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Pittman v. Hangout In Gulf Shores, LLC

Alabama Court of Civil Appeals

August 23, 2019

Sherri Lynn Pittman and John David Pittman, Jr.
v.
Hangout in Gulf Shores, LLC

          Appeal from Baldwin Circuit Court (CV-17-900638)

          EDWARDS, JUDGE.

         In June 2017, Sherri Lynn Pittman and John David Pittman, Jr., filed a complaint in the Baldwin Circuit Court ("the trial court"), seeking damages resulting from the alleged negligence and wantonness of the Hangout in Gulf Shores, LLC ("the Hangout"). In their complaint, the Pittmans alleged that Sherri had fallen on a step on the premises owned and operated by the Hangout, which had resulted in injury to Sherri and the loss of Sherri's consortium to John.[1] The Hangout filed a motion for a summary judgment in August 2017, to which the Pittmans filed a response. After hearing oral arguments on the motion, the trial court entered a summary judgment in favor of the Hangout on all of the Pittmans' claims on October 4, 2018. The Pittmans filed a timely notice of appeal to our supreme court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

         The Pittmans' claims against the Hangout are based on the principles of premises liability. In its motion for a summary judgment, the Hangout conceded, for purposes of the motion, that Sherri was an invitee of the Hangout on the date of the accident. Thus, we will begin our analysis of the Pittmans' appeal by discussing the applicable duties of a premises owner, like the Hangout, to an invitee on its premises.

         As we have explained before, a premises owner owes an invitee "the duty to maintain its premises in a reasonably safe condition or, in the case of any hidden defect, to warn [an invitee] of the defect so that [the invitee can] avoid it by the use of ordinary care." Howard v. Andy's Store for Men, 757 So.2d 1208, 1210 (Ala. Civ. App. 2000) (citing Boudousquie v. Marriott Mgmt. Servs. Corp., 669 So.2d 998, 1000 (Ala. Civ. App. 1995)). A premises owner does not have a duty to warn an invitee "of any condition that was open and obvious, one that [the invitee is] aware of or should have been aware of through the use of reasonable care." Howard, 757 So.2d at 1210. "A condition is 'obvious' if the risk is apparent to, and of the kind that would be recognized by, a reasonable person in the position of the invitee." Id. (emphasis added).

         In its motion for a summary judgment, the Hangout contended that it was entitled to a summary judgment because, it argued, Sherri's accident had resulted from an open and obvious defect on its premises -- a step that, the Hangout contended, had been adequately marked with yellow paint. Because the Hangout did not contend that the step was not a dangerous condition upon its premises, we will not address that question. Instead, we will proceed to consider on appeal whether there exists a genuine issue of material fact regarding the open and obvious nature of the step upon which Sherri fell.

         According to the deposition excerpts and affidavits submitted in support of and in opposition to the motion for a summary judgment, Sherri; Sherri's daughter, Donna Altentaler; Donna's former husband, Robert McCain; and Donna's children and some of their friends were visiting Orange Beach and Gulf Shores in June 2015. On June 15, 2015, the group decided to visit the establishment operated by the Hangout, which they had never visited before. According to Sherri, as they made their way into the establishment, they climbed up some steps. Once inside the establishment, Sherri testified, they intended to find a place to sit and eat.

         Both Sherri and Donna testified that the establishment was very crowded. Donna testified that it was dark and "crowded enough to have to turn sideways to walk," and Sherri commented that they had had to walk one behind the other on their way through the crowd to find a table. Donna testified that she was leading the group and that she had stumbled on a "step down" that she had not seen; she said that she turned to warn Sherri but that Sherri had already begun falling. Sherri testified that she had not seen the "step down" and that, "[a]ll the sudden, I just fell. I did not see anything. You know, I thought it was a flat surface there. Little did I know. So I just fell. I don't know what happened. I did not ever think I would stop falling. It was horrible."

         Sherri explained that she had not been looking down as she walked. Instead, she testified:

"I was looking right behind my daughter. I mean, you couldn't go but one place because it was crowded. So I was walking behind her and just looking, you know, like you would normally -- you don't look down when you walk. I wasn't looking down, I was just looking forward to go sit at a table."

         According to Sherri, the tables and chairs were situated close together on the date of the accident. McCain recalled that the tables in the area of the establishment beyond the step were bar-height or high-top tables. He also testified that the high-top tables on the lover elevation were located very close to the step on the day of the accident.

         McCain stated in an affidavit that the step was painted yellow on the date of the accident. Donna testified in her deposition that she had not seen any yellow paint and said that, if there had been yellow paint on the step, it had been very faint. Sherri testified that she had not seen any yellow paint on the day of the accident; she also commented that the floor had been dark brown or almost black. Moshe Solomon, who was a maintenance supervisor for the Hangout at the time of the accident, testified that the step was painted yellow on that day.

         Both the Hangout and the Pittmans presented excerpts of deposition testimony from experts.[2] The Hangout supported its motion with an excerpt from the deposition testimony of Jason Legg, a consultant with a degree in architecture. Legg testified that, on the date he observed the step and based on a photograph he understood to have been taken after the accident, the step had been painted yellow and complied with something referred to in the question posed to him as "1024.11.3, tread contrasting marking stripe." However, the excerpt of Legg's deposition testimony also contained the following statement: "I didn't get into the human factor side of it. You know, there's definitely deficiencies there as it pertains to the code and then the known hazards of a single step that were apparent in the design and construction of this."

         The Pittmans presented an excerpt from the deposition testimony of Dr. Kevin A. Rider. The excerpt of Dr. Rider's deposition included testimony indicating that, in his opinion, the step in question was a dangerous condition, regardless of whether it was painted yellow on the date of the accident. According to Dr. Rider, he had formed his opinion based upon "[w]ell established research on pedestrian gaits, patterns, visual scanning, and pedestrian safety," his view of the area, and information gleaned from the deposition testimony of Sherri, Donna, and Legg. He noted that "someone who is walking from one portion [of a building] to another, believing the ground is flat and stable, ... expect[s] that it will remain flat and stable." Furthermore, he stated that

"[t]he research is very clear that people do not look at their feet while walking unless there's a reason to do so .... It is unreasonable to expect people to look at their feet while walking. Quite so, ... they would walk into something because they ...

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