Williams v. Circle K Stores, Inc.

Filing 35

MEMORANDUM OPINION AND ORDER: ORDERED that Defendant's Motion for Summary Judgment (Doc. 26 ) is GRANTED as to all claims and that Plaintiff's Complaint (Doc. 1 -1) is DISMISSED. A separate judgment shall enter. Signed by Honorable Judge Stephen Michael Doyle on 8/5/2019. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PRISCILLA WILLIAMS,
Plaintiff,
v.
CIRCLE K STORES, INC.,
Defendant.

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CASE NO. 2:17-CV-531-SMD

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On January 24, 2018, Plaintiff filed a Complaint (Doc. 1-1) in state court bringing
claims of negligence, wantonness, and negligent/wanton supervision, hiring, and retention
against Defendant. Id. at 4-5. Plaintiff’s claims arise from an incident at one of Defendant’s
convenience stores where an unidentified individual installed a hidden camera in the women’s
restroom and Plaintiff discovered the camera while using that restroom. Id. at 3-4. Plaintiff
argues that Defendants breached their duty to her to maintain the premises in a reasonably safe
condition and to protect her from harm. Id. at 4. On August 7, 2017, Defendant removed
(Doc. 1) Plaintiff’s Complaint to this Court based on diversity jurisdiction. See 28 U.S.C. §§
1332, 1446. The parties have consented (Docs. 9, 10) to jurisdiction by a United States
Magistrate Judge.
On March 4, 2019, Defendant filed a Motion for Summary Judgment. (Doc. 26).
Plaintiff filed a Response (Doc. 33) and Defendant Replied (Doc. 34) arguing that Plaintiff
failed to show that Defendant owed Plaintiff a duty to protect her from the criminal acts of a
third-party as required by Alabama negligence law. Id. at 10; see Saccuzzo v. Krystal Co., 646

So. 2d 595, 596 (Ala. 1994). In her Response (Doc. 33) to Defendant’s Motion, Plaintiff
argues that, because she had a “special relationship” with Defendant, she falls within an
exception to the general rule that a person has no duty to protect another from criminal acts of
a third person. Id. at 8-9; (citing Saccuzzo, 646 So. 2d at 596). Specifically, Plaintiff argues
that she had a special relationship with Defendant because she was in a “unique and vulnerable
relationship” with Defendant when she used its bathroom and because Defendant had “notice
of the propensity of crime to happen in the area. . . .” Id. In its Reply (Doc. 34) to Plaintiff’s
Response, Defendant argues that it did not possess actual or constructive notice of any danger
to Plaintiff because the particular criminal activity that formed the basis of Plaintiff’s
Complaint was unforeseeable. Id. at 5 (citing New Addition Club, Inc. v. Vaughn, 903 So. 2d
68, 76 (Ala. 2004)). For the reasons that follow, the undersigned concludes that Defendant’s
Motion for Summary Judgment is due to be granted.
II. UNDISPUTED FACTS 1
On February 3, 2017, Plaintiff and her family were traveling from Birmingham,
Alabama to Dothan, Alabama. During the trip, Plaintiff began to feel sick, so the family
stopped at Defendant’s store on Vaughn Road in Montgomery, Alabama in order for Plaintiff
to use Defendant’s restroom. (Doc. 33-1) at 27:1-14. When Plaintiff entered the store, she
proceeded directly to the women’s restroom. Id. at 29:7-9. While Plaintiff was using the toilet
in the women’s restroom, she looked towards the sink and noticed something sticking up from
a wrap on the plumbing underneath the sink. Id. at 27:7-15. Plaintiff reached out and grabbed

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In making its determination on summary judgment, the Court must view all evidence and any factual inferences in
the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). When the evidence is in conflict, “the evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

