Sherrie Brown v. Publix Super Markets, Inc. , 626 F. App'x 793 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10504
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-03099-WBH
SHERRI BROWN,
KELVIN BROWN,
Plaintiffs - Appellants,
versus
PUBLIX SUPER MARKETS, INC.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(September 8, 2015)
Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Sherri Brown sued Publix Super Markets, Inc., to recover for injuries she
sustained when she slipped and fell in one of its Georgia stores. Mrs. Brown
brought a claim for negligence, and her husband, Kelvin Brown, brought a claim
for loss of consortium. The district court granted Publix’s motion for summary
judgment. Mrs. Brown appeals, arguing that the district court committed various
errors.
After review of the record and the parties’ briefs, we affirm.
I
Mrs. Brown fell in the store’s deli section in an area adjacent to the deli
counter. Two long floor mats ran the length of the deli counter. To the right of the
counter was an opening through which Publix employees could pass to access the
area behind the counter. The floor mats did not cover that area of the floor. Mrs.
Brown slipped in that open area as she stepped off one of the floor mats.
Mrs. Brown testified that she slipped on black grease spots and that she saw
the spots only after she had fallen. See D.E. 18-3 at 4 (Brown Aff. ¶¶ 15–17). She
also testified that the spots were each about the size of a quarter, covered a total
area of approximately two inches by two inches, and were not “easily visible.” See
D.E. 18-4 at 5, 9 (Brown Dep. 67:22–68:24, 82:24–83:5). Two Publix employees,
who were present immediately after Mrs. Brown fell, stated in their sworn
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affidavits that they looked for and did not see any foreign substance on the floor.
See D.E. 13-3 at 4 (Draves Aff. ¶ 8); D.E. 13-4 at 4 (Johnson Aff. ¶ 8).
Forty-three minutes of security video footage—not part of the record on
appeal—captured Mrs. Brown’s fall and the period immediately before and after.
The district court concluded that the video lacked the detail necessary to determine
whether any substance was on the floor where Mrs. Brown fell. See D.E. 31 at 1
(“The video is of insufficient quality to make any judgment about the condition of
the floor.”). The district court noted that the footage revealed that several Publix
employees, including the store manager, walked over or stood in the area where
Mrs. Brown fell. Id. at 2. According to Mrs. Brown, at two points in the video,
Publix employees are seen walking over the area while carrying containers of clear
liquid. See Appellant’s Br. at 7–9. Mrs. Brown testified that she did not see the
two employees carrying the containers of clear liquid, did not see them
transporting the containers in such a way that the substance could spill, did not see
how the spots got on the floor, and did not see the spots until she had fallen. See
D.E. 18-3 at 3–4 (Brown Aff. ¶¶ 9–10, 17).
Publix has a “Don’t pass it up. Pick it up!” safety policy. The policy
requires all Publix employees to be vigilant in looking for spills or other potential
hazards on store premises and to immediately clean up or correct those hazards.
D.E. 18-15 at 3–4 (Pl.’s Ex. K at 3-4). The store manager, Daniel Draves, and the
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assistant deli manager, Denise Johnson, both testified that Publix employees
inspected the area where Mrs. Brown fell—by visually scanning the floor pursuant
to Publix’s policy—at least four times in the approximately fifteen minutes prior to
the incident. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4 at 3 (Johnson Aff. ¶
7).
The district court granted summary judgment in favor of Publix, ruling that
Mrs. Brown could not demonstrate that the store had constructive knowledge of the
black grease spots. See D.E. 31 at 5. The district court concluded that Mrs. Brown
did not prove that the black grease spots were easily seen, nor did she provide any
evidence to show the length of time that the spots were on the floor. Id. The court
also found that Mrs. Brown’s failure to present evidence regarding the length of
time the black grease spots were on the floor precluded any argument regarding the
reasonableness of Publix’s inspection policies. Id. at 7. Finally, as to Ms. Brown’s
argument that an employee spilled something in the area where she fell, the district
court ruled that there was “no basis from which the jury could find that it was more
likely than not that an employee spilled anything.” Id. at 7–8.
