Adriana Mendez v. Wal-Mart Stores East, LP ( 2023 )

USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 1 of 17
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13637
Non-Argument Calendar
____________________
ADRIANA MENDEZ,
Plaintiff-Appellant,
versus
WAL-MART STORES EAST, LP,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-03422-AT
____________________
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 2 of 17
2 Opinion of the Court 22-13637
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
BRANCH, Circuit Judge:
Adriana Mendez appeals the district court’s order granting
summary judgment in favor of defendants Wal-Mart Stores, Inc.
and Wal-Mart Stores East, LP, (“Walmart”) in her “slip and fall”
negligence suit under Georgia law. On appeal, Mendez argues that
the district court erred in (1) analyzing her slip and fall claim under
a premises liability theory instead of an active negligence theory,
and (2) denying her spoilation of evidence claim and related
sanctions request. After review, we affirm.
I. Background
The events giving rise to this negligence case occurred over
a nine-minute period on the evening of September 15, 2018, at a
Walmart in Lawrenceville, Georgia. Specifically, that evening,
Mendez and her two grandchildren checked out after shopping at
Walmart and headed to Mendez’s car. When Mendez reached her
vehicle, she realized that she had been charged twice for the same
item and walked back into the store to dispute the charge with
customer service. At 7:52 p.m., while Mendez was waiting for
assistance at customer service, a Walmart employee, Davanta
Douglas, conducted a routine walk-through safety inspection of
the area where Mendez would later slip. He did not see any liquid
or foreign substance on the floor during that inspection and “the
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 3 of 17
22-13637 Opinion of the Court 3
floor was dry, clean, and free of debris.” Within the next five
minutes, numerous individuals traversed the same area.
At 7:57 p.m., while waiting for assistance, Mendez walked a
few steps away from the customer service area to purchase a
scratch-off lottery ticket. Less than a minute later, a Walmart
employee, Andres Valdez, pushed a shopping cart full of bags of
trash through the front of the store and parked it in front of the
customer service desk area for less than a minute. 1 While the cart
with trash was parked near the service desk area, Douglas
conducted another walk-through inspection, and he did not see any
liquid on the floor. Nor did he see any liquid trailing from the cart
with trash in it. A few seconds after Douglas’s walk-through,
Valdez removed the shopping cart with trash from the area.
Less than a minute later, Mendez finished up at the lottery
machine and started walking back to the customer service desk,
when she slipped and stumbled forward. Two Walmart employees
who were standing nearby caught her and prevented her from
falling to the ground.
Mendez had an unobstructed view of the floor before she
slipped, and she did not see any trash or liquid on the floor. After
1 Video footage from the store showed Valdez stumble and fall at one point
while pushing the cart—in a different area from where Mendez later slipped—
and he testified during his deposition that he did not remember what caused
him to fall. However, he also stated that he had fallen “[l]ots of times” at work
because he was physically disabled and overworked.
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 4 of 17
4 Opinion of the Court 22-13637
she slipped, she saw some liquid on the floor where she had slipped.
She could not recall the size or color of the liquid but noted that “it
wasn’t that conspicuous.” Douglas alleged that, after closer
inspection, he observed a small spot of brown liquid “the size of a
dime or a nickel,” which was “not in sight” prior to Mendez
slipping.
Two days after the incident, pursuant to Walmart’s standard
protocol when there is an incident on the store’s premises,
Walmart’s Asset Protection Associate, Folake Olanrewaju,
preserved 16 hours of video in the form of two-hour clips from
eight different cameras documenting the area of the incident.
Meanwhile, four days after the incident, Mendez’s attorneys
sent a spoliation letter to Walmart, advising it that litigation was
anticipated and directing Walmart to maintain and preserve
various information, including video footage from the date of the
accident.
Thereafter, Mendez brought a negligence action against
Walmart in the State Court of Gwinnett County, seeking damages
for injuries that she suffered from the slip, including injuries to her
lower back, neck, and right shoulder. In her complaint, she alleged
that Walmart had a duty to maintain and inspect the store’s
premises and to ensure that it was free of hazards which could
cause harm to invitees, including Mendez. She maintained that, on
September 15, 2018, Walmart “and/or their employees or agents
for whom [Walmart] [is] vicariously liable” “caused, created
and/or permitted an unsafe, dangerous and hazardous condition
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 5 of 17
22-13637 Opinion of the Court 5
to exist” in the form of “liquid on the floor,” and “failed to
undertake reasonable inspections of the premises” and eliminate
the dangerous condition. Mendez alleged that Walmart knew or
should have known of the dangerous condition, and the dangerous
condition resulted in her injury. Walmart removed the action to
federal court based on diversity jurisdiction.
