Highfield v. Metaldyne Performance, Group, Inc.

Filing 48

ORDER denying 37 Motion for Summary Judgment. Signed by District Judge William H. Steele on 11/16/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENNETH HIGHFIELD,
Plaintiff,
v.
GREDE II, LLC,
Defendant.

)
)
)
)
)
)
)
)
)

CIVIL ACTION 16-0501-WS-MU

ORDER
This matter comes before the Court on defendant’s Motion for Summary Judgment (doc.
37). The Motion has been extensively briefed (see docs. 38, 41, 42, 43-1, 46), and is now ripe
for disposition.
I.

Nature of the Case.
This action arises from injuries sustained by plaintiff, Kenneth Highfield, as a business

invitee on the premises of defendant, Grede II, LLC. In particular, Highfield fell from a raised
platform adjacent to Grede’s shipping office, resulting in severe leg injuries and other medical
complications. In his First Amended Complaint (doc. 15), Highfield asserted purely state-law
claims against Grede on theories of negligence (i.e., that Grede negligently maintained an unsafe
area of its premises where Highfield was conducting business and thereby created an
unreasonable risk of harm); wantonness; negligent/wanton design of shipping office area; an
AEMLD claim (directed at Grede as the designer, builder, or manufacturer of the stairs, platform
and landing); negligent/wanton installation or repair of the stairs, platform and landing; and
negligent/wanton inspection.1 Notwithstanding these different permutations of claims asserted,
1

Even though Highfield’s claims are brought exclusively under Alabama law,
federal subject matter jurisdiction in this removal action is properly predicated on the diversity
provisions of 28 U.S.C. § 1332. The well-pleaded facts before the Court demonstrate that
Highfield and Grede are of diverse citizenship, and that the amount in controversy exceeds the
jurisdictional threshold of $75,000, exclusive of interest and costs.

this case is at its core a premises liability action predicated on the notion that Grede negligently
or wantonly allowed a dangerous condition to exist at its shipping office, as a result of which
Highfield fell and sustained injuries.
II.

Factual Background.2
At all relevant times, Kenneth Highfield was employed as a commercial truck driver.

(Doc. 15, ¶ 5.) On January 16, 2015, Highfield arrived in Brewton, Alabama from Franklin,
Kentucky to pick up a load of auto parts at a processing facility owned and/or operated by
defendant Grede II, LLC. (Id., ¶¶ 5-6; Highfield Dep. (doc. 41, Exh. 8), at 49.) Highfield had
never previously been to the Grede plant in Brewton, or to any other Grede facility anywhere
else. (Highfield Dep., at 49.) He arrived at Grede’s premises at approximately 9:15 a.m. (Id.)
Upon doing so, Highfield parked his truck and walked to the receiving window to check in and
sign paperwork. (Id. at 50.)
The configuration and layout of Grede’s premises are of critical importance to the
pending Rule 56 Motion. Since 2011, Grede’s shipping office was located in a converted guard
shack placed alongside the docks where drivers made pickups and deliveries. (Carraway Dep.
(doc. 41, Exh. 1), at 17-18.) The shipping office (which was clearly marked by signage on the
property) featured a window that a shipping clerk would open to exchange paperwork and
otherwise interact with drivers. (Id. at 72-73.) There was only one way for drivers to access the
shipping office and complete their paperwork at the Grede facility. They had to walk across the
yard and climb a set of ten metal stairs. (Id. at 108; doc. 41, Exh. 3.) At the top of the steps was
2

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Smith v. LePage, 834 F.3d 1285, 1296 (11th Cir. 2016) (“It is not this Court’s function to
weigh the facts and decide the truth of the matter at summary judgment. … Instead, where there
are varying accounts of what happened, the proper standard requires us to adopt the account most
favorable to the non-movants.”) (citations and internal quotation marks omitted). Thus,
plaintiff’s evidence is taken as true and all justifiable inferences are drawn in his favor. Also,
federal courts cannot weigh credibility at the summary judgment stage. See Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the
evidence presented by one side is of doubtful veracity, it is not proper to grant summary
judgment on the basis of credibility choices.”). Therefore, the Court will “make no credibility
determinations or choose between conflicting testimony, but instead accept[s] Plaintiff’s version
of the facts drawing all justifiable inferences in Plaintiff’s favor.” Burnette v. Taylor, 533 F.3d
1325, 1330 (11th Cir. 2008).

