Opinion
CIVIL ACTION FILE No. 2:21-CV-00071-SCJ
2023-02-08
Davon WILLIAMS, Plaintiff, v. WAL-MART STORES EAST, LP, (DELAWARE), Advance Polybag, Inc., and Bunzl USA Holdings, LLC, Defendants.
Jody D. Peterman, Dillon P. Hanson, Jody D. Peterman, LLC, Valdosta, GA, for Plaintiff. Leslie Paige Becknell, Michael L. Miller, Drew Eckl & Farnham, LLP, Atlanta, GA, Kendra Danielle Talley, The Chartwell Law Offices LLP, Atlanta, GA, for Defendant Wal-Mart Stores East, L.P.
Jody D. Peterman, Dillon P. Hanson, Jody D. Peterman, LLC, Valdosta, GA, for Plaintiff. Leslie Paige Becknell, Michael L. Miller, Drew Eckl & Farnham, LLP, Atlanta, GA, Kendra Danielle Talley, The Chartwell Law Offices LLP, Atlanta, GA, for Defendant Wal-Mart Stores East, L.P. ORDER STEVE C. JONES, UNITED STATES DISTRICT JUDGE
This matter appears before the Court on the Motions for Summary Judgment filed by Defendants Advance Polybag, Inc. ("API") and Bunzl USA Holdings, LLC ("Bunzl") (Doc. No. [55]; [56]), as well as Defendant Walmart Stores East, L.P.'s ("Wal-Mart") Motion for Joinder to Defendant Bunzl USA Holdings Motion for Summary Judgment (Doc. No. [57]). Plaintiff responded in opposition (Doc. Nos. [60]; [61]; [62]), and Defendants replied (Doc. Nos. [65]; [67]). The pending motion is ripe for review, and the Court rules as follows.
All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
I. BACKGROUND
For purposes of this Order, the Court derives the facts from the Parties' submissions (Doc. Nos. [55-2]; [56-2]; [58]; [60-1]; [60-2]; [61-1]; [61-2]; [62-1]; [62-2]; [64]; [66]) and the record. Pursuant to Local Rule 56.1(B), when a fact is undisputed, the Court includes the fact. For disputed facts, the Court reviews the record to determine if a material dispute exists. Where the other party's response reflects the record cited more accurately, the Court modifies the proposed fact and cites the record. The Court also rules on objections to proposed facts and excludes immaterial facts, those stated as an issue or legal conclusion, those not supported by a citation to evidence, or those that the record citation fails to support. And, where appropriate, the Court includes facts drawn from its review of the record. The following facts are undisputed unless otherwise stated.
The Court notes that a review of the undisputed portions of the Statement of Material Facts shows portions of the foregoing facts are cited as derived from Complaint. See e.g., Doc. No. [55-2], ¶¶ 1-4. While ordinarily, the Court will not consider facts cited to a pleading, rather than evidence (see LR 56.1(B)(1)(b)), in the absence of objection from Plaintiff, the Court adopts said facts herein.
On or about November 26, 2019, Plaintiff went to the Wal-Mart store located at 899 Norman Drive, Valdosta, Georgia. The Wal-Mart Store was operated by Co-Defendant Wal-Mart Stores East, L.P. (Delaware) ("Wal-Mart").
Plaintiff's accident at issue in this case was captured on Wal-Mart's security video. The video and evidence shows that Plaintiff purchased a can of pineapple juice at Wal-Mart. The can of pineapple juice was placed into a plastic grocery bag. While she was checking out, Plaintiff was talking on her cellular phone. She began placing her items into her cart using one hand, while talking on her cellular phone with her other. Plaintiff did not ask the cashier to double-bag the grocery bag that was holding her can of pineapple juice. Plaintiff did not attempt to double-bag the grocery bag herself.
Defendant Wal-Mart provided a One Drive link to the video, which the Court reviewed immediately following the December 6, 2022 oral argument. Doc. No. [58], 1 n.1. However, as of the date of this Order, said link is no longer active. Following an order of the Court, Defendant Wal-Mart manually filed a USB drive containing the video on February 1, 2023. Doc. No. [76].
