Williams v. Walgreen Co

Filing 25

MEMORANDUM OPINION AND ORDER- The deft's motion for summary judgment (Doc 16 ) is GRANTED with regard to pltf's wantonness claim and DENIED with regard to his negligence claim. Signed by Magistrate Judge Staci G Cornelius on 4/26/18. (MRR, )

FILED
2018 Apr-26 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EDWIN WILLIAMS,
Plaintiff,
v.
WALGREEN CO.,
Defendant.

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Case No.: 2:16-cv-01704-SGC

MEMORANDUM OPINION AND ORDER 1
The court has before it the September 29, 2017 motion for summary
judgment filed by Defendant Walgreen Co. (Doc. 16). Pursuant to the court’s
initial order, the motion is fully briefed and under submission as of November 3,
2017. (Doc. 9; see Docs. 19-21). The motion is due to be granted in part and
denied in part for the following reasons.
I.

STATEMENT OF MATERIAL FACTS
On October 14, 2017, at about 4:15 or 4:30 in the afternoon, Plaintiff and his

wife, both age 76, walked towards the Walgreens store located in Gardendale,
Alabama, through the parking lot outside the store. (Doc. 16-1 at 4, 7; Doc. 20-4 at
2). The couple approached the wheelchair ramp leading from the parking lot to the
sidewalk around the drug store. (Doc. 20-4 at 2).
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As they walked toward the

The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 7).

ramp, Plaintiff tripped and fell. (Doc. 16-1 at 8). At the time, he did not know
what caused him to fall. (Id.). Plaintiff fell onto his face and hit the left side of his
head. (Id. at 11). Although Plaintiff fell next to a support beam pillar, he denies he
struck the pillar when he fell. 2 (Id. at 9). Plaintiff contends he was unconscious
for a moment. (Id. at 12). He sustained bruises and scratches to his body, as well
as a deep gash over his left eye. (Id. at 11, 17). The medical records show
Plaintiff suffered a traumatic small subarachnoid hemorrhage and a subdermal
hematoma. (Doc. 20-8 at 2).
The next day, after Plaintiff was discharged from the hospital, he and his
wife returned to the parking lot to determine what caused Plaintiff to fall. (Doc.
16-1 at 10). In the area where Plaintiff fell, Plaintiff saw a small concrete pad,
lighter in color than the asphalt surrounding it. (Doc 20-1 at 2-4). On top of that
concrete pad, there is a small change in elevation where a circular device is
located. (Id.). The purpose of the device is unknown. (Doc. 16 at 5). Plaintiff
concluded one of his feet must have gotten caught on the “little lip” of the circular
device, causing him to fall. (Doc. 16-1 at 8, 10, 15-16).
Plaintiff testified there was nothing to block his view of the circular device,
“[o]ther than the fact that it was all covered with a lot of black paint or grease or
something.” (Id. at 9). He further stated, “[i]t wasn’t clear to where it would be
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The store manager, Mary Hyke, testified she saw blood on the pillar/support beam shortly after
Plaintiff’s fall. (Doc. 16-4 at 7).

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easily seen” and, although the circular device was not level with the pavement, it
“appeared to be even or level with the surface of the asphalt parking lot when [he]
looked at it due to the black paint or grease [or] other substance on it.”3 (Id.; Doc.
20-4 at 4).
II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper

“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary
judgment always bears the initial responsibility of informing the court of the basis
for its motion and identifying those portions of the pleadings or filings which it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(e) requires the non-moving
party to go beyond the pleadings and by his own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
there is a genuine issue for trial. See id. at 324.
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Contrary to Defendant’s argument, Plaintiff’s affidavit stating the black paint or grease made
the circular device look level with the pavement does not directly contradict his deposition
testimony. (Doc. 21 at 7-8). When asked if anything obstructed his view of the device in his
deposition, Plaintiff referenced the black paint or grease surrounding the device and stated it was
not easily seen. (Doc. 16-1 at 9). Plaintiff’s affidavit does not contradict this testimony.
Plaintiff was not asked in his deposition about the height of the circular device or whether the
black paint or grease disguised the height of the device.

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The substantive law identifies which facts are material and which are
irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.
1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. See id. at 249.
III.

DISCUSSION
Plaintiff’s complaint alleges two claims against Walgreens under Alabama

law: negligence and wantonness.

(Doc. 1-1 at 6-10).