During discovery, it was revealed that one of the preserved
video clips covered the wrong time frame. Specifically, while the
other video clips reflected one hour before and one hour after the
incident from 7:00 to 9:00 p.m., one clip was from 5:00 to 7:00 p.m.,
prior to the incident. When asked about this discrepancy in the
footage, Olanrewaju stated in her deposition that it was her
intention to preserve the footage from 7:00 p.m. to 9:00 p.m., and
that she did not know why the wrong footage was saved. She
explained that, when transferring the footage to a DVD, she had
synced the same time frame for all eight cameras, and she did not
know why one “skipped two hours behind.” Olanrewaju never
reviewed the preserved video footage to make sure that the correct
footage was preserved, explaining that reviewing the footage after
transferring it to a DVD was not part of the process.
Additionally, during discovery, it was revealed that, a few
days after the accident, Walmart employee Valdez received
disciplinary action because he “was observed on camera taking the
trash th[r]ough the store in a buggy [in violation of Walmart’s trash
collection policy,] and the trash bag was leaking through the store
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 6 of 17
6 Opinion of the Court 22-13637
and caused a customer accident.” 2 Valdez was instructed to use
the company trash bins designated for collecting trash and to see a
member of management if he had any questions.3
Walmart moved for summary judgment, arguing that it was
entitled to summary judgment because Mendez could not show
that it had actual or constructive knowledge of the dangerous
condition. Walmart also argued that Mendez could not establish a
claim of active negligence based on the alleged leaking trash bags
because she failed to present a specific act or omission attributable
to Walmart that constituted active negligence or any admissible
evidence demonstrating that the bags were in fact leaking or that
any such leak occurred in the incident area. Mendez opposed
Walmart’s motion for summary judgment, asserting that a genuine
issue of fact existed as to whether the “active negligence” of Valdez
caused her slip and fall (in which case knowledge of the hazard is
imputed to the employer), or whether Walmart, at a minimum,
2 The manager who issued the disciplinary action stated he did not know if
the “customer accident” referred to in Valdez’s file was Mendez’s accident,
and that he never saw a video of her accident. He also could not recall how
he came to the conclusion that the trash bags in Valdez’s cart were leaking,
but he thought that someone may have told him that the trash bags were
leaking. He also thought that someone may have told him that Mendez’s
accident was because the trash bags were leaking.
3 Walmart’s established trash collection policy required employees to use
designated solid, rolling trash bins to collect trash, not the store’s shopping
carts. A manager testified that the store did not want the shopping carts used
to transport trash because “it is not sanitary” and is “a health issue.”
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 7 of 17
22-13637 Opinion of the Court 7
had constructive notice of the hazard. She also argued that
Walmart had intentionally destroyed video evidence from one of
the cameras in violation of the spoliation letter, and that the
destroyed footage “would have shown the closest, detailed
coverage of the incident itself, [and] exactly what was on the floor.”
She maintained that, based on Walmart’s conduct, she was entitled
to an inference that the destroyed footage was adverse to Walmart,
which would preclude summary judgment. In response, Walmart
argued, in part, that its post-accident disciplinary actions against
Valdez were inadmissible subsequent remedial measures.
The district court granted Walmart’s motion for summary
judgment. Specifically, citing to other district court decisions, the
district court concluded that Mendez did not have a claim for active
negligence because, under Georgia law, a defendant is not liable for
active negligence where an employee unintentionally causes a spill,
and Mendez did not allege that Valdez purposely spilled liquid on
Walmart’s floor.4 Next, the district court concluded that Mendez
was not entitled to an adverse inference or denial of summary
judgment based on spoliation of evidence because the preservation
of the wrong time frame from one of the cameras was
unintentional and the footage would not have shown the incident
4 In reaching this conclusion, the district court determined that the finding
that Valdez caused the spill was not a remedial measure and was admissible.
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 8 of 17
8 Opinion of the Court 22-13637
area. 5 Finally, the district court concluded that Mendez failed to
show that Walmart had constructive knowledge of the hazard
because the evidence showed that (1) no one, including Mendez,
saw the liquid on the floor, and—accepting Mendez’s contention
that the buggy with trash caused the spill—less than one minute
elapsed between the spill and Mendez slipping, which left Walmart
with no time to discover and remove the hazard; and (2) Walmart
had a reasonable inspection procedure in place that was adequate
as a matter of law. Mendez timely appealed.
