source: Caselaw Access Project

author: MAIN, Justice.

license: Public Domain

text:
    EX PARTE AUSTAL USA, LLC (In re Michael Keshock et al. v. Metabowerke GMBH et al.) Ex parte Austal USA, LLC (In re Michael Keshock et al. v. Metabowerke GMBH et al.)
    1151138 and 1151244
    Supreme Court of Alabama.
    March 3, 2017
    Rehearing Denied April 21, 2017

      John C. Neiman, Jr., and Prim F. Esca-lona of Maynard, Cooper & Gale, P.C., Birmingham; and Brian P. McCarthy and Anne Laurie McClurkin of McDowell Knight Roedder & Sledge, LLC, Mobile, for petitioner.
    David G. Writes, Jr., J. Brian Duncan, Jr., and William E. Bonner of Cunningham Bounds, LLC, Mobile, for respondents.
    Ed R. Haden and Michael Taunton of Balch & Bingham LLP, for amici curiae Business Council of Alabama and the Mobile Area Chamber of Commerce, in support of the petitioner.
    C. Britton Bonner of Adams & Reese LLP, Mobile, for amicus curiae Shipbuilders’ Council of Alabama, in support of the petitioner.
    Marc James Ayers and Stephen C. Parsley of Bradley Arant Boult Cummings LLP, Birmingham; Allen M. Estes of Balch <& Bingham, LLP, Birmingham; and Mark D. Hess of Hand Arendall, LLC, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.
   MAIN, Justice.

Austal USA, LLC (“Austal”), filed two petitions for a writ of mandamus directing the Mobile Circuit Court to dismiss certain claims asserted against it by plaintiffs Michael Keshock, Martin Osborn, Richard Fitzgerald, Tyrone Lucas, Riley Bodiford, Tommie Brandon, Justin Reed, and William White (hereinafter referred to collectively as “the plaintiffs”). We deny the petitions.

I. Facts and Procedural History

Austal operates a shipyard in Mobile that builds naval vessels. Each of the plaintiffs is an employee of Austal who claims to have been injured while working in the course of his or her employment. Specifically, each plaintiff claims to have been injured by a tool known as a “Miller saw.”

The plaintiffs filed this action against Austal and three other companies not parties to these petitions. The plaintiffs’ third amendment complaint asserted two counts against Austal. Count I asserted a tort-of-outrage claim against Austal. Austal filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss the tort-of-outrage claim. The trial court granted the motion to dismiss count I and entered an order dismissing that claim with prejudice; the tort-of-outrage claim is not now before us.

Count VII of the third amended complaint alleged a claim of “intentional misconduct,” specifically alleging that Austal had “intentionally provided Plaintiffs] with a dangerous and defective Miller saw with the specific intent that it would cause injury to Plaintiffs.” Austal filed a separate Rule 12(b)(6) motion seeking to dismiss count VII. Austal argued that it was immune from the claim asserted in count VII by virtue of the exclusivity provisions of the Longshore & Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“the LHWCA”), and the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975. On June 16, 2016, the trial court entered an order denying Austal’s motion to dismiss count VIL On June 27, 2016, Austal moved the trial court to vacate its order or to certify its order for a permissive appeal under Rule 5, Ala. R. App. P. •

On June 28, 2016, the plaintiffs filed a fourth amended complaint. The plaintiffs’ fourth amended complaint restated the count VII “intentional-misconduct” claim and added five more counts, each alleging that Austal intentionally injured them. Count VIII asserted a claim of assault and battery against Austal. Count XII asserted a claim of fraud and alleged that Austal “intentionally made false statements regarding the safety of the Miller Saw” and that those statements were made, “with the conscious and deliberate indent to injure its workmen, including plaintiffs, with the Miller Saw so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work.” Count XIII alleged that Austal fraudulently “suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the known safety hazards associated with the Miller Saw ... and that Austal knew the tool was unsafe and had made the conscious and deliberate decision to intentionally injure its workmen with the tool so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work.” Count XIV alleged that, after the injured plaintiffs returned to work, Austal “intentionally made false statements regarding the safety of the Miller saw with a conscious and deliberate intent directed to the purpose of inflicting severe emotional distress on the Plaintiffs by inducing them to use the same Miller Saws in their work that had previously caused serious injury to Plaintiffs.” Count XV, a fraudulent-suppression claim, similarly alleged that Aus-tal “intentionally suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the safety of the Miller saw with a conscious and deliberate intent directed to the purpose of inflicting severe emotional distress on the Plaintiffs by inducing them to use the same Miller Saws in their work that had previously caused serious injury to Plaintiffs.”

