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Melton v. Kroger

United States District Court, M.D. Alabama, Eastern Division

July 16, 2019

IDA MELTON, Plaintiff,
v.
KROGER, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On 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.

         The 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.

         II. DEFENDANT'S MOTION TO STRIKE

         Defendant 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.

         The 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).

         Here, 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. at 2-4.

         Plaintiff's affidavit states:

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.

         In her deposition, Plaintiff testified:

Q. And then you said you suddenly fell. What caused you to fall?
A. The thing on the floor.
Q. What thing?
A. One of these things (pointing).
Q. So you're pointing at Exhibit 2, correct?
A. Yeah.
Q. And that's - you're pointing to an electrical outlet there?
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 -
A. No.
Q. - in the store before?
A. No. No.
Q. Okay. Was there anything blocking your view of that outlet ...

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