Case: 15-10504   Date Filed: 09/08/2015   Page: 1 of 13


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10504
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cv-03099-WBH



SHERRI BROWN,
KELVIN BROWN,

                                                         Plaintiffs - Appellants,

versus

PUBLIX SUPER MARKETS, INC.,

                                                         Defendant - Appellee.

                       ________________________

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

                            (September 8, 2015)

Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Sherri Brown sued Publix Super Markets, Inc., to recover for injuries she

sustained when she slipped and fell in one of its Georgia stores. Mrs. Brown

brought a claim for negligence, and her husband, Kelvin Brown, brought a claim

for loss of consortium. The district court granted Publix’s motion for summary

judgment. Mrs. Brown appeals, arguing that the district court committed various

errors.

      After review of the record and the parties’ briefs, we affirm.

                                         I

      Mrs. Brown fell in the store’s deli section in an area adjacent to the deli

counter. Two long floor mats ran the length of the deli counter. To the right of the

counter was an opening through which Publix employees could pass to access the

area behind the counter. The floor mats did not cover that area of the floor. Mrs.

Brown slipped in that open area as she stepped off one of the floor mats.

      Mrs. Brown testified that she slipped on black grease spots and that she saw

the spots only after she had fallen. See D.E. 18-3 at 4 (Brown Aff. ¶¶ 15–17). She

also testified that the spots were each about the size of a quarter, covered a total

area of approximately two inches by two inches, and were not “easily visible.” See

D.E. 18-4 at 5, 9 (Brown Dep. 67:22–68:24, 82:24–83:5). Two Publix employees,

who were present immediately after Mrs. Brown fell, stated in their sworn




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affidavits that they looked for and did not see any foreign substance on the floor.

See D.E. 13-3 at 4 (Draves Aff. ¶ 8); D.E. 13-4 at 4 (Johnson Aff. ¶ 8).

      Forty-three minutes of security video footage—not part of the record on

appeal—captured Mrs. Brown’s fall and the period immediately before and after.

The district court concluded that the video lacked the detail necessary to determine

whether any substance was on the floor where Mrs. Brown fell. See D.E. 31 at 1

(“The video is of insufficient quality to make any judgment about the condition of

the floor.”). The district court noted that the footage revealed that several Publix

employees, including the store manager, walked over or stood in the area where

Mrs. Brown fell. 

According to Mrs. Brown, at two points in the video,

Publix employees are seen walking over the area while carrying containers of clear

liquid. See Appellant’s Br. at 7–9. Mrs. Brown testified that she did not see the

two employees carrying the containers of clear liquid, did not see them

transporting the containers in such a way that the substance could spill, did not see

how the spots got on the floor, and did not see the spots until she had fallen. See

D.E. 18-3 at 3–4 (Brown Aff. ¶¶ 9–10, 17).

      Publix has a “Don’t pass it up. Pick it up!” safety policy. The policy

requires all Publix employees to be vigilant in looking for spills or other potential

hazards on store premises and to immediately clean up or correct those hazards.

D.E. 18-15 at 3–4 (Pl.’s Ex. K at 3-4). The store manager, Daniel Draves, and the

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assistant deli manager, Denise Johnson, both testified that Publix employees

inspected the area where Mrs. Brown fell—by visually scanning the floor pursuant

to Publix’s policy—at least four times in the approximately fifteen minutes prior to

the incident. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4 at 3 (Johnson Aff. ¶

7).

      The district court granted summary judgment in favor of Publix, ruling that

Mrs. Brown could not demonstrate that the store had constructive knowledge of the

black grease spots. See D.E. 31 at 5. The district court concluded that Mrs. Brown

did not prove that the black grease spots were easily seen, nor did she provide any

evidence to show the length of time that the spots were on the floor. 

also found that Mrs. Brown’s failure to present evidence regarding the length of

time the black grease spots were on the floor precluded any argument regarding the

reasonableness of Publix’s inspection policies. 

