Dodd v. GlassRatner Management & Realty Advisors LLC et al

Filing 28

MEMORANDUM OPINION AND ORDER- GlassRatner Management & Realty Advisors, LLC's motion for summary judgment (Doc 23 ) is DENIED for the reasons stated within. Signed by Magistrate Judge Staci G Cornelius on 8/18/17. (MRR, )

FILED
2017 Aug-18 AM 09:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STACY DODD,
Plaintiff,
v.
GLASSRATNER MANAGMENT &
REALTY ADVISORS, LLC,
Defendant.

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Case No.: 2:14-cv-01689-SGC

MEMORANDUM OPINION AND ORDER
This is a premises liability case brought by the plaintiff, Stacy Dodd, against
GlassRatner Management & Realty Advisors, LLC, the owner of an apartment
building where Dodd lived. (Doc. 1-2). This matter was removed here from the
Circuit Court of Jefferson County on the basis of diversity jurisdiction. (Doc. 1).
The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. §
636(c).

(Doc. 13).

Presently pending is GlassRatner's motion for summary

judgment. (Doc. 23). The motion is fully briefed and ripe for adjudication. (Docs.
24-27). For the reasons that follow, the motion is due to be denied.
I.

FACTS
The events giving rise to this lawsuit occurred on July 4, 2012, when Dodd

slipped and fell down stairs at her apartment building. (Doc. 25 at 5). Dodd's
apartment was not on the ground floor; the stairs at issue led from the exterior of

her apartment to the parking lot. (Id. at 5-6). Although not described in the briefs,
photos of the stairway reveal it is located under a covered breezeway joining two
buildings. (See Doc. 23-6). The weather was sunny. (Doc. 25 at 6). Dodd was
leaving her apartment on her way to her car, and as she placed her left foot on the
tread of the top stair, "it just went out from under" her. (Id.). She slid down the
stairs on her buttocks, coming to a stop at the second or third stop from the bottom.
(Id.).
Dodd did not notice any water on the stairs prior to her fall, and she did not
look at the top stair prior to falling. (Doc. 24 at 5-6). Dodd realized the stairs were
wet because, by the time she came to a stop, her backside and clothes were wet.
(Id.; Doc. 25 at 6). As Dodd looked around, she noticed water on all the stairs she
could see. (Doc. 25 at 6; see Doc. 24 at 5). Dodd then saw a man using a pressure
washer in the breezeway. (Doc. 24 at 4). Dodd could not see the top of the stairs
from the ground-level, and she did not climb the staircase to see if the top stair
tread was wet. (Id. at 6). When Dodd returned to the apartment approximately
thirty minutes later to take photographs of the area, the stairs were dry, but the
concrete pad at the bottom of the stairs was damp. (Id. at 4-5).
II.

SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
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a matter of law." FED. R. CIV. P. 56(a). To demonstrate there is a genuine dispute
as to a material fact that precludes summary judgment, a party opposing a motion
for summary judgment must cite "to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A).
When considering a summary judgment motion, the court must view the evidence
in the record in the light most favorable to the non-moving party. Hill v. Wal-Mart
Stores, Inc., 510 F. App'x 810, 813 (11th Cir. 2013). "The court need consider
only the cited materials, but it may consider other materials in the record." FED. R.
CIV. P. 56(c)(3).
III.

DISCUSSION
Under Alabama law, a tenant in an apartment complex shares the same legal

rights as an invitee with respect to the common areas of the complex. Shelton v.
Boston Fin., Inc., 638 So. 2d 824, 825 (Ala. 1994). "A landowner owes an invitee
the legal duty 'to exercise reasonable care and diligence to keep the premises in a
reasonably safe condition for the uses contemplated by the invitation, and to warn
the invitee of known dangers, or dangers that ought to have been known, and of
which the invitee was ignorant.'" Id. (quoting Lamson & Sessions Bolt Co. v.
McCarty, 173 So. 388 (1937)). To recover in a premises-liability action based on a
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fall, a plaintiff must prove: (1) the fall was caused by a defect or instrumentality
located on the defendant's premises; (2) the fall was the result of the defendant's
negligence, and (3) that the defendant "had or should have had notice of the defect
or instrumentality before the accident." Logan v. Winn–Dixie Atlanta, Inc., 594
So. 2d 83, 84 (Ala. 1992). A premises owner "is not an insurer of the safety of his
invitees and res ipsa loquitur is not applicable." Ex parte Mountain Top Indoor
Flea Market, Inc., 699 So. 2d 158, 161 (Ala. 1997).
GlassRatner contends it is entitled to summary judgment because: (1) Dodd's
testimony that her fall was caused by the wet stairs is impermissibly speculative;
(2) any water on the top step was an open and obvious hazard; and (3) GlassRatner
had no duty to warn Dodd about any water on the stairs because it did not have
superior knowledge of the condition. (Doc. 24 at 10-20).
A.

