Taylor et al v. Pezold Management Associates, Inc. et al

Filing 29

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Pezold Management Associates, Inc.'s 17 Motion for Summary Judgment is GRANTED as to the Taylors' claims for wantonly failing to warn, wantonly failing to properly inspect, repair , clean and/or maintain, and wantonly allowing a loose bolt to protrude into the Play Place slide; 2) Pezold Management Associates, Inc.'s 17 Motion for Summary Judgment is GRANTED as to the claims brought on behalf of the Taylors individually ; 3) Pezold Management Associates, Inc.'s 17 Motion for Summary Judgment is DENIED in all other respects; 4) Sani-Play, Inc.'s 15 Motion for Summary Judgment is GRANTED. Signed by Chief Judge William Keith Watkins on 3/3/2015. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
KRISTI TAYLOR and HEATH
TAYLOR, individually, and as next
friends of T.T., a minor,
Plaintiffs,
v.
PEZOLD MANAGEMENT
ASSOCIATES, INC., d/b/a
MCDONALD’S # 31329, and
SANI-PLAY, INC.,
Defendants.

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CASE NO. 3:14-CV-188-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiffs Kristi and Heath Taylor filed suit individually and on behalf of their
minor son, T.T., in the Circuit Court of Russell County, Alabama, on March 13,
2013.

Plaintiffs allege that Defendants Pezold Management Associates, Inc.

(“Pezold”) and Sani-Play, Inc. (“Sani-Play”) failed to warn of unsafe conditions and
negligently and/or wantonly inspected and maintained the McDonald’s Play Place
located in Phenix City, Alabama, and that T.T. was injured as a result. After
removing the case to this court, Defendants filed motions for summary judgment
(Docs. # 15 & 17), which Plaintiffs opposed (Docs. # 19 & 20). After careful review
of the arguments, evidence, and relevant law, the court finds that Sani-Play’s motion

for summary judgment is due to be granted, while Pezold’s motion for summary
judgment is due to be 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 uncontested.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and [that it] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant. JeanBaptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying
the portions of the record illustrating the absence of a genuine dispute of material
fact. Id.; Fed. R. Civ. P. 56(c)(1)(A). Alternatively, the movant can assert, without
citing to the record, that the nonmoving party “cannot produce admissible evidence
to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the movant meets its
burden, the burden shifts to the nonmoving party to establish – with evidence beyond
the pleadings – that a genuine dispute material to each of its claims for relief exists.
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Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the
nonmoving party produces evidence allowing a reasonable fact finder to return a
verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279
(11th Cir. 2001).
III. BACKGROUND
The evidence, construed in the light most favorable to Plaintiffs, establishes
the following facts.
On March 16, 2011, Mr. Taylor and his son T.T. went to the Phenix City
McDonald’s for dinner. They chose a table inside the main dining area near the
entrance to the restaurant’s attached Play Place. After finishing his meal, T.T. took
his shoes off and joined the ten or so other children playing in and around the indoor
Play Place.
Mr. Taylor continued to eat his meal and check email while his son played.
After several minutes, Mr. Taylor looked up to the sound of his son screaming. Mr.
Taylor then saw his son exit the Play Place’s tubular slide on his stomach; he was
still screaming. Immediately upon exiting the slide, T.T. ran over to his father
complaining that his “pee-pee hurt.” (Compl. at 1.)
Mr. Taylor examined the area where T.T. said he was hurting and discovered
that his son’s skin had been ripped just below the penis. Mr. Taylor noted that his
son’s penis “looked like” it was about to “fall off.” (Compl. at 1.) After seeing the
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injury, Mr. Taylor carefully picked up his son and rushed him to the hospital. The
emergency room doctor gave T.T. localized anesthesia and then used glue to piece
T.T.’s skin back together.
Because T.T. was four years old and only able to indicate that he had been
hurt on the slide, Mr. Taylor returned to the restaurant to inspect the Play Place and
try to determine exactly how T.T. had been injured. Mr. Taylor, the Sherriff of
Russell County, Alabama, at the time of the incident, solicited the help of a Russell
County Sherriff’s Department investigator and some officers from the Phenix City
Police Department to aid in the inspection.
Upon arriving back at the McDonald’s, Mr. Taylor notified the manager-onduty, Tony Williams, of his son’s earlier injury and sought his assistance in clearing
and inspecting the Play Place. Mr. Williams was not aware of any problems with
the Play Place and informed Mr. Taylor that no other customers had complained of
or been injured on the slide prior to T.T. Mr. Williams also told Mr. Taylor that his
employees inspected the Play Place on a daily basis, including the present day and
had found no problems or concerns. Lastly, Mr. Williams showed Mr. Taylor a
written report produced by an outside contractor of Pezold’s, which showed that the
Play Place had been recently inspected without issue.1

