Sherri Lynn PITTMAN and John David Pittman, Jr.
HANGOUT IN GULF SHORES, LLC.
from Baldwin Circuit Court (CV-17-900638).
Johnston, Jr., Mobile; and Ronnie G. Penton and MaryAnna
Penton of The Penton Law Firm, Bogalusa, Louisiana, for
Richard B. Johnson and E. Barrett Hails of Phelps Dunbar LLP,
Mobile, for appellee.
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. 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).
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
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).
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
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.
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."
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."
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 lower elevation were located very
close to the step on the day of the accident.
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 ...