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Rogers v. Walgreens Family of Companies

United States District Court, D. South Carolina, Spartanburg Division

August 1, 2017



          Bruce Howe Hendricks United States District Judge

         This matter is before the Court on Defendant Walgreens Family of Companies' (“Defendant” or “Walgreens”) Motion for Summary Judgment (ECF No. 23). For the reasons set forth in this Order, Defendant's Motion is granted.


         On March 24, 2013, Plaintiff Cynthia Rogers (“Plaintiff”) was walking in a Walgreens store located in Gaffney, South Carolina and was startled by an employee dressed as the Easter Bunny. She alleges that, as a result of being startled and falling back against a shelf, she suffered injuries that ultimately resulted in her need for back surgery nearly a year and a half later. (ECF No. 1-1 ¶¶ 2 & 4; Rogers Dep., ECF No. 23-2.) On the day in question, Plaintiff had been shopping at Lowe's for her son when she and her then-husband, Joel Rogers, left Lowe's and went to the Walgreens located in Gaffney. Plaintiff frequented this Walgreens and shopped there often. While her husband remained in the car, Plaintiff went inside to buy pistachios. (Rogers Dep. 51:9-20, ECF No. 23-2.) After finding the pistachios, she went toward the front of the store to check out. At the front of the store, Walgreens had a display being used for customers to take their picture with the Easter Bunny. Misha Foster, the store manager, rented a bunny costume and Walgreens employee, Derek Grigsby, played the part. Grigsby is estimated to be approximately 5 feet, 8 inches tall. (Foster Dep. 23:5-14, 24:23-26:12, ECF No. 23-3.) The marquee sign out front advertised that the photo display would be in the store that day. (Id. at 51:3-21.)

         On this day, it was raining and customer traffic was slow. Foster and Grigsby were sitting across from each other in front of the photo display chatting as Plaintiff made her way to the cash register to check out. Plaintiff asserts that as she walked by the photo display where Foster and Grigsby were sitting, she was startled. Plaintiff testified that, turning the corner of the aisle towards checkout, “out of the corner of my eye I saw like fairly close to me like a large animal with some type of movement.” (Rogers Dep. 53:6-12, ECF No. 23-2.) As a result, she states:

And like in fear, I attempted to try to run, and I twisted my body around like really violently trying to run like to get away, and my feet felt like they wouldn't move. They were like froze with fear is what-I don't know. Maybe like you would walk up on a snake or something. My heart was pounding, and I twisted my body around trying to run. And then I clutched my chest and then I fell backward and there were some shelves behind me. I fell up against the shelf.

(Id. at 53:12-22.)

         Plaintiff couldn't tell if the person in the rabbit costume was sitting or standing, just that it was “large.” The employee in the costume didn't say anything to her. She is not sure her body struck anything in the store, but claims that she “twisted.” She did not fall to the ground or come in contact with the person in the bunny costume. After being “startled, ” she left the area of the photo display and walked to the cashier to check out. She paid for her items and left the store. (Id. at 61:7-25, 63:7-64:24, 65:3-8, 69:3-11.)

         When Plaintiff got back to her vehicle, she claims she began to “hurt.” Plaintiff had no outward signs of injury, but complained to her husband that she was hurting and that she had been startled by the rabbit in the store. She testified that when she sat down, “it felt like 10 or 20 pounds of weight was on my back, and I had like, more like a crushing feeling all across my buttocks area and then pain shot down into my left leg, and it felt very heavy.” (Id. at 72:1-14.) Plaintiff's husband did not witness the incident and was not present in the store at the time. He went into the store and began “snapping some pictures” of the Easter Bunny because he felt that Grigsby had scared his wife on purpose. (Joel Rogers Dep. 34:4-9, 35:1-36:16, 40:1-15, 41:20-23, ECF No. 23-4.)

         Store manager Foster testified that the first time she saw Plaintiff was when Plaintiff was walking down the aisle headed toward the front of the store and the cash register. Plaintiff walked between Foster and Grigsby as they were talking. Foster saw Plaintiff react as she walked between the two of them, and Plaintiff grabbed her chest. Foster heard Plaintiff say, “Oh, you scared me. I didn't know there was a real person in there.” Foster did not see Plaintiff twist or fall or strike anything. Foster testified that Grigsby did not make any sudden movements or say anything to Plaintiff. Grigsby did not get up from his seat, but waved to Plaintiff as she walked by. Foster watched Plaintiff proceed to the cash register, check out, and leave the store. Joel Rogers soon came into the store upset about his wife being injured, but Foster made no connection between what she had just observed and Mr. Rogers' agitation because Plaintiff appeared to be fine when she walked out of the door, was not limping or bent over, and had an apparently normal conversation with the cashier at the front desk. (Foster Dep. 26:1-27:3, 31:21-32:13, 39:16-23, 42:1-20, 45:7-25, ECF No. 23-3.)

         Defendant filed a Motion for Summary Judgment on November 7, 2016, arguing that Defendant is entitled to summary judgment because: (1) Plaintiff's Complaint alleges no recognizable duty, and (2) even if a duty exists, there was no breach of said duty by Defendant. (ECF No. 23 at 4-8.) Plaintiff responded on November 28, 2016 (ECF No. 24), and Defendant replied on December 5, 2016 (ECF No. 25.) The Court has thoroughly reviewed the parties' briefs and the record, and now issues the following ruling.


         The 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). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been ...

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