Hooks v. Dollar General Corporation et al
OPINION AND ORDER: it is ORDERED as follows: (1) Dft Dollar General Corporation's 27 motion for summary judgment and dfts Farmers Home Furniture and Glass Properties, LLC's 29 motion for summary judgment are granted as to all claims except the premises-liability claim; (2) The premises-liability claim will go to trial. Signed by Honorable Judge Myron H. Thompson on 11/10/2015. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
CORPORATION, et al.,
CIVIL ACTION NO.
OPINION AND ORDER
This is a slip-and-fall case.
General Corporation, which operates the store where she
1. The motion for summary judgment (doc. no. 29)
filed by Farmers Home Furniture and Glass Properties,
LLC explains that, subsequent to the incident at issue,
“[a]ny ownership interest Glass had in the property was
taken over by Farmers Home Furniture,” and thus refers
to both defendants as one.
This court will adopt the
jurisdiction pursuant to 28 U.S.C. §§ 1332 (diversity)
and 1441 (removal).
This cause is before the court on the motions for
summary judgment filed by Dollar General and by Farmers
Because the two motions mostly raise
these motions will be granted in part and denied in
I. LEGAL STANDARD
Summary judgment is appropriate when “the movant
material fact and the movant is entitled to judgment as
a matter of law.”
Fed. R. Civ. P. 56(a).
disputed must support the assertion by ... citing to
parts of materials in the record, including depositions
establish the absence or presence of a genuine dispute,
In making its determination, the court must view
the evidence in the light most favorable to the nonmoving
favor of that party.
Matsushita Elec. Indus. Co. v.
defeat a motion for summary judgment, however, the nonmoving party “must do more than show that there is some
metaphysical doubt as to the material facts.”
Because this is a diversity case, the court applies
the substantive law of Alabama, as articulated by the
(1965) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64,
Hooks was a regular customer of a Dollar General
Store in Enterprise, Alabama.
Dollar General leases
the store from Farmers Home Furniture. 2
Hooks had shopped at this store an average of two
or three times per week for the five years preceding
the incident at issue here.
She generally entered and
exited the store using the handicap ramp--which was in
front of the store and painted blue--because she had
knee problems stemming from rheumatoid arthritis and
2. Dollar General (the lessee) argues that a term
of its lease with Farmers Home Furniture (the lessor)-which warrantied that the premises were safe, that the
lessor would maintain them, and that they were in
compliance with the ADA--relieves it of any liability
under Hooks’s negligence-per-se theory (founded on an
alleged violation of the ADA). However, Dollar General
nowhere makes the same argument with respect to Hooks’s
premises-liability and wantonness claims.
summary judgment will be granted on Hooks’s negligenceper-se claim, the court need not address here whether
any liability eventually found would be imposed jointly
and severally on the two defendants.
had undergone knee surgeries. 3
She had never noticed
any problems with the ramp.
On the day in question, Hooks arrived at the store
in the early afternoon.
She parked in a ‘handicap’
Because it was drizzling, the ramp was
Hooks was wearing flip-flops.
In her deposition, Hooks stated that she did not
have any difficulty walking up the ramp as she entered
At that time, she did not notice anything
wrong with the ramp; specifically, she did not see any
broken concrete on the ramp.
She was having no trouble
with her vision, and nothing obstructed her view of the
On her way into and out of the store, she was
cautious, on account of the rain and her knee problems.
On the way out of the store, Hooks took the same
path by which she had
entered the store.
3. The defendants do not appear to dispute that
Hooks is disabled.
carrying one shopping bag.
As she stepped on the ramp,
she slipped and fell, suffering significant injuries.
Hooks stated that she stepped onto the ramp with
her left foot, and that it slid, ending up on the
ground beside the ramp.
and did not trip.
She was clear that she slid,
However, she was unable to identify
where on the ramp she first stepped, or how many steps
she had taken on the ramp prior to sliding.
no. 27, ex. A, at 212-15.
