Dolgencorp, Inc. v. Taylor

• Decision Date: 12 June 2009
• Docket Number: 1070900.
• Citation: 28 So.3d 737
• Parties: DOLGENCORP, INC. v. Arlie TAYLOR.
• Court: Alabama Supreme Court

28 So.3d 737

DOLGENCORP, INC. v. Arlie TAYLOR.

1070900.

Supreme Court of Alabama.

June 12, 2009.

Rehearing Denied August 28, 2009.

Robert S. Lamar, Jr., and Rick D. Norris, Jr., of Lamar, Miller, Norris, Haggard & Christie, P.C., Birmingham, for appellant.

Frederick P. Gilmore and Wyman O. Gilmore, Jr., of Gilmore Law Firm, P.C., Grove Hill, for appellee.

SMITH, Justice.

Dolgencorp, Inc. ("Dolgencorp"), which owns and operates Dollar General retail discount stores, appeals from a judgment entered on a jury verdict in favor of Arlie Taylor on Taylor's claims alleging negligence and wantonness. We reverse the trial court's judgment and render a judgment for Dolgencorp.

Facts and Procedural History

On December 2, 2004, Taylor, who was then 68 years old, went to a Dollar General retail discount store ("the store") in Jackson to purchase laundry products. After entering the store, Taylor attempted to push her shopping cart to the back aisle of the store where the laundry products were located by way of the middle aisle; however, the middle aisle was impassible because of displays of Christmas decorations and candy. Taylor then attempted to push her shopping cart to the back aisle by way of an aisle on the right side of the store. She testified at trial that she was "going around boxes" of merchandise that were located on the floor of the aisle as she moved toward the back aisle.

When Taylor arrived at the back aisle of the store, she turned her shopping cart to the left and began looking for the laundry detergent. Taylor testified that there were unopened cases of merchandise on the floor of the back aisle and that she "had to avoid one ... when [she] went to get [her] washing powder." After placing a box of laundry detergent in her shopping cart, Taylor pushed her shopping cart further along the back aisle to the section where the laundry bleach was located. After placing a bottle of bleach in her shopping cart, Taylor moved further down the aisle in search of fabric softener, which was located on the top shelf of the back aisle. Taylor testified at trial that she "step[ped] out from behind the [shopping cart]" to reach for the fabric softener and that when she did she fell over two unopened cases of merchandise that were stacked one on top of the other in the aisle. Taylor testified both in her deposition¹ and at trial that she did not see the two cases of merchandise before she fell over them; she also testified that, based on her observation of other cases of merchandise she had maneuvered around in the store on the day that she was injured, two cases stacked one on top of the other would be approximately "knee or thigh high."

On March 3, 2005, Taylor and her mother, Rena Cave (sometimes referred to collectively as "the plaintiffs"), sued Dolgencorp; Linda Bailey, the manager of the store from January 2004 until January 2005; and fictitiously named defendants (Dolgencorp and Bailey are sometimes referred to collectively as "the defendants"). The complaint alleged, among other things, that Dolgencorp and Bailey had negligently and/or wantonly failed to maintain the premises of the store in a safe condition.² The plaintiffs' complaint requested compensatory and punitive damages, plus interest and costs. The defendants filed an answer denying liability and asserting a number of affirmative defenses including the defense that the cases of merchandise in the aisle were an "open and obvious condition."

On September 11, 2007, the defendants filed a motion for a summary judgment, which the trial court denied. At trial, the defendants filed a motion for a judgment as a matter of law ("JML") at the close of the plaintiffs' evidence. In their motion for a JML, the defendants asserted, among other things, that they owed no duty of care to Taylor because, the defendants said, the hazardous condition was "open and obvious" and that the plaintiffs failed to present substantial evidence establishing that the defendants had acted negligently or wantonly.

