Rigsby v. United States of America, The
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 9/16/13. (SAC )
2013 Sep-16 PM 03:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE UNITED STATES OF AMERICA, }
Case No. 6:11-cv-2314-WMA-TMP
Plaintiff, Shirley Rigsby (“Rigsby”), instituted the present
action alleging that the negligence and wantonness of an employee
of defendant, The United States of America, proximately caused the
injuries she sustained on February 3, 2010, and that she is
entitled to damages under the Federal Tort Claims Act, 28 U.S.C. §
Before the court is defendant’s motion for summary
The Report and Recommendation (“R & R”) entered by the
magistrate judge to whom the parties did not concede dispositive
jurisdiction recommends that summary judgment be granted.
reviewing the motion for summary judgment and responsive filings de
novo, as required by 28 U.S.C. § 636(b)(1), in view of Rigsby’s
timely objections to the R &
R, the court reaches the same
conclusion reached by the magistrate judge.
opinion is written to set forth the court’s reasoning because its
reasoning significantly differs from that of the magistrate judge.
This action arises out of injuries sustained by Rigsby when
she tripped over a box and fell at the United States Post Office in
Jasper, Alabama on February 3, 2010.
Rigsby’s claim hinges on
whether postal employee Melissa Sherer (“Sherer”) saw a male
customer at her service counter place the box (over which Rigsby
fell) on the floor in front of the counter after she directed him
to fill out forms at another counter.
This factual dispute
constitutes the core of the controversy.
The parties offer contrary evidence on whether Sherer had
actual notice of the box being placed on the floor.
asserts that Sherer did not have actual notice.
In support, it
presents Sherer’s affidavit and sworn testimony stating that she
did not see the box being placed on the floor because the post
office was very busy and she was focused on the next customer.
Rigsby questions Sherer’s credibility and relies on the post
office’s physical layout to contend that Sherer must have seen the
box being placed on the floor because the man with the box was in
her direct line of sight while she was looking towards the next
customer in line.
Although Rigsby’s evidence is circumstantial,
the court does not find, as defendant contends, that the question
of Sherer’s notice is undisputed.
In other words, the court does
not find that Rigsby has presented no evidence whatsoever to
Pursuant to Rule 56, F. R. CIV. P., all admissible evidence is viewed
in the light most favorable to Rigsby and all reasonable inferences are drawn
in her favor.
suggest that Sherer noticed the box being placed on the floor.
In all respects other than the dispute over Sherer’s actual
notice, the court adopts the undisputed facts detailed in the R &
In order to grant summary judgment, a court must determine
that no genuine issue of material fact exists so that the movant is
entitled to judgment as a matter of law. F. R. CIV. P. 56.
determine whether a genuine issue of material fact exists, the
court “must bear in mind the actual quantum and quality of proof
necessary to support liability” under the particular claim and
thereby consider the evidence “through the prism of the substantive
evidentiary burden.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Thus, the inquiry here is whether a reasonable jury
could find in favor of Rigsby through the prism of Alabama tort
As explained below, the court concludes that a reasonable
jury could not find in favor of Rigsby because the applicable
Alabama tort law requires “substantial” evidence of Sherer’s having
noticed the placing of the box on the floor, and the evidence
Alabama law supplies the rules of decision for Rigsby’s
claim as “the law of the place where the act or omission
complained of occurred.” 28 U.S.C.A. § 2674. The court focuses on
negligence, even though Rigsby also alleges that Sherer wantonly
breached her duty of care to invitees, because wantonness
requires both actual notice and the additional element of
consciousness that injury would likely result. See Kilcrease v.
Harris, 288 Ala. 245, 251 (1972). If Rigsby’s evidence of
Sherer’s actual notice does not satisfy the negligence standard,
it necessarily does not satisfy the wantonness standard.
presented does not satisfy this enhanced burden. See Speer v. Pin
Palace Bowling Alley, 599 So. 2d 1140, 1143 (Ala. 1992).
evidence in this case admittedly presents a very close question.
Perhaps it would best be answered by the Supreme Court of Alabama
by this court certifying the question to that court, but because
that court only very recently declined to answer what this court
thought to be a closer question of Alabama law than this one, this
court will do its best with what it has to work with.
FTCA and Premises Liability
Before evaluating Rigsby’s attempt to meet her evidentiary
substantive evidentiary burden is. The parties disagree on whether
to analyze Rigsby’s allegations using the framework of traditional
negligence or the framework of premises liability.
liability is the appropriate framework.
In the Eleventh Circuit, FTCA claims may be brought against
the United States under a premises liability theory. Tisdale v.
United States, 62 F.3d 1367, 1371-72 (11th Cir. 1995).
Eleventh Circuit explained in Tisdale, the United States may be
liable under the FTCA directly, vicariously for its employees’
affirmative negligent conduct, or “qua landowner” if the premises
were in an unsafe condition. Id.; see also Buckson v. United
States, 151 Fed. App’x 733 (11th Cir. 2005).
Although this court
is not bound by a holding of the Fourth Circuit, the Fourth Circuit
case cited by Rigsby is not even persuasive authority because it
disclaims the concept of premises liability, in contrast to general
negligence, only when the premises liability is based on the
conduct of a third party contractor working for the premises owner,
not the concept of premises liability in toto. See Berkman v.
United States, 957 F.2d 108, 112–13 (4th Cir. 1992).
Although an FTCA claim may be pursued under a traditional
negligence theory or under a premises liability theory, premises
liability controls where, as here, Rigsby’s immediate cause of
injury was the condition of the premises, not Sherer’s affirmative
premises liability applies.
