Harrelson v. Sam's West, Inc. et al
ORDER granting in part and denying in part 58 Defendants' Motion for Summary Judgment. It is granted with respect to Count Two, and with respect to Count Three to the extent it is based on a theory of wantonness. In all other respects, the defendants' motion is denied. Signed by District Judge William H. Steele on 9/9/21. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JEWEL MARY HARRELSON,
) CIVIL ACTION 20-0324-WS-C
SAM’S WEST, INC., et al.,
This matter is before the Court on the motion of the remaining defendants
for summary judgment. (Doc. 58). The parties have filed briefs and evidentiary
materials in support of their respective positions, (Docs. 58, 60, 61), and the
motion is ripe for resolution. After careful consideration, the Court concludes the
motion is due to be granted in part and denied in part.
According to the complaint, (Doc. 1-2), the plaintiff fell in a Sam’s Club
parking lot, resulting in personal injuries. The complaint alleges the defendants
were negligent (Count One) and wanton (Count Two) in numerous respects and
that their negligence and/or wantonness combined and concurred to proximately
cause the plaintiff’s injuries (Count Three).
The complaint names seven defendants. Four of them were dismissed with
prejudice by agreement. (Docs. 33, 34). The remaining defendants include the
owner of the parking lot (“Trust”) and the entity that maintained the parking lot
(“Brixmor”). (Doc. 58 at 2; Doc. 60 at 2). The relationship of the final defendant
(“East”) to this litigation is not clearly set forth in the parties’ submissions.
Summary judgment should be granted only if “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). 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). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “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.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003). “Therefore, the [non-movant’s] version of the facts (to the extent
supported by the record) controls, though that version can be supplemented by
additional material cited by the [movants] and not in tension with the [nonmovant’s] version.” Rachel v. City of Mobile, 112 F. Supp. 3d 1263, 1274 (S.D.
Ala. 2015), aff’d, 633 Fed. Appx. 784 (11th Cir. 2016).
“There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary
judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995); accord Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014). The
Court accordingly limits its review to those arguments the parties have expressly
The defendants raise four arguments in support of their motion for
summary judgment as to the plaintiff’s negligence claim: (1) the imperfection in
the parking lot where the plaintiff fell is not a “defect”; (2) the defendants’
knowledge of the danger was not superior to that of the plaintiff; (3) the plaintiff
was contributorily negligent; and (4) the plaintiff assumed the risk. The Court
considers these arguments in turn.
In a premises liability action, the plaintiff “must prove that her fall resulted
from a defect or instrumentality located on the premises.” Logan v. Winn-Dixie,
Inc., 584 So. 2d 83, 84 (Ala. 1992); accord Burlington Coat Factory v. Butler, 156
So. 3d 963, 970 (Ala. Civ. App. 2014). The defendant argues that what constitutes
a defect depends on “‘what type of service the user would have a right to expect.’”
Shaw v. City of Lipscomb, 380 So. 2d 812, 814 (Ala. 1980) (quoting Byrnes v.
National Casualty Co., 45 So. 2d 408, 410 (La. Ct. App. 1950)). In Shaw, the
presence of twigs and sweet gum balls on the grass beneath some sweet gum trees
in a city park constituted “a natural and normal condition,” not a defect. 380 So.
