United States District Court, N.D. Alabama, Southern Division
GINA GAMBRELL, as the Administratrix of the Estate of Mark Wayne Gambrell, Plaintiff,
WILKINSON CGR CAHABA LAKES, LLC, et al., Defendants.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
case centers on Plaintiff's allegations that
Defendants' negligent and/or wanton conduct wrongfully
caused Mark Gambrell's death in a fire at his apartment
on July 7, 2013. This matter is before the court on the
magistrate judge's Report and Recommendation (doc. 137),
recommending that the Wilkinson Defendants' Motion for
Summary Judgment (doc. 77) be granted in part and denied in
parties fully briefed the summary judgment motion.
See (Docs. 92, 127). On August 17, 2016, the
magistrate judge entered his report and recommendation and
the parties were allowed 14 days to file objections to the
recommendations made by the magistrate judge. See
August 31, 2016, Plaintiff and Defendants filed objections to
the magistrate judge's report and recommendation. (Docs.
139, 141). Plaintiff also filed a Motion for Oral Argument.
(Doc. 140). Plaintiff then filed a response to
Defendants' objections (doc. 142) and a Motion to Strike
portions of Defendants' objections. (Doc. 143).
Defendants also filed a response to Plaintiff's
objections (doc. 144), a reply to Plaintiff's response to
its objections (doc. 145), and a response to Plaintiff's
Motion to Strike. (Doc. 146).
court has carefully reviewed and considered de novo
all relevant materials. For the reasons stated in this
Memorandum Opinion, the court ADOPTS IN PART and REJECTS IN
PART the magistrate judge's report. The court ACCEPTS his
recommendation to dismiss Wilkinson Companies as a defendant;
his recommendation to grant summary judgment in favor of and
dismiss as a defendant Wilkinson Group; his recommendation to
grant Defendants' Motion for Summary Judgment as to part
of Count I and all of Count II and to dismiss those claims
with prejudice; his recommendation that the court deny
Defendants' Motion for Summary Judgment as to the
remaining theory of Count I, Count VI, and the defense of
contributory negligence; and his recommendation that the
court decline to find that Defendants spoliated the smoke
detector in bad faith so as to entitle Plaintiff to an
adverse inference. The court makes additional factual
findings and conclusions of law as follows.
Gambrell died in a fire at his apartment at the Lakes at
Inverness apartment complex on July 7, 2013. His wife brings
this lawsuit as the administratrix of his estate and contends
that Mr. Gambrell's death was caused by Defendants'
failure to ensure a properly working smoke detector and safe
court declines to find that, on the evening of the fire, Mrs.
Gambrell spoke to her mother for “over two
hours.” (Doc. 136 at 9). The record shows only that she
spoke to her mother for “a long time.” (Doc.
77-10 at 2). In addition to adopting the magistrate
judge's findings of fact in the “Procedural and
Factual Background” section of his opinion, the court
finds the following additional facts.
Shelby County Department of Development/Inspection Services
records pertaining to the Lakes at Inverness apartment
complex do not indicate any concerns have ever been raised
regarding kitchen design in the complex. (Doc. 77-18 at 122).
The Shelby County Inspection Services Supervisor at the
relevant time was unaware of any of the inspectors in his
office having concerns about the kitchen designs at the
property. (Doc. 77-18 at 64-65, 122). After the July 2013
fire, Inspection Services permitted, inspected, and approved
the exact same kitchen layout, and Defendants rebuilt the
Gambrells' apartment using the pre-fire kitchen design.
(Doc. 77-16 at 27-28; Doc. 77-20). As part of the permitting
process when a kitchen is gutted and rebuilt, Inspection
Services evaluates kitchen design compliance with applicable
codes. (Doc. 77-18 at 136-37).
of the 801 units at the property contained kitchens with the
same design as the Gambrells'. (Doc. 77-16 at 33, 37,
39). Defendants did not maintain records related to or a copy
of the instruction manual for the stove in the Gambrells'
apartment. (Doc. 77-19 at 63). Another grease fire in an
apartment at the Lakes at Inverness complex occurred in a
kitchen with the same design in July 2014. (Doc. 77-19 at
89-90). Defendants' expert Jamie McCallister opined that
the vertical cabinet next to the range increased the fuel
load, heat release rate, and energy of the fire and could
have increased the fire's spread. (Doc. 91-1 at 191-93).
Coggins, Regional Maintenance Supervisor and later Regional
Manager for the apartment complex, testified that he and
several of Defendants' officers and/or employees
inspected the apartment complex prior to purchase in 2011.
(Doc. 77-16 at 14-15, 17). Mr. Coggins did not recall seeing
any cabinet damage during Defendants' pre-purchase
inspection of the property. (Doc. 77-16 at 47). He stated
that if he had seen any cabinets with damage, he would have
noted that fact. (Id.) Mr. Coggins testified that he
had never discussed the distance of the cabinet to the stove
with Defendants or anyone else. (Id. at 43, 48).
picture of an exemplar Lakes at Inverness apartment kitchen
with a design identical to the Gambrells', which
Plaintiff alleges shows cabinet charring from the adjacent
stove, was taken on July 15, 2013. (Doc. 95 at 11).
Plaintiff's expert David Smith opined that the scorch
marks next to the stove in the exemplar picture indicate the
stove was improperly installed, which poses a fire safety
hazard. (Doc. 95 at 15). Mr. Coggins testified that if a
cabinet had markings like those in the picture, it would be
cleaned, repaired, painted, or otherwise altered before a new
resident came into the apartment. (Doc. 77-16 at 40-43).
pre-purchase Enercon report indicates no dangerous condition
or signs of charring in any of the complex's kitchens.
(Docs. 128-3 through 128-7). The report contains a picture of
a kitchen that appears to be designed identically to the
Gambrells'; that picture shows that the wood cabinet
adjacent to the stove may have markings on it that seemingly
correspond to the burners on the range, but the report does
not note these markings. (Doc. 128-5 at 2). Mr. Coggins
testified that he did not remember seeing this picture in
evaluating the Enercon report but that it appeared to show
scorching on the wall next to the burners. (Doc. 77-16 at 44;
Doc. 77-19 at 106). The Enercon report noted that
“[t]he observed cabinets and counters are estimated to
be original from the time of construction with most appearing
in average to fair condition” and that “[a] few
kitchen base cabinets and counters are in poor ...