Perry v. Overhead Door Corporation et al

Filing 50

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/18/2012. (JLC)

FILED
2012 Sep-18 AM 11:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
ANGELA PERRY,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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) Case No.: 1:11-CV-2747-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Angela Perry (“Ms. Perry”) originated this personal injury lawsuit in

the Circuit Court of Calhoun County on July 23, 2010. (Doc. 1-1 at 1). Defendant
United States of America (the “Government”) removed the action to federal court on
August 1, 2011, when it was named in Ms. Perry’s third amended complaint. (Doc.
1 ¶ 1; id. at Ex. 1).
Pending before the court is the Government’s Motion for Summary Judgment
(Doc. 37) (the “Government’s Motion”) filed on May 2, 2012.1 The Government’s

With Ms. Perry’s consent, the court already has dismissed the other two
defendants that moved for summary judgment. (See Docs. 41, 49). Accordingly, the
Government is the sole remaining defendant.
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supporting brief and evidence were also filed on May 2, 2012. (Docs. 38, 39). Ms.
Perry opposed the Government’s Motion on May 10, 2012 (Doc. 40), and the
Government replied on June 1, 2012. (Doc. 43).
Accordingly, the Government’s Motion is now under submission, and, for the
reasons explained below, is due to be granted on immunity grounds and is otherwise
due to be denied.
II.

FACTUAL BACKGROUND2
At the time of her accident, Ms. Perry was employed by Honeywell

International (“Honeywell”), as a warehouse specialist lead at the Anniston Army
Depot (the “Depot”), a U.S. Army facility located in Calhoun County, Alabama. AF
No. 1.3 Ms. Perry was injured on August 2, 2008, when she was struck by an

Keeping in mind that when deciding a motion for summary judgment the
court must view the evidence and all factual inferences in the light most favorable to
the party opposing the motion, the court provides the following statement of facts.
See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241
(11th Cir. 2007) (observing that, in connection with summary judgment, a court must
review all facts and inferences in a light most favorable to the non-moving party).
This statement does not represent actual findings of fact. See In re Celotex Corp.,
487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement
simply to place the court’s legal analysis in the context of this particular case or
controversy.
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“AF” stands for admitted fact. These admitted facts are taken from the
Government’s narrative summary of undisputed facts contained in its brief (Doc. 38
¶¶ 1-2, 4, 7) and Ms. Perry’s response. (Doc. 42 ¶¶ 1-2, 4, 7). Many other facts are
referenced by the parties, but have not been included in this background, as they are
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overhead door (fire door) while she was passing underneath going from the Depot’s
Building 128 to Building 133. Id. At all times she was considered to be an invitee
of the Government under the laws of Alabama. Id.
The workers’ compensation insurance carried by Honeywell covered Ms.
Perry’s medical treatments for injuries to her back and right knee caused by the door
incident. AF No. 2. On July 27, 2010, pursuant to the Federal Tort Claims Act (the
“FTCA”), Ms. Perry filed an Administrative Claim in the amount of $175,000.00 with
the Government for her injuries. AF No. 4.
Ms. Perry contends that the Government negligently failed to keep the
premises, specifically the overhead door, in a reasonably safe condition, and that the
Government negligently inspected and maintained the premises where the door fell
on Ms. Perry. AF No. 7. Ms. Perry’s third amended complaint does not allege any
willful conduct on the part of the Government. (See generally Doc. 1 at Ex. 1).
III.

STANDARD
Summary judgment is proper only when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
immaterial to the court’s ruling on summary judgment.
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Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
“Once the moving party has properly supported its motion for summary
judgment, the burden shifts to the nonmoving party to ‘come forward with specific
facts showing that there is a genuine issue for trial.’” International Stamp Art, Inc.
v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Finally, “[i]f the
movant bears the burden of proof on an issue, because, as a defendant, it is asserting
an affirmative defense, it must establish that there is no genuine issue of material fact
as to any element of that defense.” International Stamp, 456 F.3d at 1274 (citing
Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).
IV.

