EDOSOMWAN EX REL. EDOSOMWAN v. ABC DAYCARE & KINDERGARTEN

• Decision Date: 11 September 2009
• Docket Number: 2080465.
• Citation: 32 So.3d 591
• Parties: Etinosa EDOSOMWAN, a minor, by and through his mother and next friend, Betty EDOSOMWAN v. A.B.C. DAYCARE AND KINDERGARTEN, INC.
• Court: Alabama Court of Civil Appeals

32 So.3d 591

Etinosa EDOSOMWAN, a minor, by and through his mother and next friend, Betty EDOSOMWAN v. A.B.C. DAYCARE AND KINDERGARTEN, INC.

2080465.

Court of Civil Appeals of Alabama.

September 11, 2009.

Obinna K. Mbanugo of Kenn Law Firm, LLC, Birmingham, for appellant.

C. Peter Bolvig of Hall, Conerly & Bolvig, P.C., Birmingham, for appellee.

THOMAS, Judge.

On January 17, 2007, Etinosa Edosomwan, a four-year-old boy, was enrolled at A.B.C. Daycare and Kindergarten, Inc. ("the day-care facility"). As Etinosa got up from his nap cot, which was three inches above the floor, he tripped or became tangled in the sheet covering his nap cot. Etinosa fell, and he began crying. One of the teachers assigned to Etinosa's room, Essence Lewis, responded to Etinosa's cries by coming to his assistance. She asked if he could walk, and Etinosa told her that he could not. Lewis said that when she asked Etinosa what happened, Etinosa told her that he had fallen on his covers.

Lewis carried Etinosa to the office of the director of the day-care facility, where the director, Sheila Box, telephoned Etinosa's mother, Betty Edosomwan, to inform her that Etinosa had fallen, that he was crying, and that Betty should come to the day-care facility to see if Etinosa needed medical assistance. According to the day-care facility's answers to interrogatories, Betty indicated she would come immediately to the day-care facility. However, again according to the day-care facility's answers to interrogatories, Betty did not arrive at the day-care facility until one and one-half hours after the telephone call to her was placed.

Upon Betty's arrival, which she said occurred about 15 minutes after she received the telephone call from the day-care facility, she asked Etinosa what was wrong. She said that he pointed to his left leg and said that it hurt. She, like Lewis, inquired of Etinosa whether he could stand or walk, to which he responded "no." Betty carried Etinosa to her automobile and transported him to the emergency room at Children's Hospital. Betty testified that she had not been able to determine that Etinosa's leg was broken before the emergency-room physician examined him, despite the fact that she was a certified nursing assistant.

Betty testified that, while at the emergency room, she asked Etinosa how he fell and hurt his leg. She said that Etinosa told her that he was folding his blanket and fell down. Etinosa repeated that same story to Betty on another occasion.

On February 19, 2008, Betty, as Etinosa's mother and next friend, sued the day-care facility and three fictitiously named parties, alleging that the day-care facility and the fictitiously named parties had negligently or wantonly exercised their duty to care for Etinosa, resulting in his injury; that the day-care facility and the fictitiously named parties had negligently hired, trained, and/or supervised the day-care facility's employee, who was designated as fictitiously named party B; and that the day-care facility and the fictitiously named parties had committed an assault and battery on Etinosa. The day-care facility answered the complaint, and the parties conducted discovery. On December 4, 2008, the day-care facility moved for a summary judgment on all claims in the complaint. The trial court entered a judgment in favor of the day-care facility on January 20, 2009. Betty timely appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).¹

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

On appeal, Betty argues only that the application of the doctrine of res ipsa loquitur precludes the entry of a summary judgment in favor of the day-care facility. Betty makes no arguments concerning the summary judgment in favor of the day-care facility on the claims asserting negligent hiring, training, or supervision or assault and battery; therefore, Betty has waived any arguments concerning the summary judgment on those claims, and we affirm the summary judgment insofar as it relates to those claims. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (stating that issues not raised and argued in brief are waived).