Mrs. Brown argues that the district court committed three errors: (1) it
incorrectly found that Publix lacked constructive knowledge of the alleged grease
spots on the floor; (2) it failed to afford her proper reasonable inferences regarding
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the facts; and (3) it erroneously dismissed Mr. Brown’s loss of consortium claim as
derivative of Mrs. Brown’s negligence claim.
II
We review an order granting summary judgment de novo. See Raney v.
Aware Woman Ctr. for Choice, Inc., 224 F.3d 1266, 1268 (11th Cir. 2000). We
view the facts and reasonable inferences in the light most favorable to Mrs. Brown.
See Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1231 (11th Cir. 2011).
Summary judgment is appropriate only if there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 311 (1986). A genuine issue
of material fact exists if the “evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986). “[A]n inference based on speculation and conjecture is not reasonable.”
Chapman v. Am. Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988).
To prevail on a slip-and-fall claim under Georgia law, a plaintiff “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 actions or conditions within the control of the
owner/occupier.” Robinson v. Kroger Co., 493 S.E.2d 403, 414 (Ga. 1997). The
second element is not at issue here. Publix does not dispute that Mrs. Brown
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exercised ordinary care; nor does it dispute that she lacked knowledge of any
potential hazard. Actual knowledge is also not at issue, because Mrs. Brown
alleged only that Publix had constructive knowledge.
“Constructive knowledge can be proven by showing either (1) that an
employee of the proprietor was in the immediate area of the hazardous condition
and could have easily seen the substance or (2) that a foreign substance remained
on the floor for such a time that ordinary diligence by the proprietor should have
effected its discovery.” J.H. Harvey Co. v. Reddick, 522 S.E.2d 749, 752 (Ga. Ct.
App. 1999) (internal quotation marks and citation omitted). Under the second
method, such knowledge
may be inferred when there is evidence that the owner lacked a
reasonable inspection procedure. In order to prevail at summary
judgment based on lack of constructive knowledge, the owner must
demonstrate not only that it had a reasonable inspection program in
place, but that such program was actually carried out at the time of the
incident.
Shepard v. Winn Dixie Stores, Inc., 527 S.E.2d 36, 38 (Ga. Ct. App. 1999) (internal
quotation marks and footnote omitted). See also Ginn v. Grothere, 469 S.E.2d
876, 878 (Ga. Ct. App. 1996) (explaining that “a defendant can establish lack of
actionable constructive knowledge by evidence of compliance with reasonable
inspection . . . procedures”) (internal quotation marks and citation omitted).
Nevertheless, under Georgia law, “[i]t is well settled that a proprietor is under no
duty to patrol the premises continuously in the absence of facts showing that the
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premises are unusually dangerous.” Mazur v. Food Giant, Inc., 359 S.E.2d 178,
179 (Ga. Ct. App. 1987). See also Blake v. Kroger Co., 480 S.E.2d 199, 202 (Ga.
Ct. App. 1996) (“We know of no case or rule which requires a proprietor or its
employees to crawl on the floor at regular intervals to discover and remove every
otherwise hidden or invisible hazard.”).
To survive summary judgment under the second method of proving
constructive knowledge, a plaintiff must prove the period of time that the
hazardous condition existed. See Ginn, 469 S.E.2d at 878. “Without such (proof)
it would not be possible to determine whether the defendant had been afforded a
reasonable time within which to inspect and remove the hazard.” Id. (internal
quotation marks omitted). “[T]he plaintiff need not show how long the hazard had
been present[, however,] unless the owner has demonstrated its inspection
procedures.” Shepard, 527 S.E.2d at 38 (finding that a store did not demonstrate
inspection procedures where store manager’s affidavit discussed the store’s general
inspection policy but did not address whether the manager possessed personal
knowledge of inspections carried out on the day of the slip-and-fall incident).