When asked whether she had “any idea what caused
[her] to begin to fall,” Hooks initially said no.
However, she later answered affirmatively the
question: “Was it your left foot that began to slide?
Is that what started your fall?”
Id. at 177.
further testified that “the piece [she] stepped on was
loose,” agreed that “a piece came off the ramp after
[the] fall,” and stated that after she fell, that piece
was “laying off beside [her].”
Id. at 175.
was asked again whether she “recall[ed] what it was
that made [her] slip and fall,” she replied that “[i]t
was the looseness of the ramp”; when asked to confirm
that “it was a loose piece of the ramp [that] caused
you to slip,” she nodded her head. 4
See doc. no. 40,
ex. A, at 198-99.
Hooks did not report the accident to the store at
the time; she later called to make a report.
Hooks seeks damages for injuries she sustained when
she slipped and fell on a ramp connecting the parking
lot to the sidewalk in front of the store.
Specifically, she raises three claims: (1) that the
4. A color photograph of the ramp, submitted in
evidence, reveals that it was transected by cracks, and
that portions of the concrete along both edges were
chipped away. Doc. no. 44, ex. C.
requirements of the Americans with Disabilities Act,
and that this failure constituted negligence per se;
(2) that the defendants breached the duty of care they
owed her as an invitee in how they maintained the ramp,
defendants were therefore negligent under a premisesliability theory; and (3) that the defendants knowingly
from their inadequate maintenance of the ramp, that
defendants were therefore liable for wantonness.
claim is addressed in turn below.
1. Negligence Per Se
Hooks suggests that the ramp on which she slipped
and fell was not compliant with the ADA, because it was
‘built-up,’ extending out from the curve, rather than
concave (i.e., cut into the curb).
Hooks’s claim of
caused her injuries. 5
In order for a plaintiff to show that violation of
a statute or ordinance constitutes negligence per se in
Alabama, she must show: “(1) The party charged with
negligent conduct [has] violated the statute; (2) the
statute was enacted to protect a class of persons which
includes the litigant seeking to assert the statute;
5. The defendants suggest that Hooks is also making
a claim directly under the ADA.
The court does not
read her complaint to raise such a claim.
extent that Hooks’s responses to the motions to dismiss
do discuss, quite briefly, a claim that the defendants
protected rights under the ADA, this claim fails
because although private plaintiffs can obtain damages
for intentional discrimination (including deliberate
indifference) under Title II of the ADA, no private
right of action for money damages is available under
the provision of the ADA relevant to this case, Title
III. Jairath v. Dyer, 154 F.3d 1280, 1283 & n.7 (11th
statute; and (4) the statutory violation proximately
caused the injury.
Edwards v. United States, 552 F.
Supp. 635, 637 (M.D. Ala. 1982) (Thompson, J.) (quoting
(internal quotation marks omitted)).
Even assuming that the ramp at issue was indeed
implementing regulations, and that Hooks is a disabled
caused her to fall.
Indeed, Hooks testified in her
deposition that it was the loose, broken concrete of
implicated the cut of the ramp.
The defendants are
therefore entitled to summary judgment on Hooks’s claim
of negligence per se.
The court notes, moreover,
ADA is not
relevant to the standard of care applicable to Hooks’s
premises-liability claims, for much the same reason:
ADA standards governing the construction of the ramp
Next, Hooks raises a premises-liability claim. 6
maintain the ramp breached a duty of care.
2. Premises Liability
a premises-liability case, a plaintiff must prove the
same elements of negligence as in any tort case: duty,
breach of duty, causation, and damages.
Nonnenmann, 842 So. 2d 649, 651 (Ala. 2002).