Defendant contends

summary judgment is proper as to both claims. The court agrees with Defendant
as to the wantonness claim but disagrees as to the negligence claim for the
following reasons.
A. Plaintiff’s Negligence Claim
To prevail on a claim for negligence under Alabama law, “a plaintiff must
establish that the defendant breached a duty owed by the defendant to the plaintiff
and that the breach proximately caused injury or damage to the plaintiff.” Kmart
Corp. v. Bassett, 769 So. 2d 282, 284 (Ala. 2000) (quoting Lowe’s Home Centers,
Inc. v. Laxson, 655 So. 2d 943, 945-46 (Ala. 1994)). The liability of a premises
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owner turns on the classification given to the injured party. Ex parte Mountain
Top Indoor Flea Market, Inc., 699 So. 2d 158, 161 (Ala. 1997). Because Plaintiff
was a business invitee, Walgreens owed him a duty to “exercise reasonable care in
maintaining [its] premises in a reasonably safe condition.” Bishop v. South, 642
So. 2d 442, 445 (Ala. 1994).
The duty of a premises owner to an invitee “is limited to hidden defects
which are not known to the invitee and would not be discovered by him in the
exercise of ordinary care.” Harvell v. Johnson, 598 So. 2d 881, 883 (Ala. 1992).
This duty requires a premises owner to “warn of hidden defects and dangers that
are known to it, but that are unknown or hidden to the invitee.” Raspilair v.
Bruno’s Food Stores, Inc., 514 So. 2d 1022, 1024 (Ala. 1987). In other words, the
duty is limited to hidden defects; if a dangerous condition is open and obvious so
that the invitee should be aware of it through the exercise of reasonable care, then
the owner or occupier of the premises has no duty to warn the invitee. Lilya v.
Greater Gulf State Fair, Inc., 855 So. 2d 1049, 1054-55 (Ala. 2003). “A condition
is ‘obvious’ if the risk is apparent to, and of the type that would be recognized by,
a reasonable person in the position of the invitee.”

Douglas v. Devonshire

Apartments, LLC, 833 So. 2d 72, 74-75 (Ala. Civ. App. 2002).
This duty does not, however, convert a premises owner into an insurer of its
invitees’ safety. Hose v. Winn–Dixie Montgomery, Inc., 658 So .2d 403, 404 (Ala.
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1995). The mere fact an invitee is injured does not create a presumption of
negligence on the part of the premises owner. Id. Rather, a premises owner is
liable in negligence only if it “fail[s] to use reasonable care in maintaining its
premises in a reasonably safe manner.” Id.
At the summary judgment stage, a plaintiff must present substantial evidence
his injury was the result of a defect or instrumentality on the premises, the defect
was the result of the defendant’s negligence, and the defendant had or should have
had notice of the defect before the time of the accident. Hale v. Sequoyah Caverns
& Campgrounds, Inc., 612 So. 2d 1162, 1164 (Ala. 1992). Where the defect is a
part of the premises, as opposed to a slick spot on a floor, 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 the defendant had or should
have had notice of the defect at the time of the accident. Mims v. Jack’s Rest., 565
So. 2d 609, 610–11 (Ala .1990).
As a threshold matter, a plaintiff must present substantial evidence the cause
of his injury was the defect. Proof no one else has been injured by the alleged
defect is evidence that the condition is not a defect. Miller ex rel. Miller v. Liberty
Park Joint Venture, LLC, 84 So. 3d 88, 92-94 (Ala. Civ. App. 2011) (gap between
fence frame and surface of tennis court was not a defect because tennis court had
been in continuous use for over thirteen years and no one else had been injured like
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plaintiff); Butler v. AAA Warehousing & Moving Co., 686 So. 2d 291, 293-94 (Ala.
Civ. App. 1996) (stand for watching parade with five-inch vertical gaps was not
defective where no other parade patron had been injured by it in twenty-five
years); see also Iguess v. Hyundai Motor Mfg., Ala. LLC, 2014 WL 1584480, at *3
(M.D. Ala. 2014). Once the premises owner presents evidence a condition is not
defective or unreasonably dangerous, the burden shifts to the plaintiff to present
substantial

evidence

the

condition

was

unreasonably

dangerous.

Miller, 84 So.3d at 94.
Here, Walgreens presented evidence the circular device is not unreasonably
dangerous. Mary Hyke, the store manager since the store opened in 2001, testified
no one has ever made a complaint to Walgreens regarding the circular device
before Plaintiff’s fall. (Doc. 16-5 at 2). Hyke further testified no one has ever
tripped on the circular device during the fourteen years between the store’s
opening and Plaintiff’s fall. (Id.). Additionally, the owner of the premises, a
representative from Walgreens corporate headquarters, and the local fire
department regularly inspect the store and parking lot. (Id.). No one inspecting the
premises has ever informed Hyke the circular device is a tripping hazard. (Id.).
The burden, therefore, shifts to Plaintiff to demonstrate the circular device is
unreasonably dangerous.

