REL: 1/18/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2007-2008
_________________________
2060553
_________________________
Ray Edwards
v.
Intergraph Services Company, Inc.
Appeal from Madison Circuit Court
(CV-04-1594)
On Application for Rehearing
THOMAS, Judge.
The opinion of this court issued on November 16, 2007, is
withdrawn, and the following opinion is substituted therefor.
Ray Edwards appeals from a summary judgment in favor of
2060553
Intergraph Services Company, Inc., in a premises-liability
case.
We affirm.
Edwards is a police officer with the City of Madison
Police
Department
and
a
member
of
the
Madison
Police
Department's Special Weapons and Tactics ("S.W.A.T.") team.
On July 2, 2002, Edwards was on Intergraph's property -specifically, in Intergraph's gymnasium -- to participate in
the S.W.A.T. team's exercise and weight-training program.
Edwards alleged that he was injured when his tennis shoe "got
caught" in one of the triangular perforations designed into
the
flooring
material
used
for
the
basketball
court
at
Intergraph's gym.
Facts and Procedural History
On July 1, 2004, Edwards sued Intergraph, alleging that
its negligence and wantonness had proximately caused him to
suffer a permanent injury; the City of Madison, alleging that
he was entitled to benefits under § 25-5-1 et seq., Ala. Code
1975,
the
Alabama
Workers'
Compensation
Act; 1
and
several
fictitiously named defendants, alleging, among other things,
1
The trial court entered a judgment awarding benefits
under the Workers' Compensation Act. No issue with respect to
that judgment is presented on appeal.
2
2060553
a
product-liability
claim
based
upon
the
Alabama
Extended
Manufacturer's Liability Doctrine. 2
Intergraph
moved
for
a
summary
judgment,
attaching
a
brief, excerpts from the deposition testimony of Edwards and
Angelo Azzarello, an Intergraph employee, and a photocopy of
a
sample
of
the
basketball court.
Intergraph's
flooring
material
used
on
the
Intergraph
Edwards filed a response in opposition to
motion,
attaching
a
brief,
excerpts
from
his
deposition testimony, his affidavit, excerpts from Azzarello's
deposition
Kendzior,
testimony,
an
expert
and
the
witness.
affidavit
Intergraph
of
moved
Russell
to
J.
strike
Kendzior's affidavit; the trial court did not rule on that
motion.
On December 4, 2006, the trial court entered a judgment
in favor of Intergraph and certified that judgment as final
pursuant to Rule 54(b), Ala. R. Civ. P.
Edwards filed a
timely postjudgment motion on December 28, 2006.
court denied that motion on January 2, 2007.
The trial
Edwards timely
appealed to the Alabama Supreme Court on February 12, 2007.
2
Edwards later amended his complaint to substitute Sport
Court International, Inc., the manufacturer of the flooring
material, for one of the fictitiously named defendants.
3
2060553
The
supreme
court
transferred
the
appeal
to
this
court
pursuant to § 12-2-7(6), Ala. Code 1975.
Edwards testified by deposition that the Madison S.W.A.T.
team trained at Intergraph's gym on alternating Tuesdays.
He
said that on July 2, 2002, he had finished his weight-lifting
routine and was walking onto the basketball court to join a
basketball game with other police officers when he turned and
felt his shoe catch on a small triangular hole in the design
of the flooring material.
described
as
a
standard
"pimply-soled bottom."
He said that his shoe, which he
tennis
or
athletic
shoe,
had
a
He testified that he no longer had the
shoes that he was wearing that day.
Edwards described the
incident as follows:
"I was on the basketball court and I got ready to
turn. My tennis shoe got caught in one of the holes
in the floor. Halfway in my turn, I felt something
-- I thought it was a weight that hit the back of my
ankle. I fell to the ground and looked around to see
what happened. I didn't see anybody, didn't see any
weights. I realized my foot was dangling."
Edwards added, "I just know my shoe got caught by one of the
holes.
It restricted my foot from turning."
Edwards said
that he had played on the basketball court two or three times
4
2060553
before without a problem.
He stated that, before the injury,
he had not seen anything on the floor that needed repairing.
After the injury, Edwards was transported to a local hospital
where he was diagnosed with a ruptured Achilles tendon.