Alabama law, “[a] store patron is generally considered
6. Hooks also appears to articulate a ‘traditional’
premises-liability claim. As this court has explained,
however, only “[w]hen the affirmative conduct of the
landowner causes the injury [do] traditional negligence
principles apply” under Alabama law; when the injury
arises from a “condition of the premises,” by contrast,
premises-liability standards govern. Shelley v. White,
782 F. Supp. 2d 1295, 1296 (M.D. Ala. 2010) (Albritton,
J.) (quoting Lilya v. Greater Gulf State Fair, Inc.,
855 So. 2d 1049, 1053 (Ala. 2003)).
that she was injured by a condition of the premises,
not any affirmative act by the defendants.
Blalock v. Wal-Mart Stores E., LP, No. 1:06cv381, 2007
WL 1412445, at *1 (M.D. Ala. May 11, 2007) (Thompson,
J.), and the parties agree that the duty of care owed
to invitees is applicable here.
provide and maintain reasonable safe premises for the
use of  customers.”
Denmark v. Mercantile Stores
Co., 844 So. 2d 1189, 1192 (Ala. 2002) (quoting Maddox
However, under Alabama law, “a landowner is not the
insurer of the safety of his invitees, [so] the owner’s
duty is negated where the invitee or customer knew or
should have known about the hazard that
caused his injury.”
Blalock, 2007 WL 1412445, at *1
(citing Ex parte Moutain Top Indoor Flea Mkt., 699 So.
2d 158, 161 (Ala. 1997); Jones Food Co. v. Shipman, 981
So. 2d 355, 361-63 (Ala. 2006)).
With respect to this claim, the defendants contend
that Hooks has failed to create a dispute of material
fact as to (1) the cause of her fall and (2) whether
the hazard that caused the fall was open and obvious.
Viewing the evidence in the light most favorable to
Hooks, the court disagrees.
First, the defendants assert that Hooks has offered
only speculation as to the cause of her fall.
point, they cite Ex Parte Howard L. Martin Distributing
Co., Inc., 769 So. 2d 313, 315 (Ala. 2000) (“Alabama
juries are not permitted to speculate as to the cause
Lindstrom, 763 So. 2d 951 (Ala. 2000); Turner v. Azalea
favorable and to inferences that are unfavorable to the
moving party, the evidence lacks probative value; and
the evidence may not be used to support one inference
over another because such use is mere conjecture and
However, this case is distinguishable from Ex Parte
Howard L. Martin Distributing Co.
There, the plaintiff
agreed that she “would have to speculate” as to what
she tripped on, because she did not “know” or “see”-either before or after her fall--what aspect of the
entryway to the store caused her to fall.
769 So. 2d
She addressed the cause of her fall multiple
times in her deposition, and every single statement was
qualified (with phrases like “As far as I know...” and
Here, while Hooks was not a model of clarity or
conviction in her deposition testimony regarding the
moments leading up to her fall, she stated that she
fell because of “the looseness of the ramp”: a piece of
the concrete along the edge of the ramp came loose
Compare Tice v. Tice, 361 So. 2d 1051, 1052
(Ala. 1978) (affirming a grant of summary judgment in a
case where the plaintiff “could not state the cause of
her fall,” and “show[ed] only that there were things in
the yard over which she might have tripped,” including
children’s toys, one of which she “believed ... must”
have caused her fall).
In an additional and important
contrast to Ex Parte Howard L. Martin Distributing Co.,
Hooks also testified that she observed and identified
concrete--once she fell to the ground.
Compare id. at
So you couldn’t say one way or the other
what it was that caused you to trip, is that fair to
There was nothing there when I got up
that I could tell.”).
Hooks’s testimony could be more compelling, and a
surface of the ramp and not by its crumbling edges.
But she stated in her deposition that the loose ramp
did cause her fall, not that she believed that it did.
party’s sworn testimony if the testimony is internally
inconsistent” in “determining whether [that] party has
created facts sufficient to defeat a motion for summary
judgment,” Willis v. City of Los Angeles, 57 F. App’x
warrant summary judgment in the present case.
did respond with a one-word denial when initially asked
whether she knew “what caused [her] to begin to fall,”
but a factfinder could reasonably decide to believe her
later, more fully articulated testimony identifying the
cause of her fall.
