Oglesby v. Neill Corporation

Filing 62

ORDER AND REASONS. It is ORDERED that Defendant's Motion for Summary Judgment Regarding Notice, Waiver, and Causation (Rec. Doc. 26 ) and Motion for Partial Summary Judgment on Punitive Damages (Rec. Doc. 27 ) are GRANTED. It is FURTHER ORD ERED that Plaintiff's claims are DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that Defendant's Motion to Bifurcate (Rec. Doc. 28 ) is DENIED AS MOOT. It is FURTHER ORDERED that Defendant's Motion in Limine (Rec. Doc. 29 ) is DENIED AS MOOT. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIE OGLESBY

CIVIL ACTION

VERSUS

NO: 16-13018

NEILL CORPORATION

SECTION: “J” (4)
ORDER AND REASONS

Before the Court is a Motion for Summary Judgment Regarding
Notice, Waiver, and Causation (Rec. Doc. 26) filed by Defendant
Beauty

Basics,

Inc.

d/b/a

Aveda

Institute

Birmingham

(“Defendant”), an opposition thereto (Rec. Doc. 51) filed by
Plaintiff Jennie Oglesby (“Plaintiff”), and a reply (Rec. Doc. 59)
filed by Defendant.

Also before the Court is a Motion for Partial

Summary Judgment on Punitive Damages (Rec. Doc. 27) filed by
Defendant, an opposition thereto (Rec. Doc. 52) filed by Plaintiff,
and a reply (Rec. Doc. 58) filed by Defendant.

Having considered

the motion and legal memoranda, the record, and the applicable
law, the Court finds that the motions should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This is a slip and fall case emanating from an incident that
occurred while Plaintiff was in the Aveda Institute of Birmingham
(“Aveda Institute”) beauty school in Birmingham, Alabama.

On July

31, 2015, Plaintiff entered the Aveda Institute to have her hair
done.

Before receiving her hair treatment, Plaintiff signed a

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release form (“release”) whereby she agreed not to bring suit
against Defendant for injury or damage she might suffer while she
was at the Aveda Institute.

Plaintiff alleges that during her

hair treatment, she was led from her chair to the sink area to
rinse her hair.

At this point, Plaintiff slipped.

Plaintiff

alleges that she lost her footing because a significant amount of
water

had

accumulated

on

the

floor

and

she

stepped

in

it.

Plaintiff stumbled into the cabinet and never actually fell to the
ground.

Nevertheless,

Plaintiff

alleges

that

this

accident

loosened old wounds from previous abdominal surgeries, causing her
new injuries and extreme pain.
Plaintiff filed suit in this Court on July 20, 2016, alleging
that Defendant’s negligence and gross negligence were the sole
causes of her injuries.

On March 14, 2017, Defendant filed the

instant motions for summary judgment.

Both motions are before the

Court on the briefs and without oral argument.
PARTIES’ ARGUMENTS
Defendant argues that the Louisiana Merchant Liability Act
applies to this case and that Plaintiff cannot meet her burden of
proof under the Act. Defendant also argues that Plaintiff executed
a

valid

waiver

Additionally,

that

Defendant

released
argues

Defendant

that

Plaintiff

from
has

liability.
failed

to

demonstrate a causal connection between the accident and her
injuries.

Finally, Defendant argues that its conduct did not
2

qualify as willful or wanton and summary judgment should be granted
on Plaintiff’s claim for punitive damages.
In

opposition,

Plaintiff

first

argues

that

Alabama

law

applies to this case and the Louisiana Merchant Liability Act is
not applicable.

Plaintiff also argues that the release she signed

does not preclude her from bringing this suit.

Finally, Plaintiff

argues that she has made a prima facie claim of negligence and a
prima facie claim for punitive damages.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, a court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing

the

evidence.”

Delta

&

Pine

Land

Co.

v.

Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

with

conclusory

allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
3

could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.

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DISCUSSION
I.

Alabama Law Controls
The parties dispute which law should apply to this case.

Defendant argues, without providing support, that Louisiana law
should apply because the matter is pending within the state of
Louisiana against a Louisiana defendant.

Plaintiff, on the other

hand, argues that Alabama law applies.
Federal

courts

substantive law.

sitting

in

diversity

are

to

apply

state

Times-Picayune Pub. Corp. v. Zurich Am. Ins.

Co., 421 F.3d 328, 334 (5th Cir. 2005).