Georgia courts have repeatedly held that, regardless of any inspection
policy, “where a proprietor . . . show[s] that an inspection occurred within a brief
period prior to an invitee's fall, . . . the inspection procedure [is] adequate as a
matter of law.” J.H. Harvey Co., 522 S.E.2d at 753 (collecting cases). See also
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Mucyo v. Publix Super Markets, Inc., 688 S.E.2d 372, 376 (Ga. Ct. App. 2009)
(same).
III
The district court correctly granted summary judgment in favor of Publix.
Mrs. Brown was unable to produce sufficient evidence to create a genuine issue of
material fact with respect to constructive knowledge. In fact, much of the record
evidence is contrary to Mrs. Brown’s version of the events and the bulk of her
testimony is purely speculative.
A
We first address Mrs. Brown’s argument that the district court erred in
finding that Publix lacked constructive knowledge of the black grease spots. As
discussed earlier, there are two ways of proving constructive knowledge: (1) by
establishing that an employee of the proprietor was in the immediate area of the
hazardous condition and could have easily seen the substance; or (2) by showing
that the foreign substance remained on the floor for such a time that ordinary
diligence by the proprietor should have effected its discovery. See J.H. Harvey
Co., 522 S.E.2d at 752.
As to the first method of proving constructive knowledge, there is no dispute
that Publix employees were in the area around the time Mrs. Brown fell. Two
Publix employees testified that several store personnel traversed the area where
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Mrs. Brown fell. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4 at 3 (Johnson
Aff. ¶ 7). The district court ruled that the surveillance video corroborated this
testimony. See D.E. 31 at 2. There is no evidence, moreover, that Publix
employees could have easily seen the substance Mrs. Brown slipped on. In fact,
the evidence leads to the opposite conclusion.
Mrs. Brown testified that the black grease spots were the size of quarters and
covered only a two by two inch area, that she only saw them once she was on the
floor, and that the spots were not “easily visible.” See D.E. 18-4 at 5, 9 (Brown
Dep. 67:22–68:24, 82:24–83:5). Additionally, two Publix employees testified that
they did not see black grease spots on the floor at all. See D.E. 13-3 at 4 (Draves
Aff. ¶ 8); D.E. 13-4 at 4 (Johnson Aff. ¶ 8). Although we accept that the black
grease spots existed, constructive knowledge cannot be established from this
evidence. See, e.g., Mucyo, 688 S.E.2d at 374 (finding that, because no evidence
showed that the purported hazard was readily visible to plaintiff and others in the
vicinity, the plaintiff did not establish that an employee could have easily seen and
removed the hazard); Brown v. Host/Taco Venture, 699 S.E.2d 439, 443 (Ga. Ct.
App. 2010) (finding that the plaintiff did not establish that the defendant could
have easily seen a grease spot where the plaintiff testified that the grease spot was
not “easily visible,” and it was not apparent to him until after he had fallen).
Moreover, the store manager and assistant deli manager testified that Publix
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employees inspected the area where Mrs. Brown fell at least four times in the
fifteen minutes before the incident. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4
at 3 (Johnson Aff. ¶ 7). Publix’s inspection of the area before the incident is
therefore deemed adequate as a matter of law and summary judgment in favor of
Publix was appropriate. See J.H. Harvey Co., 522 S.E.2d at 753; Mucyo, 688
S.E.2d at 376.
The second way to prove constructive knowledge is by showing that the
substance remained on the floor for a sufficiently long time for an employee to
have discovered it. Mrs. Brown cannot prevail on this theory either. There is no
evidence whatsoever as to how long the substance was on the floor. Mrs. Brown
claimed that the substance had been on the floor for “almost an hour,” see D.E. 18
at 22, but she provided no evidence to support this claim. Such speculation,
unsupported by evidence, cannot defeat summary judgment. See Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create
a genuine issue of fact; instead, it creates a false issue, the demolition of which is a
primary goal of summary judgment.”) (quoting Hedberg v. Ind. Bell Tel. Co., 47
F.3d 928, 931–32 (7th Cir.1995) (emphasis in original)). And there was evidence
that Publix employees inspected the area four times in the fifteen minutes before
Mrs. Brown fell. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4 at 3 (Johnson
Aff. ¶ 7). Publix’s inspection of the area before the incident is therefore deemed
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adequate as a matter of law and summary judgment in favor of Publix was
appropriate. See J.H. Harvey Co., 522 S.E.2d at 753; Mucyo, 688 S.E.2d at 376.
