*1 Before the Court is Defendant PFJ Southeast, LLC's (“PFJ”) Motion for Summary Judgment (Doc. 49), Defendant Pilot Travel Centers, LLC's (“Pilot”) Motion for Summary Judgment (Doc. 50) and Plaintiff Rosendo Canales' Motion for Sanctions for Spoliation of Evidence (Doc. 46). All three Motions have been fully briefed and are ripe for review. For the reasons set forth herein, Defendants' Motions for Summary Judgment (Docs. 49, 50) are GRANTED and Plaintiff's Motion for Sanctions (Doc. 46) is DENIED.

I. Procedural History

Plaintiff Canales filed this Georgia slip-and-fall action on January 22, 2019 in the State Court of Gwinnett County, Georgia. (Doc. 1-1.) The Complaint alleges that, among other things, Defendants Pilot and PFG negligently failed to inspect for and alleviate dangerous conditions on the premises under their control and that Defendants failed to warn invitees of known hazards, which caused injury to Plaintiff. (Doc. 1-1 at 7–8.) Plaintiff's complaint also alleges that Defendants engaged in negligent hiring and employee supervision. (Doc. 1-1 at 8-10.) Defendants PFG and Pilot individually answered the Complaint in state court on February 22, 2019 (Doc. 1-1 at 38-44, 47-53), and jointly removed the case to the U.S. District Court for the Northern District of Georgia on the same day. (Doc. 1.) On March 17, 2019, Plaintiff filed a Motion to Remand the case back to state court. (Doc. 6.) An initial scheduling order was issued on April 1, 2019. (Doc. 11.) Plaintiff withdrew his Motion to Remand on May 22, 2019 (Doc. 18), and on June 18, 2019, Defendants filed a Motion to Transfer Venue to this Court for the convenience of the parties and witnesses and the interest of justice. (Doc. 22-1.) The Norther District granted the Motion to Transfer Venue and this Court assumed jurisdiction of the case on July 17, 2019. (Doc. 32.) On July 31, 2019, this Court issued a Scheduling Order amending the original scheduling order to comply with the Local Rules of this Court. (Doc. 35.)

Discovery for the case was initially set to close on November 22, 2019. However, on November 19, 2019 the parties jointly filed a Consent Motion to Extend Discovery to January 24, 2020 with motions for summary judgment required to be filed by February 24, 2020. (Doc. 44.) The Court granted the joint motion and extended discovery to January 24, 2020. (Doc. 45.) Accordingly, discovery closed on January 24, 2020 and the Defendants filed their Motions for Summary Judgment by the final deadline to do so on February 24, 2020. (Docs. 47, 48.) Plaintiffs filed a Motion for Sanctions on February 21, 2020. The Motion for Sanctions and Motions for Summary Judgment are ripe for review. See M.D. Ga. L.R. 7.3.1.A.

II. Relevant Facts

The following facts are derived from the Plaintiff's Complaint (Doc. 1-1); Plaintiff's Response (Doc. 54), Defendant PFG's Theory of Recovery and Statement of Undisputed Material Facts (Doc. 47-2), Defendant Pilot's Theory of Recovery and Statement of Undisputed Material Facts (Doc. 48-2); and the record in this case. Where relevant, the factual summary also contains undisputed and disputed facts derived from the pleadings, the discovery and disclosure materials on file, and any affidavits, all of which are construed in a light most favorable to Plaintiff as the nonmoving party. See Fed. R. Civ. P. 56; Matsushita, 475 U.S. at 587-88.

*2 Defendant Pilot is in charge of maintaining its premises, including the common areas, parking lots, and exterior areas of the gas station and Pilot store located at 7001 Lake Park-Bellville Road, Lake Park, Georgia, 31636. (Doc. 1-1 at ¶¶ 5, 10.) Employees of Pilot undergo safety training regardless of their position when they are hired and are instructed on slips, trips, and falls. (Doc. 48-2 at ¶¶ 2, 3, 4.) Pilot employees are also instructed on how to inspect the outside area of the Pilot store, including how to handle spills or hazardous substances on the ground and the cleaning protocols required. (Doc. 48-2 at ¶¶ 6, 9, 10, 11.) Pilot employees maintain and inspect the premises each day and maintenance employees pressure wash the parking lot, fuel islands, and sidewalks of the premises each day starting at 2:00 a.m. (Doc. 48-2 at ¶¶ 13, 14, 15; Doc. 54 at 3.) After pressure washing is completed, Pilot employees sweep and remove any other trash and debris from the entire parking lot, which is concluded by 7:00 a.m. (Doc. 48-2 at ¶ 16; Doc. 54 at 3.) Maintenance staff of the Pilot store check the trash cans, fuel islands, and premises every thirty to sixty minutes each day. (Doc. 48-2 at ¶¶ 19, 20; Doc. 52 at 4.)

