USCA11 Case: 21-10971 Date Filed: 11/15/2021 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10971
Non-Argument Calendar
____________________
CLARA L. GOGGANS,
Plaintiff-Appellant,
versus
TARGET CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:18-cv-01602-MHH
____________________
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2 Opinion of the Court 21-10971
Before ROSENBAUM, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Clara Goggans appeals the district court’s grant of summary
judgment to Target Corporation on her claim that Target’s negli-
gence caused her to trip and fall on a defective door threshold, sus-
taining serious injuries, while leaving a Target store in April 2017.
Because no reasonable jury could conclude that Target had notice
of the defective threshold, a necessary element of Goggans’s claim,
we affirm.
I.
After shopping at a Target store in April 2017, Goggans
parked the motorized cart she had been using in the vestibule area
between the inner and outer sliding doors to the grocery area of
the store. She began walking toward the outside door carrying two
small bags of merchandise and her handbag. When she reached
the threshold of the sliding doors, she tripped and fell to the con-
crete just outside the front door, suffering injuries. It’s undisputed
that in the five years preceding Goggans’s fall, there had been no
report of any injury concerning the doors or the threshold where
she tripped and fell.
According to Roger Davis, a professional forensic engineer
and Goggans’s expert witness, the threshold was defective because
the “inboard portion” of the threshold—a ramped piece of the
threshold inside the store connected to the center portion of
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21-10971 Opinion of the Court 3
threshold, which contained the door track—depressed or “de-
flected” under force and created a difference in level of 3/8 inch
between the inboard portion and the center portion. Davis testi-
fied that the difference exceeded the maximum allowable level of
1/4 inch. And in Davis’s view of the video evidence and Goggans’s
testimony, that tripping hazard caused Goggans’s fall.
For its part, Target offered its own expert, Dan Woosley, an
architect and certified access specialist, who inspected the thresh-
old in July 2019 and determined that it was compliant with all ap-
plicable building codes, standards, and ADA requirements. Woos-
ley took measurements of the change in level at three points along
the threshold, with a person roughly “the same stature as Ms. Gog-
gans” standing directly on the inboard portion, and was “unable to
get any deflection/compression at or greater than 1/4 inch.”
Woosley testified that he used specific tools for checking door
thresholds that were “an industry standard with accessibility spe-
cialists nationwide,” and that Davis’s methodology was “flawed
and inaccurate.”
II.
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).
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
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4 Opinion of the Court 21-10971
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a).
An issue of fact is “material” if it goes to a legal element of
the claim under the applicable substantive law, and it might affect
the outcome of the case. Anderson v. Liberty Lobby, Inc.,
477 U.S.
242, 248 (1986). “It is ‘genuine’ if the record taken as a whole could
lead a rational trier of fact to find for the nonmoving party.”
Id. But
“[w]here the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue
for trial,” and summary judgment may be granted. Allen v. Tyson
Foods, Inc.,
121 F.3d 642, 646 (11th Cir. 1997) (quotation marks
omitted).
III.
Under Alabama law, a store has a duty “to exercise reasona-
ble care to provide and maintain reasonably safe premises for the
use of [its] customers.” Denmark v. Mercantile Stores Co., Inc.,
844
So. 2d 1189, 1192 (Ala. 2002). But the store isn’t an insurer of the
customer’s safety, and the doctrine of res ipsa loquitor doesn’t ap-
ply. Ex parte Harold L. Martin Dist. Co., Inc.,
769 So. 2d 313, 314
(Ala. 2000). So “[t]here is no presumption of negligence which
arises from the mere fact of an injury to an invitee.”
Id.
Rather, “[t]he plaintiff[] must prove that the injury was prox-
imately caused by the negligence of [the store owner] or one of its
servants or employees.” Maddox v. K-Mart Corp.,
565 So. 2d 14,
16 (Ala. 1990). To do that, a plaintiff generally “must show not only
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21-10971 Opinion of the Court 5
that he was injured as the result of a defective condition on the
owner’s premises, but also that the owner knew or should have
known of the defective condition” by the exercise of reasonable
care. Edwards v. Intergraph Servs. Co., Inc.,
4 So. 3d 495, 502 (Ala.
Civ. App. 2008); see Denmark,
844 So. 2d at 1192 (“Actual or con-
structive notice of the presence of the substance or instrumentality
that caused the injury must be proven before the store owner can
be held responsible for the injury.” (cleaned up)); Hale v. Sequoyah
Caverns & Campgrounds, Inc.,
612 So. 2d 1162, 1164 (Ala. 1992)
(holding that a plaintiff must prove that “the defendant had or
should have had notice of the defect before the time of the acci-
dent”). Notice to the defendant is critical because “[t]he entire basis
of an invitor’s liability rests upon his superior knowledge of the
danger which causes the invitee’s injuries.” Quillen v. Quillen,
388
So. 2d 985, 989 (Ala. 1980). “[I]f that superior knowledge is lacking,
. . . the invitor cannot be held liable.”
