Mendez v. Walgreen Co.

Filing 15

MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Harwell G Davis, III on 06/17/15. (SPT )

FILED
2015 Jun-17 AM 10:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
REGINA MENDEZ,
Plaintiff
vs.
WALGREEN COMPANY,
Defendant

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Case No. 5:14-cv-01136-HGD

MEMORANDUM OPINION
The above-entitled civil action is before the court on the motion for summary
judgment filed by defendant. (Doc. 6). The parties have consented to the jurisdiction
of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P.
73. (Doc. 14). Plaintiff in this matter, Regina Mendez, brought this action alleging
that defendant, Walgreen Company (Walgreen’s), is liable to her for negligence
(Count One) and wantonness (Count Two), which resulted in injury to plaintiff when
she slipped and fell on a wet floor inside defendant’s business.

(Doc. 1-1,

Complaint). Plaintiff filed a response to defendant’s motion for summary judgment.
(Doc. 9). This motion is now ready for disposition.

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SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). Defendant, as the party seeking summary
judgment, bears the initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, which
it believes demonstrates the absence of a genuine issue of material fact. Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). A genuine issue of material fact is shown when
the non-moving party produces evidence so that a reasonable factfinder could return
a verdict in her favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263
(11th Cir. 2007). If the non-moving party fails to make a sufficient showing on an
essential element of her case with respect to which she has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. In
reviewing whether the non-moving party has met her burden, the court must stop
short of weighing the evidence and making credibility determinations of the truth of
the matter. The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d
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994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted). However,
speculation or conjecture cannot create a genuine issue of material fact. Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). A “mere scintilla of evidence”
in support of the non-moving party also cannot overcome a motion for summary
judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).
BACKGROUND INFORMATION
On the date of the event made the basis for this action, September 15, 2011,
plaintiff went to Walgreen’s to buy some cigarettes at around 6:00 p.m. (Doc. 6-2,
Plaintiff’s Depo., at 54-56). It was raining lightly, or “drizzling,” at the time plaintiff
entered the store. (Id. at 54, 65). She was driven to the store by her husband who let
her out directly in front of the entrance. He remained in front of the store. (Id. at 5960). There are twin doors on the front of the store, one on the left and one on the
right. The doors are separated from each other by a few feet. Initially, plaintiff
entered the store through the door on the right (as faced from the outside of the store).
(Id. at 58). Just inside each door was a small mat placed on the floor. Another larger
mat was on the floor just beyond these two mats. However, it was placed such that
it would be walked upon only by someone entering through door on the right. (Doc.
6-3, Photographs A-C).

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Once inside the store, plaintiff realized that she did not have enough money for
her cigarettes and she left to go back to her vehicle to get more money. (Id. at 58-59).
When she re-entered the store, plaintiff came through the door on the left. (Doc. 6-2,
Plaintiff’s Depo., at 60-61). When she stepped off the single mat in front of that door
onto the floor, plaintiff’s foot slid forward and she fell. (Doc. 6-3, Photographs E-F
and video; Doc. 6-2, Plaintiff’s Depo., at 87). Plaintiff was looking straight ahead
and was not looking down at the time of her fall. (Doc. 6-2, Plaintiff’s Depo., at 66).
Plaintiff did not see any water on the floor before she fell. However, she
asserts that the floor was wet at the time of her fall. When asked how she knew this,
plaintiff stated, “[b]ecause my butt was wet.” Plaintiff later stated that she did not
recall whether she looked to see if there was water on the floor after she got up after
her fall. In this regard, the following exchange occurred during her deposition:
Q. Did you at any time see any water on the floor there at any time?
A. I don’t know. I mean, I know when I left I noticed my butt was wet.
That’s how I knew that there was water – I don’t recall. I don’t – I don’t
recall. I don’t remember.
Q. You can’t testify that you had seen any water on the floor there at
any time, then, is that correct?
A. I don’t remember.
(Doc. 6-2, Plaintiff’s Depo., at 67-68).

