Daniels v. Wiley

314 So.3d 1213

Geraldine DANIELS

v.Tracy WILEY and Hawthorne-Midway Lily Flagg, LLC

1190208

Supreme Court of Alabama.

June 26, 2020

David E. Miller, Jr., of Wettermark Keith, LLC, Birmingham, for appellant.

Carol Ann Smith and Christopher J. Doty of Smith & Bahakel, P.C., Birmingham, for appellees.

BOLIN, Justice.

In December 2016, Geraldine Daniels was residing at the Hawthorne at Lily-Flagg apartment complex, which was owned by Hawthorne-Midway Lily Flagg, LLC ("Hawthorne-Midway"), and managed by Hawthorne Residential Partners, LLC, and its community manager, Tracy Wiley. Daniels sued Hawthorne-Midway and Wiley for damages resulting from injuries she suffered when she fell while stepping off a sidewalk at the complex. Daniels appeals from a summary judgment entered in favor of Hawthorne-Midway and Wiley. We affirm.

Facts and Procedural History

On the evening of December 17, 2016, Daniels was walking on the sidewalk from her apartment to the mail kiosk for her building to retrieve her mail. According to Daniels, mud had accumulated on the sidewalk as a result of a rain earlier that day. When she stepped off the sidewalk curb, Daniels slipped and fell and, according to her, broke both of her knees.

On August 28, 2018, Daniels sued Hawthorne-Midway and Wiley, alleging that Hawthorne-Midway and Wiley had breached duties "to ensure that the premises of the apartment complex were reasonably safe for tenants" and "to not create and/or allow dangerous conditions on the premises of the apartment complex." Hawthorne-Midway and Wiley answered the complaint, pleading, among other defenses, the defenses of open and obvious danger, contributory negligence, and assumption of the risk.

On August 1, 2019, after some discovery had been conducted, Hawthorne-Midway and Wiley moved for a summary judgment, arguing that they were not liable for Daniels's injuries because, they argued, the alleged danger created by mud was open and obvious, the presence of mud after a rain is not an unreasonably dangerous condition, Daniels's claims were barred by her own contributory negligence and by her assumption of the risk, Wiley had no personal liability, and no evidence supported the wantonness claim. In support of their motion, they attached testimony from Daniels's deposition; an affidavit from Wiley; deposition testimony from Saundra Ikerd, Daniels's roommate; Daniels's answers to interrogatories; and testimony from Wiley's deposition.

To explain their knowledge of Daniels's accident, the area where Daniels fell, and the methods of mail retrieval provided by the apartment complex, Hawthorne-Midway and Wiley submitted affidavit testimony from Wiley in which she averred that she did not learn of Daniels's fall on the night of the accident but that, when she did learn of the accident in early January, she personally inspected the area where she understood Daniels had fallen. She averred in her affidavit:

"I personally inspected this area after [Daniels's] accident. There are two large, shady trees in this area. Grass does not easily grow in the areas underneath and around these trees, which is somewhat barren with soil and dirt. I understand from [Daniels's] deposition that this area can become muddy after periods of rain, and that it had rained the day of her accident."

Wiley further averred that a diligent search had been conducted of the records of the apartment complex and that no record was located concerning complaints about mud accumulating on the sidewalk near the area where Daniels fell or other complaints regarding the general condition of the sidewalk before Daniels's fall in December 2016. According to Wiley, neither Daniels nor any other tenant had reported a problem with the condition of the sidewalk to her. Wiley explained that, in addition to walking on the sidewalk to retrieve the mail, Daniels could walk on the street, walk through a breezeway, or drive her car to the mail kiosk and park in front of it in one of the spaces provided for that purpose.

In support of their contention that the danger created by the mud on the sidewalk was open and obvious, Hawthorne-Midway and Wiley submitted deposition testimony from Daniels regarding her knowledge of the condition of the sidewalk, her navigation of the sidewalk, and the circumstances surrounding her accident. The following exchange occurred during Daniels's deposition:

"Q.: Had you ever seen mud at that spot before your accident?

"A: Yes.

"Q: And over what period of time had you noticed the mud?

"A.: For ever since we lived in that particular apartment and had to go to, you know, go get the mail.

"Q.: Had you ever had any problems with the mud before?