-2-

a large landing made of steel grate. (Doc. 41, Exh. 4.) To reach the shipping window, drivers
would step up from the landing onto a small raised platform (also constructed of steel grate),
located directly under the shipping window. (Id.) By standing on that small platform, truck
drivers were positioned in such a manner that they could reach through the shipping window,
speak with the shipping clerk, and sign paperwork on a small clipboard/shelf provided by Grede.
(Carraway Dep., at 71-72, 106.) There was no other means for drivers to interact with the
shipping clerk and exchange shipping paperwork with Grede; rather, they were required to stand
on the small platform raised from the landing adjacent to the shipping office. (Id. at 101, 106-08;
Peters Dep. (doc. 41-7), at 26, 31-34.)3 According to Highfield, he could not reach the window
without stepping up from the landing onto the raised platform. (Highfield Dep., at 116.)
It is undisputed that the raised platform in front of the shipping window was 62 inches
across and 19 inches deep, and that it was 9 inches above the level of the landing. (Doc. 38, at
13; doc. 41, at 6.) The front edge of the raised platform was positioned 33 inches from the top of
the staircase, with the landing in between. (Doc. 41-9, at 5.) There was no gate separating the
stairs from the landing. (Id. at 2-6.) There was no railing around the raised platform. (Id.)
Thus, to reach the shipping office window at the Grede facility in Brewton, a truck driver was
required to climb the ten steps, traverse the first 33 inches of the landing, then step up onto the 9inch high, 19-inch deep platform. The depth of the raised platform is a key fact, given plaintiff’s
evidence that if a man whose height was 5’11” and whose weight was 238 pounds stood
sideways with his elbow touching the shipping office wall, his outside foot would measure
approximately 23 inches from the wall (or 4 inches wider than the depth of the platform). (Peters
Dep., at 13, 15-16.) On the day in question, Highfield stood 6’0” and weighed 350 pounds.
(Highfield Dep., at 53.) These facts support a reasonable inference that Highfield could not turn
around on the platform without his feet protruding over the edge to the landing below.
On the morning of January 16, 2015, Highfield ascended the steps, crossed the landing,
and stepped onto the raised platform at the shipping window without incident. Conditions were
dry, lighting was good, and there were no environmental factors or medical issues relating to
3

A Grede shipping clerk answered affirmatively when asked in his deposition
whether “the only authorized way for a driver to get to you at the shipping office in January of
2015 was to walk up those stairs and get to that window.” (Peters Dep., at 38-39.)

-3-

Highfield’s attire, footwear, vision or health that impeded his ability to reach the window.
(Highfield Dep., at 51, 53, 56-57.) When Highfield reached the Grede shipping window, he
checked in with the clerk and reached inside the window to sign some paperwork on a small
shelf. (Id. at 50, 116.) The shipping clerk took Highfield’s paperwork, gave him some
additional paperwork and notified him of his door assignment for the load that Highfield was
picking up that morning. (Id. at 50-52.)
Upon completing his business with the shipping clerk, Highfield turned to his right to go
back down to his truck. (Id. at 116.) As he turned around and took one step in the direction of
the stairs, Highfield “lost [his] balance and fell backwards on the steps with [his] leg on the top
step and [his] head down.” (Id. at 51.) During his deposition, Highfield stated that he “couldn’t
tell you exactly” what happened, but he believes that on his first (and only) step his foot
“[s]tepped on the edge” of the raised platform, causing him to lose his balance and fall. (Id. at
117-118.) Highfield is not certain that his foot landed on the edge of the platform, but he
testified, “I believe that’s what happened.” (Id. at 117.) He took only one step, and then went
down. (Id. at 118.) What Highfield is uncertain about is whether, on that initial step, his foot
landed on the edge of the platform or whether it missed the platform altogether and contacted
only empty air, before dropping 9” to the landing below. (Id. at 121-22.) Either way, Highfield
is clear that he turned to his right on the platform, took just one step and then fell off the
platform. (Id. at 117-18, 121-22.) As he started falling, Highfield reached for the railing, but
was only able to slap it with his hand because the force of the fall prevented him from getting a
grip to steady himself. (Id. at 107-08.)
Michael Carraway was a shipping clerk on duty for Grede that morning. (Carraway
Dep., at 88-89.) Carraway testified that he was looking at his computer when he heard a sound.
(Id.) Upon looking out the window, Carraway saw that Highfield had fallen. (Id. at 89-90.) He
observed that Highfield was lying on his back on the stairs, with his head pointed downward and
his feet at the top of the steps. (Id. at 90-92.) Highfield appeared “shocked, scared.” (Id. at 92.)
Prior to Highfield’s fall, Carrraway never apprehended any danger associated with Grede’s
practice of having truck drivers use the raised platform to step up to the shipping window. (Id. at
127.) Similarly, Grede shipping clerk Clint Peters testified that prior to Highfield’s fall, he had
never known of anyone falling on the stairs and did not perceive any danger in the use of the
raised platform to facilitate drivers’ access to the shipping window. (Peters Dep., at 36-37.)

-4-

Following Highfield’s fall, Peters observed him “limping around to his truck.” (Id. at
41.) Highfield returned to his truck and saw redness and bruising on his calf. (Highfield Dep., at
57.) Over the ensuing weeks, Highfield developed an open wound that actively drained fluid and
became infected, ultimately requiring hospitalization and surgery. (Rhinehart Dep. (doc. 41-10),
at 17-18, 23-24; Ryan Dep. (doc. 41-11), at 13-19.)
III.

Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving 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.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
IV.

Analysis.
In its Motion for Summary Judgment, Grede advances two distinct, independent grounds

that it contends entitle it to judgment as a matter of law. First, Grede maintains that Highfield’s
claims fail for lack of proof of causation. Second, Grede contends that it is entitled to judgment
as a matter of law on its affirmative defense that the alleged defect in its premises was open and
obvious. Each argument will be examined in turn.

-5-

A.

Plaintiff’s Evidence of Causation.

As noted, Highfield’s claims against Grede are rooted in a theory of premises liability.
Fortunately, the Alabama law of premises liability is well settled in pertinent respects. “The
owner of premises owes a duty to business invitees to use reasonable care and diligence to keep
the premises in a safe condition, or, if the premises are in a dangerous condition, to give
sufficient warning so that, by the use of ordinary care, the danger can be avoided.” South
Alabama Brick Co. v. Carwie, 214 So.3d 1169, 1176 (Ala. 2016) (citation and emphasis
omitted). In the premises liability context, the elements of a negligence claim under Alabama
law “are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or
legal cause, and damages.” Sessions v. Nonnenmann, 842 So.2d 649, 651 (Ala. 2002) (citations
omitted); see also Shanklin v. New Pilgrim Towers, L.P., 58 So.3d 1251, 1255 (Ala.Civ.App.
2010) (“To recover in a premises-liability action based on a fall, a plaintiff must prove (1) that
her fall was caused by a defect or instrumentality located on the defendant’s premises, (2) that
the fall was the result of the defendant’s negligence, and (3) that the defendant had or should
have had notice of the defect or instrumentality before the accident.”) (citations omitted).
Causation is thus an essential element of Highfield’s causes of action against Grede. See, e.g.,
Massey v. Allied Products Co., 523 So.2d 397, 398 (Ala. 1988) (in a slip-and-fall case, “[t]he
plaintiff must be able to present evidence that his fall was caused by a defect or instrumentality
located on the premises”); Graham v. Wal-Mart Stores, Inc., 529 So.2d 938, 939 (Ala. 1988) (in
premises liability slip-and-fall case, “proximate cause is a necessary element in proving
negligence”).
Grede’s summary judgment argument on causation is that Highfield “candidly admits
that he does not know why he fell off the platform” and that “[a] plaintiff cannot establish a
claim by speculating that a non-compliant surface caused a fall.” (Doc. 38, at 12.) Grede is
certainly correct that a plaintiff in a premises liability case cannot establish causation via mere
speculation or guesswork that he fell because of a dangerous condition in the defendant’s
premises. See, e.g., Ex parte Harold L. Martin Distributing Co., 769 So.2d 313, 315 (Ala. 2000)
(“The unavoidable conclusion one must draw from Williams’s testimony is that the cause of her

-6-

fall is a matter of pure speculation. … But Alabama juries are not permitted to speculate as to the
cause of an accident.”).4
Where Grede’s causation argument breaks down, however, is in the relationship between
Highfield’s fall and the specific defects alleged in its premises. Contrary to defendant’s position,
a fair reading of Highfield’s deposition is that he did not testify that “he does not know why he
fell off the platform.” (Doc. 38, at 12.) To be sure, Highfield did concede that he did not know
which leg went first, whether his foot hit the edge of the platform, or whether his foot missed the
platform altogether.5 But such areas of ambiguity are of no consequence for summary judgment
purposes. Here is why: Highfield is not alleging that the edge of the platform contained some
defect (i.e., a protrusion, a slick/loose surface, or foreign matter on the edge itself) that Highfield
4

