State Court of Fulton County

***EFILED***
LexisNexis Transaction ID: 34355951 Date: Nov 15 2010 5:20PM

IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA MARILYN J. NOE, Plaintiff
vs.

Mark Harper, Clerk

)
)

)
) ) ) )

CIVIL ACTION FILE NO.:

PUBLIX SUPERMARKETS, INC., ) Defendant. )
)

VERIFIED COMPLAINT COMES NOW the Plaintiff, MARILYN J. NOE (hereinafter referred to as "Plaintiff'), complaining of the Defendant, PUPLIX SUPER MARKETS, INC., a Florida Corporation (hereinafter referred to as "Defendant"), and respectfully shows to the Court as follows: Parties 1. Defendant is a Florida profit corporation, created under the laws of the State of Florida on December 27, 1921.

Defendant is engaged in the business of selling food and other goods, at retail, to the general public.

3.
Defendant, at all times material herein, was transacting business in Fulton

County, Georgia and has several places of business in Fulton County, Georgia, within the meaning of O.C.G.A. § 14-2-510 (b)(3). 4. The Registered Agent of Defendant in the State of Georgia, as shown in the records of the Secretary of the State of Georgia, is Corporation Process Company. 5. The Registered Agent's Office of Defendant in the State of Georgia is 2180 Satellite Boulevard, Suite 400, Duluth, Georgia 30097, and service of process can

be perfected at this address. 6. Plaintiff resides at Calvin Court, 479 East Paces Ferry Road, N.E.,

Apartment No. 210, Atlanta, Fulton County, State of Georgia 30305.

Jurisdiction and Venue

7.
This Court has jurisdiction over the subj ect matter of this action. 8. Defendant is subject to the personal jurisdiction of this Court. 9. Venue is proper in this Court.
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Operative Facts
10. Plaintiff Peachtree has regularly shopped at Defendant's store located at 2900 the

Road, N.E., Atlanta, Fulton County, Georgia 30305 (hereinafter five (5) years. 11.

"Publix Store") for approximately

During the time that she has been a regular customer of Defendant, Plaintiff has been transported to the Publix Store every Wednesday at 1:00 P.M., along with other shoppers from Calvin Court, by a bus owned and operated by First

Presbyterian Church of Atlanta, and driven by its employee, Ms. Julia Brooke. 12. On June 2, 2010, between 1:00 P.M. and 2:00 P.M., Plaintiff entered the Pub1ix Store along with approximately Court. twenty (20) fellow passengers from Calvin

13.
On June 2,2010 Plaintiff was a business invitee of Defendant. 14. Plaintiff was in the habit, at the Publix Store, of purchasing every

Wednesday a package of "Community Coffee New Orleans Blend with Chicory." 15. Prior to June 2, 2010., the "Community Coffee New Orleans Blend with
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Chicory" was always placed at the rear of the Publix Store, on the top shelf of freestanding black metal open shelves near the dairy section.
16.

During previous visits, pnor to June 2, 2010, Plaintiff made numerous requests of the Publix Store's management, to move the packages of the "Community Coffee New Orleans Blend with Chicory" to the aisle where all other coffee brands were located at eye-level, thus enabling customers to easily and safely access this product. Plaintiffs requests were ignored.
17.

After June 2, 2010, the "Community Coffee New Orleans Blend with Chicory" was moved to the aisle where all other coffee brands were located at eyelevel.
18.

While shopping at the Publix Store each week, Plaintiff was forced to seek the assistance of one of Defendant's employees to reach and hand her a package of "Community Coffee New Orleans Blend with Chicory" because Plaintiff was unable to reach this product, because of the height of the free-standing shelving.
19.

Plaintiff has no recollection of the events that took place in the Publix Store on June 2, 2010, subsequent to her entering the Publix Store.

