Jacqueline Gootee v. The Target Corporation , 256 F. App'x 253 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 6, 2007
No. 07-11456 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00887-CV-TCB-1
JACQUELINE GOOTEE,
Plaintiff-Appellant,
versus
THE TARGET CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 6, 2007)
Before ANDERSON, BARKETT and HILL, Circuit Judges.
PER CURIAM:
Jacqueline Gootee sued Target Corporation, asserting a personal injury
claim against it for damages she allegedly sustained in connection with her
removal of a breadmaker from the retailer’s shelf and the subsequent falling from
another shelf of several crock pots. The district court granted summary judgment
to the defendant, holding that Georgia law does not permit recovery for such an
injury absent proof that the defendant had actual or constructive knowledge of the
allegedly defective shelf. We review this judgment de novo,viewing the evidence
in the light most favorable to the non-moving party. Brooks v. County
Commission, 446 F.3d 1160 (11 th Cir. 2006).
Gootee’s claim is predicated upon a theory of premises liability, alleging
that Target’s negligence was the proximate cause of her injuries. Under Georgia
law, which applies in this diversity action, an owner of real property owes a duty to
all of its invitees to exercise ordinary care in keeping its premises safe. O.C.G.A. §
51-3-1. Nevertheless, not all injuries subject the owner of the property to liability.
To recover under Georgia law, Gootee must be able to prove that the defendant had
superior knowledge of the allegedly perilous display of cookware and that the
dangerous condition must have been known to Target and unknown to her. See
Sams v. Wal-Mart Stores, Inc., 491 S.E.2d 517, 518 (Ga. App. 1997). Like the
plaintiff in Sams, Gootee has made no showing that Target was actually aware of
the allegedly defective manner in which the cookware had been stacked. Id.2
Therefore, Target could be liable only if it had constructive knowledge of the
alleged danger. Id.There is no evidence in the record from which to conclude that Target had
such constructive knowledge. Constructive knowledge requires proof that an
employee of the owner was in the immediate vicinity of the dangerous condition
and could easily have noticed and removed the hazard. Thompson v. Regency Mall
Assocs., 432 S.E.2d 230, 232 (Ga. App. 1993). Alternatively, constructive
knowledge may be inferred from evidence showing that the owner failed to
exercise reasonable care in inspecting the premises, but recovery under this
approach requires proof of the length of time the dangerous condition was allowed
to exist. Id.There is no evidence in this record from which to conclude that Gootee can
make either of these showings. She presented no evidence that a Target employee
was in the immediate vicinity at the time of the incident, in a position to see and
remove the danger. Nor did she offer evidence that the alleged hazard had existed
for any significant amount of time prior to the incident. Nor is there any evidence
of prior incidents that might have put Target on notice of the hazard. Finally,
Target submitted evidence that all of its employees are trained to patrol the aisles
and check for unsafe conditions and that one of its employees had walked through
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the aisle where the incident occurred shortly before and did not observe anything
out of the ordinary.1 Since Gootee bears the burden of coming forward with
specific evidence that Target’s knowledge of the alleged hazard was superior to
hers and she has failed to do so, Target is entitled to summary judgment. See
Sams, 491 S.E.2d at 519; Green v. Home Depot U.S.A., Inc., 627 S.E.2d 836, 838-
39 (2006).
Accordingly, the judgment of the district court is
AFFIRMED.
1
The doctrine of res ipsa loquitor is inapplicable in this case because there was an
intermediate cause that produced the injury, namely, Gootee’s pulling the bread maker off the
shelf. Consequently, negligence cannot be presumed and is a matter of affirmative proof. See
Sams, 491 S.E.2d at 519.
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