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Plaintiff also did not recall seeing any dirt or debris on the floor at the time of
her fall. (Id. at 69-70). According to plaintiff, the large mat did not contribute to her
fall. (Id. at 90). Plaintiff testified that her husband, who observed her fall and came
into the store immediately afterward, did not tell her he saw anything on the floor.
(Id. at 71-72). Plaintiff also testified that her daughter, who also came into the store
immediately after plaintiff’s fall, said that she did not see or notice anything. (Id. at
72). Plaintiff has returned to this store once or twice since her fall but has not had
any discussions with anyone concerning how the fall may have happened. (Id. at 94).
DISCUSSION
A. Negligence
“In order to prove negligence, a plaintiff must show that the defendant
breached an existing duty, causing damage to the plaintiff.” Landreau v. Wal-Mart
Stores, Inc., 75 F.Supp.2d 1318, 1321 (M.D.Ala. 1999). In other words, a negligence
claim under Alabama law has four elements: duty, breach, causation and damages.
Palmer v. Infosys Techs. Ltd, Inc., 888 F.Supp.2d 1248, 1255 (M.D.Ala. 2012) (citing
Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala. 2001)).
Where, as here, the plaintiff is a store customer and, thus, a business invitee, the
defendant owes her a duty to exercise reasonable care in maintaining its premises

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[“]in a reasonably safe condition.” Bishop v. South, 642 So.2d 442, 445
(Ala. 1994). This duty requires [the defendant] 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). Generally, though, this duty does not make the
invitor liable “for injuries to an invitee resulting from a danger which
was known to the invitee or should have been observed by the invitee in
the exercise of reasonable care.” Quillen v. Quillen, 388 So.2d 985, 989
(Ala. 1980).
Landreau, 75 F.Supp.2d at 1321-22 (alterations supplied).
The parties assume that the foreign substance at issue in this case was
tracked-in rain water. Plaintiff asserts that there is a factual question regarding
whether the store should have taken more affirmative measures to prevent her fall.
According to plaintiff, the evidence reflects that the store employees knew of water
in the floor prior to plaintiff’s entry; had placed mats in front of the doors over the tile
floor which, in her opinion, did not adequately cover the area where the water was
tracked in; did not have a warning sign anywhere near the area where plaintiff fell;
and she fell just as she stepped off the mat on her way into the store. (Doc. 9,
Plaintiff’s Brief, at 13).
Alabama law is well established that rain water cases are unequivocally distinct
from other slip-and-fall cases. See Gulas v. Ratliff, 283 Ala. 299, 216 So.2d 278, 281
(1968) (“A fall caused by snow or rain is distinguishable from a fall resulting from
some other object as is usual in a slip and fall case.”). The testimony reflects that it
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was a rainy day and that plaintiff was aware that it had been raining. This is one of
the reasons why rain-caused slip-and-fall is different from a run-of-the-mill slip-andfall case. Despite plaintiff’s claim that Walgreen’s had superior knowledge of the
danger of wet floors that existed on the date of her fall, generally, everyone is aware
that, on rainy days, water splashes in and people track water inside of businesses.
Thus, business invitees are aware or should be aware that, if they enter a business on
a rainy day, the floor could be wet and slippery. See Ex parte Neese, 819 So.2d 584,
590 (Ala. 2001) (location of door mat coupled with being wet from the rain was
obvious to the plaintiff); Shelton v. Boston Fin., Inc., 638 So.2d 824, 825 (Ala. 1994)
(reasonable person would be expected to realize that rain would cause grass to
become slippery); Hines v. Hardy, 567 So.2d 1283, 1284 (Ala. 1990) (plaintiff knew
crosstie was wet from rain and thus, as a matter of law, was on notice of the slippery
condition); Lawson v. Williams, 514 So.2d 882, 883 (Ala. 1987) (plaintiff should
have known that leaves accumulated after rain would probably be wet and slippery).
However, the case law in Alabama seems to present conflicting conclusions
regarding when summary judgment is appropriate in such rainy-day cases. The
Alabama Supreme Court has observed that a “fall caused by snow or rain is
distinguishable from a fall resulting from some other object as is usual in a slip and
fall case.” Gulas v. Ratliff, 216 So.2d 278, 281 (Ala. 1968). “It is not the duty of
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persons in control of [premises] to keep a force of moppers to mop up the rain as fast
as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several
obvious reasons unnecessary to mention in detail.” Id. (alteration supplied) (quoting
Cox v. Goldstein, 53 So.2d 354, 357 (Ala. 1951)). “The shopkeeper is not required
to stand constant vigil with a mop or towel on rainy days.” Boyd v. Wal-Mart Stores,
710 So.2d 1258, 1260 (Ala.Civ.App. 1997) (citing Gulas, 216 So.2d at 281).
The plaintiff in Cox fell after taking a “few steps” past the entrance of a dress
shop. 53 So.2d at 357. The evidence showed that it had been raining for several
hours, and that when the plaintiff stood up, she had muddy water on her skirt and
hose. Id. The Alabama Supreme Court affirmed a verdict in favor of the dress shop,
because the defendant had no duty “to keep a force of moppers to mop up the rain as
fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas,” and
because there was no evidence that it “did anything or omitted to do anything which
storekeepers, of ordinary care and prudence, under similar circumstances do or omit
to do for the protection of their patrons.” Id.
Likewise, the plaintiff in Gulas fell after taking a “couple of steps” into a
restaurant. 216 So.2d at 278. It had been snowing and sleeting on the day of the
accident, and there was melting snow and ice on the floor where the plaintiff fell. Id.
at 279. Specifically,
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[t]here were several spots of snow beside . . . [plaintiff] about as big as
a silver dollar. These bits of snow were about ten to twelve in number.
When she got up, there was some ice and dirty water on her coat that
had the appearance of crushed ice. Her underclothing was damp where
she had been sitting in ice. Her coat had some soil on it from dirty water
and there was still some ice on her coat . . . . [T]here was no grease, oil,
or other foreign substance, other than snow and water, on the restaurant
floor.
Id. The Alabama Supreme Court affirmed a directed verdict in favor of the
restaurant, because the defendant had no duty “to keep a force of moppers to clear the
floor of snow brought in by incoming customers,” and “did not breach any duty by
failing to remove the snow.” Id. at 281.
In Terrell v. Warehouse Groceries, 364 So.2d 675 (Ala. 1978), the Alabama
Supreme Court squarely affirmed the rule that owners of premises are not required
to employ a “force of moppers” to reduce slippage on rainy days. The plaintiff in
Terrell fell approximately 25 to 30 feet from the entrance of a grocery store. Id. at
675-76. The floor of the store was slippery due to the presence of clear rainwater that
“appeared to be tracked in by customers.” Id. at 677-78. The trial court directed a
verdict in favor of the store, and the plaintiff appealed on the grounds that “to exempt
storekeepers from a duty of reasonable care based upon a ‘force of moppers’ rationale
is inequitable since there are viable alternative methods of making a floor safe.” Id.
at 676. The Alabama Supreme Court affirmed the verdict, and reasoned that:

