Bielski v. Alfred Saliba Corporation, et al
MEMORANDUM OPINION AND ORDER directing that the Alfred Saliba Corporations motion for summary judgment (doc. no. 22 ) is denied, as further set out. Signed by Honorable Judge Myron H. Thompson on 10/16/13. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
ALFRED SALIBA CORPORATION,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Kathryn Bielski fell from the attic of a
house she was renting, landing on the concrete floor of
her garage. She brought this suit against defendant Alfred
Saliba Corporation, the company which built the house. She
claims that her fall was the result of the company’s
negligent and wanton lack of care in constructing the
attic. Jurisdiction is properly invoked pursuant to 28
U.S.C. § 1332 (diversity).
This case is now before the court on Alfred Saliba
Corporation’s motion for summary judgment. For the reasons
discussed below, the motion will be denied.
I. LEGAL STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The court must view the admissible
evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in favor of that
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
In 2003, Alfred Saliba Corporation built a house in
Dothan, Alabama. The city issued all required permits and
purchased the home and lived there for three years, after
renting the house, along with her then-fiancé, in August
The house has an attic space above the garage. At the
required that there be some form of access to the attic.
To satisfy this requirement, Alfred Saliba Corporation
installed “disappearing stairs,” a pull-down ladder, which
led from the garage to the attic.
Speigner Dep. (Doc. No.
25-9) at 117:1.
In much of the attic, the flooring consists of merely
a system of wood trusses. The Sheetrock ceiling for the
rooms below the attic is nailed to the bottom of the
trusses. Sheetrock is not constructed to bear weight and
it is not safe to step on it. Immediately to the right of
the ladder into the attic, the company had attached “OSB
sheathing,” plywood-like boards on which a person can
safely stand. Bodo Dep. (Doc. No. 25-7) at 75:19-76:12.
The plans for the home called for the builders to install
three pieces of these plywood-like boards in the attic “if
space available.” Speigner Dep. (Doc. No. 39-1) at 117:12.
There were only two pieces of these plywood-like
boards actually installed in the attic, covering an area
of 64 square feet. There is a height difference between
the plywood-like boards and the Sheetrock, but there is no
barrier or marking at the edge of the board.
On the ladder to the attic, there is a warning label
that says in large, highlighted print “BEWARE OF OVERHEAD
HAZARDS.” Cornelius Kugler Dep. (Doc. No. 25-3), Dep. Ex.
7. The label also has a diagram of a stick figure falling
through the ceiling, and says in smaller print:
“Do not stand, sit, or store materials
on the ceiling or insulation covering
the ceiling. You can fall through the
ceiling even though it looks solid! Only
the wooden joists can support weight.”
On the morning of December 3, 2010, Bielski went to
the attic to retrieve coats that had been placed in
storage there. She had never been in an attic before that
Standing on the plywood-like boards, she took
“a small step” off the boards and onto the Sheetrock
ceiling in order to reach the coats. Bielski Dep. (Doc.
Bielski’s weight, and she fell to the concrete floor of
the garage below.
Bielski claims that the fall paralyzed her from the
waist down and caused a brain injury leading to memory
loss. These injuries have allegedly interfered with her
day-to-day life and caused her significant emotional
Bielski filed this lawsuit on November 30, 2012.
Alfred Saliba Corporation presents four arguments for
Bielski’s claims are barred by a statute of repose on
claims relating to home construction. Second, the company
argues that it could not have been negligent because a
homebuilder has no duties to any individual with whom it
is not in privity. Third, the company argues that, even
sufficient evidence for the wantonness claim to reach the
1. Statute of Repose
claims are barred by 1975 Ala. Code § 6-5-218, which
established a seven year statute of repose for claims
against a builder for construction on real property. (The
house was built in 2003, and this suit was not brought
until eight years later, in 2011.) However, as Bielski
1. In its reply brief to Bielski’s opposition to its
summary-judgment motion, Alfred Saliba Corporation makes
an additional assertion that the company simply was not
negligent. Bielski has not had an opportunity to respond
to this new argument, and therefore it would be
inappropriate for the court to grant summary judgment on
that basis. See First Specialty Ins. Corp. v. 633
Partners, Ltd., 300 F. App'x 777, 788 (11th Cir. 2008).
