Linda E. Tolbert v. Publix Super Markets, Inc.

USCA11 Case: 22-13716 Document: 21-1 Date Filed: 03/14/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13716
Non-Argument Calendar
____________________
LINDA E. TOLBERT,
Plaintiff-Appellant,
versus
PUBLIX SUPER MARKETS, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-04165-TWT
____________________
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2 Opinion of the Court 22-13716
Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Linda Tolbert slipped and fell on an un-
known greasy substance in Defendant-Appellee Publix’s Newnan,
Georgia location. The district court entered summary judgment in
favor of Publix because Publix conducted an inspection within the
brief period before the accident and thus acted reasonably as a mat-
ter of Georgia law. Tolbert argues that there are genuine issues of
material fact regarding the reasonableness of Publix’s procedures.
After a careful review of the record, we AFFIRM.
I.
We assume the parties are familiar with the facts and so
briefly summarize the facts of this case. Tolbert was grocery shop-
ping at Publix and as she walked from the produce section to the
deli section she slipped and fell backwards. She alleges that there
was a slick, greasy substance on the floor. After the fall, a male
Publix employee came to her assistance, and when he was helping
her up, he stated the floor was “greasy there a lot.” Tolbert says
she did not see the substance prior to her fall. Publix’s assistant deli
manager Christine Thompson also came to help Tolbert after the
fall. Thompson stated in her affidavit that she had inspected that
area of the floor ten minutes before the fall and had not seen any-
thing on the floor. Thompson also described Publix’s “Don’t Pass
it Up, Pick it Up” floor cleaning policy, and described her
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22-13716 Opinion of the Court 3
compliance with it on the day of the accident. Publix could not
locate any video footage of the accident or the inspection.
Tolbert initially filed this negligence action in state court,
but Publix removed it to federal court on the basis of diversity ju-
risdiction. After the district court entered summary judgment for
Publix, this appeal followed.
II.
We review the district court’s grant of summary judgment
de novo and apply the same legal standard as the district court.
Nat’l Fire Ins. Co. v. Fortune Const. Co., 320 F.3d 1260, 1267 (11th
Cir. 2016). A motion for summary judgment should be granted if
there is no genuine issue as to any material fact. Fed. R. Civ. P.
56(c).
In Georgia, premises owners owe a duty to their invitees “to
exercise ordinary care in keeping the premises and approaches
safe.” O.G.C.A. § 51-3-1. In slip-and-fall cases, the Georgia Su-
preme Court requires that plaintiffs prove the store proprietor had
“superior knowledge” of the hazard. Robinson v. Kroger Co., 493
S.E.2d 403, 405 (Ga. 1997). To evaluate this standard the Robinson
court established a two-step framework: 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 [defendant].” Id. at 414. But plaintiffs
need only produce evidence of the second prong after the
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4 Opinion of the Court 22-13716
defendant has produced evidence showing that the plaintiff herself
contributed negligence to the accident. See id.Georgia courts have established that the store’s constructive
knowledge1 can be shown either through evidence that (1) store
employees were “in the immediate vicinity and easily could have
seen and removed the hazard”; or (2) that the hazard “had been on
the floor long enough that it would have been discovered” had the
store employed reasonable care in inspecting the premises. Mucyo
v. Publix Super Mkts., Inc., 688 S.E.2d 372, 374 (Ga. Ct. App. 2009).
A genuine issue of material fact may also exist sufficient to survive
summary judgment if a plaintiff shows that the store lacked either
a reasonable program for conducting inspections or that the pro-
gram was not actually carried out. Straughter v. J.H. Harvey Co.,
Inc., 500 S.E.2d 353, 355 (Ga. Ct. App. 1998). But, regardless of the
quality and reasonableness of the store’s overall inspection pro-
gram, the store’s inspection is reasonable as a matter of law if it
occurred within the “brief period” prior to the accident. Mucyo,
688 S.E.2d at 375. What constitutes a “brief period” varies from as
little as two-minutes, id., to periods as long as thirty-five minutes.
See, e.g., Higgins v. Food Lion, Inc., 561 S.E.2d 440, 442 (Ga. Ct.