Finally, as to Ms. Brown’s

argument that an employee spilled something in the area where she fell, the district

court ruled that there was “no basis from which the jury could find that it was more

likely than not that an employee spilled anything.” 

      Mrs. Brown argues that the district court committed three errors: (1) it

incorrectly found that Publix lacked constructive knowledge of the alleged grease

spots on the floor; (2) it failed to afford her proper reasonable inferences regarding




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the facts; and (3) it erroneously dismissed Mr. Brown’s loss of consortium claim as

derivative of Mrs. Brown’s negligence claim.

                                         II

      We review an order granting summary judgment de novo. See Raney v.

Aware Woman Ctr. for Choice, Inc., 

, 1268 (11th Cir. 2000). We

view the facts and reasonable inferences in the light most favorable to Mrs. Brown.

See Moore ex rel. Moore v. Reese, 

, 1231 (11th Cir. 2011).

Summary judgment is appropriate only if there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 

, 311 (1986). A genuine issue

of material fact exists if the “evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Anderson v. Liberty Lobby, 

, 248

(1986). “[A]n inference based on speculation and conjecture is not reasonable.”

Chapman v. Am. Cyanamid Co., 

, 1518 (11th Cir. 1988).

      To prevail on a slip-and-fall claim under Georgia law, a plaintiff “must

prove (1) that the defendant had actual or constructive knowledge of the hazard;

and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of

ordinary care due to actions or conditions within the control of the

owner/occupier.” Robinson v. Kroger Co., 

, 414 (Ga. 1997). The

second element is not at issue here. Publix does not dispute that Mrs. Brown

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exercised ordinary care; nor does it dispute that she lacked knowledge of any

potential hazard. Actual knowledge is also not at issue, because Mrs. Brown

alleged only that Publix had constructive knowledge.

      “Constructive knowledge can be proven by showing either (1) that an

employee of the proprietor was in the immediate area of the hazardous condition

and could have easily seen the substance or (2) that a foreign substance remained

on the floor for such a time that ordinary diligence by the proprietor should have

effected its discovery.” J.H. Harvey Co. v. Reddick, 

, 752 (Ga. Ct.

App. 1999) (internal quotation marks and citation omitted). Under the second

method, such knowledge

      may be inferred when there is evidence that the owner lacked a
      reasonable inspection procedure. In order to prevail at summary
      judgment based on lack of constructive knowledge, the owner must
      demonstrate not only that it had a reasonable inspection program in
      place, but that such program was actually carried out at the time of the
      incident.

Shepard v. Winn Dixie Stores, Inc., 

, 38 (Ga. Ct. App. 1999) (internal

quotation marks and footnote omitted). See also Ginn v. Grothere, 

, 878 (Ga. Ct. App. 1996) (explaining that “a defendant can establish lack of

actionable constructive knowledge by evidence of compliance with reasonable

inspection . . . procedures”) (internal quotation marks and citation omitted).

Nevertheless, under Georgia law, “[i]t is well settled that a proprietor is under no

duty to patrol the premises continuously in the absence of facts showing that the
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premises are unusually dangerous.” Mazur v. Food Giant, Inc., 

,

179 (Ga. Ct. App. 1987). See also Blake v. Kroger Co., 

, 202 (Ga.

Ct. App. 1996) (“We know of no case or rule which requires a proprietor or its

employees to crawl on the floor at regular intervals to discover and remove every

otherwise hidden or invisible hazard.”).

      To survive summary judgment under the second method of proving

constructive knowledge, a plaintiff must prove the period of time that the

hazardous condition existed. See 

. “Without such (proof)

it would not be possible to determine whether the defendant had been afforded a

reasonable time within which to inspect and remove the hazard.” 

marks omitted). “[T]he plaintiff need not show how long the hazard had

been present[, however,] unless the owner has demonstrated its inspection

procedures.” 

(finding that a store did not demonstrate

inspection procedures where store manager’s affidavit discussed the store’s general

inspection policy but did not address whether the manager possessed personal

knowledge of inspections carried out on the day of the slip-and-fall incident).

