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Carter v. Walgreens Specialty Pharmacy LLC

United States District Court, N.D. Alabama, Southern Division

June 15, 2018




         This case is before the court on the Motion for Summary Judgment filed by Defendant Walgreen Co. (“Walgreen” or “Defendant”). (Doc. # 26). The Motion is fully briefed, and Defendant has filed evidentiary submissions. (Docs. # 26, 27, 31, 33). After careful review, the court concludes that the Motion for Summary Judgment (Doc. # 26) is due to be granted.

         I. Relevant Undisputed Facts[1]

         On January 17, 2015, Jillian Carter (“Plaintiff”) was a business invitee at the Walgreen store located on 4496 Valleydale Road, Birmingham, Alabama 35292. (Docs. # 26 at ¶ 1; 27-1 at p. 9). Around mid-morning, Plaintiff entered the store alone to purchase diaper rash cream for her young daughter. (Doc. # 27-1 at p. 9). There was nothing unusual about the lighting in the store. (Id. at p. 10). Plaintiff's husband and two daughters waited in the car so the purchase could be made “quickly.” (Id. at p. 9). Plaintiff had previously been to the Valleydale Road Walgreen store “six or seven times.” (Id.).

         Plaintiff was in the store approximately five minutes before she located the rash cream. (Id. at p. 10). She found the cream on the top shelf but did not consider the shelf high. (Id.). As Plaintiff was reaching towards the top shelf, she slipped and fell. (Id.). While slipping, Plaintiff grabbed a shelf to break her fall. (Id.). Although half of her calf on her left leg hit the ground, Plaintiff did not fall to the ground because she was supporting the rest of her body with the shelf onto which she was holding. (Id.).

         After catching herself, Plaintiff claims she noticed what she described as “clear beads” on the floor. (Id. at p. 11). Apparently, the substance on the floor was Epsom salt. (Id.). Plaintiff claims the Epsom salt was difficult to see and testified the substance could only be seen if “stepped in.” (Id. at p. 12). She does not know how long the substance was on the floor prior to her fall. (Id. at p. 12-13). Plaintiff did not see dirt in the Epsom salt that would indicate that the substance had been on the floor for an extended period, and she did not notice any evidence that the substance had previously been stepped in by another customer. (Id. at p. 13). Plaintiff does not dispute that Defendant did not have notice that any substance was on the floor prior to her incident. (Docs. # 26 at ¶ 19; 27-2 at ¶ 6; 31 at p. 1-2).

         Following her slip, Plaintiff notified a Walgreen employee that she “had slipped and practically fallen but was able to catch [her]self.” (Doc. # 27-1 at p. 13). The employee apologized and said that she would inform the manager. (Id.). Plaintiff then left the store and returned to her car. (Id. at p. 11). After speaking to her husband, talking to her mother on the phone, and speaking with the on-call physician at her doctor's office, Plaintiff returned to the store approximately ten minutes later to make a report of the incident. (Id. at p. 11, 14). When Plaintiff returned to the store, the Epsom salt had not been removed and no warning sign had been placed around the spill. (Id. at p. 11).

         On January 3, 2017, Plaintiff filed her Complaint alleging (1) negligence, (2) recklessness and wantonness, and (3) premises liability. (Doc. # 1). The case was assigned to the undersigned and designated case number 2:17-cv-00003-RDP. Plaintiff did not pay the filing fee associated with this action. Instead, on January 16, 2017, Plaintiff again filed her Complaint, and it was designated as a separate action under case number 2:17-cv-00070-SGC. (See 2:17-cv-00070-SGC, Doc. # 1). Plaintiff paid a filing fee contemporaneously with her second complaint. On January 20, 2017, Plaintiff filed a request for service by certified mail in Case 2:17-cv-00070-SGC. (2:17-cv-00070-SGC, Doc. # 3). However, on January 24, 2017, the court entered an order directing the Clerk of the Court to apply the filing fee from the second action to this earlier-filed action and directing the clerk to close the second action. (2:17-cv-00070-SGC, Doc. # 2). Thereafter, Plaintiff filed a request for service by certified mail in this action on February 20, 2017, and a summons was issued on March 13, 2017. (Docs. # 3, 4).

         On April 17, 2017, Defendant moved to dismiss this action on statute of limitations grounds. (Doc. # 9). The court denied Defendants' Motion to Dismiss on May 12, 2017 and stated the following:

This black letter law demonstrates the benefit of assessing a plaintiff's intent to serve the complaint on a motion for summary judgment, rather than a motion to dismiss. However, as the court expressed during the hearing on this matter, the record before the court on Defendant's motion to dismiss certainly indicates that there existed a bona fide intent to immediately serve the complaint in this action.

         (Doc. # 17 at p. 5). On February 21, 2018, Plaintiff filed the instant Motion for Summary Judgment, which argues that Plaintiff has failed to establish substantial evidence of her claims and that her claims are barred by the statute of limitations. (Doc. # 26). Plaintiff has “concede[d] that there is no evidence of wanton or reckless conduct.” (Doc. # 31 at p. 6). Accordingly, her recklessness and wantonness claim (Count II) is due to be dismissed. The court explores the merits of Plaintiff's negligence and premises liability claims, in turn.

         II. Summary Judgment Standard

         Under 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.

         The 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.” Ander ...

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