As Plaintiff picked up the grocery bag, the can of pineapple juice fell out of the bag and onto Plaintiff's foot, causing her injuries ("Incident"). Plaintiff completed treatment for her injuries arising out of the Incident. Plaintiff is not currently being treated for injuries arising out of the Incident. There is no evidence that Plaintiff will require any future medical treatment for injuries arising out of the Incident.
During the relevant time, Defendant Bunzl USA Holdings, LLC ("Bunzl") distributed bags to the Wal-Mart location at issue. During the relevant time, Defendant Bunzl distributed bags manufactured by multiple manufacturers, including Defendant API and Superbag. Defendant Bunzl did not play any role in the manufacturing process of the bags. Defendant Bunzl received the bags in packaged form at its warehouse to be distributed directly to the Wal-Mart store. The bags were never unpackaged or repackaged by Defendant Bunzl.
The only evidence available regarding the bag is video footage of Plaintiff's Incident in the checkout line.
No one at Wal-Mart told Plaintiff that the bag was defective in any way at the time of Plaintiff's Incident.
On April 1, 2021, Plaintiff, Davon Williams, filed a Complaint against Defendants, Wal-Mart Stores East, L.P. (Delaware) ("Wal-Mart"), Advance Polybag, Inc. ("API"), and Bunzl USA Holdings LLC ("Bunzl"). Doc. No. [1-1]. The counts of the Complaint are: negligence as to Defendant Wal-Mart (Count I) and Product Liability against Defendants API and Bunzl (Counts II and III). Id. The last count of the Complaint is labeled "Count IV: Damages." Id. (capitalization omitted).
The Court held oral argument on December 6, 2022. Doc. No. [71]. This matter is now ripe for review.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) provides "[t]he 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."
A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the court, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party's burden is discharged merely by " 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support [an essential element of] the nonmoving party's case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).
Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court should resolve all reasonable doubts in the non-movant's favor. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). In addition, the court must "avoid weighing conflicting evidence or making credibility determinations." Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). When the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine dispute for trial. Fitzpatrick, 2 F.3d at 1115 (citations omitted).
"In diversity cases, a federal court applies the law of the forum in which it sits." Broyles v. Bayless, 878 F.2d 1400, 1402 (11th Cir. 1989). Thus, the Court looks to Georgia's choice of law rules. "Georgia adheres to the traditional choice of law system. 'Under this system tort actions are adjudicated according to the law of the place where the wrong occurred . . . ." Broyles v. Bayless, 878 F.2d 1400, 1402 (11th Cir. 1989); see also Risdon Enters., Inc. v. Colemill Enters., Inc., 172 Ga. App. 902, 903, 324 S.E.2d 738, 740 (1984) (indicating that Georgia follows the general rule of "the place of wrong, the locus delicti, is the place where the injury sustained was suffered rather than the place where the act was committed, or, as it is sometimes more generally put, it is the place where the last event necessary to make an actor liable for an alleged tort takes place.") (citations omitted). As there is evidence that the injury at issue was sustained in Georgia, the Court applies Georgia law.
III. DISCUSSION
The Court now considers each of the pending motions in turn.
A. Defendant API's Motion for Summary Judgment
In its Motion for Summary Judgment, Defendant API asserts that it is entitled to summary judgment on the following grounds: (1) Plaintiff has presented no evidence that the bag at issue was actually manufactured by Defendant or that it was defective at all; (2) any injuries suffered by Plaintiff were likely caused by her own failures to exercise ordinary care during the checkout process at Wal-Mart; (3) there is insufficient evidence that Plaintiff will actually require future medical treatment for injuries arising out of the incident; and (4) Plaintiff's derivative claims for attorney's fees fail because her underlying tort claims fail and because they are unsupported on their own merits. The Court will consider each of these grounds in turn.
1. Evidence of Manufacture and Defect
a) Product identification
In her Complaint, Plaintiff alleges that Defendant API "negligently manufactured or ordered the manufacturing of the [alleged] defective grocery bag" and is liable for product liability. Doc. No. [1-1], ¶¶ 14-18.
Under Georgia law,
[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.O.C.G.A. § 51-1-11(b)(1).
In its Motion for Summary Judgment, Defendant API asserts that "there is no record evidence that the bag at issue was manufactured by Defendant." Doc. No. [55-1], 9. Defendant asserts that "without any evidence that the bag in question was manufactured by Defendant, Defendant is entitled to summary judgment on all of Plaintiff's claims against it." Id. at 10.
