Shaneyfelt v. REC I/ Blue Springs Limited Partnership et al

Filing 66

MEMORANDUM OPINION AND ORDER that the motions to exclude the expert testimony and to strike the affirmative defense are GRANTED and the motions for summary judgment are DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/7/2013. (AHI)

FILED
2013 Mar-07 PM 01:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LORI JANE SHANEYFELT,
Plaintiff,
vs.
REC I/BLUE SPRINGS
LIMITED PARTNERSHIP; JP
PROPERTIES, INC.; SUSAN
BELL; and DOLGENCORP,
LLP,
Defendants.

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Civil Action No. CV-11-S-4366-NE

MEMORANDUM OPINION AND ORDER
This action arises from the wrongful death of Danny Joe Shaneyfelt, an
independent roofing subcontractor who fell through a “soft spot” in the roof of a
Dollar General Market.1 Plaintiff, Lori Jane Shaneyfelt, filed suit as the widow and
personal representative of the estate of Mr. Shaneyfelt, and asserts state-law claims
for negligence and wantonness against defendants, REC I/Blue Springs Limited
Partnership, JP Properties, Inc., Susan Bell, and Dolgencorp, LLP.2
Plaintiff commenced this action in the Northern District of Alabama pursuant
to 28 U.S.C. § 1332(a)(1), based upon the parties’ complete diversity of citizenship

1

Doc. no. 22 (Amended Complaint) ¶¶ 1-3.

2

Id. ¶¶ 13-22.

and the requisite amount in controversy. Accordingly, “state substantive law and
federal procedural law” apply. Hanna v. Plumer, 380 U.S. 460, 465 (1965).
The action is before the court on three related motions. First, defendants REC
I/Blue Springs Limited Partnership, JP Properties, Inc., and Susan Bell (collectively,
the “Blue Springs defendants”) and defendant Dolgencorp, LLP have each moved for
summary judgment.3 Further, the Blue Springs defendants have moved to exclude a
portion of the evidence offered by plaintiff’s experts.4 Finally, plaintiff has moved
to strike an affirmative defense asserted by the Blue Springs defendants.5
Upon consideration of the parties’ briefs and evidentiary submissions, the
motions to exclude the expert testimony and to strike the affirmative defense will be
granted, and the motions for summary judgment will be denied.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 indicates that summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[T]he
3

See doc. no. 43 (Motion for Summary Judgment by REC I/Blue Springs Limited
Partnership, JP Properties, Inc., and Susan Bell); doc. no. 45 (Motion for Summary Judgment by
Dolgencorp, LLP).
4

See doc. no. 46 (Motion to Exclude).

5

See doc. no. 58 (Motion to Strike).

2

plain language of Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (alteration supplied).
In making this determination, the court must review all evidence and
make all reasonable inferences in favor of the party opposing summary
judgment.
[However,] [t]he mere existence of some factual dispute will not
defeat summary judgment unless that factual dispute is material to an
issue affecting the outcome of the case. The relevant rules of
substantive law dictate the materiality of a disputed fact. A genuine
issue of material fact does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable [factfinder] to return a
verdict in its favor.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal
citations omitted) (alterations and emphasis suppled).
II. SUMMARY OF FACTS
A.

Defendants’ Relationship
Danny Joe Shaneyfelt fell to his death through the roof of the Dollar General

Market (“Dollar General”) at the Blue Spring Village Shopping Center in Huntsville,
Alabama.6 The shopping center was owned by defendant REC I/Blue Springs
6

Id. ¶ 2.

3

Limited Partnership (“REC I”), an entity in which defendant JP Properties, Inc.
(“JPP”) held a 20% interest as a limited partner.7 The shopping center was managed
by defendant JPP.8
In turn, JPP had two employees: i.e., Andrea Plotkin, JPP’s owner and
president; and defendant Susan Bell, its director of operations, who was responsible
for the shopping center’s bills, leases, and day-to-day maintenance and upkeep.9 Ms.
Bell, who resided in Alpharetta, Georgia, performed her job duties from her home
office, and visited the property on a quarterly basis.10 Ms. Bell had degrees in
journalism and business from the University of Georgia, and no expertise as a
commercial roofer.11
At the time of the events leading up to Mr. Shaneyfelt’s death, one of the
commercial spaces at the Blue Spring Village Shopping Center was leased from
defendant REC I by defendant Dolgencorp, Inc. (“Dolgencorp”) in order to run a
Dollar General retail store.12 Pursuant to the terms of the lease, the maintenance of
the roof was the responsibility of the premises owner (i.e., defendant REC I), and not
7

Doc. no. 43-1 (Deposition of Andrea Plotkin), at 14-15.

8

Id. at 16.

9

Id. at 9-10; doc. no. 43-2 (Deposition of Susan Bell), at 12-15.

10

Doc. no. 43-2 (Deposition of Susan Bell), at 8-9.

11

Id. at 12, 27-28.

12

Id. at 18-21.

4

the lessee (i.e., defendant Dolgencorp).13

Even so, the lease gave defendant

Dolgencorp the right to make repairs to the roof if the property owner failed to
complete repairs within thirty days, and allowed Dolgencorp to make any repairs
when “property loss or injury to persons [was] threatened” — a right that Dolgencorp
threatened to assert on four occasions.14 The lease also required Dolgencorp to have
maintenance performed on its rooftop heating, ventilation, and air conditioning
(“HVAC”) units at least four times a year.15
To report leaks, Dollar General employees called the telephone number for a
maintenance hotline that, in turn, contacted the property management company (i.e.,
defendant JPP).16 In addition to calling the hotline, the employees often called the
property manager (i.e., defendant Susan Bell).17 When employees notified JPP of
leaks, JPP selected a professional roofer to inspect and repair the roof.18 Dolgencorp

13

Doc. no. 43-1 (Deposition of Susan Bell), at 19-20, 93.

14

Doc. no. 60-1 (Dolgencorp Lease), JPP 70, ¶ 7 (alteration supplied); doc. no. 60-2
(Dolgencorp Default Letters).
15

Doc. no. 60-1 (Dolgencorp Lease), JPP 84, ¶ 37.

16

Doc. no. 45-5 (Deposition of Susan Bell), Exhibit 8 (Year-to-Date Ledger); doc. no. 45-6
(Deposition of James Hill), at 14-15.
17

Doc. no. 49-2 (Deposition of Bruce Akers), at 25; doc. no. 50-1 (Deposition of Teresa
Sanders), at 56-57.
18

Doc. no. 45-5 (Deposition of Susan Bell), at 26-27, 62; doc. no. 55-1 (Deposition of Shawn
Terry), at 30-31; doc. no. 56-2 (Deposition of Sammie Earskine), at 12, 18-19.

5

did not select the roofer, and did not pay for its work.19
B.

The Roof’s Nature
In order to understand the events that contributed to Mr. Shaneyfelt’s fall, one

must understand the nature of the roof through which he fell. The Dollar General
stores was covered by a 35,000 square foot roof installed in 1980, and designed to
serve as a structural component of the building.20 The roof was four inches think and
comprised of four layers: i.e., 2 inches of insulation; ½ inch of wood fiberboard; ½
inch of asphalt; and 1 inch of pea gravel. The entre structure was supported by a 26
gauge steel deck.21 It is the steel deck that is at issue in this litigation.
Given that the law requires a commercial roof to be capable of supporting a
variety of upward, downward, and lateral loads, including the weight of a person, it
is uncommon for a commercial roof to collapse under the weight of one person.22
Indeed, before defendants hired Mr. Shaneyfelt, the Dollar General roof had regularly
been traversed by store employees and HVAC and roof repairmen with heavy

19

Doc. no. 45-5 (Deposition of Susan Bell), at 26-27; doc. no. 56-2 (Deposition of Sammie
Earskine), at 20.
20

Doc. no. 57-1 (2009 Roof Replacement Proposals), at 5, 7; doc. no. 51-1 (Neslon
Architectural Commercial Roof Collapse Evaluation), at JPP 184.
21

Doc. no. 57-1 (2009 Roof Replacement Proposals), at 5, 7.

22

Doc. no. 49-1 (Contech Services Roof Condition Investigation), at JPP 265; doc. no. 52-1
(Deposition of Ben Hixson), at 11-13; doc. no. 53-1 (Deposition of Matt Sams), at 54-55, 153-54.

6

equipment.23
Because the materials that comprise a roof are separate from the deck that
supports the roof, the fact that a roof needs replacement does not prove that the deck
needs replacement.24 A roof can leak numerous times before the deck suffers
damage.25

Ben Hixson, an expert witness, and Sammie Earskine, a longtime

commercial roofer who worked on the Dollar General roof, estimated that its deck
had been deteriorating for eight to ten years before Mr. Shaneyfelt’s fall.26
C.

The Roof’s History
Tip Top Roofing & Sheet Metal, Inc. (“Tip Top Roofing”) performed all

roofing for the Blue Spring Village Shopping Center between the opening of the
Dollar General store in 2004, and the bankruptcy of Tip Top Roofing in December
of 2010.27 The parties have submitted the testimony of four individuals who worked
on the Dollar General roof as former Tip Top Roofing employees or contractors: i.e.,
Heath Jones, Shawn Terry, Sammie Earskine, and Elke Coleman.28
23

Doc. no. 49-2 (Deposition of Bruce Akers), at 33, 55-56; doc. no. 50-1 (Deposition of
Teresa Sanders), at 57.
24

Doc. no. 52-1 (Deposition of Ben Hixson), at 159-60.

25

Id. at 197.

26

Id. at 120-21; doc. 56-2 (Deposition of Sammie Earskine), at 60-61.