ANALYSIS
The Government contends that the lack of actual or constructive notice to it

of the door’s defective condition precludes it from being liable to Ms. Perry. The
Government also argues that summary judgment should be granted in its favor
because the Alabama Workers’ Compensation Act (the “Act”) immunizes the
Government from the claims that Ms. Perry has asserted against it.
addresses each argument below.
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The court

A.

Lack of Notice

The Government maintains that it is entitled to summary judgment on Ms.
Perry’s negligence maintenance claim because it lacked actual or constructive notice
of the defective fire door prior to her accident on August 2, 2008. (Doc. 38 at 13).
In a negligence action asserted under the FTCA, a plaintiff, like Ms. Perry, must show
the prima facie elements of duty, breach of duty, causation, and damages. See, e.g.,
Sessions v. Nonnenmann, 842 So. 2d 649, 651 (Ala. 2002) (listing prima facie
elements of negligence); DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So. 2d
454, 460 (Ala. 2008) (same).
Regarding premises liability more specifically and the duty owed by the
Government to someone such as Ms. Perry, who both sides agree was an invitee at
the time of her accident, Alabama law provides:
A person who enters land with the landowner’s consent to bestow some
material or commercial benefit is an “invitee,” and a landowner owes an
invitee the duty to keep the premises in a reasonably safe condition and,
if the premises are unsafe, to warn of hidden defects and dangers that are
known to the landowner but that are hidden or unknown to the invitee.
Galaxy Cable, Inc. v. Davis, 58 So. 3d 93, 98 (Ala. 2010) (emphasis added); see also
Prentiss v. Evergreen Presbyterian Church, 644 So. 2d 475, 477 (Ala. 1994) (“A
landowner owes an invitee a duty to keep the premises in a reasonably safe condition
and, if the premises are unsafe, to warn the invitee of defects and dangers that are
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known to the landowner but are unknown or hidden to the invitee[.]”); Edwards v.
Intergraph Services Co., Inc., 4 So.3d 495, 502 (Ala. Civ. App. 2008) (“Generally,
an invitee must show not only that he was injured as the result of a defective
condition on the owner’s premises, but also that the owner knew or should have
known of the defective condition.”).
In support of its argument on notice, the Government points out that the record
does not show that it was actually aware of the defective fire door prior to Ms. Perry’s
injury. Ms. Perry does not dispute this fact.
The Government further contends that a reasonable inspection of the fire door
by the Depot personnel would not have disclosed the defect with the door’s brushing
and sprocket that allegedly led to Ms. Perry’s injury, and, therefore, Ms. Perry cannot
establish constructive notice either.4 Ms. Perry counters that, under Alabama law, the
issue of constructive notice should be a question for the jury to decide, because the
defective door is a part of the Depot’s facilities.
The Supreme Court of Alabama has explained in another premises liability case

More specifically, the Government contends that an inspection by Depot
personnel would not have revealed the door’s defective status, because even the
servicing contractor repairman, Mr. McCluney, did not discover the true nature of the
door’s problem with its brushing and sprocket until October 2008, after he had
repaired it from the first fall involving Ms. Perry and after the door had fallen a
second time. (Doc. 38 at 15).
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involving a malfunctioning door:
Because Peak was a business invitee at the time of the accident,
Kmart owed him “a duty to exercise reasonable care to maintain its
premises in a reasonably safe condition.” Norris v. Wal-Mart Stores,
Inc., 628 So.2d 475, 477 (Ala. 1993). The malfunctioning door in this
case was a part of the premises itself. This Court has said:
“[W]here the alleged defect is a part of the premises ..., the
question whether the defendant had actual or constructive
notice of the defect will go to the jury, regardless of
whether the plaintiff makes a prima facie showing that the
defendant had or should have had notice of the defect at the
time of the accident.”
Mims v. Jack’s Restaurant, 565 So. 2d 609, 610 (Ala. 1990).
Kmart Corp. v. Peak, 757 So. 2d 1138, 1144 (Ala. 1999) (emphasis added); see also
Edwards, 4 So. 3d at 503 (“There are exceptions to the rule that an invitee must
present substantial evidence not only that his or her injury was caused by a dangerous
or defective condition on the premises but also that the premises owner had or should
have had notice of the dangerous or defective condition.”); id. (“Those exceptions
apply-and the invitee need not make a prima facie showing that the premises owner
knew or should have known of the defective condition at the time of the invitee’s
injury-when . . . the premises owner has failed to perform a reasonable inspection or
maintenance of the premises to discover and remedy the defective condition[.]”
(citations omitted) (emphasis added)).

