Hale v. Kroger Ltd. Partnership I

• Decision Date: 02 July 2009
• Docket Number: 2071237.
• Citation: 28 So.3d 772
• Parties: Shirley P. HALE v. KROGER LIMITED PARTNERSHIP I.
• Court: Alabama Court of Civil Appeals

28 So.3d 772

Shirley P. HALE v. KROGER LIMITED PARTNERSHIP I.

2071237.

Court of Civil Appeals of Alabama.

July 2, 2009.

Certiorari Denied Aug. 21, 2009

Alabama Supreme Court 1081369.

Patrick O. Miller and Timothy P. Pittman of Dick Riggs Miller LLP, Huntsville, for appellant.

John P. Burbach and Travis S. Jackson of Sirote & Permutt, P.C., Huntsville, for appellee.

On Application for Rehearing.

MOORE, Judge.

This court's opinion of March 6, 2009, is withdrawn, and the following is substituted therefor.

Shirley P. Hale appeals from a summary judgment entered by the Madison Circuit Court ("the trial court") in favor of Kroger Limited Partnership I in a slip-and-fall action. We affirm.

Procedural History

On April 6, 2007, Hale sued Kroger, seeking damages for personal injuries he alleged he had received when he slipped and fell on spilled baby food in a store owned and operated by Kroger. Hale claimed that his injuries had resulted from the negligence and/or wantonness of Kroger. Kroger filed an answer denying liability and asserting various affirmative defenses. Kroger ultimately filed a motion for a summary judgment on all counts of the complaint, which the trial court granted on July 30, 2008. Hale appealed that summary judgment to the Alabama Supreme Court on September 10, 2008; that court transferred the appeal to this court on September 30, 2008, pursuant to Ala. Code 1975, § 12-2-7.

Issues

On appeal, Hale argues only that the trial court erred in entering the summary judgment on his negligence claim. He waives any claim that the trial court erred in entering the summary judgment on his wantonness claim. In regard to his negligence claim, Hale contends that he presented substantial evidence indicating that Kroger had constructive or actual knowledge of the spill before his fall such that it had a duty to safeguard him and/or that he presented substantial evidence indicating that Kroger was delinquent in not discovering and removing the hazardous condition.

Standard of Review

In Sizemore v. Owner-Operator Independent Drivers Ass'n, 671 So.2d 674 (Ala. Civ.App.1995), this court stated:

"The law regarding summary judgment is well established. A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, [Ala.] R. Civ. P. The moving party bears the burden of negating the existence of a genuine issue of material fact. Melton v. Perry County Board of Education, 562 So.2d 1341 (Ala.Civ.App.1990). Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), [Ala.] R. Civ. P. Proof by substantial evidence is required. Ala Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). The reviewing appellate court must apply the same standard utilized by the trial court when reviewing a summary judgment. Melton, supra. Additionally, the entire record is reviewed in a light most favorable to the nonmovant. Mann v. City of Tallassee, 510 So.2d 222 (Ala.1987)."

671 So.2d at 675.

Facts

In reviewing a summary judgment, this court is limited to a consideration of only the evidence submitted to the trial court when it ruled on the motion for a summary judgment. Bean v. State Farm Fire & Cas. Co., 591 So.2d 17, 20 (Ala. 1991). In the present case, that evidence consisted solely of the affidavit of Jason Perry, the manager of the Kroger store on duty at the time of Hale's fall, and the deposition testimony of Hale.

In his affidavit, Perry stated:

"My name is Jason Perry. I am employed at the Kroger store located at 2007 Drake Avenue, Huntsville, Alabama 35801. I am over the age of 19 and of sound mind. I make this affidavit on my own personal knowledge.

"I am familiar with Mr. Shirley P. Hale, who has brought a lawsuit against Kroger for allegedly falling on spilled carrots in the automatic checkout lane of the Kroger store where I work on Drake Avenue. I was present when the incident occurred on April 9, 2005, involving Mr. Hale.

"At the time of this incident, I was the Manager on Duty at the Drake Avenue store. I am familiar with Kroger's sweep/spot mop procedure for the Drake Avenue store. Kroger has an employee make an inspection of the entire indoor premises of the store. This sweep/spot mop procedure is performed every hour at the store during Kroger's operating business hours. On the day of the incident, Kroger's sweep/spot mop procedure at the Drake Avenue store was performed every hour. Immediately prior to Hale's fall a sweep/spot mop inspection was performed at 6:00 p.m., and there was not any substances or spilled carrots on the floor in or anywhere around the area of the automatic checkout lane where Mr. Hale allegedly fell.

