Kenney v. Kroger Co.
| Decision Date | 21 September 1990 |
| Citation | 569 So.2d 357 |
| Parties | Betty Louise KENNEY and William D. Kenney v. The KROGER COMPANY. 89-1016. |
| Court | Alabama Supreme Court |
Earl E. Cloud, Huntsville, for appellants.
William W. Sanderson, Jr. and Joan-Marie Pace of Lanier, Ford, Shaver & Payne, Huntsville, for appellee.
The plaintiffs, Betty Louise Kenney and William D. Kenney, appeal from a summary judgment entered in favor of the defendant, the Kroger Company. Betty Kenney sued to recover damages for injuries that she sustained as the result of a slip and fall accident at the defendant's store, and her husband sued for loss of consortium. The plaintiffs alleged that the defendant negligently maintained the floor at its supermarket and that its negligence proximately caused Mrs. Kenney to fall and be injured. We reverse and remand.
On October 19, 1988, Mrs. Kenney went shopping at the defendant's store. As she was pushing her shopping cart down an aisle, she slipped and fell onto the floor. The fall injured her back, neck, and left leg. There was evidence that when paramedics arrived to aid Mrs. Kenney, they found her lying on her back in a pool of Pine-Sol, a cleanser-disinfectant, the clothing of her back and buttocks area saturated with the cleanser. There was also evidence that there was an open bottle of Pine-Sol on the shelf with its cap missing.
In their complaint the plaintiffs alleged that the defendant negligently caused or allowed a dangerous condition to exist on the floor of the supermarket. The defendant made a motion for summary judgment, and the trial court granted it but did not specify any reason for granting the motion.
Cox v. Western Supermarkets, Inc., 557 So.2d 831, 832 (Ala.1989) (quoting Winn- Dixie Store No. 1501 v. Brown, 394 So.2d 49, 50 (Ala.Civ.App.1981)).
A summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Kizziah v. Golden Rule Insurance Co., 536 So.2d 943 (Ala.1988). Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the nonmoving party must rebut the moving party's prima facie showing by presenting evidence that creates a genuine issue of material fact. Rule 56, A.R.Civ.P.; Wimberly v. K-Mart, Inc., 522 So.2d 260, 261 (Ala.1988).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet his burden by offering "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). 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 Fla., 547 So.2d 870, 871 (Ala.1989).
In the present case, the defendant argues that it was entitled to a summary judgment because, it says, it made a prima facie showing that there was no genuine issue of material fact concerning whether it had actual or constructive notice that there was any foreign substance on the floor and the plaintiffs failed to present substantial evidence that it had such notice. Therefore, the defendant argues, it was entitled to a judgment as a matter of law.
As stated above, the plaintiff at the summary judgment stage need only present "substantial evidence" to establish (1) that the foreign substance was on the floor long enough to impute constructive notice to the defendant, or (2) that the defendant had actual notice of the substance's presence, or (3) that the defendant was delinquent in not discovering and removing it. Cox, supra.
"The only issue before us is whether the evidence offered in support of, and that offered in opposition to, the motion for summary judgment created a material issue of fact as to whether the foreign substance upon which the plaintiff slipped had been on the floor for a period of time sufficient to permit a jury to conclude that the storekeeper either knew it was there or should have known that it was there."
In this case Mrs. Kenney presented her own affidavit and the...
To continue reading
Request your trial
-
Lawson v. United States
...had footprints or other track marks in it, or that Ms. Lawson's clothes were dirty or wet following her fall. Cf. Kenney v. Kroger, 569 So. 2d 357, 359 (Ala. 1990) (finding genuine dispute of fact on defendant store's constructive notice where plaintiff was discovered lying in "pool" of Pin......
-
Randall v. K-Mart Corp.
...as to how many people were in the store at the time of the accident. Randall analogizes his case to the slip and fall in Kenney v. Kroger Co., 569 So.2d 357 (Ala.1990), in which the Supreme Court of Alabama ruled that the characteristics of the spill itself could support an inference as to ......
-
Williams v. Wal-Mart Stores, Inc.
...to raise a duty on the defendant to discover and remove it." Cash, 418 So.2d at 876. This can be a fairly low standard. In Kenney v. Kroger, 569 So.2d 357 (Ala. 1990), the Alabama Supreme Court reversed summary judgement for the defendant, finding that evidence that the aisle may not have b......
-
Carter v. Walgreens Specialty Pharmacy LLC
...A large spill can be as young as a small spill. A large spill can be as sudden as a small spill."). Plaintiff cites Kenney v. Kroger Co., 569 So. 2d 357 (Ala. 1990), (Doc. # 31 at p. 7), but that case does not require a different result. In Kenney, a plaintiff who had fallen in a puddle of ......