In opposition, Plaintiff asserts that she can demonstrate evidence that Defendant API manufactured the bag at issue through the testimony of the representative for co-Defendant Bunzl, Mr. Jeff Desits, in which he testified that he believed that the bag was manufactured by Defendant API and could tell what kind of bag was at issue based on the video. Doc. No. [60], 5 (citing Desits Depo. (Doc. No. [60-4], Tr. 13-17). Plaintiff also relies on the portion of Mr. Desits's testimony in which he states that Bunzl sent the claim to its insurance company and the insurance company "tendered that claim to the manufacturer of the bag that supplied" the Wal-Mart store at issue through Bunzl. Doc. No. [60-4], Tr. 17:3-7.
In reply, Defendant API asserts that Plaintiff has only cherry-picked a portion of Mr. Desists' testimony. Defendant API set forth a fuller excerpt of Mr. Desits's testimony in its reply brief. The Court has reviewed the entire deposition.
After review of the entire deposition, it appears that Mr. Desits's testimony is only based on a subjective belief as he testified that "I believe it's API," who manufactured the actual bag at issue, but that he cannot "confirm whose bag it is," based on the fact that the bag no longer exists. Doc. No. [60-4], Tr. 17:8-12. He also testified that he could tell what kind of bag was at issue based on the video, but after viewing the video, he could not identify the manufacturer of the bag at issue. Id. at 18-23. It has been held that "conclusory allegations based on subjective beliefs are insufficient to create a genuine issue of material fact." Green v. Mowery, 212 F. App'x 918, 919 (11th Cir. 2006) (citing Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000)); cf. Ramsey v. Leath, 706 F.2d 1166, 1170 (11th Cir. 1983) (indicating that appellants "failed to present the district court with any evidence beyond their subjective beliefs, which alone did not constitute a material issue."); Smith v. BP Am., Inc., 522 F. App'x 859, 865 (11th Cir. 2013) (holding that there was an absence of evidence to support plaintiff's unseaworthiness claim where his affidavit failed to provide "specific facts identifying the boat's owner" and stating that a conclusory statement was insufficient to survive summary judgment); Gaddy v. Terex Corp., No. 1:14-CV-1928-WSD, 2017 WL 2001676, at *5 (N.D. Ga. May 12, 2017) (granting summary judgment in the negligent manufacturing context where defendant's representative testified that it was possible that it had sourced the steel at issue, but "there is no way of 'knowingly exactly' " and concluding that plaintiff was relying on speculations and conclusions).
The Georgia Supreme Court has also held that "mere speculations" did not give rise to a genuine dispute as to manufacturer status. Pafford v. Biomet, 264 Ga. 540, 544, 448 S.E.2d 347, 350 (1994); see also Davis v. Wells Aluminum Se., Inc., 172 Ga. App. 357, 358, 323 S.E.2d 215, 216 (1984).
The Court has also reviewed the insurance claims testimony and correspondence in the record (Doc. No. [55-5]). The Court notes that while Mr. Desits did testify that Bunzl's insurance company sent Plaintiff's claim to its insurance company, who tendered the claim to the manufacturer, he also testified that Bunzl did not conduct an investigation into Plaintiff's incident. Doc. No. [60-4], Tr. 16:18-19. And while there is a conclusory statement that Defendant API is the manufacturer of the bag by the insurance claims representative, there are no specific product identification facts in the record that show how the insurance company reached this conclusion—as its insured, Defendant Bunzl, did not conduct an investigation and Bunzl's representative, Mr. Desits could not confirm whose bag it was. Cf. Smith, 522 F. App'x at 865 (holding that there was an absence of evidence to support plaintiff's unseaworthiness claim where his affidavit failed to provide "specific facts identifying the boat's owner" and stating that a conclusory statement was insufficient to survive summary judgment).
Accordingly, the Court upholds Defendant API's argument on this ground. Plaintiff's evidence is conclusory and based on subjective belief—and as derived from the above-cited authority, such evidence does not give rise to a genuine dispute as to manufacturer status/product identification.
b) Evidence of defect
Defendant API further asserts that "[e]ven if the Court finds that Plaintiff has presented sufficient evidence that the bag in question was manufactured by Defendant, Plaintiff's claim nevertheless fails," because "she cannot prove that the bag was defective in any way" (regardless of who it was manufactured by). Doc. No. [55-1], 10, 11.