27

Doc. no. 43-2 (Deposition of Susan Bell), at 65; doc. no. 43-9 (Deposition of Sammie
Earskine), at 12-13, 88-89.
28

See doc. no. 54-2 (Deposition of Heath Jones); doc. no. 55-1 (Deposition of Shawn Terry);
doc. no. 56-2 (Deposition of Sammie Earskine); doc. no. 64-1 (Deposition of Elke Coleman).

7

Although the roof of the Dollar General “started leaking real bad” when the
store first opened in 2004, and continued to have numerous leaks until Mr.
Shaneyfelt’s fall on October 12, 2011, only some of the leaks were reported and
repaired.29 Within the year of the Dollar General’s opening in 2004, the roof had
deteriorated to the extent that water was pouring through the deck onto the floor,
which essentially required the installation of a new roof in a 50 square foot area of
the store.30
According to Tip Top Roofing Contractor Heath Jones, the roof of the Dollar
General leaked so often throughout the rainy season that he dealt with its property
manager, defendant Susan Bell, on a daily basis.31 Mr. Jones also testified that during
the two and one half years he worked for Tip Top Roofing, the company was called
out to the Dollar General store approximately fifty times.32 In 2008, Mr. Jones
informed Ms. Bell at least once that the deck was rusted, and “three or four times”
that the roof should be replaced.33
29

Doc. no. 49-2 (Deposition of Bruce Akers), at 26; doc. no. 50-1 (Deposition of Teresa
Sanders), at 33-36; doc. no. 55-1 (Deposition of Shawn Terry), at 30-3; doc. no. 56-1 (Deposition
of Susan Bell), at 56-61; doc. no. 56-2 (Deposition of Sammie Earskine), at 12, 18-20; doc. no. 59-1
(DGM 2009-2011 Roof Work History).
30

Doc. no. 56-1 (Deposition of Susan Bell), at 37; doc. no. 56-2 (Deposition of Sammie
Earskine), at 26, 58-61; doc. no. 59-4 (2004 Roof and Deck Replacement).
31

Doc. no. 54-2 (Deposition of Heath Jones), at 39.

32

Id. at 106-09.

33

Id. at 112-18.

8

In March of 2009, Tip Top Roofing sent defendants JPP and Susan Bell an
electronic mail message (“e-mail”) with a quote for replacing the Dollar General roof,
making a point of excluding the cost of replacing the deck.34 Ms. Bell forwarded the
quote to Andrea Plotkin, the owner and president of JPP, expressing dismay at the
price of the repairs, and noting that the store had “2,000 to 3,000 [square feet] of
rusted metal decking,” that Tip Top Roofing would not itself do the work of replacing
the decking, and that it was awaiting a quote for that work from two of its vendors.35
The following month, defendant Susan Bell and Andrea Plotkin arranged for
Centimark, a national roofing contractor, to inspect all the roofs at the Blue Springs
Village Shopping Center.36 In its “Roof Assessment and Proposed Solution,” a
twenty-page report accompanied by diagrams and photographs, Centimark concluded
that:
The roof [of the Dollar General] is in poor condition. A new roof
installation is now recommended. This roofing work is suggested now
to eliminate the risk of expensive tear off and potential deck replacement
associated with continued repairs or re-roofing delays.
....
Deck: [As of the date of the assessment,] the structural deck of
the roof appears to be in good condition from the underside. There were
34

Doc. no. 57-1 (2009 Roof Replacement Proposals), at 2.

35

Id. (alteration supplied).

36

Id. at 6.

9

no visible deficiencies noted that caused concern.
C

(All) Ceiling Tiles - Deteriorated - Not visually appealing and
safety issues may arise. (see photo)

C

(All) Ceiling Tiles - Stained - Not visually appealing and safety
issues may arise. (see photo)

C

(All) Water Collection Containers - Not visually appealing and
safety issues may arise. (see photo)37

By some point in 2009, the rust on the deck was visible from the floor of the
store through the holes in the ceiling tiles, which allowed Tip Top Roofing Contractor
Sammie Earskine to show the rust to defendant Susan Bell and the managers of the
Dollar General, including the rust in the area through which Mr. Shaneyfelt later
fell.38 Mr. Earskine told Ms. Bell that the deck was “bad,” and he told the managers
that the roof was becoming dangerous because the leaks trapped water on top of the
deck, and the more water stayed on the deck, the worse it would get.39
Although defendant Susan Bell informed defendants REC I and JPP that the
roof of the Dollar General needed to be replaced in every management report she
prepared for the owners of the Blue Springs Village Shopping Center between
January and August of 2009, defendants did not take action.40 Tip Top Roofing made
37

Id. at 21 (emphasis in original) (alterations supplied).

38

Doc. no. 56-2 (Deposition of Sammie Earskine), at 43-44, 47-48, 58-60, 62-64, 84.

39

Id.

40

Doc. no. 59-6 (2009 Management Reports).

10

one last attempt to repair the Dollar General roof in July of 2009, which required that
roofers traverse the roof with heavy equipment.41 However, because Tip Top Roofing
had been working on the roof for the five previous years, its roofers already knew
where the deck had deteriorated, and were able to work around the damage.42
After Tip Top Roofing went out of business in December of 2010, defendant
Susan Bell testified that the Blue Springs Village Shopping Center did not have a
roofer until she hired Mr. Shaneyfelt in July of 2011.43 However, Teresa Sanders, a
Dollar General employee, was confident that the store’s roof had been inspected by
multiple roofers in 2010 and 2011.44 Thus, assuming that the roof continued to leak
between Tip Top Roofing’s last repair in 2009, and Mr. Shaneyfelt’s first repair in
2011, the parties have presented conflicting evidence on whether those leaks were
addressed.45
D.

Mr. Shaneyfelt’s Work on the Dollar General Roof
Mr. Shaneyfelt was an independent roofing subcontractor with All-Star

41

Doc. no. 56-1 (Deposition of Susan Bell), at 56-61, 67-69; doc. no. 56-2 (Deposition of
Sammie Earskine), at 44-48, 96; doc. no. 59-1 (DGM 2009-2011 Roof Work History).
42

See doc. no. 43-2 (Deposition of Susan Bell), at 67-69; doc. no. 43-9 (Deposition of
Sammie Earskine), at 44-48, 96.
43

Doc. no. 43-2 (Deposition of Susan Bell), at 65-66.

44

Doc. no. 50-1 (Deposition of Teresa Sanders), at 33, 35-36, 46.

45

See doc. no. 43-2 (Deposition of Susan Bell), at 56-61; doc. no. 50-1 (Deposition of Teresa
Sanders), at 33, 35-36, 46; doc. no. 49-2 (Deposition of Bruce Akers), at 26.

11

Roofing and Construction, LLC (“All-Star Roofing”), an entity that focused on the
repair and installation of residential roofing, did not hold a general contractor’s
license, and was not qualified to perform commercial roofing (such as the roofing at
issue in this action) of more than $50,000 in value.46 By dedicating his post-high
school career exclusively to roofing, Mr. Shaneyfelt had amassed over twenty years
of experience in that trade.47 Because foul weather often causes roof damage, and
creates the need for roofers, Mr. Shaneyfelt frequently “chased storms” in search of
work.48 He arrived in Huntsville shortly after tornados struck the area in April of
2011.49
Four months later, defendant Susan Bell contracted with All-Star Roofing to
repair leaks in the roof of another tenant at the Blue Springs Village Shopping
Center.50 As All-Star Roofing’s subcontractor, Mr. Shaneyfelt became the only roofer
to work at the shopping center until his fall on October 12 of the same year.51
Because the Dollar General retail store at issue was located in Huntsville, Alabama,
whereas Ms. Bell resided in Alpharetta, Georgia, performed the job duties of a
46

Doc. no. 43-4 (Deposition of Adam Brooks), at 18-19, 31-32, 34.

47

Id. at 36-37, 97-98; doc. no. 43-6 (Deposition of Lori Jane Shaneyfelt), at 30-32.

48

Doc. no. 43-4 (Deposition of Adam Brooks), at 29-30.

49

Id. at 18-19.

50

Doc. no. 43-2 (Deposition of Susan Bell), at 64.

51

Id. at 65-66.

12

property manager from her home office, and only visited the shopping center on a
quarterly basis, Mr. Shaneyfelt and Ms. Bell communicated primarily through email.52
On August 26, 2011, defendant Susan Bell sent Mr. Shaneyfelt an e-mail to
inform him that Dollar General employees had reported several leaks in the roof of
the store.53 Ms. Bell asked Mr. Shaneyfelt to interview the manager, examine the
leaks, and estimate the cost of repairs.54 Ms. Bell’s e-mail did not mention that in
2004, the roof had deteriorated to the extent that water was pouring through the deck
onto the floor, which essentially required the installation of a new roof in a 50 square
foot area of the store;55 nor did she disclose that, in 2009, Tip Top Roofing Contractor
Sammie Earskine had told Ms. Bell that the deck was “bad,” and showed her the rust
on the deck, including the rust in the area through which Mr. Shaneyfelt later fell.56
Upon receiving defendant Susan Bell’s e-mail regarding the leaks in the Dollar
General roof, Mr. Shaneyfelt agreed to photograph the areas, “trouble shoot” the

52

Doc. no. 1 (Complaint) ¶ 2; doc. no. 43-2 (Deposition of Susan Bell), at 8-9, 69-70.

53

Doc. no. 43-2 (Deposition of Susan Bell), at 68-69; doc. no. 43-7 (E-Mail Dated Aug. 26,
2011 from Susan Bell to Dan Shaneyfelt), at JPP 0038-39.
54

Id.