When a Pilot manager arrives for his or her shift, the manager is required to perform a “manager's walk,” which requires the manager to cover a seven-zone checklist to follow and at the start of each shift, each manager walks every zone, including the exterior of the Pilot Store and fueling lanes. (Doc. 48-2 at ¶ 18; Doc. 52 at 3.) There are three manager's walks per day. (Doc. 48-2 at ¶ 19; Doc. 52 at 3.) Once a month, a regional maintenance technician for Pilot comes to the Pilot store and spends three to four days inspecting the grounds and fuel islands and making any repairs. (Doc. 48-2 at ¶ 23.)

On November 3, 2017, regional maintenance technician Dana Goggild was on site at the Pilot store and reported no leaks, spills, or other substances on the ground near the fuel islands. (Doc. 48-2 at ¶ 23, 25, 26; Doc. 52 at 4.) Kimberly Reed was the manager on duty and began her shift at 4:00 p.m. (Doc. 48-2 at ¶ 27; Doc. 52 at 4.) Ms. Reed completed her manager's walk and did a “drive around inspection” of the premises upon arriving for her shift. (Doc. 48-2 at ¶ 27, 29; Doc. 52 at 4.) Ms. Reed stated that no customer or employee had complained of any substance on the ground. (Doc. 48-2 at ¶ 33.)

On November 3, 2017, Plaintiff Rosendo Canales was traveling Montezuma, Georgia to Lehigh Acres, Florida. (Doc. 48-2 at ¶ 34.) Plaintiff stopped at the gas station and store owned and operated by Defendant Pilot at approximately 9:30 p.m. that evening. (Doc. 1-1 at ¶ 9; Doc. 48-2 at ¶ 36; Doc. 54 at 5.) Plaintiff was traveling with a man, David, and an unknown woman in a van with a 16-foot, flat-bed trailer. (Doc. 48-2 at ¶¶ 35, 37.) The gas tank for the van was on the driver's side, and Plaintiff pulled forward to a gas pump so his gas tank was even with a pump. (Doc. 48-2 at ¶ 38.) After parking, Plaintiff went inside the Pilot store and purchased gas and a cup of coffee. (Doc. 48-2 at ¶ 36; Doc. 54 at 5.) Plaintiff then gave his coffee to David and went to use the restroom. (Doc. 48-2 at ¶ 40; Doc. 54 at 5.) After using the restroom, Plaintiff walked back to his van by walking across a fuel island to David to get his coffee. (Doc. 48-2 at ¶ 43; Doc. 54 at 5.) When he retrieved his coffee, Plaintiff began walking away from David and he suddenly fell. (Doc. 1-1 at ¶¶ 13, 14; Doc. 48-2 at ¶ 44; Doc. 54 at 5.) Plaintiff was not looking down when he fell and did not know or see what caused him to fall. (Doc. 48-2 at ¶¶ 45, 46; Doc. 54 at 5.)

David and the unidentified woman went into the Pilot store after helping Plaintiff off the ground to report the incident and speak to the manager. (Doc. 48-2 at ¶ 51; Doc. 54 at 6.) The Pilot store manager, Ms. Reed spoke to Plaintiff who explained he had tripped on something and had fallen. (Doc. 48-2 at ¶ 52; Doc. 54 at 6.) Plaintiff was asked if he needed an ambulance and he said no. (Doc. 48-2 at ¶¶ 53, 54.) Ms. Reed went to her office to retrieve the store's electronic tablet computer to complete an incident report as the company had recently stopped using paper forms for such reports. (Doc. 48-2 at ¶ 55, 56.) Ms. Reed filled out the report and then proceeded outside with employee Jarvis McQuay, a maintenance employee, to inspect the area where Plaintiff fell and to take photographs. (Doc. 48-2 at ¶¶ 57, 58, 59; Doc. 54 at 6.) Ms. Reed attempted to photograph the area with the tablet computer but was unsure it was working correctly. (Doc. 48-2 at ¶ 60.) Ms. Reed instructed Mr. McQuay to take photographs of the area, which he did with his cell phone. (Doc. 48-2 at ¶ 60; Doc. 54 at 6.) Neither Ms. Reed nor Mr. McQuay saw any liquid, substance, or otherwise on the ground where Plaintiff fell. (Doc. 48-2 at ¶¶ 61, 62; Doc. 54 at 6.) Plaintiff and his two traveling companions then drove away from the Pilot Store. (Doc. 48-2 at ¶ 63.)