The Court recognizes that the product identification section of this Order as it pertains to Defendant API is determinative. Nevertheless, in the interest of caution, the Court addresses the product defect ground as well.
In opposition, Plaintiff asserts that "[t]he bag was shown to be defective by virtue of the fact that it ripped open while Plaintiff was attempting to move it from the checkout area of the store to her grocery cart." Doc. No. [60], 5. Plaintiff also relies on evidence that "[a] Wal-Mart employee also identified the bag as having ripped open." Id.
In reply, Defendant API states that Plaintiff "may not simply rely on the fact that the bag tore in support of her product liability claim." Doc. No. [65], 4-5. Defendant cites the case of Sheats v. Kroger Co., 336 Ga. App. 307, 784 S.E.2d 442 (2016) in support of its argument.
"The sine qua non of a products liability claim, regardless of whether the plaintiff proceeds under a theory of strict liability or negligence, is a defect in the product." Boswell v. OHD Corp., 292 Ga. App. 234, 235, 664 S.E.2d 262, 263 (2008) (citations omitted). "A manufacturing defect is an unintended flaw or abnormal condition that occurs during the production of the product that makes the product more dangerous than it would have been had the product been manufactured properly." Haynes v. Cyberonics, Inc., No. 1:09-CV-2700-JEC, 2011 WL 3903238, at *5 (N.D. Ga. Sept. 6, 2011) (citing Georgia pattern jury instructions). In order to impose strict liability on the manufacturer of a product, "the plaintiff must show that the manufacturer's product when sold by the manufacturer was defective." Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 841, 244 S.E.2d 905, 908 (1978) (citations omitted).
As for the case sub judice, the Court agrees that the Sheats case cited by Defendant API provides guidance. In Sheats, the plaintiff lifted a pack of ginger ale glass bottles off the shelf at defendant's store and as she did so, "the bottom of the package opened up, all of the glass bottles fell to the floor, and . . . . [a]t least one bottle struck [plaintiff's] left foot, injuring her. 336 Ga. App. at 308, 784 S.E.2d at 444." The plaintiff was "unable to produce the package in order to prove a defect in the design or manufacturing because [defendant] had discarded it." Id. at 311, 784 S.E.2d at 446. In affirming the grant of summary judgment to the defendant manufacturer, the Georgia Court of Appeals noted that "although [plaintiff] point[ed] to evidence about the condition of the package at the time she removed it from the store shelf, she [was] unable to prove that there was an original design or manufacturing defect that existed at the time it left [the manufacturer's] possession." Id. The court stated that "it is just as likely that the problem that caused the package's bottom flap to open occurred because of something that was not related to its manufacture that occurred at some point after the package left [manufacturer's] possession." Id. The court also noted that "the evidence shows that none of the other packages of [ginger ale] on [the store's] shelf had a problem similar to the one at issue here." Id. In concluding that the trial court did not err in granting summary judgment to the manufacturer on the product liability claim, the court stated: "[plaintiff] cannot meet her burden of proving, by a preponderance of the evidence, that the package was defective when it left [the manufacturer's] possession." Id.
"[T]he rule is that, absent a decision from the state supreme court on an issue of state law, [the federal court is] bound to follow decisions of the state's intermediate appellate courts unless there is some persuasive indication that the highest court of the state would decide the issue differently." McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002).
Similar to the Sheats case, in the case sub judice, Plaintiff only points to the condition of the bag at the time she picked up the bag at the store. There is no evidence of a manufacturing defect that existed at the time the bag left the manufacturer's possession. And it is just as likely that the asserted problem with the bag was because of something that was not related to its manufacture that occurred at some point after it left the manufacturer's possession. There is also no evidence that any other bags Plaintiff placed in her cart on the day in issue had problems.
