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Bonner v. Trustmark Corp.

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

August 3, 2017

MICHAEL BONNER,, Plaintiffs,
v.
TRUSTMARK CORP., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         Pending 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 GRANTED.

         Also 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 moot.

         I. JURISDICTION

         Plaintiffs 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.

         II. SUMMARY JUDGMENT STANDARD OF REVIEW

         “The 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).

         Summary 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)).

         “[A]t 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).

         III. BACKGROUND AND FACTS[1]

         The 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.

         On 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.

         The 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 ...


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