Hale v. Sequoyah Caverns and Campgrounds, Inc.

• Decision Date: 11 December 1992
• Citation: 612 So.2d 1162
• Parties: Marcella HALE and Leonard Hale v. SEQUOYAH CAVERNS AND CAMPGROUNDS, INC. 1911075.
• Court: Alabama Supreme Court

Page 1162

612 So.2d 1162

Marcella HALE and Leonard Hale v. SEQUOYAH CAVERNS AND CAMPGROUNDS, INC.

1911075.

Supreme Court of Alabama.

Dec. 11, 1992.

Rehearing Denied Feb. 5, 1993.

Steven G. Noles, Fort Payne, for appellants.

Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellee.

Jack Drake, Drake & Pierce, Tuscaloosa, and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.

STEAGALL, Justice.

Marcella Hale and her husband, Leonard Hale, sued Sequoyah Caverns and Campgrounds, Inc., alleging liability for injuries sustained by Marcella in a slip and fall accident on the premises of Sequoyah Caverns, a tourist attraction owned and operated by the defendant. ¹ The trial court entered a summary judgment in favor of Sequoyah Caverns and denied the Hales' post-judgment motion. The Hales appeal.

On September 9, 1989, the Hales were exhibiting and selling their products at a crafts show held at Sequoyah Caverns. The Hales had rented, from the defendant, an area on which to exhibit their crafts. During the show, Marcella crossed a drainage ditch to see some other exhibitions and to use a portable restroom. As she was returning to the Hales' exhibition, she slipped and fell in the drainage ditch and was injured.

The Hales contend that the trial court erred in entering the summary judgment because, they argue, there is a genuine issue of fact as to whether the allegedly dangerous nature of the ditch where Marcella fell was open and obvious. The Hales also contend that even if the allegedly dangerous condition was open and obvious, there is a genuine issue of material fact as to whether the defendant breached its duty of care owed to the Hales.

In order to enter a summary judgment, the trial court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. In reviewing a summary judgment, this Court must review the evidence in a light most favorable to the nonmovant. Thetford v. City of Clanton, 605 So.2d 835 (Ala.1992). This case was filed after June 11, 1987; accordingly, the "substantial evidence rule" applies to the ruling on the motion for summary judgment. Ala.Code 1975, § 12-21-12. In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence in support of his position. Betts v. McDonald's Corp., 567 So.2d 1252 (Ala.1990). "[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).

At the outset, we hold that Marcella Hale was a business invitee on the premises and, therefore, that Sequoyah Caverns owed her a duty to exercise reasonable care in maintaining its premises in a reasonably safe condition. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992). In order for the Hales to recover, they must prove that Marcella's fall resulted from a defect or instrumentality on the premises; that the defect was the result of the defendant's negligence; and that the defendant had or should have had notice of the defect before the time of the accident. Shaw v. City of Lipscomb, 380 So.2d 812 (Ala.1980).

In McClendon, the plaintiff slipped and fell while walking on a gravel and dirt surface, which she alleged concealed a sharp decline. This Court held that there was a genuine issue of material fact as to whether the defendant had used reasonable care and diligence to maintain the surface of the premises in a safe condition and whether the plaintiff knew or should have known of the risks associated with walking on a gravel and dirt surface that allegedly concealed the sharp decline. In Shaw, the plaintiff fell in a grassy area in a city park after she stepped on a twig or sweetgum ball that rolled. This Court held that the plaintiff did not produce sufficient evidence to create a genuine issue of fact as to whether the City of Lipscomb had breached a duty owed to the plaintiff.