The Court recognizes Plaintiff's arguments that the absence of other problems is actually proof that the bag at issue was defective. However, the Court's independent research shows that the case law seems to focus on the opposite, i.e., looking to evidence of reports of defects in goods produced during the same time. See e.g., Rose v. Figgie Int'l, Inc., 229 Ga. App. 848, 852, 495 S.E.2d 77, 82 (1997) ("[a] defect in one such item in its design or manufacture would necessarily occur in thousands of identical products. In such cases, proving that the defect existed in other products and caused accidents in the past is highly relevant to proving the facts of the case on trial.") (citing Carsten v. Wilkes Supermarket of Gwinnett Cnty., 181 Ga. App. 834, 835(1), 353 S.E.2d 922 (1987)) (allowing evidence that "no complaints of illness had been reported" to the manufacturer during the applicable time period as probative to show "lack of negligence" as to the handling of the turkey that caused injury). The Rose court further stated: "because a manufacturing defect involves the use of a systematic process, evidence that some goods produced during a certain time through a certain process had a defect is probative to show that other goods produced during that same time through the same process may also have the defect." Rose, 229 Ga. App. at 853, 495 S.E.2d at 83.
At least one court has noted confusion as to whether the Federal Rules of Evidence or Georgia law applies in this context and ultimately concluded that the federal rules on similar transaction evidence applies. See In re Mentor Corp. ObTape Transobturator Sling Prod. Liab. Litig., No. 3:07-CV-00101, 2010 WL 1962943, at *1 (M.D. Ga. May 14, 2010) ("In the context of prior similar occurrences, the Eleventh Circuit has explained that prior similar occurrences of product failure may be relevant to show 'the harmful tendency or capacity' of a product, as long as 'the conditions operating to produce the prior failures were substantially similar to the occurrence in question.' ") (citations omitted). This Court concludes that a definitive ruling on applicable law is not necessary for purposes of the present analysis.
The Court recognizes that there is authority that holds that "[b]ecause a product may be destroyed as a result of an incident, circumstantial evidence is particularly appropriate in product liability cases to show the manufacturing defect." Rose, 229 Ga. App. at 851, 495 S.E.2d at 81; see also Pryce v. Septodont, Inc., 481 F. App'x 497, 498 (11th Cir. 2012) (citing Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 244 S.E.2d 905, 909 (1978)). There is also Georgia authority that holds that evidence authorized an inference that manufacturer's product was defective when there was no other reasonable explanation for the occurrence resulting in plaintiff's damages. Firestone Tire & Rubber Co. v. Hall, 152 Ga. App. 560, 562-63 (1), 263 S.E.2d 449 (1979).
After review of the relevant authorities, the Court aligns with the holding in the Sheats case as to the manufacturing defect aspect of the case as unlike the circumstantial evidence cases, cited above, there are other reasonable explanations for the occurrence resulting in Plaintiff's damage (such as negligence on the part of Wal-Mart or its employee, or failure to exercise ordinary care on the part of Plaintiff).
The Court only lists possible/non-binding reasonable explanations and does not intend to usurp the role of the fact-finder at trial. The Court notes that this ruling is not determinative as to the claims against Defendant Wal-Mart in that even if the manufacturing defect claim is subject to summary judgment, issues of material fact remain as to whether there was a problem with the bag post-manufacture, once the bag was at the Wal-Mart store at issue.
"In reaching the above conclusion, the Court appreciates the fact that this case presented a unique challenge" to Plaintiff because the bag at issue no longer exists. Pryce v. Septodont, Inc., No. 1:08-CV-2652-TCB, 2010 WL 11493749, at *6 (N.D. Ga. Nov. 19, 2010), aff'd, 481 F. App'x 497 (11th Cir. 2012). "Nevertheless, to proceed under a strict liability theory, [Plaintiff] was required to adduce competent, admissible evidence that a manufacturing defect existed in the" bag. Id. "[S]peculation and conjecture" regarding the existence of a manufacturing defect are not sufficient to overcome a motion for summary judgment. Graff v. Baja Marine Corp., No. CIV.A. 2:06-CV-68-WC, 2007 WL 6900363, at *10 (N.D.), aff'd, 310 F. App'x 298 (11th Cir. 2009).
Accordingly, summary judgment is warranted as to Defendant API.
2. Ordinary Care
Defendant API asserts failure to exercise ordinary care as an alternative ground for summary judgment. Doc. No. [55-1], 12 n.7. As the product identification issue is determinative, the Court issues no ruling on this alternative ground as to API.
