Carr v. Food Giant Supermarkets, Inc.

Filing 60

OPINION. Signed by Honorable Judge Myron H. Thompson on 6/10/2015. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
PAT CRAIG JOHNSON as
Personal Representative of
the Estate of Marie Carr,
Plaintiff,
v.
FOOD GIANT SUPERMARKETS,
INC.,
Defendant.

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CIVIL ACTION NO.
1:14cv142-MHT
(WO)

OPINION
Plaintiff, as personal representative of the estate
of

decedent

Marie

Supermarkets,
negligence

led

Carr,

Inc.,
to

sues

claiming

Carr’s

defendant
that

tripping

Food

Food

over

a

Giant

Giant’s
concrete

parking stop and falling in the parking lot of a Food
Giant supermarket.

The court has jurisdiction pursuant

to 28 U.S.C. §§ 1332 (diversity) and 1441 (removal).
Carr initially filed this lawsuit, but later died for
reasons apparently unrelated to this litigation.
plaintiff,

as

representative

of

replaced Carr in this litigation.

Carr’s

estate,

The
then

This cause is now before the court on Food Giant’s
motion for summary judgment.
summary

judgment

will

be

For the reasons below,

entered

in

favor

of

Food

Giant.

I. SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as
a matter of law.”

Fed. R. Civ. P. 56(c).

In making

its determination, the court must view the evidence in
the light most favorable to the non-moving party and
draw all reasonable inferences in favor of that party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).

2

II. FACTUAL BACKGROUND
The following are the facts taken in the light most
favorable to the plaintiff.
This case arises from a

March

2013 accident in

which Marie Carr, who was over the age of 70, fell and
injured herself in the parking lot of a Food Giant
supermarket in Abbeville, Alabama.

See Transcript of

Pretrial Conference (doc. no. 57), at 2:14-17.

The

store has a set of sliding entrance doors in the front
center of the building.

A sidewalk runs along the

front of and adjacent to the building, and immediately
in front of the sidewalk is the parking lot.
part

of

the

lot

touching

the

sidewalk

are

In the
several

marked handicapped parking spaces, which face the front
of the building at a slight angle.

Each handicapped

parking space has a concrete parking block near the
front of the space, positioned so as to prevent a car
parking in the space from driving onto the sidewalk.
Each parking block is about six feet long, five inches
high,

and

five

inches

deep.
3

There

are

no

parking

spaces directly in front of the store’s front doors;
instead, that area is left open as a pedestrian walkway
connecting the front doors to the rest of the parking
lot.

On the day of the accident, an upright metal

advertising
photographs

sign
was

that

appears

located

in

the

in

the

pedestrian

submitted
walkway;

however, given its size, it would have blocked only
about one third

of the width of the

Photographs

Food

of

Giant

Entrance

walkway.
(attached

See
to

Declaration of Ben Hogan) (doc. no. 33-2), at 3-4.
On the day of the accident, around mid-day, Carr
drove to the Food Giant in her vehicle, parked in the
first handicapped space immediately to the left of the
pedestrian walkway to the entrance, and went into the
store to shop.

After shopping, she returned to her

car, loaded her groceries into its trunk, and walked
her shopping cart back to the store.
At that point, Carr walked down the sidewalk in
front

of

her

driver’s side.

car

and

turned

left

to

approach

the

According to the sole eyewitness to the
4

accident, when she reached the concrete parking block
at the front of her space, Carr picked up her foot as
if to step over the block but did not lift her foot
quite high enough; as a result, her foot caught on the
parking block, causing her to fall down.

A car was

parked in the spot immediately to the left of Carr’s
space; however, there is no evidence as to how close
the cars were parked or how much space was between the
parking block and the adjacent car at the time.
Carr sustained serious, permanent injuries in the
accident.
albeit

After filing this lawsuit, she passed away,

for

litigation.

reasons

apparently

unrelated

to

this

She had not been deposed, so her testimony

is not available to explain her perspective on how the
accident occurred.
Plaintiff’s expert Robert Tolbert, a professional
engineer,

evaluated

compliance with the

the

Food

Giant

Giant’s

lot

for

Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. §§ 12101-12213.
Food

parking

parking

lot

“did
5

not

He opined that
contain

an

ADA

compliant accessible path, [and] did not contain an ADA
mandated

accessible

aisle...”

Report

of

Robert

T.

Tolbert (doc. no. 33-3), at 20.1

III. DISCUSSION
In

a

premises-liability

case,

a

plaintiff

must

prove the same elements of negligence as in any tort
litigation:
damages.

duty,

breach

of

duty,

causation,

and

Sessions v. Nonnenmann, 842 So. 2d 649, 651

(Ala. 2002).

“A store patron is generally considered a

business invitee for premises-liability purposes under
Alabama law.”

