Kmart Corp. v. Peak

• Decision Date: 24 September 1999
• Citation: 757 So.2d 1138
• Parties: KMART CORPORATION v. Eugene PEAK.
• Court: Alabama Supreme Court

757 So.2d 1138

KMART CORPORATION v. Eugene PEAK.

1971282.

Supreme Court of Alabama.

September 24, 1999.

Rehearing Denied January 28, 2000.

Danny D. Henderson and Clint W. Butler of Henderson & Butler, Huntsville, for appellant.

David M. Cowan of Mann & Cowan, P.C., Birmingham; and Jason P. Knight of Knight & Griffith, Cullman, for appellee.

COOK, Justice.

Kmart Corporation appeals from a judgment entered on a jury verdict in favor of Eugene Peak in Peak's premises-liability action seeking damages for physical injuries. We affirm.

The facts of this case are undisputed. Eugene Peak, then age 64, was injured on December 13, 1995, in the defendant Kmart's store in Cullman, by an automatic door. The door had been manufactured by Gyrotech, Inc., and installed by Universal Door Systems, Inc. ("Universal"). The accident occurred as Peak was attempting to enter the store to shop for Christmas gifts. Because he had not fully recovered from a stroke he had suffered the previous summer, he was walking slowly and with the aid of a walking cane. As he approached the building, the outermost set of automatic doors opened and he walked through the doorway. He then encountered a second set of automatic doors, which also opened spontaneously.

However, as he stepped across the threshold of the second doorway, the door suddenly closed upon his left leg and knocked him to the floor; his left hip was fractured in the fall. This incident was witnessed by at least two other Kmart shoppers, namely, Mrs. Dorothy Welch Horton and her daughter. They rushed to the side of Peak, who was lying across the threshold of the doorway. When they reached him, the automatic door was still closing on him, squeezing him in the doorway. As Horton attempted to extract Peak from the doorway, she was forced to use her body as a wedge against the door, which, by that time, was closing on both her and Peak. Ultimately, a Kmart employee arrived on the scene and disconnected the door's power supply. Peak was then taken in an ambulance to a hospital, where he underwent hip surgery.

On December 20, 1995, pursuant to a service contract between Universal and Kmart, Universal sent service technician Rodney Preston to the scene to investigate the cause of the incident. Preston found that the "the holding beams," that is, automatic sensors located in the doorway, "were inoperative." This was so, he concluded, because a "wiring harness" had become disconnected, so that the power supply to the holding beams was disrupted.

Peak sued Kmart, alleging that it had negligently or wantonly "allowed [the] door to exist in a dangerous and hazardous condition and without proper and necessary safety measures to prevent foreseeable falls such as the one made the basis of this suit." He also sued Universal, and Kmart cross-claimed against, that defendant.

The case proceeded to trial. The court directed verdicts for Universal both as to Peak's complaint and as to Kmart's cross-claim. Peak's negligence and wantonness claims against Kmart were submitted to the jury, which awarded Peak $100,000 in compensatory damages and $225,000 in punitive damages. The court entered a judgment on that verdict. After the court denied its posttrial motions, Kmart appealed. Kmart's appeal relates only to the judgment on the jury verdict; Kmart makes no argument regarding its cross-claim against Universal.

Kmart challenges (1) the trial court's admission of evidence of other incidents involving the malfunction of automatic doors at the same Kmart store; (2) the sufficiency of the evidence of liability; (3) the trial court's refusal to give certain requested jury instructions; and (4) the amount and the propriety of the punitivedamages award.

I. Evidence of Other Incidents

Kmart complains of the admission of evidence involving two other incidents. Those incidents involved customers named Dixie Maze and Mary Roberts, and in each of those incidents an automatic door at this Kmart store closed upon the customer. The Maze incident, the Roberts incident, and this plaintiffs incident involved three separate doors; however, those three doors were identical in all relevant respects. The trial court admitted evidence of these other two incidents over the objections of Kmart.

The general rule is that "[i]n an action for injury, allegedly caused by the defendant's negligently keeping or maintaining a dangerous place or instrumentality, evidence of notice to the defendant, prior to the accident in suit, of the alleged dangerousness or defectiveness is material or consequential in a negligence action." Charles W. Gamble, McElroy's Alabama Evidence § 64.04(1), at 290 (6th ed.1996) (emphasis added). Consequently, in a negligence action, "the plaintiff may prove the occurrence of other accidents at such place or with such instrumentality if relevant to show notice or knowledge of such defect or danger." Id. "It is clear, however, that Alabama courts historically have concluded that [evidence of other accidents is not relevant] unless there is a substantial similarity between the facts existing at the time of the offered accidents and those prevailing at the time of the incident being litigated." Id. See also Wyatt v. Otis Elevator Co., 921 F.2d 1224 (11th Cir.1991).

