Shaw v. City of Lipscomb

• Decision Date: 29 February 1980
• Parties: Lois SHAW v. CITY OF LIPSCOMB. 78-247.
• Court: Alabama Supreme Court

Page 812

380 So.2d 812

Lois SHAW v. CITY OF LIPSCOMB.

78-247.

Supreme Court of Alabama.

Feb. 29, 1980.

E. L. Brobston of Brobston & Brobston, Bessemer, for appellant.

James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellee.

BLOODWORTH, Justice.

After a mistrial was declared in this slip and fall case, the court granted defendant's motion for summary judgment. Plaintiff appeals.

The issue, as stated by the defendant is, "did the plaintiff, an invitee, present a scintilla of evidence tending to show that the defendant breached any duty owed to the plaintiff when plaintiff fell at 12 o'clock noon, July 3, 1976, in defendant's municipal park in a grassy area under sweet gum trees and plaintiff claims she lost her footing (while descending a slight incline) when she stepped on something that rolled, maybe a sweet gum ball or a twig?" We hold that the answer is in the negative, that summary judgment was appropriate and affirm.

The facts are that on July 3, 1976, the plaintiff went to the city park in Lipscomb about 10:00 a. m. and purchased tickets for barbecue which was being sold by the city in connection with its Fourth of July and Bicentennial celebration. She returned around noon to pick up the barbecue and ascended a slight incline to an elevated area where the barbecue was being sold. She obtained five boxes of barbecue, and as she turned around and walked down the slight incline to return to her car, "something, under my right foot, I don't know what it was, something just rolled and I hit the ground." As a result of the fall, Mrs. Shaw suffered a compound fracture of her leg. At the time of the fall, Mrs. Shaw admitted she did not look at the ground to see where she was placing her feet and that she went up and down the incline in approximately the same place. She was wearing tennis shoes and bifocal glasses. The incline is not any higher than three feet. Later, on cross-examination, she stated, in answer to the question as to what she might have stepped on that caused her to fall, "No sir, I don't know whether a twig or sweet gum or what all, I know it rolled." Mrs. Shaw is 59 years of age, 5 feet 3 inches tall and weighed approximately 207 pounds at the time of the accident. Shortly after the accident, a witness saw some small limbs and sweet gum balls scattered over the area where Mrs. Shaw fell. The limbs were about half an inch in diameter and were broken up in small pieces. He testified the sweet gum balls were black and old looking. A Council person for the City of Lipscomb testified that the grassy area in the vicinity of Mrs. Shaw's fall had been cleaned, the grass had been cut and it had been raked up and the trees whitewashed before the barbecue. There were pine, oak, wild cherry and sweet gum trees in the area where Mrs. Shaw fell.

After a trial before a jury which lasted several days, the jury reported to the court that it was unable to agree and the court declared a mistrial. Thereafter, defendant's motion for summary judgment contending that the plaintiff had failed to present a scintilla of evidence tending to show that defendant had breached any duty owed to plaintiff was granted.

On this appeal the plaintiff's contention is that the city did not exercise ordinary care to render and keep the premises in a reasonably safe condition for such business invitees as Mrs. Shaw. She contends she parked where she was expected to park, chose the most direct route from the parking place to pick up the items, the same route other customers used, that it was necessary to traverse a slight incline in order to pick up the barbecue previously purchased, that the incline was dangerous for persons carrying items and that the city should have foreseen that those expected to traverse the incline might fall on round objects such a sweet gum balls and small fragments of sticks. Therefore, plaintiff contends the city violated its duty to keep the premises in a reasonably safe condition and that at least there was a scintilla of evidence to go to the jury on that question. Plaintiff relies principally on Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968); and Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). Moreover, Mrs. Shaw contends that in cleaning up the area a few days before, the city voluntarily assumed the task of keeping the area in a reasonably safe condition under the rule of Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844, 846 (1971), and when Mrs. Shaw fell as a result of stepping on the sweet gum balls and twigs or something else, this made a case for the jury.

In sum, the defendant says that, as a matter of law, it is not negligent because there were sweet gum balls and twigs in a park, in a grassy area, under sweet gum trees. Defendant chiefly relies on the following cases, Tice v. Tice, 361 So.2d 1051 (Ala.1978); Vance v. Wayside Inn, Inc., 335 Mass. 617, 141 N.E.2d 365 (1957); Byrnes v. National Casualty Co., 45 So.2d 408 (La.App.1950).

At the outset, we will restate some of our well-known rules regarding slip and fall cases. There is no question that the plaintiff, on the occasion in question, was a business invitee of the defendant and therefore the duty owed to her by defendant was the exercise of ordinary and reasonable care to keep the premises in a reasonably safe condition. Tice v. Tice, supra. Of course, the owner of the premises in such cases is not an insurer...