Premises Liability - Open and Obvious - Wantonness


Pittman v. The Hangout, [Ms. 2180429, Aug. 23, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Edwards, J.; Thompson, P.J., and Moore, Donaldson, and Hanson, JJ., concur) reverses the Baldwin Circuit Court’s summary judgment dismissing premises liability claims against The Hangout in Gulf Shores. A patron was injured when she fell as she entered a lower level of The Hangout separated by a single step, the top of which had been painted yellow. Ms. *2.

“‘A condition is obvious if the risk is apparent to, and of the kind that would be recognized by, a reasonable person in the position of the invitee.’” Ms. *3, quoting Howard v. Andy’s Store for Men, 757 So. 2d 1208, 1210 (Ala. Civ. App. 2000) (emphasis added). The plaintiff submitted expert testimony in opposition to the summary judgment that “‘someone who is walking from one portion [of a building] to another, believing the ground is flat and stable, ... expect[s] that it will remain flat and stable.’” Ms. *8. In reversing, the court held “the environment in which a particular hazard appears is a factor in determining whether, in fact, a hazard is obvious to an invitee,” Ms. *14, and that “‘questions of whether the condition or defect was open and obvious should ordinarily be determined by the fact-finder.’” Ms. *17, quoting Ex parte Kraatz, 775 So. 2d 801, 804 (Ala. 2000).

The court also held that although The Hangout’s attempt to make the step more noticeable via the use of contrasting (yellow) paint might not have been sufficient warning, that effort required affirmance of the summary judgment dismissing the wantonness claims. Ms. *21-22.

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