Premises Liability Archives | Jeremy W. Richter

What Duty Does a Church Owe to Keep Its Property Safe?

Jun 19, 2017

What Duty Does a Church Owe a Person to Keep Its Property Safe?

Every Sunday and Wednesday in Alabama, thousands of people leave their homes and attend church services. And if your church is anything like mine, there are any number of other times throughout the weeks the church doors are open and folks are traversing the halls. And sometimes people at churches (like anywhere else) trip and slip and fall, and sometimes those people get hurt. So what duty does a church owe to keep people safe while they’re on the church’s properties?

Alabama, when you are on another person’s (or company’s) property, you could be designated as one of the following: an invitee, a licensee, or a trespasser. Your designation determinations the duty the person or company owes you while you are on the property. The greatest duty to keep a property safe is owed to invitees. Property owners owe the least duty to trespassers.

Alabama courts have determined that “a person attending a church service is a licensee on the church premises.”¹⁾Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994), citing Autry v. Roebuck Park Baptist Church, 229 So.2d 469 (Ala. 1969); see also Ex parte Wooten, 681 So.2d 149, 150 (Ala. 1996).

A person who visits a landowner’s property with the landowner’s consent or as the landowner’s guest but with no business purpose occupies the status of a licensee.²⁾See Copeland v. Pike Liberal Arts School, 553 So.2d 100 (Ala.1989); Bryant v. Morley, 406 So.2d 394 (Ala.1981) (“an invited social guest is a licensee of the landowner”); Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994). The duty owed by a landowner to a licensee is to abstain from willfully or wantonly injuring the licensee and to avoid negligently injuring the licensee after the landowner discovers a danger to the licensee.³⁾Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So.2d 199 (Ala.1992); Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994).

This duty is not an active one to safely maintain the premises; instead, the landowner has the duty not to set traps or pitfalls and not to willfully or wantonly injure the licensee.⁴⁾Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994). A “trap” is a danger that a person who does not know the premises could not avoid by the use of reasonable care.⁵⁾Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So.2d 199 (Ala.1992); Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994). Wantonness has been defined as the conscious doing of some act or conscious omission of some duty by one who has knowledge of the existing conditions and who is conscious that doing, or failing to do, some act will probably result in injury.⁶⁾Raney v. Roger Downs Ins. Agency, 525 So.2d 1384 (Ala.1988).

In short, the duty a church owes to people on its property is not to create a trap or to otherwise willfully or recklessly injure a person. It is much more difficult to find a church liable for injuries of someone who is hurt on the premises than for a similar accident that happens at a grocery store or other place of business.

For a different sort of reading about a church, read this story about approaching problems as opportunities versus impositions, which was inspired by an abandoned church.

Photo by me.

References [ + ]

1.	↑	Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994), citing Autry v. Roebuck Park Baptist Church, 229 So.2d 469 (Ala. 1969); see also Ex parte Wooten, 681 So.2d 149, 150 (Ala. 1996).
2.	↑	See Copeland v. Pike Liberal Arts School, 553 So.2d 100 (Ala.1989); Bryant v. Morley, 406 So.2d 394 (Ala.1981) (“an invited social guest is a licensee of the landowner”); Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994).
3, 5.	↑	Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So.2d 199 (Ala.1992); Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994).
4.	↑	Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala. 1994).
6.	↑	Raney v. Roger Downs Ins. Agency, 525 So.2d 1384 (Ala.1988).

When There’s Conflicting Evidence about Where a Slip-and-Fall Occurred

Jun 8, 2017

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.[1] There is no duty on the shopkeeper [CLP] to either eliminate or warn an invitee of open and obvious dangers.[2] 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.[3]

However, the question of whether a danger is open and obvious is generally a fact question (to be decided by a jury).[4] Asserting the existing of an open and obvious danger is an affirmative defense for which the proponent [CLP] has the burden of proof.[5]

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.[6] 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.

[1] See Sessions v. Nonnenmann, 842 So.2d 649 (Ala. 2002).

[2] See Id., 842 So.2d at 653-54; see also Jones Food Co. v. Shipman, 981 So.2d 355 (Ala. 2006).

[3] Ex parte Mountain Top Indoor Flea Market, 699 So.2d 158, 161 (Ala. 1997).

[4] Howard v. Andy’s Store for Men, 757 So.2d 1208 (Ala.Civ.App. 2000).

[5] 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).

[6] See McGough v. G&A, Inc., 999 So.2d 898, 904 (Ala. 2007).

Photo by H.B. Kang.

Is Being Obese an Open and Obvious Danger?

Jan 23, 2017

Valerie Smith v. Wells Fargo Bank, NA: Whether a patron’s heftiness can create an open and obvious danger and whether a property owner’s knowledge of an allegedly defective chair are questions for the jury.

