Denmark v. MERCANTILE STORES CO., INC.
Decision Date | 13 September 2002 |
Citation | 844 So.2d 1189 |
Parties | Genevieve DENMARK and Jed Denmark, Jr. v. MERCANTILE STORES COMPANY, INC., a/k/a Dillard's, Inc. |
Court | Alabama Supreme Court |
Linda F. Clausen and Marni Reagan of Gardberg, Knopf & Clausen, P.C., Mobile, for appellants.
Dennis McKenna of Prince, McKean, McKenna & Broughton, Mobile, for appellee.
Genevieve Denmark and her husband, Jed W. Denmark, Jr., appeal from a summary judgment in favor of "Gayfer's Montgomery Fair, Co.," and its reputed "successor in interest," Mercantile Stores Company, Inc., a/k/a Dillard's, or Dillard's, Inc. (hereinafter referred to as "Mercantile"),1 in the Denmarks' action seeking damages for injuries Genevieve Denmark allegedly suffered when she tripped and fell on Mercantile's premises. We reverse and remand.
This action began on December 18, 1998, when the Denmarks filed a two-count complaint against Mercantile. The complaint alleged that Genevieve Denmark was injured while shopping at Mercantile's store in Springdale Mall, when she "tripped [over] a roll of plastic shopping bags that was left lying on the floor by [Mercantile]." The complaint alleged that Mercantile had been negligent, wanton, and reckless and included a loss-of-consortium claim by Jed. It sought compensatory and punitive damages, based on Genevieve's injuries and Jed's loss of consortium. Mercantile subsequently moved for a summary judgment, which the trial court granted; the Denmarks appealed.
On appeal, Mercantile contends that the trial court "was correct in granting summary judgment ... in that the [Denmarks] failed to adduce any evidence that [Mercantile] had notice or knowledge or should have had notice or knowledge of an alleged dangerous condition." Mercantile's Brief, at 3. Next, it contends that the trial court was correct in entering the summary judgment "in that the evidence establishes conclusively that the alleged condition complained of was open and obvious and that [Genevieve Denmark] knew or should have known of the nature of the condition complained of through the exercise of reasonable care." Mercantile's Brief, at 3. Mercantile further states:
Mercantile's Brief, at 5. We address each of these contentions in separate sections.
A store owner's duty is well-established. That duty is "to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers." Maddox v. K-Mart Corp., 565 So.2d 14, 16 (Ala.1990). Consequently, injured Id. Where, however, "`' " Wal-Mart Stores, Inc. v. Rolin, 813 So.2d 861, 864 (Ala.2001) (emphasis added) (quoting Wal-Mart Stores, Inc. v. McClinton, 631 So.2d 232, 234 (Ala.1993), quoting in turn Joseph A. Page, The Law of Premises Liability § 7.11 at 169 (2d ed.1988)). See also Mims v. Jack's Restaurant, 565 So.2d 609 (Ala.1990). This Court has held that where a shopper trips over merchandise protruding from a box that is part of a "barbeque grill display" evidently arranged by store employees, the store owner's knowledge of a hazardous condition is presumed. Rolin, 813 So.2d at 865.
The procedure on a summary-judgment motion is equally well-established. "On a motion for a summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law." Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 868 (Ala.1996); Rule 56, Ala. R. Civ. P. See McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992). Thus, "[t]he burden to present evidence that will establish a genuine issue of material fact does not shift to the nonmovant unless the movant [first] satisfies its burden." O'Barr v. Oberlander, 679 So.2d 261, 263 (Ala.Civ.App.1996).
In connection with its burden, Mercantile filed in support of its summary-judgment motion a "narrative statement of uncontested facts," based on the deposition testimonies of Genevieve Denmark and her two sons, Richard and Jed Denmark III, who accompanied her on the day of the accident. That statement provides, in pertinent part:
(Emphasis in original; citations to the record omitted.)
This statement does not satisfy Mercantile's burden. On the contrary, it tends to establish only that the roll of garment bags over which Denmark tripped was under the custody and control of Mercantile and had been placed in the display area by a Mercantile employee. Indeed, the sales associate working in the immediate area of the accident told Richard Denmark that the roll was "not supposed to be outside the checkout counter." Thus, Mercantile offered no evidence indicating that the roll of garment bags was ever used or handled by anyone, other than Mercantile employees. Consequently, the burden to present evidence creating a genuine issue of material fact never shifted to the Denmarks.
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