The most apt comparison is found in
Baldwin v. Gartman, 604 So. 2d 347 (Ala. 1992).
In that case, an
employee left a concrete slab unbalanced on the premises such that
it subsequently fell upon and injured an invitee. Id. Although the
because the employee’s affirmative conduct caused the injury, the
unattended did not, in and of itself, cause the injury; rather, it
produced a dangerous condition.” Id. at 349.
The court emphasized
that “[t]he balanced slab was a condition of the premises, no
matter how briefly it was balanced,” and conduct by the owner of
the premises or the employees was not the “immediate cause of
In the instant case, if Sherer did, in fact, see the
box in question being placed on the floor, that bare event did not
immediately cause Rigsby’s injury.
Rather, Sherer’s conduct,
presumed for Rule 56 purposes, resulted in a dangerous condition
that existed briefly and that subsequently caused Rigsby’s injury.
Thus, Rigsby’s claim will be considered only as one of possible
Alabama Premises Liability Standard
Having established that Alabama premises liability principles
apply, Rigsby must meet the summary judgment standard for the
elements of an Alabama premises liability claim.
To prevail in an Alabama premises liability claim for an
injury resulting from an invitee’s fall, a plaintiff invitee must
show that the fall “resulted from a defect or instrumentality
located on the premises, that the fall was a result of the
defendants’ negligence, and that the defendants had or should have
had notice of the defect or instrumentality before the [fall].”
Logan v. Winn-Dixie Atlanta, Inc., 594 So. 2d 83, 84 (Ala. 1992)
(citing Tice v. Tice, 361 So. 2d 1051 (Ala. 1978)).
The element of
notice may be satisfied by proof of a defendant’s actual notice,
constructive notice, or delinquency in discovering and failure to
remove a dangerous condition. Speer v. Pin Palace Bowling Alley,
599 So. 2d 1140, 1143–44 (Ala. 1992); see also Williams v. Wal-Mart
Stores, Inc., 342 F. App'x 478, 479 (11th Cir. 2009).
However, if the defendant makes a prima facie showing of no
notice, as the United States has done here, “the burden shift[s] to
the plaintiff to present substantial evidence” of actual notice as
necessarily alleged by plaintiff. See Speer, 599 So. 2d at 1143
“Substantial” evidence means “evidence of such
quality and weight that reasonable and fair-minded persons in the
exercise of impartial judgment might reach different conclusions as
to the existence of the fact sought to be proven.
A scintilla of
evidence is insufficient to permit submission of an issue of fact
to the trier of facts.” ALA. CODE § 12-21-12(d) (1975) (emphasis
To find whether or not there was “substantial” evidence in the
context of premises liability in this case, this court looks to Ex
parte Wal-Mart Stores, Inc., 806 So. 2d 1247 (Ala. 2001).
parte Wal-Mart, defendant argued against constructive notice of a
defect by presenting the testimony of a single employee who had
closely examined the floor shortly before a fall and had not seen
the shampoo in which the plaintiff slipped. Id. at 1251.
Supreme Court found that the employee’s testimony constituted the
necessary prima facie evidence that shifted the burden to the
plaintiff to present substantial evidence of notice. Id. (citing
Speer, 599 So. 2d at 1143).
When the plaintiff gave her testimony
that the shampoo appeared sticky and half dry, that evidence did
not qualify, in the view of the Supreme Court, as “substantial”
Plaintiff asserts in her Objection to the R & R that “it is a wellknown maxim of Alabama law that summary judgment is rarely appropriate in
negligence cases because they almost always involve issues of fact.” (Doc. 40,
at 9). However, the cases cited by Rigsby operated under the “scintilla”
burden of proof that was expressly replaced with the “substantial” burden of
proof as of June 11, 1987. See ALA. CODE § 12-21-12 (1975).
because inferences from the shampoo’s condition alone were “mere
conclusory allegations” and “speculation.” Id. at 1251–53 (internal
If this court had been deciding Ex part Wal-
Mart, it well might not have reached the conclusion reached by the
Supreme Court, being somewhat reluctant to distinguish, as a matter
of law, between what is substantial and what is insubstantial or a
But this court is bound by what the Supreme Court
of Alabama said, not by what this court might have said under the
same or similar circumstances.
The present case closely mirrors Ex parte Wal-Mart. See id.
Defendant’s presentation of Sherer’s affidavit and sworn testimony
constitutes a prima facie showing of a lack of actual notice.
avoid summary judgment, Alabama law requires Rigsby to present
“substantial” evidence that Sherer had actual notice of the box
being placed on the floor. See id.
Although Rigsby has presented
evidence and personal opinion cannot be distinguished from the
conclusory allegations or speculation found insufficient in Ex
parte Wal-Mart and do not rise to the level of the “substantial”
evidence demanded by the Supreme Court. See id.
Viewing the issue of Sherer’s actual notice through the prism
of Alabama tort law, the court finds that Rigsby has not presented
the “substantial” evidence of actual notice required to allow a
reasonable jury to determine the issue.
The court fervently hopes that its conclusion in favor of the
United States will not be attributed to any desire by this court to
disprove what the Eleventh Circuit said about this court in United
States v. White, 846 F.2d 678, 696 (11th Cir. 1988), namely “Judge
Acker’s position has become hardened against the Government.”
The court will grant summary judgment by separate order.
DONE this 16th day of September, 2013.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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