3. Future Medical Treatment
"Defendant moves for summary judgment on any claim by Plaintiff to future medical expenses on the ground that there is no evidence that any such expenses will be incurred, or as to the amount of the same." Doc. No. [55-1], 8. Plaintiff did not respond in opposition on this ground in her brief and conceded the claim at the summary judgment hearing. Accordingly, the Court deems the future medical treatment claim abandoned. See Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014).
4. Derivative Claims
"Defendant moves for summary judgment on Plaintiff's derivative claim for attorney's fees because Plaintiff's underlying claims fail, and because the attorney's fees claim fails on its own merits." Doc. No. [55-1], 8. As correctly cited by Defendant API, "[a]n award of attorney fees, costs, or punitive damages is derivative of a plaintiff's substantive claims." Stephen A. Wheat Tr. v. Sparks, 325 Ga. App. 673, 682, 754 S.E.2d 640, 648 (2014). As Plaintiff's substantive claims against API are subject to summary judgment, the derivative claims also fail. Plaintiff also did not respond in opposition on this ground in her brief and conceded the issue at the summary judgment hearing. Accordingly, the Court deems the attorney's fees claim abandoned. See Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014).
B. Defendant Bunzl's Motion for Summary Judgment
In its Motion for Summary Judgment, Defendant Bunzl asserts that it is entitled to summary judgment on the following grounds: (1) Plaintiff has presented no evidence that the bag at issue was defective or evidence of Defendant Bunzl's knowledge about such defects at the time of the sale; (2) any injuries suffered by Plaintiff were likely caused by her own failures to exercise ordinary care during the checkout process at Wal-Mart; (3) there is insufficient evidence that Plaintiff will actually require future medical treatment for injuries arising out of the incident; and (4) Plaintiff's derivative claims for attorney's fees fail because her underlying tort claims fail and because they are unsupported on their own merits.
1. Knowledge of the Alleged Defect
In Count III of the Complaint, Plaintiff asserts a product liability claim against Defendant Bunzl and states that Defendant Bunzl is "strictly liable to Plaintiff for placing the bags into the stream of commerce" as it "knew or should have known of the dangerous condition" of the allegedly defective bag. Doc. No. [1-1], 5-6.
As stated above, the undisputed evidence shows that during the relevant time period, Defendant Bunzl distributed bags to the Wal-Mart store location at issue. Defendant Bunzl did not play any role in the manufacturing process of the bags. Defendant Bunzl received the bags in packaged form at its warehouse to be distributed directly to the Wal-Mart store. The bags were never unpackaged or repackaged by Defendant Bunzl. Doc. Nos. [56-2]; [61-1].
As correctly noted by Defendant Bunzl in its summary judgment briefing, as a product seller, it is not liable under a strict liability product liability (manufacturing defect) claim. See O.C.G.A. § 51-1-11.1 ("[A] product seller is not a manufacturer as provided in [the manufacturer liability code section, O.C.G.A. § 51-1-11] and is not liable as such."); Hester v. Hum., 211 Ga. App. 351, 353, 439 S.E.2d 50, 53 (1993) ("As a retailer rather than manufacturer, defendant . . . is not liable under a theory of strict liability in tort.").
Thus, the Court moves on to the failure to warn claim asserted against Defendant Bunzl.
The Court notes that Plaintiff's briefing also focuses on a failure to warn theory of liability. Doc. No. [61], 5.
"[A] distributor . . . could be held liable for negligent failure to warn only if, at the time of the sale, it had 'actual or constructive knowledge' that its product created a danger for the consumer." Bishop v. Farhat, 227 Ga. App. 201, 206, 489 S.E.2d 323, 328 (1997) (citations omitted). "The seller is required to warn if he 'has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge' of the danger[.]" Id.
In its Motion for Summary Judgment, Defendant Bunzl asserts that Plaintiff has presented no evidence that the bag at issue was defective and has also not presented evidence of Defendant Bunzl's knowledge about such defects at the time of the sale. In support of this argument, Defendant Bunzl points to its interrogatory response in which it stated that it "knows of no similar incidents at the premises identified in Plaintiff's Complaint." Doc. No. [56-7], ¶ 12; see also [56-2], ¶ 26.
