Powell v. Piggly Wiggly Ala. Distrib. Co. Inc.

• Decision Date: 24 September 2010
• Docket Number: 2090267.
• Parties: Robert POWELLv.PIGGLY WIGGLY ALABAMA DISTRIBUTING COMPANY, INC.
• Court: Alabama Court of Civil Appeals

60 So.3d 921

Robert POWELL

v.PIGGLY WIGGLY ALABAMA DISTRIBUTING COMPANY, INC.

2090267.

Court of Civil Appeals of Alabama.

Sept. 24, 2010.

Derrick Collins, Birmingham, for appellant.Robert M. Girardeau and Michelle K. Pieroni of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee.MOORE, Judge.

Robert Powell appeals from a summary judgment entered by the Bessemer Division of the Jefferson Circuit Court (“the trial court”) in favor of Piggly Wiggly Alabama Distributing Company, Inc. (“Piggly Wiggly”). We affirm in part and reverse in part.

Procedural History

Powell filed a complaint in the trial court against Piggly Wiggly on November 8, 2006. Powell asserted that, on November 24, 2004, Piggly Wiggly had negligently and/or wantonly caused or allowed a motor vehicle to collide with Powell at Piggly Wiggly's warehouse in Bessemer, causing injury to Powell. Powell requested, among other things, compensatory damages, special damages, and punitive damages; he also requested a trial by jury. Piggly Wiggly filed an answer on January 4, 2007.

On September 15, 2009, Piggly Wiggly filed a motion for a summary judgment. In that motion, Piggly Wiggly argued, among other things, that Powell could not recover on any premises-liability theory raised in the complaint, that Powell could not present substantial evidence of wantonness, and that Powell's prayer for punitive damages should be stricken. Powell filed a response to Piggly Wiggly's summary-judgment motion on October 20, 2009.

On October 21, 2009, the trial court rendered the following judgment by making the following notation on the case-action-summary sheet:

“Motion for summary judgment is argued by the parties and the Court finds that there is no genuine issue as to any material facts and [Piggly Wiggly] is entitled to a judgment as a matter of law. There is no just reason for delay in making this a final order due to [these] being the only parties and this the only issue. Costs taxed as paid.”

Like the parties, we construe that judgment as granting all the relief requested by Piggly Wiggly, including striking the prayer for punitive damages. The trial court entered its judgment in the State Judicial Information System on November 23, 2009. See Rule 58(c), Ala. R. Civ. P. Powell filed his notice of appeal to this court on December 9, 2009.

Facts

According to Powell's deposition testimony, on November 24, 2004, he accompanied a friend, Derrick Jones, an employee of Piggly Wiggly, to the building where Jones worked in order to pick up Jones's paycheck. To obtain access to the Piggly Wiggly building, Jones, but not Powell, signed in at a guard station at the entrance to the parking lot of the building. Once parked, Jones proceeded inside while Powell initially waited in Jones's automobile. Powell quickly changed his mind and decided to accompany Jones inside the building. Enough time lapsed, however, that, by the time Powell entered the building, Jones was out of his sight.

Powell testified that, not knowing which direction to go, he followed a group of men, eventually ending up in the warehouse part of the building. Powell stopped at a “little yellow line,” which Powell surmised was intended to regulate visitor traffic. Powell observed pallet jacks or forklifts operating on the warehouse floor some distance from him, as well as men loading trucks. At that point, Powell realized he was in the wrong part of the building. Powell testified that he heard Jones call him from behind, he turned to his left, and, at that moment, a pallet jack “came out of nowhere.” The forks of the pallet jack, which was being operated by an employee of Piggly Wiggly, Austin Tubbs, struck and trapped Powell's right foot.¹ Powell testified that Tubbs immediately jumped off the forklift, ran over to Powell, and apologized, stating he had not seen Powell.

