Etheridge v. Belk Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOWANNA ETHERIDGE, )

)

Plaintiff, )

)

v. ) Case No. 2:21-cv-00413-NAD

)

BELK, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

For the reasons stated below and on the record in the December 20, 2022

motion hearing, the court GRANTS IN PART and DENIES IN PART Defendant

Belk, Inc.’s summary judgment motion.

INTRODUCTION

Plaintiff JoWanna Etheridge filed a complaint alleging that she was injured

when she hit her hand on a bar that protruded from a clothing rack while visiting a

store owned and operated by Defendant Belk. Plaintiff Etheridge alleges claims

against Belk for negligence and wantonness.

On this summary judgment motion (Doc. 21), Belk argues that the placement

of the clothing rack did not create an unreasonably dangerous condition, that any

danger was open and obvious, and that the evidence is insufficient to support a

wantonness claim. Based on the record evidence and controlling law, the court

concludes that there are triable fact issues for a jury on Etheridge’s negligence claim,

but that there is no genuine issue of material fact on her wantonness claim.

BACKGROUND

A. Factual background

On September 5, 2019, Plaintiff Etheridge was shopping at a Belk store in

Birmingham, Alabama. Doc. 25 at 3; Doc. 27 at 1. For purposes of this summary

judgment motion, Belk does not dispute that Etheridge “was a business invitee when

she fell.” Doc. 22 at 10; see Doc. 25 at 7.

While shopping at the Belk store, Etheridge asked a sales associate for

directions to the restroom, and then walked toward the restroom. Doc. 25 at 3; Doc.

27 at 2. Etheridge was walking on the tiled walkway through the children’s clothing

department, toward the restroom, when she hit her hand against a bar that protruded

from a clothing rack. Doc. 25 at 3; Doc. 27 at 2. Etheridge testified that she did

not see the protruding bar before her hand hit it, and that the bar was positioned at

the height that “your arm would naturally hang when walking.” Doc. 25 at 3; Doc.

27 at 2. According to Etheridge, she fell and sustained physical injuries, including

injuries “to her right hand, right shoulder, neck, and knees,” as well as “right rotator

cuff surgery.” Doc. 22 at 3; see Doc. 26-1 at 25–26.

B. Procedural background

On December 21, 2020, Etheridge filed her complaint in Alabama state court.

Doc. 1-1. On March 19, 2021, Belk removed this action pursuant to 28 U.S.C.

§ 1332 based on diversity jurisdiction. Doc. 1. The parties consented to

magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Federal Rule of

Civil Procedure 73. Doc. 7.

On September 23, 2022, after the close of discovery, Belk filed this summary

judgment motion. Doc. 21. The motion has been fully briefed. See Docs. 22, 23,

24, 25, 26, 27. On December 20, 2022, the court held a motion hearing. See Doc.

28; Minute Entry (Entered: 12/20/2022).

C. Legal background

Under Alabama law, a plaintiff who asserts a negligence claim related to

premises liability must establish the following elements: “duty, breach of duty,

cause in fact, proximate or legal cause, and damages.” Ex parte Harold L. Martin

Distrib. Co., 769 So. 2d 313, 314 (Ala. 2000) (quotation marks omitted).1 “[T]he

duty owed an injured person in a premises-liability case depends on the legal status

of the person when the injury occurred, i.e., whether the person injured was a

trespasser, a licensee, or an invitee.” Unger v. Wal-Mart Stores, East L.P., 279 So.

1 See, e.g., Lilya v. Greater Gulf State Fair, Inc., 855 So. 2d 1049, 1054 (Ala. 2003)

(applying premises liability principles to the duty element of the plaintiff’s

negligence claim).

3d 546 (Ala. 2018) (citation omitted).

