United States District Court, N.D. Alabama, Middle Division
GALEN A. ROSSON, Plaintiff,
LOWE'S HOME CENTERS, LLC, Defendant.
G. CORNELIUS U.S. MAGISTRATE JUDGE.
A. Rosson commenced this action against Lowe's Home
Centers, LLC, in the Circuit Court of Marshall County,
Alabama, asserting state law tort claims. (Doc. 1-1; Doc.
1-3). Lowe's removed the action to this district court on
the basis of diversity jurisdiction. (Doc. 1). Pending before
the undersigned is Lowe's motion for summary judgment.
(Doc. 16). For the reasons discussed below, the motion is due
to be granted.
fell while pushing a shopping cart in the garden section of
Lowe's Guntersville, Alabama store on May 25, 2015. (Doc.
1-1 at 4; Doc. 1-3 at 6). She suffered a gash on her right
leg, scratches on her left leg, and a shoulder injury. (Doc.
17-2 at 12, 17-3 at 5-10).
time of her fall, Rosson told the store manager she had
slipped on water. (Doc. 17-3 at 4, 8). Shortly after her
fall, Rosson also told her treating physicians she had
slipped on water. (Doc. 17-1 at 2). Rosson returned to the
store a couple of weeks after her fall, having considered the
mechanics of the accident and concluded water would not have
caused her buggy to rear up as it did. (Doc. 17-2 at 14,
16-17; Doc. 17-3 at 1, 8). She wanted to see what could have
happened to her shopping cart. (Doc. 17-3 at 8).
testified she knew the exact location where she fell and
returned to that spot. (Doc. 17-3 at 8-9). She observed a
hole slightly larger than a half dollar in the concrete floor
and took a photo. (Id. at 2; Doc. 17-2 at 16-17).
She did not observe the hole at the time of the accident or
see her cart strike the hole, although she did feel the cart
jar. (Doc. 17-3 at 8-9).
asked during her deposition how she knows her cart did not
strike a rock, piece of pine bark, or other object dropped by
another customer, she responded that could have happened.
(Id. at 9). When asked whether her fall could have
been caused by any number of things, she responded that was
possible. (Id.). When further pressed as to whether
her theory of causation could be wrong, she testified,
“I know what happened. . . . I know the feel and what
happened.” (Id. at 10). She also testified,
“It happened so quickly. . . . I - I didn't know
what to think. I was in a daze.” (Id.).
amended complaint filed in state court on July 14, 2017,
Rosson asserts against Lowe's traditional negligence and
wantonness claims; negligent and wantonness claims under a
theory of premises liability; and a negligent, reckless, and
wanton supervision and training claim. (Doc. 1-3 at 7-9).
Lowe's seeks summary judgment on these claims on the
ground Rosson has produced no more than speculative evidence
as to the cause of her fall. (Doc. 16).
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure, “[t]he
[district] court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The
party seeking summary judgment bears the initial burden of
informing the district court of the basis for its motion and
identifying those portions of the record the party believes
demonstrate the absence of a genuine dispute as to a material
fact. Celotex Corp., 477 U.S. at 323. If the moving
party carries its initial burden, the non-movant must go
beyond the pleadings and come forward with evidence showing
there is a genuine dispute as to a material fact for trial.
Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. Anderson, 477 U.S. at 248. A dispute
is genuine if the evidence is such that a reasonable jury
could return a verdict for the non-movant. Id. at
248. If the evidence is merely colorable or not significantly
probative, summary judgment is appropriate. Id. at
249-50 (internal citations omitted). All reasonable doubts
about the facts should be resolved in favor of the
non-movant, and all justifiable inferences should be drawn in
the non-movant's favor. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
is a common element of traditional negligence and wantonness
claims, as well as negligence and wantonness claims brought
under a theory of premises liability. See Martin v.
Arnold, 643 So.2d 564, 567 (Ala. 1994) (“Proximate
cause is an essential element of both negligence claims and
wantonness claims.”); Ex parte Harold L. Martin
Distrib. Co., Inc., 769 So.2d 313, 314 (Ala. 2000)
(“In [a] premises-liability case, the elements of
negligence are the same as those in any tort litigation:
duty, breach of duty, cause in fact, proximate or legal
cause, and damages.” (internal quotation marks
omitted)); Logan v. Winn-Dixie Atlanta, Inc., 594
So.2d 83, 84 (Ala. 1992) (holding that to recover in a
premises-liability action based on a fall, “[the
plaintiff] must prove that her fall resulted from a defect or
instrumentality located on the premises, that the fall was a
result of the defendants' negligence, and that the
defendants had or should have had notice of the defect or
instrumentality before the accident.”); Hooks v.
Dollar General Corp., 2015 WL 6964289, at *3 n.6 (M.D.
Ala. Nov. 10, 2015) (explaining difference between
traditional negligence claims and negligence claims brought
under a theory of premises liability).
amounting to speculation is insufficient to support the
element of causation. See Ex parte Harold L. Martin
Distrib. Co., 760 So.2d at 315 (“Alabama juries
are not permitted to speculate as to the cause of an
accident.” (emphasis in original)); Logan, 594
So.2d at 84-85 (“Evidence which affords nothing more
than speculation, conjecture, or guess is wholly insufficient
to warrant submission of a case to the jury.” (internal
quotation marks omitted)); Cawthon v. Dolgencorp,
LLC, 2011 WL 814496, at *2 (S.D. Ala. Mar. 2, 2011)
(“The plaintiff must offer more than speculation as to
what caused his fall in order to survive summary
judgment.”). “ ‘[W]here evidence points
equally to inferences both favorable and unfavorable to the
moving party[, ]  it lacks probative value; and its use to
support one inference more than another, when in fact it will