FISHER v. BIG Y FOODS, INC

Citation Codes

Equivalent Citations

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Docket Number

(SC 18406)

Advocates

Sandra Rachel Stanfield, with whom, on the brief, was David A. Estabrook, for the appellant (defendant). Mark J. Migliaccio, for the appellee (plaintiff). Jack G. Steigelfest and Claudia Baio filed a brief for the Connecticut Defense Lawyers Association as amicus curiae. James G. Geanuracos filed a brief for the Stop and Shop Supermarket Company, LLC, as amicus curiae.

Judges

PALMER, J., dissenting.

Acts

Judiciary And Judicial Procedure — Fees And Costs — Procedure — Proceedings In Forma Pauperis
The Public Health And Welfare — Equal Opportunity For Individuals With Disabilities — Public Services — Prohibition Against Discrimination And Other Generally Applicable Provisions — Definitions
The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights
The Public Health And Welfare — Equal Opportunity For Individuals With Disabilities — Public Services — Prohibition Against Discrimination And Other Generally Applicable Provisions — Discrimination

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LEO A. FISHER III v. BIG Y FOODS, INC.

ORDER

MALCOLM HOWARD, District Judge

This matter is before the court on the motion to dismiss by defendants State of North Carolina ("the State") and Superior Court of Lenoir County ("Superior Court") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has responded, and the time for further filings has expired. This matter is ripe for adjudication.

PROCEDURAL HISTORY

This is the latest in a slew of actions filed by Georgia Arnette Green in which Ms. Green claims violations of federal law by various government officials. Plaintiff commenced the instant matter by filing a motion to proceed in forma pauperis ("IFP") along with her proposed complaint on August 1, 2008. On March 13, 2009, plaintiff was ordered to refile her complaint with the referenced exhibits attached. She refilled her complaint on March 27, 2009. In an Order and Recommendation dated May 21, 2009, United States Magistrate Judge James E. Gates granted plaintiff's motion to proceed IFP, and conducted a frivolity review pursuant to 28 U.S.C. § 1915(e)(2), recommending dismissal of certain claims. He also recommended that "Superior Court of Lenoir County" be substituted for "Lenoir County Court of Kinston, NC" as the name of the defendant court which is the subject of plaintiff's allegations. On October 21, 2009, this court adopted Judge Gates' recommendation in its entirety and directed the Clerk to issue summonses.

See, e.g., Green v. Maroules, et al., 4:04-CV-lll-H; Green v. Pitt and Greene EMC, 4:05-CV-98-BR; Green v. Pitt and Greene EMC, 4:05-CV-115-BR; Green v. Vickery, et al., 4:06-CV-181-F; Green v. Vickery, et al., 4:06-CV-181-F; Green v. Vickery, et al., 4:03-CV-122-H; and, Green v. Turner, et al., 4:08-CV-72-H.

Judge Gates recommended the dismissal of claims against the law firm of Walker, Allen, Grice, Ammons Foy ("Walker Allen firm"), attorney Jeffrey Ammons and attorney Ron Medlin.

Now before the court is the motion to dismiss of the State and the Superior Court, arguing that plaintiff's complaint fails to state a claim upon which relief can be granted in that plaintiff's claims arising out of the acts of a presiding state court judge are barred by absolute judicial immunity and that plaintiff has failed to show that she was excluded from state court, suffered discrimination by the courts due to a disability, or that the above defendants own the places of public accommodation described in her complaint.

STATEMENT OF THE FACTS

Plaintiff's complaint alleges violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 et seq., ("Title II"). Plaintiff's claims arise out of a lawsuit brought in Superior Court concerning an alleged motor vehicle collision. Plaintiff alleges that during the course of that action defendants failed to provide her with physical access to the Lenoir County Courthouse sufficient to accommodate her medical condition and failed to provide court documents in a manner sufficient to accommodate her visual impairment. She contends that due to these failures, she arrived late for a summary judgment motion hearing, and her case was dismissed by the presiding judge, in violation of her rights to due process and equal protection.

