Belk v. Thompson et al

Filing 17

MEMORANDUM OPINION AND ORDER GRANTING 9 MOTION to Dismiss as it relates to plaintiff's res ipsa loquitur theory of recovery and DENIED as it relates to plaintiff's premises liability negligence claim. Signed by Honorable Judge Mark E. Fuller on 2/3/12. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KELLEY G. BELK, III,
Plaintiff,
v.
THOMAS L. THOMPSON and
LINDA THOMPSON,
Defendants.

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CASE NO. 2:11-cv-415-MEF
(WO)

MEMORANDUM OPINION AND ORDER
Plaintiff Kelley G. Belk, III (“Plaintiff”), a resident of Mississippi, brings this
negligence case against Alabama residents Thomas and Linda Thompson (“Defendants”).
The case is before the Court on the Defendants’ Motion to Dismiss (Doc. # 9), which has
been fully briefed (Docs. # 9-1, 15, 16). After careful review of the arguments of counsel
and the applicable law, the Court finds that Defendants’ Motion to Dismiss is due to
GRANTED in part and DENIED in part.
I. JURISDICTION AND VENUE
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
Personal jurisdiction and venue are not contested, and there are adequate allegations in
support of both.
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion tests the legal sufficiency of a complaint; thus, in assessing
the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations
set forth in the complaint are true. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007))). To state a claim that survives a Rule 12(b)(6)
challenge, a complaint need not contain “detailed factual allegations,” but must include
enough facts “to raise a right to relief above the speculative level on the assumption that all
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 545.
III. FACTUAL BACKGROUND
Accepting as true the factual allegations in the Complaint, the Court finds the
following facts:
On or about June 2, 2009, Plaintiff was working at Defendants’ residence installing
insulation in the attic. In order to be able to traverse the attic, Defendants had affixed a walk
board that cut across the attic’s rafters. As Plaintiff attempted to walk across the board in the
performance of his work, the board – which was rotten – gave way, and Plaintiff fell through
the ceiling and landed on Defendants’ dining room table. As a result of the fall, Plaintiff
suffered injuries – some permanent – to his leg, elbow, and head.
Plaintiff alleges that Defendants “negligently . . . fail[ed] to maintain [their] premises
in a safe condition,” were “gross[ly] negligent,” and are “liable to Plaintiff under the doctrine
of res ispa loquitur.” (Compl. ¶ 7.)
IV. DISCUSSION
“The elements of a negligence claim are a duty, a breach of that duty, causation, and
damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 679 (Ala. 2001).

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“A landowner owes an invitee the legal duty ‘to exercise reasonable care and diligence to
keep the premises in a reasonably safe condition for the uses contemplated by the invitation,
and to warn the invitee of known dangers, or dangers that ought to have been known, and of
which the invitee [is] ignorant.’” Shelton v. Boston Fin., Inc., 638 So. 2d 824, 825 (Ala.
1994) (quoting Lamson & Sessions Bolt Co. v. McCarty, 173 So. 388 (Ala. 1937)).
To be classified as an “invitee,” the visitor’s presence at the premises must provide
a material benefit to the landowner. See Hines v. Hardy, 567 So. 2d 1283, 1283-84 (Ala.
1990) (holding that the plaintiff, a housekeeper for the landowner defendants, “was an
invitee, as opposed to a licensee, on the [defendants’] premises, by virtue of her presence
there to perform a helpful or necessary service for which she had contracted”). Based upon
the allegations in the Complaint, Plaintiff was at the Defendants’ residence performing
services for which Defendants had contracted, and was an invitee. Id.; see also Quillen v.
Quillen, 388 So. 2d 985, 988-89 (Ala. 1980) (holding that landowner’s brother, who had
been invited to home to help landowner erect a television antenna on the roof, had invitee
status).
“The owner of a premises in such cases is not an insurer of the safety of his invitees,
and the principle of res ipsa loquitur is not applicable.” Id.; see also Neeley v. Gateway, Inc.,
977 So. 2d 511, 516 (Ala. Civ. App. 2007) (“[The] [Alabama] [S]upreme [C]ourt . . . has
consistently held that res ipsa loquitur does not apply to premises-liability claims.” (citing
Kmart Corp. v. Bassett, 769 So. 2d 282, 286 n.4 (Ala. 2000))); see also 1 Michael L. Roberts
& Gregory S. Cusimano, Alabama Tort Law § 44.04 (5th ed. 2010) (collecting cases).