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In response to Ms. Perry’s opposition, the Government relies upon Walker v.
CSX Transp. Inc., 650 F.3d 1392, 1401 (11th Cir. 2011) (“Liability for Walker’s
injury, therefore, cannot be fairly traced to any negligence on Defendants’ part in
failing to annually inspect and maintain the door as required under the AAR rules and
guidelines.”). (Doc. 43 at 8). However, Walker is inapposite authority, as it arises
under Georgia law. Id. at 1393 (“This negligence suit under Georgia law stems from
an injury Roland Walker suffered as he unloaded freight from a railcar in July 2005.”)
(emphasis added).
Moreover, the Government does not cite to any Alabama premises liability
decisions that stand for a proposition similar to Walker or that have granted summary
judgment due to lack of constructive notice when the defective condition is a part of
the premises, such as is the situation with the Depot door. Accordingly, the court
rejects the Government’s notice position on summary judgment.
B.

Immunity

The Government premises its immunity defense upon §§ 25-5-11(a) and 25-553 of the Act and the district court decision of Kirby v. Tennessee Valley Authority,
877 F. Supp. 578 (N.D. Ala. 1994), aff’d, 41 F.3d 669 (11th Cir.) (appearing in

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“Table of Decisions Without Reported Opinions”).5 Section 25-5-11(a) of the Act
provides, in relevant part:
If a party, other than the employer . . . is a governmental agency
providing occupational safety and health services . . . the injured
employee, or his or her dependents in the case of death, may bring an
action against . . . the governmental agency . . . only for willful conduct
which results in or proximately causes the injury or death.
Ala. Code § 25-5-11(a) (emphasis added).
Section 25-5-53 similarly states:
The rights and remedies granted in this chapter to an employee shall
exclude all other rights and remedies of the employee, his or her
personal representative, parent, dependent, or next of kin, at common
law, by statute, or otherwise on account of injury, loss of services, or
death. . . . In addition, immunity from civil liability for all causes of
action except those based upon willful conduct shall also extend to . . .
a governmental agency providing occupational safety and health
services . . . .
Ala. Code § 25-5-53(a) (emphasis added).
Kirby was decided on a Rule 12(b)(6) basis. In that case, the primary plaintiff
in the lawsuit fell and injured himself while working on a project at the Tennessee
Valley Authority’s Browns Ferry Nuclear Plant (the “TVA”) as an employee of a
When the Eleventh Circuit affirmed Kirby, it did so under the now rescinded
Rule 36-1 of the Appellate Rules of Procedure which permitted an affirmance on
appeal without any written opinion. See 11th Cir. R. 36-1 (affirmance without
opinion) (rescinded Aug. 1, 2006). Neither side has cited to an Eleventh Circuit
published or unpublished opinion addressing this aspect of governmental agency
immunity under the Act, nor has the court been able to locate one.
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TVA contractor. Kirby, 877 F. Supp. at 578. After setting forth the “essential”
allegations of the claims, the district court in Kirby determined that they were:
[B]ased of necessity upon allegations that TVA had or assumed duties
to employees of Stone & Webster working at TVA’s Browns Ferry
nuclear facility to provide such Stone & Webster employees various
occupational safety and health services [making safety inspections,
providing safety training, providing safety equipment, providing safety
procedures and warning of safety hazards].
Kirby, 877 F. Supp. at 579, 587.
The court then held:
A reasonable construction of the allegations of the Plaintiffs’
complaint in the above-entitled civil action is that at the time and place
in question, that is on June 25, 1992 at TVA’s Browns Ferry Nuclear
Power facility in Limestone County, Alabama where Plaintiff Vernon
Kirby was working and was injured while he was an employee of Stone
& Webster performing work for his employer, Defendant TVA was a
governmental agency then and there and prior thereto providing
[according to Plaintiffs’ complaint] occupational safety and health
services to Stone & Webster employees, including the Plaintiff Vernon
Kirby. And this Court now so holds and further holds for the reasons
hereinabove stated that under applicable statutory law [i.e., the Act] that
TVA can be held liable in this case only for willful conduct, which is not
alleged in Plaintiffs’ complaint. Thus the complaint in the above-entitled
civil action and each count thereof fails to state a claim upon which
relief can be granted.
Kirby, 877 F. Supp. 578, 588-89 (footnotes omitted) (emphasis added); see also
Young v. Tennessee Valley Authority,6 No. 5:04-CV-00594-JEO, 2005 WL 6133386,
Young analyzes immunity against liability in the context of the special
employer doctrine, rather than in the context of a provider of occupational safety and
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at *8 (N.D. Ala. Aug. 8, 2005) (summarizing holding in Kirby as “a federal agency
providing occupational health and safety services can be held liable only for willful
conduct, which was not alleged in plaintiff’s complaint”), aff’d, 439 F.3d 1274 (11th
Cir. 2006).
Here, the parties disagree over the extent to which governmental agency
immunity and/or Kirby applies to the claims asserted by Ms. Perry. Although Ms.
Perry concedes that the Act as interpreted in Kirby precludes at least a part of her case
against the Government, and, consequently, that particular portion of the Motion is
due to be granted as unopposed, she disputes that the Government’s immunity
defense applies to her negligence maintenance claim included in count VIII of her
complaint. (Doc. 42 at 22).
More specifically, Ms. Perry states:
Under the rule and rationale of Kirby, the Court properly may find
that the United States’ motion with respect to all of Ms. Perry’s “safe
condition” claims in Count VII, and Ms. Perry’s negligently undertaking
to “inspect” claim in Count VIII is well-taken and due to be granted in
those respects.