*3 Ms. Reed then returned to the Pilot Store and uploaded the photos from Mr. McQuay's phone onto the tablet computer. (Doc. 48-2 at ¶ 65.) Ms. Reed then attempted to submit the electronic incident report, but there was an error upon its transmission. (Doc. 48-2 at ¶ 67.) Ms. Reed called the Pilot Help Desk to assist with the technical difficulties. (Doc. 48-2 at ¶ 68.) When Ms. Reed's shift ended, she left a note on the tablet for the next incoming manager, Mr. Green, explaining the issue with the tablet and that she had notified the Help Desk. (Doc. 48-2 at ¶ 69.) On November 4, 2017, Veronica Cueller, a Pilot guest service manager, arrived at the Pilot store and viewed the surveillance footage from the incident the evening before involving plaintiff. (Doc. 48-2 at ¶ 72.) Ms. Cueller testified that the video showed that Plaintiff tripped over a gas can on the ground beside Plaintiff's vehicle when he attempted to open his vehicle door. (Doc. 48-2 at ¶¶ 73, 74, 76, 77.) Because of the fall, Plaintiff sustained bodily injuries. (Doc. 1-1 at ¶ 18.)

III. Standards of Review

A. Federal Rule of Civil Procedure 56

Federal Rule of Civil Procedure 56 allows a party to move for summary judgment where no genuine issue of material fact remains and the party is entitled to judgment as a matter of law. “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). “A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.” Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). “An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The movant bears the initial burden of showing, by reference to the record, that there is no genuine issue of material fact. See Celotex, 477 U.S. at 323; Chapman, 229 F.3d at 1023. The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact, or by demonstrating to the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex, 477 U.S. at 322-24. Once the movant has met its burden, the nonmoving party is required “to go beyond the pleadings” and identify “specific facts showing that there is a genuine issue for trial.” Id. at 324. To avoid summary judgment, the nonmoving party “must do more than summarily deny the allegations or ‘show that there is some metaphysical doubt as to the material facts.’ ” Matsushita, 475 U.S. at 586 (citations omitted). Instead, the nonmovant must point to competent record evidence that would be admissible at trial. See also Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999)) (noting that hearsay may be considered on a motion for summary judgment only if it “could be reduced to admissible evidence at trial or reduced to admissible form.”). Such evidence may include affidavits or declarations that are based on personal knowledge of the affiant or declarant. See Fed. R. Civ. P. 56(c)(4).

On a motion for summary judgment, the Court must view all evidence and factual inferences drawn therefrom in the light most favorable to the nonmoving party and determine whether that evidence could reasonably sustain a jury verdict. See Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. However, the Court must grant summary judgment if there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c).

B. Local Rule 56

*4 Local Rule 56 requires the following:

M.D. Ga. L.R. 56. As stated above, the Parties complied with the Federal Rules of Civil Procedure, the Local Rules, and the order of this Court by timely filing a motion for summary judgment, a response and reply thereto, along with a surreply and sur-surreply, and a statement of material facts and a response thereto. The Court will now address these ripe motions.

Here, Plaintiff Canales and both Defendants have complied with Local Rule 56 by including with their briefs a Statement of Undisputed Material Facts. (Docs. 47-2, 48-2, 54.) Noting that this requisite standard is met, and with the above given facts and evidence in mind, the Court now turns to merits of both PFG and Pilot's Motions for Summary Judgment.

IV. Discussion

To prevail on a slip-and-fall claim in Georgia, a plaintiff must prove, among other things, “(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., 493 S.E.2d 403, 414 (Ga. 1997). To prove actual knowledge of a hazard, a plaintiff “must do more than merely show that [the defendant's] employees had a general knowledge that a hazardous condition might exist.” J.H. Harvey Co. v. Reddick, 522 S.E.2d 749, 752 (Ga. Ct. App. 1999). Rather, the defendant must have some kind of specific knowledge of the particular hazard that caused the plaintiff's injury. Id. To prove constructive knowledge, a plaintiff may choose between “one of two ways: [1] by evidence that an employee was in the immediate area of the hazard and could easily have discovered and removed it, or [2] by showing that the owner did not use reasonable care in inspecting the premises.” Taylor v. AmericasMart Real Estate, LLC, 651 S.E.2d 754, 759 (Ga. Ct. App. 2007) (quoting KMart Corp. v. Jackson, 521 S.E.2d 93, 96 (Ga. Ct. App. 1999)).

A. Claims against PFJ

Defendant PFG argues that it is entitled to Summary Judgment because Plaintiff has failed to provide facts showing that, as an out-of-possession landlord, PFG was liable for his slip and fall. (Doc. 49-1 at 9.) In his Response, Plaintiff concedes this point, and consents to dismissal of PFG from the instant action. (Doc. 54 at 1.)[1] The Court agrees with the assessment of both Parties and finds that judgment in favor of PFG is appropriate for the following reasons.

