United States District Court, N.D. Alabama, Southern Division
DAVID PRO'CTOR, UNITED STATES DISTRICT JUDGE.
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.
Relevant Undisputed Facts
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
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.).
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).
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).
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).
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
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.
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.
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.” Ander ...