Ex parte Industrial Distribution Services Warehouse, Inc.

• Decision Date: 21 November 1997
• Citation: 709 So.2d 16
• Parties: Ex parte INDUSTRIAL DISTRIBUTION SERVICES WAREHOUSE, INC. (In re Billy Glen JACKSON v. INDUSTRIAL DISTRIBUTION SERVICES WAREHOUSE, INC.). 1961225.
• Court: Alabama Supreme Court

Page 16

709 So.2d 16

Ex parte INDUSTRIAL DISTRIBUTION SERVICES WAREHOUSE, INC. (In re Billy Glen JACKSON v. INDUSTRIAL DISTRIBUTION SERVICES WAREHOUSE, INC.).

1961225.

Supreme Court of Alabama.

Nov. 21, 1997.

C. William Gladden and James S. Witcher III of Gladden & Sinor, P.C., Birmingham, for petitioner.

W. Lee Pittman of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for respondent.

HOUSTON, Justice.

Billy Glen Jackson sued Industrial Distribution Services Warehouse, Inc. ("Industrial Distribution"), alleging, among other things, that Industrial Distribution had negligently or wantonly allowed him to fall off an interior loading dock at its warehouse; that the loading dock was defective and/or unreasonably dangerous; that Industrial Distribution had failed to remedy the defect and/or danger that caused him to fall; and that Industrial Distribution had failed to warn him about the defect and/or danger posed by the loading dock. The trial court entered a summary judgment for Industrial Distribution. The Court of Civil Appeals affirmed the summary judgment with respect to the wantonness claim; however, it reversed with respect to the negligence claim, holding that there were genuine issues of material fact to be resolved by a jury. Jackson v. Industrial Distribution Services Warehouse, Inc., 709 So.2d 12 (Ala.Civ.App.1997). We granted Industrial Distribution's petition for certiorari review to consider whether the Court of Civil Appeals erred in reversing with respect to the negligence claim. We reverse and remand.

The pertinent facts, which are not disputed by the parties, were adequately set out in the opinion of the Court of Civil Appeals:

"[Industrial Distribution] operates an industrial warehouse in Birmingham. A heavy snow fell in the Birmingham area in mid-March 1993, causing significant damage and disruption in the area. On the morning of March 15, when [Industrial Distribution's] vice president, David Blount, arrived at the warehouse, he discovered that it had sustained substantial structural damage because of the snowstorm. A portion of the roof had collapsed, water pipes were broken, and the basement was flooded. In addition, the building had no electricity. Blount called the Birmingham Fire Department and the Birmingham/Jefferson County Emergency Management Agency. After inspecting the damage to the warehouse, both the fire department and the emergency management agency found that no stored chemicals had spilled and they approved Blount's request to have the water pumped out of the basement.

"At all pertinent times, Jackson owned and operated Southern Equipment and Chemical Company. The business sold chemicals, cleaned up spilled chemicals, and rented cleanup equipment and pumps. Blount called Jackson at home to hire him to remove the water in [Industrial Distribution's] basement. Jackson stated that Blount told him about the flooded basement, in which barrels of chemicals were floating, and said he understood that Blount wanted the water pumped out and the barrels secured immediately, regardless of the cost. Blount stated that Jackson agreed to meet him at the warehouse, and he said that he expected to meet Jackson outside the warehouse office when he arrived.

"Jackson arrived at the warehouse approximately 30 to 45 minutes after Blount's telephone call. A fire truck was parked in front of the building with its emergency lights flashing; three firemen were outside the building. Jackson said he spoke with one of the firemen, who told him that the building had no electricity. Jackson asked the fireman to go inside with him to find the man who had telephoned him. The fireman said a man was with his captain and that he would show Jackson where they were. No one associated with [Industrial Distribution] was aware that Jackson had arrived or [that he] had entered the building.

"Jackson and the fireman went through an exterior door into an office, where the open exterior door provided light. Jackson stated that the fireman then said to follow him, and went through another door into the warehouse itself. Jackson followed the fireman into the warehouse, where the only light came from holes in the building's roof. The fireman had a flashlight, but Jackson did not. Jackson said that after he and the fireman stopped walking, the fireman called for his captain. When the captain replied, Jackson said he saw the silhouettes of two people approximately 50 feet away, one of whom was holding a flashlight pointing downward. At that point, Jackson took a step in the direction of the silhouettes and fell approximately five feet. He could not see that he had been standing on the edge of an interior loading dock. Jackson admits that he was not familiar with the building, that he could not see what was in front of him, and that he assumed he was stepping onto a floor. He was seriously injured as the result of his fall. Blount maintains that he was not aware that Jackson had entered the building and that he had been injured until approximately two weeks after the accident."