Speculation Regarding Wet Stairs

As an initial matter, a wet surface can constitute a dangerous condition
giving rise to liability for an invitee's slip-and-fall injury. See Terrell v. Warehouse
Grocery, 364 So. 2d 675, 676-77 (Ala. 1978). However, a plaintiff traveling on
premises liability theories cannot speculate as to the cause of an accident.
Brookwood Med. Ctr. v. Lindstrom, 763 So. 2d 951, 956 (Ala. 2000). When
evidence gives rise to equally plausible inferences regarding the existence of a

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dangerous condition, the evidence is impermissibly speculative. Turner v. Azalea
Box Co., 508 So. 2d 253, 254 (Ala. 1987).
GlassRatner argues Dodd's testimony that water on the top stair caused her
to fall is impermissibly speculative. This argument is based on Dodd's testimony
that she never saw water on the top stair either before or after the fall.
Accordingly, because res ipsa loquitor does not apply, GlassRatner contends Dodd
has failed to establish a genuine issue of material fact as to whether water on the
stairs caused her to fall.

(Doc. 24 at 10-16).

GlassRatner's analysis primarily

focuses on Manning v. Tractor Supply Co., No. 14-0366, 2015 WL 1578158 (S.D.
Ala. Apr. 9, 2015), and Shanklin v. New Pilgrim Towers, L.P., 58 So. 3d 1251
(Ala. Civ. App. 2010).
The plaintiff in Manning was an invitee injured when she was cut by
something on a metal rack inside the defendant's store. However, the plaintiff did
not provide any details about the mechanism of her injury, the shelf, or any alleged
defect. 2015 WL 1578158 at *4 ("Manning does not remember anything about the
shelf other than it had wire on it, and she was cut."). Accordingly, the district court
granted the defendant's motion for summary judgment because the allegation of
negligence rested "entirely on her personal and speculative belief that [the
defendant] created the defective condition of the shelf or allowed it to exist." Id.

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The plaintiff in Shanklin fell when she stepped into an elevator, but she did
not know what caused her to fall. An individual who heard—but did not see—the
plaintiff fall testified that, upon arriving at the scene, she noticed the elevator was
"misleveled," such that its floor was approximately five to six inches below the
surface of the hall. 58 So. 3d at 1253. The Court of Civil Appeals affirmed the
trial court's grant of summary judgment, finding this after-the-fact testimony was
too speculative to show the elevator's condition at the time of the fall, much less
that it caused the plaintiff's fall. Id. at 1257.
The facts of the instant case are distinguishable from those presented in
Shanklin and Manning. Unlike the plaintiff in Manning, Dodd has provided details
regarding the defective condition and mechanism of her injury—the wet stairs.
Dodd's testimony concerning the wet stairs also differentiates this case from
Shanklin, in which the plaintiff did not know what caused her to fall.

The

plaintiff's testimony that the misleveled elevator caused her to fall was based solely
on another witness's statement that, after the fall, the elevator was misleveled.
Here, Dodd testified that the stairs were wet, causing her to fall. Dodd's
testimony was based on her observations—after she fell and came to a rest—that:
(1) her clothes and backside were wet; (2) all the stairs she could see from her
vantage-point were wet; and (3) a man was using a pressure-washer in the
breezeway. While Dodd never actually perceived water on the top stair—the
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precise instrumentality of her fall—her response to GlassRatner's interrogatory
regarding the issue stated that "the substance was water." (Doc. 25-1 at 4).1
Strictly speaking, Dodd's testimony regarding the wetness of the top stair
could be characterized as including a degree of speculation; at no time did she see
or feel moisture on the top stair. However, the surrounding facts, construed in the
light most favorable to Dodd, are sufficient to give rise to the reasonable inference
that the top stair was wet. Moreover, the inference that the top stair was wet
outweighs any inference that the top stair was dry. See Turner, 508 So. 2d at 254
(noting that specter of impermissible speculation only arises where the "evidence
points equally to inferences" regarding the existence of a dangerous condition).
Accordingly, there is a genuine issue of material fact regarding whether a wet top
stair caused Dodd's fall.
B.