Moreover, Hooks offered collateral
support for this later statement, in testifying that
after she fell, she saw a piece of concrete off to the
side of the ramp.
Her earlier answer might impact her
credibility, but credibility determinations are not to
be made at the summary-judgment stage.
See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In sum, a factfinder that credits Hooks’s testimony
could decide the case in her favor.
See Lancaster v.
Carnival Corp., 85 F. Supp. 3d 1341, 1346-47 (S.D. Fla.
2015) (Moore, J.) (“Although Plaintiff stated at one
tripped over, he also stated at other times that he saw
the bag he tripped over and he described it in detail.
ignored because it is internally inconsistent; however,
implicit in Defendant’s argument is its concession that
Plaintiff’s account is a credibility and fact-finding
viewed in the light most favorable to Plaintiff could
causation should therefore go to trial.
dispute of material fact as to whether the defect in
the ramp that allegedly caused Hooks’s fall was open
plaintiff must be made aware of the existence of the
condition and must appreciate the danger it involved.
apparent to, and would be recognized by, a reasonable
person in the position of the invitee.
‘obvious’ test is an objective one, whereas the ‘known’
test is subjective.”
Blalock, 2007 WL 1412445, at *2
(citations and internal quotation marks omitted). 7
7. The Alabama Supreme Court has vacillated as to
whether the openness and obviousness of a hazard is an
affirmative defense or the negation of the duty element
of the tort, and thus whether defendant or plaintiff
bears the ultimate burden of proof. See Blalock, 2007
WL 1412445, at *3 (observing that although Denmark v.
Mercantile Stores Co., 844 So. 2d 1189, 1194 (Ala.
2002), suggests that it is an affirmative defense,
“this interpretation of the law [is] contradicted by
more recent cases,” such as Jones, 981 So. 2d at 361(continued...)
Hooks states in her deposition that she did not
notice the broken concrete, or appreciate its danger,
until after her fall.
Subjectively, the defect was not
known to her.
The more difficult question is whether the broken
deposition that the damage to the ramp was “in the
open” and “obvious” to her after she fell.
27, ex. A, at 215-16.
They also point out that Hooks
had seen and used the ramp many times before she fell.
But in some cases, a hidden trap will become obvious
only after it has sprung (and no matter how many times
calving looks very much intact.
Hooks alleges that
loose concrete gave way under her foot and separated
Summary judgment is due to be denied on this
claim under either standard, so the court need not
decide the issue here.
However, the parties are to
address it in their pretrial briefs.
from the ramp; based on this testimony, a reasonable
which Hooks stepped had separated from the ramp, it was
not obvious. 8
Whether the defect in the ramp was an
obvious one is thus a question for trial.
The Supreme Court of Alabama has defined wantonness
as “the conscious doing of some act or the omission of
some duty, while knowing of the existing conditions and
being conscious that, from doing or omitting to do an
act, injury will likely or probably result.”
Ins. Co. v. Roush, 723 So. 2d 1250, 1256 (Ala. 1998)
8. As the defendants point out, Hooks’s expert,
Traci Campbell, stated in her deposition that the
broken concrete along portions of the ramp’s edge was
“easy to see without much effort,” because “there is a
contrast between the gray of the [broken] concrete and
the blue of the [unbroken] painted part.” Doc. no. 49,
ex. 1, at 115.
However, Campbell nowhere suggested
that it would be easy to see that a piece of concrete
along the edge was about to break off.
discovery of actual peril, by conscious failure to use
preventative means at hand.”
