Jackson v. Industrial Distribution Services Warehouse, Inc.

• Decision Date: 28 February 1997
• Citation: 709 So.2d 12
• Parties: Billy Glen JACKSON v. INDUSTRIAL DISTRIBUTION SERVICES WAREHOUSE, INC. 2950986.
• Court: Alabama Court of Civil Appeals

Page 12

709 So.2d 12

Billy Glen JACKSON v. INDUSTRIAL DISTRIBUTION SERVICES WAREHOUSE, INC.

2950986.

Court of Civil Appeals of Alabama.

Feb. 28, 1997.

Rehearing Denied April 11, 1997.

W. Lee Pittman and Nat Bryan of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellant.

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

BEATTY, Retired Justice.

The plaintiff, Billy Glen Jackson, appealed from a summary judgment entered in favor of the defendant, Industrial Distribution Services Warehouse, Inc. ("IDSW"). Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. We affirm in part, reverse in part, and remand.

IDSW 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 IDSW'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 the IDSW 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 IDSW was aware that Jackson had arrived or 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.

Jackson sued IDSW, alleging, among other things, that IDSW had negligently and wantonly allowed him to fall, that the loading dock was defective and/or unreasonably dangerous, that IDSW had failed to remedy the defect and/or danger that caused him to fall, and that IDSW had failed to warn him about the defect and/or danger. On April 5, 1996, IDSW moved for a summary judgment and submitted certain deposition excerpts in support of its position. On April 16, Jackson submitted a brief and evidentiary materials in opposition. On April 18, the day before IDSW's motion was set for oral argument, IDSW filed an affidavit executed by Blount; Jackson moved to strike it. On April 23, without ruling on Jackson's motion to strike, the trial court entered a summary judgment in favor of IDSW.

Jackson argues that he was a business invitee, rather than a licensee; that the alleged hazard was not open and obvious as a matter of law; that he was not guilty of contributory negligence or assumption of the risk as a matter of law; and that he presented substantial evidence of wantonness. He also argues that this court should not consider Blount's affidavit in its review.

Our standard for reviewing a summary judgment is well settled. The summary judgment was proper if there was no genuine issue of material fact and IDSW was entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. IDSW had the burden to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. Long v. Jefferson County, 623 So.2d 1130, 1132 (Ala.1993). If IDSW made that showing, then the burden shifted to Jackson to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. Id. In deciding whether there was a genuine issue of material fact, we view the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Id. The applicable standard of review is the "substantial evidence" rule. § 12-21-12, Ala.Code 1975. "Substantial evidence" is defined as "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).

We first address Jackson's contention that he was a business invitee, rather than a licensee. The distinction is important because the duty owed by a landowner to someone on the landowner's property generally depends on the status of the injured party in relation to the land. See Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). In Copeland ex rel. Copeland v. Pike Liberal Arts School, 553 So.2d 100 (Ala.1989), our supreme court defined a "licensee" as follows:

"If a person is found to have been on a landowner's property with the landowner's consent or as his guest, but with no business purpose, the person is a licensee and the landowner owes him the duty not to willfully, wantonly, or negligently injure him after the landowner has discovered danger to the licensee."

553 So.2d at 102. In Ingram v. Akwell Industries, Inc., 406 So.2d 897 (Ala.1981), the court defined an "invitee" as follows:

" 'An invitee is a visitor, a transient who enters property at the express or implied invitation...