United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
case is before the court on the Motion for Summary Judgment
filed by Defendant Blue Rock Partners, LLC (“Blue
Rock” or “Defendant”). (Doc. # 25). The
Motion is fully briefed, and Defendant has filed evidentiary
submissions. (Docs. # 26, 27, 31, 32). After careful review,
the court concludes that the Motion for Summary Judgment
(Doc. # 25) is due to be granted.
Relevant Undisputed Facts
August 29, 2015 around 5:00 p.m. to 5:30 p.m.,  Plaintiff Mary
Ann Johnson (“Plaintiff”) stepped into a hole as
she was leaving her mailbox at the mail center of her
apartment complex. (Doc. # 27-2 at p. 16, 24). Prior to the
incident, Plaintiff admits that she was aware of the hole
that caused her fall. (Id. at p. 6, 23). In fact,
Plaintiff had noticed the hole for the first time when she
had previously gone to her apartment mailbox and had reported
the hole to Blue Rock because she was concerned that somebody
may fall into it when the grass grew up over it.
(Id. at p. 6, 23). Later, when Plaintiff stepped
into the hole, she says the grass had grown over it.
(Id. at p. 23). After her fall, she was transported
to the emergency room and was later diagnosed with a broken
ankle. (Id. at p. 17, 35-36).
Summary Judgment Standard
Federal Rule of Civil Procedure 56, summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56 requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or
depositions, answers to interrogatories, and/or admissions on
file -- designate specific facts showing that there is a
genuine issue for trial. Id. at 324.
substantive law will identify which facts are material and
which are irrelevant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). All reasonable doubts
about the facts and all justifiable inferences are resolved
in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir.
2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson,
477 U.S. at 248. If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.
See Id. at 249.
faced with a “properly supported motion for summary
judgment, [the non-moving party] must come forward with
specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997). As Anderson
teaches, under Rule 56(c) a plaintiff may not simply rest on
his allegations made in the complaint; instead, as the party
bearing the burden of proof at trial, he must come forward
with at least some evidence to support each element essential
to his case at trial. See Anderson, 477 U.S. at 252.
“[A] party opposing a properly supported motion for
summary judgment ‘may not rest upon the mere
allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue
for trial.'” Id. at 248 (citations
judgment is mandated “against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party's evidence is merely
colorable or is not significantly probative.”
Sawyer v. Sw. Airlines Co., 243 F.Supp.2d 1257, 1262
(D. Kan. 2003) (citing Anderson, 477 U.S. at
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
“Essentially, the inquiry is ‘whether the
evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.'”
Sawyer, 243 F.Supp.2d at 1262 (quoting
Anderson, 477 U.S. at 251-52); see also LaRoche
v. Denny's, Inc., 62 F.Supp.2d 1366, 1371 (S.D. Fla.
1999) (“The law is clear . . . that suspicion,
perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
Complaint, Plaintiff alleges the following claims against
Defendant: (1) negligence, (2) recklessness and wantonness,
(3) premises liability, and (4) respondeat superior and
agency. (Doc. # 1-1 at p. 3-11). On January 22, 2018, based
on Plaintiff's counsel's on-the-record statement that
Plaintiff was not opposing dismissal of her recklessness and
wantonness claim, the court dismissed Count II of
Plaintiff's Complaint. (Doc. # 30). The court will
address Plaintiff's remaining claims, in turn.
Premises Liability Principles Govern Plaintiff's
argues that her negligence and premises liability claims are
separate and distinct claims. (Doc. # 31). ...