Angelo Azzarello, an Intergraph employee who worked as an
exercise specialist and the supervisor of the Intergraph gym,
testified by deposition that in the early 1990s Intergraph had
purchased the
flooring for its first gym from a company that
specialized in floor coverings for sports surfaces.
Azzarello
stated that he had not been involved in selecting the flooring
for
the
gym,
but
he
understood
that
one
consideration
in
deciding to purchase the flooring was its portability; it was
composed of interlocking four-foot by eight-foot sheets that
could be disassembled and reassembled in a new location.
flooring
gym,
The
was later moved to another location -- the second
where
Edwards
was
hurt
--
and
then
donated
to
a
charitable organization when Intergraph built a new gym and
purchased
new
equipment
before
Edwards
filed
the
present
lawsuit.
Azzarello testified that he did not know that Edwards had
been injured at the Intergraph gym on July 2, 2002, until he
5
2060553
read Edwards's complaint two years later.
He said that, at
the time Edwards was injured, the flooring on the basketball
court had been in use for 14 years without complaint or injury
of any kind.
Azzarello said that he had not recognized any
potential hazard in the design of the flooring material and
that he had never considered that "people's shoes might get
caught in the floor."
Azzarello stated that Intergraph does
not
the
open
its
gym
to
general
public.
He
explained,
however, that Intergraph provides the Madison S.W.A.T. team
with access to the facility "as a courtesy."
The affidavit of Russell J. Kendzior stated that Kendzior
was the founder, president, and chief executive officer of
Traction
Plus,
Inc.,
a
company
that
provides
product
and
safety consulting services with respect to floor coverings and
walkway surfaces.
opinions
in
this
Kendzior stated that in formulating his
case
he
had
reviewed
the
pleadings,
the
deposition testimony of Edwards and Azzarello, a photograph of
a sample of the flooring material in Intergraph's gym, and
applicable industry standards related to walkway surfaces.
Kendzior opined:
"Although
solid
surface
plastic
tile
is
appropriate for sports related applications, it is
6
2060553
important to use the correct type of material.
Perforated plastic tile, like that used in this case,
is designed for wet area applications such as a
shower, swimming pool deck, or locker room, where
water is present and may present a
slip-and-fall
hazard. Such materials are appropriate in areas where
pedestrians are barefoot or in exterior applications
where water may be present from rain.
"However, the appropriate type of tile or
surface for dry, indoor applications, especially
indoor applications where pedestrians are wearing
athletic footwear, is that of a solid surface
(non-perforated) type. The tile in question was
produced in such a way that each tile is supported by
hundreds of small, rigid plastic cleats. It is common
for these small plastic cleats to bend or break when
exposed to heavy forces like that generated by
athletic activity like running, jumping, and/or
weight-lifting. When heavy forces are applied to the
perforated
plastic
tile,
the
small
triangular
sections on the tiles' surface can break or expand
apart thus compromising the structural integrity of
the tiles' surface thus exposing the pedestrian to a
trip hazard. When such a compromise occurs, the
hazard is often not even noticeable because the crack
or break in the triangular section can be small or if
the triangular section is distorted by the force
placed upon it, it can return to its normal position
after the force is withdrawn.
"Additionally, the small triangular sections,
though relatively small, are large enough to cause
the cleats/bumps found on the bottoms of running,
tennis and training athletic shoes to stick in the
triangular holes and expose the pedestrian to a trip
hazard, especially if the pedestrian is engaged in
athletic activity like turning or cutting/changing
directions with his feet, like Mr. Edwards was
engaged in at the time of his fall. It is my opinion
that the use of the subject perforated tile in a gym
setting where athletic activity frequently occurs, as
7
2060553
it was in the case of
constituted a trip hazard."
Mr.
Edwards'
injury,
Standard of Review
Appellate review of a summary judgment is de novo.
parte Ballew, 771 So. 2d 1040 (Ala. 2000).
Ex
A motion for a
summary judgment is to be granted when no genuine issue of
material fact exists and the moving party is entitled to a
judgment as a matter of law.
Rule 56(c)(3), Ala. R. Civ. P.
A party moving for a summary judgment must make a prima facie
showing "that there is no genuine issue as to any material
fact and that [it] is entitled to a judgment as a matter of
law."