The Court agrees that Defendant Bunzl has pointed to an absence of evidence to support the knowledge element of Plaintiff's failure to warn claim. The Court further finds that Plaintiff has not met her burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. The Court recognizes Plaintiff's argument that her counsel tried to inquire of the knowledge subject at the deposition of Defendant Bunzl's representative, but opposing counsel objected. Doc. No. [61-1], ¶ 26. However, Federal Rule of Civil Procedure 30(c)(2) states that even when there is an objection to the deposition, "the examination still proceeds" and this Court has informal discovery dispute procedures available to all parties to resolve discovery disputes. Doc. No. [19], 2 ("The Court is usually available by telephone to resolve objections and disputes that arise during depositions."). Thus, the Court is unable to uphold Plaintiff's argument for failing to present knowledge of other similar incidents evidence.
Summary judgment is warranted in favor of Defendant Bunzl on this ground. See Hester, 211 Ga. App. at 353, 439 S.E.2d at 53 (finding no error in the grant of summary judgment in favor of defendant/retailer where "[t]he uncontroverted evidence establishes that defendant . . . was merely a retailer who sold the equipment involved in the same condition in which he received it, was aware of no defects in the equipment, and had never heard of anyone being injured in the manner in which plaintiff's injury occurred."); see also King Hardware Co. v. Ennis, 39 Ga. App. 355, 147 S.E. 119, 121 (1929) ("It is the general rule that a vendor or dealer, who is not the manufacturer, is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that, when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article, and in not placing upon the market a commodity which is defective and likely to inflict injury.").
2. Ordinary Care
Defendant Bunzl asserts failure to exercise ordinary care as an alternative ground for summary judgment. Doc. No. [56-1], 13. As the failure to warn/knowledge issue is determinative, the Court issues no ruling on this alternative ground as to Defendant Bunzl.
3. Future Medical Treatment
"Defendant moves for summary judgment on any claim by Plaintiff to future medical expenses on the ground that there is no evidence that any such expenses will be incurred, or as to the amount of the same." Doc. No. [56-1], 14. Plaintiff did not respond in opposition on this ground in her brief and conceded (and abandoned) the claim at the summary judgment hearing. Accordingly, the Court deems the future medical treatment claim abandoned. See Jones, 564 F. App'x at 434.
4. Derivative Claims
"Defendant moves for summary judgment on Plaintiff's derivative claim for attorney's fees because Plaintiff's underlying claims fail, and because the attorney's fees claim fails on its own merits." Doc. No. [56-1], 16. As correctly stated by Defendant, "[a]n award of attorney fees, costs, or punitive damages is derivative of a plaintiff's substantive claims." Stephen A. Wheat Tr. v. Sparks, 325 Ga. App. 673, 682, 754 S.E.2d 640, 648 (2014). As Plaintiff's substantive claims against Defendant Bunzl are subject to summary judgment, the derivative claims also fail. Plaintiff also did not respond in opposition on this ground in her brief and conceded the issue at the summary judgment hearing. Accordingly, the Court deems the attorney's fees claim abandoned. See Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014).
C. Defendant Wal-Mart's Motion for Joinder
In her Complaint, Plaintiff labels her claim against Wal-Mart "negligence." Doc. No. [1-1], 4. Plaintiff alleges that Defendant Wal-Mart "should have known of the dangerous condition before [she] was injured." Id. ¶ 9. She also alleges that the "Wal-Mart associate negligently placed the item in the bag that was too heavy for the bag" and that "Wal-Mart negligently trained and supervised the associate." Id.
In its Motion for Joinder to Defendant Bunzl's Motion for Summary Judgment, Defendant Wal-Mart asserts that "Plaintiff's own deposition testimony and the video of the accident shows that Plaintiff failed to exercise ordinary care for her own safety, that there is no evidence that the bag was defective, that [Wal-Mart] had no reason to know that the bag was defective, and that Plaintiff had equal knowledge of the condition which caused her injuries." Doc. No. [57], 1.
"Georgia law distinguishes between negligence cases where a condition on the premises causes injury to someone and those where an employee's active negligence causes injury to someone." Byrom v. Douglas Hosp., Inc., 338 Ga. App. 768, 771, 792 S.E.2d 404, 408 (2016). "If an injury is caused by the active negligence of an owner/occupier's employee, however, ordinary negligence principles apply." Id. at 772, 792 S.E.2d at 408. "Claims of active negligence require the same proof as other simple negligence claims" as follows. Id.
