           Case: 18-13728   Date Filed: 04/25/2019   Page: 1 of 8


                                                     [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13728
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:16-cv-01479-ODE

NICOLE PARKER,

                                                     Plaintiff-Appellant,

                                  versus

WAL-MART STORES EAST, LP,

                                                     Defendant-Appellee.



                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                             (April 25, 2019)




Before TJOFLAT, BRANCH and BLACK, Circuit Judges.

PER CURIAM:
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       Nicole Parker appeals the district court’s grant of summary judgment in

favor of Wal-Mart Stores East, LP (Wal-Mart), in her personal injury slip-and-fall

action. Parker asserts the district court erred in granting summary judgment

because there is a genuine issue of material fact regarding whether Wal-Mart had

constructive knowledge of the spill that caused Parker’s fall. After review, 1 we

affirm the district court’s grant of summary judgment.

                                     I. BACKGROUND

       On September 5, 2015, Parker slipped and fell in Wal-Mart’s store located in

Riverdale, Georgia. When the incident occurred, Parker was walking with her

daughter and had just turned on the toothpaste aisle located in the Health and

Beauty department.

       Wal-Mart employee Shaquana Ezzard was working on the toothpaste aisle in

the vicinity of the fall. Surveillance video shows that during the one hour

preceding the incident, Ezzard was restocking merchandise in the Health and

Beauty Department. The video shows that for most of the hour, Ezzard had a cart

full of restocking items over the area where Parker fell. The cart was moved

approximately 15 minutes before the fall. The cart was full of various returned


       1
         We review the “grant of summary judgment de novo, viewing all the evidence, and
drawing all reasonable factual inferences, in favor of the nonmoving party.” Boyle v. City of Pell
City, 866 F.3d 1280, 1288 (11th Cir. 2017) (quotations omitted). Summary judgment is
appropriate when the movant demonstrates there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Id.


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merchandise from customer service or random items left around the store that

needed reshelving.

      Wal-Mart requires regular safety sweeps of an area to check for slip-and-trip

hazards. Where there is an employee in the area, Wal-Mart relies on that employee

to conduct a safety sweep. Ezzard testified that while she did not do a targeted

safety sweep in the hour before Parker’s fall, she was “zoning” the area in that

hour. Zoning is when an employee is looking around for safety hazards while

doing other activities. Ezzard testified that she was “constantly” looking at the

floor while restocking merchandise.

      After Ezzard moved the restocking cart, she passed through the fall area

approximately eight times. She testified that she would have been able to see the

spill after moving the cart because she walked through the area and was zoning.

Parker fell approximately 35 seconds after one of Ezzard’s passes through the area.

      Although Parker is unsure what caused the fall, after the fall she described

the substance as “slippery” and “clear” like baby oil. Parker was unable to

estimate the size of the spill, since after the fall she was sitting in the substance and

it had gotten on her pants and hands. When Ezzard was standing beside Parker,

she could see a substance on the floor but could not identify what it was. Ezzard

testified it was a “clear substance,” possibly baby oil. Ezzard could not say the

exact size of the spill but testified that it was puddled. Store Manager Kevin


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Morrell testified the substance “was just a clear substance. It was I mean crystal

clear.”

      Maintenance associate Angelica Willingham testified that when she arrived

on the scene after the fall, but while Parker was still on the floor, she could not

determine the size of the spill because Parker was at least partially sitting in it, but

what she could see were “little drops” smaller than a couple inches in diameter.

Willingham elaborated that the substance looked like “smudged oil,” that to see it

“you have to tilt half your whole top body to see,” and that you had to get “close,

really close so you could see a little, like a little drop that was like this size of your

palm.”

                                   II. DISCUSSION

      In order to recover for her injuries under Georgia law, Parker must show that

(1) Wal-Mart had actual or constructive knowledge of the hazard, and (2) she was

without knowledge of the hazard despite the exercise of ordinary care. Robinson v.

Kroger Co., 493 S.E.2d 403, 414 (Ga. 1997). Here, Parker does not contend Wal-

Mart had actual knowledge of the substance on the floor, so she must point to

evidence that Wal-Mart had constructive knowledge of the substance in order to

survive a motion for summary judgment. Constructive knowledge can be shown

by presenting evidence that (1) a Wal-Mart employee was in the immediate

vicinity and easily could have seen and removed the hazard, or (2) the substance


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had been on the floor long enough that it would have been discovered and removed

if Wal-Mart had exercised reasonable care in inspecting and cleaning its premises.