As noted above, it is undisputed that Etheridge was an invitee at the Belk

store. A property owner “owes an invitee the duty to keep the premises in a

reasonably safe condition and, if the premises are unsafe, to warn of hidden defects

and dangers that are known to the landowner but that are hidden or unknown to the

invitee.” Galaxy Cable, Inc. v. Davis, 58 So. 3d 93, 98 (Ala. 2010); see also Jones

Food Co. v. Shipman, 981 So. 2d 355, 361 (Ala. 2006) (“The duty owed by the

invitor to an invitee is to exercise ordinary and reasonable care to keep the premises

in a reasonably safe condition.” (citing Winn-Dixie v. Godwin, 349 So. 2d 37 (Ala.

1977))).

Generally speaking, if the defendant owed the plaintiff a duty, “then the

questions of breach of that duty, proximate causation, and damages are normally

resolved by the jury.” Jones Food, 981 So. 2d at 361.

However, “[t]he owner of a premises has no duty to warn an invitee of open

and obvious [dangers] which the invitee is aware of, or should be aware of, in the

exercise of reasonable care on the invitee’s part.” Dolgencorp, Inc. v. Taylor, 28

So. 3d 737, 742 (Ala. 2009) (quotation marks omitted). “‘A condition is “open and

obvious” when it is known to the [plaintiff] or should have been observed by the

plaintiff in the exercise of reasonable care.’” Daniels v. Wiley, 314 So. 3d 1213,

1225 (Ala. 2020) (quoting Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1194

(Ala. 2002)).

Whether an alleged dangerous condition was open and obvious also is

normally a question for the jury. See, e.g., Cuevas v. W.E. Walker, Inc., 565 So. 2d

176, 178 (Ala. 1990) (stating that “questions of . . . whether the plaintiff should have

been aware of the defect[] are normally questions for the jury” (quoting Bogue v.

R. & M. Grocery, 553 So. 2d 545 (Ala. 1989))); Marquis v. Marquis, 480 So. 2d

1213, 1215–16 (Ala. 1985) (reasoning that the Alabama Supreme Court has “long

been committed to the proposition that the plaintiff’s appreciation of the danger is,

almost always, a question of fact for the determination of the jury” (quoting

Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 607 (1970))).

Separately, to prove wantonness, a plaintiff must show both the defendant’s

“conscious doing of some act or the omission of some duty while knowing of the

existing conditions,” and that the defendant was “conscious that, from doing or

omitting to do an act, injury will likely or probably result.” Ex parte Essary, 992

So. 2d 5, 9 (Ala. 2007) (emphasis added); see Bozeman v. Central Bank of the South,

646 So. 2d 601, 603 (Ala. 1994); see also Ala. Code § 6-11-20(b)(3) (defining

wantonness as “[c]onduct which is carried on with a reckless and conscious

disregard of the rights or safety of others”).

LEGAL STANDARD

Summary judgment is appropriate when the movant establishes that “there is

no genuine dispute as to any material fact,” and that the movant “is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). A material fact is one that might affect the outcome of

the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a

dispute about a material fact is “genuine,” if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.

To avoid summary judgment, the nonmovant must go beyond the allegations

to offer specific facts creating a genuine dispute for trial. Celotex, 477 U.S. at 324–

25. The court’s responsibility is not to “weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249. The court must construe all evidence and draw all reasonable

inferences in favor of the nonmovant. Centurion Air Cargo, Inc. v. UPS Co., 420

F.3d 1146, 1149 (11th Cir. 2005).

Where there is no genuine dispute of material fact for trial, the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c).

Finally, “the plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “In such a situation, there can be ‘no genuine issue as to

any material fact,’ since a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.” Id.

at 322–23; accord, e.g., Edwards v. National Vision, Inc., 568 F. App’x 854, 859

(11th Cir. 2014); Brown v. Alabama DOT, 597 F.3d 1160, 1179 (11th Cir. 2010).

DISCUSSION

There are triable issues of fact for a jury on Plaintiff Etheridge’s negligence

claim, but there is no genuine issue of material fact on her wantonness claim.