Id.
Nevertheless, according to the Alabama Supreme Court, a
plaintiff need not always produce evidence of notice to avoid sum-
mary judgment “in cases where the alleged defect is a part of the
premises,” such as a loose threshold. Mims v. Jack’s Restaurant,
565 So. 2d 609, 610 (Ala. 1990). According to Mims,
once a plaintiff has made a prima facie showing that a
defect in a part of the premises has caused an injury,
then the question whether the defendant had actual
or constructive notice of the defect will go to the jury,
regardless of whether the plaintiff makes a prima facie
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6 Opinion of the Court 21-10971
showing that the defendant had or should have had
notice of the defect at the time of the accident.
Id.; see also Miller v. Liberty Park Joint Venture, LLC,
84 So. 3d 88,
92 (Ala. Civ. App. 2011) (citing Mims for the proposition that “a
showing of actual or constructive knowledge is not required at the
summary-judgment stage in some special circumstances”). The
court distinguished cases involving transitory substances, explain-
ing that, “[u]nlike a spilled substance, a defective threshold or a cart
or a display rack is a fixture that requires ordinary and reasonable
maintenance in order to provide safe premises for the store’s cus-
tomers.” Mims, 565 So. 2d at 611.
We assume without deciding that Goggans created a jury
question as to whether she was injured because of a defective con-
dition—a metal threshold at a store entrance with a difference in
level greater than 1/4 inch when its inboard portion was depressed
by force—when leaving the Target store in April 2017. Summary
judgment was still appropriate, however, because it’s undisputed
that Target lacked actual notice and no reasonable jury could con-
clude that it “should have had notice of the defect before the time
of the accident.” Hale,
612 So. 2d at 1164.
Goggans responds that no such evidence of notice was nec-
essary to avoid summary judgment under Mims, which she says
governs premises-liability cases involving defective conditions that
are fixtures or part of the premises, such as a door threshold. So in
her view, the district court applied the wrong legal standard when
it granted summary judgment based on her failure to proffer
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21-10971 Opinion of the Court 7
evidence that Target had superior knowledge of the condition of
the threshold. According to Mims, Goggans asserts, that issue was
for the jury.
The central flaw in Goggans’s argument is the assumption
that Alabama state law determines whether she presented suffi-
cient evidence to get to a jury in federal court. Because this is an
action in diversity, see
28 U.S.C. § 1332, state substantive law de-
termines the elements of her negligence claim and the materiality
of evidence. See Carlson, 787 F.3d at 1326.
But “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; see Daniels v. Twin Oaks Nursing Home,
692 F.2d 1321,
1323–24 (11th Cir. 1982) (“[F]ederal law controls questions of the
sufficiency of the evidence in state law claims.”). State-court deci-
sions on issues of evidentiary sufficiency for trial aren’t “binding in
the Rule 56/summary judgment sense,” even if they ordinarily will
guide the analysis of federal courts when determining whether the
facts before them present a genuine issue for trial. Carlson, 787
F.3d at 1326–27 (resolving an appeal consistent with a state appel-
late court decision because the facts in the federal case “closely
1This 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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8 Opinion of the Court 21-10971
parallel[ed] the facts” in the state case, and the state appellate court
applied a summary-judgment standard “very similar” to Rule 56).
Because the question of “whether a trial is necessary is a mat-
ter of federal law,” Lighting Fixture & Elec. Supply,
420 F.2d at
1213, the district court didn’t err by failing to treat Mims as binding
in this case. Nothing in Mims purports to change state substantive
law regarding what Goggans must prove to prevail on her claim.
See
id. It merely said that the issue of whether a defendant has
actual or constructive notice “will to go the jury” “once a plaintiff
has made a prima facie showing that a defect in a part of the prem-
ises has caused an injury.” Mims,
565 So. 2d at 611. To prevail on
her negligence claim, a jury still would have to conclude that Tar-
get “had or should have had notice of the defect at the time of the
accident.” See
id. (“[T]he question whether Jack’s should have
known that the threshold was defective was a question for the
jury.”). Under federal summary-judgment standards, therefore, it
was appropriate to require Goggans to show that a jury could rea-
sonably infer such notice should the case proceed to trial. See Al-
len,
121 F.3d at 646 (“Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there
is no genuine issue for trial.”).