The defendants also made an oral motion to the trial court to supplement their written motion for a JML. After hearing argument on the defendants' motion for a JML, the trial court stated that it was "striking the punitive damages claim against ... Bailey" and denied the motion for a JML as to the negligence and wantonness claims asserted against Dolgencorp and as to the negligence claim asserted against Bailey.³ The defendants renewed their motion for a JML at the close of all the evidence; the trial court granted that motion as to the remaining claims asserted against Bailey but denied that motion as to the claims asserted against Dolgencorp.

On September 28, 2007, the jury returned the following verdict:

"We the jury, find for [Taylor], and against [Dolgencorp], on the count of negligence, and fix [Taylor's] compensatory damages therefore at $85,000. Further, we the jury, find for [Taylor] and against [Dolgencorp], on the count of wantonness, and fix [Taylor's] punitive damages at $175,000, in addition to the compensatory damages for negligence."

On October 25, 2007, the trial court entered a judgment on the jury's verdict. That judgment provided, in pertinent part:

"The jury, having returned a verdict for the Plaintiff, Arlie Taylor, and against the Defendant, Dolgencorp, Inc., in the amount of $85,000 in compensatory damages and $175,000 in punitive damages; a judgment is hereby entered accordingly for the Plaintiff, Arlie Taylor, and against the Defendant, Dolgencorp, Inc., in the amount of $85,000 in compensatory damages and $175,000 in punitive damages."

On October 29, 2007, Dolgencorp filed a postjudgment motion styled as a "motion for judgment notwithstanding the verdict and renewed motion for judgment as a matter of law or, in the alternative, motion for new trial, and for remittitur"; that motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. This appeal followed.⁴

Standard of Review

"When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala. 1992)."

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003).

Issues

Dolgencorp raises two issues on appeal. Dolgencorp first argues that the trial court erred in denying its motions for a JML as to Taylor's negligence claim against it because, Dolgencorp contends, the hazardous condition in the store was open and obvious; thus, Dolgencorp says, it had no duty either to eliminate the hazardous condition or to warn Taylor of the hazardous condition. Conversely, Taylor argues that the cases of merchandise were not open and obvious; instead, Taylor argues that the cases of merchandise were a "hidden danger" because, she says, "it is not only foreseeable to [Dolgencorp], but expected, that a customer such as Ms. Taylor would focus her attention on the shelves when looking for a particular item and not anticipate any tripping hazards in the aisle while doing so."

Dolgencorp also argues that the trial court erred in denying its motions for a JML on Taylor's wantonness claim against it and the request for punitive damages because, Dolgencorp contends, the evidence was not sufficient to support a finding that it "had deliberately engaged in conduct that was in reckless or conscious disregard of the safety of the store's customers." Rather, Dolgencorp argues, the evidence established that "the cases or boxes were placed along the walls of the aisles, out in the open, where they could be seen by any reasonably vigilant shopper." Conversely, Taylor argues that there was "sufficient evidence that [Dolgencorp] knew the boxes were dangerous, exhibited a conscious disregard for the safety of [its] customers, and that [its] customers were ultimately placed in danger for the wantonness claim to be submitted to the jury."

I. Negligence Claim

It is undisputed that Taylor was a business invitee of Dolgencorp. See Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala.1997) ("`In order to be considered an invitee, the plaintiff must have been on the premises for some purpose that materially or commercially benefited the owner or occupier of the premises.'" (quoting Sisk v. Heil Co., 639 So.2d 1363, 1365 (Ala.1994), overruling on other grounds recognized by Sessions v. Nonnenmann, 842 So.2d 649, 654 (Ala.2002))). The liability of a premises owner to an invitee is well settled.

"In a premises-liability setting, we use an objective standard to assess whether a hazard is open and obvious. As discussed in Sessions [v. Nonnenmann, 842 So.2d 649 (Ala.2002)], the question is whether the danger should have been observed, not whether in fact it was consciously appreciated:

"`[I]n order for a defendant-invitor in a premises-liability case to win a summary judgment or a judgment as a...