U.S. Court of Appeals for the Eleventh Circuit, 2022

Paul A. Palmer, Jr. v. Georgia CVS Pharmacy LLC

U.S. Court of Appeals for the Eleventh Circuit · Decided August 2, 2022

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11100 Non-Argument Calendar ____________________ PAUL A. PALMER, JR., Plaintiff-Appellant, versus CVS PHARMACY INC. et al.,

Defendants,

GEORGIA CVS PHARMACY LLC,

Defendant-Appellee.

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2 Opinion of the Court 21-11100 ____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19-cv-03178-SDG ____________________ Before NEWSOM, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM: Paul Palmer injured his knee when he tripped over the coun- ter at an Atlanta-area CVS. He sued CVS for negligence based on a premises-liability theory under Georgia law. He also moved for sanctions because, he claimed, CVS “fail[ed] to preserve evidence in its original form.” The district court granted CVS’s motion for summary judgment and denied Palmer’s motion for sanctions.

Palmer, proceeding pro se, appeals. We affirm. 1

1 Palmer also contends that his due-process rights were violated. But because he raises that issue for the first time on appeal, we need not address it. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004). He also asserts that the district court erred when it awarded CVS attorneys’ fees.

However, there is no fee award included in the district court’s order granting summary judgment—nor did CVS seek fees in its motion for summary judg- ment. See Doc. 80 at 17 (District Court’s Order Granting Summary Judg- ment); Doc. 51-1 at 13 (CVS’s Brief in Support of Motion for Summary Judg- ment). Like the due-process issue, then, Palmer’s challenge to the nonexistent fee award is not properly before us. See Access Now, 385 F.3d at 1332.

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21-11100 Opinion of the Court 3 I Under Georgia law, “[w]hen a premises liability cause of ac- tion is based on a ‘trip and fall’ or ‘slip and fall’ claim”—as is Palmer’s—the plaintiff must demonstrate two elements: (1) that “the defendant had actual or constructive knowledge of the hazard; and (2) [that] the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s con- trol.” American Multi-Cinema, Inc. v. Brown, 679 S.E.2d 25, 27–28 (Ga. 2009) (citations omitted). 2 But, as a “threshold question,” the plaintiff must first demonstrate that “a hazardous condition exists.”

Drew v. Istar Fin., Inc., 661 S.E.2d 686, 689 (Ga. App. 2008). Be- cause Palmer cannot establish a genuine issue of material fact as to the existence of a hazardous condition, we affirm summary judg- ment for CVS.

Palmer contends that the CVS counter presented a hazard- ous condition because it “was loose, protrud[ed] out and below knee level and [was] not in [his] plain view.” But that bare assertion is insufficient to establish a fact question about whether the counter constituted a hazardous condition. Palmer has not, for example, provided any “expert affidavit about the construction” of the 2We review the district court’s order granting “summary judgment de novo and apply the same legal standard used by the district court, drawing all infer- ences in the light most favorable to the non-moving party and recognizing that summary judgment is appropriate only where there are no genuine issues of material fact.” Smith v. Owens, 848 F.3d 975, 978 (11th Cir. 2017).

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4 Opinion of the Court 21-11100 counter “or any evidence that [CVS] violated any rules, ordinances, or standards pertaining to the structure.” Cohen v. Target Corp., 567 S.E.2d 733, 735 (Ga. App. 2002). Because Palmer has failed to provide evidence supporting his assertion that the counter was a hazardous condition, summary judgment was appropriate. 3 II Next, Palmer contends that the district court abused its dis- cretion when it denied his motion for sanctions.4 On a spoliation- of-evidence claim, the party seeking sanctions bears the burden of proof. See Eli Lilly & Co. v. Air Express Int’l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010). That includes, of course, establishing that spoliation—the destruction or significant alteration of evi- dence—occurred. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999); see also Spoliation, Black’s Law Dic- tionary (11th ed. 2019). 3 Separately, even if the counter constituted a hazardous condition, summary judgment was warranted because it was open and obvious, as the district court found. In Georgia, when a hazard is “static” and “nothing obstructs the in- vitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.” D’Elia v. Phillips Edison & Co., 839 S.E.2d 721, 724 (Ga. App. 2020) (quotation omitted). The counter on which Palmer tripped was painted red, unobstructed, and static.

Thus, even if it was a hazard, it was open and obvious. Summary judgment was appropriate on that ground alone. See id. 4“We review the district court’s decision regarding spoliation sanctions for abuse of discretion.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943 (11th Cir. 2005).

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21-11100 Opinion of the Court 5 Apart from bald assertions, Palmer has provided no evi- dence to support his allegation that CVS altered the videotape of his slip-and-fall incident. He thus failed to carry his burden and the district court did not abuse its discretion when it denied his motion for sanctions.

AFFIRMED.

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