55

Doc. no. 56-1 (Deposition of Susan Bell), at 37; doc. no. 56-2 (Deposition of Sammie
Earskine), at 26, 58-61; doc. no. 59-4 (2004 Roof and Deck Replacement).
56

Doc. no. 56-2 (Deposition of Sammie Earskine), at 43-44, 47-48, 58-60, 62-64, 84.

13

leaks, and provide Ms. Bell with an estimate for the repairs.57 When Mr. Shaneyfelt
arrived at the store, he requested a history of the leaks from Dollar General manager
Teresa Sanders, but she testified that she was not sure how long they had existed.58
At the time of Mr. Shaneyfelt’s visit, the underside of the deck was visible from the
floor of the store through gaps in the ceiling tiles, but the view was obstructed by duct
work and support beams, and Mr. Shaneyfelt did not remove any ceiling tiles to
improve visibility.59
Four days later, on August 30, 2011, Mr. Shaneyfelt sent defendant Susan Bell
an e-mail that proposed the same solution as the one that Centimark, a national
roofing contractor, had suggested in April of 2009: that is, to replace the Dollar
General roof.60 The e-mail did not mention the condition of the deck.61 Mr.
Shaneyfelt based his recommendation on diagrams of three major leaks on the main
floor and two in the back storeroom, one of which corresponded with the area of the

57

Doc. no. 43-2 (Deposition of Susan Bell), at 68-69; doc. no. 43-7 (E-Mail Dated Aug. 26,
2011 from Susan Bell to Dan Shaneyfelt), at JPP 0038-39.
58

Doc. no. 50-1 (Deposition of Teresa Sanders), at 21-22, 32, 64-67.

59

Doc. no. 43-18 (Photographs Attached to E-Mail Dated Aug. 30, 2011 from Dan
Shaneyfelt to Susan Bell), at Shaneyfelt 150; doc. no. 50-1 (Deposition of Teresa Sanders), at 20-21,
28-29, 54-55; doc. 53-1 (Deposition of Matt Sams), at 35; doc. 54-1 (Kachele Roof Decking
Condition Investigation), at JPP 242.
60

Compare doc. no. 43-8 (E-Mail Dated Aug. 30, 2011 from Dan Shaneyfelt to Susan Bell),
at JPP 0037 with doc. no. 57-1 (2009 Roof Replacement Proposals), at 21.
61

See doc. no. 43-8 (E-Mail Dated Aug. 30, 2011 from Dan Shaneyfelt to Susan Bell).

14

storeroom through which he later fell,62 and on photographs from the floor of the
store, some of which showed parts of the underside of the deck as seen through the
gaps in the ceiling tiles, but none of which depicted rusted decking.63
In his August 30 e-mail to defendant Susan Bell, Mr. Shaneyfelt also noted
that, after measuring and photographing the worst leaks from inside the Dollar
General, he continued the inspection by climbing onto the roof of the store, where he
measured and photographed the major leaking areas and prior repair attempts.64 Mr.
Shaneyfelt reported that, “over the years,” other roofers had made repairs that
temporarily stopped the leaks by “chas[ing] [them] to a different spot,” and that some
of the repairs had created “[d]am-like areas that probably [held] water” and caused
“air pockets” in the roofing membrane, likely from the use of products not compatible
with the materials in the roof.65
During his inspection of the Dollar General roof, Mr. Shaneyfelt was

62

Id. at JPP 0037; doc. no. 43-15 (Dan Shaneyfelt Dollar General Diagram), at JPP 0033;
doc. no. 43-16 (Deposition of Barry Leach), at 111-12; doc. no. 43-17 (Deposition of Matthew
Sams), at 138-39.
63

Doc. no. 43-8 (E-Mail Dated Aug. 30, 2011 from Dan Shaneyfelt to Susan Bell); doc. no.
43-18 (Photographs Attached to E-Mail Dated Aug. 30, 2011from Dan Shaneyfelt to Susan Bell),
at Shaneyfelt 149-52; doc. no. 52-1 (Deposition of Ben Hixson), at 61.
64

Doc. no. 43-8 (E-Mail Dated Aug. 30, 2011 from Dan Shaneyfelt to Susan Bell); doc. no.
18 (Photographs Attached to E-Mail Dated Aug. 30, 2011from Dan Shaneyfelt to Susan Bell).
65

Id. (alterations supplied).

15

accompanied by Adam Brooks, the owner of All-Star Roofing.66 Because his
company generally performed residential roofing, Mr. Brooks did not “know much
about commercial roofing,” and did not consider himself qualified to offer an opinion
on its condition.67 Thus, rather than supervising Mr. Shaneyfelt’s work, Mr. Brooks
came at Mr. Shaneyfelt’s request to assist with the measurement of the leaks.68 Even
so, Mr. Brooks, like Mr. Shaneyfelt, climbed onto the roof and noted the existence
of an “air pocket” that measured six to eight square inches and appeared to have “a
little water under it.”69
Three weeks after e-mailing defendant Susan Bell the results of his inspection
of the Dollar General roof, Mr. Shaneyfelt e-mailed her an estimate for addressing the
roof’s frequent leaks.70 Mr. Shaneyfelt offered Ms. Bell two alternatives: i.e., to
repair the leaks for $45,000, subject to a one-year warranty; or to recover the entire
roof for $152,000, subject to a five-year warranty.71 Again, the e-mail did not
mention the condition of the deck.72 Although All-Star Roofing was not licensed as

66

Doc. no. 43-4 (Deposition of Adam Brooks), at 52-53, 59.

67

Id. at 18-19, 31-32, 34, 62.

68

Id. at 52.

69

Id. at 52-53, 59-61.

70

Doc. no. 43-21 (E-Mail Dated Sept. 23, 2011from Dan Shaneyfelt to Susan Bell), at JPP

71

Id.; doc. no. 43-23 (Estimate), at JPP 0034-36.

72

See id.

0032.

16

a general contractor, and could not perform commercial roofing of more than $50,000
in value, Mr. Shaneyfelt’s estimate listed All-Star Roofing as the entity that would
warranty the labor.73
The following month, on October 12, 2011, defendant Susan Bell sent Mr.
Shaneyfelt an e-mail apparently quoting a message from the corporate office of
defendant Dolgencorp, which operated the Dollar General retail store, to defendant
JPP, which managed the Blue Springs Village Shopping Center.74 In the message,
Dolgencorp stated:
Please have technicians dispatched for roof leaks. — Bruce/Mgr
at the site states they have 4 roof leaks in the store. 2 are pretty bad. He
states that there is 1 one sales floor toward the back and 1 in the stock
room - these are the bad 2. They do have buckets down and wet floor
signs.75
Accordingly, Ms. Bell instructed Mr. Shaneyfelt that:
Dollar General Corporate - reported the following leaks. Please
see Bruce the store manager to discuss the 4 leaks and let me know what
we can do for cheap repairs to these areas (See below) as we do not have
funds to replace roof at this time.76
Later that day, while Mr. Shaneyfelt was assessing the leaks from the top of the
73

Doc. no. 43-4 (Deposition of Adam Brooks), at 72; doc. no. 43-21 (E-Mail Dated Sept. 23,
2011from Dan Shaneyfelt to Susan Bell).
74

Doc. no. 43-24 (E-Mail Dated Oct. 12, 2011 from Susan Bell to Dan Shaneyfelt), at JPP

75

Id.

76

Id.

0031.

17

Dollar General roof, a portion of the deck gave way, and he fell through the roof into
the storeroom.77 Mr. Shaneyfelt died from injuries sustained in his fall.78
E.

Evidence of the Condition of the Roof on the Day of the Fall
After Mr. Shaneyfelt’s death, plaintiff retained two experts, Matt Sams and

Barry Leach.79 Mr. Leach testified that the rust on the Dollar General deck was
visible from some points on the floor of the store.80 However, one Dollar General
employee testified that the rust on the deck was not visible from the floor of the
storeroom,81 and another employee testified that the deck itself was not visible from
the floor in the area of the storeroom where Mr. Shaneyfelt fell.82
In any event, plaintiff’s experts agreed that the presence of rust on the surface
of a deck does not necessarily indicate that the deck is structurally unsound.83
Accordingly, expert Matt Sams testified that the deck’s “structural inadequacies . . .
were not obvious to Mr. Shaneyfelt on the day of the accident.”84 Even so, expert

77

Doc. no. 22 (Amended Complaint) ¶ 3.

78

Id.

79

Doc. no. 43-16 (Deposition of Barry Leach), at 6; doc. no. 43-17 (Deposition of Matt
Sams), at 7.
80

Doc. no. 16 (Deposition of Barry Leach), at 55-57, 149-50.

81

Doc. no. 49-2 (Bruce Akers), at 43-44.

82

Doc. no. 50-1 (Deposition of Teresa Sanders), at 38.

83

Doc. no. 43-16 (Deposition of Barry Leach), at 150-51, 157; doc. no. 53-1 (Deposition of
Matt Sams), at 43-45.
84

Doc. no. 53-1 (Deposition of Matt Sams), at 51-55.

18

Barry Leach testified that, based upon Mr. Shaneyfelt’s years of experience, he
should have recognized that rust can weaken a metal deck over the long term.85
As further evidence of the condition of the Dollar General roof, The Kachele
Group of consulting structural engineers (“Kachele”) “provide[d] a visual engineering
assessment of the roof structure” at the Dollar General and other spaces at the Blue
Springs Village Shopping Center.86

To conduct their examination, Kachele

employees used scissor lifts to access the undersides of the ceilings, including the
area of the Dollar General roof where Mr. Shaneyfelt fell.87
Inside the Dollar General, the engineers found “[f]ully deteriorated roof
decking . . . in areas with intact paint surfaces and surfaces evidencing only tiny
pinholes or blemishes on the painted surfaces. These were identified by random
pushing up from below.”88 More specifically:
We observed many gradations of the severity of the corrosion of
the roof decking, which illustrated a full spectrum of stages in the
degradation of the decking. The corrosion began with little to no visible
indication from below, but which was detectible by pushing on the
decking from below. In a location approximately 2’ from visibly
corroded roof decking but itself showing no signs of distress, we were
able to push on the underside of the roof decking with hand pressure and
85

Doc. no. 43-16 (Deposition of Barry Leach), at 207.

