Navarre v. Wyndham Hotels and Resorts, LLC. et al

Filing 47

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 2/21/13. (KGE, )

FILED
2013 Feb-21 PM 01:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LINDA FAYE NAVARRE,
Plaintiff,
v.
SYSCO CENTRAL ALABAMA, INC.
and WIAL ASSOCIATES, LLC,
Defendants.

}
}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
2:11-cv-03056-WMA

MEMORANDUM OPINION
Before the court are separate motions by defendants, Sysco
Central Alabama, Inc. (“Sysco”) and WIAL Associates, LLC (“WIAL”),
for summary judgments seeking dismissal of all claims brought by
plaintiff, Linda Faye Navarre (“Navarre”). Navarre instituted her
above-entitled action alleging negligent and/or wanton conduct by
Sysco and negligent and/or wanton conduct by WIAL that resulted in
her injury.

Navarre has agreed to dismiss her wanton claim as

against WIAL. For the reasons set forth below, Sysco’s motion will
be denied both as to Navarre’s negligence claim and her wantonness
claim, while WIAL’s motion will be denied as to the negligence
claim.
Facts1
Navarre was hired by Pilot Catastrophe Services (“Pilot”) on

1

Because of the procedural posture, all admissible evidence is viewed
in the light most favorable to Navarre.

1

May 2, 2011 as a claims adjuster to assist Allstate with the influx
of claims following the tornado that struck parts of Alabama on
April 27, 2011. Pilot was using conference rooms at the Wingate
Hotel in Birmingham to receive and train temporary adjusters like
Navarre. The Wingate is owned and operated by WIAL. On the morning
of May 4, 2011, Navarre reported to the Wingate for training. WIAL
had a contract with defendant Sysco under which Sysco made weekly
deliveries of items to be used in the hotel kitchen and breakfast
bar. On the day in question, two Sysco employees, Eric McReynolds
(“McReynolds”) and Chris Weaver (“Weaver”), were making Sysco’s
delivery to the Wingate. Weaver had previously delivered to this
location, but McReynolds had not. Navarre claims that Weaver and
McReynolds should have made their deliveries through the side door
because the lobby was crowded. Testimony supports the assertion
that the lobby was crowded but not that, as a matter of law, it was
so crowded as to demand a side door delivery. Weaver testified that
it was his regular practice to park in front of the hotel and go
through the front lobby, and this is what he did on the day in
question.
Around 6:00 A.M., Navarre entered the Wingate through the
front lobby, and then went to a conference room on the left side of
the

hotel.

After

she

checked

in

with

Pilot

personnel,

they

instructed her to go back towards the lobby to another room where
she would buy an Allstate shirt. Navarre left the room, walking

2

very close to the wall on her right side because the lobby and
hallway were busy. She was also scanning the area because many
people were tracking in mud and dirt. As she was rounding the
corner, McReynolds and Weaver were coming towards her from the
opposite direction pushing their heavy handtrucks loaded with boxes
of supplies.
Navarre testifies that once she entered the lobby area, she
felt a force that almost knocked her over and that made her ankle
feel like it was hyper-extending. She put out a hand to steady
herself, then looked up and saw McReynolds with his head turned
around talking to Weaver. When he heard her say “ouch,” he pulled
the handtruck back towards him, and ran over her ankle a second
time. McReynolds then looked at Navarre and said “looks like
somebody’s had too much to drink this morning.” Navarre depo at
103. Navarre responded, “I beg your pardon?” To which McReynolds
replied “oh, no, no, no, no, no, I’m talking about me, I had too
much to drink.” Id. Navarre then proceeded to the lobby while
McReynolds and Weaver continued to make their delivery. Navarre
managed to take a few steps before she started to feel sharp pain.
She then reported the incident to hotel staff and was escorted to
the breakfast area where her leg was iced and paramedics were
called. She eventually was taken to a hospital.
McReynolds’ testimony varies from Navarre’s.

However, the

court must view the facts in the light most favorable to the non-

3

movant. In an attempt to refute Navarre’s testimony and to prove
that McReynolds was not intoxicated, Sysco submitted the alcohol
and drug tests that McReynolds was given and passed.

