Lewis v. Federal Deposit Insurance Corporation
OPINION. Signed by Honorable Judge Myron H. Thompson on 8/27/12. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver
for Colonial Bank, Inc.,
CIVIL ACTION NO.
Corporation (FDIC), as receiver for Colonial Bank, Inc.
Lewis has invoked the jurisdiction of this federal trial
court to hear certain claims against the FDIC.
pending is the FDIC’s motion for summary judgment.
the following reasons, that motion will be granted.
Summary judgment is appropriate “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
Fed. R. Civ. P. 56(a).
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
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Colonial Bank owned a recently constructed, two-story
house located in Atlanta, Geogia.
Harry Norman Realtors
was hired to place it on the market, and real-estate
agent Rodney Hinote scheduled an open house for December
At approximately 1:40 p.m. on December 14,
Hinote unlocked the property, turned on the lights, and
conducted a brief walkthrough.
He did the same for other
properties he was showing that day in the neighborhood.
Lewis attended the open house with her husband, her
son, her son’s fiancée, and the fiancée’s young daughter.
noticing that the grass was damp, apparently indicating
that it had rained earlier in the day.
The Lewis family
entered the house and looked around the upper floor for
nearly ten minutes before heading downstairs.
followed, holding on to the hand rail and “taking [her]
time walking down.”
Dep. Sharon Lewis 20:15-21 (Doc. No.
Despite being careful, she lost her balance and
fell down the stairs.
After the fall, Lewis’s son and his fiancée inspected
the stairs and noticed an unspecified amount of water on
The son reports that the water had “dried up
1. Lewis testified that her family members informed
her that the liquid she allegedly slipped on was water.
The court will therefore assume, for purposes of
resolving the summary-judgment motion, that the liquid in
question was water.
Archie Lewis Jr. ¶ 8 (Doc. No. 23).
Neither Lewis nor
her husband recall seeing water on the stairs.
Lewis testified that her son took pictures after the
accident, but that she had never looked at them and “[did
not] know what they show.”
(Doc. No. 15-3).
Dep. Sharon Lewis 41:1-20.
She states that these pictures had been
given to her initial attorney when she filed an earlier
He saw the ambulance arrive and went over to
the house, spoke with the Lewis family, and gave them his
potential hazard on the stairs, and he did not observe
anything out of the ordinary.
At his deposition, Hinote recalled walking the stairs
twice without noticing any water and testified to being
“100 % certain” that there was no water on the stairs
when he inspected the home prior to the open house.2 Dep.
Hinote’s uncontroverted testimony revealed that the house
had been “winterized,” which means that the water had
been shut off and the pipes drained.
remove the water on which she slipped and fell; that
Colonial Bank is responsible for Hinote’s failure; and
There is disagreement as to how long after
Hinote’s inspection the fall occurred. Hinote says that
he unlocked and inspected the house just before 2:00 p.m.
and saw the ambulance arrive approximately 20-to-30
minutes later. Dep. Rodney Hinote 26:21-27:4 (Doc. No.
However, Lewis states that she arrived at the
house between 1:00 and 1:30. Dep. Sharon Lewis 23:17–21
(Doc. No. 15-3). Lewis’s son provides a third opinion:
He remembers viewing two other houses for “a minimum of
45 minutes” before entering the house in question. Aff.
Archie Lewis Jr. ¶ 5 (Doc. No. 23). If those properties
were also part of Hinote’s open house, then the Lewis
approximately 2:45 p.m. The fall would have therefore
inspection. Taking the facts in the light most favorable
to Lewis, the court will presume that the fall happened
one hour after Hinote completed his walkthrough.
that, because the FDIC is now the receiver for Colonial
Bank, it is properly the defendant.
The evidence is
insufficient to support the conclusion that Hinote was
A. Georgia Law Applies
Lewis and the FDIC agree that state law governs this
case and that, because Lewis’s fall occurred in Atlanta,
Georgia, Georgia substantive law governs in particular.
See Williams v. Nw. Fin. Ala., Inc., 723 So.2d 97, 100
traditional rule of lex loci delicti, which provides that
an Alabama court will determine the substantive rights of
an injured party according to the law of the state where
the injury occurred.”).
B. The FDIC Is Not Liable
could draw from the evidence presented is that the water
Lewis slipped on did not come from a leak in the house
The house had been recently constructed and was
in excellent condition at the time of the fall.
not and had never been occupied.