Res ipsa loquitur means "`the thing speaks for itself,' and the doctrine essentially allows a party to prove negligence by using circumstantial evidence." Carrio v. Denson, 689 So.2d 121, 123 (Ala. Civ.App.1996). However, "the doctrine of res ipsa loquitur does not require that a defendant be held liable merely because no explanation exists for how and accident occurred. There must be some indication that the defendant was negligent and that the accident occurred as a result of that negligence." Carrio, 689 So.2d at 123. "If one can reasonably conclude that the accident could have happened without any negligence on the part of the defendant, then the res ipsa loquitur doctrine does not apply." Ex parte Crabtree Indus. Waste, Inc., 728 So.2d 155, 158 (Ala.1998).

In order for the doctrine of res ipsa loquitur to apply, a plaintiff must prove three elements:

"`(1) The defendant must have had full management and control of the instrumentality which caused the injury; (2) the circumstances must be such that according to common knowledge and experience of mankind the accident could not have happened if those having control of the management had not been negligent; and (3) the plaintiff's injury must have resulted from the accident.'"

Carrio, 689 So.2d at 123 (quoting Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1223 (Ala.1992)). The day-care facility specifically challenges Betty's inability to establish the second element, arguing in its summary-judgment motion, and in its brief on appeal, that Betty did not, and could not, produce substantial evidence indicating that the circumstances of Etinosa's accident and injury were "`such that according to the common knowledge and experience of mankind the accident could not have happened'" without negligence on the part of the day-care facility. Carrio, 689 So.2d at 123.

Betty relies exclusively on the only case in Alabama applying the doctrine of res ipsa loquitur to a situation involving the injury of a child in a day-care center: Ward v. Forrester Day Care, Inc., 547 So.2d 410 (Ala.1989). The child in Ward, Garrett Ward, was an 11-week-old infant who suffered a broken arm. Ward, 547 So.2d at 410-11. His parents, on his behalf and individually, sued Forrester Day Care, Inc., alleging that its employees had negligently supervised Garrett in the nursery, resulting in his injury. Id. at 411. Our supreme court reversed the summary judgment in favor of the day-care center, in part, because the Wards presented evidence concerning several conditions at the day-care center that they contended could have caused Garrett's injury. Id. In deciding that the doctrine of res ipsa loquitur should apply, our supreme court relied on Zimmer v. Celebrities, Inc., 44 Colo.App. 515, 615 P.2d 76 (1980), which applied the doctrine in a case involving a severe skull fracture received by a 25-month-old child while in the care of a nursery provided for patrons of a bowling alley. Ward, 547 So.2d at 413.

The Zimmer court based its conclusion that the doctrine of res ipsa loquitur applied on a consideration of the elements of the doctrine as adopted in Colorado.² Zimmer, 44 Colo.App. at 517, 615 P.2d at 78. First, the court concluded that the plaintiffs had presented evidence indicating that "the injury would not have occurred but for the negligence of someone." Zimmer, 44 Colo.App. at 517, 615 P.2d at 79. The court noted that the evidence had indicated that the child had been inadequately supervised and that the child had been placed in a play area that contained exposed pipes, thus indicating that the injury might have resulted from those potential acts of negligence. Id. Because the nursery had clearly assumed the responsibility of caring for the child, the court concluded that the nursery had a duty of reasonable care when caring for the child. Zimmer, 44 Colo.App. at 518, 615 P.2d at 79. Based on the fact that the child had not been suffering from the injury when he was left in the nursery, the court concluded that the plaintiffs had proven that there was no evidence of other responsible causes, and the court also determined that the evidence demonstrated that the child himself was not responsible for his own injuries, precluding any responsibility or negligence on the part of the plaintiffs. Id. Thus, the Colorado Court of Appeals concluded that the doctrine...