[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
_____________ AUGUST 11, 2010
JOHN LEY
No. 10-10713 CLERK
Non-Argument Calendar
_____________
D.C. Docket No. 1:06-cv-00483-CC
FRED OLIVER,
Plaintiff-Appellant,
versus
COLUMBIA SUSSEX CORPORATION,
d.b.a. Savannah Marriott Riverfront,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Georgia
____________
(August 11, 2010)
Before CARNES, MARCUS and HILL, Circuit Judges.
PER CURIAM:
Fred Oliver sued Columbia Sussex Corporation, d/b/a Savannah Marriott
Riverfront, for damages in connection with his slip and fall in defendant’s bathtub
during a stay at the premises. The district court granted summary judgment to the
defendant and Oliver appeals.
I.
Fred Oliver slipped in the bathtub of his hotel room on the second occasion
that he used the shower during his stay at defendant’s hotel. To prevail on his
claim for negligence against the defendant under Georgia law, he must establish
the essential elements of duty, breach of duty, proximate causation, and damages.
Black v. Georgia Southern & Fla. Ry. Co., 202 Ga. App. 805, 806 (1992). The
district court granted summary judgment to the defendant, holding that plaintiff
failed to prove what caused his fall. See Head v. Sears Roebuck & Co., 233 Ga.
App. 344, 345 (1998). “Where the plaintiff does not know of a cause or cannot
prove the cause [of his slip and fall], there can be no recovery because an essential
element of negligence cannot be proven.” Pennington v. WLJ, Inc., 263 Ga. App.
758 (2003). We agree.
Although Oliver speculates that either a degraded slip-resistant surfacing in
the tub or the presence of some cleaning solution made the tub slippery causing
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his fall, he presented no competent evidence to establish either of these theories.
He presented no evidence other than his own hypothesis that cleaning solution
may have been in the tub.
As to the condition of the slip-resistant surfacing in the tub, plaintiff
presented no evidence, relying instead on a contention that his own failure to
inspect and/or photograph the bottom of the tub at the time of the accident was due
to defendant’s failures. The district court found this contention unpersuasive to
lift the burden of production and proof from Oliver’s shoulders and so do we. We
agree with the district court that, in the absence of proof to the contrary by
defendant, Oliver’s own testimony as to the lack of such surfacing may be
sufficient to establish that defendant breached a duty to install and maintain such
surfacing. We also agree with the district court, however, that this proof fails to
establish that the lack of slip-resistant surfacing caused Oliver to fall.
Georgia courts routinely hold that summary judgment is appropriate in cases
where the plaintiff can only speculate as to what caused a fall. See Greyhound
Lines, Inc., v. Williams, 290 Ga. App. 450 (2008) (reversing the trial court’s denial
of summary judgment to defendant where plaintiff repeatedly admitted that she did
not know what caused her injury); Pinckney v. Covington Athletic Club & Fitness
Ctr., 288 Ga. App. 891 (2007) (affirming grant of summary judgment where
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plaintiff only speculated about the presence of algae at the time of her fall and the
algae being the cause of her fall); Moore v. League, 255 Ga. App. 220 (2002)
(affirming grant of summary judgment to defendant where plaintiff “assumed” she
slipped on wet floor but testified that she did not know if floor was actually wet
and did not know why she slipped); and Jackson v. K-Mart Corp., 242 Ga. App.
274 (2000) (affirming grant of summary judgment where plaintiff could offer no
more than speculation as to the cause of her fall). As in these cases, Oliver offers
only speculation as to the cause of his fall.
In sum, while the record contains much speculation as to why Oliver slipped
and fell in defendant’s bathtub, it contains no real proof of why he did so.1
Furthermore, Oliver’s own testimony establishes that he really does not know the
cause of his fall. Under these circumstances, the district court’s conclusion that
Oliver failed to establish the causation element of his negligence claim is correct
and the grant of summary judgment to defendant is due to be
AFFIRMED.
1
Even Oliver’s expert, who testified about the condition of defendant’s bathtubs in
general, did not offer an opinion as to the cause of Oliver’s fall in particular.
4