Burlington Coat Factory of Ala., LLC v. Butler

156 So.3d 963

BURLINGTON COAT FACTORY OF ALABAMA, LLC

v.Barbara BUTLER.

2120969.

Court of Civil Appeals of Alabama.

June 13, 2014.

John W. Dodson, Neal D. Moore III, and David A. Rich of Ferguson, Frost & Dodson, L.L.P., Birmingham, for appellant.

Frank S. Buck, J. Brooks Leach, and Rachel C. Buck of Frank S. Buck, P.C., Birmingham, for appellee.

Opinion

THOMAS, Judge.

On May 16, 2011, Barbara Butler went to a store operated by Burlington Coat Factory of Alabama, LLC (“Burlington”), to return some shoes. Butler then decided to shop for some “memory-foam” pillows, which she located in the linens department of the store. The pillows were displayed on moveable metal brackets affixed into a “slat wall” on an “end cap” on one of the aisles in the linens department. Butler was removing the pillows from a set of brackets slightly above her head when the brackets holding the pillows came loose from the wall and fell; one of the brackets hit Butler in the face, causing a lump to form above her left eyebrow. Ultimately, Butler was diagnosed with a nasal fracture and a deviated septum and underwent surgery to correct the injury. She sued Burlington in the Jefferson Circuit Court in December 2011, seeking to establish Burlington's negligence or wantonness, based on a premises-liability theory. The action proceeded to a jury trial in April 2013, after which the trial court entered a judgment on a jury verdict in favor of Butler on Butler's negligence claim.¹

The testimony presented at trial established the following facts. As noted above, Butler was injured when she removed pillows from the brackets upon which the pillows were displayed. Certain facts regarding the incident were sharply disputed, including whether the pillows displayed on the brackets were single pillows in boxes or whether they were a set of two pillows enclosed in a plastic bag.² However, whether the pillows were displayed in bags or boxes is not relevant to the resolution of this appeal. Instead, the resolution of this appeal turns on the testimony presented regarding the brackets used by Burlington to display merchandise like the pillows Butler was shopping for on the day of the incident and the inspection procedures utilized by Burlington employees to make certain that the brackets were secure.

Dorothy Baker, the Burlington employee who was responsible for the linens department, testified at length about the use of the brackets in the store. Baker said that she had worked for Burlington since 1993 and that, as part of her employment, she had regularly secured, moved, and inspected the brackets used in the store. In fact, Baker testified that she had installed the brackets that fell and injured Butler, and Baker said that those brackets had been in place for months without incident. She also said that she had visually inspected the linens department, as was her habit on the days she worked, on the morning of the incident between 9 a.m. and 12 p.m. According to Baker, she saw nothing in her visual inspection that day to indicate that the brackets were not secure in the slat wall.

Baker explained how the brackets worked, stating that the hooks on the bracket were placed into the slat wall and that, once the hooks were placed in the slat wall, the bracket was “there to stay.” According to Baker, if she could “see that these hooks are in—the brackets are in the wall there, they're not coming down.” She said that she did not pull on the brackets after the original installation, explaining that she could visually inspect the brackets to tell if they were properly installed in the slat wall; Baker explained that she did not need to touch the brackets to check their stability. She stated:

“That bracket is not going to be halfway in. It's not going to be halfway out. It's either going to be in or it's going to be on the floor. And if it's looking crooked, then you need—the only other thing that it could possibly be is that the bracket itself is bent. That's when you inspect. When it does not look like that it's in properly, then you can touch and inspect.”

According to Baker, the brackets that fell and injured Butler had never, to her knowledge, fallen off the slat wall before the incident and had not, once they were reattached to the slat wall, fallen off the slat wall after the incident.

Lander Jones, who was the manager of the Burlington store on the date of the incident, testified that the brackets were composed of a lightweight metal. She, like Baker, said that the brackets were either in the slat wall or out of the slat wall. She described the installation and removal of the brackets thusly:

“[Counsel for Butler:] ... If you could just demonstrate for the jury, I think, using this photograph.

“[Jones:] You have to slant it at an angle and clip it up in the wall and then it rests straight down and it rests against the wall itself.

“....