Blalock v. Wal-Mart Stores E., LP, 2007

WL 1412445, at *1 (M.D. Ala. 2007) (Thompson, J.).

The

duty of a store is “to exercise reasonable care to
provide and maintain reasonably safe premises for the
use of his customers.”

Denmark v. Marcantile

Stores

Co., 844 So. 2d 1189, 1192 (Ala. 2002) (quoting Maddox
v. K-Mart Corp., 565 So. 2d 14, 16 (Ala. 1990)).
1. Tolbert’s report contains other opinions as
well.
However, as plaintiff has not or is no longer
relying on the other opinions, they are not mentioned
here.
6

However, under Alabama law, a landowner is not the
insurer

of

the

safety

of

his

invitees.

Ex

parte

Mountain Top Indoor Flea Market, 699 So. 2d 158, 161
(Ala. 1997).

“The duty owed to an invitee is limited

to hidden defects which are not known to the invitee
and would not be discovered by him in the exercise of
ordinary care. ... [T]he owner of premises has no duty
to warn an invitee of open and obvious defects in the
premises which the invitee is aware of, or should be
aware of, in the exercise of reasonable care on the
invitee's part.

As a general rule, an invitor will not

be liable for injuries to an invitee resulting from a
danger which was known to the invitee or should have
been

observed

reasonable

by

care.”

the
Id.

invitee
(internal

in

the

exercise

quotation

marks

of
and

citations omitted).
“Alabama follows the Restatement (Second) of Torts,
which

provides

that

a

landowner

is

not

dangers that are either known or obvious.

liable

for

For a defect

to be ‘known,’ ‘the plaintiff must be aware of the
7

existence

of

the

condition

danger it involves.

and

must

appreciate

the

‘Obvious’ means that the condition

and risk are apparent to, and would be recognized by, a
reasonable

person

in

the

Therefore, the ‘obvious’
Hines

v.

Hardy,

567

So.

position

of

the

invitee.

test is an objective one,’
2d

1283,

1284

(Ala.

1990)

(quoting Rest. 2d Torts § 343A (1965)); see also Ex
parte Mountain Top, 699 So. 2d at 161, whereas the
‘known’

test

is

subjective.”

Blalock

v.

Wal-Mart

Stores E., LP, 2007 WL 1412445, at *1-2 (M.D. Ala.
2007) (Thompson, J.).
At the pretrial conference, the plaintiff clarified
that his theory is not that Carr was unaware of the
parking stop.

See Transcript of Pretrial Conference

(doc. no. 57), at 2:21-6:16.

Further, he does not

argue that, due to weather, lighting, shadows, or other
conditions

at

the

time

of

the

accident,

Carr

was

unaware of or unable to appreciate the danger posed by

8

the parking block.2

Cf. Woodward v. Health Care Auth.

of City of Huntsville, 727 So. 2d 814, 817-818 (Ala.
Civ. App. 1998) (finding that questions of fact existed
as to whether curb was dangerous where conditions at
the

time

tripped

of

on

the

accident

difficult

to

made

the

notice;

curb

evidence

plaintiff
had

been

presented that, because of the lighting at the time of
the accident, the lack of a shadow, and the color of
the sidewalk and driveway, the curb gave the appearance
of

one

flat

mass

of

concrete).

Instead,

plaintiff’s theory is that, had Food Giant
fully

ADA-compliant

would

not

have

been

handicapped
forced

to

parking
traverse

provided

spaces,
the

the

Carr

parking

block to get to her driver’s side door and would not

2. In his response brief, the plaintiff initially
argued that the parking block should have been painted
yellow or another acceptable warning color.
However,
he abandoned that argument at the pretrial conference.
See Transcript of Pretrial Conference (doc. no. 57), at
21:7-24.
9

have fallen.

In other words, the plaintiff seeks to

proceed under a theory of negligence per se.3
To

establish

that

a

violation

of

a

statute

constitutes negligence per se, a plaintiff must meet a
four-pronged

test:

“(1)

The

statute

must

have

been

enacted to protect a class of persons, of which the
plaintiff is a member; (2) the injury must be of the
type contemplated by the statute; (3) the defendant
must have violated the statute; and (4) the defendant's
statutory violation must have proximately caused the
injury.”

Parker Bldg. Servs. Co. v. Lightsey ex rel.

3. Food Giant argues that negligence per se
constitutes a new claim that was not raised in the
complaint and that the plaintiff cannot amend the
complaint to allege a new claim through response at the
summary-judgment stage. See Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“At the
summary judgment stage, the proper procedure for
plaintiffs to assert a new claim is to amend the
complaint in accordance with Fed. R. Civ. P. 15(a). A
plaintiff may not amend her complaint through argument
in a brief opposing summary judgment.”) (citation
omitted). However, the court need not decide whether
the plaintiff’s negligence-per-se argument presents a
new ‘claim’ or simply an alternate theory, because,
regardless, the plaintiff has not established the
elements necessary to support this claim or theory.
10

Lightsey, 925 So. 2d 927, 931 (Ala. 2005) (citation
omitted).
The plaintiff claims that Food Giant violated ADA
regulations requiring an “unobstructed access aisle” to
each handicapped parking space.4

See Memorandum of Law

in Opposition to Motion for Summary Judgment (doc. no.
44), at 21.