See also Shanklin, 58 So.3d at 1257 (“In order to prevail against the summaryjudgment motions, Shanklin was required to present substantial evidence indicating that the
‘misleveled’ elevator caused her to fall. The evidence presented, while able to support the
conclusion that Shanklin tripped on the ‘misleveled’ elevator, points just as equally to the
conclusion that Shanklin simply stumbled or tripped for no apparent reason. … Shanklin’s own
testimony was that she did not know if her foot struck anything to cause her to stumble and
fall.”); Ervin v. Excel Properties, Inc., 831 So.2d 38, 45 (Ala.Civ.App. 2001) (“Although Ervin
attributed her fall to an allegedly faulty condition of the steps, her testimony establishes that she
was not certain what made her fall. … We cannot say that the evidence supports an inference that
a defective condition of Excel’s steps caused Ervin’s fall.”); Cawthon v. Dolgencorp, LLC, 2011
WL 814496, *2-3 (S.D. Ala. Mar. 2, 2011) (pointing out that “[t]he plaintiff must offer more
than speculation as to what caused his fall in order to survive summary judgment” and deeming
plaintiff’s showing inadequate where “[t]he plaintiff does not know what caused him to fall and
has no witnesses that saw him fall” but simply guessed that defendant’s counter caused the fall).
5

The pertinent excerpts from his deposition read as follows:

“Q:
“A:
“Q:
“A:

Talk to us about your stepping. How did that work out?
Not very well.
Which leg went first?
I actually couldn’t tell you exactly. I don’t know if my foot hit the edge of this
upper platform which caused me to lose my balance. I believe that’s what
happened.”
*
*
*
But as far as where each of your feet landed and whether they were on the edge of
the platform or you went all the way down to the next landing, can you tell us
sitting here today exactly what happened?
No, I can’t.”

“Q:
“A:

(Highfield Dep., at 117, 122.)

-7-

has no knowledge of whether it contributed to his fall or not.6 Rather, the defect that Highfield is
alleging is that the raised platform was too narrow to accommodate truck drivers turning around
and stepping down safely after conducting business at the shipping window.7 According to
Highfield’s theory of the case, the injuries he received because of that fall hazard were
exacerbated by other defects in Grede’s premises, to-wit: the excessive 9-inch drop-off from the
platform to the landing below, and the presence of an ungated staircase just 33 inches away from
the edge of the platform.
The point is that Highfield’s admitted uncertainty about whether his foot struck the edge
of the platform or not does not matter because no particular feature of that edge is alleged to be
the defect. Highfield theorizes that the platform was too narrow to allow him to maneuver safely
from the platform at the shipping window down to the landing and the stairs. Plaintiff’s
evidence is that he turned around at the shipping window to go back down stairs, took one step,
and his footfall either caught the edge of the platform or missed it altogether, causing him to lose
6

In this critical respect, Highfield’s case is distinguishable from the Alabama
authorities on which Grede relies. See, e.g., Howard L. Martin, 769 So.2d at 314-15 (plaintiff
alleged certain defects in wheelchair ramp, but “she could not say how – or if – the ‘very
technical ways’ in which the wheelchair ramp was constructed contributed to her accident”);
Shanklin, 58 So.3d at 1257 (plaintiff alleged that elevator was defective because it was
“misleveled,” but did not know if the elevator was misleveled at the time of her fall or whether
her foot struck the misleveled portion); Ervin, 831 So.2d at 45 (plaintiff alleged that steps were
defective because they had “loose concrete and protruding metal framing,” but she had no
evidence and did not know whether her foot hit any such materials to cause her fall); Cawthorn,
2011 WL 814496, at *2-3 (plaintiff alleged that premises were defective because a counter
protruded into the aisle, but he did not know whether the counter caused him to trip or whether
he stumbled on his own).
7

Highfield’s summary judgment submissions could not be clearer that the key
defect in Grede’s premises on which his claims are based is the installation of a raised platform
that was too narrow. (Doc. 41, at 2 (“[T]he platform under the shipping window was too narrow
to meet his footfall …. A reasonable jury could find that Highfield’s fall while turning to his
right was caused by the narrow depth of the platform.”), 16 (“his injuries were caused by a
combination of the narrow platform, the nine-inch drop as he missed his step, and a gateless
staircase only 33 inches from the platform edge”).) And Highfield specified in his deposition
that he took issue with “[t]he width and depth of the platform. I didn’t feel it was big enough. I
made that conclusion when I fell.” (Highfield Dep., at 106.) There were other alleged defects at
Grede’s premises, but Highfield’s position is that the defect causing his fall was the shallowness
of the platform. Therefore, that defect is properly the focal point of the causation analysis on
summary judgment.