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the object, which she immediately recognized as a camera. Id. at 29:16-21. Plaintiff tore the
lens off of the camera, threw all pieces of the device in the trash can, and exited the restroom.
Id. at 29:18-21.
Plaintiff reported her discovery to the employee on duty, who then called the store
manager and notified her of the situation. Id. at 30:6-19; (Doc. 33-3) at 9:9-12. The store
manager was off shift at the time of the incident, but returned to the store after receiving the
call. (Doc. 33-3) at 44:4-16; (Doc. 33-4) at ¶¶ 4-6. The store manager then called her
supervisor and the police. (Doc. 33-4) at ¶¶ 8-9. A subsequent investigation revealed
surveillance footage of an African-American male entering the women’s restroom about an
hour prior to Plaintiff using the restroom. See (Doc. 33) at 5; (Doc. 27) at 7-8.
Prior to this incident, the only recent, known criminal activity that occurred inside the
subject store involved a non-violent theft from the store’s office in December of 2015. (Doc.
27-3) at 25:11-18; (Doc. 27-4) at ¶19; (Doc. 27-5) at 86:20-87:4. Additionally, prior to the
subject incident, there was a shooting on nearby Vaughn Road, and a stray bullet from that
shooting struck the store’s front windows. (Doc. 27-3) at 25:11-26:1.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 requires that summary judgment be granted “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 moving party bears ‘the initial
responsibility of informing the . . . court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.

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2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations
omitted)). Where the moving party makes such a showing, the burden shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a
genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986). The applicable substantive law identifies which facts are material. Id. at 248. A fact
is not material if a dispute over that fact will not affect the outcome of the suit under the
governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Id. at 249-50.
In resolving a motion for summary judgment, the court must view all evidence and
draw all reasonable inferences in the light most favorable to the non-moving party. Patton v.
Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to
draw those inferences that are reasonable. “Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (internal citations omitted); see also Matsushita, 475 U.S. at 586 (once the moving
party has met its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).

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IV. DISCUSSION
A. Plaintiff’s Argument
Plaintiff asserts claims of negligence and wantonness 2 against Defendant and avers that
Defendant breached its duty to protect her from harm under three alternative theories of
liability. See generally (Doc. 33).
First, Plaintiff argues that Defendant had a duty to protect her from the criminal acts of
third parties based on her “special relationship” with Defendant. Id. at 8-9. Citing an exception
to “[t]he general rule . . . that ‘[i]t is difficult to impose liability on one person for an intentional
criminal act committed by a third person,” Plaintiff asserts that a special relationship existed
because: 1) she was in a “vulnerable” state; and 2) Defendant had “notice of the propensity of
crime to happen in the area and at this specific premises.” Id. at 9-10 (citing Young v.
Huntsville Hosp., 595 So. 2d 1386, 1389 (Ala. 1992).
As to her “vulnerable” state, Plaintiff argues that gas stations such as Defendant’s
“advertise solely on the cleanliness of their restrooms” and, by the nature of traveling,
individuals such as Plaintiff “are stuck in a position where they must use [those] facilities. . .
.” Id. at 9. Plaintiff asserts that guests entering the facilities of establishments such as
Defendant’s engage in a “unique and vulnerable relationship” “as one who is incapacitated
while . . . completely exposed and trusting of the Defendant’s facilities. . . .” Id. (citing Young,
595 So. 2d at 1389 (“[W]e can hardly imagine a situation in which a person is more dependent

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Plaintiff also brought claims of negligent/wanton supervision, hiring, and retention. (Doc. 1-1) at 4-5. However,
Plaintiff did not address these claims in her Response (Doc. 33) to Defendant’s summary judgment motion. “The
parties bear the burden of formulating arguments before the district court, and ‘grounds alleged in the complaint but
not relied upon in summary judgment are deemed abandoned. . . .’” (Brackin v. Anson, 585 F. App’x 991, 994 (11th
Cir. 2014) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)). Accordingly, the
undersigned will not address Plaintiff’s claims of negligent/wanton supervision, hiring, and retention, will deem them
abandoned, and will grant judgment in Defendant’s favor as to those claims.