2d at 815. In Byrnes, a patron traversing a parking lot surfaced with clam shells
had no right to expect the absence of indentations and depressions. 45 So. 2d at
According to the plaintiff, she lost her balance and fell when she stepped
into a discontinuity in the asphalt pavement of the parking lot, which she described
as “like a hole.” (Doc. 60-2 at 4). Photographs introduced by the defendants
reveal an area immediately adjacent to the curb where the asphalt (or most recent
layer of asphalt) stops two to three inches from the curb, leaving a gap or
depression of a similarly dark hue, extending for about two linear feet and
approximately as deep as a dime or penny’s diameter. (Doc. 58-4). According to
the defendants, this kind of uneven surface “is a normal condition in a parking
lot.” (Doc. 58 at 11). For this proposition, the defendants rely on deposition
testimony from their employees and allies. A Sam’s Club associate testified that
“the pavement in every parking lot looks like that … in that close proximity to the
curb.” (Doc. 58 at 6; Doc. 58-5 at 7). The sweeping and landscaping contractor
for the parking lot testified he probably would not report uneven pavement as a
hazard because “we just see so much of it.” (Doc. 58 at 8; Doc. 58-11 at 7).1
The defendants’ argument fails both legally and factually. Legally, they
identify no case employing their “normal condition” argument to a paved parking
lot. Shaw involved natural droppings from trees in a natural setting, and the
Alabama Supreme Court apparently has extended Shaw only to other natural
droppings in natural settings – not to commercial establishments.2 Byrnes
involved a clam shell parking lot in 1940’s Louisiana, not a paved parking lot in
2018 Alabama. Nor did Shaw – which involved only natural hazards – purport to
approve a rule under which manmade dangers cease to be actionable defects if so
many landowners create or tolerate them that they become “normal.”
Factually, in order to show that gaps between pavement and curb, with the
gaps the same color as the pavement, are the norm in parking lot construction, the
defendants offer only the testimony of two non-expert witnesses – one a sales
associate with absolutely no identified experience in the field and the other a
maintenance service owner who may have seen imperfections in other parking lots
he services but who has not claimed to have knowledge of the condition of parking
The testimony of three other witnesses does not support the defendants’
position. Brixmor’s corporate representative testified only that some unidentified “that”
is “not anything out of the normal.” (Doc. 58 at 8; Doc. 58-1 at 5). Brixmor’s senior
property manager testified that some unidentified “this” is “normal condition of the
parking lot” and that “the parking lot looks normal to me from the pictures that you’re
showing me.” (Doc. 58 at 8; Doc. 58-10 at 4). This deponent, however, believed the
pictures she was reviewing showed a perfectly smooth surface, (id. at 3), and she agreed
that a pothole would not be normal. (Id. at 4). Another Sam’s Club associate testified
that “[i]t looked like any other normal parking lot.” (Doc. 58 at 8; Doc. 58-12 at 3).
Because the defendants did not submit the question to which the deponent responded, her
answer is of no evidentiary value. In any event, this deponent as well based her
testimony on her belief that there was no unevenness in the pavement where the plaintiff
See Richards v. Henderson, 589 So. 2d 709, 710 (Ala. 1991) (falling pecan
limbs); Howell v. Cook, 576 So. 2d 227, 229 (Ala. 1991) (fallen peaches under a peach
lots generally. Certainly the defendants have identified no basis on which jurors
could be compelled to disregard their own vast experience with parking lots and
blindly accept the ipse dixit of two lay witnesses that parking lots normally contain
the hazard at issue here.3
In their reply brief, the defendants trot out a new argument. They identify
evidence that they believe “shifts the burden to Plaintiff to establish a defect.”
(Doc. 61 at 7-9). As the Court has ruled countless times, “[d]istrict courts,
including this one, ordinarily do not consider arguments raised for the first time on
reply ….” McClain-Leazure v. Colvin, 2017 WL 3034331 at *3 (S.D. Ala. 2017).
The defendants having offered no reason to stray from this rule, the Court adheres
to it, and the defendants’ new argument is rejected on this procedural ground.
Even had the defendants timely raised their tardy argument, it would fail.
The Court assumes for present purposes that the plaintiff at trial must prove the
existence of a defect.4 On motion for summary judgment, however, the plaintiff
need do nothing at all until and unless the defendants first satisfy their initial
burden to show the absence of a genuine issue of material fact regarding the
existence of a defect. Because the defendants do not point to materials in the file
demonstrating that the plaintiff cannot produce evidence of a defect, they must
The defendants stress that, just as the Shaw plaintiff expected to find sweetgum
balls under sweetgum trees and yet failed to look at the ground as she walked, 380 So. 2d
at 815, the plaintiff here expected to encounter flaws in the parking lot and yet was
looking elsewhere when she fell. (Doc. 58 at 11-12). To the uncertain extent the
defendants suggest that whether a condition is a defect depends on the knowledge and
conduct of the particular invitee, the Court rejects the suggestion. Such a rule would
mean that the same condition could be simultaneously a defect with respect to one invitee
and not a defect with respect to the person walking beside him. Nothing in Shaw – which
did not tie these facts to its defect analysis, 380 So. 2d at 815 – supports such an odd rule.