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When it rains, surfaces naturally become more slippery than usual–a fact
with which a customer is sufficiently familiar. To require a storekeeper
to keep a floor completely dry during a rainstorm or to hold him
responsible for every slick place due to tracked-in rain water would
impose an unreasonable standard of care and would, in effect, make him
an insurer of the customer’s safety. Of course, each case must be
examined in light of its particular circumstances, and where there are
unusual accumulations of rain water or other circumstances, due care
may require that the storekeeper take affirmative measures such as
mopping, applying anti-slip compounds, or posting warnings.
Id. at 677 (emphasis added).
Plaintiff argues that the question of whether there was an “unusual
accumulation” of water is a question for the jury. (Doc. 9, Plaintiff’s Brief, at 1012). For that proposition, she relies on Boyd v. Wal-Mart Stores, Inc., 710 So.2d
1258 (Ala.Civ.App. 1997), King v. Winn-Dixie, 565 So. 2d 12 (Ala. 1990), and
Strahsburg v. Winn-Dixie Montgomery, Inc., 601 So.2d 916 (Ala. 1992). In Boyd, a
customer fell when he slipped on water which had accumulated at a service desk
located inside the store.
In his deposition, Boyd said that he would consider the amount of water
on the floor at Wal-Mart the day he fell to be unusual. Evidence also
tends to show not only that water was in the doorway, where one would
expect the floor to be wet on a rainy day, but that the floor was wet even
in the area around the service desk. What constitutes an “unusual”
accumulation of water is a fact question that should be answered by the
jury. Boyd presented substantial evidence to create a question whether
there was an unusual accumulation of rainwater on the floor.
710 So.2d at 1260.
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One observation regarding Boyd is appropriate. Boyd itself draws an important
distinction about the impact of the location of the rainwater because it notes the
expectation that, on a rainy day, entrance areas will be wet. The offending water in
Boyd was not located at the store entrance. Thus, the Boyd court’s statement that
what constitutes an “unusual accumulation” is a jury question cannot be generalized
to situations involving accumulations of rainwater at a store entrance. See Katrensky
v. United States, 732 F.Supp.2d 1194, 1200 (M.D.Ala. 2010) (also noting this
distinction).
In Katrensky, the court noted the apparent conflict with other Alabama cases
caused by Boyd, King and Strahsburg, stating:
In King v. Winn-Dixie of Montgomery, Inc., 565 So.2d 12 (Ala.
1990), Alabama’s highest court concluded that evidence of rainwater on
the floor at a store entrance was sufficient to create a question for a jury.
In Strahsburg v. Winn-Dixie Montgomery, Inc., 601 So.2d 916 (Ala.
1992), the court considered a rainy day fall near shopping carts at the
front of the store. The plaintiff had just checked out and fell after
returning his shopping cart to the front of the store. The Alabama
Supreme Court concluded that the trial court erred in directing a verdict
in favor of the defendant.
In the present case, Strahsburg testified,“[T]here was a lot
of water on the floor because my pants were, if you want to
say, close to sopping wet. I had blue jeans on and they
were very wet.” Although there was testimony from the
store manager and the bagger that the floors were mopped
as often as possible and that the warning signs were in
place when Strahsburg fell, he testified that he did not see
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any warning signs in the area where he fell. The testimony
from Strahsburg regarding the amount of water on the floor
and his testimony that he did not see any warning signs
posted created factual questions as to whether Winn-Dixie
breached its duty of care to Strahsburg.
Id. at 919.
Boyd and Strahsburg are difficult to reconcile with other Alabama
cases. In Cox v. Goldstein, 255 Ala. 664, 53 So.2d 354 (1951), the
plaintiff fell at the entrance to a store.
About the middle of the afternoon on New Year’s Eve,
1947, the plaintiff, a widow of middle age, accompanied by
another lady, entered the outer lobby or vestibule of the
defendants’ ladies’ ready-to-wear store in Birmingham for
the purpose of purchasing a dress. It was raining at the
time and had been raining since 11:42 in the morning, the