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20. At approximately 10:30 P.M. on June 2, 2010, after being injured at the Publix Store, Plaintiff regained consciousness and learned from Ms. Julia Brooke, the bus driver, that Plaintiff was in the Emergency Room at Piedmont Hospital, in Atlanta, Georgia.
21.

Plaintiff was informed by Ms. Brooke that Defendant's shelving collapsed on Plaintiff, and that, as a result of such collapse, an ambulance was called to the Publix Store, and Plaintiff was transported to the Emergency Room at Piedmont Hospital. 22. Upon information and belief, as a result of the collapse of the Defendant's shelving, Plaintiff was thrown back and the shelving and the items on the shelving fell on top of her. 23. Upon information and belief, Plaintiff was thrown to the floor of the Publix Store and rendered unconscious.
24.

Upon information

and belief, after Plaintiff fell and was rendered

unconscious, employees of Defendant removed the items that fell on Plaintiff, and

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Defendant's Publix Store.

employees moved Plaintiffs

unconscious body to another area in the

25. As a result of the collapse of the Defendant's shelving, Plaintiff sustained a body, including

head injury and a concussion and extensive bruising to Plaintiffs but not limited to, her face, leg, and ankle. 26.

The shelving that fell on top of the Plaintiff at the Publix Store lacerated the Plaintiffs the wound.
27.

forehead.

Such laceration required numerous sutures in order to close

The laceration suffered by the Plaintiff resulted in the loss of substantial amounts of blood, before the wound was closed. 28. At the time that the shelving fell on top of her, Plaintiff suffered from a preexisting spinal condition which was aggravated by the injuries sustained, and

Plainti ff is in severe and constant pain, through the date of filing of this Complaint. 29. The severe pain associated with the injuries sustained by Plaintiff has caused Plaintiff pain and suffering to the extent that she has been unable to take care of her daily housekeeping chores, requiring assistance in these matters.
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30. Plaintiff is retired, on a fixed income, and has incurred substantial out-ofpocket medical expenses as a result of the injuries sustained. 31. Defendant expenses. 32. Plaintiff Defendant's continues to suffer from the injuries sustained as a result of has failed and refused to reimburse the Plaintiff's medical

negligence and remains under medical care. 33.

As a result permanent injuries.

of Defendant's

negligence,

Plaintiff

has sustained

senous

34. As a result of the permanent injuries sustained by Plaintiff, her quality of life has been greatly diminished. Count I - NegJigence - Duty to Maintain Premises that Are Safe for Customers 35. The allegations of Paragraphs 1 through 34 above are re-alleged and

incorporated in this Count One as if fully set forth herein.

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36.

Defendant negligently maintained the free-standing metal shelving at the Publix Store.
37.

Upon information and belief, the shelving that fell on top of Plaintiff at the Publix Store was maintained in a negligent manner, in that such shelving was not attached securely to the floor and wall and was stacked with goods in such a manner as to create a dangerous condition.
38.

The danger presented by the shelving that fell on top of the Plaintiff was either known to Defendant, or reasonably should have been known to the Defendant, in the course of normal maintenance and inspection.
39.

The danger presented to customers at the Publix Store by the shelving that fell on top of the Plaintiff was not known, and could not have been known, to the Plaintiff, and was not so open and obvious that a reasonable person would have been alerted to it.
40.

The Defendant possessed, at all times relevant herein, superior knowledge of the danger to customers at the Publix Store presented by the shelving that fell on top of the Plaintiff.
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41. The danger presented to customers at the Publix Store by the shelving that fell on top of the Plaintiff was neither open nor notorious and was not within the knowledge of the Plaintiff. 42. Defendant had a duty to exercise ordinary care to keep the premises of the Publix Store safe, pursuant to O.C.G.A. §51-3-1. 43. Defendant breached its duty to exercise ordinary care in regard to Plaintiff, and Defendant is, thereby, liable to the Plaintiff by reason of such negligence. 44. The injuries suffered by the Plaintiff on June 2, 2010 were proximately caused by the negligence of the Defendant. 45. The Plaintiff has incurred damages by reason of Defendant's negligence,

including, but not limited to, medical expenses, pain and suffering, and diminution in the quality of Plaintiff's life and the enjoyment of her life.