Moreover, Harry Norman
Realtors had “winterized” the house, which meant, as
stated, that the water had been shut off and all residual
water had been drained from its pipes to guard against
Thus, there was no water in the house, that
unlocking the door in advance of the open house.
Lewis testified that the grass outside the house was
damp, which indicated that it might have rained earlier
However, it would be unreasonable to conclude
that rainwater leaked through the roof and into the
First, the rainwater would have had to go through
the roof, the ceiling, and quite possibly the floor above
to reach the step where Lewis fell.
Such a dramatic leak
would not go unnoticed in an otherwise brand new home.
Second, had water actually leaked onto the stairs, it
would have left behind evidence of its path through the
roof and floor in the form of water spots and warping.
Even with time to inspect the property, both immediately
absolutely no evidence of that kind of damage and the
pictures that Lewis’s son supposedly took have yet to
It would therefore be unreasonable for a
factfinder to conclude that water leaked through the roof
and onto the stairs.3
The water, assuming its existence,
must therefore have come into the house from some outside
3. Lewis spends the majority of her brief discussing
the “dried up edges” of the water her son saw on the
step. Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. at
2-3 (Doc. No. 23).
Lewis argues that the dried edges
prove that the water must have been on the stair when
Hinote conducted his initial walkthrough. However, to
support her inference, Lewis offers no evidence
whatsoever about how water would dry in the particular
circumstances of this case. Thus, the dried edges do not
prove that the water was there an unreasonably long time.
Moreover, that the water was of recent origin is
reflected by the undisputed facts that, during his
walkthrough, Hinote walked up and down the stairs without
noticing the water and that Lewis and her son testified
that they did not notice any water on the stairs before
source after Hinote unlocked the doors and conducted his
walkthrough in advance of the open house.
In Georgia, “a proprietor has a statutory duty to
exercise ordinary care to keep its premises safe, which
includes inspecting the premises to discover possible
dangerous conditions of which the [proprietor] does not
have actual knowledge, and taking reasonable precautions
to protect invitees from dangers foreseeable from the
(internal quotation marks omitted).
In this particular
case, where the water must have come into the house after
the initial inspection, a breach of duty occurs only when
the property is not inspected with sufficient frequency.
Patrick v. Macon Hous. Auth., 552 S.E.2d 455, 459-60 (Ga.
Ct. App. 2001).
Inspection frequency must be proportionate to the
hazards typically associated with the property’s use.
In Patrick the plaintiff fell in an apartment-
complex laundry room that the owner inspected for hazards
once every two hours.
Id. at 456, 459.
The court found
that the circumstances of the case were “different from
those in supermarkets or fast food restaurants where the
nature of the business creates conditions which cause
slip and falls to occur with some frequency.”
The owner therefore had “no duty to ... constantly
inspect the floors in the absence of unusually dangerous
An inspection every two hours, the
court concluded, easily satisfied the owner’s burden and
entitled it to summary judgment.
If the housing authority inspected with adequate
frequency in Patrick, then Hinote clearly met his duty to
inspect the home with reasonable frequency in the current
Water hazards are far more common in a laundry
room than in the stairwell of an unoccupied, winterized
As a result, Hinote was not obligated to perform
Even the most generous reading of the evidence
in this case indicates that Lewis fell no more than an
hour after Hinote’s initial inspection, well within the
two hours the Patrick court found reasonable.
therefore concludes that the frequency of inspection in
this case easily satisfies the demands of reasonable
That it may have rained earlier in the day does not
require a different result.
There is no evidence that it
was actually raining during the open house and, even if
it had been, Hinote was not obligated to “mop up the rain
as fast as it . . . [wa]s carried in by wet feet.”
Walker v. Sears Roebuck & Co., 629 S.E.2d 561, 564 (Ga.
Ct. App. 2006).
“The risk of harm imposed by some
accumulation of water on the floor ... during rainy days
is not unusual or unreasonable in itself, but is one to
which all who go out on a rainy day may be exposed and
which all may expect or anticipate.”
Lewis has offered no evidence tending to show that
Hinote breached his duty to exercise reasonable care in
preparing and maintaining the property during the open
judgment on Lewis’s slip-and-fall claim.
An appropriate judgment will be entered.
DONE, this the 27th day of August, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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