86

Doc. no. 49-1 (Contech Services Roof Condition Investigation), at JPP 265 (alteration
supplied).
87

Doc. no. 54-1 (Kachele Roof Decking Condition Investigation), at JPP 242.

88

Id. at 244 (alteration supplied).

19

cause the roof decking to crush and crack.
The first visible stage of corrosion was the formation of pinholes
in the valleys of the roof decking. They appeared as brown dots, but
with light pressure (using a broom handle) we easily pushed through the
decking. After puncturing one of the pinholes, water started seeping
from it. As the corrosion expanded, the pinholes grew closer together,
until they severed the valleys of the roof decking, exposing the substrate
of the roofing above.
The specific areas exhibiting obvious severe corrosion of the steel
roof decking were as follows: northwestern area of [the Dollar General]
(approximately 25’ x 40’); southeastern area of [the Dollar General]
(approximately 20’ x 30’) where [Mr. Shaneyfelt’s] fall occurred;
northeastern area of [the Dollar General] (approximately 10’ x 20’); and
the northeastern area of [another store] (approximately 15’x15’).
Roof Decking Analysis
Approximately 6% of the roof of [the Dollar General] and
approximately 3% of the roof of [the other store] are in obvious
advanced stages of corrosion and should be immediately considered
incompetent and unsafe. [The Dollar General] has many other less
severe visibly corroded sections of roof decking, while the majority of
the store (as observed through limited scissors-lift access points) shows
no significant visible signs of corrosion in the painted underside of the
roof decking.
Based on the fact that even an area evidencing no paint damage
from below has corroded to the point that hand pressure pushed through
the metal decking, we do not consider the deck’s visual appearance to
be a sufficient indicator of the adequacy of the metal decking. Because
the corrosion of the roof decking initiates on the top surface of the
decking that is hidden from observation, there is no way to know for
certain the true condition of the roof decking (without first removing all
of the roofing materials). However, based on the typical construction
and conditions observed, we consider it likely that the entire decking
20

system has been weakened by at least some degree of corrosion. Owing
to the likely presence of water trapped in its valleys, the roof decking
continues to corrode in areas that are not visible at this time.89
III. MOTION TO EXCLUDE A PORTION OF THE EVIDENCE OFFERED
BY PLAINTIFF’S EXPERTS
Defendants REC I/Blue Springs Limited Partnership, JP Properties, Inc., and
Susan Bell (collectively, the “Blue Springs defendants”) moved to exclude a portion
of the evidence offered by plaintiff’s experts, Matt Sams and Barry Leach.90 Those
defendants argue that both experts have “offered opinions that will not assist the trier
of fact in determining a fact in issue and are not based upon their respective
education, training, or experiences.”91
A.

The Requirements of Federal Rule of Evidence 702
Federal Rule of Evidence 702, pertaining to opinion testimony offered by so-

called “expert witnesses,” was most recently revised by amendments that became
effective on December 1, 2011. The present version of the rule reads as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
89

Id. at 243-44 (alterations supplied).

90

See doc. no. 46 (Motion to Exclude).

91

Id. at 2.

21

determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.92 That rule compels district courts to perform “gatekeeping”
functions when determining the admissibility of expert scientific and technical
evidence. See, e.g., United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir. 2005)
(quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc)).
92

According to the Advisory Committee Notes accompanying the present version of Rule
702, the rule was amended “as part of the restyling of the Evidence Rules to make them more easily
understood and to make style and terminology consistent throughout the rules. These changes are
intended to be stylistic only. There is no intent to change any result in any ruling on evidence
admissibility.”
The former version of Rule 702, as amended in 2000, in response to the Supreme Court’s
decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric
Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999),
read as follows:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702 (version in effect prior to Dec. 1, 2011).

22

“This function inherently requires the trial court to conduct an exacting analysis of
the foundations of expert opinions to ensure they meet the standards for admissibility
under Rule 702.” Id. (internal quotation omitted).
[T]he objective of that requirement is to ensure the reliability and
relevancy of expert testimony. It is to make certain that an expert,
whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (alteration supplied).
“The inquiry . . . is a flexible one” because, in any given case, “[m]any factors will
bear on the inquiry, and . . . [there is no] definitive checklist or test.” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (alterations
supplied). Factors that may be relevant include:
(1) whether the theory or technique can be (and has been) tested, (2)
whether the theory or technique has been subjected to peer review and
publication, (3) in the case of a particular . . . technique, the known or
potential rate of error, and (4) whether the theory or technique is
generally accepted by the relevant . . . community.
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010)
(internal quotation marks and alterations omitted).93
93

Additional factors that may be taken into account by a district court include:

(1) Whether the expert is proposing to testify about matters growing naturally
and directly out of research he has conducted independent of the litigation, or
whether he has developed his opinion expressly for purposes of testifying;

23

With regard to the requirement that the proffered expert testimony assist “the
trier of fact to understand the evidence or to determine a fact in issue,” Fed. R. Evid.
702, the Eleventh Circuit has held that such “testimony generally will not help the
trier of fact when it offers nothing more than what lawyers for the parties can argue
in closing arguments.” Frazier, 387 F.3d at 1262-63 (11th Cir. 2004). Accordingly,
“[a]n expert may not . . . testify to the legal implications of conduct; the court must
be the jury’s only source of law.” Nicholson v. McCabe, No. CV-02-H-1107-S, 2003
WL 25676474, *1 (N.D. Ala. June 2, 2003) (alteration supplied) (citing Montgomery
v. Aetna Casualty & Surety Co., 898 F.2d 1537, 1541 (11th Cir. 1990)). Likewise,
“‘[a]n expert may not . . . merely tell the jury what result to reach.’” Id. (alteration
supplied) (quoting Montgomery, 898 F.2d at 1541).
Plaintiff has disclosed two experts: Barry Leach, a professional with thirtynine years of commercial roofing experience; and Matt Sams, a North Carolina-based,

(2) Whether the expert has unjustifiably extrapolated from an accepted to an
unfounded conclusion;
(3) Whether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting;
(4) Whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.
Fed. R. Evid. 702 advisory committee’s note to 2000 amends. (internal citations omitted).

24

licensed civil engineer with a structural engineering and construction background.94
Neither Mr. Leach nor Mr. Sams has any education, training, or experience as a
property manager.95 Further, Mr. Sams has never worked as a commercial roofer, and
has no experience or training in commercial roofing.96
Rather than requesting “that Sams and Leach be completely excluded from
testifying,” the Blue Springs defendants “seek only to exclude (1) Sams’ [sic] and
Leach’s testimony and opinions related to the duties owed by a property manager to
a roofing contractor, and the alleged breach thereof; and (2) Sams’ [sic] testimony and
opinions regarding the duties and reasonableness of actions taken by a commercial
roofer.”97

The Blue Springs defendants argue that, “[l]acking the required

‘knowledge, skill, experience, training, or education’ as property managers means that
neither Sams nor Leach are qualified to testify that Defendants owed any duty to Mr.
Shaneyfelt, much less that they breached any such duty.”98
94

Similarly, those

Doc. no. 47-1 (Expert Report of Barry Leach); doc. no. 43-17 (Deposition of Matt Sams),

at 71.
95

See doc. no. 43-16 (Deposition of Barry Leach), at 188-89; doc. no. 73-17 (Deposition of
Matt Sams), at 60-61.
96

Doc. no. 43-17 (Deposition of Matt Sams), at 77, 83.

97

Doc. no. 65 (Reply in Support of Motion to Exclude), at 3 (alterations supplied). For
example, the Blue Springs defendants do not seek to exclude the testimony of plaintiff’s experts
“regarding what contractors and engineers expect from property owners and property managers.”
Id. at 4. Defendants also acknowledge that Mr. Sams “is likely qualified to testify regarding the
structural integrity of the Dollar General roof and the factors that may have affected such integrity.”
Id. at 7.
98

Id. at 4 (alteration supplied).

25

defendants assert that Mr. Sams’s “education, skills, and experiences as a structural
engineer and in the construction industry do not qualify him to testify as an expert
with regard to the knowledge, actions, and expectations of a commercial roofer.”99
According to the Blue Springs defendants, “[t]he testimony and opinions sought to
be excluded. . . are nothing more than Sams’ and Leach’s opinions regarding the legal
implications of Defendants’ conduct.”100
Indeed, plaintiff’s experts have offered a number of legal conclusions regarding
the issues of whether plaintiff has established her claim of negligence, and whether
defendants have established their affirmative defenses. Plaintiff’s experts have
offered opinions about such questions of law as the following: whether defendants
owed Mr. Shaneyfelt a duty101 whether defendants breached that duty;102 whether Mr.
Shaneyfelt’s actions were “reasonable”;103 and whether the defect in the Dollar
General roof was “open and obvious.”104 While experts may offer their opinions on
99

Id. at 7.

100

Id. at 8 (alteration supplied).