rainfall being described as from “light” to “moderate.” The
plaintiff was wearing shoes with leather soles and medium
heels. After traversing a few steps into the entrance-way,
the plaintiff’s feet slipped forward and out from under her,
and she fell upon the floor of the vestibule in a sitting
position. When she arose from her fall her hose and
clothing were found to be wet and muddy.
Id. at 355.
The Cox court found that this evidence, including testimony that
the plaintiff had “muddy water all on the side of her skirt” and that it
was “awfully wet” was held to be insufficient to create a genuine issue
about the store’s negligence. In Gulas v. Ratliff, supra, the plaintiff
entered the restaurant on a snowy and icy day and fell “after taking just
a couple of steps inside . . .” The court ruled for the defendant
concluding that there was no evidence of an unusual accumulation of
snow. In Wal-Mart Stores, Inc. v. White, supra, a customer entered the
store on a rainy day, slipped and fell, breaking her left leg. Relying on
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Cox, Gulas, and Terrell, the court held that where the evidence showed
only that the floor was just wet enough to be “slick,” there was not
sufficient evidence to create a genuine issue about an unusual
accumulation even though the evidence also indicated that the plaintiff’s
clothes were wet when she got home. Id. at 616-17.
The only evidence before the court is Irene Katrensky’s testimony
that before she fell, she did not see anything, including water, on the
floor, but after the fall her pants were “wet.” As Terrell, supra, makes
clear, it is the plaintiffs’ burden to show that an “unusual accumulation”
of rainwater or other circumstances existed. The evidence which was
submitted by the plaintiffs does not create a genuine issue about the
existence of an unusual accumulation of water.
In view of the seemingly conflicting precedents, it is the duty of
this court to predict how the Alabama Supreme Court would rule on this
question. See Crowe v. Coleman, 113 F.3d 1536, 1540 (11th Cir.
1997). After careful consideration of the issue presented and a close
review of binding Alabama precedent, the court concludes that the
plaintiffs are required but have failed to demonstrate a genuine issue of
material fact about whether there was an “unusual accumulation” of rain
water or the existence of other circumstances in this case. Therefore,
summary judgment is appropriate because “absent an unusual
accumulation or ‘other circumstances,’ the presence of rainwater on a
floor is not a breach of due care.” White, 476 So.2d at 618.
732 F.Supp.2d at 1200-01.
The only evidence that the plaintiff’s fall was caused by water was her
testimony that it was raining on the day she fell and that, after she got up, her “butt
was wet.” She later testified that she only noticed she was wet after she had left.
Under these facts, the court concludes that plaintiff has failed to demonstrate a
genuine issue of material fact about whether there was an “unusual accumulation” of
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rain water or the existence of other circumstances in this case. Therefore, summary
judgment is appropriate because “absent an unusual accumulation or ‘other
circumstances,’ the presence of rainwater on a floor is not a breach of due care.”
White, 476 So.2d at 618.
Plaintiff also asserts that defendant’s motion for summary judgment is due to
be denied because it has failed to act with due care after voluntarily undertaking to
act, even if under no duty to do so. The only voluntary undertaking by defendant in
the record evidence is the placement of the mats at the front entrance to the store.
However, plaintiff also claims that defendant was negligent for failing to put out a
warning sign or adequately monitor the entrance.
Plaintiff notes that Alabama law recognizes the principle that liability to third
parties can result from the negligent performance of a voluntary undertaking, citing,
Raburn v. Wal-Mart Stores, Inc., 776 So.2d 137, 139 (Ala.Civ.App. 1999) (citing
Barnes v. Liberty Mutual Ins. Co., 472 So.2d 1041, 1042 (Ala. 1985)).
As a general proposition of law, this is correct. However, in Beasley v.
MacDonald Eng’g Co., 287 Ala. 189, 249 So.2d 844 (1971), the Alabama Supreme
Court noted that liability for the breach of a duty voluntarily undertaken is governed
by Restatement (Second) of Torts § 324A (1965), which states:

