Michael Waddell v. Colbert County-Northwest Alabama Healthcare Authority, d/b/a Helen Keller Hospital

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REL: 05/25/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2100954 M i c h a e l Waddell v. C o l b e r t County-Northwest Alabama Healthcare A u t h o r i t y , d/b/a Helen K e l l e r H o s p i t a l Appeal from C o l b e r t C i r c u i t (CV-07-900114) Court PITTMAN, J u d g e . Michael of Colbert Waddell appeals County-Northwest f r o m a summary j u d g m e n t Alabama Healthcare i n favor Authority, 2100954 doing business as H e l e n K e l l e r H o s p i t a l a premises-liabilityaction. Facts We ("the h o s p i t a l " ) , i n affirm. and P r o c e d u r a l History On D e c e m b e r 7, 2 0 0 7 , W a d d e l l s u e d t h e h o s p i t a l , claims of negligence December 8, 2 0 0 5 , elevator in plummeted him. In April 2 August The was wife a that, court a on when t h e malfunctioned t o t h e basement, asserted 2010, t h e t r i a l alleging to the h o s p i t a l passenger floor also and and injuring loss-of-consortium s e t the case f o r t r i a l 23, 2 0 1 0 . hospital 2010, attaching, Jerry Ford operations 2008, he the fourth Waddell's 1 claim. on he was a v i s i t o r which from and wantonness asserting moved for a summary among other materials, and C h r i s Garrison. f o r the h o s p i t a l , the h o s p i t a l Ford, stated judgment on J u l y the a f f i d a v i t s the d i r e c t o r that, from 2003 h a d h a d an e l e v a t o r - m a i n t e n a n c e with ThyssenKrupp E l e v a t o r Corporation 23, and t h a t C h r i s of of plant through contract Garrison W a d d e l l a l s o s u e d f i c t i t i o u s l y named d e f e n d a n t s who, he a l l e g e d , were t h e e n t i t i e s responsible f o r the purchase, i n s t a l l a t i o n , m a i n t e n a n c e , a n d r e p a i r o f t h e e l e v a t o r , b u t he n e v e r amended t h e c o m p l a i n t t o s u b s t i t u t e a c t u a l d e f e n d a n t s f o r t h e f i c t i t i o u s l y named d e f e n d a n t s . 1 The w i f e ' s c l a i m Waddell divorced. 2 was later 2 dismissed after she and 2100954 had been the maintenance. plunged to only had usually stated that, after with Garrison who Waddell the basement determined armature mechanic that on the cause the e l e v a t o r ' s previous problem with of the as performed the elevator a passenger, malfunction FE r e l a y . was Garrison apart, that, repaired determined after on that that i t , and i t was functioning receiving a report Garrison problem had that again was tested that to problem. Garrison said that, 8, the of 2005, date the problems The motion Waddell Ford with trial the the 20, court for a hearing set during the court which properly. A was relay, he week that had had later, had and operating, located had fixed a that 2005, t o December i n v o l v i n g Waddell, he had and had f o u n d been no reports no of period. 2010. to continue 3 relay not elevator, hospital's 10, Garrison the i t , after there on A u g u s t moved t h e t r i a l taken on t h e e l e v a t o r confirmed that the e l e v a t o r had f r o m J u l y 28, incident performed regular maintenance problems. the broken said that the e l e v a t o r inspected unrelated he had o c c u r r e d on J u l y the r e l a y had occasion, had he a 2 0 0 5 , when t h e r e l a y h a d " s t a y e d up i n t e r m i t t e n t l y . " explained the summary-judgment On August 4, the hearing 2010, and to 2100954 order the parties to mediation. arguing that Waddell's motion, ruling on a 56(f), A l a . R. C i v . P.; t h a t The a party summary-judgment m o t i o n Waddell conduct d i s c o v e r y and had f i l e d hospital seeking must comply no R u l e court's ... a f t e r litigating juncture resources." affidavit, thinking case court rule t h i s matter would Waddell be that granted Waddell's court case, and a of by filing the h o s p i t a l n o t be i n 2007, and time, a mediation money Rule had m i s l e d necessary f o r a continuance still 56(f) him into because the damages and n o t l i a b i l i t y . " motion and The trial but d i d not for mediation. rescheduled f o r and