Folmar v. Montgomery Fair Co., Inc.

• Decision Date: 13 February 1975
• Citation: 309 So.2d 818,293 Ala. 686
• Parties: Mary B. FOLMAR v. MONTGOMERY FAIR COMPANY, INC., a corporation, and Gayfer's Montgomery Fair Company, a corporation. SC 737.
• Court: Alabama Supreme Court

Page 818

309 So.2d 818

293 Ala. 686

Mary B. FOLMAR v. MONTGOMERY FAIR COMPANY, INC., a corporation, and Gayfer's Montgomery Fair Company, a corporation.

SC 737.

Supreme Court of Alabama.

Feb. 13, 1975.

Rehearing Denied March 6, 1975.

Thomas S. Lawson, Jr., Montgomery, for appellant.

John M. Milling, Jr., and William I. Hill, II, Montgomery, for appellees.

ON REHEARING

FAULKNER, Justice.

The plaintiff, Mrs. Mary Folmar, 'tripped' while walking between display tables in the china department of the Montgomery Fair department store. She allegedly sustained a broken hip and shoulder from the ensuing fall and sued the store for negligence, demanding judgment in the amount of $85,000. A demurrer was sustained to the complaint, hereupon the plaintiff amended her complaint. The store then moved for summary judgment. The moving papers consisted of the pleadings, an affidavit of one store employee, and the deposition of Mrs. Folmar herself. The plaintiff opposed the motion by submitting a deposition from the same store employee, an affidavit from Mrs. Folmar, and one from her daughter, who had accompanied her to the store on the day of the incident. Montgomery Fair's motion was nonetheless granted and the suit was dismissed. This appeal followed.

The only pertinent issue on appeal is whether the trial judge acted correctly in granting the defendant's motion for summary judgment. The store's principal contention throughout has been since there is no evidence as to the exact cause of the plaintiff's fall, there can be no basis for a finding of negligence of any kind. In other words, was there insufficient evidence to create a jury question as to the cause of the plaintiff's fall. Most of the doubt stems from the statements made by Mrs. Folmar while being deposed:

'Q. All right. Tell me how it happened that you fell there in the Montgomery Fair store.

'A. Well, I walked in the store and Fran stopped to register her silver. And I walked on up through the China Department, and Fran came on and joined me. And she said come let me show you the china pattern that I picked out. And I walked past these round tables, and there were some shelves up at the top of the round tables with some dishes on them. And a couple, a man and a lady came, and they stopped to look at those dishes. And it blocked my going through, and I waited a while for them to move on to let me through and they didn't. So I turned around and walked between the tables to go to Fran. And as I was walking between the tables I tripped on something and just fell at an angle.

'Q. What did you trip on, Mrs. Folmar?

'A. I don't know.

'Q. At the time you fell were you going between some small tables that were stacked up quite high with china that was on sale?

'A. Yes.

'Q. And when you say you turned to go between those tables, are you referring to some small tables that had china on sale stacked up on top there?

'A. Yes.

'Q. All right. Now, if your foot tripped on anything, would it be fair to state that it was something in the aisle between those tables?

'A. I would think so.

'Q. Now, did you see anything in the aisle between those tables?

'A. No.

'Q. Did you feel any portion of your body come into contact with any of those tables themselves as you walked between them?

'A. I might have. Something made me fall.

'Q. But you don't know what it was?

'A. No.

'Q. Yes, ma'am. Now, Mrs. Folmar, in your lawsuit that you filed against the Montgomery Fair you have charged them with negligently causing you to be injured. What do you say they did that caused you to be injured?

'A. Well, I say that I fell--I tripped on something and fell.

'Q. And that is as specific as you can be?

'A. Yes.

'Q. You don't know what it was or how it happened, but basically you are saying you went in there uninjured and came out injured?

'A. Yes, I surely did.

'Q. And for that reason you charge them with negligence?

'A. Yes.'