See Miller ex rel. Miller v. Liberty Park Joint Venture, LLC, 84 So. 3d 88, 93
(Ala. Civ. App. 2011) (citing cases “support[ing] the contention that a plaintiff in a
premises-liability action must present evidence that the condition of which it complains is
“put on evidence affirmatively negating” the existence of a defect. Fitzpatrick, 2
F.3d at 1116.
The defendants first question whether the area where the plaintiff fell was
really uneven. (Doc. 61 at 8-9). Since the plaintiff pegs the dangerousness of the
area to its unevenness, negation of any unevenness presumably would negate a
defect. Certain defense witnesses deny that the area was uneven,5 and the Court
assumes for present purposes that this evidence would carry the defendants’ initial
burden on motion for summary judgment. The plaintiff and her husband,
however, both testified that the area was uneven, and the photographic evidence
supports their testimony. (Doc. 58-4; Doc. 60-2 at 4; Doc. 60-5 at 3). There is
thus a genuine issue of fact as to whether the area where the plaintiff fell was or
was not uneven.
The defendants next offer the testimony of three Sam’s Club employees for
the proposition that, after the plaintiff’s fall, they inspected the area and “did not
find a hazardous condition.” (Doc. 61 at 9). The defendants fail to address how a
conclusory lay opinion that a condition is not hazardous could even be admissible.
In any event, their evidence is far less than advertised and does not negate a
defect. One witness merely denied there was any unevenness, (Doc. 58-12 at 3),
which is a non-starter given the plaintiff’s evidence to the contrary. A second
witness stated only that he couldn’t tell what the plaintiff “tripped over,” (Doc. 588 at 3-4), which is irrelevant since she did not trip over anything but rather lost her
balance when she stepped into the depression. The third said only that he would
not expect an inspector to report the area as an unsafe condition because such
flaws are common, (Doc. 58-5 at 7), without stating he did not consider the area to
be hazardous. This flimsy showing is patently inadequate to negate the existence
of a hazardous condition. Even were it otherwise, the plaintiffs offer the
testimony of the store manager that “any” uneven surface represents a potential
(Doc. 58-10 at 3; Doc. 58-12 at 3).
trip hazard, (Doc. 60 at 11-12; Doc. 60-6 at 6-7), and the defendants do not deny
that this evidence is sufficient to create a genuine issue of fact.
The defendants next assert that “no one has ever fallen or complained about
the area.” (Doc. 61 at 9).6 The testimony of the store manager, however, which is
all they offer, does not support the proposition. He did not testify that no one has
ever fallen or complained but only that he has not “heard” of anyone, prior to the
plaintiff, falling or complaining. (Doc. 58-8 at 4-5). Because he did not testify
that he necessarily would have been made aware of any such incidents or
complaints (or even that he was employed at the store prior to the plaintiff’s
incident so as to be in a position to receive such reports), his testimony fails to
negate the existence of other incidents or complaints and thus cannot negate a
Finally, the defendants argue that neither Brixmor nor the parking lot
contractor ever reported the condition as hazardous. (Doc. 61 at 9).7 They say
that Brixmor inspected the parking lot at least monthly and did not cite the area of
the plaintiff’s fall as hazardous or unsafe; the deposition excerpts on which they
rely, however, do not address inspections or citations at all. (Doc. 58-10 at 3-4).
The contractor (who was required to report any unsafe conditions) may not have
reported the area at issue to Brixmor,8 but the reason for any such failure would be
that “we just see so much of it [uneven pavement],” (Doc. 58-11 at 6-7), not that
The absence of previous injuries constitutes evidence that a condition is not
defective or unreasonably dangerous. Miller, 84 So. 3d at 94 & n.3.