This requires federal

courts to apply the choice-of-law provisions of the state in which
they sit.

Cain v. Altec Indus., Inc., 236 F. App'x 965, 967 (5th

Cir. 2007) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941)). Because this Court sits in Louisiana, it applies
the choice-of-law provisions of Louisiana.
Louisiana’s general rule is that “an issue of delictual and
quasi-delictual obligations is governed by the law of the state
whose policies would be most seriously impaired if its law were
not applied to that issue.”

La. Civ. Code art. 3542.

Article

3542 further directs the Court to consider:
(1) the pertinent contacts of each state to the parties
and the events giving rise to the dispute, including the
place of conduct and injury, the domicile, habitual
residence, or place of business of the parties, and the
state in which the relationship, if any, between the
parties was centered; and (2) the policies referred to
in Article 3515, as well as the policies of deterring
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wrongful conduct and of repairing the consequences of
injurious acts.
Id.

Article 3515 also instructs that a case involving contacts

with other states “is governed by the law of the state whose
policies would be most seriously impaired if its law were not
applied to that issue.”

La. Civ. Code art. 3515.

The article

lists the following factors to be considered:
(1) the relationship of each state to the parties and
the dispute; and (2) the policies and needs of the
interstate and international systems, including the
policies of upholding the justified expectations of
parties and of minimizing the adverse consequences that
might follow from subjecting a party to the law of more
than one state.
Id.

The Fifth Circuit has synthesized the analysis as such:
In sum, the choice of law methodology contained in
Louisiana's Civil Code requires that, in sequence, we
(1) examine the pertinent contacts of each state with
respect to “the particular issue as to which there exists
an actual conflict of laws” (so as to determine the
“relationship of each state to the parties and the
dispute”), (2) identify the various state policies that
might be implicated in the choice of law, and then (3)
evaluate the “strength and pertinence” of these policies
in light of “the relationship of each state to the
parties and the dispute,” and in light of “the policies
and needs of the interstate and international systems”
(so as to resolve the ultimate question of which state's
policies would be “most seriously impaired if its law
were not applied to that issue”).

Marchesani v. Pellerin-Milnor Corp., 269 F.3d 481, 487 (5th Cir.
2001).
Louisiana’s only contact with respect to this case is that
Defendant is located here. Mississippi has more pertinent contacts

6

because Plaintiff resides and has received treatment there.
Alabama

has

the

most

pertinent

contacts.

Defendant

But

has

a

cosmetology school in Alabama and the event giving rise to this
litigation occurred there.

Neither party has identified various

state policies that may be implicated by the choice of law.
Accordingly, the strength and pertinence of Alabama’s contacts
outweighs that of the other states and its substantive law will be
applied.

See Tolliver v. Naor, 115 F. Supp. 2d 697, 704 (E.D. La.

2000) (“[T]he conflict of law rules of both Louisiana and New York
indicate

that

Louisiana's

law

should

be

applied

because

the

accident occurred in Louisiana between domiciliaries of different
states.”)

As a result, Louisiana’s Merchant Liability Act is not

applicable.
II.

The Waiver of Liability

On the day of the incident at issue, Plaintiff signed a
release form at the Aveda Institute.

(Rec. Doc. 26-2 at 2.)

release included the following statement:
I, the undersigned, have read and fully understand that
all services rendered at the AVEDA INSTITUTES SOUTH are
performed by students that are not yet licensed
professionals but that are under the supervision of
licensed educators. If I have any concerns regarding my
service, it is my responsibility to notify management
within 24 hours and/or the next business day. I further
understand that any reconciliation of services will be
solely at the discretion of the management and education
staff.
I AGREE TO ASSUME THE RISK OF ANY INJURY OR
DAMAGE THAT I MIGHT SUFFER. I AGREE TO GIVE UP MY RIGHT
TO SUE THE STUDENT, THE EDUCATOR OR THE SCHOOL FOR ANY
DAMAGE TO MYSELF OR ANY PERSONAL PROPERTY.
7

The

(Rec. Doc. 26-3 at 1.)
from liability.

Defendant argues that this exculpates it

Plaintiff contends that this signed document does

not act as a release of liability because Alabama law does not
recognize this type of agreement.
Plaintiff’s argument relies primarily on a 1966 decision by
an Alabama court of appeals.