B
Mrs. Brown argues that constructive knowledge could be inferred because
Publix’s “Don’t pass it up. Pick it up!” inspection policy is unreasonable in that it
does not require employees to conduct regular, documented inspections of the
floor. This argument is unavailing.
As the district court correctly noted, “establishing constructive knowledge
by showing that the business failed to exercise reasonable care in inspecting the
premises ‘requires proof of the length of time the dangerous condition was allowed
to exist[.]’” D.E. 31 at 7 (quoting Sheriff v. Hosp. Auth. of Houston Cnty., 471
S.E.2d 3, 4 (Ga. Ct. App. 1996)). And, as discussed above, Mrs. Brown’s
argument that the black grease spots were on the floor for almost an hour is
speculative.
To the extent Mrs. Brown argues that the video does not show Publix
employees looking down at the floor to support her claim that they did not inspect
the floor, we are unpersuaded. The video is not part of the record on appeal, and
we therefore cannot determine whether Mrs. Brown’s argument is correct. See
Selman v. Cobb Cnty. School Dist., 449 F.3d 1320, 1333 (11th Cir. 2006) (“[T]he
burden is on the appellant to ensure the record on appeal is complete[.]”).
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IV
Mrs. Brown argues that the district court did make not reasonable inferences
in her favor. Specifically, she contends that the district court improperly
concluded that because she testified that she did not easily see the grease spots, the
Publix employees likewise could not have easily seen the hazard and corrected it.
But, as explained above, there was no evidence presented by Mrs. Brown that the
grease spots could have been easily seen. Additionally, the Publix employees
testified that they did not see the black grease spots at all. Therefore, the district
court made the only inference that was reasonable to make—the black grease spots
were not easily visible.
Mrs. Brown further argues that the district court improperly inferred from
the Publix employees’ testimony (and from the surveillance video footage) that
Publix conducted an inspection of the area where Mrs. Brown fell. She argues that
the Publix employees’ testimony contradicts the surveillance video footage
because the employees seen in the video are not actually looking down at the floor
as they pass over the area where Mrs. Brown fell. Again, we do not have the video
to review. In any event, in the absence of any evidence that the black grease spots
were easily visible it is irrelevant whether the Publix employees conducted an
actual inspection of that area. See Blake, 480 S.E.2d at 202 (“[I]n the absence of
evidence that a reasonable inspection would have discovered the foreign substance,
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no inference can arise that defendant's failure to discover the substance was the
result of its failure to inspect.”).
V
Finally, Mrs. Brown argues that because the district court improperly
granted summary judgment on her negligence claim, it likewise improperly granted
summary judgment on her husband’s loss of consortium claim. We disagree.
Under Georgia law, loss of consortium claims are derivative actions that
stem from the rights of a spouse. See Henderson v. Hercules, Inc., 324 S.E.2d 453,
454 (Ga. 1985). Where an individual possesses no right to recover, his or her
spouse likewise possesses no right to recover. See Douberly v. Okefenokee Rural
Elec. Membership Corp., 246 S.E.2d 708, 709 (Ga. Ct. App. 1978) (finding that,
since the appellees were not liable for injuries to the appellant, they were not liable
to appellant's wife for any loss of consortium attributable to those injuries).
Because the district court properly granted summary judgment in favor of Publix
on Mrs. Brown’s negligence claim, it was correct in doing the same with regard to
Mr. Brown’s derivative loss of consortium claim.
VI
For the forgoing reasons, we affirm the district court’s order granting
summary judgment in favor of Publix.
AFFIRMED.
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