Price v. Macon Cnty. Greyhound Park, Inc.

• Decision Date: 13 January 2012
• Docket Number: 2090881.
• Citation: 87 So.3d 553
• Parties: Susie M. PRICE v. MACON COUNTY GREYHOUND PARK, INC.
• Court: Alabama Court of Civil Appeals

87 So.3d 553

Susie M. PRICE

v.MACON COUNTY GREYHOUND PARK, INC.

2090881.

Court of Civil Appeals of Alabama.

Aug. 19, 2011.

Certiorari Denied Jan. 13, 2012

Alabama Supreme Court 1101427.

James R. Bowles, Tallassee, for appellant.

Fred D. Gray and Stanley F. Gray of Gray, Langford, Sapp, McGowan, Gray, Gray & Nathanson, P.C., Tuskegee, for appellee.

On Application for Rehearing

BRYAN, Judge.

The opinion of January 21, 2011, is withdrawn, and the following is substituted therefor.

Susie M. Price (“Price”), the plaintiff below, appeals from a summary judgment in favor of Macon County Greyhound Park, Inc. (“the Park”), the defendant below. We affirm.

On November 29, 2007, Price sued the Park, alleging that, on April 9, 2007, while she was an invitee on the Park's premises, she had fallen as a result of some debris on the Park's asphalt driveway and had suffered injuries. Based on those allegations, she stated claims of negligence and wantonness. Answering, the Park denied liability and asserted as an affirmative defense that the debris that had caused Price to fall was open and obvious.

On July 17, 2009, the Park moved for a summary judgment. The Park asserted that it was entitled to a summary judgment with respect to Price's negligence claim because, the Park said, (1) the evidence did not establish that the Park had actual or constructive notice of the presence of the debris that had caused Price to fall before she fell and (2) the evidence established that the presence of the debris was open and obvious. The Park asserted that it was entitled to a summary judgment with respect to Price's wantonness claim because, the Park said, the evidence did not establish that the Park had acted or failed to act with knowledge of the conditions and with a consciousness that its acting or failing to act would likely or probably result in Price's injury.

Opposing the summary-judgment motion, Price asserted (1) that the evidence did establish that the Park had actual or constructive notice of the presence of the debris before she fell; (2) that, in the alternative, the Park affirmatively created the hazard that caused Price to trip and fall and, therefore, is presumed as a matter of law to have had notice of the presence of the hazard; (3) that the evidence did not establish that the presence of the debris was open and obvious; and (4) that the evidence did establish that the Park had acted or failed to act with knowledge of the conditions and with a consciousness that its acting or failing to act would likely or probably result in Price's injury. As evidentiary support for her opposition to the Park's motion, Price relied on her deposition testimony and the affidavit of J. Victor Price.

Price, who was approximately 57 years old when the accident occurred, testified as follows. From 2004 until April 9, 2007, she played bingo at the Park seven days a week. On April 9, 2007, she drove herself and two friends, Patrice Satterwhite and Patricia Rushing, to the Park. They arrived at the Park at approximately 5:30 p.m. when it was still light outside. Price stopped her automobile in the valet-parking area, and she and her friends got out of Price's automobile and walked from her automobile to the front entrance of the Park's building. Price was aware that a portion of the Park's building was being remodeled or constructed. Consequently, Price was careful to look at the ground to make sure she did not step on anything as she walked from her automobile to the front entrance. Walking from her automobile to the front entrance, she did not see anything on the ground that would cause someone to trip and fall. After entering the building, Price, Satterwhite, and Rushing played bingo for approximately three hours and then exited the front entrance of the Park's building at approximately 8:30 p.m. when it was dark outside. The area outside the front entrance of the Park's building is not well lighted. Price, Satterwhite, and Rushing walked from the front entrance to the valet-parking area, along the same route they had earlier walked when they entered the front entrance from the valet-parking area, and got into Price's automobile. Price did not have any problem walking from the front entrance to her automobile in the valet-parking area. After getting inside her automobile, Price could not find her cellular telephone, and Satterwhite went back inside the Park's building to see if she could find it. Price then found her cellular telephone, and the valet-parking attendant told her that she “could pull over a little bit to go back in and get [Satterwhite].” “So [she] pulled [her automobile] over a little bit....” Price then got out of her automobile to go inside to tell Satterwhite that she had found her cellular telephone. Price walked from her automobile toward the front entrance on a route that was “a little bit different” from the route she had earlier walked from her car to the front entrance and from the front entrance to her car; however, she tripped and fell on the asphalt driveway before she reached the sidewalk in front of the front entrance.¹ While she was on the ground, she saw some loose pieces of asphalt. The largest piece of loose asphalt was “three inches large” and the smallest was the size of “a big marble.”

Although the route she was walking when she fell was in an area that was not well lighted, Price was walking normally, instead of looking at the ground, when she fell “because [she] had already done that one time already ... the same afternoon,” “[s]o I wouldn't be expecting anything to be on the ground.” Finally, Price testified as follows:

“Q. [BY THE PARK'S COUNSEL:] All right. Do you know whether or not Macon County Greyhound Park knew that this piece of gravel that you fell on was out there prior to the time that you fell on it?

“A. I don't think so.

“Q. Okay.

“A. They usually had people out there cleaning that off.

“Q. All right. And so do you believe that if Macon County Greyhound Park knew that this gravel was out there that they would have cleaned it up?

“A. Yes, sir.”

The affidavit of J. Victor Price stated:

“My name is J. Victor Price and I am over the age of 19 years and a resident citizen of the State of Alabama. Over the past several years, I have been a frequent visitor to Macon County Greyhound Park in Shorter, Alabama. I know of my own personal knowledge that the casino at Macon County Greyhound Park was undergoing extensive construction and renovation in 2007, including the date of April 9, 2007. During this period of time, it was not unusual to see loose gravel, rocks and clumped asphalt in the area where the asphalt parking lot abuts the concrete apron near the main entrance to the casino.”

Following a hearing, the trial court entered an order granting the summary-judgment motion on February 18, 2010, without stating its rationale for that ruling. Price timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).

“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “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.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’

“Nationwide Prop. & Cas. Ins. Co. [ v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2001) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Price first argues that the trial court erred in granting the Park's summary-judgment motion with respect to her negligence claim because, she says, (1) the evidence established that the Park had created the hazard that caused her to trip and fall and, therefore, is presumed as a matter of law to have had notice of the presence of that hazard and (2) the evidence did not establish that the presence of that hazard was open and obvious.

Price cites Denmark v. Mercantile Stores Co., 844 So.2d 1189 (Ala.2002), in support of her argument that the Park is presumed as a matter of law to have had notice of the presence of the hazard that caused her to trip and fall. In Denmark, Genevieve Denmark, while a customer in a store owned by Mercantile Stores Co. (“Mercantile”), tripped over a roll of garment bags located on the floor in a display area of the store. The evidence indicated “that the roll of garment bags over which Denmark tripped was under the custody and control of Mercantile and had been placed in the display area by a Mercantile employee.” 844 So.2d at 1194 (some emphasis in original; some emphasis added). Reversing a summary judgment in favor of Mercantile, the supreme court stated:

“A store owner's duty is well-established. That duty is ‘to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers.’ Maddox v. K–Mart Corp., 565 So.2d 14, 16 (Ala.1990). Consequently, injured ‘plaintiffs must prove that the injury was proximately caused by the negligence of [the store owner] or one of its servants or employees. Actual or constructive notice of the presence of the substance [or instrumentality that caused the injury] must be proven before [the store owner] can be held responsible for the injury.’ Id. Where, however, ‘ “ ‘the defendan...