Victims of Apartment Arson Allowed to Pursue Claims Against Builder, Owner

July 8, 2009

The Alabama Supreme Court recently considered a suit in which a fire at an apartment building, caused by arson, resulted in the death of one resident, and injuries to six others.  The residents sued the owner and builder of the complex, which had been constructed 22 years before the fire, alleging claims of negligence and wantonness.

The trial court entered summary judgment in favor of the owner and builder, holding that they had no duty to protect the residents from injuries caused by the criminal acts of a third party, and that the residents’ claims were barred by the 20-year rule of repose.

The Court, in Collins v Scenic Homes, Inc. __ S0.2d __ (Ala. June 30, 2009), reversed the entry of summary judgment.  Recognizing that in general, “absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person,” Moye v. AG Gaston Motels, Inc., 499 So.2d 368 (Ala. 1986), the Court held that the general rule was inapplicable because the residents alleged that the defendants had a duty to construct and operate:

… a reasonably safe apartment building, equipped with appropriate exits and fire suppression safeguards designed to reduce the risk of injury as a result of fire, regardless of the origin of the fire. … Indeed, it is a forseeable risk that a fire at an apartment complex, however started, will cause harm to the inhabitants of the complex if the premises owner fails to provide adequate fire suppression safeguards and an adequate means of escape from the fire.

The Court distinguished the residents’ claims from previous cases decided under the general rule because in each of the previous cases, the plaintiff “alleged that the premises owner had a duty to prevent the intervening criminal act from occurring.”

The Court also held that the plaintiffs claims were not barred by the 20-year rule of repose, atating that a cause of action accrues “on the date the first legal injury occurs, but not necessarily from the date of the act causing the injury.”  Smith v. Medtronic, Inc.,  607 So.2d 156 (Ala. 1992).  In Collins, “the residents did not have a viable and cognizable claim against Scenic Homes until the fire occurred and the residents suffered injuries as a result.”


Boxes in Aisle of Store “Open and Obvious”

June 18, 2009

On June 12, 2009, the Alabama Supreme Court held in favor of a retailer in a trip and fall suit.  In Dolgencorp, Inc. v. Taylor, ___ So.2d ___ (Ala. 2009), the Court considered an appeal in which an invitee at a Dollar General store tripped over unopened cases of merchandise in the store’s aisle.  The plaintiff testified at trial that she had not seen the cases, which were stacked approximately “knee or thigh high,”  but had noticed other cases of merchandise in the store on that occasion, and had maneuvered around them.  The plaintiff also presented testimony at trial from former employees of the store, suggesting that the store was “a wreck,” “a mess,” and “an accident waiting to happen.”  A jury found for the plaintiff, and awarded $260,000, including $175,000 in punitive damages.

In reversing the jury’s verdict, the Court held:

The owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care.  Ex parte Mountain Top Indoor Flea Market, 669 So.2d 158, 161 (Ala. 1997).

In a standard premises-liability setting, we use an objective standard to assess whether a hazard is open and obvious.  The question is whether the danger should have been observed, not whether it was consciously appreciated.  In order for a defendant-invitor in a premises-liability case to win a summary judgment or judgment as a matter of law grounded on the absence of a duty on the invitor to eliminate open and obvious hazards or to warn the invitee of them, the record need not contain undisputed evidence that the plaintiff-invitee consciously appreciated the danger at the moment of the mishap.  While all ordinary risks present are asumed by the invitee, this recitation cannot mean that the invitor’s duty before a mishap is determined by the invitee’s subjective state of mind at the moment of the mishap.  Jones Food Co. v. Shipman, 981 So.2d 355, 362-63 (Ala. 2006).

The Court found that no evidence was presented that the cases were hidden, and held that the trial court should have granted the store’s motion for judgment as a matter of law.