David Bullard, the director of human resources at Piggly Wiggly, testified in his deposition that its employees could, and did, bring visitors with them when picking up their paychecks. Bullard did not recall anyone ever taking a visitor into the warehouse area, but he admitted that Piggly Wiggly did not post any signs or take any other precautions to restrict visitors from accessing the warehouse area while on the premises. Bullard stated that Powell had been injured in the returns area of the warehouse, an area in which five or six employees, including Tubbs, routinely operated pallet jacks to unload trailers. Bullard did not recall any yellow line marking the floor in the returns area. Bullard testified that Tubbs had been properly trained on the safe operation of the pallet jack and had not violated any Piggly Wiggly policies while operating the pallet jack that struck Powell. Bullard stated that the accident occurred in an area where visitors would not be expected and that Powell's presence did not benefit Piggly Wiggly in any way. Norman Decker, a warehouse supervisor for Piggly Wiggly, who concurred with Bullard's testimony in many respects, testified that no other visitor had entered the returns area before.

Standard of Review

“A party is entitled to a summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. ‘Our standard of review in cases involving summary judgments is de novo.’ Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998). ‘In reviewing the disposition of a motion for [a] summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant ‘is entitled to a judgment as a matter of law.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c)(3), Ala. R. Civ. P. ‘[I]f the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden ... shifts to the non-movant; ... the non-movant must show “substantial evidence” in support of his position.’ Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala.1989). Evidence is ‘substantial’ if it is ‘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., 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this court must review the record in a light that is most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”Prince v. Wal–Mart Stores, Inc., 804 So.2d 1102, 1103–04 (Ala.Civ.App.2001).

Discussion

Powell argues on appeal that the trial court erred in entering a summary judgment in favor of Piggly Wiggly because, he says, Piggly Wiggly failed to make a prima facie showing that no genuine issue of material fact exists. Citing Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049 (Ala.2003), and Orr v. Turney, 535 So.2d 150 (Ala.1988), Powell asserts that general negligence principles, rather than those applicable to premises liability, on which Piggly Wiggly's summary-judgment motion was based, are applicable in this case because, he says, the negligence count asserted in his complaint was based on Tubbs's active conduct as an employee of Piggly Wiggly rather than on a condition of the land.

In Lilya, like in the present case, the parties disputed “the nature of the claim involved and, accordingly, whether the duty owed ... should be extracted from general principles of negligence or of premises liability.” 855 So.2d at 1053. The Alabama Supreme Court then outlined the applicable law regarding that issue:

“The key to this question is whether the injury was caused by some affirmative conduct of the landowner or by a condition of the premises. Baldwin v. Gartman, 604 So.2d 347, 349 (Ala.1992).

“In Baldwin, we held that an injury to a landowner's friend, Baldwin, caused by a concrete slab that fell on Baldwin's leg after it was left upright on a dolly by the landowner, Gartman, was caused by a condition of the premises and was to be evaluated under premises-liability principles:

“ ‘Baldwin argues that Gartman's duty toward Baldwin is governed not by the standards of premises liability, but rather by traditional negligence standards. This Court recognized in Orr v. Turney, 535 So.2d 150 (Ala.1988), that negligence principles are applicable when the landowner's active conduct, rather than the condition of the land, causes the injury:

“ ‘ “Historically, landowners have enjoyed isolation from traditional negligence standards relative to their ownership or possession of land. Instead, graduated classes, each to whom a separate duty was owed, based upon their relationship to the landowner, became determinative of the landowner's liability....

“ ‘ “....

“ ‘ “This special classification privilege is not generally regarded as applicable, however, when it is the affirmative conduct of the landowner, rather than the condition of his premises, that causes the injury. In this context, the justifications for determining liability based upon the classification of the injured party ... do not attach. Where the injury is caused by some distinct act of the landowner, rather than by the mere condition of the premises, a different standard for determining liability may arise.

“ ‘ “....

“ ‘ “... We reaffirm today the rule set out in W.S. Fowler Rental Equip. Co. v. Skipper, [276 Ala. 593, 165 So.2d 375 (1963) ]. A landowner, if he undertakes any affirmative conduct creating a danger to an unwitting licensee, independent and distinct from the condition of the premises, must give reasonable notice or warning of the danger or exercise reasonable or ordinary care to safeguard against the danger.”

“ ‘535 So.2d at 151–54. In Orr the landowner injured a licensee when, while running with a pan of burning grease, she spilled some on the licensee. That conduct had...