Plaintiff filed her state court action in March 2008. Access to the Office of the Clerk of Superior Court of Lenoir County and court proceedings was via steps that were painful for plaintiff to navigate. (Compl. ¶ 8.) The court issued an order that plaintiff post a prosecution bond. (Compl. ¶ 9.) Plaintiff did not receive notices from the court or paperwork from opposing attorneys because her mailbox had been knocked down. As a consequence, some of her mail was returned to the sender. (Compl. ¶ 10.) Plaintiff complains there was no public computer terminal in the Clerk's office to view case documents. (Compl. ¶ 12.) However, plaintiff was able to file papers with the court and communicated with court personnel about matters involved in her case. (Compl. ¶¶ 13-14.)

The defendants moved for summary judgment in the state-court action, and the matter was set for hearing. Although plaintiff was informed of and remembers hearing of this date, she later became confused over the date of the hearing because she was busy with discovery. (Compl. ¶ 16.) Plaintiff admits that it was her error in confusing the dates of the hearing. (Compl. ¶ 17.) Plaintiff failed to appear at the summary judgment hearing, and the state court judge granted summary judgment for the defendants. Plaintiff alleges that summary judgment was improper because she had not completed discovery. (Compl. ¶ 14.)

Plaintiff then moved to set aside the state court's summary judgment and for reconsideration of the order requiring she post a prosecution bond. She contends the prosecution bond was unfair and that she was confused about the requirements for the bond. She had made her complaints about the bond known to the court at an earlier date. She contends opposing counsel was using the bond as a way of "making his money quick with little effort." (Compl. ¶ 20.)

There was a hearing set. An employee of the Clerk's office called plaintiff at 9:30 that morning to remind plaintiff that her hearing was set for 10 a.m. (Compl. ¶ 20.) When plaintiff arrived at 10:35 a.m., Superior Court Judge Paul Jones explained to plaintiff that she was late for the court hearing which was specially set for plaintiff and that her case was dismissed at 10 a.m. when she failed to appear to prosecute her case. (Compl. ¶ 21.)

Plaintiff alleges that she is an individual with a disability under the ADA. Defendant State vests its judicial power exclusively in its General Court of Justice. N.C. Const., Art. IV, Sec. 1; N.C. Gen. Stat. § 7A-3. The General Court of Justice constitutes a unified judicial system consisting of an appellate division, a superior court division and a district court division. N.C. Gen. Stat. § 7A-4. The Superior Court Division is comprised of districts, and Lenoir County is in District 8A. N.C. Gen. Stat. § 7A-41. The Clerk of Superior Court is a judicial officer of the Superior Court Division. N.C. Gen. Stat. § 7A-40. Courthouses and courthouse facilities in North Carolina are provided and maintained by individual counties. N.C. Gen. Stat. § 7A-302. Defendant Lenoir County provides the courthouse in that county and maintains those facilities.

COURT'S DISCUSSION I. Standard of Review

A federal district court confronted with a motion to dismiss for failure to state a claim should view the allegations of the complaint in the light most favorable to the plaintiff. See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). The intent of Rule 12(b)(6) is to test the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion "`does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007).

"[A] complaint need not `make a case' against a defendant or `forecast evidence sufficient to prove an element' of the claim."Chao v. Rivendell Woods, Inc., 415 F.3d 342, 349 (4th Cir. 2005) (quoting Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Rule 8 of the Federal Rules of Civil Procedure provides "for simplicity in pleading that intends to give little more than notice to the defendant of the plaintiff's claims and that defers until after discovery any challenge to those claims insofar as they rely on facts." Teachers' Retirement Sys. of LA v. Hunter, 477 F.3d 162, 170 (4th Cir. 2007). A complaint is generally sufficient if its "`allegations are detailed and informative enough to enable the defendant to respond.'" Id. (quoting 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure, § 1215 at 193 (3d ed. 2004)). Thus, a complaint satisfies the Rules if it gives "fair notice" of the claim and "the grounds upon which it rests." Twombly, 127 S. Ct. at 1964.

II. Judicial Immunity

Defendants State and Superior Court argue that plaintiff's claims, concerning the dismissal of her suit which arise out of the actions of the presiding state court judge, are barred by absolute judicial immunity. See Dean v. Shirer, 547 F.2d 227, 231 (4th Cir. 1976) (a judge may not be attacked for exercising judicial authority, even if done improperly.) See also Bradley v. Fisher, 80 U.S. 335 (1871) (Supreme Court recognized judicial immunity and held that judges are not liable to civil actions for their judicial acts.)