One ADA regulation, 36 C.F.R. Pt. 1191,

App. D, 502.3-502.3.4, requires that businesses subject
to

the

regulation

provide

a

60-inch

access

extending the full length of the parking spot.
not

specifically

unobstructed.

require

that

the

access

aisle
It does

aisle

be

However, the plaintiff also points to 36

C.F.R. Pt. 1191, App. C, which defines an “accessible
means of egress” as “[a] continuous and unobstructed
way of egress travel from any point in a building or

4. The plaintiff does not argue that the ADA or any
other statute prohibits the use of the cement parking
stops in the front of handicapped parking spaces.
11

facility that provides an accessible route to ... a
public way.”5
The plaintiff’s argument that these provisions were
violated

is

a

bit

complicated.

At

the

pretrial

conference, he conceded that the ADA regulations allow
the access aisle to be on either side of the parking
space and that the pedestrian walkway to the right of
Carr’s parking space constituted a legally sufficient
access aisle for Carr’s parking space.
of

Pretrial

Conference

(doc.

no.

See Transcript

57),

at

17:2-8.

Instead, he relies upon the parking space immediately
to the left of Carr’s parking space, which the parties
agree did not have an ADA-compliant access aisle.

See

id.,

the

at

17:20-19:5.

Further,

he

argues

that

upright sign in the pedestrian walkway violated the
requirement of an unobstructed access aisle.6
at

19:24-20:16.

The

court

assumes

for

See id.,

purposes

of

5. A “public way” is defined as “[a]ny street,
alley or parcel of land open to the outside air leading
to a public street ....” 36 C.F.R. Pt. 1191, App. C.
6. The court assumes he refers to the regulation
regarding an accessible ‘means of egress’.
12

argument that the plaintiff has shown a violation of
applicable regulations here.
However,

even

with

the

assumption

that

these

regulations were violated, the plaintiff cannot meet
the four-pronged test to show negligence per se because
he cannot meet the fourth prong--a causal relationship
between the violations and Carr’s injury.

As to the

lack of an access aisle for the space next to Carr’s,
the

plaintiff

argues

that,

had

that

space

had

the

required access aisle, Carr would have had more room
between the cars with which to reach her door and would
not have had to cross the parking block to do so.
This argument fails for several reasons.
the

parties

agreed

that

the

regulations

First,

allow

the

access aisle to be placed on either side of a car.
Accordingly, even if the adjacent space had an access
aisle, it would not necessarily have been located next
to Carr’s space; it might have been located on the
other side of the second parking space, where it would
have made no impact on Carr’s actions that day.
13

Second, the plaintiff presented no evidence that
there was not enough space between the adjacent car and
the parking block for Carr to walk around the parking
block instead of over it.7

See id., at 20:22-21:2 (“THE

COURT: Is there any evidence here that the reason she
was walking over this parking block was because there
was no way to get around it otherwise? [PLAINTIFF’S
ATTORNEY]: There's nothing that says that it -- there's
nothing in the record that would say that or say that
that's not true. Either way.”)

Accordingly, there is

no basis upon which to conclude that Carr was forced to
traverse the parking block.
Third, the plaintiff has not shown that anything
prevented Carr from going around the back of her car
and approaching her driver’s-side door from the rear.
The plaintiff argues that the pedestrian walkway to the
right of Carr’s space violated the ADA regulation of an

7. The plaintiff certainly could have attempted to
obtain such evidence through the deposition of the sole
eyewitness.
The court does not know whether counsel
attempted to explore this question in the deposition or
not.
14

‘unobstructed’ pathway due to the upright metal sign
placed in it.

However, even with the assumption that

the presence of this sign violated the regulation, the
photographs presented in evidence make clear that the
metal sign was not large enough to block pedestrians
from accessing the public way or to prevent Carr from
accessing her parking space from the rear.8

Thus, the

plaintiff

statutory

cannot

show

that

the

assumed

violation caused Carr to traverse the parking block or
caused Carr’s injury.

Accordingly, he cannot establish

negligence per se, and Food Giant’s motion for summary
judgment must be granted.
An appropriate judgment will be issued.
DONE, this the 10th day of June, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

8. Indeed, although the eyewitness testimony
presented to the court was not detailed on this point,
Carr appeared to have already navigated the pedestrian
walkway at least twice before tripping, as she had
unloaded her cart of groceries into the back of the car
and returned her cart to the store.