On July 18, 2016, Austal moved to dismiss counts VIII, XII, XIII, XIV, and XV of the fourth amended complaint. Again, Austal contended that the claims were barred by the exclusivity provisions of the ■ Alabama Workers’ Compensation Act and/or the LHWCA.

On July 19, 2016, the trial court granted Austal’s motion to certify for permissive appeal the question whether count VII of the third amended complaint stated a claim upon which relief could be granted. On August 2, 2016, Austal filed with this Court a petition for permission to appeal or, in the alternative, for a writ of mandamus (no. 1151138).

On August 30, 2016, the trial court denied Austal’s motion to dismiss counts VIII, XII, XIII, XIV, and' XV, but also certified for immediate appeal the question whether those counts asserted claims upon which relief could be granted. On September 8, 2016, Austal filed with this Court a second petition for permission to appeal or, in the alternative, for a writ of mandamus (no 1151244). This Court consolidated both petitions. We eleóted to treat the two petitions for permissive appeal as petitions for the writ of mandamus and ordered answers and briefs.

II. Standard of Review

«<«‘The writ of mandamus is a drastic and extraordinary writ, to be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995).’ Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ].”
“ ‘Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001).
“ ‘ “Subject to certain narrow exceptions ..., we have held that, because an ‘adequate remedy’ exists- by 'way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not renewable by petition for writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002).’
“Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 965-66 (Ala. 2011).”

Ex parte MERSCORP, Inc., 141 So.3d 984, 990 (Ala. 2013). One of the exceptions to the general rule prohibiting mandamus review of the denial of a motion to dismiss is where the motion to dismiss asserts a defense of immunity based on the exclusivity provisions of the Alabama Workers’ Compensation Act, Ex parte Rock Wool Mfg. Co., 202 So.3d 669, 671-72 (Ala. 2016). See also Ex parte McCartney Constr. Co., 720 So.2d 910 (Ala. 1998).

“ ‘ “In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review ....’” Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala. 2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 (Ala. 2003)).
“‘In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”
“ ‘878 So. 2d at 1148-49.’
“Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala. 2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So.2d at 58.”

Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala. 2007).

III. Analysis

There is no dispute that each of the plaintiffs was engaged in maritime employment sufficient to qualify for coverage under the LHWCA. Austal argues that, because the plaintiffs were injured within the line and scope of their maritime employment, Austal enjoys immunity from tort claims by virtue of the exclusivity provision of the LHWCA. In Rodriguez-Flores v. U.S. Coatings, Inc., 133 So.3d 874 (Ala. 2013), we described the exclusivity provision of the LHWCA:

“Section 904 of the LHWCA provides, in part, that ‘[ejvery employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title’ and that such compensation ‘shall be payable irrespective of fault as a cause for the injury.’ Section 905(a) of the LHWCA provides, in part, that ‘[t]he liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee’ and that, in such action, ‘the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee- assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.’ The exclusivity provision of the LHWCA has been explained as follows:
“ ‘The LHWCA, at 33 U.S.O. § 905, precludes a personal injury action against any employer who complies with the LHWCA. Just as Ala. Code 1975, • § 25-5-53, provides that workers’ compensation benefits are the exclusive remedy for injuries received in a work-related accident, the LHWCA provides, in 33 U.S.C. § 905(a), that an injured worker may not maintain a tort action against his employer for any negligence of the employer giving rise to the injury; the injured worker’s exclusive remedy is under the LHWCA. In International Paper Co. v. Murray, 490 So.2d 1234 (Ala. Civ. App.1985), aff'd in part, rev’d in part on other grounds, Ex parte Murray, 490 So.2d 1238 (1986), this court noted:
“‘“The LHWCA was adopted in 1927 as a federal compensation plan for maritime workers, and was patterned after existing state workers’ compensation laws.... The LHWCA is & workmen’s compensation statute similar to our own, where employers have ‘relinquished their defenses to tort áctions in exchange for limited and predictable liability.’ ”
“ ‘490 So.2d at 1236 (quoting Morrison Knudsen Constr. Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 461 U.S. 624, 103 S.Ct. 2045, 76 L.Ed.2d 194 (1983)).’
“Jarrell v. Bender Shipbuilding & Repair Co., 681 So.2d 1092, 1094 (Ala. Civ. App. 1996). Thus, employers enjoy immunity from tort claims under the LHWCA as they do under the [Workers’ Compensation] Act.”

Rodriguez-Flores, 133 So.3d at 880-81.

In Rodriguez-Flores, we also recognized that there is an “exceedingly narrow” exception to an employer’s tort immunity under the LHWCA where the employer has committed an intentional tort with the specific intent or desire that the injury occur:

“Some courts have recognized an exception to the exclusivity provision of the LHWCA where the employer has committed an intentional tort. Fisher v. Halliburton, 667 F.3d 602 (5th Cir. 2012). However, these ‘cases take a very narrow view of the types of intentional injury that lie outside of the LHWCA— the cases consistently require that the employer have had a specific intent or desire that the injury occur.’ Id. at 618. See Sample v. Johnson, 771 F.2d 1335, 1346 (9th Cir. 1985); Roy v. Bethlehem Steel Corp., 838 F.Supp. 312, 316 (E.D. Tex. 1993) (‘The employer can be sued under LHWCA, however, if he committed an intentional tort, i.e., genuine, intentional injury.’); Houston v. Bechtel Assocs. Prof'l Corp., D.C., 522 F.Supp. [1094] at 1096 [ (D.D.C. 1981) ] (observing that ‘[t]he courts have ... carved out an exception to exclusive liability provisions where the injury inflicted is the result of an intentional act’); Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D. Me. 1981) (‘Nothing short of a specific intent to injure the employee falls outside the scope of the [LHWCA].’); Sharp v. Elkins, 616 F.Supp. 1561 (W.D. La. 1985); and Rustin v. District of Columbia, 491 A.2d 496, 501 (D.C. 1985) (observing that the exclusivity provision of the LHWCA ‘does not reach actions where the employer specifically intended to injure the employee’).”

133 So.3d at 881-82.

Austal contends that the claims of each of the plaintiffs are barred by the exclusivity provision of the LHWCA. The plaintiffs’ allegations taken as a whole, Austal argues, allege merely that each plaintiff suffered accidental injury when a tool Aus-tal supplied them to perform their work kicked back and contacted them bodies. Thus, Austal argues, the claims of each of the plaintiffs arise from a workplace accident, for which tort liability is barred by the provisions of the LHWCA.

The plaintiffs respond that they have indeed pleaded facts in their complaint and subsequent amendments sufficient to invoke the intent-to-injure exception to LHWCA exclusivity. The plaintiffs have, in fact, expressly alleged that Austal specifically intended to injure them. Count VII alleges that “defendants intentionally provided Plaintiff[s] with a dangerous and defective Miller saw with the specific intent that it would cause injury to Plaintiffs.” (Emphasis added.) Count XII alleges a “deliberate intent to injure its workmen, including plaintiffs.” (Emphasis added.) Count XIII similarly alleges that Austal “made the conscious and deliberate decision to intentionally injure its workmen.” Likewise, each of counts XIV and XV alleges that Austal acted with “a conscious and deliberate intent directed to the purpose of inflicting emotional distress on the Plaintiffs.” (Emphasis added.) Austal, however, dismisses those allegations as conelusory and presented solely for the purpose of invoking the narrow intent-to-injure exception to LHWCA exclusivity. Austal urges this Court to look only to the specific factual allegations pleaded in the plaintiffs’ complaint concerning how the injuries occurred and the alleged business motivations Austal had for requiring the plaintiffs to work with a dangerous tool. Those allegations, Austal contends, describe precisely the type of workplace accidental injuries for which it is immune from tort liability under the LHWCA.