health services. See Young, 439 F.3d at 1275 n.2 (distinguishing Kirby as a case in
which “TVA was neither the employer of the injured worker nor a ‘special
employer’”). Under the facts at issue in Young, the Eleventh Circuit concluded that
“TVA is entitled to the same exclusive remedy protection from a tort suit (i.e.,
protection against willful conduct allegations) that are applicable to other persons
who are special employers under Alabama law.” 439 F.3d at 1275.
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HOWEVER, the Court should DENY the United States’ motion
with respect to Ms. Perry’s claim that the United States acted negligently
after it undertook to “maintain” the door, as set out in Count VIII,
because the “maintenance” conduct claim that she alleges has nothing
to do with the United States’ “providing occupational safety and health
services” under §§ 25-5-11 and 25-5-53.
(Id.) (emphasis by underlining added). Essentially, Ms. Perry argues that the holding
in Kirby does not extend to her negligent maintenance claim because such a theory
falls outside of the Government’s role as a provider of occupational safety and health
services at the Depot.
This court, like Ms. Perry, finds the reasoning in Kirby to be persuasive with
respect to her safe condition and negligent inspection claims. More specifically,
because Ms. Perry’s injuries stem from an on-the-job injury while performing contract
services at a governmental facility, her failure to allege willful conduct on the part of
the Government regarding these two theories means that the Act immunizes the
Government from liability as a provider of occupational health and safety services.
Accordingly, consistent with Kirby, and with Ms. Perry’s consent, both of those
claims are due to be dismissed on summary judgment.
As for the disputed claim, it is true that Kirby does not expressly find that a
plaintiff, injured while providing contract services at a government facility, must
allege willful conduct in order for a negligent maintenance count to survive an

