United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE
January 24, 2018, Ida Melton (“Plaintiff”) filed
a complaint (Doc. 1-1) in state court alleging one count of
negligence against Kroger (“Defendant”) based
upon a fall she sustained inside Defendant's store.
See generally (Doc. 1-1). Presently before the Court
is Defendant's Motion for Summary Judgment (Doc. 14) and
brief in support thereof (Doc. 15). Plaintiff filed a
response in opposition (Doc. 19) to the Motion, and Defendant
filed a reply (Doc. 24). Along with its reply, Defendant also
filed a Motion to Strike the Affidavit of Plaintiff (Doc.
23), which Plaintiff submitted along with her response in
opposition to Defendant's Motion for Summary Judgment.
undersigned turns first to determine Defendant's pending
Motion to Strike, as such a determination may be pertinent to
the undersigned's determination of Defendant's Motion
for Summary Judgment.
DEFENDANT'S MOTION TO STRIKE
argues that Plaintiff's affidavit, which was submitted
along with her response in opposition to Defendant's
Motion for Summary Judgment, should be stricken as a sham
affidavit. See generally (Doc. 23). Specifically,
Defendant asserts that the assertions set forth in
Plaintiff's affidavit contradict her previous, sworn
testimony, and are based upon speculation and conjecture
rather than personal knowledge. Id. at 1.
Eleventh Circuit “allows a court to disregard an
affidavit as a matter of law when, without explanation, it
flatly contradicts . . . prior deposition testimony for the
transparent purpose of creating a genuine issue of fact where
none existed previously.” Furcron v. Mail Ctrs.
Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016). Prior
to striking an affidavit as a “sham, ” the court
must “find some inherent inconsistency between an
affidavit and a deposition.” Allen v. Bd. of Pub.
Educ. For Bibb Cty., 495 F.3d 1306, 1316 (11th Cir.
2007). “If no inherent inconsistency exists,
the general rule allowing an affidavit to create a genuine
issue ‘even if it conflicts with earlier testimony in
the party's deposition' . . . governs.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530
(11th Cir. 1987) (internal citation omitted).
Plaintiff was deposed on September 19, 2018, approximately
thirty-three months after she fell in Defendant's store.
(Docs. 1-1, 23-1). Plaintiff's affidavit in support of
her response in opposition to Defendant's Motion for
Summary Judgment was provided on February 18, 2019. (Doc.
19-1). In support of its argument to strike Plaintiff's
affidavit as a sham, Defendant asserts that there is a
discrepancy between Plaintiff's affidavit and her
deposition. (Doc. 23) at 1-4. Specifically, Defendant argues
that Plaintiff's affidavit, which states that “some
unknown substance” on the floor potentially caused her
fall, contradicts Plaintiff's testimony because Plaintiff
“never offered any testimony regarding an alleged
substance on the floor as the cause for her accident in
written discovery or at her deposition.” Id.
That while I was shopping in [Defendant's] store on
January 26, 2016, the I [sic] was pushing a shopping cart and
shopping in the store and I tripped and fell over a floor
electrical plug or outlet or other electrical device embedded
in the floor or some unknown substance at the time on the
floor, of the [a]isle where items were located on
shelves for sale, causing the me [sic] to trip and fall onto
the floor causing physical injury to my left knee, body, hips
and/or legs etc. (Please see Plaintiff's attached
exhibit, a photograph on the floor and spot where I fell).
Note that this outlet embedded in the floor was covered the
next day when my daughter went to take this picture.
(Doc. 19-1) at 2-3 (emphasis added). Notably, this paragraph
in Plaintiff's affidavit recites, almost word-for-word,
paragraph six in Plaintiff's Complaint. See
(Doc. 1-1) at ¶ 6.
deposition, Plaintiff testified:
Q. And then you said you suddenly fell. What caused you to
A. The thing on the floor.
Q. What thing?
A. One of these things (pointing).
Q. So you're pointing at Exhibit 2, correct?
Q. And that's - you're pointing to an electrical
A. Yeah. And they already - you could - you could go in the
store right now and find out where I - it was. Because they
called themselves putting something over it.
Q. Okay. So it's covered now?
A. Yeah, it's covered.
Q. All right. Had you ever seen one of these electrical
outlets that's in Defendant's Exhibit 2 -
Q. - in the store before?
A. No. No.
Q. Okay. Was there anything blocking your view of that outlet