Rule 56(c)(3); see Lee v. City of Gadsden, 592 So. 2d
1036, 1038 (Ala. 1992).
If the movant meets this burden, "the
burden then shifts to the nonmovant to rebut the movant's
prima facie showing by 'substantial evidence.'"
2d at 1038 (footnote omitted).
Lee, 592 So.
"[S]ubstantial 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."
West v. Founders
Life Assurance Co. of Florida, 547 So. 2d 870,
1989); see § 12-21-12(d), Ala. Code 1975.
8
871
(Ala.
2060553
Discussion
"[T]he duty owed by the landowner to a person injured on
his premises because of a condition on the land is dependent
upon the status of the injured party in relation to the land."
Christian v. Kenneth Chandler Constr. Co., 658 So. 2d 408, 410
(Ala. 1995).
"'The three classifications of persons coming onto
the land are trespasser, licensee, and invitee....
In order to be considered an invitee, the plaintiff
must have been on the premises for some purpose that
materially or commercially benefited the owner or
occupier of the premises.'"
Ex parte Mountain Top Indoor Flea Market, Inc., 699 So. 2d
158, 161 (Ala. 1997) (quoting Sisk v. Heil Co., 639 So. 2d
1363, 1365 (Ala. 1994)).
"The distinction between a visitor
who is a licensee and one who is an invitee turns largely on
the
nature
of
the
visit
which
brings
the
visitor
on
the
premises rather than the acts of the owner which precedes the
visitor's coming."
So.
2d
730,
733
Nelson v. Gatlin, 288 Ala. 151, 154, 258
(1972),
overruled
on
other
grounds
by
Standifer v. Pate, 291 Ala. 434, 436, 282 So. 2d 261, 263
(1973).
"One
who
enters
the
land
of
another,
with
the
landowner's consent, to bestow some material or commercial
benefit
upon
the
landowner
is
9
deemed
an
invitee
of
the
2060553
landowner."
673
So.
2d
Davidson v. Highlands United Methodist Church,
765,
767
(Ala.
Civ.
App.
1995).
See
also
Restatement (Second) of Torts § 332 (1965):
"(1) An invitee is either a public invitee or a
business visitor.
"(2) A public invitee is a person who is invited
to enter or remain on land as a member of the public
for a purpose for which the land is held open to the
public.
"(3) A business visitor is a person who is
invited to enter or remain on land for a purpose
directly or indirectly connected with business
dealings of the possessor of the land."
"On
the
other
hand,
a
person
who
enters
the
land
of
another with the landowner's consent or as the landowner's
guest, but without a business purpose, holds the legal status
of
a
licensee."
Davidson
Church, 673 So. 2d at 767.
v.
Highlands
United
Methodist
See also Restatement (Second) of
Torts § 33 0 (1965) (stating that "[a] licensee is a person who
is privileged to enter or remain on land only by virtue of the
possessor's consent").
"A landowner owes an invitee a duty to keep the
premises in a reasonably safe condition and, if the
premises are unsafe, to warn the invitee of defects
and dangers that are known to the landowner but are
unknown or hidden to the invitee; a landowner owes a
licensee a duty to abstain from willfully or wantonly
injuring the licensee and to avoid negligently
10
2060553
injuring the licensee after the landowner discovers
a danger to the licensee."
Prentiss v. Evergreen Presbyterian Church, 644 So. 2d 475, 477
(Ala. 1994).
Intergraph maintains that Edwards was a licensee because,
it says, it allowed Edwards and the other members of the
Madison S.W.A.T. team to train in Intergraph's gym merely "as
a courtesy"; it insists that the police officers' being on the
premises conferred no material benefit on Intergraph. Edwards
contends that he was an invitee because, he says, Intergraph
allowed the members of the Madison S.W.A.T. team to use its
gym facilities with the expectation of a material benefit.
support
of
that
contention,
Edwards
submitted
his
affidavit, which states, in pertinent part:
"[W]hile the Defendant Intergraph has allowed City of
Madison
Police
personnel
and
other
police
departments'
personnel
to
utilize
their
gym
facilities, this has always provided a material
benefit to the Defendant Intergraph Services Company,
Inc. I have talked to Angelo Azzarello on different
occasions about why City of Madison police personnel
and other officers from other police departments use
the Defendant Intergraph's gym and facilities. Mr.