I. On Etheridge’s negligence claim, there are triable issues of fact for a jury.

Belk’s summary judgment motion is denied on Etheridge’s negligence claim

because there are triable issues of fact for a jury. As explained above, there are four

elements to Etheridge’s Alabama law negligence claim: duty, breach, causation,

and damages. See Ex parte Harold L. Martin Distrib. Co., 769 So. 2d at 314.

For purposes of this summary judgment motion only, there is no issue

regarding the duty, causation, or damages elements of Etheridge’s negligence claim.

See, e.g., Doc. 22 at 2 n.1, 8.

In addition, Belk acknowledges that under Alabama law “a premises owner

has constructive notice of ‘defects’ that are part of the premises, such as display

racks.” Doc. 27 at 11 n.1 (citing Winn-Dixie Montgomery, Inc. v. Weeks, 504 So.

2d 1210 (Ala. 1987)).

Consequently, the questions on this motion are (1) whether the placement of

the clothing rack created an unreasonably dangerous condition, and (2) if so, whether

that alleged dangerous condition was open and obvious. Based on the record facts

and applicable law, those questions will be for a jury.

A. A reasonable jury could find that the placement of the clothing rack

created an unreasonably dangerous condition.

A reasonable jury could find that the placement of the clothing rack—and the

protruding bar—created an unreasonably dangerous condition in the Belk store. As

explained above, because it is undisputed that Etheridge was an invitee when she

visited the store, Belk had the duty “to exercise ordinary and reasonable care to keep

the premises in a reasonably safe condition.” Jones Food, 981 So. 2d at 361. And,

the question whether a property owner maintained its premises in a reasonably safe

condition is normally a question for a jury. See id.; Galaxy Cable, 58 So. 3d at 98.

Construing the evidence and all reasonable inferences in Etheridge’s favor

(see Centurion Air Cargo, 420 F.3d at 1149), there is a triable issue about whether

the placement of the clothing rack and the protruding bar created an unreasonably

dangerous condition.

As noted above, Etheridge was at the Belk store, walking on the tiled walkway

through the children’s clothing department toward the restroom, when she hit her

hand against a bar that protruded from a clothing rack into the tiled walkway. Doc.

25 at 3; Doc. 27 at 2. Belk’s corporate representative explained at his deposition

that some Belk stores have a “general layout” of “ceramic tile walkways and

carpeted areas to display clothing.” Doc. 26-3 at 8. The corporate representative

also acknowledged that customers typically walk on these tiled walkways (or aisles),

and described them as the “major highway going around the store.” Doc. 26-3 at 9.

It is undisputed on this motion that the relevant clothing rack had a bar that

was protruding into the tiled walkway, and other bars that were not protruding into

the walkway. Doc. 25 at 4; Doc. 27 at 4–5. Etheridge testified that, while the

relevant bar did not protrude one foot into the walkway, it was protruding about three

inches further than the other (non-protruding) bars. Doc. 26-1 at 14; see also Doc.

26-1 at 13 (“The top arm and the other bars were even with the carpet. That one in

particular sat out in the aisle.”). She also testified that the bar “looked like someone

may have put the wrong piece on the rack.” Doc. 26-1 at 14. Etheridge testified

that the feet of the relevant clothing rack were “pulled to the edge” of the walkway,

“where the carpet meets the tile,” while “the other [clothing racks] were pulled

back.” Doc. 26-1 at 15. Etheridge testified that she hit her hand on the clothing

rack because it was protruding too far, and “it wasn’t in the right place.” Doc. 26-

1 at 15.

It also is undisputed that the surrounding area was “crowded,” and that

Etheridge had to maneuver around a clothing rack placed in the middle of the tiled

walkway (a “Z-rack”) while walking toward the restroom. Doc. 25 at 4–5; Doc. 27

at 4. Etheridge testified that she had to pass to the right of the Z-rack in the middle

of the walkway, and had just maneuvered around that Z-rack when she hit her hand.