Even if that was not an an issue, the company does not
present a legal argument as to why that is true as a
matter of law, and the assertion is unsupported on the
record before the court.
argues and the company does not dispute, § 6-5-218 was
ruled unconstitutional by the Alabama Supreme Court 30
years ago. Jackson v. McDowell-Wellman Engineering Corp.,
435 So.2d 725 (Ala. 1983).
Admittedly, Alabama has a new statute of repose for
construction of real property: 1975 Ala. Code § 6-5-221.
While Alfred Saliba Corporation does not rely on this
At the time of Bielski’s fall, § 6-5-221 set a 13year statute of repose. 1994 Ala. Laws Act 94-138 (H.B.
341). The statue was amended, effective September 1,
2011, to shorten the statute of repose to seven years.
2011 Ala. Laws Act 2011-519 (S.B. 59). Bielski brought
suit in November 2011. Thus, the question becomes whether
the statute of repose at the time that the claim accrued
or at the time that suit was filed would be applicable.
Although the Alabama courts do not seem to have squarely
addressed the issue, their caselaw makes clear that the
statute of repose at the time the claim accrued, not the
time that suit was brought, would apply.
statutes, Alabama law differentiates between substantive
statutes and remedial statutes. For substantive statutes,
“retrospective application of a statute is generally not
favored, absent an express statutory provision or clear
legislative intent” to the contrary. Jones v. Casey, 445
So. 2d 873, 875 (Ala. 1983). Remedial statutes, however,
do apply retroactively by default, since they “impair no
transactions, but preserve and enforce the right and heal
(quoting Dickson v. Ala. Mach. and Supply Co., 18 Ala.
remedial statutes under Alabama law, and as a result,
they apply retroactively. Street v. City of Anniston, 381
So.2d 26, 29 (Ala. 1980). That is, in general, the court
applies the statute of limitations in effect when suit is
brought, not when a claim accrued.
retroactive application of statutes of limitations should
understand the difference between the two. Statutes of
limitations “govern how long a claimant can bring an
action after one has accrued; [statutes of repose] govern
whether an action can be brought regardless of whether it
has accrued. It is possible for an action to be barred by
a statute of repose before it ever accrues, effectively
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 1056 at 89 n. 3 (3d Ed.
The Alabama Supreme Court emphasized this difference
while discussing a predecessor to the current statute of
repose for construction of real property. The court held
that “the seven-year provision is a limitation in form
immunity--the abolition of a substantive right.” Bagby
Elevator & Elec. Co., Inc. v. McBride, 291 So.2d 306, 311
(Ala. 1974). Since statutes of repose such as § 6-5-221
are substantive and not remedial law, they apply only
prospectively--to claims which accrue after the effective
date of the statute.
Bielski’s claim accrued in 2010, when the applicable
statute of repose was 13 years. She brought suit well
within the 13-year time limit. Therefore, she is not
barred by the statute of repose in § 6-5-221.
2. Caveat Emptor
Alfred Saliba Corporation argues that it could not
have breached a duty to Bielski because homebuilders owe
a duty to only the first buyer of a house, not to any
subsequent buyer or resident. This argument misstates
The company cites a line of cases in which subsequent
owners of homes sued homebuilders for negligence based on
the damage to their homes: Whatley v. Reese, 875 So. 2d
274 (Ala. 2003), Wooldridge v. Rowe, 477 So. 2d 296 (Ala.
1985), and Wells v. Clowers Const. Co., 476 So. 2d 105
(Ala. 1985). In each of these cases, the Alabama Supreme
recover from the initial builder for property damage only
if they are in privity with the builder.
Unfortunately for the company, the Alabama Supreme
liability for personal injury of third parties. “While
the rule of caveat emptor is still a valid defense in an
action based on the sale of a used home, this rule has no
applicability to a theory of liability based on personal
regard to new homes or used homes.” McFadden v. Ten-T
Corp., 529 So. 2d 192, 201 (Ala. 1988) (emphasis in
original); see also Collins v. Scenic Homes, 30 So.3d 28,
33 (Ala. 2009) (recognizing potential liability of a
builder for personal injury of tenants due to faulty
design of apartment building). Bielski is alleging that
the company’s negligent construction choices led to her
personal injury. Her case falls outside the caveat emptor
rule. Her privity with Alfred Saliba Corporation, or lack
thereof, is irrelevant.
