Frost v. Walmart, Inc.

• Court: District Court, S.D. Alabama
• Decided: September 30, 2019
• Docket: 1:18-cv-00370
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

LADINA FROST, ) ) Plaintiff, ) ) vs. ) CIVIL ACTION NO. 18-0370-CG-N ) WALMART, INC., ) ) Defendant. ) ) ORDER This matter is before the Court on the motion of Defendant Wal-Mart, Inc. for partial summary judgment (Doc. 33), and Plaintiff’s response thereto (Doc. 36). This action arises from an incident that occurred on June 5, 2016, when the Plaintiff allegedly tripped over a mat at a Wal-Mart store in Gulf Shores, Alabama. In the complaint, Plaintiff asserted two claims, one for negligence and a second for wantonness. (Doc. 1-1, PageID.10-13). Wal-Mart’s motion seeks summary judgment only as to Plaintiff’s wantonness claim. In response, Plaintiff states that she “agrees to concede to Partial Summary Judgment as to Plaintiff’s Second Cause of Action: Wantonness, only.” (PageID.185). Plaintiff states that her wantonness claim “is due to be dismissed.” (PageID.185). The Court notes that “[i]n opposing a motion for summary judgment, a ‘party may not rely on his pleadings to avoid judgment against him.’” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v. Resolution Trust Corp., 516 U.S. 817 (1995) (citing Ryan v. Int’l Union of Operating Eng’rs., Local 675, 794 F.2d 641, 643 (11th Cir. 1986)). Moreover, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Rather,

the onus is upon the parties to formulate arguments; grounds alleged in the complaint [or answer] but not relied upon in summary judgment are deemed abandoned.” Id. at 599 (citations omitted). There being no opposition to Defendant’s motion, the Court, after reviewing the pleadings in this case, concludes that Plaintiff has abandoned her wantonness

claim and that it should be dismissed. Therefore, Defendant’s motion for partial summary judgment (Doc. 33) is hereby GRANTED and Plaintiff’s claim for wantonness is hereby DISMISSED. Plaintiff’s negligence claim remains pending. DONE and ORDERED this 30th day of September, 2019.

/s/ Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE