McClendon v. Mountain Top Indoor Flea Market, Inc.

• Court: Supreme Court of Alabama
• Writing for the Court: HORNSBY; INGRAM; INGRAM; HOUSTON; STEAGALL
• Citation: 601 So.2d 957
• Decision Date: 24 July 1992
• Parties: Charlotte R. McCLENDON v. MOUNTAIN TOP INDOOR FLEA MARKET, INC., et al. 1910206.

Page 957

601 So.2d 957 Charlotte R. McCLENDON
v.
MOUNTAIN TOP INDOOR FLEA MARKET, INC., et al. 1910206. Supreme Court of Alabama. July 24, 1992.

Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.

James C. Inzer, Jr. of Inzer, Stivender, Haney & Johnson, P.A., Gadsden, for appellees.

HORNSBY, Chief Justice.

The plaintiff, Charlotte R. McClendon, appeals from a summary judgment entered in favor of the defendants, Mountain Top Indoor Flea Market, Inc. ("Mountain Top"), Melton Terrell, the president and sole stockholder of Mountain Top, and Janie Terrell, an officer of the corporation. Although McClendon also sued Sides Furniture Sales ("Sides"), a flea market vendor, a summary judgment was separately entered in its favor, and McClendon has not appealed that summary judgment with respect to Sides. McClendon and her husband, James, sued after Charlotte McClendon was injured in a slip and fall accident upon Mountain Top's premises. We reverse and remand.

On March 27, 1988, Charlotte McClendon, a 56-year-old resident of Georgia, was in Etowah County with members of her family to visit Mountain Top, as she had done on numerous occasions. Mountain Top operates

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only on Sundays and accommodates approximately 1,100 vendors and 30,000 patrons. Upon leaving the furniture store operated by Sides, McClendon stepped onto the gravel and dirt surface that exists throughout the flea market. McClendon alleged that she fell after her left foot slid on loose gravel in a sloped area that was under the control of Mountain Top.

On January 17, 1990, the McClendons sued, seeking damages for injuries Charlotte had allegedly received in the fall. James McClendon sued for loss of consortium as a result of his wife's injury. ¹ The McClendons' complaint alleged that invitees were required to traverse a sloping surface made up of dirt and gravel that existed between Mountain Top's retained common areas and the structures on the leased premises. The McClendons alleged that Mountain Top had a duty to provide a means of ingress to and egress from the leased premises that did not pose an unreasonable risk of danger. They alleged further that Mountain Top failed to warn invitees of the dangerous character of the surface that they say was the proximate cause of Charlotte McClendon's ankle injury.

Mountain Top moved for a summary judgment, offering in support of its motion the depositions of Charlotte McClendon, Milton Terrell, and Janie Terrell. In opposition to Mountain Top's motion, the McClendons submitted an affidavit of Charlotte McClendon and the deposition of David McDonough, a fire fighter with the City of Attalla Fire Department who had occasionally worked at Mountain Top as a medic by virtue of his position with the fire department. The trial court entered a summary judgment in favor of Mountain Top and the Terrells on September 18, 1991, and later amended the order to specify that Charlotte McClendon's assumption of the risk was the sole basis for the summary judgment.

Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering a summary judgment. The rule requires the trial court, in order to enter a summary judgment, to determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed by this Court:

" 'The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So.2d 601 (Ala.1980); Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980).' "

Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So.2d 1094, 1096-97 (Ala.1985)).

The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that McClendon meet her burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present "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

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Co. of Fla., 547 So.2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).

Charlotte McClendon was a business invitee on Mountain Top's premises when her accident occurred, and, by virtue of that status, Mountain Top owed her a duty to "exercise reasonable care in maintaining the premises in a reasonably safe condition." Bogue v. R & M Grocery, 553 So.2d 545, 547 (Ala.1989). In Quillen v. Quillen, 388 So.2d 985 (Ala.1980), this Court stated the principles relating to the duty owed by a landowner to an invitee:

"In the definitive case of Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937), this Court discussed at length the duty owed by a landowner to an invitee. At 234 Ala. at 63, 173 So. at 391, the Court held:

" 'This Court is firmly committed to the proposition that the occupant of premises is bound to use reasonable care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his...