McClurg v. Birmingham Realty Co.

• Decision Date: 31 January 2020
• Docket Number: 1180635
• Citation: McClurg v. Birmingham Realty Co., 300 So.3d 1115 (Ala. 2020)
• Parties: Rose MCCLURG v. BIRMINGHAM REALTY COMPANY
• Court: Alabama Supreme Court

300 So.3d 1115

Rose MCCLURG

v.BIRMINGHAM REALTY COMPANY

1180635

Supreme Court of Alabama.

January 31, 2020

H. Arthur Edge III and Hunter C. Sartin of Arthur Edge, P.C., Birmingham, for appellant.

Franklin Williams of Williams & Associates, Hoover, for appellee.

PARKER, Chief Justice.¹

Rose McClurg sued Birmingham Realty Company("BRC") based on injuries she sustained when she fell in the parking lot of a shopping center owned by BRC.The circuit court entered a summary judgment in favor of BRC, and McClurg appeals.Because there was a genuine issue of material fact as to whether the hole in which McClurg stepped was an open and obvious danger, we reverse the summary judgement.

I.Facts and Procedural History

In October 2015, Rose McClurg, an 82-year-old woman, visited a Dollar Tree discount store in Pelham.The weather was clear.She parked in a parking spot next to a raised landscape island that was surrounded by a curb.McClurg noticed a shopping cart that had been left partly on the island.She walked around the island to retrieve the cart.As she dislodged the cart from the curb and turned it in the direction facing the store, she took a step back.Her heel went into a "pothole" in the asphalt where the asphalt met the curb of the island, and she lost her balance and fell, injuring her shoulder.McClurg later testified in deposition that she did not see the hole because she was focused on retrieving the shopping cart.

A day or two after the incident, McClurg returned to the parking lot to photograph the pothole.It measured 4 to 5 inches wide, 16 inches long, and 4.5 inches deep.The hole was unmarked and unguarded, and, at the time McClurg returned to measure it, it was obscured with garbage and paper.

McClurg sued BRC, the owner of the shopping center, in the Shelby Circuit Court, alleging negligence and wantonness based on a failure to maintain the parking lot in a safe condition and a failure to warn invitees of hidden dangers.After several months of discovery, BRC moved for a summary judgment, asserting that the pothole was an open and obvious danger.The circuit court granted BRC's summary-judgment motion.McClurg appeals.

II.Standard of Review

" ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion....’McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 958(Ala.1992).

" ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.Rule 56(c)(3), Ala. R. Civ. P.The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law.In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party.To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact -- "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."Ala. Code 1975, § 12–21–12;West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871(Ala.1989).’

" Capital Alliance Ins. Co. v. Thorough–Clean, Inc., 639 So. 2d 1349, 1350(Ala.1994)."

Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 935(Ala.2006).

III.Discussion

McClurg argues that whether the pothole was an open and obvious danger was a question of fact to be decided by a jury.BRC responds that the pothole was an open and obvious danger as a matter of law, and that, even if it was not, McClurg presented no evidence that BRC had notice of the pothole before McClurg was injured.

a. Open and Obvious Danger

"A premises owner's legal duty to a party injured by a condition of the premises depends upon the legal status of the injured party."South Alabama Brick Co. v. Carwie, 214 So. 3d 1169, 1175(Ala.2016).Where, as here, the plaintiff enters the property for the purpose of conferring a material or commercial benefit upon the landowner, the plaintiff is an invitee.SeeEx parte Mountain Top Indoor Flea Market, Inc., 699 So. 2d 158, 161(Ala.1997)."The owner of premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided."Armstrong v. Georgia Marble Co., 575 So. 2d 1051, 1053(Ala.1991).

The owner's duty to make safe or warn is obviated, however, where the danger is open and obvious -- that is, where "the invitee ... should be aware of [the danger] in the exercise of reasonable care on the invitee's part."Mountain Top, 699 So. 2d at 161.The test is an objective one: "[W]hether the danger should have been observed [by the plaintiff], not whether in fact it was consciously appreciated [by him or her]."

Jones Food Co. v. Shipman, 981 So. 2d 355, 362(Ala.2006);seeSessions v. Nonnenmann, 842 So. 2d 649(Ala.2002).Furthermore, the issue of open and obvious danger is an affirmative defense.SeeBarnwell v. CLP Corp., 235 So. 3d 238, 244(Ala.2017);Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 742(Ala.2009).Thus, the premises owner bears the burden of proving that the danger was open and obvious.Barnwell, 235 So. 3d at 244.