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“‘Liability to third person for negligent performance of undertaking.
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
“‘(a) his failure to exercise reasonable care increases the risk of such
harm, or
“‘(b) he has undertaken to perform a duty owed by the other to the third
person, or
“‘(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.’”
287 Ala. at 193, 249 So.2d at 847 (quoting Restatement (Second) of Torts § 324A).
See also Commercial Union Ins. Co. v. DeShazo, 845 So.2d 766 (Ala. 2002).
Furthermore, defendant could only be held liable for negligently failing to warn
plaintiff based on its voluntarily assuming a duty only if defendant’s negligence
increased the risk of harm to plaintiff. Yanmar America Corp. v. Nichols, ___ So.3d
___, 2014 WL 4851514 at *12 (Ala., Sept. 30, 2014).
Section 324A(a) applies only to the extent that the alleged negligence of
the defendant “exposes the injured person to a greater risk of harm than
had existed previously.” Herrington v. Gaulden, 294 Ga. 285, 288, 751
S.E.2d 813, 816 (2013) (quoting Taylor v. AmericasMart Real Estate,
287 Ga.App. 555, 559, 651 S.E.2d 754, 758 (2007)). Moreover, the
“test is not whether the risk was increased over what it would have been
if the defendant had not been negligent. Rather, a duty is imposed only
if the risk is increased over what it would have been had the defendant
not engaged in the undertaking at all. Myers v. United States,17 F.3d
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890, 903 (6th Cir. 1994). Liability can be imposed on one who
voluntarily undertook the duty to act only where the actor “affirmatively
either made, or caused to be made, a change in the conditions which
change created or increased the risk of harm” to the plaintiff. Id. See
also Patentas v. United States, 687 F.2d 707, 717 (3d Cir. 1982) (“[T]he
comment [c] to section 324A makes clear that ‘increased risk’ means
some physical change to the environment or some other material
alteration of the circumstances.”).
Yanmar America Corp., supra.
There is no evidence that anything with regard to the placement of the mats, the
failure to place a warning sign, or the failure to monitor the front entrance more
closely resulted in an increased risk to plaintiff to any greater a degree than had
defendant not undertaken any measures at all. Plaintiff’s claim to the contrary is
based on pure speculation and not on evidence in the record.
Defendant asserts that the danger presented by the water at the entrance to its
store was an open and obvious hazard. In Denmark v. Mercantile Stores Co., 844
So.2d 1189 (Ala.2002),the Alabama Supreme Court observed:
A condition is “open and obvious” when it is “known to the [plaintiff]
or should have been observed by the [plaintiff] in the exercise of
reasonable care.” Quillen v. Quillen, 388 So.2d 985, 989 (Ala. 1980).
“The entire basis of [a store owner’s] liability rests upon [its] superior
knowledge of the danger which causes the [customer’s] injuries.
Therefore, if that superior knowledge is lacking, as when the danger is
obvious, the [store owner] cannot be held liable.” Id. (citation omitted).
However, defendant’s argument that the condition that caused plaintiff’s
fall was open and obvious is an affirmative defense, on which it bears
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the ultimate burden of proof. See Ex parte Neese, 819 So.2d 584 (Ala.
2001); Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala.
1983); see also Hale v. Sequoyah Caverns & Campgrounds, Inc., 612
So.2d 1162, 1165 (Ala. 1992) (“the traditional common-law ‘open and
obvious danger’ defense . . . completely bars recovery if the danger is
known by, or is obvious to, the plaintiff”) (Hornsby, C.J., concurring in
the result); Vick v. H.S.I. Mgmt., Inc., 507 So.2d 433, 435 (Ala. 1987)
(“[T]he evidence, including evidence bearing on the defense of ‘open
and obvious danger,’ viewed in light of the applicable substantive law,
presents genuine issues of fact.”); Coggin v. Starke Bros. Realty Co.,
391 So.2d 111, 113 (Ala. 1980); Ford v. Bynum Livestock & Comm’n
Co., 674 So.2d 600, 603 (Ala.Civ.App. 1995) (“dispositive issue [is]
whether the evidence conclusively showed that [the plaintiff] knew of,
and appreciated, a dangerous condition so as to give rise to the ‘open
and obvious danger’ defense”).
“Only ‘[w]hen there is no genuine issue of material fact as to any
element of an affirmative defense, . . . and it is shown that the defendant
is entitled to a judgment as a matter of law’” is a summary judgment
proper. Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445 (Ala.
1999) (quoting Bechtel v. Crown Central Petroleum Corp., 495 So.2d
1052, 1053 (Ala. 1986)). “If there is a genuine issue of material fact as
to any element of the affirmative defense, summary judgment is
inappropriate.” Id.
844 So.2d at 1194-95.
Defendant asserts that plaintiff testified that she was aware that rain water can
be tracked into a store by customers. (Doc. 6, Defendant’s Motion for Summary
Judgment, at 15, citing Doc. 6-2, Plaintiff’s Depo., at 91). Thus, it claims that she
must have been aware of and appreciated the danger created by the rain. However,
plaintiff claims that she did not look down when she entered the store. Therefore, she

