
Id.
Second, constructive knowledge may be inferred where the
defendant’s failure to discover the foreign substance was due to the
“breach of [its] legal duty to inspect the premises.” Daniel, 460
S.E.2d at 840. Ordinarily, the plaintiff is required to show that “the
foreign substance remained long enough that ordinary diligence by
the store employees should have discovered it.” Food Lion,
660
S.E.2d at 428. But “a plaintiff need not show how long a substance
has been on the floor unless the defendant has established that rea-
sonable inspection procedures were in place and followed at the
time of the incident.” Straughter v. J.H. Harvey Co., Inc.,
500
S.E.2d 353, 355 (Ga. Ct. App. 1998). Nonetheless, “no inference can
arise that defendant’s failure to discover the substance was the re-
sult of its failure to inspect” unless there is “evidence that a reason-
able inspection would have discovered the foreign substance.”
Blake,
480 S.E.2d at 202.
B.
Smith contends that she established Walmart’s constructive
knowledge under both prongs by producing evidence that (1)
Walmart stocker Whigham was in the immediate vicinity of the
hazard and could easily have seen and removed it; and (2) Walmart
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21-11116 Opinion of the Court 9
employees, including Whigham, failed to conduct reasonable in-
spections of the floor where Smith fell. Walmart responds that it
cannot be held liable because it conducted reasonable inspections
of the area and no hazard was discovered, which also means, in its
view, that the hazard could not have been easily seen and removed
if it existed at all.
Here, we agree with Smith that genuine issues of material
fact preclude the grant of summary judgment to Walmart. To
begin with, a reasonable jury could conclude that Smith slipped on
a hazard that was present on the floor of action alley once the pallet
in that location was moved at 11:03 p.m., even assuming the evi-
dence does not establish the source of the hazard. 2 Surveillance
footage indicates that Smith fell in the same area where the pallet
had been located. In addition, Smith, her boyfriend, and Whigham
all reported seeing a streaked or smeared liquid substance on the
floor after Smith’s fall, and Smith described having “liquid, sticky
stuff” on her leg after the fall which foamed up when she tried to
clean it off.
Moreover, the record evidence places two Walmart employ-
ees in the immediate vicinity of the hazard around the time of
2 As noted above, Smith contends that the pallet that was moved at 11:03
p.m. was the same pallet found to have been partially covered in a foamy
substance, which the district court described as having “logical appeal” but
not evidentiary support. We need not resolve this issue because the jury
does not need to identify the source of a hazard to determine that a hazard
existed.
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10 Opinion of the Court 21-11116
Smith’s fall. Wofford moved the pallet from the location where
Smith fell approximately ten minutes later. And surveillance foot-
age shows Whigham walking past the incident area multiple times
between when the pallet was moved and when Smith fell.
Whigham also confirmed in his testimony that he was in a position
to see and clean any hazard present where Smith fell.
Walmart does not dispute this evidence, but it contends that
it conducted reasonable inspections shortly before Smith’s fall and
that the hazard was not easily visible. Otherwise, Walmart asserts,
Whigham and others would have seen and removed it.
Viewing the evidence in the light most favorable to Smith,
we conclude that there are genuine issues of material fact as to
those matters. With respect to the reasonableness of inspections,
Wofford admitted he did not check the area where the pallet had
been when he moved it at 11:03 p.m., even though Walmart’s in-
spection policies called for checking the floor after a pallet was
moved to ensure that nothing fell or leaked from the pallet and cre-
ated a hazard. And a jury could find based on the surveillance foot-
age that Whigham did not, as he claimed, inspect the floor after the
pallet was moved and instead was focused on stocking items.
Walmart claims that four other Walmart employees also inspected
the area and found no hazard, but these inspections occurred be-
fore the pallet was moved, so their observations are consistent with
Smith’s theory that a hazard was uncovered when the pallet was
moved. From all this, a jury could reasonably conclude that
Walmart’s inspection procedures, the reasonableness of which is
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21-11116 Opinion of the Court 11
not disputed, were not “followed at the time of the incident.” See
Straughter,
500 S.E.2d at 355.
In addition, the record includes evidence tending to show
that Whigham or Wofford “could easily have noticed and removed
the hazard” had they exercised reasonable care. Daniel, 460 S.E.2d
at 839. Smith’s boyfriend testified that the substance “wasn’t hard
to see”; Smith testified that the substance made the floor “darker”;
and Whigham testified that he saw a “clear/light” liquid substance
on the floor that had been smeared. While hardly conclusive, we
think there’s enough evidence for a reasonable jury to infer that the
substance “was visible from a standing position” before Smith’s fall,
such that Walmart can be charged with constructive knowledge of
the hazard. See Food Lion,
660 S.E.2d at 429 (citing evidence “that
the spill was visible from a standing position” in finding a genuine
issue of material fact as to whether a reasonable inspection proce-
dure would have detected the hazard). That Smith and her boy-
friend did not see anything on the floor before the fall does not de-
feat her claim. See Davis v. Bruno’s Supermarkets, Inc.,
587 S.E.2d
279, 282 (Ga. Ct. App. 2003) (“The Supreme Court of Georgia has
rejected any requirement that an invitee look continuously at the
floor for defects, holding that the invitee is entitled to assume that
the owner/occupier has exercised reasonable care to make the
premises safe.”).
For these reasons, Smith has created genuine issues of mate-
rial fact as to Walmart’s constructive knowledge, specifically
whether Walmart “could have found and removed the hazard” had
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it excised reasonable care to make the premises safe. Blake,
480
S.E.2d at 201. We therefore vacate the grant of summary judgment
to Walmart, and we remand for further proceedings consistent
with this opinion.
VACATED AND REMANDED.