709 So.2d at 13-14.

Relying primarily on Owens v. National Security of Alabama, Inc., 454 So.2d 1387 (Ala.1984), Industrial Distribution contends that this is the typical "step in the dark" case, in which there is no duty on an invitor to warn of, or protect against, unseen hazards that an invitee may encounter on the invitor's premises under conditions of darkness. According to Industrial Distribution, the Court of Civil Appeals misapplied Owens to the facts of this case. Jackson, on the other hand, contends that this is not the typical "step in the dark" case and, therefore, that Owens does not control. He argues that his theory of liability was not predicated on the existence of a duty on Industrial Distribution to warn him that the warehouse was dark inside; rather, he says, a jury question was presented as to whether Industrial Distribution failed to exercise reasonable care by not erecting and maintaining a guardrail across the loading dock and as to whether he acted reasonably under the circumstances by accompanying a fireman into the warehouse. The essence of Jackson's argument, as we understand it, is that Owens does not apply because, he argues, there is evidence that he was exercising reasonable care when he entered the warehouse with the fireman. That being the case, Jackson maintains, a jury should be allowed to determine whether he acted reasonably under the circumstances and whether Industrial Distribution acted negligently by not erecting a guardrail across the loading dock. The Court of Civil Appeals, agreeing with Jackson, stated:

"Jackson argues that the loading dock itself was defective or unreasonably dangerous and that [Industrial Distribution] had failed to remedy that condition. His expert witness testified that the loading dock should have had some type of physical guard or railing in place to safeguard against the hazard of a five-foot drop inside a building. Furthermore, Jackson did not attempt to walk through the dark warehouse alone, but entered the building with a fireman who apparently had been inside before he offered to take Jackson to the owner. The circumstances of this case do not conform to the typical 'step in the dark' case in which a landowner is absolved of any duty to warn of unseen hazards. We cannot say that the alleged hazard presented by the loading dock was open and obvious as a matter of law."

709 So.2d at 15.

Assuming that Jackson was an invitee when he entered Industrial Distribution's warehouse, a fact that is conceded by Industrial Distribution for purposes of this appeal, then Industrial Distribution was under a duty to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises were in a dangerous condition, to give sufficient warning so that, by use of ordinary care, Jackson could avoid the danger. Armstrong v. Georgia Marble Co., 575 So.2d 1051, 1053 (Ala.1991). It is well established, however, that an invitor is not liable for injuries to an invitee resulting from a danger that was known to the invitee or that the invitee should have observed through the exercise of reasonable care. If the danger is open and obvious, the invitor cannot be held liable. Williams v. Newton, 526 So.2d 18 (Ala.1988). Total darkness, possibly concealing an unseen and unknown hazard, presents an open and obvious danger to someone proceeding through unfamiliar surroundings, as a matter of law. Owens, supra.

In Owens, the injured plaintiff, ¹ an employee of an independent contractor performing maintenance work on the premises of Montgomery Food Processors, was injured when he tripped over a forklift while walking to work through a dark portion of Montgomery Food Processors' plant. The plaintiffs sued the company in charge of the plant's security, contending that it had negligently caused or allowed the lights to be turned off without warning the injured plaintiff that the lights would be off. The trial court entered a summary judgment for the security company. This Court affirmed, stating in part:

"Before reaching the issue of whether Owens assumed the risk or was contributorily negligent, we must first find some evidence that National Security breached its duty of care by failing to warn Owens that the lights were out. There is no duty to warn when the danger is fully known to the party who was injured. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 681, 189 So.2d 474, 476 (1966). Similarly there is no duty to warn of open and obvious defects which the injured party should be aware of in the exercise of reasonable care. Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980); Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978); Hand v. Butts, 289 Ala. 653, 656, 270 So.2d 789, 791 (1972). The law does not require the doing of a useless act.

"The evidence is undisputed that Owens knew that he was entering a room which was not lighted. Although the entrance area...