The defendants identify no Alabama case that has ever relied on such a
circumstance in considering whether a defect exists, and the only case they do offer – an
unpublished opinion from a sister federal court – neither cited precedent nor offered
explanation for considering such evidence. It may be questioned whether a defendant’s
self-interested failure to identify a condition as defective or hazardous ought to be
capable of negating a defect, but the Court assumes for present purposes that it is.
The contractor was asked the question but did not answer it. (Doc. 58-11 at 4-
uneven pavement is non-hazardous. Even could this testimony negate a defect, the
store manager’s testimony that every uneven surface represents a potential trip
hazard would, as discussed above, create a genuine issue of fact.
In summary, the defendants’ only timely argument against the existence of
a defect is both legally and factually deficient. Their untimely argument is
rejected on that ground but would also be rejected on its merits.
B. Comparative Knowledge.
“The duty to keep an area safe for invitees is limited to hidden defects
which are not known to the invitee and would not be discovered by him in the
exercise of ordinary care. …. The 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.” Daniels v. Wiley, 314 So. 3d 1213, 1223 (Ala. 2020) (emphasis
and internal quotes omitted). Thus, “openness and obviousness of a hazard, if
established, negate the … invitor’s duty to eliminate the hazard or warn the …
invitee of the hazard ….” Id. (internal quotes omitted); accord McClurg v.
Birmingham Realty Co., 300 So. 3d 1115, 1118 (Ala. 2020) (“The owner’s duty to
make safe or warn is obviated, however, where the danger is open and obvious
“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.”
Daniels, 314 So. 3d at 1225 (internal quotes omitted); accord McClurg, 300 So.
3d at 1118 (“The owner’s duty to make safe or warn is obviated, however, where
the danger is open and obvious – that is, where the invitee should be aware of the
danger in the exercise of reasonable care on the invitee’s part.”) (internal quotes
omitted). The defendants argue they lack the superior knowledge that is a
predicate to any duty to the plaintiff because the uneven pavement where the
plaintiff fell was “an obvious condition that [the plaintiff] should have observed in
the exercise of reasonable care.” (Doc. 58 at 15).9
To support their argument, the defendants present the following: the
plaintiff and her husband had visited the store “hundreds” of times previously;
they were aware that the parking lot was “cracked and uneven” to the point of
needing resurfacing; on their way into the store an hour before her fall, the
plaintiff and her husband had traversed the exact area of her fall; and the plaintiff
when she fell was looking to her right, at her husband, rather than in front of her.
(Doc. 58 at 14-15).
Before proceeding, some corrections must be made to the defendants’
statement of the evidence. The plaintiff testified that she had been to this store
“fifty or more” times, not hundreds. (Doc. 58-2 at 3). Her husband did not testify
that they had been to the store hundreds of times but only that it “possibly” had
been that many. (Doc. 58-3 at 4). Both the plaintiff and her husband
acknowledged being aware of “cracks” in the parking lot pavement, but neither
said anything about it being “uneven.” (Doc. 58-2 at 4; Doc. 58-3 at 5-6). And at
the moment she fell, the plaintiff testified she was watching both her husband and
“the cars.” (Doc. 58-2 at 15).
As the plaintiff appropriately points out, (Doc. 60 at 14-15), the defendants
have promoted the testimony of multiple defense witnesses that they could see no
unevenness in the pavement or any danger from its condition – even though they
had the luxury of time and hindsight and were specifically looking for it. The
defendants’ own evidence thus indicates the danger was not open and obvious so
as to eliminate their duty to remedy or warn.
Nor does the case on which the defendants primarily rely support their
position. In Sheikh v. Lakeshore Foundation, 64 So. 3d 1055 (Ala. Civ. App.
The defendants insist their “superior knowledge” argument is separate from
“open and obvious” principles. (Doc. 61 at 10-11). In light of Daniels and McClurg, the
Court cannot agree.
