Shaneyfelt v. REC I/Blue Springs Ltd. P'ship

Decision Date07 March 2013
Docket NumberCivil Action No. CV-11-S-4366-NE
CourtU.S. District Court — Northern District of Alabama

This action arises from the wrongful death of Danny Joe Shaneyfelt, an independent roofing subcontractor who fell through a "soft spot" in the roof of a Dollar General Market.1 Plaintiff, Lori Jane Shaneyfelt, filed suit as the widow and personal representative of the estate of Mr. Shaneyfelt, and asserts state-law claims for negligence and wantonness against defendants, REC I/Blue Springs Limited Partnership, JP Properties, Inc., Susan Bell, and Dolgencorp, LLP.2

Plaintiff commenced this action in the Northern District of Alabama pursuant to 28 U.S.C. § 1332(a)(1), based upon the parties' complete diversity of citizenshipand the requisite amount in controversy. Accordingly, "state substantive law and federal procedural law" apply. Hanna v. Plumer, 380 U.S. 460, 465 (1965).

The action is before the court on three related motions. First, defendants REC I/Blue Springs Limited Partnership, JP Properties, Inc., and Susan Bell (collectively, the "Blue Springs defendants") and defendant Dolgencorp, LLP have each moved for summary judgment.3 Further, the Blue Springs defendants have moved to exclude a portion of the evidence offered by plaintiff's experts.4 Finally, plaintiff has moved to strike an affirmative defense asserted by the Blue Springs defendants.5

Upon consideration of the parties' briefs and evidentiary submissions, the motions to exclude the expert testimony and to strike the affirmative defense will be granted, and the motions for summary judgment will be denied.


Federal Rule of Civil Procedure 56 indicates that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]heplain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration supplied).

In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.
[However,] [t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable [factfinder] to return a verdict in its favor.

Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal citations omitted) (alterations and emphasis suppled).

A. Defendants' Relationship

Danny Joe Shaneyfelt fell to his death through the roof of the Dollar General Market ("Dollar General") at the Blue Spring Village Shopping Center in Huntsville, Alabama.6 The shopping center was owned by defendant REC I/Blue SpringsLimited Partnership ("REC I"), an entity in which defendant JP Properties, Inc. ("JPP") held a 20% interest as a limited partner.7 The shopping center was managed by defendant JPP.8

In turn, JPP had two employees: i.e., Andrea Plotkin, JPP's owner and president; and defendant Susan Bell, its director of operations, who was responsible for the shopping center's bills, leases, and day-to-day maintenance and upkeep.9 Ms. Bell, who resided in Alpharetta, Georgia, performed her job duties from her home office, and visited the property on a quarterly basis.10 Ms. Bell had degrees in journalism and business from the University of Georgia, and no expertise as a commercial roofer.11

At the time of the events leading up to Mr. Shaneyfelt's death, one of the commercial spaces at the Blue Spring Village Shopping Center was leased from defendant REC I by defendant Dolgencorp, Inc. ("Dolgencorp") in order to run a Dollar General retail store.12 Pursuant to the terms of the lease, the maintenance of the roof was the responsibility of the premises owner (i.e., defendant REC I), and notthe lessee (i.e., defendant Dolgencorp).13 Even so, the lease gave defendant Dolgencorp the right to make repairs to the roof if the property owner failed to complete repairs within thirty days, and allowed Dolgencorp to make any repairs when "property loss or injury to persons [was] threatened" — a right that Dolgencorp threatened to assert on four occasions.14 The lease also required Dolgencorp to have maintenance performed on its rooftop heating, ventilation, and air conditioning ("HVAC") units at least four times a year.15

To report leaks, Dollar General employees called the telephone number for a maintenance hotline that, in turn, contacted the property management company (i.e., defendant JPP).16 In addition to calling the hotline, the employees often called the property manager (i.e., defendant Susan Bell).17 When employees notified JPP of leaks, JPP selected a professional roofer to inspect and repair the roof.18 Dolgencorpdid not select the roofer, and did not pay for its work.19