3. Contributory Negligence
Alfred Saliba Corporation also argues that Bielski
was contributorily negligent as a matter of law. Bielski
“conscious appreciation of the danger at the moment the
incident occurred.” Horn v. Fadal Machining Centers, LLC,
972 So. 2d 63, 75 (Ala. 2007). The company replies that
there is no such requirement, and that the court can find
negligent.” Serio v. Merrell, Inc., 941 So. 2d 960, 964
At first blush, it would appear that the resolution
of this dispute about what the contributory-negligence
defense requires would be easy. This court need only look
up the elements for contributory negligence under Alabama
law and then determine whether Alfred Saliba Corporation
is entitled to summary judgment based on these elements,
with the evidence read in favor of Bielski. Matsushita,
475 U.S. at 587. However, it appears that Alabama does
not follow this straightforward approach when confronting
a summary-judgment motion on a contributory-negligence
Alabama appears to recognize both of the defenses of
contributory negligence and assumption of risk. Alabama
generally follows the Restatement (Second) of Torts,
including in the context of assumption of risk. Ex Parte
Restatement (Second) of Torts § 496A); see also
v. Kiedinger, 389 So. 2d 129, 132 (Ala. 1980) (adopting
§ 390 for the defense of contributory negligence in a
bailee’s negligent entrustment claim).
The Restatement defines contributory negligence as
“conduct on the part of the plaintiff which falls below
the standard to which he should conform for his own
protection, and which is a legally contributing cause
co-operating with the negligence of the defendant in
(Second) of Torts § 463 (1965).
Assumption of risk, on
the other hand, occurs when a plaintiff “voluntarily
assumes a risk of harm arising from the negligent or
reckless conduct of the defendant.” Id. at § 496A. In
“[t]he great majority of the cases involving assumption
of risk ... the defense overlaps that of contributory
negligence.” Restatement (Second) of Torts § 496A, cmt.
d (1965). However, there is one major difference between
the two theories: where assumption of risk concerns the
plaintiff’s subjective approach to a risk, contributory
In several cases, the Alabama Supreme Court appears
to hold that a defendant is not entitled to summary
judgment on a contributory-negligence defense unless it
can show that it is entitled to summary judgment on an
element that is part of the assumption-of-risk defense:
“that the plaintiff had a conscious appreciation of the
danger at the moment the incident occurred.” Horn v.
Fadal Machining Centers, LLC, 972 So. 2d 63, 75 (Ala.
2007); see also
Hicks v. Commercial Union Ins. Co., 652
So. 2d 211, 219 (Ala. 1994); Smith v. U.S. Const. Co.,
602 So. 2d 349, 350 (Ala. 1992).
Thus, it would appear
that the state court is conflating the contributorynegligence defense with the assumption-of-risk defense.
Indeed, this appearance of conflating of the two defense
makes the reading of these cases hard to follow.
However, in Hannah v. Gregg, Bland & Berry, Inc.,840
attempted to clarify what it really intended:
“The proof required for establishing
contributory negligence as a matter of
law should be distinguished from an
instruction given to a jury when
determining whether a plaintiff has been
guilty of contributory negligence. A
jury determining whether a plaintiff has
been guilty of contributory negligence
must decide only whether the plaintiff
failed to exercise reasonable care. We
protect against the inappropriate use of
contributory negligence as a matter of
law by requiring the defendant on such
a motion to establish by undisputed
appreciation of danger.”
Id. at 860-61. Thus, the additional element (conscious
appreciation of danger) applies only when the defendant
is seeking judgment as a matter of law (including summary
judgment) on a contributory-negligence defense, and not
as a part of the defense when it is being resolved by the
factfinder, that is, the jury. See also QORE, Inc. v.
Bradford Bldg. Co., Inc., 25 So. 3d 1116, 1126 (Ala.