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Pezold contracted with two different companies for the maintenance and sanitization of
the Play Place – EcoSure and Sani-Play. EcoSure was tasked with performing regular Play Place
safety evaluations, while Sani-Play visited the McDonald’s to perform regular Play Place
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During the inspection of the Play Place, Mr. Taylor – and those assisting on
his behalf – discovered that a bolt on the slide had come out of place. They found
that the bolt’s nut was missing, which allowed the bolt to move upward into the slide.
Mr. Taylor estimated that the bolt protruded into the interior of the slide
approximately a quarter of an inch. Other than the missing nut and protruding bolt,
the inspectors did not find any problems with the Play Place.
After the injury, T.T. complained of pain for several months. His parents also
noticed that he was prone to subconsciously guarding his penis when he was out in
public for the year following the accident. At present, the Taylors are unsure of the
lasting effects of T.T.’s injury. T.T.’s doctors have warned that the main concern
will be the amount of scar tissue that may build up around T.T.’s penis. The doctors
have explained to them that the full extent of the damage will not be fully apparent
until T.T. reaches puberty.
IV. DISCUSSION
A.

Pezold’s Motion for Summary Judgment
Pezold asserts that it is entitled to summary judgment as to all of the Taylors’

claims for two reasons: (1) that Plaintiffs’ theory of T.T.’s injury is too speculative,

cleanings. A dated Play Place Evaluation form indicates that an EcoSure employee inspected the
Play Place March 6, 2011, just ten days before T.T.’s injury. (Doc. # 16-3.) Similarly, records
indicate that Sani-Play provide Play Place cleaning services on March 11, 2011, just five days
prior to T.T.’s injury. (Doc. # 20, at 3.)
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and (2) that Pezold had no actual or constructive knowledge of the alleged defect.
Pezold also specifically challenges the Taylors’ wantonness claim, asserting that
they failed to produce any evidence showing that Pezold committed any conscious
or intentional act, knowing that injury was likely to occur. Finally, Pezold argues
that summary judgment is appropriate on all claims asserted by the Taylors
individually because they also asserted all claims on behalf of T.T.
1.

Whether the Taylors’ Claims Are Too Speculative

For plaintiffs to “establish negligence in a premises-liability case under
Alabama law, [they] must establish ‘duty, breach of duty, cause in fact, proximate
or legal cause, and damages.’” Giles v. Winn-Dixie Montgomery, LLC, 574 F. App’x
892, 894 (11th Cir. 2014) (quoting Ex parte Harold L. Martin Distrib. Co., 769 So.
2d 313, 314 (Ala. 2000)). “The duty owed to an invitee by [a business] is the
exercise of ordinary and reasonable care to keep the premises in a reasonably safe
condition.” Lilya v. Greater Gulf State Fair, Inc., 855 So. 2d 1049, 1054 (Ala. 2003)
(internal quotation marks, brackets, and citations omitted).

As the Alabama

Supreme Court has repeatedly noted, “‘The storekeeper is not an insurer of the
customers’ safety but is liable for injury only in the event he negligently fails to use
reasonable care in maintaining his premises in a reasonably safe condition.’”
Dolgencorp, Inc. v. Hall, 890 So. 2d 98, 101 (Ala. 2003) (quoting Cash v. WinnDixie of Montgomery, Inc., 418 So. 2d 874, 876 (Ala. 1982)).
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In support of its motion for summary judgment, Pezold argues that the Taylors
have failed to raise a genuine dispute of material fact on one of the essential elements
of their claim, namely that the protruding bolt caused T.T.’s injuries. Pezold argues
that the Taylors are speculating at best when they contend that T.T. was injured as a
result of the exposed bolt. Additionally, Pezold offers other possible explanations
for T.T.’s injuries, such as an inverted pants’ zipper or the rough housing of another
child. Pezold also notes that the Taylors did not provide any expert testimony to
support their theory that the protruding bolt caused T.T’s injuries, which Pezold
argues only adds to the speculative nature of the Taylors’ causation theory.
A plaintiff’s speculation as to the cause of an accident is “insufficient evidence
to overcome a summary judgment motion.” Giles, 574 F. App’x at 894; see also Ex
parte Harold L. Martin Distrib. Co., 769 So. 3d 313, 315 (Ala. 2000). As the
Alabama Supreme Court has explained, holding defendants liable in cases of mere
speculation “would render premises owners virtual insurers of others’ safety and
would impose liability that is nearly absolute.”

