United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER I. INTRODUCTION
STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE
January 24, 2018, Plaintiff filed a Complaint (Doc. 1-1) in
state court bringing claims of negligence, wantonness, and
negligent/wanton supervision, hiring, and retention against
Defendant. Id. at 4-5. Plaintiff's claims arise
from an incident at one of Defendant's convenience stores
where an unidentified individual installed a hidden camera in
the women's restroom and Plaintiff discovered the camera
while using that restroom. Id. at 3-4. Plaintiff
argues that Defendants breached their duty to her to maintain
the premises in a reasonably safe condition and to protect
her from harm. Id. at 4. On August 7, 2017,
Defendant removed (Doc. 1) Plaintiff's Complaint to this
Court based on diversity jurisdiction. See 28 U.S.C.
§§ 1332, 1446. The parties have consented (Docs. 9,
10) to jurisdiction by a United States Magistrate Judge.
March 4, 2019, Defendant filed a Motion for Summary Judgment.
(Doc. 26). Plaintiff filed a Response (Doc. 33) and Defendant
Replied (Doc. 34) arguing that Plaintiff failed to show that
Defendant owed Plaintiff a duty to protect her from the
criminal acts of a third-party as required by Alabama
negligence law. Id. at 10; see Saccuzzo v.
Krystal Co., 646 So.2d 595, 596 (Ala. 1994). In her
Response (Doc. 33) to Defendant's Motion, Plaintiff
argues that, because she had a “special
relationship” with Defendant, she falls within an
exception to the general rule that a person has no duty to
protect another from criminal acts of a third person.
Id. at 8-9; (citing Saccuzzo, 646 So.2d at
596). Specifically, Plaintiff argues that she had a special
relationship with Defendant because she was in a
“unique and vulnerable relationship” with
Defendant when she used its bathroom and because Defendant
had “notice of the propensity of crime to happen in the
area. . . .” Id. In its Reply (Doc. 34) to
Plaintiff's Response, Defendant argues that it did not
possess actual or constructive notice of any danger to
Plaintiff because the particular criminal activity that
formed the basis of Plaintiff's Complaint was
unforeseeable. Id. at 5 (citing New Addition
Club, Inc. v. Vaughn, 903 So.2d 68, 76 (Ala. 2004)). For
the reasons that follow, the undersigned concludes that
Defendant's Motion for Summary Judgment is due to be
February 3, 2017, Plaintiff and her family were traveling
from Birmingham, Alabama to Dothan, Alabama. During the trip,
Plaintiff began to feel sick, so the family stopped at
Defendant's store on Vaughn Road in Montgomery, Alabama
in order for Plaintiff to use Defendant's restroom. (Doc.
33-1) at 27:1-14. When Plaintiff entered the store, she
proceeded directly to the women's restroom. Id.
at 29:7-9. While Plaintiff was using the toilet in the
women's restroom, she looked towards the sink and noticed
something sticking up from a wrap on the plumbing underneath
the sink. Id. at 27:7-15. Plaintiff reached out and
grabbed the object, which she immediately recognized as a
camera. Id. at 29:16-21. Plaintiff tore the lens off
of the camera, threw all pieces of the device in the trash
can, and exited the restroom. Id. at 29:18-21.
reported her discovery to the employee on duty, who then
called the store manager and notified her of the situation.
Id. at 30:6-19; (Doc. 33-3) at 9:9-12. The store
manager was off shift at the time of the incident, but
returned to the store after receiving the call. (Doc. 33-3)
at 44:4-16; (Doc. 33-4) at ¶¶ 4-6. The store
manager then called her supervisor and the police. (Doc.
33-4) at ¶¶ 8-9. A subsequent investigation
revealed surveillance footage of an African-American male
entering the women's restroom about an hour prior to
Plaintiff using the restroom. See (Doc. 33) at 5;
(Doc. 27) at 7-8.
to this incident, the only recent, known criminal activity
that occurred inside the subject store involved a non-violent
theft from the store's office in December of 2015. (Doc.
27-3) at 25:11-18; (Doc. 27-4) at ¶19; (Doc. 27-5) at
86:20-87:4. Additionally, prior to the subject incident,
there was a shooting on nearby Vaughn Road, and a stray
bullet from that shooting struck the store's front
windows. (Doc. 27-3) at 25:11-26:1.
STANDARD OF REVIEW
Rule of Civil Procedure 56 requires that summary judgment be
granted “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).
“The moving party bears ‘the initial
responsibility of informing the . . . court of the basis for
its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material
fact.'” Hickson Corp. v. N. Crossarm Co.,
357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted)). Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go
beyond the pleadings and present affirmative evidence to show
that a genuine issue of material fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986). The applicable substantive law identifies which facts
are material. Id. at 248. A fact is not material if
a dispute over that fact will not affect the outcome of the
suit under the governing law. Id. An issue is
genuine when the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Id.
resolving a motion for summary judgment, the court must view
all evidence and draw all reasonable inferences in the light
most favorable to the non-moving party. Patton v. Triad
Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002).
But, the court is bound only to draw those inferences that
are reasonable. “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). “If the
evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once
the moving party has met its burden under Rule 56(a), the
nonmoving party “must do more than simply show there is
some metaphysical doubt as to the material facts”).
asserts claims of negligence and wantonness against Defendant
and avers that Defendant breached its duty to protect her
from harm under three alternative theories of liability.
See generally (Doc. 33).
Plaintiff argues that Defendant had a duty to protect her
from the criminal acts of third parties based on her
“special relationship” with Defendant.
Id. at 8-9. Citing an exception to “[t]he
general rule . . . that ‘[i]t is difficult to impose
liability on one person for an intentional criminal act
committed by a third person, ” Plaintiff asserts that a
special relationship existed because: 1) she was in a
“vulnerable” state; and 2) Defendant had
“notice of the propensity of ...