Matthews v. The Varsity, Inc., 546 S.E.2d 878, 880 (Ga. Ct. App. 2001).

A. Whether Ezzard could have seen and removed the hazard

      Parker has arguably abandoned the argument that Ezzard easily could have

seen and removed the spill by failing to elaborate on this argument in her initial

brief. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.

2014) (“We have long held that an appellant abandons a claim when he either

makes only passing references to it or raises it in a perfunctory manner without

supporting arguments and authority.”). To the extent the argument is not

abandoned, it is undisputed that the substance on the floor was clear. While no

employees could affirmatively say how big the spill on the floor was, all witnesses

who testified stated that at least after the fall, it was small in size. There is no

testimony showing the spill spread over a large swath of the toothpaste aisle such

that Ezzard, the only employee who had the opportunity to see the spill before

Parker’s fall, should have seen and removed the spill.

B. Whether Wal-Mart exercised reasonable care in inspecting and cleaning its
premises

      Parker contends the surveillance video creates a genuine issue of fact

regarding whether Wal-Mart employee Shaquana Ezzard exercised reasonable care

in inspecting the premises. Ezzard testified that she did not complete a dedicated
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safety sweep (and neither did any other Wal-Mart associate) in the hour before the

fall, but she “zoned” the area while she was restocking shelves throughout the hour

before the fall. Ezzard testified she walked up and down the entire toothpaste aisle

many times as she stocked product, continually looking at the floor. Ezzard

testified the entire time she worked she complied with all zoning procedures, as

she was looking around “generally” and looking at the floor “constantly.”

      Though it is impossible to tell from the surveillance video where Ezzard was

looking at all times, the video does not contradict her testimony that she was

looking at the floor while zoning. Cf. Fuller v. Kroger Co., No. 1:13-CV-03033-

ELR, 2016 WL 8857031, at *6 (N.D. Ga. Feb. 25, 2016) (reviewing the

surveillance video and determining a reasonable juror could conclude employees

were not inspecting the premises because an employee was looking over his

shoulder to talk to someone behind him while passing the spill of brown liquid and

another employee was carrying multiple cash drawers that would have obstructed

her view). It is undisputed that the substance on the floor was clear and did not

spread over a large area of the toothpaste aisle (at least after the fall). There is no

testimony supporting the inference that Ezzard should have seen the hazard with

the exercise of reasonable care.

      Instead, as the district court concluded, the evidence shows just the opposite.

The spill was small and clear, and Ezzard walked over the spill area several times


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without issue and without noticing any hazard prior to Parker’s fall despite

exercising reasonable care. See Mucyo v. Publix Super Markets, Inc., 688 S.E.2d

372, 374 (Ga. Ct. App. 2009) (affirming the trial court’s grant of summary

judgment to Publix in slip and fall case when plaintiff failed to present any

evidence that a cashier could have easily seen a clear liquid on the floor, and

stating that “[s]howing that an employee was merely working in the immediate

area of a foreign substance is not enough; the employee must have been in a

position to have easily seen the substance and removed it” (quotations omitted)).

      Additionally, there is not reliable evidence the spill was on the floor for a

substantial amount of time such that it would have been remedied with the exercise

of reasonable care. The evidence shows Ezzard continued to inspect the fall area

up until minutes before Parker’s fall. See id. at 375 (stating the fact an inspection

occurred very shortly before the plaintiff’s fall was enough, as a matter of law, to

defeat any negligence action against the defendant because the evidence showed

the defendant exercised reasonable care).

      We agree with the district court that the undisputed evidence shows (1) the

spill Parker slipped on was clear; (2) after the fall the spill was visible, but small

and contained in one area; and (3) Ezzard looked up and down the aisles as she

stocked and walked through the area where Parker fell shortly before the fall and

saw no substance on the floor. While there is no evidence other than speculation


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as to how the unknown substance got on the floor, there is evidence that Wal-Mart

had no actual or constructive knowledge of the spill due to its clear color and the

execution of reasonable inspection procedures by Ezzard.

      Thus, we affirm the district court’s grant of summary judgment.

      AFFIRMED.




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