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Johnson v. Food Giant Supermarkets, Inc.

United States District Court, M.D. Alabama, Southern Division

June 10, 2015

PAT CRAIG JOHNSON as Personal Representative of the Estate of Marie Carr, Plaintiff,


MYRON H. THOMPSON, District Judge.

Plaintiff, as personal representative of the estate of decedent Marie Carr, sues defendant Food Giant Supermarkets, Inc., claiming that Food Giant's negligence led to Carr's tripping over a concrete parking stop and falling in the parking lot of a Food Giant supermarket. The court has jurisdiction pursuant to 28 U.S.C. §§ 1332 (diversity) and 1441 (removal). Carr initially filed this lawsuit, but later died for reasons apparently unrelated to this litigation. The plaintiff, as representative of Carr's estate, then replaced Carr in this litigation.

This cause is now before the court on Food Giant's motion for summary judgment. For the reasons below, summary judgment will be entered in favor of Food Giant.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making its determination, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


The following are the facts taken in the light most favorable to the plaintiff.

This case arises from a March 2013 accident in which Marie Carr, who was over the age of 70, fell and injured herself in the parking lot of a Food Giant supermarket in Abbeville, Alabama. See Transcript of Pretrial Conference (doc. no. 57), at 2:14-17. The store has a set of sliding entrance doors in the front center of the building. A sidewalk runs along the front of and adjacent to the building, and immediately in front of the sidewalk is the parking lot. In the part of the lot touching the sidewalk are several marked handicapped parking spaces, which face the front of the building at a slight angle. Each handicapped parking space has a concrete parking block near the front of the space, positioned so as to prevent a car parking in the space from driving onto the sidewalk. Each parking block is about six feet long, five inches high, and five inches deep. There are no parking spaces directly in front of the store's front doors; instead, that area is left open as a pedestrian walkway connecting the front doors to the rest of the parking lot. On the day of the accident, an upright metal advertising sign that appears in the submitted photographs was located in the pedestrian walkway; however, given its size, it would have blocked only about one third of the width of the walkway. See Photographs of Food Giant Entrance (attached to Declaration of Ben Hogan) (doc. no. 33-2), at 3-4.

On the day of the accident, around mid-day, Carr drove to the Food Giant in her vehicle, parked in the first handicapped space immediately to the left of the pedestrian walkway to the entrance, and went into the store to shop. After shopping, she returned to her car, loaded her groceries into its trunk, and walked her shopping cart back to the store.

At that point, Carr walked down the sidewalk in front of her car and turned left to approach the driver's side. According to the sole eyewitness to the accident, when she reached the concrete parking block at the front of her space, Carr picked up her foot as if to step over the block but did not lift her foot quite high enough; as a result, her foot caught on the parking block, causing her to fall down. A car was parked in the spot immediately to the left of Carr's space; however, there is no evidence as to how close the cars were parked or how much space was between the parking block and the adjacent car at the time.

Carr sustained serious, permanent injuries in the accident. After filing this lawsuit, she passed away, albeit for reasons apparently unrelated to this litigation. She had not been deposed, so her testimony is not available to explain her perspective on how the accident occurred.

Plaintiff's expert Robert Tolbert, a professional engineer, evaluated the Food Giant parking lot for compliance with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213. He opined that Food Giant's parking lot "did not contain an ADA compliant accessible path, [and] did not contain an ADA mandated accessible aisle..." Report of Robert T. Tolbert (doc. no. 33-3), at 20.[1]


In a premises-liability case, a plaintiff must prove the same elements of negligence as in any tort litigation: duty, breach of duty, causation, and damages. Sessions v. Nonnenmann, 842 So.2d 649, 651 (Ala. 2002). "A store patron is generally considered a business invitee for premises-liability purposes under Alabama law." Blalock v. Wal-Mart Stores E., LP, 2007 WL 1412445, at *1 (M.D. Ala. 2007) (Thompson, J.). The duty of a store is "to exercise reasonable care to provide and maintain reasonably safe premises for the use of his ...

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