Foster v. Target Inc et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 5/31/2016. (AVC)
2016 May-31 PM 04:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TARGET STORES, INC. and
Civil Action Number
Juanita Foster brings this case against Target Corporation alleging
negligence and wantonness in violation of Alabama law as a result of her trip and
fall in a Target parking lot. See generally doc. 11. Target now moves for summary
judgment, doc. 25, which is fully briefed and ripe for review, id.; docs. 26; 30; 31.
For the reasons outlined below, the court will grant Target’s motion and will
dismiss this case with prejudice. 1
STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
Foster also brings claims against “Fictitious Defendants A-C and X-Z.” See generally doc. 11.
Because “[a]s a general matter, fictitious-party pleading is not permitted in federal court” and
because Foster fails to describe these defendants at all, see Richardson v. Johnson, 598 F.3d 734,
738 (11th Cir. 2010) (citations omitted)), the court DISMISSES claims against these defendants.
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material fact and the movant is entitled to judgment as a matter of law.” To support
a summary judgment motion, the parties must cite to “particular parts of materials
in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c). Moreover, “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). The moving
party bears the initial burden of proving the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to
“go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at
324 (citation and internal quotation marks omitted). A dispute about a material fact
is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
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competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276 (11th Cir. 2002) (a court is not
required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Furthermore, “[a] mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
At around 4:00 p.m. on January 19, 2013, Foster visited the Target located in
Tuscaloosa, Alabama to return a coffeemaker. See docs. 25-1 at 19-20, 26; video
3:56:46- 4:17:04. Since the opening of the Tuscaloosa Target years earlier, Foster
had regularly—sometimes twice a month or as often as once a week—visited this
location to purchase household goods. See doc. 25-1 at 3, 19, 113-14. “[E]very
time” she shopped at Target, Foster, who was aged 63 years at the time of the facts
at issue here, parked in the handicapped parking area, as she has a difficult time
walking long distances. See doc. 25-1 at 6, 9, 19. Each handicapped parking space
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had an off-white or tan concrete wheel stop located at its front. See docs. 25-1 at
50, 92, 123; 30-3 at 2; video 3:56:47-4:17:40. The pavement in the parking lot was
black. Doc. 25-4 at 50; video 3:56:47-4:17:40. Although she may not have paid
close attention to them, Foster knew that the wheel stops were located at the front
of each handicapped space. Doc. 25-1 at 53, 60. Non-handicapped parking spaces
did not have wheel stops. Docs. 25-1 at 84-86; 30-3 at 2.
On the afternoon at issue, Foster parked her white Ford Edge in a
handicapped parking space that had a designated walkway to the left of the parking
space (i.e., next to the driver’s side) and another handicapped parking space to the
right (i.e., next to the passenger’s side of the car). See docs. 25-1 at 19-21, 27-29,
32, 85-86, 92. Instead of exiting her vehicle immediately, Foster sat in the car for
nearly twenty minutes to finish a phone conversation with her daughter. See doc.
25-1 at 26, 28-29, 51; video 3:56:46-4:16:24. During that time, multiple cars
entered and exited the handicapped parking spaces around Foster, exposing the
wheel stops at the front of the parking spaces as they departed. See doc. 25-1 at 2627, 64-65, 70; video 3:59:53-4:00:16, 4:04:13-4:09:27, 4:11:36-4:12:46. While she
was sitting in the car, Foster did not notice the wheel stops, including the one in
her parking space, as she “had [her] mind on other things.” Doc. 25-1 at 27, 53, 7071.
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After ending the conversation with her daughter, Foster exited her vehicle
and encountered two stray carts which customers had abandoned in front of
Foster’s row of handicapped parking spaces and, in violation of Target protocol,
employees had not placed in a designated cart area. 2 Id. at 27-28, 45; docs. 25-4 at
14; 32-19 at 7. Foster first moved towards the cart located in front of and to the left
her vehicle. See doc. 25-1 at 45, 65; video 4:16:30-4:16:42. However, because that
cart was dirty, Foster turned around, walked past the front of her car, and
approached the second cart, which was located in front of and to the left of Foster’s
car. Doc. 25-1 at 65; video 4:16:42-4:16:52. The wheel stops for Foster’s parking
space and the space to the right of Foster’s car were located between the second
cart and the gap between Foster’s car and her neighbor’s car. Video 4:16:404:17:52. Foster avers that she paid no attention to the wheel stops as she
approached the second cart. Doc. 25-1 at 65.