*5 Pursuant to O.C.G.A. § 44-7-14,[2] a landlord who has parted with possession and the right of possession of property is not responsible to third parties for damages resulting from negligence or illegal uses of the premises by a tenant unless the damages stem from defective construction or a failure to keep the premise in repair. This means that under Georgia law, an out-of-possession landlord, such as PFG, who merely owns the land on which a tenant leases and operates a premises, may be held liable only where the landlord knows of defective construction that could have been avoided or corrected by exercise of ordinary care or where the landlord has knowledge of a dangerous condition and fails to exercise reasonable care in alleviating the condition. McLaughin v. SLD Atlanta West, LLC, No. 1:17-CV-1265-CC, 2018 WL 3954747 at *4, (N.D. Ga. May 25, 2018) (holding that an out of possession landlord may not be held liable for a slip and fall where no question of injury or fact arose out of defective construction or from the failure to keep the premises in repair); Cowart v. Schevitz, 782 S.E.2d 816 (2016) (holding that an out-of-possession landlord could not be held liable for third party's injuries resulting from a slip and fall where the landlord parted with possession of the leased premises and retained only the right of inspection); see also Sidhi Inv. Corp. v. Thrift, 785 S.E.2d 552, 555-58 (Ga. Ct. App. 2016) (holding that an out-of-possession landlord was entitled to judgment as a matter of law in slip and fall case where the tenant was responsible for repairs and maintenance and out-of-possession landlord retained only a limited right to enter the store).

Plaintiff has not presented any evidence to show that there is a genuine question of material fact as to whether Defendant PFG breached any duty owed to Plaintiff or could have had any knowledge of any potentially dangerous conditions that could have allegedly caused Plaintiff's fall. (Doc. 49-1 at 11, 16.) Thus, based on the available facts and record evidence and Plaintiff's concession to dismissing PFG from the instant action (Doc. 54 at 1), the Court grants Summary Judgment in favor of Defendant PFG.

B. Claims against Pilot

1. Slip and Fall

Unlike PFG, Defendant Pilot did maintain the premises where Plaintiff fell and allegedly sustained his injury. Regardless, Pilot contends that it is entitled to Summary Judgment on Plaintiff's slip and fall claim because Plaintiff has failed to establish the existence of a hazardous condition on the premises at the time of the incident at issue and because Plaintiff has failed to establish that Pilot had any actual or constructive knowledge of any potential hazardous condition at the time of the incident. (Doc. 50-1.) The first requisite inquiry must be whether Plaintiff has adequately demonstrated through record evidence that his slip and fall was indeed due to the negligence of Pilot, namely whether a hazardous condition existed on the premises at the time that was the cause of his injury.

A person's fall, without more, is not enough to create liability on the part of a proprietor. Pickney v. Covington Athletic Club & Fitness Ctr., 655 S.E.2d. 650, 652-53 (Ga. Ct. App. 2010).

Imperial Inv. Doraville, Inc. v. Childers, 693 S.E.2d 834, 836 (Ga. Ct. App. 2010) (quoting Pennington v. WJL, Inc., 589 S.E.2d 259 (2003)). Thus, Plaintiff must be able to point to something that amounts to more than mere speculation in the available evidence to demonstrate that Pilot acted negligently and breached a duty to him.

In his deposition, Plaintiff specifically states that he does not know what caused him to fall. (Doc. 50-5 at 89.) Plaintiff indicates that he “feel something on his feet,” but did not see or know what it was. (Id.; Doc. 48-1 at 14.) Nothing Plaintiff offers as factual evidence demonstrates to this Court that he had any awareness as to what actually caused him to slip and fall. In fact, Plaintiff concedes that Pilot did not have actual knowledge of any hazardous condition(s) that could have caused any harm to him or other customers on the night of the incident. (Doc. 54 at 11.) Absent evidence showing a cause or hazard attributable to Pilot, Plaintiff's argument against summary judgment in favor of Pilot appears to be one rooted in speculation and conjecture. See Imperial Inv. Doraville, Inc. v. Childers, 693 S.E.2d at 836.

*6 However, Plaintiff argues that he indeed identified something that caused him to fall, and thus he is not merely speculating at the cause of his fall and injury. (Doc. 54 at 9.) Further, Plaintiff contends that Pilot did have at least constructive knowledge of a hazardous condition on the premises at the time of his injury because Pilot failed to properly carry out the inspection procedures required under its company policy. (Doc. 54.)

To receive summary judgment on that question, Pilot must show there is no genuine dispute that “reasonable inspection procedures were in place and followed at the time of the incident.” Straughter v. J.H. Harvey Co., Inc., 500 S.E.2d 353, 355 (Ga. Ct. App. 1998) (en banc); see also Ingles Mkts., Inc. v. Martin, 513 S.E.2d 536, 537–38 (Ga. Ct. App. 1999) (“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.”). In doing so, Pilot must present “[e]vidence establishing an adherence to customary inspection and cleaning procedures on the day in question,” not just “proof of the mere existence of such customary procedures.” Ingles Mkts., 513 S.E.2d at 538. If Pilot meets that burden, to survive summary judgment, Plaintiff Canales must raise a genuine dispute as to whether the hazard existed long enough for Pilot to discover it. Fussell v. Jimbo's Log Kitchen, Inc., 489 S.E.2d 71, 74–75 (Ga. Ct. App. 1997).