Ex parte Harold L. Martin

Distributing, 769 So. 3d at 316. Accordingly, the Alabama Supreme Court upheld
the grant of summary judgment in favor of a premises owner in Ex parte Harold L.
Martin, where the plaintiff failed to submit evidence showing that the technical
deficiencies of a wheelchair ramp caused her fall. Id. at 315–16. Similarly, in
Burlington Coat Factory of Ala., LLC v. Butler, No. 2120969, 2014 WL 2619848,
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at *7 (Ala. Civ. App. June 13, 2014), an Alabama court determined that speculative
nature of the evidence required summary judgment on a plaintiff’s negligence claim
because the plaintiff failed to produce any evidence indicating that the moveable
metal brackets she alleged caused her injury were defective or not properly installed.
Id. at *7–8.
The Taylors’ claims present important differences from those Alabama cases
finding speculation on the part of plaintiffs. Specifically, the Taylors’ claims against
Pezold do not rely on mere speculation as to the cause of T.T.’s injuries, but rather
rely on evidence upon which a “reasonable inference” may be drawn that the
protruding bolt caused T.T.’s injuries. See Cook v. Wal-Mart Stores, Inc., 795 F.
Supp. 2d 1269, 1274–75 (M.D. Ala. 2011) (distinguishing mere speculation from
evidence upon which a reasonable inference may be drawn to create a genuine
dispute as to a material fact). The Taylors have put forth evidence that T.T.’s front
was injured while he was lying on his stomach inside the tubular slide and that a bolt
– which was missing a nut and no longer secured in place – protruded a quarter of
an inch from the surface of the slide. And while the Taylors did not put forth expert
testimony establishing that a bolt protruding a quarter of an inch from the surface of
a slide could cause the skin below a boy’s abdomen to tear, such a determination
would not require scientific or technical knowledge of an expert. Ultimately, the
evidence put forth by the Taylors is sufficient to establish a genuine issue of material
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fact about whether the protruding bolt caused T.T.’s injuries, making summary
judgment inappropriate.
2.

Pezold’s Knowledge of the Alleged Defect

Pezold next argues that summary judgment is warranted on the Taylors’
claims because Pezold did not have actual or constructive notice of any alleged
defect with the Play Place. Because a premises owner is not the insurer of his
invitee’s safety, it is generally the case that “an invitee must show not only that he
was injured as a result of a defective condition on the owner’s premises, but also that
the owner knew or should have known of the defective condition.” Miller ex rel.
Miller v. Liberty Park Joint Venture, LLC, 84 So. 3d 88, 91 (Ala. Civ. App. 2011)
(quoting Edwards v. Intergraph Servs. Co., 4 So. 3d 495, 502 (Ala. Civ. App. 2008)).
As the Taylors correctly highlighted, however, the requirement that a plaintiff
produce evidence showing the premises owner’s knowledge is lifted in special
circumstances. Id. (“[A] showing of actual or constructive knowledge is not required
at the summary judgment stage in some special circumstances.”).
As the Alabama Supreme Court explained in Mims v. Jack’s Restaurant, 565
So. 2d 609, 610 (Ala. 1990), when “the alleged defect is a 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, regardless of whether the plaintiff
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makes a prima facie showing that the defendant had or should have had notice of the
defect at the time of the accident.” In Mims, the plaintiff had tripped over the metal
threshold of a restaurant’s entrance, and it was discovered that screws were missing
from the threshold, allowing the metal threshold to come loose at the time of the
accident. Id. Accordingly, the Alabama Supreme Court determined that because
the threshold was part of the restaurant’s actual premises, the question of whether
the restaurant “should have known that the threshold was defective was a question
for the jury.” Id. at 611.
The protruding bolt in this case is sufficiently analogous to the loose threshold
in Mims to make summary judgment inappropriate. The Taylors have produced
evidence that the bolt was not properly secured because it no longer had a nut holding
it in place. They also showed that as a result, the bolt had come to protrude into the
interior surface of the tubular slide, producing a potentially hazardous condition
within the McDonald’s Play Place.2

Because the Play Place is part of the

McDonald’s premises, the question of whether Pezold should have known about the
protruding bolt is a question for the jury.

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Pezold asserts that the protruding bolt should not be deemed a defect for purposes of
Alabama law because there have not been any prior injuries on the slide despite it being in place
since 2005. (Doc. # 17, at 5.) This argument is without merit, however, because Pezold is not
maintaining that the bolt has protruded into the slide since its initial installation.
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3.