2009) (using the “conscious appreciation” element for a
mid-trial motion for judgment as a matter of law); H.R.H.
Metals, Inc. v. Carl Miller, 833 So. 2d 18, 26-27 (Ala.
2002) (granting a new trial because a court included
negligence jury instructions).
Unfortunately, Hannah does not resolve the matter
fully for this court. Because this court is sitting in
diversity, this heightened requirement for resolution of
raises questions under the Erie doctrine as to whether
this court should apply that requirement, or merely the
straightforward Rule 56 analysis, unheightened. In Erie
R. Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court
defined the appropriate role for federal courts sitting
in diversity: to apply state substantive law, while using
uniform federal rules of procedure. Id. at 78.
Although the line between substantive and procedural
law may appear to be superficially clear, federal courts
have struggled in the decades since Erie with a wide
substantive and procedural elements. See, e.g. Shady
Grove Orthopedic Assoc. v. Allstate Ins. Co., 559 U.S.
penalties in class actions); Gasperini v. Center for
518 U.S. 415 (1996) (addressing a
standard of review for excessive damages).
Alabama’s heightened standard for summary judgment on
a contributory-negligence defense is a new example of the
Erie problem. On the one hand, the Federal Rules of Civil
adjudicating a summary judgment motion--procedures which
do not seem to allow for differing legal standards for
the court and the factfinder. On the other hand, the
balancing the harsh, contributory-negligence regime with
a apparent commitment to favoring plaintiffs’ ability to
respond to contributory-negligence defenses before the
factfinder, that is, the jury.
In other words, under
Alabama law, when resolving a contributory-negligence
plaintiff’s side of the scale more than it otherwise
would be, if at all, in the resolution of the defense.
difficult Erie question, for, regardless as to whether
Alfred Saliba Corporation is not entitled to summary
judgment on its contributory-negligence defense.
Alfred Saliba Corporation argues that Bielski did not
take reasonable care in where she stepped, given her
unfamiliarity with attics and the warning label on the
ladder. However, the label warned of an attic that did
not have any flooring, and Bielski’s attic had partial
plywood-like flooring. Furthermore, Bielski claims that
the Sheetrock ceiling resembled the plywood-like flooring
she was standing on, which led her to step onto the
ceiling. Given these facts, a reasonable juror could
“logically reach the conclusion” that Bielski was not
negligent in stepping onto the Sheetrock. Serio,
2d at 964. Therefore, the court cannot find that Bielski
was contributorily negligent as a matter of law, even
under the standard that Alfred Saliba Corporation asks
this court to apply, that is, the one that an Alabama
court would give a jury.
Bielski has presented insufficient evidence that the
company acted wantonly for that claim to go to the jury.
“Wantonness is a question of fact for the jury,
unless there is a total lack of evidence from which the
Caldwell, 603 So. 2d 1001, 1003 (Ala. 1992). The Alabama
Code defines wantonness as, “Conduct which is carried on
with a reckless or conscious disregard of the rights or
Furthermore, the plaintiff must show that the defendant
“consciously or deliberately engaged in” that conduct.
specific design or intent to injure the plaintiff.” Alfa
Mut. Ins. Co. V. Roush, 723 So. 2d 1250, 1256 (Ala.
The company contends that Bielski cannot, as a matter
of law, present facts sufficient for the jury to infer
wantonness. In support of this argument, the company
points the court to Ex Parte Essary, 992 So. 2d 5 (Ala.
2007). In Essary, the court affirmed summary judgment on
a claim that a driver was wanton for trying to “shoot the
gap” between two vehicles, resulting in a collision. Id.
at 12. Alfred Saliba Corporation argues that this was
“much more culpable conduct” than the company’s choices
in attic design and construction. Br. in Supp. of Summ.
J. (Doc. No. 24) at 22. Therefore, the company argues
that, if Essary’s conduct was not wanton, its conduct
could not have been wanton either.
Alfred Saliba Corporation’s argument misunderstands
Essary. The company quotes in its brief: “Wantonness is
simply, are qualitatively different tort concepts of
Br. in Supp. of Summ. J. (Doc.