Record evidence in the form of deposition testimony makes clear that Pilot did maintain an inspection procedure that was in place on the day of the incident leading to Plaintiff's fall. (Docs. 50-3, 50-4.) Specifically, the testimony of Veronica Cueller, who was the guest service manager at the time of the incident, provides a broad, detailed overview of the general and daily maintenance and welfare procedures in place for Pilot, including the protocols for manager walks, checklists for each shift, and the timing for inspections of fuel islands at the property. (Doc. 50-4 at 29-41.) Cueller also testified that monthly inspections of the property took place, including the morning of the incident. (Doc. 50-4 at 48.) Cueller's testimony makes clear that these procedures were in effect and practiced on the day of the incident. (Id.) Deposition testimony from Kimberly Reed, the manager on duty at the time of the incident, reiterates that Pilot maintained safety and maintenance protocol procedures, which were active and in effect at the time of Plaintiff's injury. (Doc. 50-5 at 19-38.) Specifically, Reed explained how maintenance issues were handled, training of employees of the Pilot Flying J, and her own practice as manager on duty. (Id.) Reed also stated that these given, known, and expected procedures were in place and put into effect on the date of Plaintiff's injury. (Doc. 50-5 at 50-51.)

Plaintiff does not provide any additional or differing facts to dispute the testimony of Reed or Cueller. Instead, Plaintiff calls the sufficiency of their testimony into question for the purposes of summary judgment by arguing that mere testimony of the existence of a maintenance or inspection procedure is not enough proof to show such procedure occurred. (Doc. 54 at 11-12.) To support this argument, Plaintiff cites the case of Funez v. Wal-Mart Stores East, LP for the proposition that judgment in favor of a defending business is not proper in a slip and fall case where the only evidence supporting that a defendant complied with inspection procedures is a “conclusory statement” by an employee of defendant. No. 1:12-CV-0256-WSD, 2013 WL 11981902 (N.D. Ga. 2013.) However, the Court finds that the instant case and available evidence is distinguishable from that of Funez. In Funez, the only evidence that the Defendant was able to rely upon was that of an employee who was unclear if he was working at the time of the incident at issue, who could not speak to any inspections that took place, or his own duties. Funez, 2013 WL 11981902 at *4. Unlike the testimony that served as the evidence at the heart of Funez, the record evidence and testimony of both Cueller and Reed not only stems from the personal knowledge of both witnesses, but does more than cast a general nod to the existence of inspection or maintenance procedures in effect and put into practice by Pilot on the day of the incident. See Fed. R. Civ. P. 54(c)(4). Further, Reed's testimony makes clear that she not only had personal knowledge of the procedures in place, but also was able to witness them in action first hand as she was present at the premises at the time of Plaintiff's fall. Thus, the Court finds that Plaintiff's reliance on Funez is misguided.

*7 Plaintiff also attempts to create a question of material fact as to whether the inspections discussed in Reed and Cueller's testimony occurred because Pilot has not submitted paper evidence or similar in support of that assertion. (Doc. 54 at 12.) However, in making this argument, Plaintiff does not provide any factual evidence to establish that such inspections did not occur or to counter the testimony of Reed or Cueller is any other way. As with the determination of the potential cause of his fall, Plaintiff cannot rely on speculation and conjecture to clear the hurdle of summary judgment; rather, he must be able to provide the Court the evidence that establishes that a genuine question of material fact exists. See Imperial Inv. Doraville, Inc. v. Childers, 693 S.E.2d at 836. Considering that Plaintiff has not provided any evidence or facts to counter the personal knowledge and testimony of Reed and Cueller, Plaintiff has failed to establish that there is a genuine material dispute that Pilot failed to have reasonable inspection procedures in place and failed to show that such procedures were not in effect on the day of his injury. See Straughter v. J.H. Harvey Co., Inc., 500 S.E.2d at 355. Thus, Plaintiff has failed to establish that Pilot had constructive knowledge of any hazard on its premises Taylor v. AmericasMart Real Estate, LLC, 651 S.E.2d at 759.

Based on the available facts, record evidence, and analysis above, the Court grants Summary Judgment in favor of Defendant Pilot on this issue.