Tolbert v. Gulsby, 333
So. 2d 129, 132 (Ala. 1976) (citation omitted). 9
The Alabama Supreme Court has held, as Hooks notes,
that wantonness claims should be “submitted to the jury
unless there is a total lack of evidence from which the
jury could reasonably infer” that the defendant was
conscious of the serious risk of injury its actions or
McDougle v. Shaddrix, 534 So. 2d
evidence was replaced in 2006 by the requirement that
“proof by substantial evidence shall be required to
conclude--as required for a finding of premises
liability--that the defendants knew or should have
known (because they inspected the ramp) that the
concrete along the edge of the ramp was broken.
However, to prevail on her wantonness claim, Hooks
would have to prove not only that the defendants knew
of the broken concrete along the edge of the ramp, but
disregarded the danger it posed.
submit an issue of fact to the trier of the facts,”
Ala. Code § 12-21-12.
Critically, for present purposes, evidence that a
defendant is aware that another person has previously
pavement is “what caused th[at] fall,” does not suffice
to carry a plaintiff past the summary judgment stage on
a wantonness claim, even under the no-longer-applicable
v. Regency Square Assocs.,
Ltd., 514 So. 2d 1346, 1350 (Ala. 1987).
defendants were aware of two other patrons who fell on
the ramp, one in 2009 and one in 2010, she has offered
no evidence to suggest that these falls were caused by
the defect that she alleges caused hers: loose concrete
along the edge of the ramp.
In fact, the evidence
makes clear that both the 2009 and 2010 falls were due
to the ramp being wet.
The documents and deposition testimony in evidence
recorded, on a form signed by the customer who fell,
the “Cause of Incident” to be “slippery ramp.” 10
no. 40, ex. C, at 4.
Dollar General’s District Manager
agreed in her deposition that the store had made a
“report to corporate concerning a need for maintenance
after the incident, but there is no indication that
edges of the ramp.
Doc. no. 40, ex. B, at 66.
10. In follow-up notes, a store employee reported
that the customer’s sister called and said that the
customer “fell on a big crack on the ramp.”
after another employee found “no visible cracks” in the
ramp, the customer herself was contacted again “to find
out exactly what her claim was”; she again stated that
she “slipped b/c of the rain in the parking lot.” Doc.
no. 40, ex. C, at 5.
states that the customer “slipped on the ramp due to
[it] being wet.”
Doc. no. 40, ex. C, at 2.
Finally, Hooks points to an email exchange between
supervisor, both employed by Farmers Home Furniture,
which occurred a few months before her fall.
replaced with one that cuts into the sidewalk.”
budget for this,” but asked whether “painting it with
slip resistant paint would ... help the problem with
affirmative, and then informed the supervisor that when
Farmers Home Furniture
the ramp, [it] will
most likely be required to bring all of them up to
Budget $ 13,000.”
Doc. no. 40, ex. F.
defendants were aware that their ramp was dangerously
that problem, Hooks specifically contends that she fell
not because the ramp was slippery, but rather because
summary judgment is due to be granted on her wantonness
11. It is of course true that if the defendants had
responded appropriately to the known risk of injury
posed by the slipperiness of the ramp, they might well
have opted to replace the ramp (as they eventually did,
after Hooks’s fall).
Had the ramp been replaced, the
broken concrete along its edge would have been removed,
and could not have caused her to fall.
This sort of
sufficient to support a wantonness claim.
Multiple patrons of a cafeteria have
burnt themselves on the poorly insulated handle of a
decrepit toaster oven.
If it had been promptly
replaced with a new one, the person in whose face its
glass door recently exploded would not have been
But the cafeteria’s knowledge that patrons
had been burnt shows its awareness that failing to
replace the microwave would likely result in future
burns--not any awareness of the risk of future shrapnel
* * *
(1) Defendant Dollar General Corporation’s motion
motion for summary judgment (doc. no. 29) are granted
as to all claims except the premises-liability claim.
(2) The premises-liability claim will go to trial.
DONE, this the 10th day of November, 2015.
_ /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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