Plaintiff's complaint alleges that the grant of summary judgment was improper (Compl. ¶ 14) and that the judge overseeing the hearing violated her rights by dismissing the matter when she did not appear in a timely manner. (Compl. ¶ 21.)

In her response, plaintiff notes that her complaint arises out of the court's failure to reasonably accommodate her vision impairment and ambulatory disabilities. She states that she has not sued the judge under 42 U.S.C. § 1983, but that the state court should have ensured that she was reasonably accommodated. (Pl's Mem. In Opp. at 3-4 [DE #35].)

Inasmuch as plaintiff is attempting to make claims which arise out of actions by the superior court judge and/or the clerk of court within their capacities as judicial officers, these claims are barred by the doctrine of judicial immunity and are therefore DISMISSED.

III. Access to Enlarged Documents or Electronic Copies

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Plaintiff alleges defendants violated her rights by refusing to accommodate her disability by failing to provide her with copies of her documents in a version compatible with the special software she uses to enlarge documents to be able to read them. The court finds that, although the facts brought forth in discovery may well show otherwise, plaintiff has shown enough to survive a motion to dismiss this claim because defendants State and Superior Court fail to address the specific document accommodation requests made by plaintiff. Therefore, this court is unable to say that plaintiff's claim fails as a matter of law.

IV. Physical Access to the Court

Plaintiff also alleges that she was denied adequate physical access to the Lenoir County courthouse. In North Carolina, courthouses and courthouse facilities are provided and maintained by individual counties. N.C. Gen. Stat. § 7A-302. In this matter, defendant Lenoir County is responsible for operating and maintaining the courthouse in question. Defendants State and Superior Court do not own or control the place of public accommodation that is the subject of plaintiff's complaint. Therefore, they are not proper defendants to that claim, and plaintiff's claims of improper access to the Lenoir County Courthouse are DISMISSED as to defendants State and Superior Court.

CONCLUSION

For the foregoing reasons, defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. All claims which arise out of actions by the superior court judge and/or the clerk of court within their capacities as judicial officers are barred by the doctrine of judicial immunity and therefore dismissed. Plaintiff's claims of accommodation regarding physical access to the Lenoir County Courthouse are dismissed as to defendants State and Superior Court. Remaining before the court are plaintiff's claims for accommodation regarding documents as to defendant State and Superior Court as well as all of plaintiff's claims against defendant Lenoir County.

This 21^st day of September 2010.

ed that the rule applied due to the store's self-service method of operation. See id., 257-58.

The facts of Sheil v. T. G. Y. Stores Co., 781 S.W.2d 778 (Mo. 1989), are similar. In Sheil, the plaintiff, Harold L. Sheil, was in the automotive section of a store belonging to the defendant, T. G. Y. Stores Company (T. G. Y.). Id., 779. As Sheil was approaching the end of an aisle, he tripped over a small, heavy box, close to a floor display. Id. The evidence indicated that management knew that there was a stack of four or five boxes near where Sheil fell but was not aware of an isolated box in that area. Id., 780. Sheil commenced an action, and a jury ultimately found in his favor. See id., 779. T. G. Y. then appealed, and the Missouri Court of Appeals reversed the trial court's judgment, concluding that Sheil had failed to establish that T. G. Y. had notice of the box that had caused Sheil to fall. See id. On appeal to the Supreme Court of Missouri, that court reversed the judgment of the Missouri Court of Appeals. Id., 783.

Commenting on the operation of a self-service business, the Missouri Supreme Court observed that "customers are invited to traverse the aisles and to handle the merchandise. [A] storeowner necessarily knows that customers may take merchandise into their hands and may then lay articles that no longer interest them down in the aisle. If the item is heavy, it is particularly likely that the customer may not put it back from where it came, possibly because of fear of disarranging other merchandise. The storeowner, therefore, must anticipate and must exercise due care to guard against dangers from articles left in the aisle." Id., 780. The court concluded that "the jury could have found that [Sheil] was injured by a hazard that could have been expected in the store by reason of [the] method of merchandizing and that [T. G. Y.] was derelict in its duty to take reasonable steps to protect customers against the dangers presented by merchandise in the aisle." Id., 782; see also Golba v. Kohl's Dept. Store, Inc., 585 N.E.2d 14, 17 (Ind. App. 1992) (summary judgment improper when plaintiff claimed to have slipped on small round object, likely BB, because department store "is charged with the knowledge that its method of operation may result in customers dropping objects onto the ground as they browse through the merchandise").^fn16

