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PREMISES LIABILITY - SLIP AND FALL - SURVEILLANCE FOOTAGE - SUFFICIENCY OF AFFIDAVIT - BARNWELL V. CLP CORPORATION

Barnwell v. CLP Corporation, [Ms. 1151329, Apr. 21, 2017] __ So. 3d __ (Ala. 2017). In a unanimous decision authored by Justice Parker, the Supreme Court reverses a summary judgment entered for the defendant in a negligence case arising from a slip and fall in a McDonald’s restaurant. The defendant moved to strike an affidavit and deposition testimony of the plaintiff based upon its contention that surveillance-video footage conclusively proved that the plaintiff did not slip and fall in the restaurant. The defendant argued in the alternative that the danger of the wet floor in the area where the plaintiff slipped and fell was open and obvious.

Noting that in granting the defendant’s motion for summary judgment, “the circuit court specifically stated that it had considered ‘all the evidence,’” Ms. *12, the Court concluded summary judgment had been granted based upon the defendant’s contention that the water on the floor was an open and obvious danger. While noting the defendant has no obligation to warn an invitee of a hazard that is open and obvious, the Court cited settled law that the standard for determining whether a hazard is open and obvious is an objective one and that “‘[t]he plaintiff’s appreciation of the danger is, almost always, a question of fact for the determination of the jury.’” Ms. *17, quoting F.W. Woolworth’s Co. v. Bradbury, 273 Ala. 392, 394, 140 So. 2d 824, 825-26 (1962). The Court noted a conflict in the evidence as to where the plaintiff slipped and fell in the restaurant. The plaintiff testified he slipped and fell in the area outside the restroom while the defendant contended (relying on the surveillance-video footage) that the evidence conclusively proved plaintiff slipped but did not fall in the area near the counter where an employee had mopped the floor and posted a warning sign. The Court rejected the defendant’s effort to use its surveillance-video footage to conclusively discredit the plaintiff’s testimony. The Court noted that the defendant “has not offered any explanation of the fact that the surveillance-video cameras do not include footage of the area of the restaurant outside the restroom where Barnwell alleges to have slipped and fallen.” Ms. *17. The Court also noted that the defendant did not offer any evidence that the slick spot upon which the plaintiff claimed to have slipped outside the restroom was an open and obvious danger.

Defendant also argued that the summary judgment should be affirmed because a “‘court may not consider deposition or affidavit testimony that directly contradicts earlier deposition or affidavit testimony without adequate explanation.’” Ms. *19, quoting McGough v. G&A, Inc., 999 So. 2d 898, 904 (Ala. 2007). The Court rejected the defendant’s argument concluding that the plaintiff’s deposition testimony was ambiguous on the point and not in direct conflict with his subsequent affidavit testimony.

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