Despite the presence of a designated walkway next to the driver’s side of her
car, Foster attempted to pull her cart through the space between her car and her
The Tuscaloosa Target has the biggest sales volume in its district. Doc. 25-4 at 14. Cart
attendants are responsible for removing carts from the parking lot on an hourly basis. Id. at 15.
Because of the volume of customers, especially on a busy Saturday afternoon such as the one at
issue here, the store prioritizes the order in which cart attendants return abandoned carts to the
cart corrals inside the store. See id. at 14-17. Cart attendants are instructed to consider the
following carts a top priority: 1) carts in front of the store and blocking customers from entering
the building; 2) carts parked behind a car such that a car may not see them and could back into
them; and 3) carts that are protruding out of a cart corral and blocking traffic. Id. at 17.
According to Target, the cart at issue in this case—which was abandoned in front of Foster’s
car—was not considered a top priority under these principles because it was not blocking a car,
was not moving, and was easily seen. Id. at 20.
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neighbor’s car. Doc. 25-1 at 45-46, 66-67; video 4:16:52-4:17:00. As she
attempted to do so, Foster, who was not looking at her feet as she walked, caught
her foot on the wheel stop.3 Doc. 25-1 at 52-53, 60-61; video 4:17:00-4:17:04.
Specifically, Foster asserts that “[her] foot hit the curb which [she] couldn’t see
and did[ not] think was there.” Doc. 25-1 at 53. Foster then lost her balance and
fell, breaking her wrist and skinning her left knee.4 Doc. 25-1 at 46-47.
Shortly after Foster’s fall, Target remodeled the parking lot, including
removing the wheel stops from the handicapped area. See docs. 25-1 at 20; 30-3 at
7. Target maintains that it had planned the parking lot remodel prior to Foster’s
fall. Docs. 30-3 at 7; 30-12 at 1-7. Since at least February 2010, Target has not
placed wheel stops in any of its newly constructed parking lots. Doc. 30-3 at 10.
Foster asserts two claims in this case: negligence (Count I) and wantonness
(Count II). See generally doc. 11 at 4-8. Specifically, she claims that Target
violated Alabama law by maintaining a dangerous wheel stop in the handicapped
parking area without appropriate warning or without providing enough space
between wheel stops. See id. at 4-6. She claims that Target is wanton because the
Foster acknowledges that the wheel stops “were where they were supposed to be” and in their
normal positions. Doc. 25-1 at 53; see also doc. 25-4 at 53.
Foster has abandoned her claim that this fall led to a macular tear in her left eye. See doc. 30 at
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corporation allegedly knowingly failed to properly construct, maintain, and clear
the parking lot and because the corporation maintained reckless indifference to the
safety of Foster and others. See id. at 6-8. For the reasons outlined more fully
below, summary judgment is due to be granted as to these claims.
“[T]he duty owed to [an invitee] by the [premises owner] is the exercise of
ordinary and reasonable care to keep the premises in a reasonably safe condition.”
Lilya v. Greater Gulf State Fair, Inc., 855 So. 2d 1049, 1055 (Ala. 2003) (internal
quotations and citation omitted). Importantly, “[t]he owner of a premises . . . is not
an insurer of the safety of his invitees,” and “[t]here is no presumption of
negligence which arises from the mere fact of an injury to an invitee.” Id. (internal
quotations and citations omitted). Dispositive here, “there is no duty on an owner
of premises to warn an invitee of open and obvious defects in the premises of
which the invitee is aware, or of which he should be aware in the exercise of
reasonable care.” Hand v. Butts, 270 So. 2d 789, 791 (Ala. 1972) (emphasis
added); see also Ex parte Mountain Top Indoor Flea Mkt., 699 So. 2d 158, 161
(Ala. 1997). Moreover:
The duty to keep premises safe for invitees applies only to defects or
conditions which are in the nature of hidden dangers, traps, snares, pitfalls,
and the like, in that they are not known to the invitee, and would not be
observed by him in the exercise of ordinary care. The invitee assumes all
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normal or ordinary risks attendant upon the use of the premises, and the
owner or occupant is under no duty to reconstruct or alter the premises so as
to obviate known and obvious dangers, nor is he liable for injury to an
invitee resulting from a danger which was obvious or should have been
observed in the exercise of reasonable care.