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claims she was unaware of the danger and the open and obvious defense does not
provide a ground for summary judgment.
In either event, because summary judgment is due to be granted on another
basis as discussed above, it is not necessary to address this issue and the Court
declines to do so.
B. Wantonness
Defendant also asserts that there is no evidence of wanton conduct and that the
claim of wantonness found in Count Two of the complaint is due to be dismissed.
Additionally, when determining if a defendant’s actions constitute wanton conduct,
it is important for the court to distinguish between wantonness and negligence.
“Wantonness is not merely a higher degree of culpability than
negligence. Negligence and wantonness, plainly and simply, are
qualitatively different tort concepts of actionable culpability. Implicit
in wanton, willful, or reckless misconduct is an acting, with knowledge
of danger, or with consciousness, that the doing or not doing of some act
will likely result in injury . . . .
“Negligence is usually characterized as an inattention, thoughtlessness,
or heedlessness, a lack of due care; whereas wantonness is characterized
as . . . a conscious . . . act. ‘Simple negligence is the inadvertent
omission of duty; and wanton or willful misconduct is characterized as
such by the state of mind with which the act or omission is done or
omitted.’ McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992
(1913). . .”

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Tolbert v. Colbert, 903 So.2d 103, 114-15 (Ala. 2004) (quoting Ex parte Anderson,
682 So.2d 467, 470 (Ala. 1996), quoting in turn Lynn Strickland Sales & Serv., Inc.
v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145-46 (Ala. 1987)). See also Ex
parte Essary, 992 So.2d 5 (Ala. 2007) (“‘Wantonness’ has been defined by this Court
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)”).
In her initial brief in opposition to summary judgment, plaintiff asserted that
she was unable to respond to defendant’s argument seeking summary judgment with
regard to the wantonness claim until she had been afforded the opportunity to depose
one or more employees of the defendant. For that reason, plaintiff asserted that she
was filing a contemporaneous motion requesting additional time to complete
discovery. That motion was filed by plaintiff (Doc. 8) and granted by the Court.
(Doc. 10). Plaintiff was given from that date, October 21, 2014, until January 16,
2015, to file her response to defendant’s motion for summary judgment as to the
wantonness issue. See Doc. 10. However, no further opposition to the motion for
summary judgment as to this claim, or any other submissions or requests for more
time, was filed by plaintiff.
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There is nothing in the record evidence to reflect that any action by defendant
constitutes wanton misconduct. Therefore, summary judgment is due to be granted
as to this claim, as well.
CONCLUSION
For the reasons explained above, defendant’s motion for summary judgment
is due to be granted, and all of plaintiff’s claims are due to be dismissed with
prejudice.
A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE this 17th day of June, 2015.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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