“[Jones:] ... [I]t's going to lock down regardless because once it's in that slat wall, it goes in and it lays down and it's either in there or it's out.

“[Counsel for Butler:] And what causes—or how do you remove the bracket?

“[Jones:] You have to lift it up. You have to dislodge it. You have to lift it up and pull it down.”

Like Baker, Jones explained that “you will know whether a bracket is not in there correctly. You'll be able to see it. And that particular type of bracket, it's either in there or it's not. It's not going to be halfway in there.” She also testified that one could tell by looking at the bracket whether it was in or out of the slat wall or whether further inspection was needed because the bracket appeared crooked or uneven.

Jones was present on the date of the incident and, in fact, was nearby when the bracket fell and hit Butler. According to Jones, as she approached the end-cap display, she could see the brackets and that they all appeared to be level and secure. Jones said that she saw Butler shopping and that Jones had assisted her in checking a price for a set of two pillows in a plastic bag. Jones said that she stepped into the aisle to check the price of the pillows in the plastic bags; she said that she could see Butler out of the corner of her eye from where she was standing. She said that Butler appeared to be hitting or pushing at the bottom of a box containing a pillow in the end-cap display right before the brackets fell. Based on what she perceived, Jones surmised that Butler's action in hitting the corner of the box in the display dislodged the bracket, causing it to come out of the slat wall. Jones testified that Butler had said that the bracket had hit her on the head above the left eyebrow, which was consistent with Jones's having noticed a knot forming above Butler's left eyebrow. Jones made a report of the incident and offered Butler an over-the-counter pain medication.

Nequette Franklin, who had been employed by Burlington until approximately two weeks before the trial but who had not worked at the Burlington store at the time of the incident, also testified that the brackets, once installed, were “locked.”

“[Counsel for Butler:] ... If you'll just demonstrate for the jury [with reference to photographs] how these brackets hook into the wall.

“[Franklin:] Yes, exactly. This is a little—These are the prongs. This is the line that the prongs go into, so therefore, when these prongs is hooked, in that part is a little hook, so therefore, when you hook it, it's locked.

“[Counsel for Butler:] And then how do you take the brackets out?

“[Franklin:] You have to lift it up and unhook it.”

According to Franklin, to dislodge a bracket one had to “hit [it] up, keep hitting it up, and then it comes off the wall” or that “you have to lift it up and keep trying to pop it out”; she said that dislodging the brackets “was hard for [her].” Franklin stated that she had never seen a bracket fall from the slat wall, that she had never been injured by a bracket, and that she had never seen another employee or a customer injured by a bracket. When asked whether a bracket might be “loosened” by a customer “fiddling with merchandise,” Franklin answered: “It would be a little difficult because once again, when you put them in there, they are locked, so they would literally have to bang on them to lift them up.” Like Baker and Jones, Franklin testified that, once a bracket was installed, one could look at it and tell if it was securely in the slat wall.

Butler's testimony regarding the brackets was that she had not touched the brackets when she removed the pillows. She explained that she “reached to get the pillows to take them out like [she had retrieved similar pillows from] the bottom [bracket], but everything—both of those brackets, they're supposed to be individually [sic] and they're locked down. They were not locked down. Those pillows came out with those brackets.” Butler stated that she had not noticed the brackets, that she had not observed whether the brackets were crooked, and that she had no idea why the brackets fell. She denied hitting on the brackets or “popping the pillow from the bottom.” Butler also testified that she was not accusing Burlington of having a “dangerous condition in the store. If there's one in a million, I was just the one person. If it never happens again, I was the one in a million. I don't know if it's dangerous. I was the one person in a million. That's all that I'm saying.”

Butler testified that the bracket hit her on the head above her left eye. Butler did not request to visit the emergency room that day, but she sought medical attention in the emergency room the following day after having continued pain and difficulty breathing through her nose during the overnight hours. As noted above, Butler was ultimately diagnosed as having suffered a nasal fracture and a deviated septum as a result of the bracket striking her face.

At the close of the all the evidence, Burlington moved for a judgment as a matter of law pursuant to Rule 50, Ala. R. Civ. P. The trial court granted Burlington's motion as...