The Taylors’ Wantonness Claim

Pezold also specifically challenges the Taylors’ claims alleging wantonness,
arguing that there is no evidence that Pezold committed any conscious or intentional
act, knowing that injury would likely occur. The Alabama Supreme Court has
explained the difference between negligence and wantonness claims:
Wantonness is not merely a higher degree of culpability than
negligence. Negligence and wantonness, plainly and simply, are
qualitatively different tort concepts of actionable culpability. Implicit
in wanton, willful, or reckless misconduct is an acting, with knowledge
of danger, or with consciousness, that the doing or not doing of some
act will likely result in injury. . . .
Negligence is usually characterized as an inattention, thoughtlessness,
or heedlessness, a lack of due care; whereas wantonness is
characterized as an act which cannot exist without a purpose or design,
a conscious intentional act.
Ex parte Anderson, 682 So. 2d 467, 470 (Ala. 1996) (quoting McNeil v. Munson S.S.
Lines, 63 So. 992 (Ala. 1913)).
While the Taylors have presented sufficient evidence to make out a prima
facie case of negligence, they have not presented sufficient evidence to establish a
claim of wantonness on the part of Pezold. The Taylors did not produce any
evidence from which a reasonable juror could find an intentional act on the part of
Pezold or its employees, nor have the Taylors produced evidence that Pezold or its
employees acted recklessly with regard to the upkeep of the Play Place. In fact,
evidence shows that Pezold hired an independent contractor to regularly evaluate the
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condition of its Play Place and tasked the McDonald’s employees with performing
daily inspections. While failure to discover the protruding bolt despite these efforts
may constitute negligence, on this record, that failure does not establish wantonness
on the part of Pezold. Accordingly, Pezold’s motion for summary judgment on the
Taylors’ claims of wantonness is due to be granted.
4.

The Taylors’ Right to Recover Damages

Lastly, Pezold argues that it is entitled to summary judgment on all claims
asserted by the Taylors individually because they waived the right to such recovery
when they asserted claims on behalf of T.T. Alabama case law makes clear that
“when a parent, as next friend, brings an action for the entire injury or permits the
child to recover for lost wages and medical expenses[,] the parent waives his right
to maintain a separate action for these damages.” Blue Cross & Blue Shield of Ala.
v. Bolding by Bolding, 465 So. 2d 409, 412 (Ala. Civ. App. 1984). The Taylors do
not rebut this principle and have not provided any argument in opposition to Pezold’s
assertion that it is entitled to summary judgment on the claims alleged on behalf of
the Taylors individually. Additionally, the Taylors have asserted that they are no
longer making a claim for any lost wages. (Doc. # 17, Ex. D.) Accordingly, Pezold’s
motion for summary judgment on the claims brought on behalf of the Taylors
individually is due to be granted.

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B.

Sani-Play’s Motion for Summary Judgment
Sani-Play is the Florida-based company that contracted with Pezold to provide

cleaning services for the McDonald’s Play Place. An independent contractor of
Sani-Play, Bryan Watt, visited the McDonald’s on March 11, 2011 – five days before
T.T. was injured – and performed a full Play Place cleaning. At no point did SaniPlay ever contract with Pezold to perform safety inspections or repair and
maintenance visits. In fact, the record shows that Pezold hired a different company,
EcoSure, for the performance of regular Play Place safety evaluations.
In light of these facts, it is clear that the Taylors have failed to establish a prima
facie case of negligence or wantonness against Sani-Play. Because Sani-Play did
not undertake a duty to inspect the Play Place for safety and only contracted with
Pezold for cleaning services, as a matter of law Sani-Play cannot be held legally
responsible for T.T.’s injuries allegedly stemming from the protruding bolt.
Accordingly, Sani-Play is entitled to summary judgment in its favor on all of the
Taylors’ claims.
V. CONCLUSION
Based on the foregoing analysis, it is ORDERED as follows:
1.

Pezold Management Associates, Inc.’s Motion for Summary Judgment

(Doc. # 17) is GRANTED as to the Taylors’ claims for wantonly failing to warn,

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wantonly failing to properly inspect, repair, clean and/or maintain, and wantonly
allowing a loose bolt to protrude into the Play Place slide.
2.

Pezold Management Associates, Inc.’s Motion for Summary Judgment

(Doc. # 17) is GRANTED as to the claims brought on behalf of the Taylors
individually.
3.

Pezold Management Associates, Inc.’s Motion for Summary Judgment

(Doc. # 17) is DENIED in all other respects.
4.

Sani-Play, Inc.’s Motion for Summary Judgment (Doc. # 15) is

GRANTED.
DONE this 3rd day of March, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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