This is good

evidence for a jury to hear. However, as Navarre points out, the
tests were not administered immediately. The drug test was given at
11:17 A.M., and the alcohol test was given at 11:25 AM. See Exhibit
1 to Doc. 36.
Additionally, WIAL attempts to refute Navarre’s account of the
incident with the testimony of two independent witnesses, Angel
Turner (“Turner”) and Elizabeth Dujon (“Dujon”). WIAL interprets
their testimony as support for its contention that McReynolds did
not hit Navarre at all with his handtruck. However, neither witness
testified that McReynolds did not hit Navarre. Dujon said that she
did not see McReynolds hit Navarre with his handtruck, but she did
not see him miss Navarre either. Turner, on the other hand, said
“he may have bumped her” and that she did hear Navarre say “ouch.”
Turner depo at 68 and 65. Even if these witnesses had testified
that they were absolutely sure that McReynolds’s handtruck did not
hit Navarre, the court, under Rule 56, would still have to accept
Navarre’s testimony to the contrary.
McReynolds and Weaver both testified that no one from the
hotel gave them instructions regarding how to make their delivery
other than telling them to put the goods in the pantries. They made
4

the decisions of how to get the goods to the pantries. Weaver also
testified that on the day in question he followed his regular
delivery practice of parking in front of the hotel and making the
delivery by taking the products through the lobby. Hotel employees
testified that they had never known of a similar incident in which
someone had been struck by a delivery handtruck, or where a Sysco
employee had made a delivery in a hurried or careless manner.
Analysis
Sysco’s Motion for Summary Judgment
Negligence Claim
To establish a negligence claim against Sysco, Navarre must
prove (1) that Sysco owed a duty to her as a foreseeable plaintiff;
(2) that it breached that duty; and (3) that its breach proximately
caused her to suffer injury. Martin v. Arnold, 643 So. 2d 564.
(Ala. 1994). In order to succeed at the summary judgment stage,
Sysco must show that there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Sysco admits a duty
of due care to Navarre but denies that it breached that duty.
Sysco argues that Navarre has not provided evidence to prove
that its employees acted negligently, and insists that the evidence
shows that McReynolds conclusively acted with due care under the
circumstances.
[I]t is clear based on testimony taken in this
5

case, whether or not the cart actually ran
over the plaintiff’s foot, it is undisputed
that the Sysco employee immediately stopped at
the intersection of a corner in a hallway when
he first saw the plaintiff, i.e., the
plaintiff was walking in one direction and the
defendant’s employee was approaching from
another direction and they met at the
intersection. He was not operating his
delivery cart in an unreasonable manner and
was looking out where he was going. The
central issue is not whether he ran over the
plaintiff’s foot with his cart, but rather
whether he acted unreasonably under the
circumstances sufficient to show a lack of
reasonable care. . . .[T]he plaintiff’s
negligence claim fails for this very reason.
Doc. 27 at page 11. Navarre, on the other hand, analogizes this
situation to cases involving a defendant speeding in an automobile
through a crowded parking lot on a foggy night, a defendant
speeding in an automobile in a thunderstorm, and other examples of
reckless automobile driving. See e.g. Henderson v. City of Mobile
611 So. 2d 249 (Ala. 1992) and Hornady Truck v. Meadows, 847 So. 2d
908 (Ala. 2002). Pushing a handtruck through a crowded lobby is not
quite the same as speeding in a parking lot or a thunderstorm.
However, Sysco’s claim that it is undisputed that McReynolds acted
with due care totally miscomprehends Rule 56.
Navarre contends that McReynolds was intoxicated at the time
of the incident. McReynolds’s and Navarre’s testimonies differ in
the

description

of

McReynolds’s

comments

regarding

alcohol

consumption. However, both testified that McReynolds said that
someone had been drinking. McReynolds says that he only said that
6

someone had a few too many as a way to lighten the mood, and that
he was talking about Navarre rather than himself. However, Navarre
says

that

following

McReynolds’

first

statement,

McReynolds

clarified that he was not insulting her, but talking about himself.
As

the

non-movant,

Navarre

must

be

believed.

Sysco

offers

McReynolds’ drug and alcohol tests as evidence that he was not
intoxicated.

As

stated

above,

this

is

admissible

but

not

dispositive evidence. These tests were given 5 hours after the
incident occurred. If there was alcohol in McReynolds’s system at
6 A.M., he still could have passed the test he took after 11 A.M.
Viewing the evidence most favorably to plaintiff, there is a
disputed question of material fact as to whether McReynolds was
intoxicated so as to provide a basis for a finding of negligence.
A jury could from this evidence reasonably conclude that he was
intoxicated and for that reason did not exercise the reasonable
care he might otherwise have exercised. See Davis v. Radney 38 So.
2d 867 (Ala. 1949) (holding that intoxication was material in
determination of whether defendant acted negligently), See also
Robinson v. Harris, 370 So. 2d 961 (Ala. 1979)
jury

could

properly

consider

evidence

of

(holding that a
intoxication

in

determining negligence). For these reasons, Sysco’s motion for
summary judgment as to Navarre’s negligence claim will be denied.
Wantonness Claim
Navarre also alleges wantonness against Sysco. Wantonness is