101

See, e.g., doc. no. 47-1 (Expert Report of Barry Leach) ¶ 3 (“Employees of Dollar General
and J.P. Properties had a duty to warn Mr. Shaneyfelt of the roof’s weakened condition.”).
102

See, e.g., doc. no. 47-2 (Expert Report of Matt Sams) ¶ 13 (“It was not reasonable for the
property owner/manager to allow the metal deck to deteriorate until it had little to no capacity.”).
103

See, e.g., id. ¶ 16 (“Given the absence of any warnings regarding safety or diminished deck
capacity, it was reasonable for Mr. Shaneyfelt to walk upon the subject roof in response to the
property manager/owner’s request for roof remedies.”).
104

See, e.g., doc. no. 47-1 (Expert Report of Barry Leach) ¶ 1 (“The defect in the area of the
roof from which Mr. Shaneyfelt fell was not, and should not have been, open and obvious to Mr.

26

ultimate issues of fact, they may not testify about conclusions of law, such as the
“legal implications of conduct.” Nicholson, 2003 WL 25676474, at *1 (citing
Montgomery, 898 F.2d at 1541). Accordingly, this court will grant the motion to
exclude the opinions of plaintiff’s experts’ regarding the issues of whether the parties
have established their claims and defenses.
IV. MOTION TO STRIKE AN AFFIRMATIVE DEFENSE ASSERTED BY
THE BLUE SPRINGS DEFENDANTS
Plaintiff has moved to strike the Blue Springs defendants’ affirmative defense
that the defect in the Dollar General roof was “open and obvious” because those
defendants did not assert that defense in their answers to plaintiff’s complaint before
they raised that defense in their summary judgment motion.105 Federal Rule of Civil
Procedure 8(c) provides that, “[i]n responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P. 8(c)
(alteration supplied). “[F]ailure to plead an affirmative defense generally results in
a waiver of that defense.” Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th
Cir. 2010) (alteration supplied) (citing Jackson v. Seaboard C. L. R. Co., 678 F.2d
992, 1012 (11th Cir. 1982)).
Shaneyfelt.”).
105

See doc. no. 58 (Motion to Strike), at 3; see also doc. no. 27 (Answer to Amended
Complaint by Susan Bell); doc. no. 28 (Answer to Amended Complaint by J.P. Properties, Inc.); doc.
no. 29 (Answer to Amended Complaint by REC I/ Blue Springs Limited Partnership).

27

The Blue Springs defendants claim that the openness and obviousness of a
danger is not an affirmative defense, but “a question of the duty owed” implicated by
their affirmative defenses of contributory negligence and risk assumption.106 While
those defendants are correct that the argument that a defect is “open and obvious”
may be relevant to other affirmative defenses, multiple federal and state courts have
held that the argument is also, itself, an affirmative defense.107 The Blue Springs
defendants claim that “none of those cases involve an independent contractor,”108 but
they cite no authority for the proposition that a plaintiff’s employment status can
transmute a defense’s affirmative nature. Indeed, defendant Dolgencorp did assert
openness and obviousness as an affirmative defense.109
Having held that the “argument that the condition that caused [a] fall was open
and obvious is an affirmative defense,” Arnold v. Wal-Mart Stores, Inc., No.

106

Doc. no. 62 (Response to Motion to Strike), at 2, 7.

107

See, e.g., Arnold v. Wal-Mart Stores, Inc., No. 2:08-CV-1021-WC, 2009 WL 4827389,
*14 (M.D. Ala. Dec. 10, 2009) (quoting Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 742 (2009)) (“[A
defendant’s] argument that the condition that caused [a plaintiff’s] fall was open and obvious is an
affirmative defense[.]”) (alterations supplied); Clemons v. Wal-Mart Stores, Inc., No.
06-0755-WS-B, 2007 WL 2412908, *13 (S.D. Ala. Aug. 20, 2007) (quoting Denmark v. Mercantile
Stores Co., 844 So. 2d 1189, 1194 (2002)) (“A premises owner’s contention that the condition
resulting in an invitee’s injury was open and obvious ‘is an affirmative defense[.]’”) (alteration
supplied); Clemons, 2007 WL 2412908 at *13 (quoting Fred’s Department Store v. Paschal, 923
So. 2d 1125, 1128-29 (Ala. Civ. App. 2005)) (“The store’s argument that the condition that caused
the customer’s fall was open and obvious is an affirmative defense[.]”) (alteration supplied).
108

Doc. no. 62 (Response to Motion to Strike), at 5.

109

See doc. no. 30 (Answer to Amended Complaint by Dolgencorp, LLC).

28

2:08-CV-1021-WC, 2009 WL 4827389, *14 (M.D. Ala. Dec. 10, 2009) (quoting
Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 742 (2009)), this court must address the
Blue Springs defendants’ request to amend their answers to assert that defense.110
Plaintiff filed her complaint against the Blue Springs defendants on December
30, 2011, and those defendants filed their answers on February 1, 2012, without
raising the “open and obvious” defense.111 This court entered a scheduling order on
March 19, 2012, providing that “[n]o causes of action, defenses or parties may be
added after May 10, 2012.”112 Plaintiff moved for leave to amend her complaint to
add Dolgencorp as a defendant on May 8, 2012, and this court granted the motion on
May 18 of the same year.113 The Blue Springs defendants filed their answers to
plaintiff’s amended complaint on June 19, 2012, but once again they did not plead the
“open and obvious” defense.114 More than eight months later, those defendants filed
a motion for summary judgment, in which they asserted that defense for the first

110

Id. at 9.

111

See doc. no. 1 (Complaint); doc. no. 8 (Answer to Complaint by REC I/ Blue Springs
Limited Partnership); doc. no. 9 (Answer to Complaint by J.P. Properties, Inc.); doc. no. 10 (Answer
to Complaint by Susan Bell).
112

Doc. no. 17 (Scheduling Order), at 1 (emphasis supplied).

113

See doc. no. 19 (Motion for Leave to File Amended Complaint); doc. no. 21 (Order); doc.
no. 22 (Amended Complaint).
114

See doc. no. 27 (Answer to Amended Complaint by Susan Bell); doc. no. 28 (Answer to
Amended Complaint by J.P. Properties, Inc.); doc. no. 29 (Answer to Amended Complaint by REC
I/ Blue Springs Limited Partnership).

29

time.115
“Both Rules 15 and 16 of the Federal Rules of Civil Procedure
facially guide the court’s decision whether to allow an untimely
amendment to the [pleadings].” Nobles v. Rural Cmty. Ins. Servs., 303
F. Supp. 2d 1279, 1283 (M.D. Ala. 2004) (Thompson, J.). Rule 15
provides that, “A party may amend its pleadings once as a matter of
course within: (A) 21 days after serving it, or (B) . . . 21 days after
service of a responsive pleading or 21 days after service of a motion
under [Fed. R. Civ. P.] 12(b), (e), or (f), whichever is earlier.” Fed. R.
Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave.” Fed. R.
Civ. P. 15(a)(2). Rule 15 states that, “The court should freely give leave
when justice so requires.” Id. Rule 16, on the other hand, requires the
district court to issue a scheduling order that “limit[s] the time to . . .
amend the pleadings.” Fed. R. Civ. P. 16(b)(3)(A). Once such an order
has been issued, the “schedule may be modified only for good cause.”
Fed. R. Civ. P. 16(b)(4).
Sorrells v. Lake Martin, Inc., No. 3:09-CV-710-MHT, 2011 WL 627049, *3-4 (M.D.
Ala. Feb. 14, 2011) (alterations in original) (emphasis supplied). In light of Rules 15
and 16, the Eleventh Circuit has adopted two, seemingly incompatible approaches to
untimely, affirmative defenses. In one line of cases:
“The Eleventh Circuit Court of Appeals has found that Rule 16’s
good-cause standard governs a party’s ability to amend [its pleading]
after the district court has entered a scheduling order.” Nobles, 303 F.
Supp. 2d at 1283 (citing Sosa v. Airprint Sys., 133 F.3d 1417, 1418 n.2
(11th Cir. 1998)). “It is only after the court addresses whether the
proposed amendment may be granted under Rule 16 that the court is to
115

See doc. no. 43 (Motion for Summary Judgment by REC I/Blue Springs Limited
Partnership, JP Properties, Inc., and Susan Bell); doc. no. 44 (Brief in Support of Motion for
Summary Judgment by REC I/Blue Springs Limited Partnership, JP Properties, Inc., and Susan Bell).

30

determine whether it is proper under Rule 15.” Id. “If [the court]
considered only Rule 15(a) without regard to Rule 16(b), [it] would
render scheduling orders meaningless and effectively would read Rule
16(b) and its good cause requirement out of the Federal Rules of Civil
Procedure.” Sosa, 133 F.3d at 1419.
Sorrells, 2011 WL 627049, at *4-5 (alterations in original). Rule 16(b) requires
compliance with the good cause requirement, Smith v. School Board of Orange
County, 487 F.3d 1361, 1367 (11th Cir. 2007), and “precludes modification unless
the schedule cannot ‘be met despite the diligence of the party seeking the extension.’”
Sosa, 133 F.3d at 1418 (emphasis supplied) (citing Fed. R. Civ. P. 16 advisory
committee’s note). The Eleventh Circuit has taken this approach as recently as 2007
and, in an unpublished opinion, 2013. See Millennium Partners, L.P. v. Colmar
Storage, LLC, 494 F.3d 1293, 1299 (11th Cir. 2007); International Ship Repair &
Marine Services v. Northern Assurance Co. of America, No. 12-11717 & 12-12136,
2013 WL 28380, *2-3 (11th Cir. Jan. 3, 2013).
A second line of cases holds that “if a plaintiff receives notice of an affirmative
defense by some means other than pleadings, ‘the defendant’s failure to comply with
Rule 8(c) does not cause the plaintiff any prejudice.’” Grant v. Preferred Research,
Inc., 885 F.2d 795, 797 (11th Cir. 1989) (quoting Hassan v. U.S. Postal Service, 842
F.2d 260, 263 (11th Cir. 1988)). “In a case like this one, the reality of notice and the
reality of prejudice in fact must be considered.” Proctor v. Fluor Enterprises, 494
31