2010), the Court upheld a trial court ruling that certain cables over which the
plaintiff tripped were open and obvious as a matter of law, negating a duty to
warn. Id. at 1056, 1062. Photos showed that “the color of the cables contrasts
distinctively with the color of the underlying carpet,” id. at 1060, making the case
analogous to Paige v. Wal-Mart Stores, Inc., 638 So. 2d 4 (Ala. Civ. App. 1994),
in which it was held that “the presence of an orange cord on an off-white colored
floor established the existence of a condition that was ‘open and obvious’ as a
matter of law.” 64 So. 3d at 1061. Here, the photographic evidence is that there
was no or minimal color contrast between the parking lot pavement and the
depression in which the plaintiff lost her balance. (Doc. 58-4).
McClurg, on which the plaintiff principally relies, is especially instructive,
because it involved a hole in a parking lot. 300 So. 3d at 1117. According to the
Alabama Supreme Court, open-and-obvious issues are for the jury except in three
categories of cases: (1) where the plaintiff “has admitted carelessness or
subjective knowledge of the condition”; (2) where “the type of condition was so
obviously dangerous as to preclude liability under any circumstances”; and (3)
where, “under the particular circumstances, no reasonable jury could find that the
danger was not open and obvious.” Id. at 1119.
The second McClurg exception does not apply here, because “holes in
parking-lot asphalt are not so categorically obvious that the situation merits a per
se defense.” 300 So. 3d at 1119. The third exception did not apply in McClurg,
and does not apply here, because in both cases, “the position and dimensions of
the hole, the fact that the hole was of the same color and material as the
surrounding asphalt, and the fact that the hole was unmarked” would support a
finding that the hole was not an open and obvious danger. Id. at 1120.10 That the
The hole in McClurg was shorter (16 inches) than in this case, a bit wider (four
to five inches), and substantially deeper (4.5 inches). 300 So. 3d at 1117. As in this case,
the hole in McClurg was positioned “where the asphalt met the curb.” Id.
plaintiff was not looking in front of her when she fell cannot change the result,
since that was also true in McClurg.11 Indeed, “[a] reasonable jury could conclude
that people exercising reasonable care while walking in a parking lot are normally
watching for other hazards, such as cars, other pedestrians, and stray shopping
carts, and may not necessarily notice a pothole in the asphalt.” McClurg, 300 So.
3d at 1119-20.
The only arguable difference between this case and McClurg is the
plaintiff’s familiarity with the parking lot. While McClurg is silent on this point,
the defendants have presented uncontroverted evidence that the plaintiff had used
the parking lot at least several dozen times and was aware that it was cracked in
various places to the extent it needed resurfacing. The defendants, however, have
identified no evidence that any cracks were wide enough to present a trip hazard,
no evidence that any cracks created an uneven surface, and no evidence that the
parking lot contained any other holes or gaps like the one involved in the
plaintiff’s fall. The point of the defendants’ limited presentation is thus unclear.
To the uncertain extent they suggest that a gap or depression on the edge of the
parking lot was open and obvious as a matter of law simply because the plaintiff
knew the parking lot had cracks (not holes) in other places, the Court rejects the
suggestion as unsupported by any reasoned argument or citation to relevant
The defendants also have presented evidence that, an hour before her fall,
the plaintiff had passed the area where she fell. Since, however, they have
identified no evidence that she ever passed the area of her fall on any other
occasion, their assertion that she “had many opportunities to discover” the defect,
(Doc. 58 at 15), cannot be credited. Nor have the defendants offered any authority
for the proposition that the plaintiff’s walking past the area where she later fell
does, or even could, establish an open and obvious condition as a matter of law.
The plaintiff in McClurg stepped backwards into the hole. 300 So. 3d at 1117.