Doc. 26-1 at 11.

On the date of the relevant incident, Carol Proctor was working at the Belk

store as a sales manager in the cosmetics and fragrance department. Doc. 26-2 at

5. Proctor testified that temporary clothing racks in the middle of the tiled

walkways (Z-racks), like the one around which Etheridge had to maneuver, decrease

the amount of available space for a customer to use when walking on the tiled

walkway. Doc. 26-2 at 12, 18–19; see Doc. 25 at 5. Belk’s corporate

representative agreed that a Z-rack in the middle of a tiled walkway “could take a

six-foot wide aisle and take away like two feet.” Doc. 26-3 at 12.

Furthermore, when asked whether a bar “sticking out into the aisle” would be

a “problem,” Proctor testified that “it would depend on the amount of space.” Doc.

26-2 at 19. She testified that, “[i]f it stuck out two feet, it would be too far.” Doc.

26-2 at 19. When asked whether it would be “too far” if the bar “stuck out one

foot,” Proctor testified that “[i]t depends on the aisle.” Doc. 26-2 at 19. And, when

asked “if there’s a clothing rack in the middle and a bar sticking out six inches or so,

is that enough space for a customer to comfortably walk in the aisle,” Proctor

answered, “It would depend on the size of the rack that’s in the middle of the aisle

. . . .” Doc. 26-2 at 19.

All of this evidence is consistent with the Alabama Supreme Court’s

instruction that questions of breach are usually for a jury. See, e.g., Jones Food,

981 So. 2d at 361.

Certainly, it does not appear that the evidence would support a jury finding

that any placement of the relevant clothing rack necessarily would have been

negligent (i.e., without more). But the court must construe the evidence and

reasonable inferences in Etheridge’s favor. And the record evidence is sufficient

for a reasonable jury to find an unreasonably dangerous condition based on Belk’s

placement of the clothing rack, in conjunction with the bar protruding into the tiled

walkway, and the nearby placement of the Z-rack in the middle of the walkway,

among other things. See, e.g., Wal-Mart Stores v. McClinton, 631 So. 2d 232, 234

(Ala. 1993) (holding that the evidence was sufficient to support the finding on the

plaintiff’s negligence claim that the property owner “created a hazardous condition

that caused the plaintiff’s fall” by “displaying the protruding gun cabinet with its

easily detached molding”); Mims v. Jack’s Rest., 565 So. 2d 609, 611 (Ala. 1990)

(reversing trial court order granting summary judgment in favor of the defendant

because “a defective threshold or a cart or a display rack is a fixture that requires

ordinary and reasonable maintenance in order to provide safe premises for the store’s

customers,” and because the question whether the fixture created an unreasonably

dangerous condition was for the jury); Winn-Dixie Montgomery, 504 So. 2d at 1211

(similar) (“The evidence in this case was susceptible of several inferences.”);

Schrule v. American Multi-Cinema, Inc., 2020 U.S. Dist. LEXIS 256714, at *8 (N.D.

Ala. Sept. 14, 2020) (denying the defendant’s summary judgment motion where the

plaintiff’s deposition testimony about an alleged dangerous condition “would allow

a reasonable juror to go either way”); Blankenship v. Baker Foods, Inc., 2018 U.S.

Dist. LEXIS 215405, at *7 (N.D. Ala. Dec. 21, 2018) (denying the defendant’s

summary judgment motion in part because the plaintiff “provides some evidence

from which a jury could conclude that the [alleged hazard] created a dangerous

condition” (emphasis in original)).

On the other hand, a jury reasonably could find that the placement of the

clothing rack and the protruding bar did not create an unreasonably dangerous

condition. But this is not a case where Etheridge has identified no evidence at all

based on which a jury reasonably could find breach, or where Etheridge has done

nothing more than speculate about the cause of her injuries. See, e.g., Edwards v.