2. Negligent Hiring

In addition to his slip and fall action, Plaintiff also alleges that Pilot is liable to him for negligent hiring, training, and supervision of its employees. (Doc. 1-1 at 8-10.) Plaintiff argues that Pilot is liable to him under the doctrine of respondeat superior for the negligent acts of its employees, for failing to maintain a reasonable hiring process to account for potentially negligent propensities of employees, and for negligently training it employees as evidenced by the alleged loss of certain protocols and reporting procedures. (Id.; Doc. 54 at 13.) Defendant Pilot counters that Plaintiff's argument fails for multiple reasons, including the fact that Plaintiff does not allege any specific employee Pilot negligently hired, trained, or supervised and because Plaintiff has failed to allege exactly how Pilot was negligent in its hiring, training, and supervision of its employees. (Doc. 50-1 at 19.) Pilot also contends that Plaintiff's assertions that Pilot's employees who were present at the scene of the incident (namely, Ms. Reed) failed to follow any set procedures are based solely on speculation as Plaintiff fails to offer any evidence to support his conclusions. (Doc. 56 at 7-10.) Upon reviewing the available record evidence, the Court agrees with Pilot and finds that Plaintiff's contentions are unsupported by factual evidence.

As noted by both parties, “[u]nder Georgia law, an employer is bound to exercise ordinary care in the selection of employees and not retain them after knowledge of incompetency.” Barnes v. O'Neil Trans. Svcs. of Ga., Inc., et al., 5:13-CV-432 (CAR), 2014 WL 1813717, *3 (M.D. Ga. May 7, 2014) (citing O.C.G.A. § 34-7-20). Further, “liability for negligent hiring or retention requires evidence that the employer knew or should have known of the employee's propensity to engage in the type of conduct that caused the plaintiff's injury.” Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir. 2001) (citing Alpharetta First United Methodist Church v. Stewart, 472 S.E.2d. 532, 536-37 (Ga. Ct. App. 1996)).

In his complaint, Plaintiff does not specify which employee that Pilot negligent hired, trained, supervised, or retained. (Doc. 1-1 at 8-10.) Rather, Plaintiff makes generalized statements alleging negligent conduct on the part of the Defendants, even going so far as to assert the speculative statement that “[i]f Defendants had a reasonable hiring process...” Defendants could have known of their employees' propensities that “caused the risk and slipping hazard that caused Plaintiff's fall.” (Doc. 1-1 at ¶ 28.) Similarly, Plaintiff states in his complaint that Defendants failed to supervise employees after failing to follow procedures, even after employees had been reprimanded. (Doc. 1-1 at ¶¶ 32, 33.) Yet, nothing Plaintiff has presented provides support for these statements.

*8 In his Response, Plaintiff attempts to specify these claims by honing his argument in on his “information and belief” that the manager's walk was “not preserved” despite the fact that Pilot's retention policy requires it and despite unrefuted testimony from Ms. Reed establishing that such a walk took place ahead of Plaintiff's fall. Similarly, Plaintiff claims that all forms of incident reporting policies failed, including the need to preserve evidence and take photos. (Id.) Again, Plaintiff does not provide any record cite or point to any factual evidence to support this claim or counter the fact photos of the area where he fell were in fact taken.

Because the Complaint does not, on its face, specify which employee forms the basis of his claims for negligent hiring and supervision, he cannot use arguments in his Response brief as a means to amend or bring heft to his Complaint in this manner. See Barnes v. O'Neil Trans. Svcs. of Ga., Inc., et al., 2014 WL 1813717 at *3. However, even if Plaintiff had specified an employee(s) of Pilot in this particular claim, he still has not pointed to or provided record evidence that demonstrates there is a genuine issue of material fact as to Pilot's employee hiring, training, retention, and supervising practices. Plaintiff has not demonstrated that Pilot knew or should have known of any Pilot employee's propensity to engage in conduct that caused his plaintiff's injury or any other form of negligent inspection of the premises. See Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d at 1247. Moreover, Plaintiff has not shown that Defendant Pilot did anything but exercise ordinary care in the selection, training, and retention of its employees. See Barnes v. O'Neil Trans. Svcs. of Ga., Inc., et al., 2014 WL 1813717 at *3.

Based on the available facts, record evidence, and analysis above, the Court grants Summary Judgment in favor of Defendant Pilot on this issue.

C. Motion for Sanctions

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009). An obligation to preserve evidence may arise when a party has notice of potential litigation. Generally, a party has an obligation to preserve evidence when it receives notice that “the evidence is relevant to litigation-most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.” Walker v. US., I.R.S., No. 4:07-CV-0102, 2009 WL 1241929, at *1 (N.D. Ga. Feb. 26, 2009) (quoting Sapeu v. Bland, No. 6:04CV129, 2007 WL 2694781, at *1 n. 3 (S.D.Ga. Sept.10, 2007). To establish that spoliation of evidence occurred, the Plaintiff bears the burden on showing that “(1) the missing evidence existed at one time; (2) [Defendant] had a duty to preserve the evidence; and (3) the evidence was crucial to Plaintiff[ ] being able to prove their prima facie case.” In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011). Spoliation becomes sanctionable “ ‘only when the absence of that evidence is predicated on bad faith,’ such as where a party purposely loses or destroys relevant evidence.” Walter v. Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962, *2 (S.D. Fla. July 23, 2010) (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)).

