When There’s Conflicting Evidence about Where a Slip-and-Fall Occurred
Barnwell v. CLP Corporation: When there is conflicting testimony about where a slip-and-fall occurred, the question of whether the alleged danger was open and obvious is one for a jury.
Slip-and-Fall in a McDonald’s
In April 2013, Andre Barnwell visited a McDonald’s restaurant owned and operated by CLP Corporation. Barnwell claims to have entered the restaurant and walked straight to the restroom to wash his hands. Upon exiting the bathroom, he walked to the order counter, planted his left foot to turn, his foot slipped out from under him, and he fell on his left hip. Barnwell immediately popped back up, but was “addled.” Barnwell stood in the spot where he had fallen for a minute, gathering himself, before walking to the counter. Barnwell waited in line to place his order, but then left the restaurant without ordering.
CLP’s video cameras show an employee mopping the floor immediately in front of the counter where patrons were ordering. The employee placed a wet floor sign in the area. The video footage does not show anyone slipping and falling. But it does show someone [presumably, Barnwell] slipping (but not falling) on the recently mopped floor in front of the counter. Barnwell agrees that the video shows him slipping, but it was another occasion immediately afterward, not caught on video, when he slipped and fell.
Barnwell got in his vehicle and drove away, but his girlfriend convinced him to return to report the incident. Barnwell spoke with the on-duty manager; he has testified that the manager told Barnwell she saw him fall. Barnwell states that the manager filled out a written report detailing Barnwell’s fall. Upon leaving the restaurant a second time, Barnwell went to the emergency room.
Suing Ronald McDonald for a Slip-and-Fall
In May 2014, Barnwell sued CLP for negligence. Barnwell issued discovery requests, some of which pertained to documents and persons who had knowledge of his slip-and-fall. Barnwell objected to CLP’s responses and moved the trial court to compel CLP to comply with his discovery requests.
On June 22, 2016, Barnwell noticed the depositions “of the [restaurant] manager … and employees of the [restaurant] at issue.” The following day, CLP filed a motion for summary judgment. It argued that Barnwell’s testimony should not be considered because it was false, as proven by the video footage that did not record Barnwell’s alleged slip-and-fall. CLP contended that Barnwell had failed to present any evidence to support his claims of negligence, and even if Barnwell did slip-and-fall, the danger was open and obvious because of the wet floor sign.
On June 29, 2016, Barnwell filed a second motion to compel, requesting the court to force CLP to produce its manager and employees as witnesses. CLP responded that it was ready for trial that was set for September 12 and any further discovery would prejudice CLP by causing it to incur costs and re-prepare for trial. Weeks later that trial court denied Barnwell’s motion to compel that had been pending since October 2014, as well as denying the June 2016 motion to compel. Thereafter, the trial court, after considering “all the evidence” (presumably including Barnwell’s deposition testimony that CLP had sought to have stricken), granted CLP’s motion for summary judgment. Barnwell appealed. Barnwell v. CLP Corporation [Ms. 1151329 Apr. 21, 2017], ___ So.3d ___ (Ala. 2017).
The Merits of McDonald’s Open and Obvious Danger Argument
CLP made two arguments in support of its summary judgment motion. (1) The trial court should ignore the conflicting portions of the deposition and affidavit testimony of Barnwell, which CLP contends are the only direct evidence of the alleged slip-and-fall. (2) Even assuming there was a slip-and-fall, the dangerous condition was open and obvious. The trial court did not strike Barnwell’s testimony, and therefore it could not have granted summary judgment on a failure by Barnwell to produce any evidence in support of his claim. Rather it must have granted summary judgment on the basis of the danger being open and obvious.
In a premises liability case, the question of what constitutes an open and obvious danger is well settled. The question is whether the danger should have been observed, not whether it was in fact consciously appreciated. There is no duty on the shopkeeper [CLP] to either eliminate or warn an invitee of open and obvious dangers. In other words, when there is an open and obvious defective condition on the premises, the premises owner has not duty to warn of the danger that the invitee [Barnwell] was, should have been, or in exercising reasonable care would have been aware of.
However, the question of whether a danger is open and obvious is generally a fact question (to be decided by a jury). Asserting the existing of an open and obvious danger is an affirmative defense for which the proponent [CLP] has the burden of proof.
In this case, CLP argued the alleged open and obvious danger was the water on the floor in front of the counter, that was the result of an employee mopping the floor. But Barnwell’s affidavit made clear that he slipped on a slick spot outside the restroom, and that the manager had told him the floor was greasy in that area. CLP did not offer any evidence the alleged slick area outside the bathroom was an open and obvious danger, nor that the area had been recently mopped. Since CLP did not offer any evidence as to the area outside the restroom, where Barnwell alleges he slipped, the trial court erred in awarding summary judgment on the ground that there was an open and obvious danger.
Dealing with Contradictory (or Not) Testimony
CLP further argues that Barnwell is lying when he claims to have slipped and fell on a slick spot outside the restroom, because video footage shows him slipping (but not falling) on the water near the counter. There is no video footage of the area outside the restroom. CLP argues that the court may not consider the affidavit testimony because Barnwell later contradicts it in his deposition testimony. In reviewing the testimonies, the Supreme Court of Alabama did not find the testimonies contradictory.
Based on CLP’s failure to present substantial evidence that the area in which Barnwell claims to have slipped and fallen posed an open an obvious danger, the Alabama Supreme Court reversed the trial court’s summary judgment ruling and remanded the case.
 See Sessions v. Nonnenmann, 842 So.2d 649 (Ala. 2002).
 See Id., 842 So.2d at 653-54; see also Jones Food Co. v. Shipman, 981 So.2d 355 (Ala. 2006).
 Ex parte Mountain Top Indoor Flea Market, 699 So.2d 158, 161 (Ala. 1997).
 Howard v. Andy’s Store for Men, 757 So.2d 1208 (Ala.Civ.App. 2000).
 Dolgencorp, Inc. v. Taylor, 28 So.3d 737, 742 (Ala. 2009); see also Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala. 2002).
 See McGough v. G&A, Inc., 999 So.2d 898, 904 (Ala. 2007).
Photo by H.B. Kang.