"A.: Well, I didn't have a problem specifically with it, but I was afraid Saundra might get some wild hair or something and walk down there, even if I told her not to. And she would have a problem with it. I was navigating –- I was pretty agile at that time. I was navigating pretty good. And I would step around, and then where it drops off the curb and it accumulates and --

"Q.: You say the mud drops off of the curb?

"A: Curb, right there where you step off the curb and over to the mail boxes.

"....

"Q: But you've never had any problem navigating the curb? You've always been able to get over the curb with no problem?

"A: I never had any problem navigating the curb, but –- and I never had a problem navigating that curb, except that mud had piled down in, you know, where you step off the curb, that little area, and it was thick at that time.

"....

"A: ... I went to step off of that curb to go to the mailbox. The sidewalk had ended pretty much, and I stepped down, and instead of stepping over that mud that had drained there –- and I usually did, I could usually do that –- I stepped in it. That's what made me fall.

"Q: And tell us everything that you recall that happened.

"A: Okay. I went out the front door, I walked down the sidewalk?

"....

"A: Then the sidewalk was ending and there was a curb, sort of like that (indicating) going around. I stepped off the curb and I knew the mud was there. And I usually would step over it, kind of a little hop step over it. But I didn't, I misstepped and I stepped in it.

"....

"Q: And the after one foot slipped, what happened to the rest of your body?

"A: It just completely collapsed and fell. ..."

Daniels's roommate, Ikerd, testified in deposition as follows with regard to retrieving mail during periods when it had rained:

"A: Well, if it rains, it's muddy and you can't hardly –- In fact, I've almost fallen a couple of times. I try to go, but [Daniels and I] just quit going; we just drive up and get the mail.

"....

"A: [Daniels] just drives us around to the mailbox and we just get out, and we don't have to walk in that."

On September 17, 2019, Daniels responded to the motion for a summary judgment. She argued, citing Campbell v. Valley Garden Apartments, 600 So. 2d 240 (Ala. 1992), that, even though she had knowledge of the danger created by the accumulated mud on the sidewalk and curb, that knowledge did not preclude her recovery for negligence and wantonness in that Hawthorne-Midway and Wiley should have anticipated her being injured by the danger because, she said, they did not provide her with a "reasonable and safe alternative" means for retrieving mail on a rainy day. Daniels further argued that Hawthorne-Midway and Wiley were liable for her injuries because, she said, they knew or should have known about the danger created by the mud on the sidewalk, which, she said, was "plainly visible." Daniels submitted her deposition testimony in which she testified that at some point she had telephoned the property management about the mud on the sidewalk. Additionally, she attached an affidavit from Audra Hampton, another resident in her building, who averred:

"The area where [Daniels] fell is dangerous especially after it rains. When it rains mud always covers the sidewalk and the area around the curb and roadway. Whenever I have to get my mail, I avoid walking near that part of the roadway and sidewalk because it's so slick."

She further pointed out that Hawthorne-Midway and Wiley should have been aware of the danger created by the mud because the 2017 Safety & Maintenance Manual ("the SAM Manual") of Hawthorne Residential Partners, LLC, requires daily inspections of the complex to identify and to remove debris. She also maintained that Hawthorne-Midway and Wiley should have anticipated that she would be injured by the mud-created danger because, she said, no safe alternative route to retrieve mail existed on the day she fell. She submitted evidence indicating that walking through the breezeway was not safe because of a "makeshift" fix of loose and uneven tiles; that walking on the street was not safe because of drivers speeding through the parking lot; and that driving her car was not an option on the evening she was injured because no vacant parking spaces were available at the mail kiosk.

On September 18, 2019, Hawthorne-Midway and Wiley filed their replies to Daniels's response. They argued that they owed no legal duty to Daniels because the accumulated mud on the sidewalk and curb created an "open and obvious" condition that was known to Daniels. They further argued that, because Daniels knew of the mud and admitted her decision to "hop step" over it that evening, Daniels failed to exercise reasonable care and placed herself in the way of danger and that, consequently, her recovery for negligence was barred by her contributory negligence. They contended that Campbell had been overruled by Ex parte Gold Kist, Inc., 686 So. 2d 260, 261 (Ala. 1996) (declining to adopt Restatement (Second) of Torts § 343A (1965), which was quoted in Campbell, because it was not "a correct statement of the law relating to the liability of a possessor of land"),¹ and that, consequently, Daniels's reliance on Campbell is misplaced.

On September 19, 2019, the trial court conducted a hearing addressing the summary-judgment motion,² and on ...