On March 12, 2013, Valerie Smith went to Wells Fargo with her mother to have a document notarized. The bank manager invited them to come into his office. Upon entering the office, Smith sat in a chair. Significant to these events is that Smith is “a heavy person.” Smith claimed that she had not even put her full weight into the chair when she heard “a loud, cracking noise” and the chair fell apart and collapsed. Smith attempted unsuccessfully to catch herself and was deposited onto the floor. She injured her knee and back. Smith testified that she sat gently into the chair and did not “flop” herself into it. Prior to the fall, Wells Fargo was unaware of any problems with the chair

Smith sued Wells Fargo on February 13, 2015, alleging various premises liability claims, including negligent/wanton failure to maintain the premises in a safe condition, and negligent/wanton hiring, training, and supervision. Eleven months later, Well Fargo filed a motion for summary judgment arguing that the weight capacity of the chair constituted an open and obvious danger to Smith in relation to her size, and Wells Fargo was unaware that the chair constituted a danger on the premises. On March 2, 2016, the trial court granted Wells Fargo’s motion for summary judgment as to all counts in Smith’s Complaint. Smith appealed. Valerie Smith v. Wells Fargo Bank, NA [Ms. 2150715], — So.3d — (Ala.Civ.App. Nov. 4, 2016).

Licensee or Invitee

The trial court did not make a determination whether Smith was a licensee or invitee on the premises. The greater duty is owed to an invitee, for whom the premises owner owes a duty to keep the premises reasonably safe and warn of any hazards. Rather Wells Fargo, while not conceding Smith’s status as an invitee, presented its legal arguments as though Smith were an invitee.

Open and Obvious Danger

Smith argued that the trial court’s finding that Smith recognized and anticipated that the chair constituted an open and obvious danger resulting from her size was erroneous. Were Smith an invitee, Wells Fargo would owe no duty to warn her of open and obvious dangers. A danger is open and obvious if it should have been perceived in the exercise of reasonable care.

Smith testified that as a heavy person with wide hips, she tries not to sit all the way back into any chair, especially a chair with armrests. She also testified that she had not put her weight into the subject chair when it collapsed. She stated the chair fell apart when she put her hand onto it.

The Alabama Supreme Court has previously held that generally, questions of openness and obviousness and of the invitee’s knowledge are not to be resolved on summary judgment. It has also indicated that even when a hazard is open and obvious, an injured invitee may not be barred from recovery when she was acting reasonably and did not appreciate the danger.[1]

Therefore, the Alabama Court of Civil Appeals found in the instant case that the entry of summary judgment by the trial court was inappropriate because genuine issues of material fact remained as to whether the chair presented an open and obvious defect and whether Smith appreciated the danger.

Knowledge of the Defect

Wells Fargo further argued at summary judgment that it had no knowledge of the defect and did not breach any duty to Smith. Wells Fargo presented evidence that there had been no other incidences of chairs collapsing. Both Smith and her mother were likewise unaware of any other chairs collapsing at the bank. Smith was unable to impute either actual or constructive knowledge of the defective chair to Wells Fargo.

Smith presented an argument citing cases that proposed res ipsa loqitor-esque arguments – the fact that the chair collapsed could allow the fact-finder to draw and inference that there was a hazard that the premises owner should have been aware of.[2] Specifically, in Isbell v. Aztecas Mexican Grill, the Alabama Court of Civil Appeals held that because a booth seat that collapsed under a patron was a fixture on the premises, the issue of whether the restaurant had actual or constructive notice of the defect in the booth seat was a jury question, regardless of whether the patron made a prima facie showing of notice.[3]

Applying the principle in Isbell to the instant case, the appellate court found no evidence in the record that Wells Fargo argued the subject chair was not defective. Rather, Wells Fargo argued that the chair presented an open and obvious danger and that it had no knowledge (whether actual or constructive) of the danger. Because of Wells Fargo’s reliance on the notice argument, the Alabama Court of Civil Appeals, relying on Isbell, determined that the notice question was for the jury to determine.

Because the appellate court reversed the trial court’s judgment, it remanded the case for further proceedings.

[1] See Ex parte Kraatz, 775 So.2d 801, 805 (Ala. 2000).

[2] See e.g., Gasser Chair Co. v. Nordengreen, 991 N.E.2d 122 (Ind.Ct.App. 2013); Winn Dixie Montgomery, Inc. v. Weeks, 504 So.2d 1210 (Ala. 1987); Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala. 1990); Isbell v. Aztecas Mexican Grill, 78 So.3d 420 (Ala.Civ.App. 2011).

[3] Isbell, 78 So.3d 420.

Photo by Rupert Taylor-Price.

What Duty Does a Store Owner Owe to a Minor Child Invitee?

