Premises Liability – Expert Opinion – Open and Obvious Defense

Byrne v. Fisk, [Ms. SC-2022-0560, May 19, 2023] __ So. 3d __ (Ala. 2023). The Court (Bryan, J.; Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur) reverses the Madison Circuit Court’s summary judgment dismissing a premises liability action filed by Douglas Byrne who slipped and fell backwards from Vera Fisk’s front porch and down her steps delivering her mail while it was dark outside and raining.

The Court holds Byrne produced substantial evidence “that Fisk’s steps and porch were defective and unreasonably dangerous as a result of the tile used to cover them and the uneven construction of the steps.” Ms. *17. Byrne relied heavily on the affidavit testimony of Hal Cain, a professional engineer, who testified that the steps leading to Fisk’s porch were uneven in height and depth in violation of the “Standard Building Codes or the 2009 International Residential Code.” Ms. *9. The Court holds the circuit court did not exceed its discretion in denying Fisk’s motion to strike Cain’s affidavit due in part to Fisk’s failure to present “evidence in support of her assertion that her steps were ‘grandfathered’ into compliance under the applicable building code.” Ms. *14.

The Court rejects Fisk’s argument that the uneven steps were not a proximate cause of Byrne fall. The Court concludes “the totality of his deposition testimony indicates that fair-minded persons exercising impartial judgment could reasonably infer that the uneven construction of Fisk’s steps affected Byrne’s stride in ascending the steps, thereby causing him to lose balance upon reaching the top step or porch.” Ms. **21-22, emphasis added.

The Court also rejects Fisk’s argument that “darkness rendered any dangers posed by Fisk’s premises open and obvious to any reasonable invitee as a matter of law.” Ms. *29. The Court notes “Byrne was equipped with a headlamp to illuminate his path. His deposition testimony indicates that the steps leading to Fisk’s porch were at least partially illuminated by the headlamp when Byrne attempted to traverse them and subsequently fell.” Ms. *30. Similarly, the Court also holds the rainwater on Fisk’s “premises does not present an exception to the general rule that the question of openness and obviousness of an allegedly dangerous condition is a question for the jury.” Ms. *35.

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