Ketre v. Auburn Aquatics, Inc.

Filing 87

MEMORANDUM OPINION AND ORDER as follows: (1) defendant Homer Kelly's 41 Motion for Summary Judgment and Designation of Evidence is denied as to the negligence claim and granted as to the wantonness claim which is dismissed with prejudice; (2) the 43 motion for summary judgment filed by defendant Auburn Aquatics Swim Program is denied as to the negligence claim and granted as to the wantonness claim which is dismissed with prejudice; (3) all claims against fictitious defendants are dismissed. Signed by Hon. Chief Judge Mark E. Fuller on 3/16/09. (Attachments: # 1 Civil Appeals Checklist)(sl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION G E R T R U D E KETRE, P l a in tif f , v. A U B U R N AQUATICS SWIM P R O G R A M ., et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 3:07-cv-536-MEF

(W O - DO NOT PUBLISH)

M E M O R A N D U M OPINION AND ORDER
P lain tiff Gertrude Ketre ("Ketre") brings this action against Defendant Auburn A q u a tic s Swim Program ("AASP") and Homer Kelly ("Kelly") alleging she suffered injuries to her person as a result of their conduct. This cause is before two motions for summary ju d g m e n t, one filed by each defendant. The Court has reviewed the submissions of the p a rtie s and finds that, for the reasons set forth below, the motions are due to be GRANTED in part and DENIED in part. J U R IS D IC T I O N AND VENUE K e tr e , a Georgia resident, filed suit against AASP and Kelly, both Alabama residents, in v o k in g this Court's subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). The parties d o not contest personal jurisdiction or venue, and the Court finds adequate allegations in s u p p o rt of both.

S T A N D A R D OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always bears th e initial responsibility of informing the district court of the basis for its motion, and id e n tif yin g those portions of `the pleadings, depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any,' which it believes demonstrate the a b se n c e of a genuine issue of material fact." Id. at 323. The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the nonm o v in g party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u i n e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of

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th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the n o n m o v in g party has responded to the motion for summary judgment, the court must grant su m m a ry judgment if there is no genuine issue of material fact and the moving party is e n title d to judgment as a matter of law. See Fed. R. Civ. P. 56(c). FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following facts. On February 3, 2006, Ketre came to the James E. Martin Aquatics Center to attend a swim meet as a spectator. At this time Ketre, was 81 years old, in good physical shape, and s o m e o n e who engaged in regular exercise including walking on a treadmill. Ketre arrived s e v e ra l hours after the swim meet had begun. She entered the building on the ground floor a n d proceeded to stairs located in the building in order to access the spectator seating on the s e c o n d level. Ketre carried only a purse. As she ascended the stairs to a landing area, she trip p e d over a blue mat which was hanging over the steps. Her foot hung in it which caused h er to fall. This fall caused Ketre to suffer a fractured hip which required surgical repair. K e tre did not see that the blue mat was hanging over the steps before she tripped. The blue mat had been placed on the stair landing by an employee of Auburn

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U n iv e rs ity not made a party to this action.1 Kelly, an Auburn employee, admits that his job d u tie s included floor maintenance and that if he saw that a mat needed straightening or was o u t of place he would fix it. He admits that his job responsibilities included making sure that th e floors were clean and preventing accidents caused by the condition of the floors. Kelly w a s present on the day Ketre fell. He knew that the mat on the landing was not secured to th e ground or to the wall in any way. AASP, which regularly used the James E. Martin Aquatics Center as its base of o p e ra tio n s , is a member of the Southeastern Swimming Local Swim Committee. As such, it must comply with the rules of the USA Swimming organization. One of those rules r e q u i re s that when AASP is hosting a meet, as it was on the day of Ketre's injury, it is re sp o n s ib le for removing or marking hazards in locker rooms, on the deck, or in areas used b y coaches, swimmers, spectators, or officials. DISCUSSION K e tr e 's Complaint seeks damages for alleged negligence (Count I) and wantonness ( C o u n t II). While the Complaint purports to include a Count III against fictitious defendants, s u c h a practice is not allowed under the Federal Rules of Civil Procedure. The Court finds th a t there is no fictitious party practice in federal courts. See, e.g., Fed. R. Civ. P. 10(a); New

Auburn University owns, operates, and staffs the James E. Martin Aquatics Center. A A S P is an amateur swim club based in Auburn, Alabama. Head coach of the AASP m a in tain s an office at the James E. Martin Aquatics Center and the club hosts swim meets th e re . The club holds all of its practices there and lists its address as being at that location. 4

