Court: Court of Civil Appeals of Alabama; May 3, 1996; Alabama; State Appellate Court
Robbie Ann Lowery appeals a summary judgment favoring Mountain Top Indoor Flea Market, Inc. and its president, Melton Terrell, following her fall in a graveled common area of the flea market in August 1994. Lowery's complaint alleged negligence and/or wantonness in the construction and maintenance of the area, claiming that Terrell and the flea market were aware of the dangerous conditions that led to her injuries. Terrell and the flea market asserted affirmative defenses of contributory negligence and assumption of risk, arguing that Lowery's fall was due to her own negligence or voluntary assumption of the risk. They supported their summary judgment motion with Lowery’s deposition.
Lowery opposed the motion, claiming genuine issues of material fact existed, and provided her affidavit and depositions in support. The trial court ultimately granted summary judgment, determining that Lowery was aware of the dangerous condition and had placed herself in harm's way, thus absolving Terrell and the flea market of liability. Lowery appeals, arguing that the trial court erred in finding no genuine issue of material fact and granting summary judgment. The appellate court’s review involves determining the existence of a genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law, while viewing the record favorably toward the non-moving party. It is noted that summary judgment is typically inappropriate in negligence and personal injury cases. A premises owner is generally not liable for injuries to an invitee when the invitee is aware of the dangerous condition or should have observed it with reasonable care. Terrell and the flea market maintain that the trial court's conclusion was correct based on Lowery’s knowledge of the danger.
The plaintiff must demonstrate not only knowledge of a dangerous condition but also a conscious appreciation of the danger at the time of the incident. Jurisprudence, particularly in F.W. Woolworth Co. v. Bradbury and Kingsbery Homes Corp. v. Ralston, establishes that this appreciation is typically a factual question for the jury. In this case, Lowery acknowledged in her affidavit and deposition that the flea market's common areas were dirt and gravel, and the specific area where she fell contained rocks and loose dirt. Although she recognized the need for caution due to potentially slippery rocks, she noted that most of her observations occurred post-fall and described the area as a normal walkway, despite the absence of warnings. Contrarily, Terrell testified that he had dug a drainage ditch in that area weeks prior, creating a hazardous condition. This evidence raises a genuine issue of material fact regarding Lowery's conscious appreciation of the danger at the time of her fall. Consequently, the trial court's judgment is reversed and remanded for further proceedings. The opinion was authored by Retired Appellate Judge Richard L. Holmes, with concurrence from Judges Robertson, Thigpen, and Monroe.