II. Discussion
A. Whether the district court erred in applying the
premises liability framework to Mendez’s claim
Mendez argues that the district court erred in analyzing her
negligence claim under a premises liability theory because the
evidence established that the liquid hazard on which she slipped
was caused by the active negligence of Valdez who pushed a
shopping cart full of leaking trash through the store in violation of
Walmart’s trash collection policies and procedures.
5 The district court noted that Mendez relied on the factors identified in Flury
v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005), for her argument that
spoliation sanctions and an adverse inference were warranted, but that post-
Flury, the Federal Rules of Civil Procedure had been amended to specifically
address the spoliation of electronically stored information, see Fed. R. Civ. P.
37(e). The district court highlighted that this Circuit has not addressed
whether the Flury factors are still applicable in light of Rule 37(e), but
concluded that regardless Mendez was not entitled to sanctions.
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 9 of 17
22-13637 Opinion of the Court 9
“We review a district court’s grant of summary judgment de
novo, view[ing] the evidence in the light most favorable to the non-
moving party.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d
1121, 1134 (11th Cir. 2020) (en banc) (quotations omitted).
Summary judgment is proper if the evidence shows “that 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); see
also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (“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.” (quotations omitted)). We may
“affirm on any ground supported by the record.” Feliciano v. City
of Miami Beach, 707 F.3d 1244, 1252 n.5 (11th Cir. 2013).
When, as here, federal jurisdiction over the negligence case
is founded on diversity, state law governs the substantive issues.
See ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881
F.3d 1293, 1299 (11th Cir. 2018). “[T]he highest court of the state
is the final arbiter of what is state law. When it has spoken, its
pronouncement is to be accepted by federal courts as defining state
law unless it has later given clear and persuasive indication that its
pronouncement will be modified, limited or restricted.” West v.
Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940). Federal courts sitting
in diversity must also “follow the decisions of intermediate state
courts in the absence of convincing evidence that the highest court
of the state would decide differently.” Stoner v. NY Life Ins. Co.,
311 U.S. 464, 467 (1940).
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 10 of 17
10 Opinion of the Court 22-13637
“Georgia law distinguishes between negligence cases where
a condition on the premises causes injury to someone and those
where an employee’s active negligence causes injury to someone.”
Byrom v. Douglas Hosp., Inc., 792 S.E.2d 404, 408 (Ga. Ct. App.
2016). For example, in Byrom, the Court of Appeals of Georgia
concluded that the plaintiff’s case was an active negligence case
where the plaintiff’s allegations did not “implicate any condition of
the [hospital] premises itself,” and instead attributed the plaintiff’s
injuries to the nurse’s inaction in “fail[ing] to raise the foot pedals
of the wheelchair or otherwise assist [the plaintiff] in exiting the
wheelchair,” which resulted in the patient’s fall. Id. at 406, 408–09.
Similarly, in Lipham v. Federated Dep’t Stores, Inc., 440 S.E.2d 193,
194–95 (Ga. 1994), the Supreme Court of Georgia held that a
plaintiff’s claim involved active negligence where the plaintiff
alleged that she was in a store parking lot watching an event in
which people were running and playing games, when a store
employee, who was participating in the event, turned around too
quickly and unintentionally knocked the plaintiff to the ground. In
reaching this conclusion, like the Byrom court, the Lipham court
emphasized that the allegations did “not concern a condition of the
premises over which [the store] could have exercised some degree
of control or of which [the store] could have warned.” Id. at 194.
In support of her argument that her case is an instance of
active negligence, Mendez relies almost exclusively on Bruno’s
Food Stores, Inc. v. Taylor, 491 S.E.2d 881, 887 (Ga. Ct. App. 1997).
According to her, the evidence demonstrates that Valdez created a
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 11 of 17
22-13637 Opinion of the Court 11
hazardous condition on Walmart’s floor by improperly removing
trash from the premises, and in Bruno’s Food Stores the Court of
Appeals of Georgia held that “[w]here acts or omissions of the
owner/occupier work positive injury to others, such acts or
omissions are active negligence in the classic sense.” Id. at 887.