At the motion-to-dismiss stage, however, a court’s ability to pick and choose which allegations of the complaint to accept as true is constrained by Alabama’s broad and well settled standard for the dismissal of claims under Rule 12(b)(6). In this case, there is no question that the plaintiffs have pleaded that Austal “made the conscious and deliberate decision to intentionally injure its workmen.” That allegation—that a company would deliberately injure multiple specific employees— is so shocking that it invites skepticism. Moreover, we agree with Austal that a specific intent or desire to cause injury to its employees is not particularly consistent with the alleged cost-saving motivation for causing such injuries. Nevertheless, our standard of review does not permit this Court to consider the plausibility of the allegations. Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So.3d 544, 546 (Ala. 2016); we do not consider “ ‘whether the pleader will ultimately prevail but whether the pleader may possibly prevail,’ ” Daniel v. Moye, 224 So.3d 115, 127 (Ala. 2016) (quoting Newman v. Savas, 878 So.2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, 224 So.3d at 127. Furthermore, a Rule 12(b)(6) dismissal is proper “ ‘only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ” Knox v. Western World Ins. Co., 893 So.2d 321, 322 (Ala. 2004) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993)).

In this case, regardless of our view on the likelihood of the plaintiffs’ ultimate ability to establish the truth of the intent-to-injure allegations, or even to survive the summary-judgment stage, we cannot deny that there is at least some possibility that those allegations are true. Accordingly, the plaintiffs are entitled to at least limited discovery on the issue whether their claims are subject to the exclusivity provision of the LHWCA. Thus, Austal has not shown a clear legal right to.a Rule 12(b)(6) dismissal.

IV. Conclusion

Austal has not demonstrated a clear legal right to an order granting its Rule 12(b)(6) motions to dismiss. Therefore, we deny the petitions.

1151138—PETITION DENIED.

1151244—PETITION DENIED.

Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur.

Shaw, J., concurs in the result.

      . The plaintiffs sued Metabowerke GMBH and Metabo Corporation, foreign corporations alleged to have manufactured the Miller saw, and Southern Gas and Supply, Inc., a company that allegedly played a role in the design and distribution of the saw. The plaintiffs asserted claims of negligence, wantonness, and product liability against those three defendants. The claims against those three defendants are not at issue in Austal’s petitions.

      . The fourth amended complaint also restated the previously dismissed tort-of-outrage claim. Austal moved to dismiss that claim on the ground that the trial court had previously dismissed the claim with prejudice. The trial court again entered an order dismissing the tort-of-outrage claim.

      . Austal also argues that, to the extent it applies, the Alabama Workers’ Compensation Act bars the plaintiffs’ tort claims. This argument appears tp made out of an abundance of caution, given the possibility of concurrent LHWCA and state-law workers’ compensation benefits. See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). Nevertheless, based on the briefs before us, it appears that the parties consider this ease to be ultimately governed by the LHWCA. Accordingly, we do not address the applicability of the exclusivity bar of the Alabama Workers’ Compensation Act.

      . Whether count VII, which asserts a claim of ‘‘intentional misconduct,” states an independent cognizable claim under Alabama law is not an issue presently before this Court.

