United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
A. BAKER UNITED STATES MAGISTRATE JUDGE
Michael Bonner, claims serious personal injuries resulting
from being shot and robbed by a masked assailant while Bonner
was making a night deposit at the Trustmark Bank located on
Thomason Drive in Opelika, Alabama. The Trustmark Bank is
owned and operated by Defendants, Trustmark Corporation and
Trustmark National Bank (collectively “Trustmark”
or “Defendants”). Bonner and his wife, Angela
Bonner, sued Trustmark for negligent failure to warn,
negligent failure to use adequate means of protection, gross
negligence, recklessness, and wantonness. (Doc. 1).
before the court is Defendants' Motion for Summary
Judgment (Doc. 20), Plaintiffs' response in opposition
(Doc. 27), and Defendants' reply (Doc. 30). The matters
have been fully briefed, and the court heard oral argument on
April 20, 2017. For the reasons stated herein,
Defendants' motion for summary judgment (Doc. 20) is
pending is Defendants' motion to strike the affidavit of
Plaintiffs' expert, Howard B. Wood, (Doc. 29),
Plaintiffs' response in opposition (Doc. 32), and
Defendants' reply (Doc. 36). That motion is DENIED as
invoke the subject-matter jurisdiction of this court based
upon diversity of citizenship and an amount in controversy in
excess of seventy-five thousand dollars. 28 U.S.C. §
1332(a). The parties do not contest personal jurisdiction or
venue, and the court finds sufficient information of record
to support both. See 28 U.S.C. § 1391. The parties
consented to Magistrate Judge Jurisdiction for all matters
pursuant to Rule 73, Fed. R. Civ. P., and 28 U.S.C. §
636(c), (Docs. 33, 34) and an order was entered reassigning
the case to the undersigned as the presiding judge. (Doc.
35). Defendants have moved for summary judgment, arguing that
Alabama law does not recognize a cause of action against a
landowner under the circumstances of Mr. Bonner's attack.
SUMMARY JUDGMENT STANDARD OF REVIEW
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In ruling on a motion for summary
judgment, the Court construes the facts and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). However, when faced with
a “properly supported motion for summary judgment, [the
nonmoving party] must come forward with specific factual
evidence, presenting more than mere allegations.”
Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999
(11th Cir. 1997).
judgment is mandated “against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“Summary judgment may be granted if the non-moving
party's evidence is merely colorable or is not
significantly probative.” Sawyer v. Southwest
Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-51 (1986)).
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
“Essentially, the inquiry is ‘whether the
evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.'”
Sawyer, 243 F.Supp.2d at 1263 (quoting
Anderson, 477 U.S. at 251- 52).
BACKGROUND AND FACTS
matters set forth here are either undisputed or stated, as
they must be for purposes of the present motion, in the light
most favorable to Plaintiffs, Michael and Angela Bonner.
August 23, 2013, at approximately 4:45 a.m., Michael Bonner
was attempting to make a deposit at Trustmark's Opelika
branch after-hours deposit box when he was shot once in the
abdomen at close range and robbed by an unknown assailant.
The assailant's bullet remains in Mr. Bonner's body.
On the date of the incident, Mr. Bonner was making a night
deposit on behalf of his employer, JTM Corporation d/b/a
Piggly Wiggly, for whom he was the manager of the Opelika
branch store. As a manager of the Piggly Wiggly store
responsible for both making bank deposits and supervising the
store, Mr. Bonner found it necessary to use Trustmark's
after-hours deposit box to avoid teller service delays of 45
minutes to an hour during Trustmark's ordinary business
hours. Mr. Bonner would ordinarily be accompanied when making
early morning deposits by another employee, typically Piggly
Wiggly's deli manager. On the morning of the 23rd,
however, the deli manager was preoccupied with issues in the
deli department and was unavailable. Mr. Bonner therefore
drove alone to the Trustmark Bank to complete the deposit
before the Piggly Wiggly store opened at 6:00 a.m.
Trustmark Opelika branch bank features a single after-hours
deposit box located on the bank's front wall at the
northwest corner of the building. The after-hours deposit is
provided for the convenience of customers given that
Trustmark banks generally close between 4:30 p.m. and 5:00
p.m. The deposit box is not aligned with the ATM
drive-through lanes and is a walk-up box that can only be
accessed on foot. There is shrubbery immediately in front of
the after-hours deposit box, on the other side of which is a
flood light. Facing the after-hours deposit, ATM
drive-through lanes extend to the left, beyond which is the
bank's property line and a field not owned by Trustmark.
The bank is bounded by Thomason Drive on the front, a
commercial drive to the right, and two undeveloped, open
fields not owned or maintained by Trustmark to the ...