F.3d 1337, 1352 (11th Cir. 2007) (emphasis supplied).116 The Eleventh Circuit has
taken this approach as recently as 2012. See Pensacola Motor Sales, Inc. v. Eastern
Shore Toyota, LLC, 684 F.3d 1211, 1222 (11th Cir. 2012). Neither line of cases has
expressly overruled the other.
Out of an abundance of caution, this court will analyze the Blue Springs
defendants’ motion under both standards. To the extent that a party seeking to raise
an affirmative defense after the expiration of the scheduling order deadline must show
“good cause” for its delay, see, e.g., Sosa, 133 F.3d at 1418 n.2, the Blue Springs
defendants have not done so.117
To the extent that a party seeking to belatedly assert an affirmative defense may
prevail by showing the presence of notice and absence of prejudice, see Proctor v.
Fluor Enterprises, 494 F.3d 1337, 1352 (11th Cir. 2007), the Blue Springs defendants
have argued that “Plaintiff’s counsel has always understood that the open and obvious
nature of the defect would be an issue.”118 However, the fact that plaintiff’s counsel
understood that openness and obviousness would be “an issue” with regard to the
116

In contrast to the Eleventh Circuit’s approach in Proctor, a district court following the
approach in Sosa has held that “the standard for allowing an amendment after the Rule 16(b)
deadline has expired is ‘good cause,’ not lack of prejudice.” United States v. Contents of Bank of
America Account No. 9163, No. 10-0560-CG-B, 2012 WL 3641456, *1-2 (S.D. Ala. Aug. 23, 2012)
(emphasis supplied).
117

See doc. no. 62 (Reply to Motion to Strike), at 9-11.

118

Id. at 10.

32

Blue Springs defendant’s other affirmative defenses, and with regard to Dolgencorp’s
“open and obvious” defense, does not establish that plaintiff’s counsel understood the
Blue Springs defendants to have raised openness and obviousness as an affirmative
defense.
Further, plaintiff alleges that the Blue Springs defendants made a conscious
decision to defend this action by denying all knowledge of the condition of the Dollar
General roof,119 thereby forcing plaintiff to spend “a substantial amount of time,
energy, and resources locating and deposing independent witnesses that prove the
Defendants did have knowledge of the deteriorated condition of the roof.”120 Now
that plaintiff has expended her resources to defeat those defendants’ original defense,
she alleges that she would be prejudiced by their belated attempt to try a new tactic.121
For all of those reasons, this court will grant plaintiff’s motion to strike the Blue
Springs defendants’ affirmative defense that the defect in the Dollar General roof was
“open and obvious.”
V. MOTION FOR SUMMARY JUDGMENT

119

See doc. no. 56-1 (Deposition of Susan Bell), 8, 30-31, 73-74, 100-03; see also doc. no.
59 (Response to Motion for Summary Judgment by REC I/Blue Springs Limited Partnership, JP
Properties, Inc., and Susan Bell), at 17-23.
120

See doc. no. 54-2 (Deposition of Heath Jones); doc. no. 55-1 (Deposition of Shawn Terry);
doc. no. 56-2 (Deposition of Sammie Earskine); doc. no. 64-1 (Deposition of Elke Coleman).
121

Id.

33

The Blue Springs defendants and Dolgencorp have each moved for summary
judgment.122 To prove that defendants caused the wrongful death of Mr. Shaneyfelt
through negligence or wantonness under Alabama law, plaintiff must show that
defendants “owed him a duty, breached that duty, and injured him as a result of that
breach.” Kendrick v. Alabama Power Co., 601 So. 2d 912, 914 (Ala. 1992) (citing
Alabama Power Co. v. Smith, 409 So. 2d 760, 764 (Ala. 1982)). “The determination
of the existence of a duty is a question for the court.” Id.
The Blue Springs defendants deny the existence of a duty to Mr. Shaneyfelt
because “Alabama law is clear [that] ‘a premises owner . . . owes no duty of care to
employees . . . of an independent contractor . . . with respect to working
conditions.’”123 In support, the Blue Springs defendants cite Calloway v. PPG
Industries, Inc., 155 Fed. App’x 450, 452 (11th Cir. Nov. 18, 2005); Weeks v.
Alabama Electric Cooperative, Inc., 419 So. 2d 1381, 1383 (Ala. 1982); Kendrick,
601 So. 2d at 914; and Pope v. City of Talladega, 602 So. 2d 890 (Ala. 1992).
While the Blue Springs defendants are correct that a premises owner or
operator does not generally owe an independent contractor a duty regarding his
122

See doc. no. 43 (Motion for Summary Judgment by REC I/Blue Springs Limited
Partnership, JP Properties, Inc., and Susan Bell); doc. no. 45 (Motion for Summary Judgment by
Dolgencorp, LLP).
123

Doc. no. 61 (Reply in Support of Motion for Summary Judgment by REC I/Blue Springs
Limited Partnership, JP Properties, Inc., and Susan Bell), at 3 (alteration supplied).

34

working conditions, an owner or operator does owe the contractor a duty with regard
to the safety of the premises. See Elder v. E.I. DuPont De Nemours & Co., 479 So.
2d 1243, 1248 (Ala. 1985) (“Just as an owner has no liability to an independent
contractor for injuries occurring as a result of conditions arising during and in the
course of work to be performed, a general contractor has no liability to an
independent subcontractor’s employee who suffers an injury where the general
contractor did not retain possession or control of the premises.”) (emphasis
supplied).
“Under Alabama law, the premises owner is . . . under a duty to employees [of]
an independent contractor to maintain the premises in a reasonably safe condition,
except with respect to conditions arising in the progress of the work on the
contract.”124 Armstrong v. Aetna Insurance Co., 448 So. 2d 353, 355 (Ala. 1983)
(alteration supplied) (internal citations omitted).
[U]nder the law of Alabama, [the] . . . owner of the premises[] owe[s] .
. . an employee of an independent contractor[] the same duty a property
owner owes an invitee. This duty, as declared by the Alabama Supreme
Court in Claybrooke v. Bently, 1954, 260 Ala. 678, 72 So.2d 412, is to
maintain the premises in a reasonably safe condition and that an invitee
124

In its unaltered form, the above quotation states, “Under Alabama law, the premises owner
is also under a duty to employees as an independent contractor to maintain the premises in a
reasonably safe condition, except with respect to conditions arising in the progress of the work on
the contract.” Id. (alteration supplied). However, in the context of the opinion, it appears that the
use of the word “as” was a typographical error. For example, the following sentence discusses the
duty of “a premises owner to employees of independent contractors.” Id. (emphasis supplied).

35

assumes all normal or ordinary risks attendant upon the use of the
premises; further, that the owner is under no duty to reconstruct or alter
his premises to eliminate known or obvious dangers, and that he cannot
be held liable for injuries resulting from a dangerous condition which
was obvious, or should have been observed in the exercise of reasonable
care. See also Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 482, 52
So. 86.
Green v. Reynolds Metals Co., 328 F.2d 372, 374 (5th Cir. 1964) (alterations
supplied);125 see also Johns v. Pettibone Corp., 769 F.2d 724, 725 (11th Cir. 1985)
(assessing a landowner’s duty to the employee of an independent contractor under the
standard for an invitee); Bush v. Alabama Power Co., 457 So. 2d 350, 354 (Ala.
1984) (same).
In discussing a premises owner’s liability towards an independent
contractor, this Court has recognized that an “‘“owner of premises is not
responsible to an independent contractor for injury from defects or
dangers which the contractor knows of, or ought to know of.”’” Ex
parte Meadowcraft Indus., Inc., 817 So. 2d 702, 706 (Ala. 2001)
(quoting Glenn v. United States Steel Corp., 423 So. 2d 152, 154 (Ala.
1982), quoting in turn Veal v. Phillips, 285 Ala. 655, 657-58, 235 So. 2d
799, 802 (1970)). Moreover, “‘[t]here is no duty to warn’ … an
independent contractor ‘who has equal or superior knowledge of a
potential danger.’” Fielder v. USX Corp., 726 So. 2d 647, 650 (Ala.
1998) (quoting Alabama Power Co. v. Williams, 570 So. 2d 589, 592
(Ala. 1990)). Rather, a premises owner’s duty to warn arises when the
owner is aware “‘of dangers that are hidden on or inhere in that
property.’” Farr Metal, Inc. v. Hines, 738 So. 2d 863, 864 (Ala. 1999)
(quoting McGregory v. Lloyd Wood Constr. Co., 736 So. 2d 571, 575
125

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the
close of business on September 30, 1981.

36

(Ala. 1999), ultimately quoting Gulf Oil Corp. v. Bivins, 276 F.2d 753,
758 (5th Cir. 1960) (emphasis omitted)). A party claiming that a duty
to warn existed must show: “(1) that the defect or danger was ‘hidden’;
(2) that it was ‘known to the owner’; and (3) that it was ‘neither known
to the contractor, nor such as he ought to know.’” Meadowcraft, 817 So.
2d at 706 (quoting Glenn v. United States Steel Corp., 423 So. 2d at
154).
Roberts v. Nasco Equipment Co., 986 So. 2d 379, 383-84 (Ala. 2007). Defendants’
arguments on summary judgment go primarily to whether they owed Mr. Shaneyfelt
a duty.
A.