o b t a i n e d Waddell to scheduling the hearing on t h e s u m m a r y - judgment m o t i o n f o rSeptember 22, 2 0 1 0 . S u b s e q u e n t l y , moved years three years, [ t h e waste " d i s c o v e r y would on t h e r e q u e s t trial a this responded asserting that was a d i s p u t e o v e r The f o r almost h a d ] no d e s i r e t o s e t t l e this Rule Moreover, the h o s p i t a l a l l e g e d , the " p r e - s u i t n e g o t i a t i o n s ... [ h a d ] f a i l e d at with a 5 6 ( f ) m o t i o n ; and t h a t parties' hospital to delay had had t h r e e the d i s c o v e r y d e a d l i n e s e t out i n the t r i a l order had a l r e a d y p a s s e d . opposed two more c o n t i n u a n c e s had not f i l e d a response 4 Waddell of the h e a r i n g . i n opposition to the 2100954 hospital's summary-judgment latest date hearing set was for continued inclement weather. the hospital's That to to of a an in stated sudden plummeting of i n j u r y was basic of the Hall's unsworn, qualifications such opinions to documents The on record February filed an 17, 2011, on and because February 11, legal statement from opinions" that the foreseeable, was that the that the to " f u n c t i o n a l and The h o s p i t a l moved to the they failed provide had does on opinions not been i n the sworn contain On amended r e s p o n s e March to the 5 basis that establish conclusory), not 2011. to strike were Hall's case (and and or Dr. that that referred they any certified. a t r a n s c r i p t of 22, a report" defects." report to 2011. traced and of argument a "preliminary "tentative elevator were w h o l l y that the " s u d d e n i n j u r y o r d e a t h , " and they to when be statement that the i n j u r y could premises-management Dr. his the foreseeable cause 17, unsworn Dr. Robert H a l l , Hall 2011, motion, three-paragraph authority, 20, a response i n opposition safety consultant, Dr. the February Waddell f i l e d consisted citation which January on hearing on summary-judgment m o t i o n response without the motion 2011, hospital's the hearing however, Waddell summary-judgment 2100954 motion, time alleging to submit that a the t r i a l properly documentation from D r . H a l l , not been rely upon 28, and a s l o n g a s t h e new The trial court a new affidavit the affidavit, allowed affidavit to f i l e leave 2011, sworn had him supporting submission h o s p i t a l moved to entered an order strike Dr. a s s e r t i n g that, at the February On Hall's 17, 2 0 1 1 , evidence in opposition to the him to and had allowed argument." The hospital's hospital pointed the contained original On May new unsworn 26, summary j u d g m e n t 2011, file opinions only out that March amended hearing, c o u r t had p r o h i b i t e d Waddell from s u b m i t t i n g affidavit did granting o f Dr. H a l l . the t r i a l motion extra any a d d i t i o n a l e v i d e n c e t h a t had n o t p r e v i o u s l y submitted. Waddell court further summary-judgment a "legal brief Dr. H a l l ' s or amended t h a t had not been i n c l u d e d i n statement. the t r i a l i n favor of the court entered the f o l l o w i n g hospital: " T h i s c a u s e came b e f o r e t h i s c o u r t f o r a h e a r i n g on t h e [ h o s p i t a l ' s ] m o t i o n f o r s u m m a r y j u d g m e n t . T h i s case had been p r e v i o u s l y c o n t i n u e d to allow [Waddell] to f i l e opposition to s a i d motion. At the hearing, [Waddell's] response contained numerous deficiencies. Some o f t h o s e d e f i c i e n c i e s w e r e due to a clerical e r r o r on t h e p a r t of [Waddell's] attorney's office assistant. Although this court allowed a correction for clerical errors, after reviewing the matters contained therein, the 6 2100954 correction for clerical errors did contain a d d i t i o n a l evidence. As [ t h e h o s p i t a l ' s ] a t t o r n e y pointed out, this court informed [Waddell's] a t t o r n e y t h a t [ W a d d e l l ] w o u l d h a v e an o p p o r t u n i t y t o f i l e a l e g a l argument, but t h a t t h i s c o u r t would a c c e p t no a d d i t i o n a l e v i d e n c e , due t o t h e f a c t t h a t the c a s e had been r e - s e t numerous t i m e s t o allow [ W a d d e l l ' s ] lawyer to f i l e h i s p l e a d i n g s . "Upon consideration of the pleadings, the m o t i o n [ ] f o r summary j u d g m e n t , and t h e a r g u m e n t s i n court, the court is of the opinion that the [ h o s p i t a l ] i s e n t i t l e d t o a j u d g m e n t as a m a t t e r o f law, that there a r e no g e n u i n e i s s u e s as t o any material facts, and the [hospital] has proven entitlement to summary judgment by substantial evidence." Waddell filed a timely notice a p p e a l was t r a n s f e r r e d to t h i s Ala. of a p p e a l on 2011. Standard Appellate parte Ballew, summary review 771 judgment material fact judgment as of So. is exists a matter a 2d to be and of of pursuant to § The 1975. Code court J u l y 6, Review summary 1 04 0 judgment (Ala. granted the Rule i s de 2000). when moving law. 12-2-7(6), no party A novo. motion genuine is 56(c)(3), R. m o v i n g f o r a s u m m a r y j u d g m e n t m u s t make a p r i m a showing "that fact and that is no genuine [it] is entitled 7 to issue a as judgment to as any to Civ. A party there for issue entitled Ala. Ex a of a P. facie material a matter of 2100954 law." Rule 1036, 1038 burden prima 2d 56(c)(3); ( A l a . 1992). then v. City to the by 'substantial (footnote of Gadsden, 592 So. I f the movant meets t h i s b u r d e n , showing 1038 evidence Lee shifts facie at see nonmovant omitted). of such weight and to rebut the evidence.'" quality that "the movant's Lee, "[S]ubstantial 592 evidence fair-minded Life of the f a c t Assurance 1989); see Co. sought of t o be p r o v e d . " Florida, § 12-21-12(d), 547 A l a . Code So. West v. 2d 870 , So. is persons i n the e x e r c i s e of i m p a r t i a l judgment can r e a s o n a b l y i n f e r existence 2d the Founders 87 1 (Ala. 1975. Discussion Waddell trial court mediation raises erred two issues i n denying, in violation of § on sub appeal: silentio, (1) whether the his request for 6-6-20, A l a . Code 1975; and (2) w h e t h e r he p r e s e n t e d s u b s t a n t i a l e v i d e n c e i n o p p o s i t i o n t o t h e h o s p i t a l ' s m o t i o n f o r a summary j u d g m e n t i n d i c a t i n g t h a t t h e r e were genuine liability issues for his of material injuries. 8 fact as to the hospital's 2100954 Waddell argues that the t r i a l court failed to follow the m a n d a t e o f § 6 - 6 - 2 0 , A l a . C o d e 1 9 7 5 , a n d R u l e 2, A l a . C i v . C t . Med. R., and thereby erred as a m a t t e r of law i n not ordering mediation upon h i s r e q u e s t . I t i s true one p a r t y to require to order irrespective dispute," R., true position that without cannot Waddell never and t h a t mentioning him."'" any error (emphasis obtained he c h o s e , summary-judgment claim of motion the issue where dispute, party to the 2, A l a . C i v . C t . Med. added), but i t i s also on h i s r e q u e s t f o r to defend f o r the next of mediation no adverse against seven again. ruling ( A l a . 2009) Montgomery Cnty. 2003), quoting (quoting S h e r i f f ' s Dep't, Alcazar Shrine party against 40 S o . 3 d Temple 868 S o . 2 d 1 0 9 3 , 1094 i n t u r n H o l l o w a y v. R o b e r t s o n , the months "'"A i s made Kappa Sigma F r a t e r n i t y v. P r i c e - W i l l i a m s , 694 "allows of a other a ruling instead, § 6-6-20 mediation t o Amendment t o R u l e e f f e c t i v e J u n e 2 6 , 2002 hospital's 1059 the Comment mediation 683, of a court that v. (Ala. 500 S o . 2 d 1 0 5 6 , ( A l a . 1986)). Waddell Commission, argument that cites 72 So. Working 3d the t r i a l 18 v. Jefferson ( A l a . 