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on another for basic bodily protection and care than the situation of an anesthetized or sedated
patient.”)).
As to Defendant’s awareness of crime in the area, Plaintiff contends that Defendant had
notice of “the propensity of crime to happen in the area and at this specific premises.” Id. at
10. Plaintiff avers that the previous robbery and the stray bullet striking the store provided
actual notice, while employee training on “how to safely operate the station at night to avoid
crime” is evidence that Defendant was aware that the store was “open to situations that will
injure licensees and invitees alike” and, therefore, Defendant had a duty to “take appropriate
action” to protect its licensees and invitees. Id.
Second, Plaintiff argues that, even if no special relationship existed with Defendant,
Defendant still had a duty under general premises liability standards to warn her, as an invitee,
of hidden defects and dangers known to the landowner but hidden or unknown to the invitee.
Id. at 11 (citing Hambright v. First Baptist Church-Eastwood, 638 So. 2d 865, 868 (Ala.
1994)). Generally, “[a] person who enters the land with the landowner’s consent to bestow
some material or commercial benefit upon the landowner is deemed an invitee.” Hambright,
638 So. 2d at 868 (citing Lloyd v. Joseph, 496 So. 2d 771 (Ala.1986)). Plaintiff avers that,
although she did not go to Defendant’s store with the intention of making a purchase, she
should still be considered an invitee because “she is exactly the type of person that the
Defendant targets for their customer base and usage.” Id. Indeed, Plaintiff asserts that “[t]he
allure of a clean restroom is part of the gas station marketing plan,” and part of “the long game”
is that someone who uses a restroom will be “lured into making a purchase” while there. Id.
Third, Plaintiff argues that, even if she was considered a licensee rather than an invitee,
Defendant still breached its duty to her because it wantonly caused her to be injured. Id. at 12.

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Generally, “a person who visits a landowner’s property with the landowner’s consent or as the
landowner’s guest but with no business purpose occupies the status of a licensee.” Hambright,
638 So. 2d at 868 (citing Copeland v. Pike Liberal Arts Sch., 553 So. 2d 100, 102 (Ala. 1989)).
A licensee is owed a duty “to abstain from willfully or wantonly injuring the licensee and to
avoid negligently injuring the licensee after the landowner discovers a danger to the licensee.”
Id. (citing Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So. 2d 199, 203 (Ala. 1992)).
Plaintiff asserts that Defendant’s conduct was wanton because it consciously chose to
understaff the premises during peak business hours and run the store with one cashier and no
manager. Id. at 12. Plaintiff avers this reckless conduct and “active negligence” created a
hidden danger which injured her. Id.
B. Defendant’s Argument
In its Reply, Defendant argues that Plaintiff has failed to meet her burden of showing
that there remain any genuine issues of material of fact. (Doc. 34) at 2. First, Defendant asserts
that Plaintiff has not presented any specific facts to show that Defendant owed Plaintiff a duty,
based on a “special relationship,” to protect her from an intentional criminal act committed by
a third party. Id. at 3. Specifically, Defendant argues that Plaintiff has failed to show she was
in a vulnerable state because she has “not offered any evidence or legal authority suggesting
that a conscious and un-sedated person’s vulnerability is at all comparable to that of an
unconscious or sedated person.” Id. at 3-4 (citing Young, 595 So. 2d at 1386). Additionally,
Defendant argues that Plaintiff cannot show that Defendant had either actual or constructive
knowledge that the particular criminal activity at issue here was a probability. Id. at 5-6 (citing
New Addition, 903 So. 2d at 73 (holding that Alabama law requires a plaintiff to show that the
criminal conduct was a probability); Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1372

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(Ala. 1986) (holding that liability will be imposed only where the defendant has specialized
knowledge that criminal activity which could endanger an invitee was a probability)).
Second, Defendant argues that Plaintiff has failed to present sufficient evidence that
she was an invitee, rather than a licensee, at the time of the incident. Id. at 6. Specifically,
Defendant avers that Plaintiff presented no evidence to support her contention that Defendant
“advertised clean restrooms as part of its marketing plan,” and that those restrooms “are
intended to confer an advertising benefit. . . .” Id. at 6-7. Defendant asserts that, because
Plaintiff went to Defendant’s store without an intent to make a purchase, she did not confer a
commercial benefit on Defendant and, therefore, was only a licensee at the time of the incident.
Id. at 6 (citing Lloyd v. Joseph, 496 So. 2d 771, 773 (Ala. 1986)). Hence, Defendant argues
that it only had a duty not to willfully or wantonly injure Plaintiff. Id. at 7-9 (“A landowner
owes a licensee the duty not to willfully or wantonly injure him or negligently injure him after
discovering his peril.”).
Third, Defendant argues that Plaintiff’s wantonness claim fails because she has not
provided evidence indicating that Defendant knew its staffing policies would likely or
probably result in the injury suffered by Plaintiff. Id. at 9 (citing Wal-Mart Stores, Inc. v.
Thompson, 726 So. 2d 651, 654 (Ala. 1998)). Defendant asserts that “the connection between
[its] policies and the possibility of injury is dubious, at best,” and Plaintiff has not adduced
evidence showing that Defendant’s conduct “rose to the level of conscious disregard required
to sustain a finding of wantonness.” Id. at 8-9.