      Georgia courts have repeatedly held that, regardless of any inspection

policy, “where a proprietor . . . show[s] that an inspection occurred within a brief

period prior to an invitee's fall, . . . the inspection procedure [is] adequate as a

matter of law.” J.H. Harvey 

(collecting cases). See also

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Mucyo v. Publix Super Markets, Inc., 

, 376 (Ga. Ct. App. 2009)

(same).

                                           III

      The district court correctly granted summary judgment in favor of Publix.

Mrs. Brown was unable to produce sufficient evidence to create a genuine issue of

material fact with respect to constructive knowledge. In fact, much of the record

evidence is contrary to Mrs. Brown’s version of the events and the bulk of her

testimony is purely speculative.

                                            A

      We first address Mrs. Brown’s argument that the district court erred in

finding that Publix lacked constructive knowledge of the black grease spots. As

discussed earlier, there are two ways of proving constructive knowledge: (1) by

establishing that an employee of the proprietor was in the immediate area of the

hazardous condition and could have easily seen the substance; or (2) by showing

that the foreign substance remained on the floor for such a time that ordinary

diligence by the proprietor should have effected its discovery. See J.H. Harvey

.

      As to the first method of proving constructive knowledge, there is no dispute

that Publix employees were in the area around the time Mrs. Brown fell. Two

Publix employees testified that several store personnel traversed the area where

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Mrs. Brown fell. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4 at 3 (Johnson

Aff. ¶ 7). The district court ruled that the surveillance video corroborated this

testimony.   See D.E. 31 at 2.      There is no evidence, moreover, that Publix

employees could have easily seen the substance Mrs. Brown slipped on. In fact,

the evidence leads to the opposite conclusion.

      Mrs. Brown testified that the black grease spots were the size of quarters and

covered only a two by two inch area, that she only saw them once she was on the

floor, and that the spots were not “easily visible.” See D.E. 18-4 at 5, 9 (Brown

Dep. 67:22–68:24, 82:24–83:5). Additionally, two Publix employees testified that

they did not see black grease spots on the floor at all. See D.E. 13-3 at 4 (Draves

Aff. ¶ 8); D.E. 13-4 at 4 (Johnson Aff. ¶ 8). Although we accept that the black

grease spots existed, constructive knowledge cannot be established from this

evidence. See, e.g., 

(finding that, because no evidence

showed that the purported hazard was readily visible to plaintiff and others in the

vicinity, the plaintiff did not establish that an employee could have easily seen and

removed the hazard); Brown v. Host/Taco Venture, 

, 443 (Ga. Ct.

App. 2010) (finding that the plaintiff did not establish that the defendant could

have easily seen a grease spot where the plaintiff testified that the grease spot was

not “easily visible,” and it was not apparent to him until after he had fallen).

Moreover, the store manager and assistant deli manager testified that Publix

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employees inspected the area where Mrs. Brown fell at least four times in the

fifteen minutes before the incident. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4

at 3 (Johnson Aff. ¶ 7). Publix’s inspection of the area before the incident is

therefore deemed adequate as a matter of law and summary judgment in favor of

Publix was appropriate. See J.H. Harvey 

; 

.

      The second way to prove constructive knowledge is by showing that the

substance remained on the floor for a sufficiently long time for an employee to

have discovered it. Mrs. Brown cannot prevail on this theory either. There is no

evidence whatsoever as to how long the substance was on the floor. Mrs. Brown

claimed that the substance had been on the floor for “almost an hour,” see D.E. 18

at 22, but she provided no evidence to support this claim. Such speculation,

unsupported by evidence, cannot defeat summary judgment. See Cordoba v.