This Court has consistently held that " ‘[q]uestions of openness and obviousness of a defect or danger ... are generally not to be resolved on a motion for summary judgment.’ "Ex parte Kraatz, 775 So. 2d 801, 804(Ala.2000)(quotingHarding v. Pierce Hardy Real Estate, 628 So. 2d 461, 463(Ala.1993) );seeDenmark v. Mercantile Stores Co., 844 So. 2d 1189, 1195(Ala.2002)("Whether a condition is open and obvious is generally a question for the jury.");Barnwell, 235 So. 3d at 244(" ‘[T]he question whether a danger is open and obvious is generally one of fact.’ "(quotingHoward v. Andy's Store for Men, 757 So. 2d 1208, 1211(Ala. Civ. App.2000) )).Exceptions to this general rule are narrow, permitted only in circumstances where reasonable minds could not differ regarding the obviousness of the danger.SeeJones v. Newton, 454 So. 2d 1345, 1348(Ala.1984)(holding that summary judgment is appropriate only where the nonmovant could not "conceivably prevail").Examples of such exceptional cases generally fall into three categories: (1)cases in which the plaintiff has admitted carelessness or subjective knowledge of the condition, see, e.g., Browder v. Food Giant, Inc., 854 So. 2d 594, 596(Ala. Civ. App.2002)(finding open and obvious danger in grocery store parking lot where plaintiff admitted that she was not paying attention as she walked);(2)cases in which the type of condition was so obviously dangerous as to preclude liability under any circumstances, see, e.g., Ex parte Industrial Distribution Servs. Warehouse, Inc., 709 So. 2d 16, 19(Ala.1997)("Total darkness, possibly concealing an unseen and unknown hazard, presents an open and obvious danger to someone proceeding through unfamiliar surroundings, as a matter of law."); and (3)cases in which, under the particular circumstances, no reasonable jury could find that the danger was not open and obvious, see, e.g., Jones Food Co. v. Shipman, 981 So. 2d 355, 363(Ala.2006)(holding that "a ladder leaned against the facade of [a] restaurant at a 45° angle to the ground," was an open and obvious danger under the circumstances).This case does not belong in the first category because McClurg has not admitted carelessness or knowledge of the danger.

The second category -- types of conditions that are so obvious that theyper se preclude liability -- is particularly narrow.This Court has applied this per se rationale to only one condition: total darkness.SeeIndustrial Distribution, 709 So. 2d at 19(Ala.1997)("Total darkness ... presents an open and obvious danger to someone proceeding through unfamiliar surroundings, as a matter of law.").Such a case has been called a " ‘step-in-the-dark’ case."Id. at 21(Cook, J., concurring in the result).This Court has also suggested that an open body of water would constitute an open and obvious danger per se.SeeOwens v. National Sec. of Alabama, Inc., 454 So. 2d 1387, 1389–90(Ala.1984)(observing that, like darkness, water "is an open and obvious danger, and hence no duty to warn exists even where the water conceals dangers beneath the surface").

This case does not belong in the second category; holes in parking-lot asphalt are not so categorically obvious that the situation merits a per se defense.A reasonable jury could conclude that people exercising reasonable care while walking in a parking lot are normally watching for other hazards, such as cars, other pedestrians, and stray shopping carts, and may not necessarily notice a pothole in the asphalt.Because a reasonable jury could conclude, under the circumstances of a given case, that a pothole is not an open and obvious danger, potholes in parking lots are not an open and obvious danger per se.

In the third category of cases, the evidence has established that the danger was so extraordinarily obvious that plaintiffs could not conceivably prevail on their premises-liability claims.Those circumstances include: a social guest who, during a "monsoon," stepped on an upside-down doormat, lying out in the rain, which she believed she had consciously avoided stepping on earlier that day, Ex parte Neese, 819 So. 2d 584, 590(Ala.2001); a contractor who leaned a ladder at a 45° angle against a roof facade, on ground that sloped away from the building, Jones Food Co. v. Shipman, supra; a subcontractor who fell into an open stairwell in a building under construction, seeSessions v. Nonnenmann, su...