Although we don’t treat Mims as binding, we don’t think
our decision conflicts with the result in that case because its facts
don’t “closely parallel” the facts here. See Carlson, 787 F.3d at
1326–27. In Mims, the plaintiff tripped at the main entrance of the
restaurant on a loose threshold, and a witness testified that a few
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21-10971 Opinion of the Court 9
screws “that had moored the threshold to the floor were missing.”
565 So. 2d at 610. A jury faced with these facts could reasonably
infer that the defective condition of the threshold—likely caused by
screws becoming loose over time through repeated use of the
threshold—would have been discovered through the exercise of
“ordinary and reasonable care,” such as a simple visual inspection
similar to that performed by the witness who noticed the missing
screws. See id. at 610–11; cf. Edwards,
4 So. 3d at 502, 506 (granting
summary judgment in part because the plaintiff “presented no evi-
dence indicating that [the defendant], by inspecting the flooring on
its basketball court, could have discovered the defect that allegedly
caused his injury”). 2 Because fixtures like thresholds require “ordi-
nary and reasonable maintenance,” it follows that a jury could ra-
tionally conclude that the plaintiff’s injuries were caused by the
negligence of the store or its employees. See Maddox,
565 So. 2d
14, 16
Here, though, there’s no comparable evidence showing that
Target would have discovered the defect by the exercise of reason-
able care. See Mims,
565 So. 2d at 610–11; Edwards,
4 So. 3d at 502.
Goggans suggests that “someone at Target should have been
2 As observed by the Alabama Court of Civil Appeals, holding a store “liable
for any accident resulting from what could be considered a defect in the prem-
ises without regard to whether the defect could possibly have been detected
by the premises owner” would “run counter to the long-standing principles of
premises liability, including the principle that such liability is premised upon
the superior knowledge of the premises owner of the conditions on the prem-
ises.” Burlington Coat Factory, 156 So. 3d at 969 n.4.
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10 Opinion of the Court 21-10971
making sure that the threshold was firm and secure and that the
rise in the deflection did not exceed ADA standards and constitute
a tripping hazard.” But the evidence fails to show that a reasonable
inspection would have uncovered the hidden defect. As the district
court cogently explained,
Two experts using technical instruments, applying
precise amounts of pressure to calculate very specific
measurements came to separate conclusions—sepa-
rated by 1/8 of an inch—about whether the deviation
was acceptable or not. For Target to know of the al-
leged defect, it would have at least required the same
degree of inspection that the experts undertook. And
even then, as the dueling expert conclusions demon-
strate, Target still may not have discovered the al-
leged defect. The duty to protect business invitees
does not require such an exacting inspection to un-
cover possible hidden defects.
Goggans doesn’t identify any case from the Alabama courts hold-
ing that the duty to perform ordinary and reasonable maintenance
of fixtures requires such an “exacting inspection” from a defendant,
particularly where, as here, the evidence fails to show any prior in-
cidents or injuries concerning the doors or the threshold where she
tripped and fell.
For these reasons, we agree with the district court that Gog-
gans failed to identify sufficient evidence for a reasonable jury to
conclude that Target should have known of the defective condition
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21-10971 Opinion of the Court 11
of the threshold had it exercised ordinary and reasonable care to
make the premises safe. See Edwards,
4 So. 3d at 502. Because
notice to the defendant is an essential component of Goggans’s
claim, see Quillen,
388 So. 2d at 989, the court properly granted
summary judgment to Target. 3
AFFIRMED.
3 We reject Goggans’s argument that the district court violated her due-pro-
cess rights or otherwise reversibly erred by granting summary judgment on a
ground not raised in Target’s motion for summary judgment. Rule 56, Fed.
R. Civ. P., permits a court to enter summary judgment “on grounds not raised
by a party” “[a]fter giving notice and a reasonable time to respond.” Fed. R.
Civ. P. 56(f). Although the court failed to give such notice before it granted
Target’s motion, it then held a hearing on Goggans’s motion to alter or
amend—which raised that failure as an issue—at which Goggans had a rea-
sonable opportunity to argue the issue of Target’s superior knowledge and her
contention that Mims applied. Because Goggans fails to show how she was
harmed by the court’s handling of these matters, and we have reviewed her
arguments as to Mims and notice de novo, any error was harmless. See Res-
tigouche, Inc. v. Town of Jupiter,
59 F.3d 1208, 1213 (11th Cir. 1995) (“Because
[the plaintiff] has not been deprived of the opportunity to present facts or ar-
guments which would have precluded summary judgment in this case, any
violation of the . . . notice rule is harmless.”).