-8-

his balance. Regardless of whether Highfield’s foot landed on the edge or not, his evidence is
that the particular defect alleged in this case (i.e., the excessively narrow platform) caused him to
lose his balance because he could not take a step without going beyond the end of the platform to
the landing below.8 The dangerous condition on Grede’s premises was that the raised platform
was not deep enough to allow a truck driver to turn around safely from the shipping window to
go back downstairs. Under this view of the record, then, had Grede constructed a deeper
platform at the shipping window (as plaintiff claims it should have done), Highfield’s footfall
would have landed squarely on the platform instead of glancing off the edge or catching only
empty air, such that he would not have lost his balance and would not have fallen. Plaintiff’s
showing is adequate to show genuine issues of material fact on the question of causation.9
In arguing otherwise, Grede relies on the line of Alabama authorities finding that where a
plaintiff’s evidence equally supports multiple inferences, only one of which creates liability, the
8

To be clear, the Court makes no findings and expresses no opinions at this time as
to whether the complained-of condition on Grede’s premises (namely, a 19-inch deep platform to
the shipping window, elevated some 9 inches above the landing below) constitutes a defect for
purposes of establishing premises liability under Alabama law. Defendant’s Motion for
Summary Judgment does not challenge the “defect or instrumentality” element of Highfield’s
negligence claims in the premises liability context; therefore, for summary judgment purposes,
the Court assumes (without deciding) that plaintiff has presented sufficient evidence to reach a
jury on that element.
9

In its Reply, Grede suggests that Highfield has improperly “attempt[ed] to shift
the focus to other ‘defects’ not discussed in the Motion.” (Doc. 42, at 1.) As already discussed,
however, the key defect on which Highfield’s claims rest is the allegedly inadequate depth of the
raised platform. Other factors (such as the height of the platform above the landing, the
inadequate depth of the landing between platform and stairs, and the lack of a gate on the
staircase) are alleged to have contributed to Highfield’s injuries (i.e., making the fall more
serious than it otherwise would have been); however, Highfield has unambiguously staked
himself to a theory that he fell because the raised platform was too narrow for him safely to
maneuver his way back down to the landing and stairs after finishing his business at the shipping
window. This is not a new litigation position; to the contrary, plaintiff articulated a similar
theory at least as far back as the Report of Parties’ Planning Meeting in October 2016. (See doc.
7, at 1 (describing defect as “a small step-up platform on top of the landing,” which “platform is
narrow, unguarded and in immediate proximity to the unguarded stairs”).) In the Amended
Complaint, Highfield specifically pleaded that “there was inadequate space for persons such a[s]
Plaintiff to maneuver on the platform.” (Doc. 15, ¶ 14.) Thus, any suggestion by defendant that
plaintiff’s briefs are somehow retooling his claims to circumvent summary judgment is not
supported by the record.

-9-

defendant cannot be found liable.10 See, e.g., Turner v. Azalea Box Co., 508 So.2d 253, 254
(Ala.1987) (“[w]hen evidence points equally to inferences that are favorable and to inferences
that are unfavorable to the moving party, the evidence lacks probative value; and the evidence
may not be used to support one inference over another because such use is mere conjecture and
speculation”).11 However, those authorities are inapplicable here.
Viewed in the light most favorable to Highfield, the evidence does not equally support
multiple inferences, but rather tends to show that plaintiff’s fall was more likely caused by a
defect in the premises than by some unknown, unexplained reason. Again, the principal defect
identified by Highfield is that the platform was too narrow to allow a business invitee safely to
turn around from the shipping window and walk back downstairs. Plaintiff’s evidence is that
after completing his business at the shipping office, he turned and took one step but lost his
balance because the platform was not deep enough to accommodate his footfall. It did not
extend out far enough to allow him to take even a single step on the platform toward the stairs.
Regardless of whether Highfield’s foot struck the edge of the platform or missed the platform
altogether (and that is the point as to which Highfield expresses uncertainty), his testimony
supports a reasonable inference that the defect (i.e., the excessively narrow platform) caused his
fall because had the platform been deeper (and therefore not defective) his foot would have
landed fully on the platform and he would have maintained his balance. In short, that evidence
points to a non-conjectural link between the defective condition and Highfield’s accident in a
manner that has probative value and does not relegate the issue of causation to a flip of a coin or
10