Oct 31, 2016

When does a minor child become an invitee on the premises?

A minor child is an invitee on the premises when he is present with his parent and (1) the child’s presence or the nature of the visit bestows some material or commercial benefit upon the landowner, and (2) the landowner has either actual or constructive notice that the child is a visitor on the premises.[2] The duty owed to an invitee, whether an adult or minor child, is to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee.[1]

In order to recover for an injury sustained on the premises, “[g]enerally, 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.” However, there is no presumption of negligence that arises from the mere fact of an injury to an invitee.[3]

Can a minor invitee be contributorily negligent?

The question of contributory negligence is normally one for a jury. However, where the facts are such that all reasonable persons must reach the same conclusion, contributory negligence may be found as a matter of law.[4] To establish contributory negligence as a matter of law, a defendant must show that the plaintiff put himself in danger’s way and that the plaintiff had a conscious appreciation of the danger at the moment the incident causing the injury occurred.[5]

Nevertheless, under Alabama law, “[a] child between the ages of 7 and 14 is prima facie incapable of contributory negligence.”[6] An exception exists in that a child between the ages of 7 and 14 years may be shown by evidence to be capable of contributory negligence by showing that he possesses the discretion, intelligence, and sensitivity to danger that an ordinary 14-year-old child possesses.[7] “A child between the ages of 7 and 14 may be shown by evidence to be capable of contributory negligence by evidence that he possesses that discretion, intelligence, and sensitivity to danger that the ordinary 14–year–old possesses.”[8]

Can a parent’s contributory negligence be imputed to the minor child and preclude the minor child from recovering for an injury?

The contributory negligence of a parent cannot be imputed to the child so as to preclude an action by the child for its benefit against a third person whose negligent act has insured the child.[9] “The negligence of a parent cannot be imputed to the child so as to preclude an action by the child or for its benefit against a third person whose negligent act has injured the child.”[10]

Can a parent’s contributory negligence preclude the parent from recovering for an injury to a minor child?

The contributory negligence of a parent bars the parent’s recovery from the injuries to the child sustained in an accident.[11] A plaintiff cannot recover in a negligence action where the plaintiff’s own negligence is shown to have proximately contributed to his injury, notwithstanding a showing of negligence on the part of the defendant.”[12] When a parent sues for an injury to his minor child, his neglectful conduct, proximately contributing to the injury, is a bar to the action, unless the injury was caused by the wanton, reckless, or intentional negligence of the defendant, after having discovered the peril of the child, or when they ought to have discovered the peril.[13]

[1] Galaxy Cable, Inc. v. Davis, 58 So.3d 93 (Ala. 2010); see also Miller ex re. Miller v. Liberty Park Joint Venture, LLC, 84 So.3d 88 (2011).

[2] Raney v. Roger Downs Ins. Agency, 525 So.2d 1384 (Ala. 1988).

[3] See Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978); Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313 (Ala. 2000); Miller ex re. Miller v. Liberty Park Joint Venture, LLC, 84 So.3d 88 (Ala. 2011).

[4] Aplin v. Tew, 839 So. 2d 635, 638 (Ala. 2002); see also Brown, supra; see also Carroll v. Deaton, Inc., 555 So.2d 140, 141 (Ala.1989).

[5] Aplin v. Tew, 839 So. 2d 635, 638 (Ala. 2002); see also Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839 (Ala.2002); H.R.H. Metals, Inc. v. Miller, 833 So.2d 18 (Ala.2002); and Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 219 (Ala.1994).

[6] Aplin v. Tew, 839 So. 2d 635, 639 (Ala. 2002); see also Superskate, Inc. v. Nolen, 641 So.2d 231, 236 (Ala.1994); Savage Indus., Inc. v. Duke, 598 So.2d 856, 858 (Ala.1992).

[7] King v. South, 352 So.2d 1346, 1347, (Ala. 1977).

[8] Fletcher v. Hale, 548 So.2d 135 (Ala.1989).

[9] See Pilkington By & Through Pilkington v. Peking Chinese Rest., Inc., 596 So. 2d 586, 589 (Ala. 1992); Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236, 249 (1975).

[10] Nunn v. Whitworth By & Through Whitworth, 545 So. 2d 766, 767 (Ala. 1989).

[11] Nunn v. Whitworth By & Through Whitworth, 545 So. 2d 766, 767 (Ala. 1989).

[12] Aplin v. Tew, 839 So. 2d 635, 638 (Ala. 2002); see also Watters v. Bucyrus–Erie Co., 537 So.2d 24 (Ala.1989); Brown v. Piggly–Wiggly Stores, 454 So.2d 1370, 1372 (Ala.1984).

[13] Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371, 374, 3 So. 555, 557 (1888).

Photo by Jaro Larnos.