In Smith v. Kennedy, the plaintiff

went to the Birmingham Beauty College to have her hair treated.
43 Ala. App. 554, 195, 195 So. 2d 820, 822 (Ala. Ct. App. 1966).
Before receiving the treatment, the plaintiff entered into a hold
harmless agreement in which she acknowledged that she was having
her hair done at a beauty school and that the students who would
be serving her were not being held out as skilled and trained
operators. Id. at 822-23. The hold harmless agreement also stated
that the plaintiff would pay a reduced price for the services.
Id.

In exchange, the plaintiff agreed to “in no wise hold the

above named school, its proprietors, officers or agents, or any of
its operators liable or accountable for any injury or damage that
may occur to [her] as a result of work performed on [her] in this
school.”

Id. at 823.

After signing the hold harmless agreement,

the plaintiff underwent her hair treatment.

Id. at 824.

Some of

the solution that the student used for the plaintiff’s hair ran
down to her back, neck, and head.

8

Id.

As a result, the plaintiff

experienced second degree burning and required hospitalization.
Id.
The plaintiff in Smith sued the beauty college and other
defendants for negligence and wanton injury.

Id. at 822.

The

defendants argued that they were released from liability because
the plaintiff signed the hold harmless agreement, but the appellate
court disagreed.

Id.

Citing a 1943 Alabama Supreme Court case

called Housing Authority of Birmingham District v. Morris, 244
Ala. 557, 563, 14 So. 2d 527, 531 (1943), the Smith court stated:
“Under Alabama law a party may not by contract absolve himself
from liability for the negligence of himself of his servants.”
Smith, 195 So. 2d at 823.

Plaintiff argues that Smith, which is

directly on point, serves as precedent for the instant case.
However, Defendant correctly points out that both Smith and
the

case

overruled.

upon

which

it

relied

have

since

been

effectively

In 1980, the Alabama Supreme Court stated:

[A]fter carefully reviewing all of the authority in this
state, we are compelled to conclude that, if the parties
knowingly, evenhandedly, and for valid consideration,
intelligently enter into an agreement whereby one party
agrees to indemnify the other, including indemnity
against the indemnitee's own wrongs, if expressed in
clear and unequivocal language, then such agreements
will be upheld.
Indus. Tile, Inc. v. Stewart, 388 So. 2d 171, 176 (Ala. 1980)
(emphasis added); see also 1 Ala. Pers. Inj. & Torts § 3:29 (2016
ed.) (noting that “[r]eleases, covenants not to sue, exculpatory

9

clauses, and limitation of liability clauses or agreements are
similar

in

purpose”

enforceability).

and

applying

the

same

standard

for

Plaintiff has not identified any post-Stewart

Alabama case where a court has held that a party could not contract
against its own negligence.
case.

Nor has the Court identified any such

Accordingly, it is not inherently contrary to Alabama law

for Plaintiff and Defendant to enter into such a contract.
The

next

unambiguous.
party

agrees

omissions.

issue

is

whether

the

release

was

clear

and

Careful scrutiny is applied to agreements where one
to

indemnify

the

other

party

for

its

acts

or

City of Montgomery v. JYD Int'l, Inc., 534 So. 2d 592,

594 (Ala. 1988).

Such agreements are only enforceable when the

indemnity provisions are unambiguous and unequivocal.

Id.

An

indemnity contract such as the one at issue here is unambiguous
“when its language specifically refers to the negligence of the
indemnitee.”

Nationwide Mut. Ins. Co. v. Hall, 643 So. 2d 551,

555 (Ala. 1994). Nevertheless, the language of the contract need
not be “talismanic” so long as the requisite intent is otherwise
clear.

Id.

Plaintiff argues that the release was either ambiguous or
designed to only release Defendant from liability relating to any
claims arising from hair services.

Plaintiff argues that the

release was not designed to release Defendant from liability
arising out of unforeseen bodily injuries she might incur due to
10

dangerous

conditions

argument,

Plaintiff

or

negligent

points

to

the

conduct.

To

testimony

support

of

the

this

student

hairstylist who was serving Plaintiff the day of the incident.
The student testified in a deposition that she believed the release
related to cosmetology services and not to personal injuries.
Plaintiff argues that the student’s understanding of the release
provides insight into the release’s actual purpose.
Despite

Plaintiff’s

argument,

there

is

nothing

ambiguous

about the release she signed on the date of this incident.