Azzarello told me that Intergraph wanted police
officers like me present at Intergraph and in its gym
to prevent or discourage trouble that may arise in
Intergraph's gym or on its premises. He said that
police officers drive their patrol cars to Intergraph
and otherwise maintain a highly visible profile while
11
In
own
2060553
working out at the gym. Mr. Azzarello even informed
me that he appreciated the City of Madison police and
me coming to the gym to work out because he had had
trouble from certain people at his gym and the
presence of the police helped prevent trouble from
occurring.
"Additionally, other Intergraph employees have
approached me while I have worked out at Intergraph's
gymnasium to thank me and tell me how much they
appreciate me and other police officers working out
at the gym. The Intergraph employees have informed
me that there had been people who had caused trouble
and that the presence of police officers from the
City of Madison and other departments made them feel
safe and also helped to prevent trouble and incidents
from occurring.
"Also, on several occasions while I was working
out at Intergraph's gym, I had Intergraph personnel
approach me to inform me of suspicious activity and
would ask me to investigate. Mr. Azzarello has even
approached me to investigate a person at the gym whom
he suspected to be intoxicated. On another occasion,
I broke up a fight between two Intergraph employees
and helped escort them off the gym premises.
"Additionally, during the years that I worked
out at Intergraph's gym, I have known Intergraph to
have only one security guard to work on duty during
a shift at the whole facility at any one time.
"It is a common occurrence for businesses in the
community to invite police officers into their
stores, restaurants and other establishments to keep
a police presence to help prevent crime or other
problems from occurring."
Intergraph
submitted
no
evidentiary
Edwards's affidavit.
12
material
to
refute
2060553
"As a general rule, the question whether a plaintiff is
a licensee or is an invitee is factual, and should therefore
be resolved by the trier of fact."
Walker v. Mitchell, 715
So. 2d 791, 793 (Ala. Civ. App. 1997).
surrounding
the
plaintiff's
entry
However, if the facts
onto
the
defendant's
premises are not in dispute, then the question becomes one of
law.
See Ingram v. Akwell Indus., Inc., 406 So. 2d 897, 899
& n.1 (Ala. 1981)(stating that "the cumulative effect of the
totality of the circumstances ... leaves no factual issue to
be resolved [as to the] legal status" of the plaintiff).
The allegations of Edwards's
Intergraph
premises
benefited
because
discourage
from
the
criminal
employees feel safe.
having
presence
activity
of
and
affidavit indicate that
police
the
to
officers
police
make
the
on
tended
its
to
Intergraph
Those allegations permit the inference
that Intergraph allowed the police officers to use its gym
facilities with the expectation of receiving such benefits.
Although we do not hold that Edwards was an invitee as a
matter of law, we conclude that Edwards presented substantial
evidence creating a genuine issue of material fact as to
whether he was an invitee.
13
2060553
Generally, an invitee must show not only that he was
injured as the result of a defective condition on the owner's
premises, but also that the owner knew or should have known of
the defective condition.
"A possessor of land is subject to liability for
physical harm caused to his invitees by a condition
on the land if, but only if, he
"a) knows or by the exercise of
reasonable
care
would
discover
the
condition, and should realize that it
involves an unreasonable risk of harm to
such invitees, and
"b) should expect that they will not
discover or realize the danger, or will
fail to protect themselves against it, and
"c) fails to exercise reasonable care
to protect them against the danger."
Restatement (Second) of Torts § 343 (1965) (emphasis added).
Alabama law follows the Restatement formulation for imposing
liability grounded in defects on the premises.
See Hale v.
Sequoyah Caverns & Campgrounds, Inc., 612 So. 2d 1162, 1164
(Ala. 1992) (stating that, in order for the plaintiff to
recover, she must show that her injury "resulted from a defect
or instrumentality on the premises; that the defect was the
result of the defendant's negligence; and that the defendant
had or should have had notice of the defect before the time of
14
2060553
the
accident"
(emphasis
added)
(citing
Shaw
v.
City
of
Lipscomb, 380 So. 2d 812 (Ala. 1980))); and Tice v. Tice, 361
So. 2d 1051, 1052 (Ala. 1978).