Although defendant does not clearly express the divergent inferences supported
by plaintiff’s facts, presumably they are (i) Highfield fell because of a defect on the premises, or
(ii) Highfield simply lost his balance for unexplained reasons that were “idiopathic and not the
result of any fault by Grede.” (Doc. 42, at 2.)
11

See also Brookwood Medical Center v. Lindstrom, 763 So.2d 951, 956 (Ala.
2000) (“evidence that equally establishes the possibility that Lindstrom slipped out of a properly
secured wrist restraint and the possibility that she escaped from an improperly secured wrist
restraint does not constitute substantial evidence of a breach of the standard of care”); Dodd v.
GlassRatner Management & Realty Advisors, LLC, 2017 WL 3581723, *2 (N.D. Ala. Aug. 18,
2017) (“When evidence gives rise to equally plausible inferences regarding the existence of a
dangerous condition, the evidence is impermissibly speculative.”); see generally Bell v. Colony
Apartments Co., 568 So.2d 805, 810 (Ala. 1990) (“[T]he mere possibility that a careless act
caused damage is not itself sufficient to find proximate cause.”) (citation omitted).

-10-

unvarnished guesswork. The cases cited by Grede for the contrary proposition are all
distinguishable on this basis.
In so concluding, the Court is guided by the following principles of Alabama law:
“Merely because the same factual premise will support more than one inference
does not of itself render the proffered evidence conjectural or speculative. … It is
only where evidence points equally to inferences both favorable and unfavorable
to the moving party that it lacks probative value; and its use … becomes mere
conjecture and speculation. But where evidence reasonably tends to support
inferences favorable to the moving party, more than those unfavorable to that
party, such evidence has probative value and is not conjecture or speculation.”
Springfield Missionary Baptist Church v. Wall, 993 So.2d 469, 476-77 (Ala.Civ.App. 2008)
(citation omitted). Such is the case here. While Highfield’s evidence does not conclusively rule
out other possible causes of his fall, no such showing is required on summary judgment. A
plaintiff’s evidence is not speculative as long as it “points to any one theory of causation,
indicating a logical sequence of cause and effect, … notwithstanding the existence of other
plausible theories with or without support in the evidence.” Southern Ry. Co. v. Dickson, 100
So. 665, 669 (Ala. 1924); see also Dixon v. Board of Water & Sewer Com’rs of the City of
Mobile, 865 So.2d 1161, 1166 (Ala. 2003) (“a theory of causation is not mere conjecture, when it
is deducible as a reasonable inference from known facts or conditions”) (citation and internal
quotation marks omitted). Plaintiff’s showing satisfies this standard.
For these reasons, plaintiff’s evidence demonstrates the existence of genuine issues of
material fact as to whether the alleged defects in defendant’s premises caused his fall. He has
presented sufficient evidence that, taken as true, would establish a logical sequence of cause and
effect and support a reasonable inference that Highfield fell because Grede’s premises were
defective in that the platform abutting the shipping office was too shallow. Defendant is not
entitled to summary judgment on its assertion that the record lacks sufficient evidence of
causation.12
12

The Court finds it unnecessary and unhelpful at this time to address the parties’
protracted disagreements concerning the opinions of plaintiff’s architectural expert, Peter
Combs. Specifically, plaintiff pointed to Combs’ opinions about the existence of “regulatory
defects” in the platform and Combs’ assessment that the platform should have been 36 inches in
depth. (Doc. 41, at 6, 13, 20.) Defendant responded by criticizing these opinions as mere ipse
dixit or otherwise irrelevant or inadmissible under Daubert principles. (Doc. 42, at 11-13; doc.
46, at 3.) The Court declines to issue a Daubert ruling on this fragmentary briefing of the issues,
(Continued)
-11-

B.

The “Open and Obvious” Affirmative Defense.