However, Bruno’s Food Stores is not binding precedent in
Georgia; it is physical precedent only because the entire panel did
not concur fully in the opinion.6 See Ga. Ct. App. R. 33.2(a)(2)
(providing that for decisions issued prior to August 1, 2020, “[i]f an
appeal was decided by a division of this Court, a published opinion
in which all three panel judges fully concur is binding precedent.
An opinion is physical precedent only (citable as persuasive, but not
binding, authority), however, with respect to any portion of the
published opinion in which any of the panel judges concur in the
judgment only, concur specially without a statement of agreement
with all that is said in the majority opinion, or dissent.”). 7 Indeed,
6 In fact, two of the members of the three-judge panel specially concurred in
a separate opinion in which they disagreed with the language on which
Mendez relies for her argument. Bruno’s Food Stores, 491 S.E.2d at 893(Birdsong, J., joined by Ruffin, J., specially concurring) (“[T]he majority’s
active negligence theories and its effort to merge active negligence concepts
in slip and fall cases are contrary to [Georgia’s] Supreme Court precedent and
were rejected by this Court [previously].”).
7 The Court of Appeals of Georgia eliminated the physical precedent rule for
all opinions issued on or after August 1, 2020. See Ga. R. Ct. App. 33.2(a)(1)
(“Effective August 1, 2020: If an appeal is decided by a division of this Court or
by the Court sitting en banc, a published opinion in which a majority of the
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 12 of 17
12 Opinion of the Court 22-13637
the Court of Appeals of Georgia has held unequivocally that, due
to its status as physical precedent only, Bruno’s Food Stores
“cannot be used to support an ‘active negligence’ theory in a slip
and fall case.” Mock v. Kroger Co., 598 S.E.2d 789, 791 (Ga. Ct.
App. 2004).
Similarly, none of the other cases that Mendez cites in
passing support an active negligence theory in a slip and fall case.
First, Mendez’s reliance on Johnson v. Kimberly Clark, 504 S.E.2d
536 (Ga. Ct. App. 1998), is misplaced, as the Court of Appeals of
Georgia has already rejected a similar argument that Johnson
supported an active negligence theory in a slip and fall case, noting
that “Johnson is not a slip and fall case and therefore did not alter
[Georgia’s] well-established law” governing slip and fall cases.
Mock, 598 S.E.2d at 791. Second, Greenforest Baptist Church, Inc.
v. Shropshire, 471 S.E.2d 547 (Ga. Ct. App. 1996), is not a slip and
fall case and has no application to the governing law in this case.
Finally, although both Kaplan v. Pulte Home Corp., 537 S.E.2d 727(Ga. Ct. App. 2000), and BBB Service Co., Inc. v. Glass, 491 S.E.2d
870 (Ga. Ct. App. 1997), involve slip and fall scenarios, they are
physical precedent only and do not reflect binding Georgia law.
Furthermore, even though they may be persuasive authority, both
of those cases are distinguishable from the case at hand because
they involve scenarios where the employee actively and
judges fully concur in the rationale and judgment of the decision is binding
precedent.”).
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 13 of 17
22-13637 Opinion of the Court 13
intentionally placed a liquid hazard on the ground. See Kaplan, 537
S.E.2d at 731 (independent contractor pressure washed four
driveways in freezing weather without salting or sanding); BBB
Serv. Co., 491 S.E.2d at 872 (Eldridge, J.) (concluding that improper
application of degreaser on restaurant floor could support a claim
of active negligence). Here, even assuming the trash bags were
leaking, there is no evidence that Valdez was aware of the leak or
intentionally took any action to place liquid on Walmart’s floor.
In short, Mendez fails to cite any binding authority under
Georgia law supporting an active negligence theory in a slip and
fall case. And the persuasive value of the non-binding cases she
cites is limited because they have either been rejected by the
Georgia courts as a basis for active negligence in the slip and fall
context or are fully distinguishable. More importantly, the
allegations in her complaint clearly involve a condition of the
premises. Mendez alleged that she was shopping at Walmart when
“she slipped and fell from liquid that was on the floor” and that
Walmart “had a duty to inspect the Premises to discover dangerous
and hazardous conditions . . . and to either eliminate such . . .
conditions or to warn its invitees.” Thus, the district court did not
err in analyzing her claim under the framework of traditional
premises liability. 8
8 Mendez did not argue on appeal that, if the premises liability framework
applied, the district court erred in concluding that her claim failed.
