Owens v. Ganga Hosp.

Janene Owens v. Ganga Hospitality, LLC

No. 1200449

Supreme Court of Alabama

October 29, 2021

Appeal from Montgomery Circuit Court (CV-19-900030)

SELLERS, JUSTICE

Janene Owens fell outside a hotel owned and operated by Ganga Hospitality, LLC ("Ganga"). Owens sued Ganga in the Montgomery Circuit Court, alleging negligence and wantonness. The trial court entered a summary judgment in favor of Ganga, and Owens appealed. We affirm the trial court's judgment.^[1]

On the night of January 4, 2017, Owens, her husband, her daughter and her son-in-law arrived at the hotel. Her son-in-law, Mike Martini, parked their vehicle in a covered area next to the front door of the hotel, where hotel guests park temporarily while loading or unloading luggage. Photographs in the record show that there is a raised concrete platform on the side of the loading and unloading area that is farthest from the front door of the hotel, which the parties refer to as a "curb." The platform is painted red, in clear contrast to the surrounding area. There is a bench on top of the platform.

Owens was seated in the back seat of the vehicle, behind the driver. It was dark when Owens and her family arrived at the hotel, and Owens's sight is extremely limited. She is completely blind in her left eye and has 20/200 vision in her right eye. She describes herself in her brief to this Court as "blind." At the time of the accident, she also had trouble walking and typically used a cane for mobility. Her agility was further hampered from the affects of a stroke that impacted her cognitive skills.

Owens testified that, after Martini parked the vehicle in the covered loading and unloading area, Owens opened the back driver's side door of the vehicle and placed her left foot on the ground. She then placed her right foot on the ground while turning around to face the vehicle, with her back to the raised platform. She then began to back away from the vehicle. While moving backward, her right foot contacted the edge of the platform and "she fell into a very hard object."^[2]

Owens claimed in her complaint that the presence of the concrete platform was unreasonably dangerous and that Ganga acted negligently and wantonly in failing to remove it and in failing to provide adequate lighting in the area. She also alleged that Ganga negligently and wantonly failed to warn Owens of the alleged hazard. Ganga moved for a summary judgment, arguing that the allegedly dangerous condition was open and obvious, that Owens was contributorily negligent, and that there is no evidence indicating that Ganga acted wantonly. The trial court granted Ganga's summary-judgment motion; Owens appealed. On appeal, Owens has abandoned her wantonness claim and proceeds only with her negligence claim.^[3]

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989)."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

"The scope of the duty owed by an invitor to a business invitee is as follows:

" 'Alabama law is well-settled regarding the scope of the duty an invitor owes a business invitee. "The owner of premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided." Armstrong v. Georgia Marble Co., 575 So.2d 1051, 1053 (Ala. 1991) ....'

"South Alabama Brick Co. v. Carwie, 214 So.3d 1169, 1176 (Ala. 2016) (emphasis omitted)."

Unger v. Wal-Mart Stores E., L.P., 279 So.3d 546, 550 (Ala. 2018).

" 'The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.'"

Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937) (quoting 45 C.J. § 244, p. 837). There is no duty to remedy, or to warn about, open and obvious hazards. Dolgencorp, Inc. v. Taylor, 28 So.3d 737, 742 (Ala. 2009). Whether an alleged danger is open or obvious is an objective inquiry. Id. A hazard is open and obvious if it would be apparent to, and recognized by, a reasonable person in the position of the invitee. Hines v. Hardy, 567 So.2d 1283, 1284 (Ala. 1990). The existence of a duty is a question for the court. Unger, 279 So.3d at 550.

The evidence clearly establishes that the platform was open and obvious to people without significant visual impairment. Owens does not point to any testimony from her family members indicating that they did not see the platform or that they tripped on it. Martini agreed during his deposition that he probably stepped onto the platform or walked around it after exiting the vehicle. Owens's expert witness did not opine that the existence and condition of the platform presented a danger that was not open and obvious to someone who is not visually impaired. Photographs in the record depict the platform at night and indicate that the area is brightly lit and that the platform is painted red, which clearly contrasts with the surrounding area. The difference in elevation between the platform and the surrounding area is obvious from the photographs.

Although Owens alleged in her complaint that the area was not adequately illuminated, the only evidence she points to on appeal is her own deposition testimony that the area was "dark." But she relies upon that same testimony in support of an averment that she is "blind." Elsewhere in her brief, she asserts that her "visual impairment is so severe she cannot see." Testimony from someone who is blind is not sufficient evidence to establish that the loading and unloading area was not properly illuminated. Indeed, when shown the above-referenced photographs, which demonstrate that the raised platform is open and obvious and well illuminated, Owens could not identify the content of the photographs.^[4] The primary dispute in this case appears to be whether Owens's visual impairment affects the rule that a premises owner has no duty to eliminate, or to warn about, dangers that are open and obvious. Owens notes that a hazard is open and obvious if the risk "would be recognized by a reasonable person in the position of the invitee," and she asserts that "[a] person in the position of [Owens] is blind and cannot see." In other words, she contends that the issue of openness and obviousness should be evaluated from the point of view of a person with Owens's level of visual impairment and not from the point of view of a typical person with typical vision.

Owens has not directed the Court's attention to any precedent from Alabama or any other jurisdiction considering whether an invitee's impaired vision affects the open-and-obvious analysis. At least some courts have suggested that it does not. See, e.g., Prostran v. City of Chicago, 349 Ill.App.3d 81, 86, 811 N.E.2d 364, 368, 285 Ill.Dec. 123, 127 (2004) (noting that "[w]hether a condition is open and obvious depends on the objective knowledge of a reasonable person, not the plaintiff's subjective knowledge," and that "[c]ourts in other jurisdictions have applied this objective standard even where the plaintiff is visually impaired" (citing, among other cases, Lauff v. Wal-Mart Stores, Inc., No. 1:01-CV-777, Oct. 2, 2002 (W.D. Mich. 2002) (not reported in Federal Supplement); and Sidorowicz v. Chicken Shack, Inc., 469 Mich. 912, 673 N.W.2d 106 (2003)(table))). See also Lugo v. Ameritech Corp., 464 Mich. 512, 518 n.2, 629 N.W.2d 384, 387 n.2 (2001) (holding that whether a plaintiff has "a particular susceptibility to injury" is "immaterial to whether an open and obvious danger is nevertheless unreasonably dangerous"). But see Harris v. Boh Bros. Constr. Co., 322 So.3d 397, 413 (La. Ct. App. 2021) (concluding that Louisiana's "open and obvious to all" doctrine did not apply in a negligence action brought by a blind plaintiff).^[5] As noted, "[i]n a premises-liability setting, we use an objective standard to assess whether a hazard is open and obvious." Jones Food Co. v. Shipman, 981 So.2d 355, 362 (Ala. 2006).

"[I]n order for a defendant-invitor in

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