The second independent ground for defendant’s Motion for Summary Judgment is the
“open and obvious” defense. In seeking relief on that basis, Grede reasons that (i) “when a
condition on a premises is open and obvious, the premises owner has no duty either to remove
the condition or to warn invitees;” and (ii) “[i]f a plaintiff falls from a … platform … that he
mounted seconds before[,] he is charged with objective appreciation of the risk.” (Doc. 38, at
18-19.) Plaintiff responds that genuine issues of material fact preclude granting summary
judgment for defendant on this affirmative defense.
The appropriate analytical starting point is the “open and obvious” doctrine. It is wellsettled in Alabama that “[t]he [invitor] is not liable to an invitee for an injury resulting from a
danger that was obvious.” Jones Food Co. v. Shipman, 981 So.2d 355, 362 (Ala. 2006)
(citations omitted). Indeed, “[t]he entire basis of an invitor’s liability rests upon his superior
knowledge of the danger that causes the invitee’s injuries. If that superior knowledge is lacking,
as when the danger is obvious, the invitor cannot be held liable.” Id. (citations omitted and
emphasis added); see also General Motors Corp. v. Hill, 752 So.2d 1186, 1187 (Ala. 1999) (“It
is well established, however, that an invitor is not liable for injuries to an invitee resulting from a
danger that was known to the invitee or that the invitee should have observed through the
exercise of reasonable care. If the danger is open and obvious, the invitor cannot be held
liable.”) (citations omitted and emphasis added). To ascertain whether a particular dangerous
condition qualifies as “open and obvious,” Alabama jurisprudence emphasizes that “[i]n a
premises-liability setting, we use an objective standard to assess whether a hazard is open and
obvious. … [T]he question is whether the danger should have been observed, not whether in fact

and agrees with plaintiff that “the opinions of plaintiff’s architectural expert are not necessary to
prove causation.” (Doc. 43-1, at 5.) It appears to the undersigned that Combs’ opinions go
primarily to the issue of whether or not there was a defect on the Grede premises. (After all,
Combs is not a biomechanical expert, a human factors expert, or a fall reconstruction expert, and
would therefore appear ill-equipped to offer expert analysis or opinions as to the precise reasons
why Highfield lost his balance.) Because defendant’s Motion for Summary Judgment is not
grounded in a theory of “no defect,” the parties’ dispute over the admissibility of Combs’
opinions as to the existence vel non of such a defect need not be resolved at this time. Should it
become necessary to do so, the parties will be afforded an opportunity to raise and brief Daubert
issues via separate motion prior to trial.

-12-

it was consciously appreciated.” Dolgencorp, Inc. v. Taylor, 28 So.3d 737, 741-42 (Ala. 2009)
(citations omitted); see also South Alabama Brick, 214 So.3d at 1177 (“[T]he duty of a premises
owner is measured by an objective standard, not the subjective state of the invitee’s knowledge.
The question is what was objectively reasonable for the invitor to expect the invitee to know. …
[A]n invitor’s duty before an accident is not determined by ‘the invitee’s subjective state of
mind’ at the moment of the accident.”) (citations omitted); Waters v. Paul Enterprises, Inc., 130
So.3d 1220, 1223 (Ala.Civ.App. 2013) (“under Alabama law the issue whether a condition is
open and obvious is analyzed under an objective standard”).
Thus, if the allegedly dangerous condition on Grede’s premises was open and obvious,
then Grede cannot be liable for Highfield’s injuries. Applying the above-described test, the
question is whether it was objectively reasonable for Grede to expect Highfield to know that the
shallowness of the platform in front of the shipping window created a fall hazard when the
invitee turned around to walk back downstairs. Grede argues that this question should be
answered affirmatively because Highfield had mounted the platform “seconds before” and is
therefore “charged with objective appreciation of the risk.” (Doc. 38, at 19.) The Court is not
persuaded that the analysis is so cut and dried.
Alabama courts have been circumspect about granting summary judgment to defendants
in premises liability cases based on the “open and obvious” defense. See, e.g., Ex parte Kraatz,
775 So.2d 801, 804 (Ala. 2000) (“Questions of openness and obviousness of a defect or danger
and of an [invitee’s] knowledge are generally not to be resolved on a motion for summary
judgment.”) (citations omitted).13 And of course, whether a condition is open and obvious is an
affirmative defense, as to which Grede bears the burden of proof, such that summary judgment is
13

See also Barnwell v. CLP Corp., --- So.3d ----, 2017 WL 1422478, *5 (Ala. Apr.
21, 2017) (“[t]he question whether a danger is open and obvious is generally one of fact”)
(citations omitted); Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala. 2002)
(“Whether a condition is open and obvious is generally a question for the jury.”); Waters, 130
So.3d at 1225 (reversing trial court’s entry of summary judgment in favor of premises owner
where “there was a genuine issue of material fact as to whether a danger that even [the premises
owner] had not observed over the four-year period it had used the metal plates was an open and
obvious danger”); Howard v. Andy’s Store for Men, 757 So.2d 1208, 1211 (Ala.Civ.App. 2000)
(“The question whether a danger is open and obvious is generally one of fact. … [T]he plaintiff’s
appreciation of the danger is, almost always, a question of fact for the determination of the
jury.”) (citations and internal quotation marks omitted)

