Smith v. Wells Fargo Bank, NA

• Decision Date: 04 November 2016
• Docket Number: 2150715
• Citation: 233 So.3d 991
• Parties: Valerie SMITH v. WELLS FARGO BANK, NA
• Court: Alabama Court of Civil Appeals

233 So.3d 991

Valerie SMITH

v.WELLS FARGO BANK, NA

2150715

Court of Civil Appeals of Alabama.

November 4, 2016

Rehearing Denied March 3, 2017

Certiorari Denied April 14, 2017

Alabama Supreme Court 1160506

Mark Erdberg of Jaffe & Erdberg, P.C., Birmingham, for appellant.

Thomas Coleman, Jr., of Smith, Spires, Peddy, Hamilton & Coleman, P.C., Birmingham, for appellee.

MOORE, Judge.

Valerie Smith appeals from a summary judgment entered by the Jefferson Circuit Court ("the trial court") in favor of Wells Fargo Bank, NA ("Wells Fargo"), on Smith's claims. We reverse the trial court's judgment and remand the case.

Procedural History

On February 13, 2015, Smith filed a complaint against Wells Fargo and a number of fictitiously named defendants, alleging, among other things, that, on March 12, 2013, she had visited the Wells Fargo branch in East Lake in Birmingham; that an employee of Wells Fargo had instructed Smith to sit in a chair; and that the chair had collapsed, causing Smith to be injured. Smith asserted claims of negligence; wantonness; failure to maintain the premises in a safe condition; failure to warn; negligent and wanton hiring, training, and supervision; and respondeat superior. Wells Fargo answered the complaint on March 10, 2015. On January 26, 2016, Wells Fargo filed a motion for a summary judgment, arguing that it was entitled to a summary judgment because the seating capacity of the chair constituted an open and obvious danger to Smith in relation to her size and that Wells Fargo had had no knowledge that the chair would constitute a dangerous condition on its premises. Smith filed a memorandum in opposition to Wells Fargo's summary-judgment motion on February 26, 2016. On February 29, 2016, Wells Fargo filed an evidentiary submission in support of its summary-judgment motion, attaching thereto photographs as exhibits to one of the depositions that had been included as part of its original submission. Smith filed a response to that evidentiary submission on March 2, 2016, in which she, among other things, moved to strike from the record each of those photographs as not having been properly authenticated. On March 9, 2016, the trial court entered an order granting Wells Fargo's motion for a summary judgment as to all the counts in Smith's complaint. Smith filed her notice of appeal to the Alabama Supreme Court on April 20, 2016; that court transferred the appeal to this court, pursuant to § 12–2–7(6), Ala. Code 1975.

Facts

Wells Fargo attached to its summary-judgment motion, among other things, excerpts of the transcript of Smith's deposition testimony. In that deposition, Smith testified that she was 33 years old and that, on the day of the incident, she had gone to the bank with her mother so that her mother could have a document notarized. According to Smith, when the branch manager learned that she did not have an account at Wells Fargo, he told her and her mother to come into his office and Smith and her mother complied with that request. Smith stated that she went to sit down in a chair that was positioned in the manager's office to the left, that she could not really maneuver because she is "a heavy person," and that she "would never just flop down in a chair," but she had not even had a chance to put her weight or her rear into the chair when it made a loud, cracking noise, fell apart, and collapsed. She stated that she had tried to catch herself but had been unable to and that she had hurt her knee and her back in the resulting fall. Smith confirmed that she had not put any weight onto the chair and that it had fallen apart once she had put her hand on it. She stated that she has wide hips so she could not sit back in the chair. According to Smith, when she sits she does so gently, and, she said, she was surprised when the chair collapsed. She stated that the branch manager had seemed very surprised and shocked when the chair collapsed. Smith testified that, because she has wide hips, she tries not to sit all the way back onto any chair, especially chairs with armrests, and that, when she does, she is very careful. She stated that, before she attempted to sit on the chair in question, she had had no concerns and that the chair had seemed stable enough to her.

Wells Fargo also attached to its summary-judgment motion excerpts from the transcript of Patricia Crenshaw's deposition testimony. Crenshaw, Smith's mother, testified that she had visited the branch at East Lake maybe 10 times before the incident and that she had never seen anyone have problems with a fall or chairs breaking or heard of such an incident. She testified that nobody had said anything about the chair after the fall and that the branch manager had been as surprised as she and Smith after the fall.

In its response to Smith's request for production of documents, Wells Fargo asserted that it was not aware of any instances of the subject chair or any chairs collapsing before Smith's accident. Smith attached a copy of the entirety of the transcript of her deposition testimony to her response to Wells Fargo's summary-judgment motion. Smith also testified that she had never heard of anybody else being injured at the bank as the result of a chair disassembling. Smith also submitted her affidavit, in which she stated that, before the chair collapsed, the bank's branch manager had instructed her to sit down in one of the bank's chairs. She testified that she had never had a chair collapse out from under her before.

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). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004)."

Chancellor v. White, 34 So.3d 1270, 1273 (Ala. Civ. App. 2008).

Analysis

Smith first argues on appeal that she was an invitee of Wells Fargo at the time of her injury and that the trial court therefore erred in entering a summary judgment in favor of Wells Fargo because, she says, Wells Fargo denied in its summary-judgment motion that Smith was an invitee of the bank. Smith argues that whether a plaintiff is a licensee or an invitee is a question for a jury and, thus, that the entry of a summary judgment was inappropriate. We note that, in its summary-judgment motion, Wells Fargo stated, in pertinent part: "[Wells Fargo], for purposes of its legal argument, will assume that [Smith] was an invitee on the day of her accident, but [Wells Fargo] does not concede this point." Wells Fargo proceeded to analyze Smith's claims as though Smith was an invitee of the bank. Accordingly, the trial court's granting of Wells Fargo's motion for a summary judgment did not amount to a finding by the trial court that Smith was not an invitee of the bank. Rather, Wells Fargo proceeded in its summary-judgment motion as though Smith had been an invitee of the bank, and the trial court concluded that, assuming Smith was an invitee, Wells Fargo was still entitled to a summary judgment. Because Smith has failed to show that the trial court erred on this point, we decline to address whether Smith was properly considered an invitee of Wells Fargo, and, instead, we proceed, as Wells Fargo did in its summary-judgment motion, as though Smith was an invitee of the bank.

Smith next argues that the trial court erred in entering a summary judgment in favor of Wells Fargo because, she says, whether the danger was open and obvious and whether Wells Fargo had actual or constructive knowledge that the chair was defective were questions for a jury. We agree.

In its summary-judgment motion, Wells Fargo argued, among other things, that Smith "recognized and anticipated the open and obvious danger posed by the chair's size in relation to hers" and that it cannot be liable for injuries to an invitee, such as Smith, "when the danger should have been perceived in the exercise of reasonable care."

" ‘A condition is "open and obvious" when it is "known to the [plaintiff] or should have been observed by the [plaintiff] in the exercise of reasonable care." Quillen v. Quillen, 388 So.2d 985, 989 (Ala. 1980). "The entire basis of [a store owner's] liability rests upon [its] superior knowledge of the danger which causes the [customer's] injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the [store owner] cannot be held liable." Id. (citation omitted).’ "

Horne v. Gregerson's Foods, Inc., 849 So.2d 173, 176 (Ala. Civ. App. 2002) (quoting Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala. 2002) ).

In this case, Smith testified in her deposition that she is a heavy person and that she has wide hips and tries not to sit all the way back into any chair, especially a chair with armrests. Smith also stated, however, that she had not put her weight on, or her rear into, the...