The Kentucky Supreme Court reached the same conclusion in Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 435-37 (Ky. 2003). In that case, the plaintiff, Barbara Ruth Lanier, slipped and fell on a puddle of clear liquid in an aisle in the grocery department of a store owned by the defendant, Wal-Mart Stores, Inc. (Wal-Mart). Id., 433. Lanier claimed that "the spill should [have been] presumed attributable to Wal-Mart because of its self-service method of retail sales. She observe[d] that customers of all ages and abilities are encouraged by Wal-Mart to handle its merchandise and to move it about the store either by hand or by way of shopping baskets and carts that are provided by the store for that purpose. She argue[d] that this method of selfservice sales facilitates the creation of hazardous conditions [and that] it is reasonably foreseeable [that those conditions] will result in harm to innocent customers." Id., 434.

The Kentucky Supreme Court agreed, explaining that "[t]he modern self-service form of retail sales encourages the [business'] patrons to obtain for themselves from shelves and containers the items they wish to purchase, and to move them from one part of the store to another in baskets and shopping carts as they continue to shop for other items, thus increasing the risk of droppage and spillage." Id., 435. The court explained further that "[i]t is . . . common knowledge that modern merchandising techniques employed by self-service retail stores are specifically designed to attract a customer's attention to the merchandise on the shelves and, thus, away from any hazards that might be on the floor." Id., 436. The court also stated, however, that, "[m]ost importantly . . . both logic and fairness mandate that, as between two apparently innocent parties, one being a business proprietor having a duty to maintain his premises in a reasonably safe condition for the use of his customers, and the other being the invited customer, the burden of proof with respect to the cause of an unsafe condition [on] the premises should be on the one with the duty to prevent it." Id. In line with this expression of policy, the Kentucky Supreme Court adopted the following rule: "To balance the competing principles of notice versus duty, the issues of causation and notice should be treated not as elements of the customer's case, but as affirmative defenses of the proprietor. The customer would retain the burden of proving that there was a foreign substance/object on the floor and that such [substance or object] was a substantial factor in causing his accident and injury. Such proof that the premises were unsafe would avoid a summary judgment or directed verdict and shift to the proprietor the burden of proving that his employees did not cause the substance/object to be on the floor and that it had been there for an insufficient length of time to have been discovered and removed or warned of by his employees." (Internal quotation marks omitted.) Id., 435; see also Gonzales v. Winn-Dixie Louisiana, Inc., 326 So. 2d 486, 488 (La. 1976) (mode of operation rule properly applied to claim against grocery store arising from slip and fall on spilled olive oil because "the selfservice grocery system requires customers to focus their attention on the shelves and to handle merchandise," and, "[w]hen it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections made and other protective measures taken were reasonable").^fn17

It is thus apparent that the courts in each of the foregoing cases applied the mode of operation rule to transitory conditions in self-service retail establishments regardless of where in the store they happened to occur. Moreover, by applying the mode of operation rule in such circumstances, these courts have advanced all of the policy concerns that led this court to adopt the mode of operation rule in the first place. Accordingly, I see no reason why the mode of operation rule should not be applied in such circumstances.

III

The rule that the majority adopts no longer resembles the mode of operation rule that we adopted in Kelly. Under the new rule crafted by the majority, from today forward, customers injured while shopping at a large, self-service supermarket or department store will be required to prove that the store had actual or constructive notice of the hazard that caused the customer's injury. This step backward is not warranted by anything that the majority has said about Kelly specifically or the mode of operation rule generally. Indeed, I see no reason to retreat to a rule that dispenses with foreseeability and applies only to those operations of a selfservice business that are deemed to be especially or inordinately dangerous. Because I continue to believe that our analysis and holding in Kelly were correct, and that they apply with equal force in the present case, I respectfully dissent.^fn18

LEO A. FISHER III v. BIG Y FOODS, INC.

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