A premises owner owes his invitees a duty to keep the
premises in a reasonably safe condition and to warn them of
any "defects and dangers that are known to the landowner but
are
unknown
or
hidden
to
the
invitee[s]."
Prentiss
v.
Evergreen Presbyterian Church, 644 So. 2d at 477 (emphasis
added); and Howard v. Andy's Store for Men, 757 So. 2d 1208,
1210 (Ala. Civ. App. 2000).
A premises owner, however, owes
no duty to protect invitees from all conceivable dangers they
might face while on the premises because "'[t]he owner of a
premises ... is not an insurer of the safety of his invitees
... and the principle of res ipsa loquitur is not applicable.
There is no presumption of negligence which arises from the
mere fact of an injury to an invitee.'"
Ex parte Harold L.
Martin Distrib. Co., 769 So. 2d 313, 314 (Ala. 2000) (quoting
Tice v. Tice, 361 So. 2d at 1052).
See also Kmart Corp. v.
Bassett, 769 So. 2d 282, 286 n.4 (Ala. 2000) (holding that the
principle of res ipsa loquitur does not apply to premisesliability claims).
15
2060553
Instead, "'[t]he entire basis of an invitor's liability
rests upon his superior knowledge of the danger which causes
the invitee's injuries. Therefore, if that superior knowledge
is lacking, as when the danger is obvious, the invitor cannot
be held liable.'"
Jones Food Co. v. Shipman, [Ms. 1051322,
December 15, 2006] ___ So. 2d ___, ___ (Ala. 2006)(quoting
Quillen v. Quillen, 388 So. 2d 985, 989 (Ala. 1980)).
See
also Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1194
(Ala. 2002); and Lamson & Sessions Bolt Co. v. McCarty, 234
Ala. 60, 63, 173 So. 388, 391 (1937).
There are exceptions to the rule that an invitee must
present substantial evidence not only that his or her injury
was caused by a dangerous or defective condition on the
premises but also that the premises owner had or should have
had notice of the dangerous or defective condition.
Those
exceptions apply -- and the invitee need not make a prima
facie showing that the premises owner knew or should have
known of the defective condition at the time of the invitee's
injury
created
–-
when
the
(1)
the
defective
premises
owner
condition,
see,
has
affirmatively
e.g.,
Denmark
v.
Mercantile Stores, Inc., supra (customer who tripped over a
16
2060553
roll of plastic shopping bags was not required to establish
store's actual or constructive knowledge of the hazard because
the store's employees created the hazard); Wal-Mart Stores,
Inc. v. Rolin, 813 So. 2d 861, 864 (Ala. 2001)(customer who
tripped over a barbecue grill that was protruding from a box
was not required to establish store's actual or constructive
knowledge
of
employees
created
Stores,
Inc.
the
v.
dangerous
the
condition
dangerous
McClinton,
631
when
condition);
So.
2d
the
and
232,
store's
Wal-Mart
234
(Ala.
1993)(customer who jammed his foot on a gun cabinet protruding
into the store aisle was not required to establish store's
actual or constructive knowledge of the hazardous condition
when evidence indicated that hazardous condition was created
by store's employees), or (2) the premises owner has failed to
perform a reasonable inspection or maintenance of the premises
to discover and remedy the defective condition, see, e.g.,
Kmart Corp. v. Peak, 757 So. 2d 1138 (Ala. 1999)(holding that
notice of defect in store's automatic door would be imputed to
the store based on the store's failure to investigate the
cause of a previous malfunction of its automatic door and to
report the malfunction to door installer); Norris v. Wal-Mart
17
2060553
Stores, Inc., 628 So. 2d 475, 478 (Ala. 1993)(holding that
when a 10-pound box of toothpaste fell from upper shelf in
store
and
struck
customer's
head,
a
jury
question
was
presented with respect to whether reasonable maintenance of
the
premises
would
have
included
notice
of
the
lack
of
"'fencing' or 'snap-railing' on the uppermost level of the
shelf"); and Mims v. Jack's Rest., 565 So. 2d 609, 611 (Ala.
1990)(stating that a loose threshold over which a restaurant
patron tripped was a "fixture that requires ordinary and
reasonable maintenance in order to provide safe premises for
the store's customers").