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v . Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997); Harris v. Palm H a r b o r Homes, Inc., 198 F. Supp. 2d 1303, 1304 n.6 (M.D. Ala. 2002); Edwards v. Alabama D e p 't of Corr., 81 F. Supp. 2d 1242, 1257 (M.D. Ala. 2000). For this reason, any claims in th is action against fictitious parties are due to be DISMISSED. U n d e r Alabama law,2 the elements of negligence in a premises liability case "are the s a m e as those in any tort litigation: duty, breach of duty, cause-in-fact, proximate or legal c a u se , and damages." Sessions v. Nonnenmann, 842 So. 2d 649, 651(Ala. 2002) (citations a n d quotations omitted). A person who provides commercial or material benefit to the la n d o w n e r while on the premises is considered an invitee.3 Ex parte Mountain Top Indoor F le a Market, Inc., 699 So. 2d 158, 161 (Ala. 1997). There are two lines of business invitee cases under Alabama law in v o lv in g falls. Nelson v. Delchamps, Inc., 699 So. 2d 1259, 1 2 6 1 (Ala. Civ. App. 1997). Under one line of cases, there is a s u b s ta n c e which the plaintiff slips on and which the plaintiff c o n te n d s the business negligently failed to clean up. Id. Under th e other line, the plaintiff alleges that the business negligently c re a te d a hazardous condition that caused injury to the plaintiff. Id . When the defendant affirmatively creates the condition, the p la in t if f need not introduce evidence of actual or constructive k n o w le d g e because notice is presumed. Id. Blizzard v. Food Giant Supermarkets, Inc., 196 F. Supp. 2d 1202, 1205 (M.D. Ala. 2002). W h ile this case does not provide a perfect fit with either category because the defendants

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The substantive law of Alabama governs this lawsuit.

T h e three classifications of persons coming onto land are invitees, trespassers, and lic e n s e e s . Mountain Top, 699 So. 2d at 161. It is undisputed that Ketre was an invitee. 5

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n a m e d did not create the condition by placing the mat, a reasonable jury could find that they d id create the condition which caused the injury by failing to secure the mat so it could not m o v e or hang over the step. The alleged defect here was part of the premises so once Ketre m a k e s a prima facie showing that it caused her injury, which she has done, then the question o f whether either defendant had actual or constructive notice will go to the jury, whether or n o t the plaintiff makes a prima facies showing that the defendants had or should have had n o tic e of the defect at the time of the accident. Id. In determining whether defendants are entitled to judgment as a matter of law, the C o u rt is mindful that under Alabama law, "summary judgment is rarely appropriate in n e g lig e n c e and personal injury cases," Mountain Top, 699 So. 2d at 161, and "the question o f whether a danger is open and obvious is generally one of fact." Howard v. Andy's Store fo r Men, 757 So. 2d 1208, 1211 (Ala. Civ. App. 2000) (quotation and citation omitted). Because of the procedural posture of this case, the Court must view the evidence and th e reasonable inferences to be drawn from it in the light most favorable to Ketre. She has o f f ere d sworn testimony that she fell after her foot became trapped in the mat which was o v erh an g in g the stair step and that she did not see the mat before it tripped her. This Court f in d s that when the evidence and the reasonable inferences to be drawn from that evidence a re viewed in the light most favorable to Ketre, there is sufficient evidence from which a re a so n a b le jury could find that there was a defective condition which caused Ketre's fall, n a m e ly, a mat overhanging the stair step. Accordingly, to the extent that defendants contend

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th e y are entitled to summary judgment as to the negligence claims, their motions are due to b e DENIED. Defendants have also moved for summary judgment on Ketre's wantonness claims. " W a n to n n e s s " has been defined as "the doing of some act or the omission to do some act w ith reckless indifference that such act or omission will likely or probably result in injury." IM A C Energy, Inc. v. Tittle, 590 So. 2d 163, 169 (Ala. 1991); Ala. Code § 6-112 0 ( b )( 3 )( 1 9 9 3 ) . While one need not prove intentional conduct to prove wantonness,

w a n to n n e ss requires evidence of a reckless or conscious disregard of the rights and safety of o th e rs . See, e.g., Blizzard, 196 F. Supp. 2d at 1208-09; Wal-Mart Stores, Inc. v. Thompson, 7 2 6 So. 2d 651, 654 (Ala. 1998). Wantonness may arise [when one has] knowledge that persons, though not s e e n , are likely to be in a position of danger, and with conscious disregard of k n o w n conditions of danger and in violation of law brings on d is a ste r....W a n to n n e ss may arise after discovery of actual peril, by conscious f a ilu re to use preventive means at hand.... Knowledge need not be shown by d i re c t proof, but may be shown by adducing facts from which knowledge is a le g itim a te inference. B liz z a r d , 196 F. Supp. 2d at 1209 (citing Smith v. Bradford, 512 So. 2d 50, 52 (Ala. 1987)). W h en the evidence before this Court is viewed in the light most favorable to Ketre, the Court m u st conclude that there is insufficient evidence that either defendant was recklessly in d if f ere n t to or consciously disregarding the rights and safety of others. Summary judgment is therefore due to be GRANTED as to the wantonness claims.

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C O N C L U SIO N F o r the reasons stated above, it is hereby ORDERED as follows: (1 ) Defendant Homer Kelly's Motion for Summary Judgment and Designation of E v id e n c e (Doc. # 41) is DENIED as to the negligence claim and GRANTED as to the w a n to n n e s s claim which is DISMISSED WITH PREJUDICE. (2 ) The Motion for Summary Judgment (Doc. # 43) filed on September 19, 2008 by D e f en d a n t Auburn Aquatics Swim Program is DENIED as to the negligence claim and G R A N T E D as to the wantonness claim which is DISMISSED WITH PREJUDICE. (3 ) All claims against fictitious defendants are DISMISSED. D O N E this the 16th day of March, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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