It is unnecessary to decide whether the defendants’ evidence tends to
suggest the existence of an open and obvious condition obviating a duty to remedy
or warn. It is sufficient to rule, as the Court does, that the defendants’ evidence
does not establish “some extraordinary circumstance or behavior by the plaintiff
elevat[ing] the obviousness of the danger to the point that the plaintiff could not
conceivably prevail on the claim,” McClurg, 300 So. 3d at 1120, especially in
light of (as in McClurg) the size and position of the hole, its lack of color contrast,
and its unmarked nature.
The defendants again use their reply brief to raise arguments they omitted
from their principal brief. (Doc. 61 at 11-13). The Court again declines to
entertain these arguments on their merits and rejects them as untimely. Again,
however, the defendants’ tardy arguments would fail even had they been timely
First, the defendants suggest the plaintiff has “admi[tted] that she knew
about the alleged defect.” (Doc. 61 at 11). Such actual knowledge would negate
any duty on the defendants to remedy or warn, Daniels, 314 So. 3d at 1223, but
they identify no evidence of such an admission. Instead, the defendants rely on
their evidence of the plaintiff’s familiarity with the parking lot, which plainly
contains no admission of knowledge of the uneven area prior to her fall.
Second, the defendants invoke the first McClurg category of cases
supporting an open-and-obvious defense as a matter of law. They say the plaintiff
has effectively “admitted carelessness” by admitting she was not looking where
she was going even though she was aware that the parking lot had cracks and
uneven surfaces. (Doc. 61 at 10 n.1). As noted above, the defendants have
identified no evidence that the cracks presented a hazard to pedestrians, no
evidence that the parking lot had uneven surfaces anywhere other than the area
where the plaintiff fell, and no evidence the plaintiff was aware of any such
uneven surfaces. The plaintiff did testify she was looking to her right – at her
husband and at cars in the parking lot – at the moment she fell, but she did not
testify that she had done so other than in the fleeting way a prudent pedestrian
would in navigating a busy parking lot filled with moving and suddenly appearing
dangers. As noted above, “[a] reasonable jury could conclude that people
exercising reasonable care while walking in a parking lot are normally watching
for other hazards, such as cars, other pedestrians, and stray shopping carts, and
may not necessarily notice a pothole in the asphalt.” McClurg, 300 So. 3d at
The defendants say this case is just like Browder v. Food Giant, Inc., 854
So. 2d 594 (Ala. Civ. App. 2002), the case from which the McClurg Court derived
its first category. (Doc. 61 at 10 n.1, 12-13). Plainly it is not. The area in which
the Browder plaintiff fell was red-dirt in color, in contrast to the asphalt from
which she approached it. 854 So. 2d at 597. More importantly, the Browder
plaintiff testified that she “does not normally look in front of her while walking”
and that her husband scolds her for always walking without looking where she is
going. Id. at 596. As noted above, there is no evidence the plaintiff here was
inattentive to her path as opposed to alternating her vision between her path and
the mobile dangers around her.
Finally, the defendants argue the plaintiff “has not established that
Defendants had any knowledge, much less superior knowledge, of any alleged
defect.” (Doc. 61 at 11). As movant, the initial burden is on the defendants to
negate such knowledge, and they have failed to do so. They say that no employee
of either defendant ever observed the condition at issue, but they offer no evidence
at all regarding Brixmor, and the two Sam’s Club witnesses say only that, after the
incident, they personally did not see anything that would have caused the
plaintiff’s fall. (Doc. 58-8 at 3-4, 6-7; Doc. 58-12 at 3). Such limited testimony
cannot possibly negate an entire entity’s awareness of the condition, especially
when the defendants acknowledge that Brixmor “inspects the parking lot on at
least a monthly basis.” (Doc. 61 at 9). Because the defendants have not carried
their initial burden, no burden passes to the plaintiff to present affirmative
evidence that the defendants knew of the uneven pavement.
In summary, the defendants’ timely argument against the existence of their
superior knowledge fails on the merits. Their untimely arguments are rejected on
that ground but would also be rejected on their merits.