Compare Dolgencorp, Inc. v. Hall,
890 So. 2d 98 (Ala. 2003) (reversing a judgment entered on a
jury verdict for customer and holding that customer had failed
to establish that store had actual or constructive knowledge
of loose cap on bottle of liquid drain cleaner on top shelf in
store when store employees had performed an inspection of its
premises to check shelves for bottles with loose caps at 8:30
a.m., only three hours before customer was injured, and the
contents of drain-cleaner bottle spilled on her).
Angelo Azzarello's deposition testimony indicates that he
was not aware of any potential hazard in the design of the
18
2060553
flooring material on Intergraph's basketball court. He stated
that he had never considered that "people's shoes might get
caught in the floor."
Azzarello also testified that the
flooring had been in use on Intergraph's basketball court
14 years without complaint or injury.
for
Finally, even Edwards
conceded that there was nothing about the appearance of the
floor or the way it was maintained that would have put one on
notice
that
it
presented
a
trip
hazard.
In
deposition
testimony, Edwards acknowledged that the holes in the design
of the flooring material were "obvious," but, he said, "any
type of defect where I could have got injured wasn't obvious."
Edwards's deposition testimony makes it clear that he
sought to impose liability upon Intergraph for a "design
defect" in the flooring material of its basketball court.
In
fact, he sued the manufacturer of the flooring material, the
party
who
was
presumably
defective design.
v.
Rolin ,
perforated
responsible
for
the
allegedly
Nevertheless, citing Wal-Mart Stores, Inc.
supra,
Edwards
flooring
on
argues
its
that,
gymnasium
by
installing
floor,
the
Intergraph
"affirmatively created" the allegedly dangerous condition on
its
basketball
court.
However,
19
neither
Rolin
nor
the
2060553
authorities upon which it relies, nor Denmark v. Mercantile
Stores, Inc., supra, supports the proposition that Intergraph
"affirmatively
created"
the
allegedly
defective
condition
about which Edwards complains.
In Rolin, the supreme court held that a customer who
tripped over a barbecue grill that was protruding from a box
was not required to establish the premises owner's actual or
constructive knowledge of the hazardous condition because
"there [was] evidence to indicate that the hazardous condition
was created by employees of the premises owner."
at 865.
813 So. 2d
The court cited Wal-Mart Stores, Inc. v. McClinton,
supra, and Joseph A. Page, The Law of Premises Liability §
9.11 at 169 (2d ed. 1988), in support of its holding.
McClinton,
there
was
also
evidence
to
indicate
that
In
the
premises owner's employees had created a hazardous condition
–- a gun cabinet that was protruding into the store aisle.
Similarly, in Denmark, there was evidence indicating that the
premises owner's employees had left a large roll of plastic
shopping bags in a place where customers were likely to trip
on
it.
The
Page
"affirmative-creation"
treatise
makes
exception
20
it
applies
clear
to
that
the
the
active
2060553
negligence of a defendant or its employees that causes a
dangerous condition to come into existence in what would
otherwise
be
a
safe
environment.
We
cannot
hold
that
Intergraph's installation of a flooring material that had
produced no complaints and that had caused no injuries for 14
years constitutes the kind of "affirmative creation" of a
defective condition that is contemplated by Denmark, Rolin,
McClinton, and the Page premises-liability treatise.
Citing Mims v. Jack's Restaurant, supra, Edwards also
contends that because the allegedly defective flooring was a
part of Intergraph's premises, a jury question was presented
with respect to whether Intergraph had actual or constructive
notice of the defect.
A close reading of Mims, however,
reveals that it does not stand for such a broad proposition.
In Mims, a restaurant customer was injured when she tripped
and fell over
a
loose threshold at the entrance to the
restaurant. The evidence indicated that "some screws were
missing" from the threshold.
565 So. 2d at 610.
The trial
court entered a summary judgment for the restaurant, and the
customer appealed.
The supreme court reversed, stating that
"in cases where the alleged defect is a part of the
premises (in this case, a loose threshold in the main
21
2060553
entrance of a restaurant), once a plaintiff has made
a prima facie showing that a defect in a part of the
premises has caused an injury, then the question
whether the defendant had actual or constructive
notice of the defect will go to the jury, regardless
of whether the plaintiff makes a prima facie showing
that the defendant had or should have had notice of
the defect at the time of the accident."