Duty to Warn: Open and Obvious Condition

A premises owner has no duty to warn of open and obvious dangers and is
not "liable for injury to an invitee resulting from a danger which was obvious or
should have been observed in the exercise of reasonable care." Ex parte Indus.
Dist. Servs. Warehouse, 709 So. 2d 16, 20-21 (Ala. 1997) (quoting Quillen v.

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GlassRatner takes issue with this response because it was made on "information and belief."
(See Doc. 27 at 3, 5). As GlassRatner would have it, Dodd's interrogatory response necessarily
means her contention that the top stair was wet is based solely on Dodd's speculation. That is
one interpretation of the interrogatory response. However, it appears that Dodd's reliance on
"information and belief" qualifies the precise identity of the liquid on the stairs, not whether
there was liquid on the top stair.
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Quillen, 388 So. 2d 985, 989 (Ala. 1997). In cases where plaintiffs do not perceive
a dangerous condition, Alabama courts apply an objective standard to determine
whether a particular hazard is open and obvious; "the question is whether the
danger should have been observed, not whether in fact it was consciously
appreciated." Jones Food Co. v. Shipman, 981 So. 2d 355, 362 (Ala. 2006). In
order to be open and obvious, "the condition and the risk must be apparent to, and
the type that would be recognized by, a reasonable person in the position of the
invitee." Hartzog v. Compass Bank, 686 So. 2d 325, 327 (Ala. Civ. App. 1996).
While GlassRatner cites cases in which courts have granted summary judgment on
the grounds that dangerous conditions were open and obvious, it cites no law
holding that wet surfaces are open and obvious per se. (See Doc. 24 at 17-18)
(citing Ex parte Neese, 819 So. 2d 584 (Ala. 2001) (upside-down wet doormat
lying on a walkway was open and obvious danger); Heath v. Sims Bros. Const.
Co., 529 So. 2d 994 (Ala. 1988) (hole in the floor, of which the plaintiff was aware
and which caused a scaffolding to fall, constituted open and obvious danger)).
The question here is whether an objectively reasonable person in Dodd's
circumstances2 would have noticed and appreciated the dangerousness of water on
exterior stairs.

There is simply insufficient evidence here to make this

2

While Dodd's subjective awareness of the moisture is not the question, it bears repeating that
the stairway at issue is located in a covered breezeway. Dodd testified that the stairs were often
slippery when it was raining. (See Doc. 24 at 2). However, it is undisputed that the weather on
the day of the accident was sunny. (See Doc. 25 at 6)
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determination as a matter of law.

The summary judgment record presents a

genuine issue of material fact regarding whether the top stair was wet. Other
relevant facts indicating whether a reasonable person would have perceived the wet
stairs—for instance, the color of the water, the depth of the water, the ability to see
down the stairway from the top stair, and/or lighting conditions in the breezeway—
do not appear on the record. Accordingly, there are genuine issues of material fact
concerning whether the wet stairs were an open and obvious condition.

See

Johnson v. Logan's Roadhouse, Inc., No. 14-2 037-MHH, 2016 WL 4585927, at *4
(N.D. Ala. Sept. 2, 2016).3 Moreover, even if the record included this information,
the question would likely present an issue of fact for the jury to decide. See id.
The parties disagree whether the openness and obviousness of a condition is:
(1) an affirmative defense for which the defendant bears the burden of proof; or (2)
an element of the claim for which the plaintiff bears the burden of proof.
(Compare Doc. 25 at 13-14 with Doc. 27 at 9-10).

Dodd's brief argues the

openness or obviousness of a hazard is an affirmative defense, citing a number of
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Denying summary judgment in a slip-and-fall case arising from wet restroom floor where:
The record does not indicate how quickly [Plaintiff] entered the restroom or how
much time transpired between her first and third step. More importantly, the
record does not indicate whether the bottom of the restroom door was low enough
to move the water on the floor as the door opened, such that the water would have
been concealed from view until a person was fully inside the restroom, beyond the
door. Without knowing these facts, the Court cannot find as a matter of law that
an objectively reasonable person would have seen and appreciated the danger that
the water on the bathroom floor presented.