Was Defendant Dolgencorp an Invitor of Mr. Shaneyfelt?
Defendant Dolgencorp denies owing Mr. Shaneyfelt the duty owed by an

invitor to an invitee because Dolgencorp “was not the owner of the premises
[containing the Dollar General retail store,] and did not invite Shaneyfelt on the
premises [to repair the leaks in its roof]. Moreover, as the lessee, [Dolgencorp] did
not have rights or responsibilities of tending to the roof pursuant to its lease with
REC I.”126 Instead, argues Dolgencorp, defendants REC I, its property management
company (defendant JPP), and JPP’s director of operations (defendant Susan Bell),
were responsible for maintaining the property.127

126

Doc. no. 45-2 (Brief in Support of Motion for Summary Judgment by Dolgencorp, LLP),
at 4 (alteration supplied).
127

Doc. no. 43-1 (Deposition of Andrea Plotkin), at 9-10, 16; doc. no. 43-2 (Deposition of
Susan Bell), at 12-15.

37

Even so, it was the employees of the Dollar General who reported leaks to
defendants JPP and Susan Bell.128 Further, the lease gave Dolgencorp the right to
make repairs to the roof if defendant REC I failed to complete the repairs within thirty
days, and allowed Dolgencorp to make any repairs when “property loss or injury to
persons [was] threatened” — a right that Dolgencorp threatened to assert on four
occasions.129 The lease also required Dolgencorp to have maintenance performed on
its rooftop HVAC units at least four times a year.130
In support of its summary judgment motion, Dolgencorp cites Raspilair v.
Bruno’s Food Stores, Inc., 514 So. 2d 1022 (Ala. 1987).131 In Raspilair, the plaintiff
tripped and fell in the parking lot in front of the Bruno’s and Wal-Mart stores located
at a shopping center owned and operated by Hamilton Square Shopping Center, Inc.
Id. at 1023. The Supreme Court of Alabama affirmed the summary judgment in favor
of Bruno’s and Wal-Mart because plaintiff could not establish that they had a duty to
maintain the parking lot:

128

Doc. no. 45-5 (Deposition of Susan Bell), Exhibit 8 (Year-to-Date Ledger); doc. no. 45-6
(Deposition of James Hill), at 14-15; doc. no. 49-2 (Deposition of Bruce Akers), at 25; doc. no. 50-1
(Deposition of Teresa Sanders), at 56-57.
129

Doc. no. 60-1 (Dolgencorp Lease), JPP 70, ¶ 7 (alteration supplied); doc. no. 60-2
(Dolgencorp Default Letters).
130

Doc. no. 60-1 (Dolgencorp Lease), JPP 84, ¶ 37.

131

Doc. no. 45-2 (Brief in Support of Motion for Summary Judgment by Dolgencorp, LLP),

at 4.

38

Both Wal-Mart and Bruno’s had leases with Hamilton Square that
contained provisions obligating Hamilton Square to clean and maintain
the parking lot . . . . The record discloses no evidence that Wal-Mart or
Bruno’s was ever under a duty to maintain the parking lot, nor does it
disclose any evidence that Wal-Mart or Bruno’s ever undertook any
maintenance functions in the parking lot.
Id. at 1024. Raspilair is distinguishable on several grounds. While the parking lot
of the shopping mall in Raspilair was not exclusively occupied by any one of the
adjacent business, the Dollar General was exclusively occupied by defendant
Dolgencorp. Further, in contrast to the tenants in Raspilair, Dolgencorp was “under
a duty” to maintain the Dollar General’s rooftop HVAC units, “undertook” the
“functions” of reporting the leaks in the roof of the store, and reserved the right to
make emergency repairs when “property loss or injury to persons is threatened.”132
“In Alabama the duty owed by an owner or occupier of premises to an invitee
or independent contractor injured by a dangerous instrumentality on those premises
is well settled[.]” Wallace v. Tri-State Motor Transit Co., 741 F.2d 375 (11th Cir.
1984) (alteration and emphasis supplied); see also Mitchell v. Moore, 406 So. 2d 347,
349 (Ala. 1981) (noting a judgment against both the property owner and the tenant
business on a slip and fall claim). Accordingly, this court holds that Dolgencorp was
an invitor of Mr. Shaneyfelt.
132

Doc. no. 60-1 (Dolgencorp Lease), JPP 70, ¶ 7 (alteration supplied); doc. no. 60-2
(Dolgencorp Default Letters).

39

B.

Did the Roof Have a Hidden Defect, and Did Mr. Shaneyfelt Have Actual
or Constructive Knowledge of the Defect?
All four defendants claim that the defect in the Dollar General roof was not

hidden, and that Mr. Shaneyfelt knew or should have known of the defect based on
the rust on the deck.133 However, the parties have presented conflicting evidence on
the visibility and significance of the rust before Mr. Shaneyfelt’s fall.
Tip Top Roofing Contractor Sammie Earskine testified that, by some point in
2009, the rust on the Dollar General deck was visible from the floor of the store
through the holes in the ceiling tiles, including the rust in the area through which Mr.
Shaneyfelt later fell.134
However, in April of 2009, Centimark, a national roofing contractor, examined
the roof and reported that, as of the date of the assessment, “the structural deck of the
roof appears to be in good condition from the underside. There were no visible
deficiencies noted that caused concern.”135
On August 30, 2011, Mr. Shaneyfelt attempted to “trouble shoot” the leaks in
the Dollar General Roofs by drawing diagrams of three leaks on the main floor and

133

Doc. no. 44 (Brief in Support of Motion for Summary Judgment by REC I/Blue Springs
Limited Partnership, JP Properties, Inc., and Susan Bell), at 22-27; doc. no. 45-2 (Brief in Support
of Motion for Summary Judgment by Dolgencorp, LLP), at 5-9.
134

Doc. no. 56-2 (Deposition of Sammie Earskine), at 43-44, 47-48, 58-60, 62-64, 84.

135

Doc. no. 57-1 (2009 Roof Replacement Proposals), at 21.

40

two in the back storeroom, one of which corresponded with the area of the storeroom
through which he later fell.136 Mr. Shaneyfelt also took photographs from the floor
of the store, some of which showed parts of the underside of the deck as seen through
the gaps in the ceiling tiles, but none of which showed rusted decking.137 In his email to defendant Susan Bell, Mr. Shaneyfelt proposed to replace the Dollar General
roof, and did not mention the condition of the deck.138
After Mr. Shaneyfelt’s death, plaintiff’s expert, Barry Leach, testified that the
rust on the Dollar General deck was visible from some points on the floor of the
store.139 Nevertheless, one Dollar General employee testified that the rust on the deck
was not visible from the floor of the storeroom,140 and another employee testified that
the deck itself was not visible from the floor in the area of the storeroom where Mr.
Shaneyfelt fell.141
In any event, plaintiff’s experts agreed that the presence of rust on the surface

136

Doc. no. 43-8 (E-Mail Dated Aug. 30, 2011 from Dan Shaneyfelt to Susan Bell), at JPP
0037; doc. no. 43-15 (Dan Shaneyfelt Dollar General Diagram), at JPP 0033; doc. no. 43-16
(Deposition of Barry Leach), at 111-12; doc. no. 43-17 (Deposition of Matthew Sams), at 138-39.
137

Doc. no. 43-8 (E-Mail Dated Aug. 30, 2011 from Dan Shaneyfelt to Susan Bell); doc. no.
43-18 (Photographs Attached to E-Mail Dated Aug. 30, 2011from Dan Shaneyfelt to Susan Bell),
at Shaneyfelt 149-52; doc. no. 52-1 (Deposition of Ben Hixson), at 61.
138

Doc. no. 43-8 (E-Mail Dated Aug. 30, 2011 from Dan Shaneyfelt to Susan Bell).

139

Doc. no. 16 (Deposition of Barry Leach), at 55-57, 149-150.

140

Doc. no. 49-2 (Bruce Akers), at 43-44.

141

Doc. no. 50-1 (Deposition of Teresa Sanders), at 38.

41

of a deck does not necessarily indicate that the deck is structurally unsound.142
Accordingly, expert Matt Sams testified that the deck’s “structural inadequacies . . .
were not obvious to Mr. Shaneyfelt on the day of the accident.”143 Even so, expert
Barry Leach testified that Mr. Shaneyfelt had enough experience to recognize that
rust can weaken a metal deck over the long term.144
Consulting structural engineers from The Kachele Group then used scissor lifts
to access the underside of the area of the Dollar General roof where Mr. Shaneyfelt
fell.145 The engineers found “[f]ully deteriorated roof decking . . . in areas with intact
paint surfaces and surfaces evidencing only tiny pinholes or blemishes on the painted
surfaces. These were identified by random pushing up from below.”146 Accordingly,
Kachele concluded that:
Based on the fact that even an area evidencing no paint damage
from below has corroded to the point that hand pressure pushed through
the metal decking, we do not consider the deck’s visual appearance to
be a sufficient indicator of the adequacy of the metal decking. Because
the corrosion of the roof decking initiates on the top surface of the
decking that is hidden from observation, there is no way to know for
certain the true condition of the roof decking (without first removing all

142

Doc. no. 43-16 (Deposition of Barry Leach), at 150-51, 157; doc. no. 53-1 (Deposition of
Matt Sams), at 43-45.
143

Doc. no. 53-1 (Deposition of Matt Sams), at 51-55.

144

Doc. no. 43-16 (Deposition of Barry Leach), at 207.

145

Doc. no. 54-1 (Kachele Roof Decking Condition Investigation), at JPP 242.

146

Id. at 244 (alteration supplied).

