Edwards v. Intergraph Services Co., Inc.

• Decision Date: 18 January 2008
• Docket Number: 2060553.
• Citation: 4 So.3d 495
• Parties: Ray EDWARDS v. INTERGRAPH SERVICES COMPANY, INC.
• Court: Alabama Court of Civil Appeals

4 So.3d 495

Ray EDWARDS v. INTERGRAPH SERVICES COMPANY, INC.

2060553.

Court of Civil Appeals of Alabama.

January 18, 2008.

Certiorari Quashed September 12, 2008. Alabama Supreme Court 1070637.

Phillip A. Gibson, Huntsville, for appellant.

Benjamin R. Rice and Wesley D. Etheredge of Spurrier, Rice & Hall, L.L.P., Huntsville, for appellee.

On Application for Rehearing.

THOMAS, Judge.

The opinion of this court issued on November 16, 2007, is withdrawn, and the following opinion is substituted therefor. Ray Edwards appeals from a summary judgment in favor of Intergraph Services Company, Inc., in a premises-liability case. We affirm.

Edwards is a police officer with the City of Madison Police Department and a member of the Madison Police Department's Special Weapons and Tactics ("S.W.A.T.") team. On July 2, 2002, Edwards was on Intergraph's property—specifically, in Intergraph's gymnasium—to participate in the S.W.A.T. team's exercise and weight-training program. Edwards alleged that he was injured when his tennis shoe "got caught" in one of the triangular perforations designed into the flooring material used for the basketball court at Intergraph's gym.

Facts and Procedural History

On July 1, 2004, Edwards sued Intergraph, alleging that its negligence and wantonness had proximately caused him to suffer a permanent injury; the City of Madison, alleging that he was entitled to benefits under § 25-5-1 et seq., Ala.Code 1975, the Alabama Workers' Compensation Act;¹ and several fictitiously named defendants, alleging, among other things, a product-liability claim based upon the Alabama Extended Manufacturer's Liability Doctrine.²

Intergraph moved for a summary judgment, attaching a brief, excerpts from the deposition testimony of Edwards and Angelo Azzarello, an Intergraph employee, and a photocopy of a sample of the flooring material used on the Intergraph basketball court. Edwards filed a response in opposition to Intergraph's motion, attaching a brief, excerpts from his deposition testimony, his affidavit, excerpts from Azzarello's deposition testimony, and the affidavit of Russell J. Kendzior, an expert witness. Intergraph moved to strike Kendzior's affidavit; the trial court did not rule on that motion.

On December 4, 2006, the trial court entered a judgment in favor of Intergraph and certified that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Edwards filed a timely postjudgment motion on December 28, 2006. The trial court denied that motion on January 2, 2007. Edwards timely appealed to the Alabama Supreme Court on February 12, 2007. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Edwards testified by deposition that the Madison S.W.A.T. team trained at Intergraph's gym on alternating Tuesdays. He said that on July 2, 2002, he had finished his weight-lifting routine and was walking onto the basketball court to join a basketball game with other police officers when he turned and felt his shoe catch on a small triangular hole in the design of the flooring material. He said that his shoe, which he described as a standard tennis or athletic shoe, had a "pimply-soled bottom." He testified that he no longer had the shoes that he was wearing that day. Edwards described the incident as follows:

"I was on the basketball court and I got ready to turn. My tennis shoe got caught in one of the holes in the floor. Halfway in my turn, I felt something—I thought it was a weight that hit the back of my ankle. I fell to the ground and looked around to see what happened. I didn't see anybody, didn't see any weights. I realized my foot was dangling."

Edwards added, "I just know my shoe got caught by one of the holes. It restricted my foot from turning." Edwards said that he had played on the basketball court two or three times before without a problem. He stated that, before the injury, he had not seen anything on the floor that needed repairing. After the injury, Edwards was transported to a local hospital where he was diagnosed with a ruptured Achilles tendon.

Angelo Azzarello, an Intergraph employee who worked as an exercise specialist and the supervisor of the Intergraph gym, testified by deposition that in the early 1990s Intergraph had purchased the flooring for its first gym from a company that specialized in floor coverings for sports surfaces. Azzarello stated that he had not been involved in selecting the flooring for the gym, but he understood that one consideration in deciding to purchase the flooring was its portability; it was composed of interlocking four-foot by eight-foot sheets that could be disassembled and reassembled in a new location. The flooring was later moved to another location— the second gym, where Edwards was hurt—and then donated to a charitable organization when Intergraph built a new gym and purchased new equipment before Edwards filed the present lawsuit.

Azzarello testified that he did not know that Edwards had been injured at the Intergraph gym on July 2, 2002, until he read Edwards's complaint two years later. He said that, at the time Edwards was injured, the flooring on the basketball court had been in use for 14 years without complaint or injury of any kind. Azzarello said that he had not recognized any potential hazard in the design of the flooring material and that he had never considered that "people's shoes might get caught in the floor." Azzarello stated that Intergraph does not open its gym to the general public. He explained, however, that Intergraph provides the Madison S.W.A.T. team with access to the facility "as a courtesy."

The affidavit of Russell J. Kendzior stated that Kendzior was the founder, president, and chief executive officer of Traction Plus, Inc., a company that provides product and safety consulting services with respect to floor coverings and walkway surfaces. Kendzior stated that in formulating his opinions in this case he had reviewed the pleadings, the deposition testimony of Edwards and Azzarello, a photograph of a sample of the flooring material in Intergraph's gym, and applicable industry standards related to walkway surfaces. Kendzior opined:

"Although solid surface plastic tile is appropriate for sports related applications, it is important to use the correct type of material. Perforated plastic tile, like that used in this case, is designed for wet area applications such as a shower, swimming pool deck, or locker room, where water is present and may present a slip-and-fall hazard. Such materials are appropriate in areas where pedestrians are barefoot or in exterior applications where water may be present from rain.

"However, the appropriate type of tile or surface for dry, indoor applications, especially indoor applications where pedestrians are wearing athletic footwear, is that of a solid surface (non-perforated) type. The tile in question was produced in such a way that each tile is supported by hundreds of small, rigid plastic cleats. It is common for these small plastic cleats to bend or break when exposed to heavy forces like that generated by athletic activity like running, jumping, and/or weight-lifting. When heavy forces are applied to the perforated plastic tile, the small triangular sections on the tiles' surface can break or expand apart thus compromising the structural integrity of the tiles' surface thus exposing the pedestrian to a trip hazard. When such a compromise occurs, the hazard is often not even noticeable because the crack or break in the triangular section can be small or if the triangular section is distorted by the force placed upon it, it can return to its normal position after the force is withdrawn.

"Additionally, the small triangular sections, though relatively small, are large enough to cause the cleats/bumps found on the bottoms of running, tennis and training athletic shoes to stick in the triangular holes and expose the pedestrian to a trip hazard, especially if the pedestrian is engaged in athletic activity like turning or cutting/changing directions with his feet, like Mr. Edwards was engaged in at the time of his fall. It is my opinion that the use of the subject perforated tile in a gym setting where athletic activity frequently occurs, as it was in the case of Mr. Edwards' injury, constituted a trip hazard."

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). 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). "[S]ubstantial 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 § 12-21-12(d), Ala.Code 1975.

Discussion

"[T]he duty owed by the landowner to a person injured on his premises because of a condition on the land is dependent upon the status of the injured party in relation to the land." Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 410 (Ala.1995).

"`The three classifications of persons coming onto the land are trespasser, licensee, and invitee .... 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.'"

Ex parte Mountain Top Indoor Flea...