A. The Maze Incident

On November 15, 1994, that is, approximately 13 months before the Peak accident, an automatic door closed on Maze, injuring her arm. After that incident, Kmart generated an internal accident report, but it did not report the incident to Universal or request an investigation as to the cause. The internal report quoted Maze as saying that she had "been down in her back and couldn't move fast enough to get clear of the door."

Kmart acknowledges the general rule regarding the admissibility of "notice" evidence, but contends that "there is absolutely no proof of any defect or any failure to inspect the door with regard to the Maze incident." Brief of Appellant, at 48. This argument is unpersuasive, however, in view of the fact that Kmart did not attempt to determine the cause of that incident. Indeed, the fact that Kmart essentially ignored the Maze incident does not negate the notice imputed to it by the incident. On the contrary, the Maze incident, at the least, should have placed Kmart on notice that it should inquire as to whether its doors were imperiling customers. The fact that it took no specific remedial action after the Maze incident does not aid Kmart's position.

Moreover, the Maze incident and the Peak incident were similar in that, while they did not involve the same door, the doors involved were identical in all material respects and in that both Maze and Peak were injured because they could not move quickly enough to avoid being hit by the door. At trial, Kmart acknowledged that its customers included persons who might be laboring under various physical infirmities, such as those Maze and Peak had. For these reasons, the evidence regarding the Maze incident was admissible.

B. The Roberts Incident

In July 1996, that is, approximately seven months after the Peak accident, an automatic door closed on Mary Roberts. Because the Roberts incident post dated Peak's accident, evidence of the Roberts incident is, of course, not admissible under the general rule regarding "notice" evidence. Specifically, "[t]his Court has held that evidence of subsequent accidents and injuries is not admissible to prove that a defendant knew of the dangerous condition at the time of the accident that is the basis for the lawsuit." Burlington N.R.R. Co. v. Whitt, 575 So.2d 1011 (Ala.1990) (emphasis added), cert. denied, 499 U.S. 948, 111 S.Ct. 1415, 113 L.Ed.2d 468 (1991); Hyde v. Wages, 454 So.2d 926 (Ala.1984). Indeed, the trial court granted Kmart's motion in limine to exclude evidence of the Roberts incident; it was ultimately admitted, however, on the ground that Kmart itself had "opened the door" to the evidence.

The evidence was sharply disputed as to whether, or to what extent, Kmart was monitoring the functioning of its automatic doors. The answer turned on whether Kmart employees were conducting daily inspections, and, if so, whether they were conducting them in compliance with Universal's recommendations. In that connection, at the time of Peak's accident the automatic doors at this Kmart store had affixed to them a decal, affixed by Universal,

that contained the following directions: "1. CHECK DAILY FOR PROPER OPERATION INCLUDING ALL HOLING MATS, SENSORS, HOLDING BEAMS, DECALS AND OPERATING SPEED. 2. DISCONTINUE DOOR OPERATION IMMEDIATELY UPON MALFUNCTION. 3. NOTIFY SERVICE AGENCY FOR REPAIR. 4. CONSULT YOUR OWNERS MANUAL FOR PROPER SAFETY PROCEDURES. IF YOU NEED A COPY CALL (OR WRITE)."

(Emphasis added.)

On December 20, 1995, when Universal's service technician Preston wrote his post-accident inspection report, he stated:

"Upon arrival, all doors were turned on, in operation, and being used despite our office having requested that the Right Side Interior door be turned off and left open until we could inspect it. Upon inspection, I found the holding beam harness connector (located in the top of the swing panel) to be disconnected with both harness and connector taped in place. I found that all operating speeds, checking speeds, and time delays were in accordance with current ANSI standards. I have conversed with my office about these findings and photos have been taken of these doors. On the Right Side Exterior door, I replaced the interior motion detector. I have checked all doors for safety operation with directional and safety decals and daily check lists. Daily check lists are not being utilized by store management. If so, both Right Side doors would have been turned off when I arrived. Also, were daily inspections being performed (as directed by the daily check list decals on each door) the inoperation of the Right Side interior doorway holding beams would have been detected and could have possibly

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