Hammond, 510 So. 2d 234, 236 (Ala. 1987) (“Because there is a complete absence

of evidence tending to establish a breach of any duty owed the plaintiff by the

defendant, the directed verdict was proper.”); Manning v. Tractor Supply Co., 2015

U.S. Dist. LEXIS 46370, at *1 (S.D. Ala. April 9, 2015) (“A plaintiff’s speculation

about the cause of an injury is insufficient to overcome summary judgment.”).

B. A reasonable jury could find that the alleged dangerous condition

created by the placement of the clothing rack was not open and

obvious.

A reasonable jury could find that the alleged dangerous condition created by

the placement of the clothing rack—and the protruding bar—was not open and

obvious. As explained above, in determining whether an alleged dangerous

condition was open and obvious, the question is whether the alleged hazard was

“apparent to, and would be recognized by, a reasonable person.” Hines v. Hardy,

567 So. 2d 1283, 1284 (Ala. 1990). And (again), that question is normally for a

jury. Cuevas, 565 So. 2d at 178; Marquis, 480 So. 2d at 1215–16.

As explained above, Etheridge was walking on the tiled walkway through the

children’s clothing department and looking forward toward the restroom, when she

hit her hand against the bar protruding from the clothing rack. Doc. 25 at 3; Doc.

27 at 2. Etheridge testified that the feet of the relevant clothing rack were “pulled

to the edge” of the walkway, “where the carpet meets the tile,” while “the other

[clothing racks] were pulled back.” Doc. 26-1 at 15.

Etheridge testified that she did not see the protruding bar before her hand hit

it, and that the bar was positioned at the height that “your arm would naturally hang

when walking.” Doc. 25 at 3; Doc. 27 at 2. She also testified that the area was

“crowded,” and that she had maneuvered around a nearby Z-rack in the middle of

the tiled walkway just before her hand hit the protruding bar. Doc. 25 at 4–5; Doc.

26-1 at 11.

Again, construing the evidence and all reasonable inferences in Etheridge’s

favor, there is a triable issue about whether the alleged dangerous condition was

open and obvious. See, e.g., McClinton, 631 So. 2d at 235 (“While it is evident that

[the plaintiff] saw the displayed cabinet, it is not evident that he knew, or should

have known, or that he appreciated, the danger caused by the fact that the cabinet

and its molding protruded into the aisle. The question whether this danger was open

and obvious was properly presented to the jury.”); Dolgencorp, 28 So. 3d at 748

(Cobb, C.J., dissenting) (“reasonable persons could differ as to whether the boxes

were an open and obvious hazard,” where the plaintiff was “focused on her shopping

and was looking for the fabric softener on the shelf instead of focusing on the floor

of the shopping aisle”); Williams v. Bruno’s, Inc., 632 So. 2d 19, 22 (Ala. 1993)

(reversing trial court order granting summary judgment in favor of the defendant

based in part on the plaintiff’s testimony that he was focusing his attention elsewhere

and did not see the alleged hazard until after he fell).

To be sure, a jury also reasonably could find that the alleged dangerous

condition posed by the placement of the clothing rack and the protruding bar was

visible, in plain view, and open and obvious. But, construed in her favor, the

evidence shows that Etheridge was unaware of the alleged hazard. See Doc. 26-1

at 13 (“I didn’t see it.”). The evidence also is sufficient to support a reasonable

inference that Etheridge was “exercise[ing] . . . reasonable care” (Dolgencorp, 28

So. 3d at 742), and that the hypothetical reasonable person—exercising hypothetical

reasonable care—likewise would have been unaware of the alleged hazard. See,

e.g., Doc. 26-1 at 13 (“Q. If you had been looking at the rack that you hit, the arm

that was sticking out, would you have been able to see it? A. I doubt it.”);

Dolgencorp, 28 So. 3d at 745 (ruling that the plaintiff’s negligence claim failed as a

matter of law because the “condition of the premises was open and obvious for all

to see,” and because it “[wa]s undisputed that [the plaintiff] had noticed and

maneuvered around several cases of merchandise in the aisles before her fall”);

Couch v. Von Maur Stores, Inc., 2021 U.S. Dist. LEXIS 179846, at *8–9 (N.D. Ala.