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C. Analysis
1. Plaintiff’s Negligence Claim
a. Defendant had no duty to Plaintiff based on a special relationship.
As here, “[w]here federal jurisdiction is based on diversity of citizenship, the
substantive law of the forum state applies.” Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945
(11th Cir. 1982) (citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938)). “To establish
negligence [in Alabama], the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a
breach of that duty; (3) proximate causation; and (4) damage or injury.” Lemley v. Wilson,
178 So. 3d 834, 841 (Ala. 2015) (quoting Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994))
(internal citations omitted). “The general rule in Alabama is that ‘absent special relationships
or circumstances, a person has no duty to protect another from criminal acts of a third person.’”
Saccuzzo, 646 So. 2d at 596 (quoting Moye, 499 So. 2d at 1370). “For the ‘special relationship’
exception to apply, there must be a relationship either between the premises owner and the
third party or between the premises owner and the plaintiff.” Id. (quoting Young v. Huntsville
Hospital, 595 So.2d 1386 (Ala. 1992)).
In addition to proving the existence of a “special relationship,” Alabama law requires
a plaintiff to prove three elements to establish a duty to protect another from criminal acts of
a third person. Carroll v. Shoney’s, Inc., 775 So. 2d 753, 755 (Ala. 2000) (citing Moye, 499
So. 2d at 1371). “First, the particular criminal conduct must have been foreseeable. Second,
the defendant must have possessed ‘specialized knowledge’ of the criminal activity. Third,
the criminal conduct must have been a probability.” Id. (citing Moye, 499 So. 2d at 1372).
These three elements are interrelated. Conduct is foreseeable if the Defendant “possessed
actual or constructive knowledge that criminal activity which could endanger an invitee was a

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probability.” Moye, 499 So. 2d at 1731. Conduct is a probability if the Defendant has reason
to know that it is “occurring or about to occur on the premises. . . .” Henley v. Pizitz Realty
Co., 456 So. 2d 272, 277 (Ala. 1984). Specialized knowledge exists if a Defendant has “reason
to know from [its] knowledge of prior criminal activity [on its premises], that there was a
likelihood of criminal conduct on the part of a third person that would endanger [an invitee].”
Stripling v. Armbrester, 451 So. 2d 789, 791 (Ala. 1984).
Here, Plaintiff has failed to show, by substantial evidence, that a “special relationship”
existed between her and Defendant such that the exception to the general rule of third-party
liability would apply. Plaintiff argues that she was in a “unique and vulnerable relationship”
with Defendant similar to “one who is incapacitated” because gas stations such as Defendant’s
“advertise solely on the cleanliness of their restrooms,” and travelers such as Plaintiff “are
stuck in a position where they must use [those] facilities. . . .” (Doc. 33) at 9. However, as
Defendant points out, Plaintiff offered no evidence that Defendant advertised based on the
cleanliness of its restrooms, that travelers must use only those facilities, or that using the
restroom creates a vulnerability similar to incapacity. (Doc. 34) at 6-7.
In Young, upon which Plaintiff relies, the Alabama Supreme Court held that a special
relationship existed between a hospital and a sedated patient because “an anesthetized patient
is uniquely dependent upon the hospital for protection.” Saccuzzo, 646 So. 2d at 597 (citing
Young, 595 So. 2d at 1389). Plaintiff argues that using the restroom is “the most private and
intimate of things that people do” and that, while using a public restroom, a traveler is
“completely exposed” and “put into a position where they must trust these places. . . .” (Doc.
33) at 9. However, Plaintiff cites no authority supporting her contention that using the toilet
is equivalent to being anesthetized, and the undersigned does not find her argument persuasive.