B. The Roof's Nature

In order to understand the events that contributed to Mr. Shaneyfelt's fall, one must understand the nature of the roof through which he fell. The Dollar General stores was covered by a 35,000 square foot roof installed in 1980, and designed to serve as a structural component of the building.20 The roof was four inches think and comprised of four layers: i.e., 2 inches of insulation; ½ inch of wood fiberboard; ½ inch of asphalt; and 1 inch of pea gravel. The entre structure was supported by a 26 gauge steel deck.21 It is the steel deck that is at issue in this litigation.

Given that the law requires a commercial roof to be capable of supporting a variety of upward, downward, and lateral loads, including the weight of a person, it is uncommon for a commercial roof to collapse under the weight of one person.22 Indeed, before defendants hired Mr. Shaneyfelt, the Dollar General roof had regularly been traversed by store employees and HVAC and roof repairmen with heavyequipment.23

Because the materials that comprise a roof are separate from the deck that supports the roof, the fact that a roof needs replacement does not prove that the deck needs replacement.24 A roof can leak numerous times before the deck suffers damage.25 Ben Hixson, an expert witness, and Sammie Earskine, a longtime commercial roofer who worked on the Dollar General roof, estimated that its deck had been deteriorating for eight to ten years before Mr. Shaneyfelt's fall.26

C. The Roof's History

Tip Top Roofing & Sheet Metal, Inc. ("Tip Top Roofing") performed all roofing for the Blue Spring Village Shopping Center between the opening of the Dollar General store in 2004, and the bankruptcy of Tip Top Roofing in December of 2010.27 The parties have submitted the testimony of four individuals who worked on the Dollar General roof as former Tip Top Roofing employees or contractors: i.e., Heath Jones, Shawn Terry, Sammie Earskine, and Elke Coleman.28

Although the roof of the Dollar General "started leaking real bad" when the store first opened in 2004, and continued to have numerous leaks until Mr. Shaneyfelt's fall on October 12, 2011, only some of the leaks were reported and repaired.29 Within the year of the Dollar General's opening in 2004, the roof had deteriorated to the extent that water was pouring through the deck onto the floor, which essentially required the installation of a new roof in a 50 square foot area of the store.30

According to Tip Top Roofing Contractor Heath Jones, the roof of the Dollar General leaked so often throughout the rainy season that he dealt with its property manager, defendant Susan Bell, on a daily basis.31 Mr. Jones also testified that during the two and one half years he worked for Tip Top Roofing, the company was called out to the Dollar General store approximately fifty times.32 In 2008, Mr. Jones informed Ms. Bell at least once that the deck was rusted, and "three or four times" that the roof should be replaced.33

In March of 2009, Tip Top Roofing sent defendants JPP and Susan Bell an electronic mail message ("e-mail") with a quote for replacing the Dollar General roof, making a point of excluding the cost of replacing the deck.34 Ms. Bell forwarded the quote to Andrea Plotkin, the owner and president of JPP, expressing dismay at the price of the repairs, and noting that the store had "2,000 to 3,000 [square feet] of rusted metal decking," that Tip Top Roofing would not itself do the work of replacing the decking, and that it was awaiting a quote for that work from two of its vendors.35

The following month, defendant Susan Bell and Andrea Plotkin arranged for Centimark, a national roofing contractor, to inspect all the roofs at the Blue Springs Village Shopping Center.36 In its "Roof Assessment and Proposed Solution," a twenty-page report accompanied by diagrams and photographs, Centimark concluded that:

The roof [of the Dollar General] is in poor condition. A new roof installation is now recommended. This roofing work is suggested now to eliminate the risk of expensive tear off and potential deck replacement associated with continued repairs or re-roofing delays.
. . . .
Deck: [As of the date of the assessment,] the structural deck of the roof appears to be in good condition from the underside. There wereno visible deficiencies noted that caused

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