It

states in all capital letters that Plaintiff would assume the risk
of any injury or damage that she might suffer and includes an
agreement not to sue the student, the educator, or the school.
Nothing in the release limits its application to cosmetology
services.

It is clear from the four corners of the document that

Defendant intended to exculpate itself from all liability for any
negligence

while

services

were

being

rendered

at

the

Aveda

Institute.

When a release of liability contains no ambiguity, the

court is to interpret “the meaning and intentions of the parties
as found within the four corners of the document.”

Minnifield v.

Ashcraft, 903 So. 2d 818, 827 (Ala. Civ. App. 2004); see also Ala.
Code

§

12-21-109

(“All

receipts,

releases

and

discharges

in

writing, whether of a debt of record, a contract under seal or
otherwise,

and

all

judgments

entered

11

pursuant

to

pro

tanto

settlements, must have effect according to their terms and the
intentions of the parties thereto.”)
The final issue is whether Defendant’s conduct is to be
classified as negligent or willful.

Although releases for future

negligent acts or omissions are permissible, “releases as to future
intentional tortious conduct [are] prohibited.”

Reece v. Finch,

562 So. 2d 195, 200 (Ala. 1990); see also Barnes v. Birmingham
Int'l Raceway, Inc., 551 So. 2d 929, 932 (Ala. 1989) (holding that
general pre-race releases providing exculpation from liability for
wanton or willful conduct are against public policy and invalid);
Minnifield, 903 So. 2d at 827.

Ala. § 6-11-20(b)(3) defines

wantonness as “[c]onduct which is carried on with a reckless or
conscious disregard of the rights or safety of others.”

Ala. Code

§ 6-11-20(b)(3). A willful act is one that is “done intentionally,
knowingly,

and

distinguished

purposely,

from

an

act

heedlessly or inadvertently.”

without
done

justifiable
carelessly,

excuse,

as

thoughtlessly,

Deen v. Holderfield, 155 So. 2d

314, 317 (1963).
Plaintiff
wanton.

argues

that

Defendant’s

conduct

qualifies

as

To support this position, Plaintiff directs the Court to

deposition testimony stating that water was on the floor near where
Plaintiff slipped and that the area near the hair wash bowls can
be dark, making it difficult to see the floor.

Plaintiff also

argues that there is “an issue of inadequate training” because the
12

student involved in the incident could not recall ever having been
instructed on the danger of water being present on the floor.
Additionally, Plaintiff argues that it is possible that the student
handbook and other training materials handed out by Defendant do
not include information regarding the danger of slip and falls.
Finally, Plaintiff argues that other class action lawsuits filed
against Defendant in previous years suggest that Defendant has
failed to adequately prepare students for licensure. For all these
reasons, Defendant argues that systemic safety failures rise to
the level of recklessness or wantonness.
The

Court

is

unconvinced.

“Negligence

and

wantonness,

plainly and simply, are qualitatively different tort concepts of
culpability.” Tolbert v. Tolbert, 903 So. 2d 103, 114 (Ala. 2004).
“Willfulness or wantonness imports premeditation, or knowledge and
consciousness that the injury is likely to result from the act
done or from the omission to act, and strictly speaking, is not
within the meaning of the term ‘negligence,’ which conveys the
idea

of

formed

inadvertence,
intention.”

as

Id.

distinguished
at

115

from

(internal

premeditation

citation

or

omitted).

Nothing in the description of the facts suggests that Defendant
acted with wantonness.

The student who was serving Plaintiff the

day of the accident reported not seeing water on the floor as she
walked Plaintiff to the hair rinsing station.

Moreover, further

deposition testimony of the student reveals that she was trained
13

to be careful not to spill water on the floor and to clean it up
immediately when water did spill. The other lawsuits filed against
Defendant are irrelevant to this case, and Plaintiff provides no
evidence that the training provided by Defendant is inadequate.
Defendant’s conduct does not qualify as willful or wanton.
CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion for Summary Judgment
Regarding Notice, Waiver, and Causation (Rec. Doc. 26) and

Motion

for Partial Summary Judgment on Punitive Damages (Rec. Doc. 27)
are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims are DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendant’s Motion to Bifurcate
(Rec. Doc. 28) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine (Rec.
Doc. 29) is DENIED AS MOOT.
New Orleans, Louisiana this 2nd day of May, 2017.

_______________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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