-13-

not proper unless Grede’s own submissions entitle it to judgment as a matter of law. See, e.g.,
Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194-95 (Ala. 2002) (“Mercantile’s
argument that the condition that caused Mrs. Denmark’s fall was open and obvious is an
affirmative defense, on which it bears the ultimate burden of proof. … The movant’s proof must
be such that he would be entitled to a directed verdict if this evidence was not controverted at
trial.”) (citations and internal quotation marks omitted).
Viewing the record evidence most favorable to plaintiff (as we must for summary
judgment purposes), there are genuine issues of material fact as to the openness and obviousness
of the alleged defects at the Grede property. Defendant’s employees testified that, prior to
Highfield’s fall, they never perceived the raised platform (which had been there for four years) to
pose a danger for visiting truck drivers. (See Carraway Dep., at 127; Peters Dep., at 36-37.)14
Defendant’s expert opined that he saw nothing about the platform that he would consider to be
unsafe. (Doc. 43-1, at 16, 18-19.) To be sure, Grede is correct that Highfield must have been
aware that the platform was elevated from the landing because he had stepped up onto the
platform just seconds earlier. But it is for a jury to decide whether a reasonable invitee visiting
the Grede facility for the first time should have noticed and appreciated how shallow the
platform in front of the shipping window was, how limited the space on the platform was for
maneuvering around, and the concomitant need to exercise caution in turning to go back
downstairs because of the platform’s lack of depth.
What would have been open and obvious to Grede’s business invitees was that they must
use the stairs, landing and raised platform to reach the shipping window, just as Highfield had
done before he stepped from the platform toward the landing, lost his balance and fell. But
would it have been open and obvious to a reasonable invitee that the platform was so shallow as
to pose a dangerous condition when the invitee turned around to step down? The Court cannot
say with anything approaching certainty. Neither Grede’s employees at the shipping window nor
14

Alabama courts have confirmed that, even with the objective test for “open and
obvious,” a defendant’s agent’s lack of appreciation of danger weighs against entry of summary
judgment on that affirmative defense. See Waters, 130 So.3d at 1225 (reversing summary
judgment in favor of defendant on “open and obvious” defense where plaintiffs “presented
substantial evidence demonstrating that there was a genuine issue of material of fact as to
whether a danger that even [defendant] had not observed … was an open and obvious danger”).

-14-

Highfield himself saw or appreciated that danger. And to point out (as defendant does) that
Highfield should have been aware that he would have to step down from the platform is not to
conclude that Highfield should have appreciated how little room there was to maneuver on that
platform because its shallow dimensions, which is the relevant inquiry.15 Thus, Grede’s proof as
to the openness and obviousness of the danger posed by the 19” depth of the platform is not so
compelling that its own submissions entitle it to judgment as a matter of law. Summary
judgment will not be granted to defendant on its “open and obvious” affirmative defense.
V.

Conclusion.
For all of the foregoing reasons, defendant’s Motion for Summary Judgment (doc. 37) is

denied. This action remains set for a Final Pretrial Conference before the undersigned on
January 16, 2018 at 9:00 a.m., with jury trial to follow in the February 2018 civil term.
DONE and ORDERED this 16th day of November, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

15

In this regard, the facts viewed in the light most favorable to Highfield are readily
distinguishable from those in Cirlot v. Waffle House, Inc., 2012 WL 4479234 (N.D. Ala. Sept.
20, 2012), a decision championed by Grede. In Cirlot, the plaintiff’s decedent had stepped up
from the parking lot, over a curb and onto the sidewalk in front of a restaurant, only to back up
and fall off the curb moments later. In granting summary judgment to the defendant, the Cirlot
court reasoned that “[i]t is obvious that a person who has stepped up from the street to the
sidewalk … would be aware that stepping back presented a danger that one would suffer a fall.”
Id. at *5. The defect on the premises in Cirlot was the height differential from the street to the
sidewalk. By contrast, the critical defect in the case at bar is not the height differential between
landing and platform, but the alleged lack of sufficient space for a person standing on the
platform at the shipping office window to turn around and maneuver back down to the landing
safely. That is an entirely different issue. No one disputes that Highfield was (and reasonably
should have been) aware that the platform was elevated above the landing. But what is in
dispute is whether Highfield reasonably should have been cognizant of just how shallow that
platform was and how little space there was for him to turn around from the shipping window
and navigate his way back down to the landing. That question is entirely dissimilar from the one
presented in Cirlot, and warrants a finding that genuine issues of material fact preclude summary
judgment in defendant’s favor on the “open and obvious” defense.

-15-