“District courts have discretion to impose spoliation sanctions against parties.” Walker, 2009 WL 1241929 at *1 (quoting Brown, 563 F.Supp.2d at 1377). “[F]ederal law governs the imposition of spoliation sanctions.” Id. (quoting Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir.2005)). In the Eleventh Circuit, a spoliation analysis proceeds under federal law as an evidentiary matter. The Court also looks to Georgia law because the Eleventh Circuit authority does not set forth specific elements or guidelines. Flury, 427 F.3d 939, 944 (11th Cir. 2005) (applying federal law as informed by the law of the state of Georgia where “Georgia state law on spoliation is wholly consistent with federal spoliation principles.”). In order to sanction the party at fault for spoliation, a court may dismiss the case, exclude expert testimony, or provide a jury instruction on spoliation of evidence which raises a presumption against the spoliator.” Id.

*9 Whether or not a Court finds the presence of bad faith is critical in the spoliation analysis and any resulting sanctions. In the Eleventh Circuit, “an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Id. at *2 (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) (per curiam)). Moreover, in order to support a finding resulting in an adverse inference, the behavior must be more than negligent. See Walker, No. 2009 WL 1241929, at *1 (“[m]ere negligence in losing or destroying the records is not enough for an adverse inference, as ‘it does not sustain an inference of consciousness of a weak case.”) (internal citation omitted).

Here, Plaintiff requests that this Court issue sanctions against Pilot for its alleged spoliation of the surveillance footage from the night of his slip and fall, photos of the area where he fell, written log from the “manager's walk” conducted by Ms. Reed on the evening of the incident, and the incident report from his fall. (Doc. 46.) Plaintiff contends “that Defendants acted with an intent to deprive Plaintiff the use of this evidence, justifying serious sanctions,” and requests that this Court go so far as to enter a default judgment on his behalf. (Doc. 46 at 9.) In response, Defendants counters that despite Plaintiff's assertions, there is no evidence of bad faith, that Plaintiff fails to present clear evidence that any spoliation occurred, and that based on the requisite analysis, sanctions are not appropriate in this instance. (Doc. 53.)

There is no dispute the evidence at issue existed. Both Plaintiff and Defendants have made clear in their briefings and provided evidence that the disputed evidence was, at one time, in existence and available. The question, however, is whether Plaintiff can demonstrate that Defendants actually bore a duty to preserve the evidence based on the timing of any notice of pending litigation and whether the evidence was actually crucial to Plaintiff's ability to establish a prima facie case. In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d at 1305.

At the outset, the Court notes that Plaintiff has not provided sufficient argument or factual evidence to establish that Defendant Pilot acted in bad faith. Though Plaintiff alludes to malicious action on the part of the Defendant, Plaintiff makes claims of such activity without providing concrete support for any obvious, intentional destruction of evidence that was potentially beneficial to his case. And while, as explained above, the Eleventh Circuit has noted that an adverse inference can be drawn from a party's failure to preserve evidence, that inference must be based on more than mere negligence and supported by more than mere speculation. See Walker, No. 2009 WL 1241929, at *1. Thus, the Court does not find that sanctions are appropriate in this instance due to the absence of evidence of bad faith. See Walter 2010 WL 2927962 at *2. However, before making that final determination, the Court must address whether Defendants bore a duty to preserve the evidence at issue and whether the loss of such evidence hindered Plaintiff's ability to bring his prima facie case.

Plaintiff argues that Defendant Pilot breached it duty to preserve evidence, including the surveillance video, the photos, the incident report, and the manager's walk report in the present case. (Doc. 46 at 4.) Plaintiff contends that despite Pilot's assertions that the surveillance footage was overwritten due to routine practice and lack of notice of litigation, and the loss of the incident report was not the result of malicious intent, Pilot was on notice of the impending litigation, possibly as early as the night of Plaintiff's fall. (Doc. 46 at 4-5.) Plaintiff also asserts that the absence of the surveillance video has limited his ability to bring his prima facie case. (Doc. 46 at 6.)

