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Gambrell v. Wilkinson CGR Cahaba Lakes, LLC

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

March 31, 2017

GINA GAMBRELL, as the Administratrix of the Estate of Mark Wayne Gambrell, Plaintiff,



         This 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 part.

         The 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 (Doc. 137).

         On 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).

         The 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.

         I. Factual Background

         Mr. 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 kitchen design.

         The 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.

         A. Kitchen Design

         The 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).

         Some 92 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).

         Steve 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).

         A 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).

         The 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 ...

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