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Unlike the sedated patient in Young, Plaintiff was conscious, alert, and able to protect herself.
Young, 595 So. 2d at 1388. Indeed, when Plaintiff noticed the camera in the restroom, she
“tore the lens of the camera, threw all pieces of the device in the trash can, and exited the
restroom.” (Doc. 33) at 3. Therefore, the undersigned agrees with Defendant that Plaintiff has
failed to establish that a “special relationship” existed between her and Defendant.
Further, Plaintiff has not established that the particular criminal conduct at issue was
either foreseeable by Defendant, a probability (i.e. likely to occur), or that Defendant had
“specialized knowledge” of the particular criminal conduct. Plaintiff argues that a previous
robbery and a stray bullet striking the store provided notice to Defendant of criminal activity
in the area. 3 (Doc. 33) at 10. However, “the ‘particular criminal activity, not just any criminal
activity,’ must be foreseeable.” New Addition, 903 So. 2d at 76 (citing Ex parte So. Baldwin
Reg’l Med. Ctr., 785 So. 2d 368, 370 (Ala. 2000)). Plaintiff does not offer any evidence that
Defendant was aware of any prior incidents—either at its store or nearby stores—of individuals
surreptitiously installing cameras in bathrooms. Therefore, the undersigned cannot conclude
that the particular criminal activity that Plaintiff complains of was foreseeable by Defendant.
Nor can the undersigned conclude that Defendant had specialized knowledge that criminal
activity of the same nature that harmed Plaintiff was a probability. See Ortell, 477 So. 2d at
300; Stripling, 451 So. 2d at 791. Thus, the undersigned finds that Plaintiff has failed to show

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“The number and frequency of prior criminal acts at the place where the injury occurred are used in determining
whether a particular criminal act was reasonably foreseeable.” Moye, 499 So. 2d at 1372. Similarly, prior criminal
activity is also used to determine whether a particular criminal act is a probability or whether a person had specialized
knowledge. See Ortell v. Spencer Cos., 477 So. 2d 299, 300 (Ala. 1985); Stripling, 451 So. 2d at 791. Plaintiff’s
reference to a single robbery and a nearby shooting fall far short of the “difficult” burden of proof established by the
Alabama Supreme Court which requires “a substantial number of prior criminal incidents.” See, e.g., Baptist Mem’l
Hosp. v. Gosa, 686 So. 2d 1147 (Ala. 1996) (finding 57 incidents in 5 years insufficient to give rise to a duty); Ortell,
477 So. 2d at 300 (finding 96 crimes in 3 years insufficient to give rise to a duty); Henley, 456 So. 2d at 277 (finding
17 crimes in 10 years insufficient to give rise to a duty).

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that Defendant had the requisite notice of criminal activity necessary to give rise to a “special
relationship” between her and Defendant.
b. Defendant had no duty to Plaintiff as an invitee.
Plaintiff argues, in the alternative, that, even if no special relationship existed,
Defendant still had a duty warn her, as an invitee, of hidden dangers. (Doc. 33) at 9. Plaintiff
asserts that, although she did not go to Defendant’s store with the intention of making a
purchase, she was still an invitee because “she is exactly the type of person that the Defendant
targets for their customer base and usage.” (Doc. 33) at 11. Plaintiff asserts that “[t]he allure
of a clean restroom is part of the gas station marketing plan,” and part of Defendant’s “the long
game” is that someone who uses a restroom will be “lured into making a purchase” while there.
Id.
A court “looks to the status of the injured party in relation to the defendant’s land or
premises in deciding whether the defendant should be held liable for an injury to a visitor upon
the land or premises.” Hambright, 638 So. 2d at 868 (citing Tolbert v. Gulsby, 333 So. 2d 129,
131 (Ala. 1976)). “A person who enters the land with the landowner’s consent to bestow some
material or commercial benefit upon the landowner is deemed an invitee.” Id. (citing Lloyd,
496 So. 2d at 773). “In contrast, a person who visits a landowner’s property with the
landowner’s consent or as the landowner’s guest but with no business purpose occupies the
status of a licensee.” Id. (citing Copeland, 553 So. 2d at 102). “In order for [a invitee]
relationship to arise[,] the person entering onto the premises . . . must have done so for purposes
which would have benefited the owner or occupant of the premises . . . or have been of mutual
benefit to the invitee and the invitor.” Autry v. Roebuck Park Baptist Church, 229 So. 2d 469,
473 (Ala. 1969).