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immunity challenge under the Act’s governmental agency provisions. However, at
the same time, the summary of the plaintiffs’ allegations in Kirby does not reflect that
such a claim was ever actually asserted and so it is understandable that negligent
maintenance was never specifically mentioned in the district court’s opinion.
Moreover, in this court’s view, the scope of the district court’s holding in Kirby
implicitly supports the conclusion that Ms. Perry’s negligent maintenance claim is
similarly flawed due to the absence of any willful or intentional conduct allegations
incorporated into her complaint. In particular, the analysis in Kirby does not turn
upon the type of negligence claim being pursued, but rather is guided by “a
reasonable construction” of the plaintiff’s allegations that include the following
common denominator: the duty to provide a safe work environment for those persons
who are working at a government facility by virtue of a contract between their
employer and the Government. Thus, following an extension of Kirby’s reasoning,
the court finds that the Government’s Motion is due to be granted on account of the
Act’s governmental immunity provisions because, in asserting negligent maintenance,
she has failed to allege that willful or intentional conduct on the part of the
Government caused her injury.
Alternatively, even if Kirby can be read as narrowly as Ms. Perry suggests, then
the court disagrees with the Kirby decision to that limited extent. Instead, the court
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finds, because Ms. Perry’s negligent maintenance theory springs factually from her
injury as a worker caused by certain unsafe conditions existing within a federally
owned and operated facility this claim is also subject to the Act’s immunity
provisions.
In particular, the court is unaware of, and Ms. Perry has not cited to, any
authority in which a court has explicitly drawn a distinction between negligent safe
condition/inspection allegations on the one hand and negligent maintenance
allegations on the other in the context of analyzing governmental immunity under the
Act for an on-site injury suffered by an employee of a third party employer. Cf.
Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir.
2001) (holding that a party waives an argument if the party “fail[s] to elaborate or
provide any citation of authority in support” of the argument); Ordower v. Feldman,
826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made without citation
to authority is insufficient to raise an issue before the court). Indeed, when pleading,
Ms. Perry treated her negligent maintenance and inspection allegations in a similar
manner by combining them into one count. (See Doc. 1 at 8-9 ¶¶ 29-32 (count VIII
of Plaintiff’s third amended complaint)).
Admittedly, the Government also has not cited any legal authority which
instructs this court against treating negligent safe condition/inspection claims
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differently than negligent maintenance ones when deciding governmental immunity
under the Act. However, the Government has cited to several cases which, in
analyzing the comparable immunity provisions applicable to co-employees under the
Act, emphasize the importance of segregating mere negligence (or even wantonness)
masquerading as willfulness from those claims actually involving willful misconduct,
and which treat the question of immunity from liability for alleged negligent
maintenance no differently than other negligence theories. Cf., e.g., King v. Cape,
907 So. 2d 1066, 1074 (Ala. Civ. App. 2005) (“Because of these and other stated
reasons, the legislature provided to co-employees limited immunity ‘from civil
liability for all causes of action except those based on willful conduct.’” (citing Ala.
Code § 25-5-14 (1975))); id. (“Because of these and other stated reasons, the
legislature provided to co-employees limited immunity ‘from civil liability for all
causes of action except those based on willful conduct.’”) (emphasis added); id. at
1074-75 (“To allow co-employee liability to be premised on § 25-5-11(c)(2) when a
co- employee had neither notice that the safety device was not working properly nor
notice that the safety device required a specific type of maintenance to ensure that it
would work properly more closely resembles a suit based on that co-employee’s
negligence rather than his or her willful and intentional conduct.”) (emphasis added);
Moore v. Welch, 29 So. 3d 185, 191 (Ala. Civ. App. 2009) (“Their lack of awareness
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of the need for maintenance or inspection, argued the co-employees, would result in
a judgment in their favor because § 25-5-11(c)(2) requires that the removal of a safety
device be ‘willful and intentional’ and not merely negligent or even wanton.”).
Therefore, the court concludes that Ms. Perry’s failure to allege willful and
intentional conduct on the part of the Government is equally fatal to the viability of
Ms. Perry’s negligent maintenance claim. Accordingly, with Ms. Perry’s consent, her
negligent inspection and safe condition claims against the Government are due to
dismissed on immunity grounds under the Act, and, over her objection, so is her
maintenance claim. Thus, the Government’s Motion is due to be granted on the issue
of immunity.
V.

CONCLUSION
Based upon the foregoing, the Government’s Motion is due to be granted in

part on the grounds of governmental agency immunity under the Act only and is
otherwise due to be denied. With no pending claims remaining, Ms. Perry’s lawsuit
is due to be dismissed with prejudice. The court will enter a separate order.
DONE and ORDERED this the 18th day of September, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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