42

of the roofing materials).147
In sum, neither Mr. Shaneyfelt’s diagrams and photographs of the leaks in the
Dollar General roof, nor his e-mail to defendant Bell outlining his proposal for
repairing the roof, establish that Mr. Shaneyfelt knew of the existence of rust on the
deck. The testimony of Tip Top Roofing Contractor Sammie Earskine conflicts with
the testimony of two Dollar General employees regarding whether (and where) the
rust was visible from the floor of the store.
Further, assuming that Mr. Shaneyfelt knew of the rust, the testimony of Barry
Leach, one of plaintiff’s experts, clashes with the evidence from: Centimark, a
national roofing contractor; Matt Sams, plaintiff’s other expert; and Cachelle, a group
of consulting structural engineers, on the issue of whether the existence of rust was
sufficient to place Mr. Shanyefelt on notice that the deck had weakened to the point
that it could not support the weight of a person.
Even so, defendant Dolgencorp claims that the facts of this case are “strikingly
similar” to those of Ex parte Meadowcraft Industries, Inc., 817 So. 2d 702 (2001).148
In Meadowcraft, the Supreme Court of Alabama reversed a judgment in favor of the
employee of a subcontractor who injured his leg by climbing onto the conveyer belt
147

Id. at 243-44 (alterations supplied).

148

Doc. no. 45-2 (Brief in Support of Motion for Summary Judgment by Dolgencorp, LLP),

at 6.

43

that he was hired to repair. Id. at 710. “[T]he evidence in [the Meadowcraft case]
establishe[d] that [the premises owner], in fact, warned the independent contractor
of the dangers posed by the conveyor-belt system.” Id. at 709-10 (alterations and
emphasis supplied). In the case before this court, none of the four defendants warned
Mr. Shaneyfelt that the deck was rusted, that the deck was “bad,” or that the roof was
becoming dangerous.149
“[O]nce 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[.]” Mims v. Jack’s Restaurant,
565 So. 2d 609, 610 (Ala. 1990) (alterations supplied). Here, a reasonable factfinder
could interpret the conflicting evidence to indicate that the Dollar General roof had
a hidden defect, and that Mr. Shaneyfelt had neither actual nor constructive
knowledge of the defect. Accordingly, defendants cannot use those arguments to
defeat the existence of a duty, or to prevail on affirmative defenses requiring the
victim to appreciate the danger, including the existence of an “open and obvious”
defect, contributory negligence, or risk assumption.150
149

See doc. no. 56-2 (Deposition of Sammie Earskine), at 43-44, 47-48, 58-60, 62-64, 84
(describing what Tip Top Roofing Contractor Sammie Earskine told defendant Susan Bell and Dollar
General Managers).
150

An “open and obvious” defect is one that “the injured party should be aware of in the
exercise of reasonable care.” Williams v. Bruno’s Inc., 632 So. 2d 19, 22 (Ala. 1993) (emphasis
supplied). “To establish contributory negligence as a matter of law, a defendant seeking a summary

44

C.

Did Defendants Know the Condition of the Dollar General Roof?
All four defendants claim that they did not know the condition of the Dollar

General roof.151 However, it is undisputed that the roof “started leaking real bad”
when the store first opened in 2004, and continued to have numerous leaks until Mr.
Shaneyfelt’s fall on October 12, 2011.152 Within the year of the Dollar General’s
opening in 2004, the roof had deteriorated to the extent that water was pouring
through the deck onto the floor, which essentially required the installation of a new
roof in a 50 square foot area of the store.153
According to Tip Top Roofing Contractor Heath Jones, the roof of the Dollar
General leaked so often throughout the rainy season that he dealt with its property
manager, defendant Susan Bell, on a daily basis.154 Mr. Jones also testified that
judgment must show that the plaintiff put himself in danger’s way and that the plaintiff had a
conscious appreciation of the danger at the moment the incident occurred.” Sessions v.
Nonnenmann, 842 So. 2d 649, 653 (Ala. 2002) (emphasis supplied). “[T]o establish assumption of
risk, the defendant must prove that the plaintiff understood the danger involved.” Gean v. Cling
Surface Co., 971 F.2d 642, 646 (11th Cir. 1992) (alteration and emphasis supplied) (citing Slade v.
City of Montgomery, 577 So.2d 887, 892 (Ala.1991)).
151

Doc. no. 44 (Brief in Support of Motion for Summary Judgment by REC I/Blue Springs
Limited Partnership, JP Properties, Inc., and Susan Bell), at 17-20; doc. no. 45-2 (Brief in Support
of Motion for Summary Judgment by Dolgencorp, LLP), at 12.
152

Doc. no. 49-2 (Deposition of Bruce Akers), at 26; doc. no. 50-1 (Deposition of Teresa
Sanders), at 33-36; doc. no. 55-1 (Deposition of Shawn Terry), at 30-3; doc. no. 56-1 (Deposition
of Susan Bell), at 56-61; doc. no. 56-2 (Deposition of Sammie Earskine), at 12, 18-20; doc. no. 59-1
(DGM 2009-2011 Roof Work History).
153

Doc. no. 56-1 (Deposition of Susan Bell), at 37; doc. no. 56-2 (Deposition of Sammie
Earskine), at 26, 58-61; doc. no. 59-4 (2004 Roof and Deck Replacement).
154

Doc. no. 54-2 (Deposition of Heath Jones), at 39.

45

during the two and one half years he worked for Tip Top Roofing, the company was
called out to the Dollar General approximately fifty times.155 In 2008, Mr. Jones
informed Ms. Bell at least once that the deck was rusted, and “three or four times”
that the roof should be replaced.156
In March of 2009, Tip Top Roofing sent defendants JPP and Susan Bell an email with a quote for replacing the Dollar General roof, making a point of excluding
the cost of replacing the deck.157 Ms. Bell forwarded the quote to Andrea Plotkin, the
owner and president of JPP, expressing dismay at the price of the repairs, and noting
that the store had “2,000 to 3,000 [square feet] of rusted metal decking.”158
The following month, defendant Susan Bell and Andrea Plotkin arranged for
Centimark, a national roofing contractor, to inspect all the roofs at the Blue Springs
Village Shopping Center.159 In its “Roof Assessment and Proposed Solution,” a
twenty-page report accompanied by diagrams and photographs, Centimark concluded,
in part, that:
The roof [of the Dollar General] is in poor condition. A new roof
installation is now recommended. This roofing work is suggested now
to eliminate the risk of expensive tear off and potential deck replacement
155

Id. at 106-09.

156

Id. at 112-18.

157

Doc. no. 57-1 (2009 Roof Replacement Proposals), at 2.

158

Id. (alteration supplied).

159

Id. at 6.

46

associated with continued repairs or re-roofing delays.160
By some point in 2009, the rust on the deck was visible from the floor of the
store through the holes in the ceiling tiles, which allowed Tip Top Roofing Contractor
Sammie Earskine to show the rust to defendant Susan Bell and the managers of the
Dollar General, including the rust in the area through which Mr. Shaneyfelt later
fell.161 Mr. Earskine told Ms. Bell that the deck was “bad,” and he told the managers
that the roof was becoming dangerous because the leaks trapped water on top of the
deck, and the more water stayed on the deck, the worse it would get.162
On the basis of that evidence, a reasonable jury could conclude that all four of
the defendants were aware of the deterioration of the deck of the Dollar General roof.
See Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Thus,
plaintiff has presented sufficient evidence to survive all four defendants’ motions for
summary judgment on the issue of their knowledge of the defect.

See id.

Accordingly, plaintiff has established the existence of defendants’ duty to Mr.
Shaneyfelt.
D.

Did Defendant Dolgencorp’s Actions Constitute Wantonness?

160

Id. at 21 (emphasis in original) (alterations supplied).

161

Doc. no. 56-2 (Deposition of Sammie Earskine), at 43-44, 47-48, 58-60, 62-64, 84.

162

Id.

47

Defendant Dolgencorp denies that its actions rose the level of wantonness.163
“Wantonness” has been defined by [the Supreme] Court [of
Alabama] as 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.
Bozeman v. Central Bank of the South, 646 So. 2d 601 (Ala. 1994). To
constitute wantonness, it is not necessary that the actor know that a
person is within the zone made dangerous by his conduct; it is enough
that he knows that a strong possibility exists that others may rightfully
come within that zone. Joseph v. Staggs, 519 So. 2d 952, 954 (Ala.
1988). Also, it is not essential that the actor should have entertained a
specific design or intent to injure the plaintiff, only that the actor is
“conscious” that injury will likely or probably result from his actions.
Id. “Conscious” has been defined as “‘perceiving, apprehending, or
noticing with a degree of controlled thought or observation: capable of
or marked by thought, will, design, or perception’”; “‘having an
awareness of one’s own existence, sensations, and thoughts, and of
one’s environment; capable of complex response to environment;
deliberate.’” Berry v. Fife, 590 So. 2d 884, 885 (Ala. 1991) (quoting
Webster’s New Collegiate Dictionary 239 (1981) and The American
Heritage Dictionary of the English Language 283 (1969), respectively).
Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (alterations supplied). If a factfinder
decides that defendant Dolgencorp knew of the deterioration of the deck of the Dollar
General roof, the factfinder could determine that Dolgencorp likewise knew that
permitting Mr. Shaneyfelt to access the roof without warning him about the condition
of the deck would “likely or probably result” in injury. In Mitchell v. Moore, 406 So.
2d 347 (Ala. 1981), for example, the Supreme Court of Alabama affirmed a finding
163

Doc. no. 45-2 (Brief in Support of Motion for Summary Judgment by Dolgencorp, LLP),

at 12.

48

that a shopping mall owner acted wantonly by receiving knowledge of a dangerous
defect and failing to investigate or remedy the defect. Id. at 352-53. Thus, plaintiff
has presented sufficient evidence to withstand Dolgencorp’s motion for summary
judgment on the wantonness issue.
VI. CONCLUSION
For the reasons explained above, the motions to exclude the expert testimony
and to strike the affirmative defense are GRANTED, and the motions for summary
judgment are DENIED.
DONE this 7th day of March, 2013.

______________________________
United States District Judge

49