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Here, Plaintiff presented no evidence to support her contention that Defendant
advertised clean restrooms as part of its marketing plan and that those restrooms exist to confer
any material or commercial benefit upon Defendant.

Plaintiff admits that she went to

Defendant’s store only to use the restroom with no intent to make a purchase. (Doc. 27) at 23.
Consequently, Plaintiff did not actually confer a commercial benefit on Defendant, but, rather,
“enjoyed unrecompensed hospitality” by Defendant. See Hambright, 638 So. 2d at 868.
Therefore, the undersigned concludes that Plaintiff was only a licensee at the time of the
incident. 4
Consequently, because Plaintiff was only a licensee, Defendant only had a duty, under
Alabama law, to “abstain from willfully or wantonly injuring the licensee and to avoid
negligently injuring the licensee after the landowner discovers a danger to the licensee.”
Hambright, 638 So. 2d at 868 (citing Graveman, 607 So. 2d at 203). Accordingly, the
undersigned turns next to Plaintiff’s wantonness claim.
2. Plaintiff’s Wantonness claim.
“To establish wantonness, the plaintiff must prove that the defendant, with reckless
indifference to the consequences, consciously and intentionally did some wrongful act or
omitted some known duty.” Lemley, 178 So. 3d at 841-42 (quoting Martin, 643 So. 2d at 567).
To be actionable, the act or omission must occur “while knowing of the existing conditions

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Even assuming, arguendo, that Plaintiff could prove that she was an invitee in Defendant’s store, she has still failed
to show that Defendant breached its duty to her as an invitee because, as discussed previously, she has not
demonstrated that the particular criminal activity at issue was foreseeable. See supra note 3 and accompanying text.
In Alabama, the law imposes a duty to “warn an invitee of danger, of which he knows, or ought to know, and of which
the invitee is ignorant. . . .” Quillen, 388 So. 2d at 989. A duty may also be imposed “in the exceptional case where
the storeowner possesses actual or constructive knowledge that criminal activity which could endanger an invitee is a
probability.” Lloyd, 496 So. 2d at 773 (citing Henley, 456 So. 2d at 277); see also Moye, 499 So. 2d at 1371-72
(holding that the particular criminal conduct at issue must be foreseeable).

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and being conscious that, from doing or omitting to do an act, injury will likely or probably
result.” Wal-Mart, 726 So. 2d at 654 (quoting Bozeman v. Cent. Bank of the South, 646 So.
2d 601 (Ala. 1994)).
Here, Plaintiff contends that Defendant wantonly caused her injury by consciously and
recklessly deciding to understaff the premises during peak business hours and run the store
with one cashier and no manager. (Doc. 33) at 12. However, Plaintiff has failed to provide
any evidence that running a convenience store with one cashier is reckless or that Defendant
knew, or should have known, its staffing policies would likely or probably result in the
particular injury suffered by Plaintiff. To support a finding of wantonness, a plaintiff must
present sufficient evidence to show that the defendant had “information from which they could
have known that an [injury] of the kind which occurred in this case was likely to happen.”
Wal-Mart, 726 So. 2d at 654. Plaintiff has failed to adduce such knowledge by Defendant and,
hence, the undersigned concludes that Plaintiff has failed to demonstrate that Defendant’s
conduct was wanton.
V. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s Motion for Summary Judgment (Doc. 26) is GRANTED
as to all claims and that Plaintiff’s Complaint (Doc. 1-1) is DISMISSED. A separate judgment
shall enter.
Done, this 5th day of August 2019.

/s/ Stephen M. Doyle
UNITED STATES MAGISTRATE JUDGE

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