Store owner entitled to summary judgment where plaintiffs failed to present evidence of the existence of a hazardous substance on the floor, how the alleged substance got there, or how long the substance was on the floor, to establish the owner’s liability for a hazardous condition.
We deny plaintiffs’ second motion to amend her complaint and grant defendant’s motion for summary judgment.
Plaintiff allegedly slipped and fell in a store owned and operated by defendant after slipping on a substance on the floor as she pushed her shopping cart through the checkout. Roger Elmore was the store manager on duty at the time of the alleged incident. Plaintiff and her husband filed suit against defendant, alleging negligence and gross negligence and loss of consortium. Defendant removed the case to federal court under diversity jurisdiction.
Plaintiffs moved to amend their complaint to add Elmore as a defendant. The court denied the motion, ruling that the proposed amendment was primarily intended to destroy diversity jurisdiction, that plaintiffs were dilatory in seeking amendment, that amendment was futile because defendant would be vicariously liable for Elmore’s negligence, and that plaintiffs had failed to explain why Elmore was a necessary part.
After the court issued an amended scheduling order, plaintiffs filed the present motion to amend to add Elmore as a defendant; defendant cross-moved for summary judgment. In support of their motion, plaintiffs argued that they had a right of recovery against a store manager for negligence arising from that manager’s control and care of the store. In response, defendant argued that nothing had changed to warrant adding Elmore as a defendant and that plaintiffs had failed to present any evidence supporting their allegations of negligence.
We first deny plaintiffs’ motion to amend, agreeing with defendant that plaintiffs had failed to identify any new or changed circumstances from the denial of their first motion to amend that would now warrant adding Elmore as a defendant.
We further granted defendant’s motion for summary judgment, agreeing that plaintiffs had failed to submit evidence that there was even a substance on the floor that caused plaintiff’s fall, and if such a substance existed how it got there and how long it was there. Instead, we find that plaintiffs impermissibly raised a new allegation that plaintiff’s fall was caused by her shopping cart. Thus, with a lack of evidence of a dangerous condition, we rule that defendant is entitled to summary judgment.
Motion to amend denied and motion for summary judgment granted.
Daniels v. Food Lion, LLC (Lawyers Weekly No. 002-212-18, 15 pp.) (Harwell, J.) 5:16-cv-00936-RBH D.S.C.