In consonance with this question, the affidavit submitted by Mrs. Folmar in opposition to the motion for summary judgment reads as follows:

"My name is Mary B. Folmar. I am the Plaintiff in Civil Action No. 30576. At the time I gave my deposition on September 23, 1973 (sic, 1972), I had not returned to the Montgomery Fair since the accident. Since then I have gone back and have seen the tables which appear to me to be the ones I was passing between at the time I tripped. These tables were covered with a long table cloth at that time and I did not notice the legs of the tables. I have since noticed that some of these round tables have legs which angle out from the bottom of the table to the floor so that the legs extend out beyond the edge of the table. If there was nothing else on the floor between the tables or under the long table cloths to trip me when I passed between them--and I did trip on something--it could only have been the leg of the table. The pictures which I have initialled (sic) and are attached to this show the tables and how the legs stick out into the aisle beyond the top of the tables."

Appended to this affidavit as exhibits were some photographs of round tables located in the store. Some of these pictures show tables with flared legs protruding beyond the top of the table.

On appeal from summary judgment, the appellate court looks at the same factors which the court below considered in ruling on the motion. 10 Wright & Miller, Federal Practice and Procedure, § 2716, p. 430 (1973). It is also axiomatic that all reasonable inferences from the facts be viewed most favorably to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). After reviewing all of the affidavits, depositions, pleadings and exhibits we are unable to conclude that there was no material issue remaining for trial. Mrs. Folmar's pictures show tables currently in the china department. At the time of the accident, the tables she walked among were draped with long cloths and she did not notice the legs. The store superintendent, Roland Peavy, checked the area immediately after her fall and found no foreign object or matter there. There is no dispute about this fact. Mrs. Folmar states, '. . . If there was nothing else on the floor between the tables or under the long cloths to trip me when I passed between them--and I did trip on something--it could only have been the leg of the table.' Mr. Peavy on deposition stated that no new tables or chairs have been purchased for the china department since the accident, and that the furnishings there are basically the same as they were on that day. In light of this, we feel a jury could readily infer that Mrs. Folmar tripped over one of these protruding legs. The store has offered no possible explanation in the alternative; granted, of course, it is not required to do so to succeed here. But the fact that an ultimate jury verdict in the plaintiff's favor might involve some speculation or conjecture as to what caused her fall is not dispositive of this case. There is nothing wrong with a case built around sufficient circumstantial evidence, provided the circumstances are proved and not merely presumed. Richards v. Eaves, 273 Ala. 120, 135 So.2d 384 (1961). Any judgment in such a case must necessarily involve some amount of speculation or inference by the jury. There is conjecture only where there are two or more plausible explanations of causation, and the evidence does not logically point to one any more than the other. Where the evidence does logically point in one direction more than another, then a jury can reasonably infer that things occurred in that way. This generally comports with the plaintiff's urged reading of the cases of Southern Ry. v. Dickson, 211 Ala. 481, 100 So. 665 (1924) and Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505 (1946). All are agreed that Mrs. Folmar fell in the store, that there was nothing else on the floor, that she fell between tables in the china department, some of these tables have protruding legs, and that no furniture has been added or deleted since the accident. Add to this the plaintiff's staunch contention that she tripped over 'something' and it is hard to see how a possible finding in her favor can be conjecture. The store has never contended that she did not trip as stated, but only that she did not know exactly what she tripped over. However, her later affidavit exudes more certainty of a kind. She says, '. . . it could have only been the leg of the table.'

A plethora of federal cases say that the party moving for summary judgment must clearly establish that the other party could not recover under 'any discernible circumstances.' Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir., 1973); Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440 (1972); Phoenix Savings and Loan, Inc. v. Aetna Casualty and Surety Co., 381 F.2d 245 (4th Cir., 1967). The moving papers of the defendant simply do not do that. There is certainly a possibility of a jury verdict for the plaintiff as the record stands now.

'(T)he record must negate the probability that evidence calling for a contrary result might be developed at the trial. If the pleadings, affidavits, and depositions available when the motion for summary judgment must be ruled on fail to resolve any relevant issue, summary judgment is premature.' Beech v. United States of America, 345 F.2d 872 (5th Cir., 1965).

The defendant has not precluded the possibility, As a matter of law, that the plaintiff might not prove her case. The fact that she is perhaps unlikely to prevail at trial is not a standard to be applied. Jobson v. Henne, 355 F.2d 129 (2d Cir., 1966); National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647 (5th Cir., 1962). The judge need not believe the opposing party's evidence in order to deny summary judgment. Nor must he feel that a jury would necessarily believe it. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (19...