(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff[.]
Id.
After review, the Court finds that even though Wal-Mart has joined in Defendant Bunzl's motion and arguments for summary judgment, those arguments are not determinative as to Defendant Wal-Mart. In making this decision, the Court again derives guidance from the Sheats case.
In the Sheats case, the Georgia Court of Appeals noted that "[b]ecause [the store] discarded the allegedly defective package, it cannot show that the alleged defect was not reasonably observable, and [the plaintiff] cannot show that it was." Sheats, 336 Ga. App. at 313, 784 S.E.2d at 448. The court then remanded for consideration of a prior motion for spoliation.
While the issue of spoliation has not been specifically raised in a motion in the case sub judice, there is evidence that the Wal-Mart manager was the last person in possession of the bag and the bag is no longer available for inspection by the parties. Doc. No. [60-3], Williams depo, Tr. 25:20-24. As such, Wal-Mart cannot show that any problem with the bag was not reasonably observable. Sheats, 336 Ga. App. at 313, 784 S.E.2d at 448.
Under Georgia law, "questions of negligence and the exercise of ordinary care are issues for jury resolution except in plain and palpable cases." Id. at 768, 772, 792 S.E.2d at 409; cf. Oser v. Wal-Mart Stores, Inc., 951 F. Supp. 115, 120 (S.D. Tex. 1996) (declining to grant summary judgment to store in a negligence case where jar fell through a plastic bag and led to plaintiff's injury).
After consideration of the holding in Sheats and the facts presented, the Court concludes that this case is not one of the plain and palpable cases so as to warrant summary judgment on the negligence claim against Defendant Wal-Mart. Summary judgment is also not warranted on the ordinary care issue in light of Plaintiff's deposition testimony which provides some evidence of ordinary care for her own safety. The Court specifically finds that a genuine dispute of fact exists as to Plaintiff's exercise of care. Accordingly, summary judgment is not warranted as to Defendant Wal-Mart on the negligence cause of action. However, as Plaintiff conceded and abandoned the future medical expenses and attorney's fees claims at oral argument, the Court will grant partial summary judgment as to those claims.
In exercising ordinary care, a plaintiff-invitee must use all of her senses to discover and avoid those things that might cause her harm. Robinson v. Kroger Co., 268 Ga. 735, 741, 493 S.E.2d 403, 406 (1997). An "invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises." Id. at 743, 493 S.E.2d at 411. In opposition, Plaintiff asserts that issues of fact remain as to her exercise of ordinary care for her own safety. Doc. No. [60], 6. Plaintiff states that her deposition testimony "clearly indicates that she was adequately paying attention to perform the task of moving grocery bags from the checkout counter to the grocery cart." Id. She further asserts that the incident would have happened even if she had not been talking on her telephone. Id.
IV. CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment filed by Defendant Advance Polybag, Inc. (Doc. No. [55]) is GRANTED.
The Motion for Summary Judgment filed by Defendant Bunzl USA Holdings, LLC (Doc. No. [56]) is GRANTED. Defendant Wal-Mart Stores East, L.P.'s Motion for Joinder to Defendant Bunzl USA Holdings Motion for Summary Judgment (Doc. No. [57]) is GRANTED in part as to the joinder, future medical expenses, and attorney's fees claims and DENIED as to the negligence cause of action stated in Count I of the Complaint (Doc. No. [1-1].).
The Court deems this case appropriate for mediation and ORDERS Plaintiff and Defendant Wal-Mart to participate in a mediation of this case before an assigned United States Magistrate Judge for the Northern District of Georgia. To this regard, the Court REFERS this case to Chief Magistrate Judge Russell G. Vineyard for assignment to the next available Magistrate Judge. Mediation will be scheduled at the discretion and convenience of the Magistrate Judge assigned. Plaintiff and Defendant Wal-Mart are ORDERED to file notice within FIVE (5) DAYS of the conclusion of mediation advising this Court of the outcome. Plaintiff and Defendant Wal-Mart are further ORDERED that, if mediation is unsuccessful, they must file their consolidated proposed pretrial order with this Court within THIRTY (30) DAYS of the conclusion of mediation.
IT IS SO ORDERED this 8th day of February, 2023.