Waters v. Paul Enterprises, Inc.

130 So. 3d 1220, 2013 WL 50195, 2013 Ala. Civ. App. LEXIS 4
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 4, 2013
Docket2110683
StatusPublished
Cited by2 cases

This text of 130 So. 3d 1220 (Waters v. Paul Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waters v. Paul Enterprises, Inc., 130 So. 3d 1220, 2013 WL 50195, 2013 Ala. Civ. App. LEXIS 4 (Ala. Ct. App. 2013).

Opinion

THOMAS, Judge.

Matthew Waters and Vicky Waters appeal from a summary judgment entered by the Mobile Circuit Court in favor of Paul Enterprises, Inc. (“Paul”), in the Waterses’ action against Paul seeking damages for injuries Matthew sustained as a result of Paul’s alleged negligent and wanton actions in maintaining its loading dock. We reverse and remand.

On September 11, 2008, Matthew was working as a truck driver for Ace Hardware. On that date he had delivered a shipment to Paul1 and had backed the delivery truck up to about four inches from Paul’s loading dock in order to unload the contents of the delivery truck. It is undisputed that it was Matthew’s first trip to Paul’s loading dock and that Matthew observed several Paul employees place two metal plates upon the ground to bridge the small gap between the loading dock and the delivery truck before he began to unload the contents of the delivery truck. It is also undisputed that Paul employees had been using the two metal plates to bridge the gap for several years because, the [1221]*1221record reveals, the loading dock lever had not been operational since 2004. After watching the Paul employees place the two metal plates on the ground to bridge the gap, Matthew inquired about the usage of the metal plates and then proceeded to unload several loads of inventory from the delivery truck to the loading dock by using a “pallet jack.” However, on Matthew’s fourth or fifth trip across the metal plates he quickly changed the direction in which he was walking and the metal plates shifted and slipped out from underneath him, causing him to fall and sustain injuries. Matthew sought medical attention as the result of his injuries.

On August 19, 2009, the Waterses filed a complaint in the trial court averring that Paul and several fictitiously named parties had been negligent and wanton in maintaining Paul’s loading dock and by utilizing metal plates in lieu of maintaining a functional loading dock. The complaint also contained a loss-of-consortium claim on behalf of Vicky. On September 23, 2009, Paul answered the complaint and asserted numerous affirmative defenses. The parties conducted discovery.

On September 28, 2011, Paul filed a motion for a summary judgment. In its motion, Paul argued that the use of the metal plates to bridge the gap between the delivery truck and the loading dock was an open and obvious danger, which, it said, Matthew should have recognized in the exercise of reasonable care. It also argued that it had no superior knowledge that the metal plates could shift and, thus, that it could not have warned Matthew of such a risk. Paul attached excerpts from Matthew’s deposition to its motion for a summary judgment. On November 15, 2011, the Waterses filed a response in opposition to the summary-judgment motion. In their response, the Waterses argued that the usage of the metal plates may have been open but that there were genuine issues of material fact regarding whether the usage of the metal plates was an obvious danger. The Waterses attached the affidavit and deposition testimony of Matthew; the deposition testimony of Ralph Paul, Paul’s corporate representative; the affidavit and deposition testimony of Dr. James Dobbs, the Waterses’ expert witness; the deposition testimony of Dr. Robert Zarzour, Matthew’s treating physician; and the complaint as exhibits in support of their response.

On January 11, 2012, the trial court entered a summary judgment in favor of Paul on all the Waterses’ claims. Specifically, the trial court’s judgment states:

“[T]he Court is of the opinion that the metal plates as placed and observed by [Matthew] constituted an open and obvious condition on [Paul]’s property which [Matthew], in the exercise of reasonable care, should have recognized. Accordingly, for the reasons set forth in [Paul]’s Motion for Summary Judgment, the motion for summary judgment is hereby granted and the Court enters judgment in favor of [Paul] on all claims.”

On February 8, 2012, the Waterses filed a motion to alter, amend, or vacate the trial court’s judgment. On February 14, 2012, the trial court denied the Waterses’ postjudgment motion. The Waterses timely appealed to our 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 [1222]*1222for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant 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.2000) ] (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).

On appeal, the Waterses argue that the trial court erred in entering a summary judgment in favor of Paul on their claims because, they contend, there were genuine issues of matérial fact regarding whether the usage of the metal plates was an open and obvious danger. Specifically, they highlight the fact that Dr. Dobbs’s affidavit indicates that Matthew could not have appreciated the danger posed by the metal plates and that Matthew’s affidavit indicated that he “only briefly” noticed the plates and that he “did not appreciate that the plates posed any danger.” In response, Paul argues that the trial court did not err in concluding as a matter of law that the usage of the metal plates was an open and obvious danger because, it says, whether a condition is open and obvious is evaluated under an objective standard and, thus, “the question is whether the danger should have been observed, not whether in fact it was consciously appreciated.” Jones Food Co. v. Shipman, 981 So.2d 355, 362 (Ala.2006). Moreover, it again argues that the evidence indicates that it lacked any superior knowledge of the danger that caused Matthew’s injuries.

In this case, Matthew was an invitee when he began using the metal plates and loading dock at Paul’s facility. See Lam-Son & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937) (finding that a delivery driver was an invitee at the time of the accident). The well established rule is that an invitor owes a duty to an invitee to keep its premises in a reasonably safe condition and to warn an invitee of any danger about which the invitor has a superior knowledge or that is not open and obvious. Id. Specifically, in Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980), our supreme court discussed the duty an invitor owes to an invitee as follows:

“In the definitive case of Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937), this Court discussed at length the duty owed by a landowner to an invitee.

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130 So. 3d 1220, 2013 WL 50195, 2013 Ala. Civ. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waters-v-paul-enterprises-inc-alacivapp-2013.