Bogue v. R & M Grocery, 553 So. 2d 545, 547 (Ala. 1989) (emphasis added)
(quoting Lamson & Sessions Bolt Co. v. McCarty, 173 So. 388, 391 (Ala. 1937));
Sheikh v. Lakeshore Found., 64 So. 3d 1055, 1058 (Ala. Civ. App. 2010) (same);
Wallace v. Tri-State Motor Transit Co., 741 F.2d 375, 377 (11th Cir. 1984) (same).
In Alabama, courts “use an objective standard to assess whether a hazard is open
and obvious.” Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 741-42 (Ala. 2009)
(internal quotations and citations omitted). “[T]he question is whether the danger
should have been observed, not whether it was consciously appreciated.” Id. at 742
(emphasis added). Significantly, at the summary judgment stage, when the hazard
is open and obvious, “the record need not contain undisputed evidence that the
plaintiff-invitee consciously appreciated the danger at the moment of the mishap.”
Sessions v. Nonnenmann, 842 So. 2d 649, 653-54 (Ala. 2002) (emphasis in
The facts at hand compel a grant of summary judgment because the wheel
stop was an open and obvious hazard. Indeed, the facts establish that the light grey
wheel stops contrasted with the black pavement in the parking lot and that Foster
had visited the Target store many times before, regularly parked in the
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handicapped parking spaces, and knew the wheel stops existed. Gable v. Shoney’s
Inc., which Target references, is illustrative here because, in that case, a plaintiff
advanced a negligence claim after she tripped over a wheel stop in a restaurant
parking lot one evening. See 663 So. 2d 928, 928 (Ala. 1995). In affirming the trial
court’s grant of summary judgment, the Alabama Supreme Court found significant
that the plaintiff “had parked in the same area on other occasions,” “was aware of
the [wheel] blocks in the parking lot,” “had seen the same kind of [wheel] blocks at
other restaurants,” and “knew of the need to watch out for and step over or walk
around the [wheel] blocks.” See id. at 929. The court finds the same facts
dispositive here. Moreover, that Foster’s car allegedly covered the wheel stop for
her parking space does not negate this finding, as Foster testified that she knew the
wheel stop was there, and, even if she did not, she could reasonably be expected to
have seen the wheel stop when initially parking her car or reasonably inferred that
one existed when sitting in her car for nearly twenty minutes while other cars
pulled out of the parking spaces and exposed those wheel stops. 5 Additionally, had
Foster been exercising reasonable care, she would have looked down and seen the
wheel stop as she attempted to navigate the cart between the cars. On such facts,
then, the court finds that Foster has “simply presented no evidence that the [wheel]
The handicapped space directly across from Foster and to her left actually remained empty—
and the wheel stop remained exposed—for five minutes while Foster was sitting in her car. See
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block was a hidden defect that [she] did not know of and would not discover in the
exercise of ordinary care.” See id.
As such, Target cannot be held liable on the basis of negligence for Foster’s
injury due to the wheel stop, and this claim is due to be dismissed. 6 The court will
Even under Foster’s argument that some Alabama Supreme Court cases require that “the
undisputed evidence show that the plaintiff was aware of the danger, appreciated the danger,
and acted more carefully because of the perceived danger,” see doc. 30 at 5-8; Harding v. Pierce
Hardy Real Estate, 628 So. 2d 461, 463 (Ala. 1993) (quoting Harvell v. Johnson, 598 So. 2d
881, 883 (Ala. 1992)), summary judgment is due to be granted. First, the cases that Foster cites
to outline this standard, Harding, 628 So. 2d at 463 (1993 case applying aforementioned
standard); Harvell, 598 So.3d at 883 (1992 case applying aforementioned standard), present an
aberration from Alabama Supreme Court’s earlier and recent case law, see Lamson & Sessions
Bolt Co., 174 So. at 391 (1937 case outlining that whether a condition is open and obvious is an
objective test); McClendon v. Mountain Top Indoor Flea Mkt, 601 So. 2d 957 (Ala. 1992) (1992
case relying on Lamson & Sessions Bolt Co.’s objective test); Ex parte Neese, 819 So. 2d 584
(2001 case relying on same); Ex parte Howard, 920 So. 2d 553, 557 (Ala. 2005) (2005 case
relying on same); Dolgencorp, Inc., 28 So. 3d at 741-42 (2009 case applying objective test for
openness and obviousness). Second, to the extent that Foster argues that a jury should determine
whether she “knew” of the wheel stop and the risk it presented, see Terry v. Life Ins. Co. of Ga.,
551 So. 2d 385, 386-87 (Ala. 1989) (noting that, to be “known” a plaintiff must be aware of the
existence of the condition and the danger it involves); Howard v. Andy’s Store for Men, 757 So.