7

defined as “[c]onduct which is carried on with a reckless or
conscious disregard of the rights or safety of others.” Code of
Alabama § 6-11-20. The Alabama Supreme Court has elaborated on this
statutory definition by saying that wantonness is “the conscious
doing of some act . . . while knowing of the existing conditions
and being conscious that, from doing . . . an act, injury will
likely or probably result.” Scott v. Villegas, 723 So. 2d 642, 643
(1998). This standard does not require Navarre to offer direct
evidence of defendant’s knowledge or consciousness of risk of harm.
The totality of circumstances can provide the basis for a finding
of

the

consciousness

of

potential

injury

necessary

wantonness. Id. Therefore, to survive summary

to

prove

judgment, Navarre

need only show that there is a question of material fact regarding
the circumstances to provide a reasonable jury a basis for finding
that defendant acted wantonly.
As discussed above, there is a dispute of fact regarding
whether McReynolds was intoxicated at the time of the incident.
Intoxication, of course, can be evidence of wantonness. See Crovo
v. Aetna Cas. & Sur. Co., 336 So. 2d 1083 (Ala. 1976) (holding that
evidence of intoxicated defendant’s wantonness was sufficient to
send claim to jury.) Because McReynolds’s potential intoxication
while

making

his

delivery

could

be

evidence

of

a

conscious

disregard for the safety of others, a jury could find that he acted
wantonly. Therefore, Sysco’s summary judgment as to Navarre’s
8

wantonness claim is due to be denied.
WIAL’s Motion for Summary Judgment
Navarre has dropped her wantonness claim against WIAL, so all
that remains is her negligence claim. Unlike Sysco, WIAL argues
that it did not owe any duty whatsoever to Navarre because she was
not a foreseeable plaintiff. In this strange argument it fails.
“In Alabama, the existence of a duty is a strictly legal
question

to

be

determined

by

the

court.”

Proctor

v.

Fluor

Enterprises, Inc., 494 F. 3d 1337, 1347 (11th Cir. 2007) quoting
Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 937 (Ala.
2006). A court determines if there is a duty by determining if the
harm

was

foreseeable.

“[U]nder

Alabama

law,

in

determining

foreseeability, ‘it is not necessary to anticipate the specific
event that occurred, but only that some general harm or consequence
would follow.’” Id. quoting Smith v. AmSouth Bank, Inc., 892 So. 2d
905, 910 (Ala. 2004). Therefore, in order for WIAL to have a duty
to Navarre, it did not have to be foreseeable that a handtruck
would run over the ankle of someone walking through the lobby, but
only that harm could reasonably be foreseen to occur from such
deliveries being made through a crowded lobby.
Foreseeability can be established by evidence reflecting that
the defendant knew or should have known of a likelihood of harm.
Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala. 1984). All of the
Wingate employees who were deposed testified that they had never
9

known Sysco to operate in a dangerous manner, nor were they aware
of a prior incident where someone in the hotel was struck by a
delivery cart. WIAL asserts that this lack of former incidents or
dangerous

conduct

demonstrates

absolutely

that

harm

was

not

foreseeable. Navarre has not offered any evidence of similar
incidents at this or other Wingate hotels. She, instead, asserts
that it is “undisputed that [the lobby] was too crowded and
dangerous.” Doc. 33 at 22. The precise number of people in the
lobby is unknown, as are the number of square feet in the lobby and
the lobby’s configuration. The fact that everyone agrees that there
were a lot of people in the lobby does not mean that WIAL concedes
it to have been dangerous and thus foreseeable that harm would
occur. These are classic jury questions.
Navarre correctly argues that knowledge of past acts is not
the sine qua non for foreseeability. WIAL is a hotel and thus owes
a duty of care to all its guests. Although Navarre was not a
“guest” in the sense that she herself was seeking lodging, she was
an

invited

visitor

to

rooms

rented

by

a

third

party.

WIAL

presumptively knew of the use to which Pilot was to put the space
it rented. It was certainly within WIAL’s contemplation that
persons would visit the space rented to Pilot and would be entitled
to a reasonably safe way to get to and from that space.
WIAL attempts to support its specious argument that it owed no
duty to Navarre with an Alabama Supreme Court holding that a night

10

club did not have a duty to a plaintiff who was beaten up in the
parking lot after it had ejected him. However, this case is not
helpful. It involved the criminal conduct of a third party. The
court there stated: “[t]he concept of foreseeability, especially
when relating to the criminal conduct of third parties, does not
lend itself to a hard and fast rule; rather, its application
depends upon the facts and circumstances of each case.” Ex Parte
Wild Wild West Social Club, Inc., 806 So. 2d 1235, 1240 (Ala.
2001). Therefore, because of the crucial differences between the
instant case and Wild Wild West, in which the Alabama Supreme Court
said that the duty determination is very fact dependent, the court
finds that in the case at hand, the evaluation of the evidence and
whether or not it constituted actionable negligence of WIAL is for
the jury.
Conclusion
For the foregoing reasons, a separate order will be entered
denying both Sysco’s and WIAL’s motions for summary judgment.

DONE this 21st day of February, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

11