2011), court County Election i n support of the r u l e d on t h e m o t i o n b y denying 9 2100954 it sub s i l e n t i o . In Working, three J e f f e r s o n County r e s i d e n t s challenged the v a l i d i t y appeal. costs, as On remand, based the p l a i n t i f f s on t h e c o m m o n - b e n e f i t "prevailing parties" trial court denied an o r d e r issue. The t r i a l the p l a i n t i f f s ' the m e r i t s . that sought court fees d o c t r i n e and t h e i r providing f o r mediation court d i d not order and status of the mediation m o t i o n f o r an a t t o r n e y - f e e a w a r d on From t h a t o r d e r , t h e p l a i n t i f f s the t r i a l attorney u n d e r 42 U.S.C. § 1 9 8 8 ; t h e y m o v e d t h e to enter attorney-fee but o f a s p e c i a l e l e c t i o n a n d p r e v a i l e d on had e r r e d appealed, i n sub s i l e n t i o arguing denying their motion f o rmediation. Our supreme c o u r t a g r e e d t h a t t h e r e had been denial. a sub silentio I t held m a n d a t o r y when a p a r t y requests no the p l a i n t i f f s ' discretion trial for t o deny court had prematurely attorney i t , that addressed that mediation the t r i a l motion, case mediation. request for court had and t h a t t h e the merits of the motion fees. Working i s d i s t i n g u i s h a b l e because the t r i a l present i s d i d n o t sub s i l e n t i o In l i g h t deny W a d d e l l ' s of the h o s p i t a l ' s response f o r mediation almost three years, -- t h a t , "after litigating court i nthe request f o r to Waddells' this matter [ t h e h o s p i t a l h a d ] no d e s i r e t o s e t t l e 10 2100954 this of case, time, and money thereafter request defend to for conclude seeking a mediation Waddell against merits. the mediation, mediated In determining trial the had -- and court court and hospital's words, the a was had his to advisability of decided, court on authorized dispositive trial waste failure ruling the had a Waddell's for reconsidered Waddell that j u n c t u r e w o u l d be trial settlement the other this resources" press that a and at instead, motion on to the was in his abandoned warranted request for mediation. In the resolution, context our of another supreme court party's participation i n an waiver of to its participation right bespeaks method has alternative stated intention to party a subsequent to submit Whitesell to arbitration." Mfg., Inc., 670 (emphasis added). Cf. Roberts N.W.2d 928 (Ct. App. 2004) 2d (table) 11 on whether the the right in opposing order requiring i t Life Ins. 897, v. R o b e r t s , a enforceable i f so, whether the Companion So. dispute "[w]hether an abandon and, p r e j u d i c e d by to depends f a v o r of the j u d i c i a l p r o c e s s w o u l d be that a c t i o n amounts arbitrate an of 278 899 Wis. Co. (Ala. 2d 814, (unpublished v. 1995) 691 opinion) 2100954 (determining written to p l e a d i n g , but proceed so," had In month that l i t i g a n t without waived the present period after mediation, did he (reviewing request or to a the 2010, bespoke motion. sought a ruling of 3d an order on and parties had been appears t h a t the request requested his request, see request parte (Ala. 2008) adequate the mediation on no Instead, the he hospital's for sought summary- without ever mediation. on case for mediation 12 Ex request bringing for the nor other mediation litigating against requested defended against that motion his previous When W a d d e l l he to had attention. hearing seven- a trial judgment motion do denying motion the the defending 1147-48 postjudgment of decision intention mandamus, 1145, petitioner court's for an A f t e r So. the in a o p p o r t u n i t i e s to i n f a v o r of 6 continuances mentioning 4, mandamus by court's actions for a writ Comm'n, because remedy), Waddell's dispositive never numerous mediation mediation). to mediation a petition Cnty. mediation case, "requested o b j e c t e d to the to August Waddell file Morgan three right the hospital's never had i t , despite the abandon h i s r i g h t who August for was 32 an 4, 2010, the months. It attempt to buy 2100954 more t i m e t o scheduled respond to the for a hearing a p p e a r s t h a t W a d d e l l was mediation, he h o s p i t a l ' s m o t i o n , w h i c h had on August to do not believe that § 6-6-20 permits Waddell's that raising reversing order the the the issue trial that, without further on We by It insisting t h e m o t i o n by h a v i n g t h e h e a r i n g court 2010. s u c c e e d e d i n g a i n i n g more t i m e t o r e s p o n d had satisfied 10, been continued on three mandatory mediation attempt now on court's m e d i a t i o n w o u l d s e r v e any to occasions. called for "sandbag" appeal. Nor do judgment w i t h the we in trial believe directions u s e f u l purpose at t h i s to point. II. As a invitee visitor to to whom the the hospital, hospital premises in a ordinary and reasonable care. 149 reasonably (Ala. 1986). arises from v. Tice, is not an doctrine parte 361 the So. Harold owed safe the condition See was duty by Ex p a r t e a to the business keep mere 2d f a c t of 1051, of the an 1052 i n j u r y to W o o t e n , 681 an So. of its Distrib. 