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Plaintiff presented a genuine issue of material fact as to whether the circular
device was unreasonably dangerous. “In Alabama, . . . whether an elevation
irregularity in a sidewalk, curb, or threshold constitutes an unreasonably dangerous
condition or defect has, so far as we are able to tell, always been held to be an issue
of fact when the plaintiff has presented evidence indicating that the irregularity
creates a danger.” Howard v. Andy’s Store for Men, 757 So. 2d 1208, 1211 (Ala.
Civ. App. 2000) (citing Stephens v. City of Montgomery, 575 So. 2d 1095 (Ala.
1991); Mann v. Smith, 561 So. 2d 1112 (Ala. 1990); Bogue v. R & M Grocery, 553
So. 2d 545 (Ala. 1989); Waits v. Crown Dodge Chrysler–Plymouth, Inc., 770 So.
2d 618 (Ala. Civ. App. 1999); Williams v. Harold L. Martin Distrib. Co., Inc., 769
So. 2d 316 (Ala.Civ.App. 1999); Woodward v. Health Care Auth. of the City of
Huntsville, 727 So. 2d 814 (Ala. Civ. App. 1998)). The Howard court explained:
In Stephens, the [S]upreme [C]ourt reversed a summary judgment for
the City in a trip-and-fall case, holding that evidence of an uneven
sidewalk, in which “one portion of the sidewalk . . . was
approximately one inch higher than another portion” . . . was evidence
of a defect in the sidewalk and created “a genuine issue of material
fact, suitable for jury determination.” In Mann, the . . .plaintiff’s
expert, an engineer, testified that the steps leading into the defendant's
business were defective because “[t]he top step was not level with the
door jamb, but was slightly below the jamb so that someone entering
the store had to step from the top step up to enter the store.” The
[S]upreme [C]ourt held that the plaintiffs had “established evidence
from which a jury could find that a defect existed in the steps.”
In Bogue, the [S]upreme [C]ourt . . . held that the plaintiff’s expert, a
civil engineer, had presented sufficient evidence for a jury to
determine whether the plaintiff's fall was caused by a defect in the
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premises. The engineer had testified that the fall was caused by a
drop in elevation from the doorway of the store to the parking lot.
In Waits, this court held that an architect’s testimony-that the raised
threshold over which the plaintiff tripped at an automobile dealer’s
service department was unsafe and dangerous for customers-presented
“a genuine issue of material fact ... as to whether a defect existed.”
Similarly, in Williams, this court held that an architect’s testimony
that the sidewalk, curb, and ramp over which a convenience-store
customer tripped was defective, “presented substantial evidence
creating a question of fact for the jury: whether the sidewalk, curb,
and wheelchair ramp presented a hidden defect that [the customer]
could not discover in the exercise of ordinary care.” In Woodward, a
visitor to a hospital emergency room tripped and fell on a curb in the
hospital’s parking garage. The plaintiff’s expert testified that a “level
change,” combined with the nighttime lighting conditions in the
parking garage, “create[d] a hazard for persons traversing on foot
from the . . . parking garage to the emergency room.” The hospital
did not argue that the place where the plaintiff fell was not a
dangerous defect; it argued only that the defect was open and obvious.
This court assumed the existence of a defect and framed the issue in
terms of whether the defect was open and obvious, concluding that the
expert’s testimony presented a jury question as whether the defect was
open and obvious.
Id. at 1211-12 (internal citations omitted).
Although Plaintiff has not presented any expert testimony as was the case in
many of the cases cited above, Plaintiff’s own testimony establishes a question of
fact as to whether the circular device was hidden and, therefore, unreasonably
dangerous. Specifically, Plaintiff testified the circular device “was all covered
with a lot of black paint or grease or something.” (Doc. 16-1 at 9). He further
stated, “[i]t wasn’t clear to where it would be easily seen” and, although the
circular device was not level with the pavement, it “appeared to be even or level
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with the surface of the asphalt parking lot when [he] looked at it due to the black
paint or grease [or] other substance on it.” (Id.; Doc. 20-4 at 4). This testimony,
along with the pictures submitted by both parties, creates a genuine issue of
material fact as to whether the circular device was unreasonably dangerous. As
such, Defendant’s motion for summary judgment on Plaintiff’s negligence claim is
due to be denied.
B. Plaintiff’s Wantonness Claim
The Alabama Code defines wantonness as “[c]onduct which is carried on
with a reckless or conscious disregard of the rights or safety of others.” Ala. Code
§ 6-11-20(b)(3) (1975). In other words, wantonness is “‘the conscious doing of
some act or the omission of some duty, while knowing of the existing conditions
and being conscious that, from doing or omitting to do an act, injury will likely or
probably result.’” Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 84 (Ala. 2012)
(quoting Bozeman v. Central Bank of the South, 646 So. 2d 601, 603 (Ala. 1994)).
Wanton conduct, unlike negligence, requires proof the defendant knew of the
possible dangers associated with an act and that injury would likely result from that
act. Tolbert v. Tolbert, 903 So. 2d 103, 114-15 (Ala. 2004). “Wantonness is not
merely a higher degree of culpability than negligence.” Id. at 114. There is no
evidence Defendant possessed the requisite level of consciousness to establish

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wantonness as a matter of Alabama law.

As such, Defendant is entitled to

summary judgment on Plaintiff’s wantonness claim.
IV.

CONCLUSION
For the foregoing reasons, Defendant Walgreens Company is entitled to

judgment as a matter of law on Plaintiff’s claim for wantonness. Questions of
material fact remain regarding Plaintiff’s negligence claim. As such, Defendant’s
motion for summary judgment (Doc. 16) is GRANTED with regard to Plaintiff’s
wantonness claim and DENIED with regard to his negligence claim.
DONE and ORDERED this 26th day of April, 2018.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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