Released for Publication January 20, 2015.
As Amended May 15, 2015.
Appeal from Jefferson Circuit Court. (CV-11-904364). Robert S. Vance, Jr., Trial Judge.
For Appellant: John W. Dodson, Neal D. Moore III, and David A. Rich of Ferguson, Frost & Dodson, L.L.P., Birmingham.
For Appellee: Frank S. Buck, J. Brooks Leach, and Rachel C. Buck of Frank S. Buck, P.C., Birmingham.
THOMAS, Judge. Pittman and Donaldson, JJ., concur. Thompson, P.J., and Moore, J., concur in the result, without writings.
On May 16, 2011, Barbara Butler went to a store operated by Burlington Coat Factory of Alabama, LLC (" Burlington" ), to return some shoes. Butler then decided to shop for some " memory-foam" pillows,
which she located in the linens department of the store. The pillows were displayed on moveable metal brackets affixed into a " slat wall" on an " end cap" on one of the aisles in the linens department. Butler was removing the pillows from a set of brackets slightly above her head when the brackets holding the pillows came loose from the wall and fell; one of the brackets hit Butler in the face, causing a lump to form above her left eyebrow. Ultimately, Butler was diagnosed with a nasal fracture and a deviated septum and underwent surgery to correct the injury. She sued Burlington in the Jefferson Circuit Court in December 2011, seeking to establish Burlington's negligence or wantonness, based on a premises-liability theory. The action proceeded to a jury trial in April 2013, after which the trial court entered a judgment on a jury verdict in favor of Butler on Butler's negligence claim.
The testimony presented at trial established the following facts. As noted above, Butler was injured when she removed pillows from the brackets upon which the pillows were displayed. Certain facts regarding the incident were sharply disputed, including whether the pillows displayed on the brackets were single pillows in boxes or whether they were a set of two pillows enclosed in a plastic bag. However, whether the pillows were displayed in bags or boxes is not relevant to the resolution of this appeal. Instead, the resolution of this appeal turns on the testimony presented regarding the brackets used by Burlington to display merchandise like the pillows Butler was shopping for on the day of the incident and the inspection procedures utilized by Burlington employees to make certain that the brackets were secure.
Dorothy Baker, the Burlington employee who was responsible for the linens department, testified at length about the use of the brackets in the store. Baker said that she had worked for Burlington since 1993 and that, as part of her employment, she had regularly secured, moved, and inspected the brackets used in the store. In fact, Baker testified that she had installed the brackets that fell and injured Butler, and Baker said that those brackets had been in place for months without incident. She also said that she had visually inspected the linens department, as was her habit on the days she worked, on the morning of the incident between 9 a.m. and 12 p.m. According to Baker, she saw nothing in her visual inspection that day to indicate that the brackets were not secure in the slat wall.
Baker explained how the brackets worked, stating that the hooks on the bracket were placed into the slat wall and that, once the hooks were placed in the slat wall, the bracket was " there to stay." According to Baker, if she could " see that these hooks are in -- the brackets are in the wall there, they're not coming down." She said that she did not pull on the brackets after the original installation, explaining that she could visually inspect the brackets to tell if they were properly installed in the slat wall; Baker explained that she did not need to touch the brackets to check their stability. She stated:
" That bracket is not going to be halfway in. It's not going to be halfway out. It's either going to be in or it's going to be on the floor. And if it's looking crooked, then you need __ the only other thing that it could possibly be is that the bracket itself is bent. That's when you inspect. When it does not look like that it's in properly, then you can touch and inspect."
According to Baker, the brackets that fell and injured Butler had never, to her knowledge, fallen off the slat wall before the incident and had not, once they were reattached to the slat wall, fallen off the slat wall after the incident.
Lander Jones, who was the manager of the Burlington store on the date of the incident, testified that the brackets were composed of a lightweight metal. She, like Baker, said that the brackets were either in the slat wall or out of the slat wall. She described the installation and removal of the brackets thusly:
" [Counsel for Butler:] ... If you could just demonstrate for the jury, I think, using this photograph.
" [Jones:] You have to slant it at an angle and clip it up in the wall and then it rests straight down and it rests against the wall itself.
" [Jones:] ... [I]t's going to lock down regardless because once it's in that slat wall, it goes in and it lays down and it's ...