Cheryl Druker v. Walmart, Inc.

USCA11 Case: 22-11646 Document: 23-1 Date Filed: 03/10/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11646
Non-Argument Calendar
____________________
CHERYL DRUKER,
Plaintiff-Appellant,
versus
WALMART, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-61022-RS
____________________
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2 Opinion of the Court 22-11646
Before WILSON, LUCK, and EDMONDSON, Circuit Judges.
PER CURIAM:
Cheryl Druker appeals the district court’s grant of summary
judgment in favor of Walmart, Inc. (“Walmart”). Druker asserted
a claim against Walmart for vicarious liability for injuries Druker
sustained while shopping in a Walmart store. No reversible error
has been shown; we affirm.
The complained-of incident occurred at a Walmart grocery
store in Broward County, Florida. Briefly stated, Drucker alleges
that, while Druker was shopping, an unidentified person pushing a
stock cart struck Druker from behind. After hitting Druker, the
person faced Druker, apologized, and asked if Druker was alright.
The person then continued quickly down the aisle with the stock
cart. Druker contends she suffered injuries as a result of the inci-
dent.
Druker filed this civil action against Walmart in Florida state
court, asserting one count of negligence. 1 After the case was re-
moved to federal court, the district court granted Walmart’s mo-
tion for summary judgment. The district court determined Druker
presented nothing demonstrating that the person who allegedly
struck her was an employee of Walmart.
1 In filings before the district court, Druker clarified that she was asserting
only a claim based on vicarious liability, not direct liability.
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22-11646 Opinion of the Court 3
We review the district court’s grant of summary judgment
de novo, and we view the evidence and all reasonable factual infer-
ences in the light most favorable to the nonmoving party. See Skop
v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Summary
judgment is appropriate “if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Fed. R. Civ. P. 56(a).
We are bound by the substantive law of Florida in deciding
this diversity case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). Under Florida law, “[a]n employer may be vicariously lia-
ble to third parties under the principle of respondeat superior for
damages and injuries caused by its employee’s negligent acts which
are committed within the scope and course of his employment.”
See Bennett v. Godfather’s Pizza, Inc., 570 So. 2d 1351, 1353-54 (Fla.
Dist. Ct. App. 1990). Vicarious liability is a form of indirect liability
whereby an employer’s liability is “based solely on the legal impu-
tation of responsibility for another party’s tortious acts.” See Ar-
miger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 874-75 (Fla.
Dist. Ct. App. 2010). Generally speaking, a principal may be held
vicariously liable only for the negligence of its agent. See Del Pilar
v. DHL Global Customer Sols., 993 So. 2d 142, 145-46 (Fla. Dist.
Ct. App. 2008) (“[A] principal is not vicariously liable for the negli-
gence of its independent contractor, but the principal is liable for
the negligence of its agent.”).
On appeal, Druker argues chiefly that the district court failed
to view the evidence and all reasonable inferences in the light most
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4 Opinion of the Court 22-11646
favorable to her. Druker contends that the district court weighed
impermissibly the evidence instead of accepting as true Druker’s
assertion that the person who struck her was a Walmart employee.
We disagree.
Shortly after being hit with the cart, Druker reported the in-
cident to the store’s manager, Jack Hudson. Druker, however, was
unable to tell Hudson where in the store the incident occurred.
Druker was also unable to describe the person who had been push-
ing the cart other than that the person was male. According to
Hudson, the store had only one male employee working in the
store that day. When Hudson (on the day of the incident) walked
Druker past the store’s only scheduled male employee, Druker did
not recognize the employee as the person who had purportedly hit
her.
During Druker’s deposition, Druker described the person
who hit her as male, young, of average height, and as wearing
sneakers. Druker was unable to describe the person’s face, relative
size, hair length, or whether the person appeared to be black,
white, Asian, or Hispanic. Except for his sneakers, Druker was also
unable to describe the person’s clothing. When asked how Druker
knew the person was a Walmart employee, Druker said he might
have been wearing a vest, but said she was unsure. 2 Druker then
said, “I would assume he was working in WalMart. That would be
2 When the incident occurred, all Walmart employees were required to wear
a bright green vest.
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22-11646 Opinion of the Court 5
a normal assumption. I don’t -- who would be stocking a cart in
Walmart?”
Viewed in the light most favorable to Druker, the record
contains insufficient evidence to support a reasonable inference
that the person who allegedly hit Druker was employed by
Walmart. 3 Although Druker has said repeatedly that the person
was a Walmart employee, she has articulated too few facts -- either
on the day of the incident or during this litigation -- to support her
assumption. Given the lack of record evidence indicating that the
person was employed by Walmart (and not an independent con-
tractor, vendor, or customer) the district court determined
properly that Druker’s assertions about the person’s employment
status constituted mere speculation insufficient to avoid summary
judgment. See Glasscox v. City of Argo, 903 F.3d 1207, 1213 (11th
Cir. 2018) (“Conclusory allegations and speculation are insufficient
to create a genuine issue of material fact.”); Daniels v. Twin Oaks
Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1982) (“[A]n infer-
ence is not reasonable if it is ‘only a guess or a possibility,’ for such
an inference is not based on the evidence but is pure conjecture and
speculation.”).
Druker has failed to establish a genuine issue of material fact
about whether the person who allegedly struck her with the cart
3 The record contains no store surveillance footage. Nor were there witnesses
to the incident.
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was an employee of Walmart. Walmart was thus entitled to sum-
mary judgment on Druker’s claim for vicarious liability.
AFFIRMED.