565 So. 2d at 610.
broadness
of
The supreme court narrowed the apparent
the
foregoing
statement
and
positioned
its
decision squarely within the recognized exception for failure
to
maintain
or
inspect
the
premises,
with
the
following
language:
"[A] defective threshold ... is a fixture that
requires ordinary and reasonable maintenance in order
to provide safe premises for the store's customers."
565 So. 2d at 611. Edwards did not contend that Intergraph had
failed to properly inspect or maintain the flooring on its
basketball court.
exceptions
to
Thus, neither of the previously discussed
the
rule
that
an
invitee
must
present
substantial evidence that the premises owner knew or should
have known of the dangerous or defective condition applies.
Edwards cites Howard v. Andy's Store for Men, supra, for
the proposition that the testimony of his expert witness,
Russell J. Kendzior , established that Intergraph breached its
duty to warn him of a tripping hazard in the design of the
22
2060553
flooring of its basketball court, a hazard that, Kendzior
testified, was not noticeable by the casual observer.
In Howard, this court reversed a summary judgment in favor
of a store owner because expert testimony revealed that a oneto two-inch change in elevation between the black asphalt
parking lot and the white concrete sidewalk in front of the
store was concealed because the vertical edge of the sidewalk
had been splashed by black asphalt and would not be noticed by
an
invitee,
even
one
who
approaching the store.
was
using
reasonable
care
in
Howard is one of a line of cases
dealing with whether elevation irregularities in sidewalks,
curbs, or thresholds constitute "trip hazards."
See, e.g., Ex
parte Harold L. Martin Distrib. Co., supra (configuration of
sidewalk, curb, and wheelchair ramp); Stephens v. City of
Montgomery, 575 So. 2d 1095 (Ala. 1991)(uneven sidewalk, with
one portion an inch higher than the other portion); Mann v.
Smith, 561 So. 2d 1112 (Ala. 1990)(top step leading to store
not even with door jamb); Bogue v. R & M Grocery, 553 So. 2d
545 (Ala. 1989)(sloping concrete entrance to a grocery store
located
near
gasoline
Chrysler-Plymouth,
Inc.,
pumps);
Waits
770
2d
So.
23
618
v.
Crown
(Ala.
Civ.
Dodge
App.
2060553
1999)(doorway threshold three inches higher than floor); and
Woodward v. Health Care Auth. of Huntsville, 727 So. 2d 814
(Ala. Civ. App. 1998)(unmarked wheelchair ramp).
We
hold
that
the
elevation-irregularity
cases
are
distinguishable on the basis that the expert testimony in
those cases established that the defects on the premises –though not readily perceivable by the casual observer, even
one using reasonable care –- could have been discovered by the
premises owner upon reasonable inspection. See, e.g., Howard,
757 So. 2d at 1210 (stating that the plaintiff's expert
testified that "anyone who was looking for it would notice the
change
in
sidewalk").
elevation
between
the
parking
lot
and
the
Thus, the elevation-irregularity cases are a
subset of the failure-to-inspect cases previously discussed.
In
the
present
case,
Edwards
presented
indicating that Intergraph, by inspecting
basketball
court,
could
have
allegedly caused his injury.
evidence
the flooring on its
discovered
the
defect
that
"'[T]he law doesn't say that for
every injury there is a remedy.
is a remedy.'"
no
It says for every wrong there
Shaw v. City of Lipscomb, 380 So. 2d at 814.
Based on the record before us, we hold that Edwards failed to
24
2060553
present
substantial
evidence
indicating
that
his
injury
resulted from a defect or instrumentality on Intergraph's
premises that was the result of Intergraph's negligence and of
which Intergraph had or should have had notice.
See Bacon v.
Dixie Bronze Co., 475 So. 2d 1177 (Ala. 1985) (holding that
when plaintiff-independent contractor presented no evidence
indicating that defendant-owner of building knew or should
have known of the existence of a defective weld in a channel
beam,
owner
was
not
liable
for
injury
to
independent
contractor's employees who were injured when beam collapsed).
The judgment of the Madison Circuit Court is affirmed.
APPLICATION OVERRULED;
OPINION OF NOVEMBER 16,
2007,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
Thompson, P.J., and Pittman, J., concur.
Bryan and Moore, JJ., concur in the result, without
writings.
25
