United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
G. CORNELIUS, U.S. MAGISTRATE JUDGE.
a premises liability case brought by the plaintiff, Stacy
Dodd, against GlassRatner Management & Realty Advisors,
LLC, the owner of an apartment building where Dodd lived.
(Doc. 1-2). This matter was removed here from the Circuit
Court of Jefferson County on the basis of diversity
jurisdiction. (Doc. 1). The parties have consented to
magistrate judge jurisdiction pursuant to 28 U.S.C. §
636(c). (Doc. 13). Presently pending is GlassRatner's
motion for summary judgment. (Doc. 23). The motion is fully
briefed and ripe for adjudication. (Docs. 24-27). For the
reasons that follow, the motion is due to be denied.
events giving rise to this lawsuit occurred on July 4, 2012,
when Dodd slipped and fell down stairs at her apartment
building. (Doc. 25 at 5). Dodd's apartment was not on the
ground floor; the stairs at issue led from the exterior of
her apartment to the parking lot. (Id. at 5-6).
Although not described in the briefs, photos of the stairway
reveal it is located under a covered breezeway joining two
buildings. (See Doc. 23-6). The weather was sunny.
(Doc. 25 at 6). Dodd was leaving her apartment on her way to
her car, and as she placed her left foot on the tread of the
top stair, "it just went out from under" her.
(Id.). She slid down the stairs on her buttocks,
coming to a stop at the second or third stop from the bottom.
did not notice any water on the stairs prior to her fall, and
she did not look at the top stair prior to falling. (Doc. 24
at 5-6). Dodd realized the stairs were wet because, by the
time she came to a stop, her backside and clothes were wet.
(Id.; Doc. 25 at 6). As Dodd looked around, she
noticed water on all the stairs she could see. (Doc. 25 at 6;
see Doc. 24 at 5). Dodd then saw a man using a
pressure washer in the breezeway. (Doc. 24 at 4). Dodd could
not see the top of the stairs from the ground-level, and she
did not climb the staircase to see if the top stair tread was
wet. (Id. at 6). When Dodd returned to the apartment
approximately thirty minutes later to take photographs of the
area, the stairs were dry, but the concrete pad at the bottom
of the stairs was damp. (Id. at 4-5).
SUMMARY JUDGMENT STANDARD
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). To demonstrate there is a genuine dispute
as to a material fact that precludes summary judgment, a
party opposing a motion for summary judgment must cite
"to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials."
Fed.R.Civ.P. 56(c)(1)(A). When considering a summary judgment
motion, the court must view the evidence in the record in the
light most favorable to the non-moving party. Hill v.
Wal-Mart Stores, Inc., 510 F.App'x 810, 813 (11th
Cir. 2013). "The court need consider only the cited
materials, but it may consider other materials in the
record." Fed.R.Civ.P. 56(c)(3).
Alabama law, a tenant in an apartment complex shares the same
legal rights as an invitee with respect to the common areas
of the complex. Shelton v. Boston Fin., Inc., 638
So.2d 824, 825 (Ala. 1994). "A landowner owes an invitee
the legal duty 'to exercise reasonable care and diligence
to keep the premises in a reasonably safe condition for the
uses contemplated by the invitation, and to warn the invitee
of known dangers, or dangers that ought to have been known,
and of which the invitee was ignorant.'"
Id. (quoting Lamson & Sessions Bolt Co. v.
McCarty, 173 So. 388 (1937)). To recover in a
premises-liability action based on a fall, a plaintiff must
prove: (1) the fall was caused by a defect or instrumentality
located on the defendant's premises; (2) the fall was the
result of the defendant's negligence, and (3) that the
defendant "had or should have had notice of the defect
or instrumentality before the accident." Logan v.
Winn-Dixie Atlanta, Inc., 594 So.2d 83, 84 (Ala. 1992).
A premises owner "is not an insurer of the safety of his
invitees and res ipsa loquitur is not
applicable." Ex parte Mountain Top Indoor Flea
Market, Inc., 699 So.2d 158, 161 (Ala. 1997).
contends it is entitled to summary judgment because: (1)
Dodd's testimony that her fall was caused by the wet
stairs is impermissibly speculative; (2) any water on the top
step was an open and obvious hazard; and (3) GlassRatner had
no duty to warn Dodd about any water on the stairs because it
did not have superior knowledge of the condition. (Doc. 24 at
Speculation Regarding Wet Stairs
initial matter, a wet surface can constitute a dangerous
condition giving rise to liability for an invitee's
slip-and-fall injury. See Terrell v. Warehouse
Grocery, 364 So.2d 675, 676-77 (Ala. 1978). However, a
plaintiff traveling on premises liability theories cannot
speculate as to the cause of an accident. Brookwood Med.
Ctr. v. Lindstrom, 763 So.2d 951, 956 (Ala. 2000). When
evidence gives rise to equally plausible inferences regarding
the existence of a dangerous condition, the evidence is
impermissibly speculative. Turner v. Azalea Box Co.,
508 So.2d 253, 254 (Ala. 1987).
argues Dodd's testimony that water on the top stair
caused her to fall is impermissibly speculative. This
argument is based on Dodd's testimony that she never saw
water on the top stair either before or after the fall.
Accordingly, because res ipsa loquitor does not
apply, GlassRatner contends Dodd has failed to establish a
genuine issue of material fact as to whether water on the
stairs caused her to fall. (Doc. 24 at 10-16).
GlassRatner's analysis primarily focuses on Manning
v. Tractor Supply Co., No. 14-0366, 2015 WL 1578158
(S.D. Ala. Apr. 9, 2015), and Shanklin v. New Pilgrim
Towers, L.P., 58 So.3d 1251 (Ala. Civ. App. 2010).
plaintiff in Manning was an invitee injured when she
was cut by something on a metal rack inside the
defendant's store. However, the plaintiff did not provide
any details about the mechanism of her injury, the shelf, or
any alleged defect. 2015 WL 1578158 at *4 ("Manning does
not remember anything about the shelf other than it had wire
on it, and she was cut."). Accordingly, the district
court granted the defendant's motion for summary judgment
because the allegation of negligence rested "entirely on