Ex parte Mountain Top Indoor Flea Market, Inc.

• Decision Date: 02 May 1997
• Citation: 699 So.2d 158
• Parties: Ex parte MOUNTAIN TOP INDOOR FLEA MARKET, INC., and Melton Terrell. (Re Robbie Ann LOWERY v. MOUNTAIN TOP INDOOR FLEA MARKET, INC., and Melton Terrell). 1951624.
• Court: Alabama Supreme Court

Page 158

699 So.2d 158

Ex parte MOUNTAIN TOP INDOOR FLEA MARKET, INC., and Melton Terrell (Re Robbie Ann LOWERY v. MOUNTAIN TOP INDOOR FLEA MARKET, INC., and Melton Terrell).

1951624.

Supreme Court of Alabama.

May 2, 1997.

James C. Inzer III of Inzer, Stivender, Haney & Johnson, P.A., Gadsden, for petitioners.

No brief filed for respondent.

MADDOX, Justice.

The plaintiff, a business invitee, was injured when she slipped and fell on loose gravel on the premises of the defendant Mountain Top Indoor Flea Market, Inc. She sued that defendant and others, alleging that they had caused her to fall and be injured. The trial court entered a summary judgment in favor of the defendants on the ground that the evidence showed, as a matter of law, that the plaintiff "had knowledge of the existence of the dangerous condition[,] if in fact the condition [was] dangerous, and ... with appreciation of such danger ... failed to exercise care for her own safety by putting herself in the way of such known danger." ¹

The plaintiff appealed. The Court of Civil Appeals reversed the summary judgment, holding that a genuine issue of material fact existed as to whether the plaintiff appreciated the known danger at the time of the incident. Lowery v. Mountain Top Indoor Flea Market, Inc., 699 So.2d 155 (Ala.Civ.App.1996). The Court of Civil Appeals based its ruling in part on Marquis v. Marquis, 480 So.2d 1213, 1215-16 (Ala.1985), where this Court held that for the plaintiff's "knowledge of the dangerous condition" to bar a recovery "the plaintiff also must have a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred," and stated " 'that the plaintiff's appreciation of the danger is, almost always, a question of fact for the determination of the jury' " (quoting Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 607, 235 So.2d 371, 377 (1970)). We granted the defendants' certiorari petition to review the holding of the Court of Civil Appeals. We conclude that the trial court properly entered the summary judgment; therefore, we reverse the judgment of the Court of Civil Appeals and remand for further proceedings or an order consistent with this opinion.

The facts are not disputed. The plaintiff, Robbie Ann Lowery, while an invitee of Mountain Top Indoor Flea Market, Inc. (the "Flea Market"), was injured when she fell in an area that had previously been excavated for drainage. She sued the Flea Market; Melton Terrell, its president and one of its owners; and Janie Terrell, who was Melton Terrell's wife and who was also an owner, alleging that the Flea Market and the Terrells had negligently or wantonly constructed and/or maintained the graveled area where she fell. The defendants filed a motion for summary judgment, in which they claimed that "the fall sustained by the plaintiff, upon which this suit is based, was due to her own negligence and/or that she voluntarily assumed the risk which caused her fall and alleged injury."

In reversing the judgment of the Court of Civil Appeals, we have applied the principle that "[i]n reviewing the disposition of a motion for summary judgment, we utilize the same standard as ... the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So.2d 872 (Ala.1979)); see Rule 56(c) Ala.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to [a] judgment as a matter of law." Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989); Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So.2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989).

This action was filed after June 11, 1987; therefore, the nonmovant must meet the burden of establishing the existence of a genuine issue of material fact by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "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).

Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986).

The summary judgment was appropriate, based on the grounds set forth in the trial court's order. This Court in Sisk v. Heil Co., 639 So.2d 1363, 1365 (Ala.1994), addressing landowner liability, stated:

"In Alabama the duty owed by a landowner to a person on his property varies greatly based upon the classification of the person on the land. 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. Autry v. Roebuck Park Baptist Church, 285 Ala. at 81, 229 So.2d [469 at 473] (1969), citing McNulty v. Hurley, 97 So.2d 185 (Fla.1957). The duty owed to an invitee 'is limited to hidden defects which are not known to the invitee and would not be discovered by him in the exercise of ordinary care.' Harvell v. Johnson, 598 So.2d 881 (Ala.1992)."

This Court has further held:

"Of course, the owner of the premises in such cases is not an insurer of the safety of his invitees and res ipsa loquitur is not applicable. Neither is there any presumption of negligence arising out of the mere fact of injury to an invitee.

"As the defendant points out, in brief, 'the law doesn't say that for every injury there is a remedy. It says for every wrong there is a remedy.' The owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee's part. Tice v. Tice, [361 So.2d 1051 (Ala.1978) ]."

Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980) (emphasis omitted).

" '[A]s a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care.' [Quillen v. Quillen,] 388 So.2d at 989 [ (Ala.1980) ].

"In ... Terry v. Life Ins. Co. of Georgia, 551 So.2d 385, 386 (Ala.1989), this Court discussed the definitions of 'known' and 'obvious' dangers:

" 'The Restatement (Second) of Torts § 343A (1965) states:

" ' "(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."

" 'Comment b defines "known" and "obvious." In order [for a factfinder] to conclude that the defect was "known," the plaintiff must be aware of the existence of the condition and must appreciate the danger it involves. "Obvious" means that the condition and risk are apparent to, and would be recognized by, a reasonable person in the position of the invitee. Therefore, the "obvious" test is an objective one.' "

Hines v. Hardy, 567 So.2d 1283, 1284 (Ala.1990) (emphasis omitted).

We realize, just as the Court of Civil Appeals stated, that a summary judgment is rarely appropriate in negligence and personal injury cases. Cabaniss v. Wilson, 501 So.2d 1177 (Ala.1986). However, see Duffy v. Bel Air Corp., 481 So.2d 872, 873 (Ala.1985) (when material facts are not in dispute and only a question of law exists, that question to be determined by the trial court); Shaw v. Lipscomb, supra (this Court affirmed a summary judgment for the defendant where plaintiff slipped and fell on a twig or sweetgum ball); Hines v. Hardy, supra (summary judgment for defendant affirmed where plaintiff stepped on an outdoor crosstie); Bennett v. Cole, 426 So.2d 829 (Ala.Civ.App.1981), affirmed, 426 So.2d 832 (Ala.1982) (defendant's judgment notwithstanding plaintiff's verdict affirmed because evidence was insufficient for a finding of negligence where a grocery store patron tripped on a "car stop" in the parking lot); and Sisk v. Heil Co., supra (this Court held that the plaintiff, as an adult of normal intelligence, should have been aware of the need for caution when walking on mud and stepping over a strip of gravel).

In McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992), this Court reversed a summary judgment in a slip-and-fall action where the same defendant involved in the present case argued the defense of assumption of the risk. This Court in McClendon noted that the plaintiff "Charlotte McClendon's assumption of the risk was the sole basis for the summary judgment." Id. at 958. However, McClendon is distinguishable from the present case on the basis that the summary judgment in the present case was entered on the ground that the danger posed by the gravel area was open and obvious and that the plaintiff's testimony, in her deposition, shows as a matter of law, that she appreciated the danger before she started across the graveled area. Further, the facts of McClendon appear to be distinguishable from those of this present case; the plaintiff in McClendon stated in her affidavit:

" 'Upon stepping out of the doorway of Sides Furniture...