"Neither Kroger nor I as its management had any knowledge or notice of any spilled carrots or other spilled substance on the floor at or near the area of the automatic checkout lane before the time of Mr. Hale's fall. Mr. Hale informed me of the carrots on the floor after his fall. This is when I received knowledge of the carrots, and I immediately had an employee clean-up the area. Mr. Hale did not inform me that he was injured as he alleges in this lawsuit."

Kroger submitted Hale's entire deposition to the trial court. Those portions relevant to the disposition of the summary-judgment motion provide that, on April 9, 2005, Hale, who is 5-foot 7-inches tall and weighed 210 pounds and was 77 years old at the time, visited the Kroger store on Drake Avenue in Huntsville to purchase milk. Hale was wearing what he termed "boat shoes" that he had worn every other day for several years before the accident. The bottom of the shoes were made of rubber and appeared worn and smooth.

According to Hale, he was familiar with the layout of the Kroger store, having shopped there twice a week since 1977. After entering the store on April 9, 2005, Hale went straight down an aisle running parallel to a "square" of four automatic-checkout machines. He stopped at a sales display located at the junction of that aisle with the main cross-aisle of the store. Hale then proceeded to the rear of the store where the coolers were positioned in order to obtain a gallon of milk. Hale then returned to the sales display at the junction of the main cross-aisle and the aisle running next to the four automatic-checkout machines where he picked up a small box containing kitchen items from the sales display. Hale carried those items about 20 or 25 feet to the opening leading into the automatic-checkout area where he intended to serve himself. At that time, two Kroger personnel were in the area—a young female and an approximately 30-year-old male cashier. When he arrived in the area, Hale observed that other patrons were using all four automatic-checkout machines; however, the patron using the last automatic-checkout machine on the left just in front of the cashier appeared to be leaving the area.

As the patron completed her transaction, Hale began walking toward the machine. He was looking up toward the area to which he was walking; he was not looking at the floor. He did not notice any substance on the floor or any cone or other warning of any hazards in the area. No Kroger employee warned him of any spill. When he reached the area around the middle of the entrance to the automatic-checkout area between the first two automatic-checkout machines, Hale slipped and fell to the floor.

While Hale was on the floor, he did not immediately see anything on the floor. He overheard a woman, who he believed to be a customer, say that broken baby-food jars were on the floor. Hale testified that he then observed bright-orange and milky-white baby food laying on the floor in a shallow puddle spreading over an area approximately 18 inches by 15 inches. The puddle appeared to Hale to be fresh, and it had been smeared where Hale had fallen in it. Hale also saw the lid to one jar of baby food, which was still attached to part of the jar, in the middle of the puddle. Hale did not see any broken pieces of the jar.

According to Hale, after the fall, the young female Kroger employee came over, picked up the gallon of milk Hale had dropped during the fall, and offered to assist Hale to his feet. At that time, she informed Hale that "we've called for the mop squad." As Hale was getting up, two young male Kroger employees arrived to clean up the area and to place a cone or warning sign at the site.

Hale testified that he proceeded to checkout. He asked the cashier for paper towels to clean off his leg. He noticed that he had "orange stuff" on the bottom and side of his shoe and also on his right leg, which he assumed was strained carrots. He also discovered a milky-white substance on his right shoe and right leg up to his knee, which he identified as a different type of baby food. That discovery led Hale to conclude that he had slipped in a puddle made by two broken jars of baby food. Hale stated that his right knee had been cut during the fall and that he had bled as well.

Hale testified that he did not know how the puddle of baby food had gotten on the floor. When asked how long the puddle had been there, Hale responded as follows:

"A. [By Hale:] It had been there for several minutes.

"Q. [By counsel for Kroger:] Why do you know that?

"A. Because the girl said we sent for the mop squad, we called for the mop squad.

"Q. Well, I'm asking you this question. Immediately before you fell, okay?

"A. Yes.

"Q. Do you know how long that puddle and the broken jar lid had been there on the floor?

"A. No. I did not see the breaking of the jars.

"Q. So it is fair for me to say that you don't know if any...