Johnson 2016 WL 4585927, at *4.
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decisions applying Alabama law in support of her position. GlassRatner's brief
quotes from Hooks v. Dollar Gen. Corp., No. 14-1053, 2015 WL 6964289, at *5,
n.7 (M.D. Ala. Nov. 10, 2015), which noted via footnote:
The Alabama Supreme Court has vacillated as to whether the
openness and obviousness of a hazard is an affirmative defense or the
negation of the duty element of the tort, and thus whether defendant or
plaintiff bears the ultimate burden of proof. See Blalock, 2007 WL
1412445, at *3 (observing that although Denmark v. Mercantile
Stores Co., 844 So. 2d 1189, 1194 (Ala. 2002), suggests that it is an
affirmative defense, "this interpretation of the law [is] contradicted by
more recent cases," such as Jones, 981 So. 2d at 361-62).
(Doc. 27 at 9). There, because the motion for summary judgment failed under
either standard, the court did not reach a conclusion on the issue. Id.
GlassRatner relies on Foster v. Target Stores, Inc., No. 14-1741-AKK, 2016
WL 3055017 (N.D. Ala. May 31, 2016), in which the plaintiff was injured after she
tripped over a wheel stop in a parking lot, to support its contention that the plaintiff
bears the burden of showing a dangerous condition was hidden. (Doc. 27 at 9-10)
(arguing Foster placed the burden "on plaintiff to present substantial evidence that
the defect was hidden . . . as an element of her tort claim"). However, in Foster, it
was undisputed that: (1) the wheel stop was plainly visible; (2) the plaintiff had
previously visited the location and parked in the same area; and (3) the plaintiff
knew the wheel stop existed. 2016 WL 3055017 at *4. The facts here—or lack
thereof—are plainly distinguishable from the facts of Foster. Moreover, the court
does not interpret Foster as requiring the plaintiff to carry the initial burden of
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showing a dangerous condition was hidden.4 Rather, the plaintiff in Foster merely
failed to overcome the defendant's properly supported summary judgment
argument that the wheel stop constituted an open and obvious condition. Here, as
noted above, GlassRatner has not carried its burden of showing the wet top stair
was an open and obvious danger.
For the foregoing reasons, there is a genuine issue of material fact regarding
whether the wet top stair constituted an open and obvious danger.
C.

Duty to Warn: GlassRatner's Knowledge

Finally, GlassRatner contends that, because it did not have superior
knowledge to Dodd concerning the wet stairs, it had no duty to warn Dodd of the
condition. (Doc. 24 at 18-20). GlassRatner also contends that its hiring of an
independent contractor to manage the company absolves it of liability for the wet
stairs. (Id. at 19-20).
To survive summary judgment, a plaintiff need not show a premises owner's
actual or constructive knowledge of a dangerous condition where the owner's
employees created the condition. See, e.g., Denmark v. Mercantile Stores, Inc.,
844 So. 2d 1189, 1192 (Ala. 2002) (in these circumstances, "courts presume
4

Likewise, any vacillations notwithstanding, the undersigned takes the Alabama Supreme Court
at its word that the open and obvious inquiry is an affirmative defense under Alabama law.
Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 742 (Ala. 2009) ("Dolgencorp's argument that the
condition that caused Taylor's fall was open and obvious is an affirmative defense, for which it
bears the ultimate burden of proof."); see Johnson, 2016 WL 4585927, at *4 (denying
defendant's motion for summary judgment based on lack of evidence of an open and obvious
danger).
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notice"). Likewise, a premises owner's hiring of a third-party does not absolve it of
maintaining a safe environment for invitees. Borden v. Consumer Warehouse
Foods, Inc., 601 So. 2d 976, 978-79 (Ala. 1992). Accordingly, GlassRatner's
motion for summary judgment is due to be denied to the extent it relies on its lack
of superior knowledge or its hiring of a contractor to perform maintenance.
IV.

CONCLUSION
For all of the foregoing reasons, genuine issues of material fact preclude

judgment as a matter of law in favor of GlassRatner. Accordingly, the motion for
summary judgment is DENIED. (Doc. 23).
DONE and ORDERED this 18th day of August, 2017.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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