C. Contributory Negligence.
“[T]he three elements essential to contributory negligence are [that the
plaintiff] (1) had knowledge of the condition or failure (2) appreciated the danger
and (3) failed to exercise reasonable care in the premises, but with such knowledge
and appreciation, put himself in the way of danger.” Wallace v. Alabama Power
Co., 497 So. 2d 450, 457 (Ala. 1986) (internal quotes omitted); accord City of
Lanett v. Tomlinson, 659 So. 2d 68, 71 (Ala. 1995). The defendants, who bear the
burden of proving this affirmative defense, id., argue they have established
contributory negligence as a matter of law. (Doc. 58 at 16-18).
The defendants must first demonstrate that the plaintiff “had knowledge” of
the dangerous condition. Wallace, 497 So. 2d at 457; see, e.g., Duffy v. Bel Air
Corp., 481 So. 2d 872, 874-75 (Ala. 1985) (summary judgment based on
contributory negligence was appropriate where the plaintiff saw the gravel on
which she slipped before she walked on it); see also Newton v. Creative Dining
Food Systems, Inc., 492 So. 2d 1011, 1012 (Ala. 1986) (explaining Duffy). The
condition at issue here is the uneven pavement where the plaintiff fell. The
defendants, however, present no evidence that the plaintiff knew this gap in the
pavement existed prior to her fall, and her testimony that she did not know of it
until she fell, (Doc. 60-2 at 4), would in any event create a fact issue as to the first
element of the defense.
Rather than attempt to show the plaintiff’s actual knowledge of the gap, the
defendants repeat their assertion that the plaintiff “knew the subject parking lot
was cracked and uneven.” (Doc. 58 at 17). As addressed in Part B, the
defendants have identified no evidence that the parking lot was uneven other than
the spot the plaintiff fell. Even had they done so, however, they have offered no
evidence that the plaintiff knew the particular area where she fell was uneven, and
they cite no law for the proposition that, for purposes of a contributory negligence
defense, a plaintiff can be charged with knowledge of a condition of which she
was actually ignorant simply because she was aware of a similar condition in a
The defendants next seek to avoid the first element by reformulating the
second. In order to establish the second element of contributory negligence on
motion for summary judgment, a defendant must show “that the plaintiff had a
conscious appreciation of the danger at the moment the incident occurred.”
Daniels, 314 So. 3d at 1224 (internal quotes omitted).12 According to the
defendants, the plaintiff could have such an appreciation even if she was unaware
of the pavement gap before she fell; all that is required, they say, is a general
awareness “of any risks associated with walking in a parking lot,” including the
cracks she had observed elsewhere in this particular parking lot. (Doc. 58 at 1718; Doc. 61 at 14). That is, the defendants would have it that a plaintiff need not
appreciate the dangerousness of a known condition but need only appreciate that
she may encounter unknown dangerous conditions. The defendants offer no legal
authority supporting their argument, which contradicts Wallace and many other
cases identifying knowledge of the condition as a separate, essential element of a
contributory negligence defense.13
In summary, the defendants have not met their burden of showing the
absence of a genuine issue of fact as to the plaintiff’s knowledge of the uneven
This is a deliberately higher standard than applies at trial. Id.
E.g., Imperial Aluminum-Scottsboro, LLC v. Taylor, 295 So. 3d 51, 62 (Ala.
2019); Campbell v. Kennedy, 275 So. 3d 507, 510-11 (Ala. 2018); Mitchell’s Contracting
Service, LLC v. Gleason, 261 So. 3d 1153, 1161 (Ala. 2017); Hilyer v. Fortier, 227 So.
3d 13, 23 (Ala. 2017).
pavement, and they therefore have not established contributory negligence as a
matter of law.
D. Assumption of the Risk.
“The affirmative defense of assumption of the risk requires that the
defendant prove (1) that the plaintiff had knowledge of, and an appreciation of, the
danger the plaintiff faced; and (2) that the plaintiff voluntarily consented to bear
the risk posed by that danger.” Ex parte Potmesil, 785 So. 2d 340, 343 (Ala.
2000). The defendants argue they have established assumption of the risk as a
matter of law. (Doc. 58 at 18-21).