App. 2002); see also Wallace v. Wal-Mart Stores, Inc., 612 S.E.2d
528, 531–32 (Ga. Ct. App. 2005) (15 to 20 minutes); Medders v.
Kroger Co., 572 S.E.2d 386, 388 (Ga. 2002) (5 to 10 minutes). If an
1 The parties seem to agree that neither Publix nor its employees had actual
knowledge of the hazard.
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22-13716 Opinion of the Court 5
inspection occurred within this “brief period,” then the plaintiff
again shoulders the burden of creating a triable issue of fact about
the store’s constructive knowledge under either method identified
in Mucyo. 688 S.E.2d at 374.
Here, the uncontradicted evidence from Thompson is that
she inspected the area where Tolbert fell about ten minutes prior
to the accident. This falls comfortably within the “brief period”
range identified by Georgia’s courts and so Publix’s inspection pro-
cedures were reasonable as a matter of law. Thus, Tolbert must
show constructive knowledge under Mucyo. And because Tolbert
conceded in her deposition that she did not know how long the
substance was on the floor, to show constructive knowledge she
must show that a Publix employee was in the vicinity prior to her
fall and could have easily removed the hazard.
Tolbert points to her deposition in order to show that there
was an employee in the vicinity. In her deposition Tolbert stated
that a male produce clerk came over right after she fell and helped
her up. While this may show that a Publix employee was in the
general area to see her fall, it says nothing about whether the haz-
ard was “readily visible” or if the produce clerk could have “easily
seen and removed the hazard.” Mucyo, 688 S.E.2d at 374; see also
Haskins v. Piggly Wiggly So., Inc., 496 S.E.2d 471, 473 (Ga. Ct. App.
1998) (“Showing that an employee was merely working in the im-
mediate area of a foreign substance is not enough; the employee
must have been in a position to have easily seen the substance and
removed it.” (alteration adopted and internal quotation marks
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6 Opinion of the Court 22-13716
omitted)). Tolbert’s deposition actually shows that the hazard was
very difficult to see—Tolbert described the greasy substance as
“clear” in color and stated that she did not see it before she fell.
Thompson’s affidavit similarly stated that she did not see the haz-
ard when she conducted her inspection, nor did she see it after help-
ing Tolbert off the floor. Tolbert has simply not provided any evi-
dence to show that whatever employees were in the area could
have “easily seen and removed the hazard.” Mucyo, 688 S.E.2d at
374.
Tolbert argues that we should discount or disregard Thomp-
son’s affidavit because it is “scant on details.” Tolbert’s brief quotes
Lundy v. Publix Super Markets, Inc., No. 1:20-cv-3405-MLB, 2022
WL 124553 (N.D.G.A. Jan. 13, 2022), where the district court de-
nied summary judgment and disregarded the affidavits submitted
by the store for being too vague about the inspection procedures.
But these quotations omit critical context. In Lundy, and the Geor-
gia Court of Appeals decision cited therein, the affidavits relied on
in support of summary judgment were not made by the individuals
who personally conducted the inspections. Lundy, 2022 WL
124553 at *4 (“Neither Baker’s affidavit nor Destorch’s affidavit
state that they individually conducted any inspections”) (citing Da-
vis v. Bruno’s Supermarket, Inc., 587 S.E.2d 279, 281 (Ga. App. Ct.
2003) (“We find, however, that the store was not entitled to sum-
mary judgment based solely on Sumner's affidavit, because it does
not show that he personally observed or conducted the inspection.
Therefore, the affidavit was legally insufficient.”)). Here,
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22-13716 Opinion of the Court 7
Thompson’s affidavit deposes that she personally conducted the in-
spection ten minutes prior to Tolbert’s fall. Tolbert has introduced
no additional evidence that would create a genuine issue of mate-
rial fact about whether Thompson actually conducted this inspec-
tion, and so we will not disregard her affidavit.
Because Tolbert has not shown that Publix had constructive
knowledge of the hazard prior to her fall, summary judgment was
proper and the district court’s order is accordingly, AFFIRMED.
AFFIRMED.