Sept. 21, 2021) (finding that an alleged dangerous condition was open and obvious

in part because the plaintiff “had seen T-Stands before and could tell that they were

on wheels,” and because the plaintiff had “testified that she could see the wheel that

caused her to fall; it was not hidden by garments or anything else”).

Nor is this a case where the plaintiff was familiar with the area and necessarily

should have appreciated the alleged dangerous condition. While Etheridge testified

that she previously had visited the Belk store (Doc. 26-1 at 23), she also testified that

she had “never seen Belk look like that before, with signs . . . and discounts” (Doc.

26-1 at 23), and that she had to ask for directions to the restroom through the

children’s clothing department (Doc. 25 at 3; Doc. 26-1 at 9). See, e.g., Harding v.

Pierce Hardy Real Est., 628 So. 2d 461, 463 (Ala. 1993) (summary judgment based

on an open and obvious condition is appropriate “when the undisputed evidence

shows that the plaintiff was aware of the danger, appreciated the danger, and acted

more carefully because of the perceived danger”).

II. On Etheridge’s wantonness claim, there is no genuine issue of material

fact.

Belk’s summary judgment motion is granted on Etheridge’s wantonness claim

because there is no genuine issue of material fact. On the record evidence,

Etheridge cannot create a triable fact issue on the question whether Belk was

conscious that injury would likely or probably result from the placement of the

clothing rack. See Celotex, 477 U.S. at 322–23 (a “failure of proof concerning an

essential element of the [plaintiff’s] case necessarily renders all other facts

immaterial”).

As explained above, to prove a wantonness claim under Alabama state law,

Etheridge must show that Belk was “conscious that, from doing or omitting to do an

act, injury will likely or probably result.” Ex parte Essary, 992 So. 2d at 9

(emphasis added); see also Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 653

(Ala. 1998) (the “standard required to support a wantonness claim is a high one and

should remain such”).

Here, there is no evidence that Belk was conscious that an injury would likely

or probably result from the placement of the clothing rack. Proctor testified in her

deposition that it was “not uncommon for a fixture to be close to the carpet edge,”

and that clothing racks were spaced out for merchandising purposes and arranged

with the goal of selling merchandise. Doc. 26-2 at 19; see Doc. 25 at 6. Proctor

also testified that a clothing rack bar protruding six inches into a walkway was not

uncommon. Doc. 26-2 at 19; see Doc. 25 at 6.

At most, Etheridge has shown that the placement of the clothing rack and the

protruding bar was not uncommon—i.e., the “conscious doing of some act.” See

Ex parte Essary, 992 So. 2d at 9. But there still is no evidence from which a jury

reasonably could infer that—given the placement of the clothing rack—Belk had

any awareness that injury was likely or probable. See Thompson, 726 So. 2d at 653

(“[T]he management of that store had no information from which they could have

known that an accident of the kind which occurred in this case was likely to

happen.”).

CONCLUSION

For the reasons stated above, Defendant Belk’s summary judgment motion

(Doc. 21) is GRANTED IN PART, with respect to Etheridge’s wantonness claim,

and DENIED IN PART, with respect to her negligence claim. There are triable

fact issues on Etheridge’s negligence claim. Etheridge’s wantonness claim is

DISMISSED WITH PREJUDICE.

The court SETS this case for a telephone status conference on Tuesday,

February 28, 2023, at 3:00pm. Ahead of that status conference, counsel are

ORDERED to meet and confer regarding potential case resolution and trial

scheduling.

DONE and ORDERED this February 15, 2023.

AG A. DANELLA

UNITED STATES MAGISTRATE JUDGE

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