To show knowledge and appreciation of the danger the plaintiff faced, the
defendants again assert the plaintiff’s “familiar[ity] with general risks associated
with parking lots, including cracks and uneven surfaces,” bolstered by her
awareness of cracks in other areas of the instant parking lot. (Doc. 58 at 19-20).
That is, the defendants again deny that the relevant “danger” the plaintiff must
know of and appreciate is the condition the plaintiff encountered (i.e., the actual
uneven surface that caused her to fall); instead, they posit that the relevant danger
includes the universe of conditions she might possibly encounter but of whose
actual existence along her path she is ignorant. Again, they identify no legal
support for their position. While that omission is sufficient to require the
argument’s rejection, the Court pauses to explain why it is improbable.
The relevant danger is the danger the plaintiff “faced.” The verb has many
meanings, but the most appropriate for the context in which Potmesil used it is “to
meet or confront.” American Heritage Dictionary 631 (5th ed. 2011). Plaintiffs
cannot “meet or confront” hypothetical dangers but only actual, existing ones. In
this case, the plaintiff could (and did) meet or confront an actual uneven surface,
but she could not meet or confront a merely hypothetical uneven surface. To have
knowledge of the danger the plaintiff faced, therefore, is to have knowledge of the
dangerous condition by which the plaintiff was injured.
This straightforward construction is consistent with the formulation of the
elements of assumption of the risk found in Sprouse v. Belcher Oil Co., 577 So. 2d
443 (Ala. 1991). “Assumption of risk has three elements: (1) knowledge by the
plaintiff of the condition; (2) appreciation by the plaintiff of the danger or risk
posed by that condition; and (3) a voluntary, affirmative exposure to the danger or
risk.” Id. at 444 (emphasis added); accord Mitchell v. Torrence Cablevision USA,
Inc., 806 So. 2d 1254, 1257 (Ala. Civ. App. 2000); Grider v. McKenzie, 659 So.
2d 612, 617 (Ala. Civ. App. 1994). This is the basic formulation used in an
Alabama pattern jury charge on assumption of the risk. Lyons v. Walker Regional
Medical Center, Inc., 868 So. 2d 1071, 1083 n.2 (Ala. 2003).
The defendants do identify one existing condition of which the plaintiff was
aware: the plaintiff was wearing shoes with a wedge heel of over two inches.
(Doc. 58 at 20; Doc. 58-2 at 16-17; Doc. 58-6). The condition that caused the
plaintiff to fall, however, was not simply her footwear but a gap in the pavement,
of which she says she was not aware. The plaintiff’s shoes therefore do not
advance the defendants’ position regarding the plaintiff’s knowledge of the
dangerous condition she encountered.
Even had the defendants met their burden of satisfying the initial element of
their defense as a matter of law, they have not met their burden regarding the
second. The plaintiff must “conscious[ly] appreciate[e]” the danger, H.R.H.
Metals, Inc. v. Miller ex rel. Miller, 833 So. 2d 18, 27 (Ala. 2002), which
conscious appreciation necessarily must exist when the plaintiff faces the danger.
The defendants’ evidence, however, does not address the plaintiff’s appreciation at
this critical point in time; instead, it addresses the plaintiff’s appreciation of the
risk of encountering unknown imperfections in a parking lot, and of wearing
wedge heels in a parking lot, only as of the time of her deposition, which occurred
over two years after the incident. (Doc. 58-2 at 2, 5, 17).
In summary, the defendants have not met their burden of showing the
absence of a genuine issue of fact as to the plaintiff’s knowledge of, and
appreciation of, the danger she faced, and they therefore have not established
assumption of the risk as a matter of law.
The plaintiff concedes that her claim for wantonness is due to be dismissed.
(Doc. 60 at 2 n.2).
For the reasons set forth above, the defendants’ motion for summary
judgment is granted with respect to Count Two, and with respect to Count Three
to the extent it is based on a theory of wantonness. In all other respects, the
defendants’ motion is denied.
DONE and ORDERED this 9th day of September, 2021.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
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