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Jones v. Publix Supermarket, Inc.

Court of Appeals of Tennessee, Nashville

June 7, 2019


          Session May 8, 2019

          Appeal from the Circuit Court for Davidson County, No. 16C-2594 Amanda Jane McClendon, Judge.

         This is a premises liability case. Appellant slipped and fell in a clear substance on the floor of Appellee Publix Supermarket and filed suit against the grocery chain. Appellee filed a motion for summary judgment, which the trial court granted, finding that Appellant failed to show that Appellee had actual or constructive notice of the dangerous condition. Appellant appeals. Discerning no error, we affirm the trial court's grant of summary judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded.

          Joseph A. Weir, Phillip G. Gombar, Smyrna, Tennessee, for the appellant, Shanera Jones.

          Steven Douglas Parman, Nashville, Tennessee, for the appellees, Publix Supermarkets, Inc., and Publix Tennessee, LLC.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S. and Carma D. McGee, J., joined.



         I. Background

         On October 6, 2015, Appellant Shanera Jones was shopping at the Publix Supermarket on Concord Road in Davidson County. Ms. Jones used a hand-held basket while shopping. After procuring a few items, she proceeded to the seafood department; as Ms. Jones rounded a corner from an aisle, she slipped on "liquid that was present on the floor" and fell. Ms. Jones was carrying her basket on her left arm and attempted to break her fall with her right arm. Within seconds, Ms. Jones stood up from the floor and continued shopping. Store video captured the entire event. By the time Ms. Jones was checking out, Michael Goldfarb, an assistant customer service manager, had been notified of the incident. He approached Ms. Jones to ask if she was okay. Ms. Jones did not state that she was injured, but merely explained that she fell by the seafood department. When Mr. Goldfarb asked if she wanted to fill out an incident report, Ms. Jones declined. However, she returned to the store the next day to fill out a report.

         Prior to Ms. Jones's fall, store video shows several customers traversing the area where Ms. Jones's fell. Approximately two minutes before the fall, the video shows a possible source of a small amount of liquid on the floor. The video shows a toddler in a "kiddy cart" in the area. The child appears to drink from a container (sippy cup/bottle) and then drop the container inside the cart. Any liquid inside the container could have fallen through the wire bottom of the cart onto the floor. Ms. Jones disputes that this was the source of the substance on the floor because she described the liquid as "oily." However, Ms. Jones does not identify another possible source for the liquid.

         During discovery, Ms. Jones deposed Donald Shaw, a Publix employee who was working in the seafood department on the day of the incident. Mr. Shaw testified that he was waiting on a customer when Ms. Jones fell, but he did not witness the fall. However, he "heard the commotion" and saw her stand up. Mr. Shaw testified that he immediately left the seafood counter and went to the spot where Ms. Jones fell in an attempt to help her, but she had already exited the area when he arrived. Indeed, the store video footage shows a Publix employee behind the seafood counter when Ms. Jones fell. Shortly after Ms. Jones left the area, the same Publix employee arrived at the location where she fell. Upon watching the video, Mr. Shaw confirmed that he was that Publix employee. In the video, Mr. Shaw can be seen looking around and calling for another person to come to the area. Mr. Shaw stood at the location where Ms. Jones fell until another employee, Nawzad Ahmad, came over with paper towels to clean the liquid from the floor.[1]According to the video, Mr. Ahmad brought paper towels and cleaned the liquid up two minutes after Ms. Jones fell. Mr. Shaw testified that he did not feel the substance, but he observed that "[t]here was a little bit of water . . . not a puddle." Mr. Shaw clarified that it "was a clear liquid." He also testified that he could not recall seeing anything spilled in that area prior to Ms. Jones's fall.

         After the incident, Mr. Goldfarb and Tim Cochran, the store manager, inspected the area where Ms. Jones fell. In his deposition, Mr. Cochran testified that he looked at the floor and noticed "a heel mark, like a scuff mark," and that he "check[ed] the area for any moisture" but did not feel any kind of substance on the floor.[2] Mr. Cochran also testified that, prior to Ms. Jones's fall, he was not aware of any reports, from an employee or a customer, of a spill or wet substance on the floor in that area.

         On September 29, 2016, Ms. Jones filed suit in Davidson County Circuit Court ("trial court") against Publix Super Markets, Inc. and Publix Tennessee, LLC (together "Publix," or "Appellees") alleging negligence and seeking damages for injuries she allegedly sustained in the October 6, 2015 fall. On October 20, 2016, Publix answered denying any liability. On March 12, 2018, Publix filed a motion for summary judgment. Ms. Jones filed a response in opposition to the motion. The trial court heard the motion for summary judgment on May 11, 2018. On August 21, ...

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