Count II - Negligence - Failure to Warn Customers That a Dangerous, NonApparent Condition Existed
46. The allegations of Paragraphs 1 through 45 above are re-alleged and

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incorporated in this Count Two as if fully set forth herein. 47. Defendant failed to warn Plaintiff of the dangerous condition created by the shelving that fell on Plaintiff. 48. The Plaintiff has incurred damages by reason of Defendant's negligence,

including, but not limited to, medical expenses, pain and suffering, and diminution in the quality of Plaintiff's life and the enjoyment of her life.

COUNT 111- Negligence - Failure to Install Shelving in a Proper Manner
49. The allegations of Paragraphs 1 through 48 above are re-alleged and

incorporated in this Count Three as if fully set forth herein. 50. Defendant negligently installed the shelving that fell on Plaintiff. 51. The danger presented by the shelving that fell on top of the Plaintiff was either known to Defendant, or reasonably should have been known to the

Defendant, in the course of normal maintenance and inspection. 52. The danger presented to customers at the Publix Store by the shelving that fell on top of the Plaintiff was not known, and could not have been known, to the
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Plaintiff, and was not so open and obvious that a reasonable person would have been alerted to it. 53. The Defendant possessed, at all times relevant herein, superior knowledge of the danger to customers at the Publix Store presented by the shelving that fell on top of the Plaintiff. 54. The danger presented to customers at the Publix Store by the shelving that fell on top of the Plaintiff was neither open nor notorious and was not within the knowledge of the Plaintiff. 55. Defendant had a duty to exercise ordinary care to keep the premises safe, pursuant to O.C.G.A. §51-3-1. 56. Defendant breached its duty to exercise ordinary care and safety of the

Publix Store to Plaintiff, and Defendant is, thereby, liable to the Plaintiff by reason of such negligence. 57. The Plaintiff has incurred damages by reason of Defendant's negligence,

including, but not limited to, medical expenses, pain and suffering, and diminution in the quality of Plaintiffs life and the enjoyment of her life.
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58.

The injuries suffered by the Plaintiff on June 2, 2010 were proximately caused by the negligence of the Defendant.
59.

The Plaintiff has incurred damages by reason of Defendant's negligence, including, but not limited to, medical expenses, pain and suffering, and diminution in the quality of Plaintiffs life and the enjoyment of her life.

WHEREFORE,

Plaintiff demands judgment against Defendant, and prays

to this court: (a) (b) (c) (d) Award damages to Plaintiff for Defendant's negligence; Award damages to Plaintiff for pain and suffering; Award damages to Plaintiff for her medical expenses; Order such other and further relief as this Court deems to be just and proper; and (e) TRIAL BY JURY.

[SIGNATURE

APPEARS ON NEXT PAGE]

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Respectfully submitted,

GA Bar No. 257200
Brian R. Smith

GABarNo.001302
Attorneys for Plaintiff Two Ravinia Drive Suite 1776

Atlanta, GA 30346 Tel: (678) 443-4044
Fax: (678) 443-4081 keegan@federalhasson.com

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IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA

MARIL YN J. NOE,
Plaintiff: vs. PUBLIX SUPER MARKETS, INC,

)
)

)
)

CIVIL ACTION FJLE NO.:

)
)

.

Defendant.

~L
VERIFICATION

) ) )

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~

Personally appeared before the undersigned attesting officer, duly authorized to administer oaths, MARILYN J. NOE, who after first being duly sworn, deposes on oath and states that, based on her direct personal knowledge, the facts set forth
in the attached

VER1FIED COMPLAINT

are true and correct, except where

expressly stated to be based upon her knowledge, information or belief This l5_ day of November, 2010.

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