      . It is not uncommon that some discovery may be necessary to establish an immunity defense. See, e.g., Ex parte Alabama Dep’t of Mental Health & Retardation, 837 So.2d 808, 813-14 (Ala. 2002) (“We agree that a motion to dismiss is typically not the appropriate vehicle by which to assert qualified immunity or State-agent immunity and that normally the determination as to the existence of such a defense should be reserved until the summary-judgment stage, following appropriate discovery.”).


author: THOMAS, Judge. DONALDSON, Judge,

text:
    Kevin VENTURI v. Miranda VENTURI
    2150279
    Court of Civil Appeals of Alabama.
    September 16, 2016
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1151353
    Jennifer H. Castro of Castro Law Firm, LLC, Athens, for appellant.
   THOMAS, Judge.

In March 2015, .Miranda Venturi (“the. mother”) filed a protection-from-abuse (“PFA”) petition in the Lauderdale Circuit Court (“the trial court”). On May 13, 2015, the trial court entered a judgment in the PFA action. On June 11, 2015, Kevin Venturi (“the father”) filed a post-judgment motion directed to the May 13, 2015, judgment. On July 28, 2015, the .trial court entered the following order: “The Motion to Alter, Amend or Vacate filed by the [father] is granted in part. The issue of supervised visitation between the father ... and the minor child is set for a hearing on the 2.4th day of August, 2015, at 8:30 a.m.” The trial court continued the hearing three times; the hearing was ultimately held on December 7, 2015. The trial court’s December 7, 2015, order purporting to deny the relief requested in the'father’s postjudgment motion, entered after that hearing, indicates that the hearing was not an evidentiary hearing and states plainly that the trial court was considering the father’s postjudgment motion. The father filed his notice of appeal on December 21, 2015.

“Although neither party has questioned this court’s appellate jurisdiction, a lack of appellate jurisdiction resulting from a party’s failure to timely file, a notice of appeal ‘cannot be waived’;, indeed, ‘this court can raise the issue ex mero motu.’ Carter v. Hilliard, 838 So.2d 1062, 1063 (Ala.Civ.App.2002), and Moragne v. Moragne, 888 So.2d 1280, 1283 (Ala.Civ.App.2004); see also Rule 2(a)(1), Ala. R. App. P. (stating that an appeal shall be dismissed if the notice of appeal is not timely filed to invoke the jurisdiction of the appellate court).”

Smith v. Smith, 4 So.3d 1178, 1180-81 (Ala.Civ.App.2008).

We have held that an order that does nothing more than indicate that a trial court intends to hold a hearing on an issue raised in a postjudgment motion is not sufficient under Rule 59.1, Ala. R. Civ. P., to amount to a ruling on the motion and does not toll the running of the 90-day period to rule on the motion. Smith, 4 So.3d at 1181. The order entered on the postjudgment motion at issue in Smith read as follows:. “ ‘JVIotion for new trial filed by [the father] is hereby granted in part. Set for a hearing.’ ” Smith, 4 So.3d at 1180. We explained in Smith that, in order to toll the 90-day period for ruling on a postjudgment motion provided in Rule 59.1, a trial court’s order must either grant or deny that motion. Id. at 1181.

“As stated in Ex parte Johnson Land Co., ‘ “the-ruling-that Rule 59.1 requires to be entered within ninety days is one which (1) denies the - motipn, . or (2) grants the motion.” ’ 561 So.2d [506,] 508 [ (Ala.1990) ] (quoting French v. Steel, Inc., 445 So.2d 561, 563 (Ala.1984)). Thus, the trial court’s order ostensibly ‘granting’ the father’s postjudgment motion ‘in part’ but actually only setting the postjudgment motion for a hearing was not a ruling on the merits.”

Id.; see also Eight Mile Auto Sales, Inc. v. Fair, 25 So.3d 459, 462 (Ala.Civ.App.2009) (determining that a district court’s ’order granting a postjudgment motion “in part” was ineffective to toll the running of the 14-day period for the district court to rule on the postjudgment motion, see Rule 59.1(dc), Ala. R. Civ. P. (providing that the time for a district court to rule on a post-judgment motion is 'shortened to 14 days), because the district court’s order “did not grant any substantive relief or rule on the merits of the motion” and instead only set the matter for a hearing).