*10 Plaintiff rests much of his argument in favor of finding sanctions are appropriate in this case based on Pope v. Wal-Mart Stores East, LP, No. 4:13-CV-0009-HLM, 2013 WL 12086325 (N.D. Ga. 2013). However, Plaintiff's case is distinguishable for several reasons, many of which Defendant actually highlights in its response to Plaintiff's Motion for Sanctions. In response to Plaintiff's arguments, Defendant Pilot asserts first that it was not, indeed, on notice of any potential or impending litigation until January 2018, when it first received any contact from Plaintiff or his counsel since the day of his fall on November 3, 2017. (Doc. 53 at 7, 8; see also Doc. 46 at 5.) In Pope, the court found that sanctions were appropriate because it determined that spoliation occurred when the defendant store failed to preserve surveillance video after the Plaintiff established that litigation was pending mere days after sustaining injury. See 2013 WL 12086325 at *5-*6. Here, Pilot did not receive any contact from Plaintiff for nearly two months. (Doc. 53 at 7, 8.) Rather, Pilot first received contact from Plaintiff in the form of a letter regarding potential litigation rather than word that a suit had been filed, which did not occur until 2019. (Id.) Pilot asserted that its parent corporation maintained all surveillance footage and only kept such footage for a period of two weeks. (Doc. 53 at 7.) Defendant noted that Plaintiff failed to contact Pilot's corporate parent's registered agent, and Plaintiff does not provide any counter argument to that assertion. (Id.) An injury “without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.” Aubain-Gray et al. v. Hobby Lobby Stores, Inc., 747 S.E.2d. 684, 687 (Ga. Ct. App. 2013). Further, Plaintiff does not provide any evidence or argument that demonstrates that Pilot had received express notice of actual litigation prior to when notice historically should be given, “when suit has already been filed” or through clear communication immediately following Plaintiff's fall. See Walker, 2009 WL 1241929, at *1.

In the same vein, in Pope the surveillance video at issue was not viewed by anyone before it was disposed of (and thus there was no available testimony as to what was on the video) and there was no photographic evidence of the location where the injury took place at the time of the accident. See 2013 WL 12086325 at *5-*6. Pilot expressed in its response to the Motion for Sanctions that its witness, Ms. Cueller, offered record testimony explaining that she had viewed the surveillance footage at issue here and testified to its contents. (Doc. 53 at 7.) Thus, there is record testimony as to what was contained on the surveillance footage. In regards to the incident report and the manager's log, Pilot provides references to record testimony explaining that despite staff's best efforts, the report could not be located and that the incident report had not been returned to them by their corporate parent's help desk. (Doc. 53 at 8.) Further, Pilot expressed through references to record evidence that on the night of Plaintiff's fall, an incident report was indeed created and that photographs of the scene where Plaintiff fell were taken. (Doc. 53 at 5-6.) However, due to an issue with the corporate logging system and technology (mainly new computer tablets that had recently been introduced), technology difficulties thwarted their efforts to secure the report's transmission. (Doc. 6.) Plaintiff does not provide any argument or evidence to deny these arguments or to establish that the issue with the surveillance footage, incident report, or log were blocked, destroyed, or tampered with through malicious or deliberate conduct on the part of Pilot.

Defendant Pilot also pushes back on Plaintiff's contentions regarding the photographs of the area where Plaintiff's fall occurred. (Doc. 53 at 9-10.) Pilot points out that it has provided Plaintiff with all photographs in its possession, that the photographs were taken immediately after Plaintiff's fall, and that Plaintiff makes its argument that other photos may exist based on a statement from Ms. Reed's testimony in which she indicated that other photographs “may” have been taken. (Id.) Thus, unlike Pope, photographs of the area where the injury took place do exist and were made available to Plaintiff. Again, Plaintiff's arguments do not provide argument or evidence to contradict this point. See 2013 WL 12086325 at *5-*6. Given the fact that Plaintiff failed to offer sufficient evidence to challenge Pilot on their arguments against the evidence of a duty to preserve the evidence, the Court does not find that Plaintiff meets the burden showing Pilot bore a duty to preserve the evidence at issue based on the timing of any notice of pending litigation as well as the existence of other evidence that could serve to cure any potential deficiencies caused by the lack of the evidence. See In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d at 1305.

*11 Finally, the Court finds that the loss of the video evidence, log, or copy of the report was not crucial to Plaintiff's ability establish a prima facie case. See id. Not only was Plaintiff able to bring his claim despite the purported absent evidence, but as discussed supra, Plaintiff's claim against Pilot failed as a matter of law for other reasons independent of the evidence at issue here.

Because the Court has determined that spoliation did not actually occur in this case, it finds that sanctions are not applicable. Plaintiff has not only failed to prove that Defendant Pilot acted in bad faith, but also failed to establish through argument and factual evidence that Pilot breached any duty to preserve the evidence at issue due to pending litigation or that the loss of the evidence at issue hindered his ability to make a prima facie claim. See In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d at 1305; Walter v. Carnival Corp., 2010 WL 2927962 at *2. Therefore, Plaintiff's Motions for Sanctions against Defendants is denied.

CONCLUSION

For the abovementioned reasons, the Court finds that Plaintiff has failed to establish any genuine issue of material fact to be tried as to whether PFJ or Pilot had constructive knowledge of the hazard that allegedly caused Canales's injuries. Therefore, Defendants' Motions for Summary Judgment (Docs. 49, 50) are GRANTED. Further, the Court orders that Plaintiff's Motion for Sanctions (Doc. 46) is DENIED.

SO ORDERED, this 30th day of November 2020.