Accordingly, she abandoned any challenge to the district court’s decision on
that ground. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 14 of 17
14 Opinion of the Court 22-13637
B. Whether the district court erred in denying
Mendez’s spoilation of evidence claim
Mendez argues that, after receiving her written request to
preserve all video evidence, Walmart destroyed critical video
evidence that would have shown the Walmart employee pushing
leaking trash bags through the store and the area of the slip and fall.
She maintains that the district court erred in holding that
Walmart’s destruction of the video footage was unintentional and
that an adverse inference from the destruction of the evidence was
not warranted.
We review the district court’s decision regarding spoliation
for an abuse of discretion. ML Healthcare Servs., 881 F.3d at 1297.
“Applying that standard, we will only reverse if we find that the
district court has made a clear error of judgment, or has applied the
wrong legal standard.” Id. (quotations omitted).
“Spoliation is defined as the destruction of evidence or the
significant and meaningful alteration of a document or
instrument.” Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184
(11th Cir. 2020) (quotations omitted). “[A] party’s spoliation of
critical evidence may warrant the imposition of sanctions.” Id.(quotations omitted).
Cir. 2014) (“When an appellant fails to challenge properly on appeal one of the
grounds on which the district court based its judgment, [s]he is deemed to
have abandoned any challenge of that ground.”).
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 15 of 17
22-13637 Opinion of the Court 15
In Flury v. Daimler Chrysler Corporation, we held that
“federal law governs the imposition of spoliation sanctions” in a
diversity suit, but then noted that federal law does not set forth
“specific guidelines” to determine when spoliation sanctions are
warranted. 427 F.3d 939, 944 (11th Cir. 2005). Accordingly, we
borrowed a multi-factor test from Georgia spoliation law, which
we determined was “wholly consistent with federal spoliation
principles.” Id. The factors that courts may consider in
determining whether sanctions for spoliation of evidence are
warranted, include: “(1) whether the defendant was prejudiced as
a result of the destruction of evidence; (2) whether the prejudice
could be cured; (3) the practical importance of the evidence; [and]
(4) whether the plaintiff acted in good or bad faith.” Id. at 945. 9
9 As the district court noted, post-Flury, Rule 37 of the Federal Rules of Civil
Procedure was amended to address the failure of a party to preserve
electronically stored information. Rule 37 now provides that:
If electronically stored information that should have been
preserved in the anticipation or conduct of litigation is lost
because a party failed to take reasonable steps to preserve it,
and it cannot be restored or replaced through additional
discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information’s use in the litigation
may:
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 16 of 17
16 Opinion of the Court 22-13637
Importantly, an adverse inference, like that sought by
Mendez, “is drawn from a party’s failure to preserve evidence only
when the absence of that evidence is predicated on bad faith.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009)
(quotations omitted). “While this circuit does not require a
showing of malice in order to find bad faith, mere negligence in
losing or destroying records is not sufficient to draw an adverse
inference.” Id.Walmart’s asset protection associate Olanrewaju testified
that she intended to preserve the footage for the time period from
7:00 to 9:00 p.m. for all of the relevant cameras and that she did not
know why the wrong footage was saved from one of the cameras.
And she never reviewed the preserved video footage to make sure
that the correct footage was preserved. Therefore, the record at
best shows that mere negligence occurred in the destruction of the
(A) presume that the lost information was unfavorable
to the party;
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e). As we noted in ML Healthcare Services, we have yet to
address whether Rule 37(e) supplants the Flury factors when a party seeks
sanctions based on spoliation of electronically stored information. 881 F.3d at
1308. And we need not reach that question here because as discussed in this
opinion, Mendez cannot show prejudice or bad faith; therefore, sanctions are
not warranted under either standard.
USCA11 Case: 22-13637 Document: 27-1 Date Filed: 05/22/2023 Page: 17 of 17
22-13637 Opinion of the Court 17
video footage from one of the eight cameras, which is not sufficient
to warrant an adverse inference. Id.Furthermore, contrary to Mendez’s contention, having
reviewed the 5:00 to 7:00 p.m. video footage from the camera in
question, we conclude that the district court determined correctly
that Mendez did not suffer any prejudice from the destruction of
the footage from the time of Mendez’s fall because the camera was
not positioned such that it would have shown her fall or whether
the buggy pushed by Valdez was leaking.
Accordingly, the district court did not abuse its discretion in
denying Mendez’s spoliation sanctions request.
III. Conclusion
In light of the above, we affirm the district court’s grant of
summary judgment to Walmart.
AFFIRMED.