13 Co., 769 So. 2d which Tice A premises owner invitees, i p s a l o q u i t u r i s g e n e r a l l y not L. M a r t i n of invitee." (Ala. 1978). safety the exercise " T h e r e i s no p r e s u m p t i o n o f n e g l i g e n c e insurer of res Waddell 2d and the applicable. 313, 314 Ex (Ala. 2100954 2000). "[A] insufficient Alabama of the 282, 287 that So. must 2d show n o t only condition knew owner The App. summary-judgment had knew n o r on hospital's present failed the should was have Intergraph motion in support established, reasonable have the known o f elevator's admissible inspect on the 7 69 So. 2d Waste, "Generally, the premises, known Servs. the Indus. i n j u r e d as owner's care the of an result but the Co., also defective 4 So. FE prima 3d 495, the elevator 14 or the hospital's facie, that the providing in relay. evidence, of for the and existence summary-judgment m o t i o n , any to on Bassett, 1998)). he that negligence Crabtree maintenance of the e l e v a t o r should armature (Ala. submitted used i n s p e c t i o n and parte that be 2008). materials hospital or E d w a r d s v. (Ala. Civ. Ex would conclude any Kmart C o r p . v. 158 the elevator] of res i p s a l o q u i t u r under without (quoting 155, the reasonably happened defective condition." 502 can defendant[].'" 728 a have [of doctrine 'one ( A l a . 2000) invitee of because could part malfunction to invoke the law, accident Inc., mere In that i t neither the defective of opposition Waddell failed either that maintain the the to to the timely hospital elevator in a 2100954 reasonably safe condition or that i t s inspection-and- m a i n t e n a n c e c o n t r a c t w i t h T h y s s e n K r u p p was u n r e a s o n a b l e . Kmart Corp. v. B a s s e t t , Citing in 769 So. 2 d a t 2 8 5 . O l i v e r v. Townsend, Waddell maintains case was could to raise whether satisfy whether such requirements statements of Rule So. 2d a t 1042 substantive attorney's relate the only could (stating can to procedural that be matters brief of Rule 5 6 ( f ) , not the satisfy A l a . R. in a trial substantive C i v . P. See O l i v e r , " [ w ] e do n o t mean established to simply imply by The m a t t e r s r e p r e s e n t e d not otherwise an here reflected i n " ) . The t r i a l court acted w i t h i n the l i m i t s refusing to consider after requirements 56(c)(3), facts statements s i g n a t u r e on a b r i e f . record days Oliver i s inapt; the issue i n that the procedural that itself a g e n u i n e i s s u e o f m a t e r i a l f a c t as t o t h e an a t t o r n e y ' s 534 can ( A l a . 1988), t h a t t h e l e g a l a r g u m e n t made b y h i s a t t o r n e y h o s p i t a l ' s breach of duty. in 534 S o . 2 d 1 0 3 8 o p p o s i n g t h e h o s p i t a l ' s s u m m a r y - j u d g m e n t m o t i o n was sufficient See the hearing consider only that new e v i d e n c e on t h e m o t i o n . material 15 of i t s d i s c r e t i o n submitted by W a d d e l l "'"'[T]he before trial 33 court i t a t the time of 2100954 submission of thereafter 'comes Action Bean Hall, motion' too State quoting Ritchie, Based on Farm and late.'"'" P r o g r a m , I n c . , 852 v. 1991), the Fire So. 2d the Ex 92, & C a s . Co., i n turn Sheetz, I n c . , 512 ... Aiken any parte filed Organized Cmty. 95 ( A l a . 2002) (quoting 591 So. 20 ( A l a . 2d & Aiken, S o . 2 d 9 9 , 101 foregoing material 17, I n c . v. Spann, ( A l a . 1987)). authorities, we affirm judgment o f the C o l b e r t C i r c u i t C o u r t . AFFIRMED. Thompson, P . J . , and B r y a n and Thomas, J J . , c o n c u r . Moore, J . , c o n c u r s i n the r e s u l t , without 16 writing. the

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