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Phillips v. BI-LO, LLC

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

October 31, 2019

Judy Phillips, Plaintiff,
v.
BI-LO, LLC, Defendant.

          OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          Cameron McGowan Currie Senior United States District Judge.

         Through this action, Judy Phillips (“Phillips”) seeks recovery from BI-LO, LLC. (“BI-LO”) for an injury suffered when she slipped in a brown substance on the floor of a BI-LO supermarket. ECF No. 1-1 ¶¶ 3, 7, 8. The matter is before the court on BI-LO's motion for summary judgment. ECF No. 10. For reasons set forth below, the motion for summary judgment is granted.

         STANDARD

         Summary judgment should be granted 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). It is well established that summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). While all justifiable inferences must be drawn in favor of the non-movant, Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990), a non-moving party cannot create a genuine issue of material fact through mere speculation or the building of inference upon inference. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985).

         Rule 56(c)(1) provides as follows:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers or other materials; or (b) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         FACTS

         On August 27, 2015, Phillips visited the BI-LO supermarket at 7830 Garners Ferry Road in Columbia, South Carolina. ECF No. 1-1 ¶¶ 3, 6; Phillips dep. at 20, 22; ECF No. 12-1 (Safety Report).[1] While pushing her cart through the dairy aisle, Phillips' right foot slipped in a brown substance. Phillips dep. at 32, 33. Phillips concluded the substance was likely pudding. Id. at 33 (testifying “I think I came to the conclusion maybe it looked like pudding” and “I still think it was pudding”); see also ECF No. 12-1 at 3 (Safety Report describing substance as “pudding or what ever”).

         Phillips grabbed her grocery cart for balance, shifting her weight to her left leg. Phillips dep. at 32. While she did not feel pain immediately, Phillips' left knee began to hurt and swell within a week. Id. at 45 (attributing these symptoms to the incident at BI-LO because they were new). Phillips argues the abrupt and sudden movement when she slipped caused her to tear her meniscus, which ultimately required surgery to repair. ECF No. 10 at 2.[2]

         Phillips reported the injury to the store manager, Tanya Price. ECF No. 12-1. Price completed a Safety Report, which described the incident as follows: “the floor was clear the only thing that was wrong was the pudding or what ever it was on the floor cause[d] her to slip. There w[ere] no packages on the floor that was damaged on what she slip[ped] in.” Id. at 3. The Safety Report includes multiple options for potential cause. “Caused by Unsafe Condition” is marked “yes.” Id. at 2. The Safety Report also lists “Knee (Left)” as the injured “Body Part.” Id.

         ARGUMENTS

         BI-LO argues it is entitled to summary judgment because there is no “competent evidence that BI-LO placed any substance on the floor where the . . . incident occurred or had actual or constructive notice that there was any substance on the floor.” ECF No. 10 at 1. BI-LO relies, in part, on Phillips' deposition testimony that she had no knowledge as to how the substance came to be on the floor, how long it was there, or whether any BI-LO employee had notice of it. Id. at 2 (citing Phillips dep. at ...


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