The record in the instant case, viewed in a light most favorable to the Hales, reveals that, unlike the surface involved in McClendon, the surface of the ditch where Marcella fell was covered with grass and that the grass had been mowed. Leonard Hale testified in his deposition that he did not see any gravel in the ditch and that the angles of both sides of the ditch were visible. Marcella testified in her deposition that she had crossed the ditch earlier that day and that she did not know what caused her to fall. She testified that there was a bridge available that she could have used to access the portable restrooms. In his affidavit submitted in opposition to the motion for summary judgment, Leonard stated, "There are defects in the terrain where [Marcella] fell and was injured, which render [the ditch] unsafe for pedestrian traffic." Leonard testified in his deposition that the defects in the terrain would be that "the ditch would be too slippery for someone to cross"; however, Leonard further testified that other people were crossing the ditch without any trouble.

Based on the record before us, we hold that the Hales have not presented substantial evidence that Marcella's fall resulted from a defect or instrumentality on the defendant's premises that was the result of the defendant's negligence and of which the defendant had or should have had notice. See Shaw, supra.

Because of our ruling on this issue, we pretermit discussion of the remaining issues raised by the Hales.

The trial court's judgment is affirmed.

AFFIRMED.

MADDOX, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.

HORNSBY, C.J., and ALMON and SHORES, JJ., concur in the result.

HORNSBY, Chief Justice (concurring in the result).

Although I agree with the majority that the summary judgment is due to be affirmed in this case, I write to emphasize that the appropriate analysis should consider the Restatement (Second) of Torts § 343A (1965), which reads:

"(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." (Emphasis added).

Since I wrote my dissent in Grider v. Grider, 555 So.2d 104 (Ala.1989), this Court has employed this analysis in Breeden v. Hardy Corp., 562 So.2d 159 (Ala.1990), and Campbell v. Valley Garden Apartments, 600 So.2d 240 (Ala.1992).

The emerging trend among other jurisdictions is toward adoption of the "foreseeability" rule of § 343A. Kremer v. Carr's Food Center, Inc., 462 P.2d 747 (Alaska 1969) (applying § 343A); Courtney v. Allied Filter Engineering, Inc., 181 Ill.App.3d 222, 129 Ill.Dec. 902, 536 N.E.2d 952 (1989) (applying § 343A); Douglass v. Irvin, 549 N.E.2d 368 (Ind.1990) (applying the "foreseeability" rule of § 343A); Konicek v. Loomis Bros., Inc., 457 N.W.2d 614 (Iowa 1990) (applying § 343A); Murray v. Eastern Maine Medical Center, 447 A.2d 465 (Me.1982) (acknowledging adoption of § 343A); Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 485 N.W.2d 676 (1992) (applying the "foreseeability" rule of § 343A); Adee v. Evanson, 281 N.W.2d 177 (Minn.1979) (applying the "foreseeability" rule); Kronen v. Richter, 211 Mont. 208, 683 P.2d 1315 (1984) (adopting § 343A); Burns v. Veterans of Foreign Wars, 231 Neb. 844, 438 N.W.2d 485 (1989) (applying the "foreseeability" rule of § 343A); Klopp v. Wackenhut Corp., 113 N.M. 153, 824 P.2d 293 (1992) (holding that an occupier of a premises of public accommodation must safeguard invitees from dangers reasonably foreseeable); Southern Ry. v. A.D.M. Milling Co., 58 N.C.App. 667, 294 S.E.2d 750 (1982) (applying § 343A), review denied, 307 N.C. 270, 299 S.E.2d 215 (1982); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983) (applying the "foreseeability" rule). These courts have abolished the traditional common-law "open and obvious danger" defense, which completely bars recovery if the danger is known by, or is obvious to, the plaintiff.

Other courts have limited the "open and obvious" rule without specifically adopting § 343A but by holding that the entrant's knowledge of a dangerous condition or its obviousness does not, ipso facto, preclude recovery. Lewis v. United States, 663 F.2d 818 (8th Cir.1981) (applying Florida law) (holding that obviousness does not necessarily relieve the landowner of a duty of care); King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006 (1959) (obviousness of danger not relevant "where the condition is one which the invitee would not expect to find in the particular place, or his attention is distracted by something on the premises, or the condition is one,...