United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
G. CORNELIUS U.S. MAGISTRATE JUDGE
court has before it the September 29, 2017 motion for summary
judgment filed by Defendant Walgreen Co. (Doc. 16). Pursuant
to the court's initial order, the motion is fully briefed
and under submission as of November 3, 2017. (Doc. 9;
see Docs. 19-21). The motion is due to be granted in
part and denied in part for the following reasons.
STATEMENT OF MATERIAL FACTS
October 14, 2017, at about 4:15 or 4:30 in the afternoon,
Plaintiff and his wife, both age 76, walked towards the
Walgreens store located in Gardendale, Alabama, through the
parking lot outside the store. (Doc. 16-1 at 4, 7; Doc. 20-4
at 2). The couple approached the wheelchair ramp leading from
the parking lot to the sidewalk around the drug store. (Doc.
20-4 at 2). As they walked toward the ramp, Plaintiff tripped
and fell. (Doc. 16-1 at 8). At the time, he did not know what
caused him to fall. (Id.). Plaintiff fell onto his
face and hit the left side of his head. (Id. at 11).
Although Plaintiff fell next to a support beam pillar, he
denies he struck the pillar when he fell. (Id. at
9). Plaintiff contends he was unconscious for a moment.
(Id. at 12). He sustained bruises and scratches to
his body, as well as a deep gash over his left eye.
(Id. at 11, 17). The medical records show Plaintiff
suffered a traumatic small subarachnoid hemorrhage and a
subdermal hematoma. (Doc. 20-8 at 2).
next day, after Plaintiff was discharged from the hospital,
he and his wife returned to the parking lot to determine what
caused Plaintiff to fall. (Doc. 16-1 at 10). In the area
where Plaintiff fell, Plaintiff saw a small concrete pad,
lighter in color than the asphalt surrounding it. (Doc 20-1
at 2-4). On top of that concrete pad, there is a small change
in elevation where a circular device is located.
(Id.). The purpose of the device is unknown. (Doc.
16 at 5). Plaintiff concluded one of his feet must have
gotten caught on the “little lip” of the circular
device, causing him to fall. (Doc. 16-1 at 8, 10, 15-16).
testified there was nothing to block his view of the circular
device, “[o]ther than the fact that it was all covered
with a lot of black paint or grease or something.”
(Id. at 9). He further stated, “[i]t
wasn't clear to where it would be easily seen” and,
although the circular device was not level with the pavement,
it “appeared to be even or level with the surface of
the asphalt parking lot when [he] looked at it due to the
black paint or grease [or] other substance on
it.” (Id.; Doc. 20-4 at 4).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c), summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing there is a genuine
issue for trial. See Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). All reasonable doubts about the
facts and all justifiable inferences are resolved in favor of
the non-movant. See Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.
complaint alleges two claims against Walgreens under Alabama
law: negligence and wantonness. (Doc. 1-1 at 6-10). Defendant
contends summary judgment is proper as to both claims. The
court agrees with Defendant as to the wantonness claim but
disagrees as to the negligence claim for the following
Plaintiff's Negligence Claim
prevail on a claim for negligence under Alabama law, “a
plaintiff must establish that the defendant breached a duty
owed by the defendant to the plaintiff and that the breach
proximately caused injury or damage to the plaintiff.”
Kmart Corp. v. Bassett, 769 So.2d 282, 284 (Ala.
2000) (quoting Lowe's Home Centers, Inc. v.
Laxson, 655 So.2d 943, 945-46 (Ala. 1994)). The
liability of a premises owner turns on the classification
given to the injured party. Ex parte Mountain Top Indoor
Flea Market, Inc., 699 So.2d 158, 161 (Ala. 1997).
Because Plaintiff was a business invitee, Walgreens owed him
a duty to “exercise reasonable care in maintaining
[its] premises in a reasonably safe condition.”
Bishop v. South, 642 So.2d 442, 445 (Ala. 1994).
duty of a premises owner to an invitee “is limited to
hidden defects which are not known to the invitee and would
not be discovered by him in the exercise of ordinary
care.” Harvell v. Johnson, 598 So.2d 881, 883
(Ala. 1992). This duty requires a premises owner to
“warn of hidden defects and dangers that are known to
it, but that are unknown or hidden to the invitee.”
Raspilair v. Bruno's Food Stores, Inc., 514
So.2d 1022, 1024 (Ala. 1987). In other words, the duty is
limited to hidden defects; if a dangerous condition is open
and obvious so that the invitee should be aware of it through
the exercise of reasonable care, then the owner or occupier
of the premises has no duty to warn the invitee. Lilya v.
Greater Gulf State Fair, Inc.,855 So.2d 1049, 1054-55
(Ala. 2003). “A condition is ...