Dillard’s, Inc., 

, 1181 (11th Cir. 2005) (“Speculation does not create

a genuine issue of fact; instead, it creates a false issue, the demolition of which is a

primary goal of summary judgment.”) (quoting Hedberg v. Ind. Bell Tel. Co., 

, 931–32 (7th Cir.1995) (emphasis in original)). And there was evidence

that Publix employees inspected the area four times in the fifteen minutes before

Mrs. Brown fell. See D.E. 13-3 at 3 (Draves Aff. ¶ 7); D.E. 13-4 at 3 (Johnson

Aff. ¶ 7). Publix’s inspection of the area before the incident is therefore deemed

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adequate as a matter of law and summary judgment in favor of Publix was

appropriate. See J.H. Harvey 

; 

.

                                         B

      Mrs. Brown argues that constructive knowledge could be inferred because

Publix’s “Don’t pass it up. Pick it up!” inspection policy is unreasonable in that it

does not require employees to conduct regular, documented inspections of the

floor. This argument is unavailing.

      As the district court correctly noted, “establishing constructive knowledge

by showing that the business failed to exercise reasonable care in inspecting the

premises ‘requires proof of the length of time the dangerous condition was allowed

to exist[.]’” D.E. 31 at 7 (quoting Sheriff v. Hosp. Auth. of Houston Cnty., 

, 4 (Ga. Ct. App. 1996)).        And, as discussed above, Mrs. Brown’s

argument that the black grease spots were on the floor for almost an hour is

speculative.

      To the extent Mrs. Brown argues that the video does not show Publix

employees looking down at the floor to support her claim that they did not inspect

the floor, we are unpersuaded. The video is not part of the record on appeal, and

we therefore cannot determine whether Mrs. Brown’s argument is correct. See

Selman v. Cobb Cnty. School Dist., 

, 1333 (11th Cir. 2006) (“[T]he

burden is on the appellant to ensure the record on appeal is complete[.]”).

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                                         IV

      Mrs. Brown argues that the district court did make not reasonable inferences

in her favor.     Specifically, she contends that the district court improperly

concluded that because she testified that she did not easily see the grease spots, the

Publix employees likewise could not have easily seen the hazard and corrected it.

But, as explained above, there was no evidence presented by Mrs. Brown that the

grease spots could have been easily seen. Additionally, the Publix employees

testified that they did not see the black grease spots at all. Therefore, the district

court made the only inference that was reasonable to make—the black grease spots

were not easily visible.

      Mrs. Brown further argues that the district court improperly inferred from

the Publix employees’ testimony (and from the surveillance video footage) that

Publix conducted an inspection of the area where Mrs. Brown fell. She argues that

the Publix employees’ testimony contradicts the surveillance video footage

because the employees seen in the video are not actually looking down at the floor

as they pass over the area where Mrs. Brown fell. Again, we do not have the video

to review. In any event, in the absence of any evidence that the black grease spots

were easily visible it is irrelevant whether the Publix employees conducted an

actual inspection of that area. See 

(“[I]n the absence of

evidence that a reasonable inspection would have discovered the foreign substance,

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no inference can arise that defendant's failure to discover the substance was the

result of its failure to inspect.”).

                                            V

       Finally, Mrs. Brown argues that because the district court improperly

granted summary judgment on her negligence claim, it likewise improperly granted

summary judgment on her husband’s loss of consortium claim. We disagree.

       Under Georgia law, loss of consortium claims are derivative actions that

stem from the rights of a spouse. See Henderson v. Hercules, Inc., 

,

454 (Ga. 1985). Where an individual possesses no right to recover, his or her

spouse likewise possesses no right to recover. See Douberly v. Okefenokee Rural

Elec. Membership Corp., 

, 709 (Ga. Ct. App. 1978) (finding that,

since the appellees were not liable for injuries to the appellant, they were not liable

to appellant's wife for any loss of consortium attributable to those injuries).

Because the district court properly granted summary judgment in favor of Publix

on Mrs. Brown’s negligence claim, it was correct in doing the same with regard to

Mr. Brown’s derivative loss of consortium claim.

                                            VI

       For the forgoing reasons, we affirm the district court’s order granting

summary judgment in favor of Publix.

       AFFIRMED.

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