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“There is no presumption of negligence which arises from the mere fact of an injury to an
invitee.” Id. (citing Delchamps, Inc. v. Stewart, 255 So. 2d 586 (Ala. Civ. App. 1971)).
Thus, Plaintiff’s res ipsa loquitur theory of recovery fails as a matter of law.
On the other hand, the factual allegations of Plaintiff’s premises liability negligence
claim are sufficient to survive Defendants’ motion to dismiss.1 As stated above, the premises
owner is under a general obligation to keep the premises in a “reasonably safe condition for
the uses contemplated by the invitation[.]” Shelton, 638 So. 2d at 825. The Alabama
Supreme Court has explained that “in cases where the alleged defect is part of the premises
. . . , once a plaintiff has made a prima facie showing that a defect in a part of the premises
has caused an injury, then the question whether the defendant had actual or constructive
notice of the defect will go to the jury . . . .” Mims v. Jack’s Rest., 565 So. 2d 609, 610 (Ala.
1990).2 Plaintiff alleges that he was an invitee to Defendants’ attic to install insulation and

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Plaintiff also appears to allege a cause of action for “gross negligence.” (Compl. ¶ 7.) Gross
negligence is “‘merely a greater degree of negligence[,]’” Coca-Cola Bottling Co. United, Inc. v.
Stripling, 622 So. 2d 882, 885 (quoting Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators,
Inc., 510 So. 2d 142, 145 (Ala. 1987)), and cannot be construed as a claim of wantonness, which is a
“qualitatively different tort concept of actionable culpability.” Cessna Aircraft Co. v. Trzcinski, 682 So.
2d 17, 19 (Ala. 1996) (quoting Lynn Strickland Sales & Serv., Inc., 510 So. 2d at 145); see also Miller v.
Bailey, 60 So. 3d 857, 867 (Ala. 2010) (“Gross negligence is negligence, not wantonness.” (internal
quotations marks omitted)).
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Of course, at the summary judgment stage or later, Defendants could argue, evidence
permitting, that the rottenness of the walk board constituted an “open and obvious” danger. See Powell
v. Piggly Wiggly Ala. Distrib. Co., Inc., 60 So. 3d 921, 926 (Ala. Civ. App. 2010) (“‘A condition is ‘open
and obvious’ when it is known to the plaintiff or should have been observed by the plaintiff in the
exercise of reasonable care.’” (quoting Quillen, 388 So. 2d at 989)). Because “[t]he entire basis of the
[premises owner’s] liability rests upon [its] superior knowledge of the danger,” if a defect in the premises
is “open and obvious,” then “that superior knowledge is lacking . . . [and] the [premises owner] cannot be
held liable.” Quillen, 388 So. 2d at 989; see also 2 Ala. Pattern Jury Instr. Civ. 31.01A (2d ed. 1993)
(“An owner . . . of [a] premises is under no duty to reconstruct or alter the premises so as to eliminate
dangers which were known or obvious to [the] plaintiff, or in the exercise of reasonable care, should have
been known or obvious to [the] plaintiff.”).

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that he fell on a rotten walk board affixed to the rafters in the attic while performing that
service. Although the Complaint does not contain “detailed factual allegations,” it does
include enough facts “to raise a right to relief above the speculative level on the assumption
that all allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S.
at 545. Defendants’ motion on the premises liability negligence claim is due to be denied.
V. CONCLUSION
Based on the foregoing, it is ORDERED that Defendants’ Motion to Dismiss (Doc.
# 9) is GRANTED as it relates to Plaintiff’s res ipsa loquitur theory of recovery and
DENIED as it relates to Plaintiff’s premises liability negligence claim.
DONE this 3rd day of February, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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