2d 2108, 2012 (Ala. Civ. App. 2000) (observing that “[t]he plaintiff’s appreciation of the danger
is, almost always, a question of fact for the determination of the jury”) (internal quotations and
citation omitted), the court finds otherwise. Foster has acknowledged that she knew the wheel
stops were in the handicapped parking lot. Therefore, she was admittedly aware of the existence
of the condition that caused her injury. Although Foster variously alleges that she tripped on a
wheel stop she “could not see” because she was not paying attention or was not looking down as
she was walking, her argument runs counter to common sense. “While it is true that a defect is
not ‘known’ as a matter of law if [Foster] does not appreciate its danger, such appreciation does
not require specialized knowledge or a sophisticated thought process when the danger is an
everyday obstacle lying on the ground.” See Blalock v. Wal-Mart Stores East, LP, Civil Action
No. 1:06cv381-MHT (WO), 2007 WL 14121445, at *2 (M.D. Ala. May 11, 2007). In other
words, no reasonable factfinder could conclude that, even though Foster knew the wheel stops
were there, she did not recognize that they may pose a trip-and-fall risk. See id.; see also Ex
parte Bennett, 426 So. 2d 832, 835 (Ala. 1982) (affirming judgment for the defendant where the
plaintiff testified that she saw the concrete wheel stops in the parking lot prior to tripping over
them). Put simply, while Foster may not have been paying attention to where she was walking or
may have had her mind on other things as she passed the wheel stop, that does not justify shifting
the cost of her accident to Target. See Blalock, 2007 WL 14121445, at *3 (“Once [the plaintiff]
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not address Foster’s arguments regarding contributory negligence, see doc. 30 at 812, as the determination that Target owed her no duty regarding the wheel stops
proves dispositive of Foster’s negligence claim.
Foster also alleges a claim for wantonness,7 arguing that Target operates
with reckless disregard to the fact that customers abandon carts in the space in
front of handicapped spaces, that customers then retrieve carts from this improper
area, and that patrons pull the carts between the wheel stops and the wheel stops.
See doc. 30 at 13-14. However, when, as here, a court finds that a defendant “owed
no duty to [a plaintiff for her negligence claim because the hazard was open and
obvious], her wantonness claim must also fail as a matter of law.” Dolgencorp, 28
So. 3d at 746 (relying on Lilya, 855 So. 2d at 1056) (additional citations omitted).
Therefore, in light of the court’s finding that Target owed Foster no duty as to the
wheel stops on her negligence claim, the court similarly finds that Foster’s
became aware of the wooden pallet on the ground near her feet, she took on the risks and
responsibilities associated with walking in its vicinity, including the risk that she would forget
about the pallet during a subsequent conversation and then trip over it as she spun around to
return to her vehicle.”).
Wantonness is “the conscious doing of some act or the omission of some duty, while knowing
of the existing conditions and being conscious that, from doing or omitting to do an act, injury
will likely or probably result.” Dolgencorp, 28 So. 3d at 745 (emphasis in original) (quoting
Bozeman v. Cen. Bank of the S., 646 So. 2d 601, 603 (Ala. 1994) (internal quotations and
additional citations omitted)).
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wantonness claim must fail for want of a duty because the wheel stops were open
and obvious. See id. at 746.
For the reasons outlined above, Target’s motion for summary judgment as to
Foster’s negligence and wantonness claims, doc. 25, is due to be granted.
DONE the 31st day of May, 2016.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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