No 24) at 22 (quoting Essary, 992 So. 2d at 9. Therefore,
an argument about whether Essary’s behavior was more
culpable than the company’s is irrelevant. The question
undertaken with a reckless disregard for others’ safety.
The Essary court held that, absent special circumstances,
courts “do not expect an individual to engage in selfdestructive
intentionally driven into the road, thinking he may not
be able to fit between the cars, he would have been
Enterprises, 607 F. Supp. 2d 1274, 1276-77 (M.D. Ala.
2009) (Thompson, J.) (discussing Essary). A failure to
build an adequately safe attic would not injure the
company and would be unlikely to injure its employees,
who as construction workers would be familiar with attic
safety. Essary is a red herring.
It is more instructive to examine several cases with
more similar facts in which the Alabama Supreme Court has
Infrastructures, LLC v. Rivers, 12 So. 3d 32 (Ala. 2008),
the plaintiff had been injured when a pipe that was being
moved overhead fell from its canvas strap. The court
found that there was evidence that “[the defendant]’s
employees had knowledge of proper safety procedures ...
Ramanauskas, 731 So. 2d 1204 (Ala. 1999), the Court held
that a vending machine company was wanton for failing to
test that an electrical outlet was grounded. Lance’s
management was aware that people had been electrocuted by
ungrounded machines, but the company’s employee had not
followed safety manual provisions requiring that he test
outlets and had not been provided a tester that cost $ 5.
Id. At 1211-12.
Bielski asserts that the company’s construction of
the attic was wanton for several reasons, including the
The company could have built the attic so that
so that it was clearer where the plywood-like
boards ended, making it less likely that a
person would step off of them onto the
It was foreseeable that a resident of home
Bielski rented would use the attic space for
Prior to Bielski’s fall, company officials were
aware of five or six instances in which people
The design plan for the house called for three
plywood-like boards “if space available.” Liddon
Dep. (Doc. No. 39-2) at 159:5. Bielski asserts
that there was space available. Nonetheless,
only two such boards were used.
An additional board would have cost less than
The company did not have a practice of
inspecting the attics of their houses during
final inspection of the houses.
Comparing this evidence to the examples of wantonness in
wantonness.” Cash, 603 So. 2d at 1003.
Bielski is not certain to prove that the company acted
wantonly in its construction of the attic; but that is a
question of fact for the jury to decide.2
2. As an aside, Bielski introduced an expert
affidavit from Clinton J. Ford to address the issues of
contributory negligence and wantonness. Alfred Saliba
Corporation objects to Ford’s expert testimony, arguing
that he is not qualified to offer expert opinions on
residential construction. See Fed. R. Evid. 702; Kumho
Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999). It
contends that Ford is unqualified because he has built
few houses in the course of his career and has built none
in Alabama or under the building codes with which the
company was obligated to comply. The company’s arguments
“[C]ar mechanics often testify to the cause of engine
failure, even when they did not design the failed
component, see, e.g., Salter v. Westra, 904 F.2d 1517,
* * *
Accordingly, it is ORDERED that the Alfred Saliba
Corporation’s motion for summary judgment (doc. no. 22)
DONE, this the 16th day of October, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
1520 (11th Cir.1990), and gun experts can testify to
rifle mechanics and design, even when they had no role in
developing the parts at issue, see, e.g., Peterka v.
McNeil, 532 F.3d 1199, 1202 (11th Cir.2008).” Ferguson
v. Lear Siegler Servs., Inc., 2012 WL 1058983 at *5 (M.D.
Ala. 2012) (Thompson, J.).
Similarly, in this case, Ford has established his
credentials in other ways. He has three degrees and many
certifications in various aspects of construction. Ford
CV (Doc. No. 39-3) at 18-19. Although Alfred Saliba
Corporation is right to point out that Ford has not built
many homes, he has renovated several and has participated
in the construction of many other buildings. Id. Perhaps
most importantly, Ford is also a home inspector, who
makes his career out of examining potentially unsafe
aspects of homes, even if he is not building them
himself. Id at 20.
In the end, although Ford is qualified to offer
expert opinions, the court did not find his opinions
necessary to reach the conclusions in this opinion.
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