Because the July 28, 2015, order “granting” the father’s postjudgment motion “in part,” like the order at issue in Smith, did no more than set the supervised-visitation issue raised in the father’s postjudgment motion for a later hearing, we conclude that the trial court’s July 28, 2015, order was not effective1 to toll the ruhning of the 90-day period in Rule 59.1. Thus, the father’s postjudgment motion was denied by operation of law on September 9, 2015, see Rule 59.1, the trial court lost jurisdiction over the action at that time, and its December 7, 2015, order is a nullity. See Robinson v. Robinson, 840 So.2d 180, 183 (Ala.Civ.App.2002).

The father’s appeal was filed more than 42 days after the denial of the father’s postjudgment motion as a matter of law. His appeal is therefore an untimely appeal from the May 13, 2015, judgment. An untimely appeal does not properly invoke this court’s appellate jurisdiction. Smith, 4 So.3d at 1181. Accordingly, we dismiss the father’s appeal.

'APPEAL DISMISSED.-

Thompson, P.J., and Pittman and Moore, JJ., concur.

Donaldson, J., concurs specially.

DONALDSON, Judge,

concurring specially.

A final judgment was entered May 13, 2015, in favor of Miranda Venturi (“the mother”) and against Kevin Venturi (“the father”). On June 11, 2015, the father filed a timely postjudgment motion titled “Motion to Alter, Amend, or Vacate,” pursuant to Rule 59, Ala. R. Civ. P. The motion challenged the sufficiency of the evidence to support the judgment and evidentiary rulings made by the trial court during the trial. The motion sought the following relief: “[The father] prays that this Honorable Court will alter, amend, or vacate this Honorable Court’s order of May 13, 2015. Should this Honorable Court elect to vacate this Honorable Court’s order of May 13, 2015, [the father] respectfully requests that a new trial be scheduled as soon as possible.”

On June 12, 2015, the father submitted two affidavits in support of his post-judgment motion. On June 19, 2015, the trial court set the father’s postjudgment motion for a hearing to be held on July 20, 2015.

On July 28, 2015, the trial court entered the following order: “The Motion to Alter, Amend or Vacate filed by the [father] is GRANTED in part. The issue of supervised visitation between the father ... and the minor child is set for a hearing on the 24th day of August, 2015, at 8:30 a.m.” (Capitalization in original.)

On August 18, 2015, the mother filed a motion to stay further proceedings in the trial court based on the pendency of another case involving the parties that was scheduled for trial on September 17, 2015. The father filed a response in opposition to the motion to stay. In that response, the father stated: “The upcoming hearing, set for this case on August 24, 2015, at 8:30 a.m. before this Honorable Court, has been set to address a post-trial motion filed by the [father].”

The motion to stay was granted. The hearing contemplated in the July 28, 2015, order was not held until December 7, 2015. No testimony was taken at the hearing. On December 7, 2015, the trial court entered, an order that provides, in pertinent part:

“This cause comes before the Court on a Motion to Alter, Amend or Vacate filed by the [father], and the Court having granted the motion in part and having set the visitation of the minor child for a hearing and the Court having listened to the arguments of the attorneys and having considered the same hereby ORDERS, ADJUDGES and DECREES as follows:
Í. After careful consideration of all the previous testimony, the Court orders that the [judgment] entered on May 13th, 2015, remains in full force and effect. ...”

(Capitalization in original.)

The father filed a notice of appeal on December 21, 2015. The notice of appeal lists May 13, 2015, as the date of the judgment and December 7, 2015, as the date of the order entered on the post-judgment motion.

The May 13, 2015, judgment was entered following a trial conducted without a jury. Rule 59(a), Ala. R. Civ. P., provides, in part:

“A new trial may be granted ... (2) on all or part of the issues in an action tried without a jury .... On a motion for a new trial in an action tried without a jury, the court may open the judgment ..., take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.”

The father’s postjudgment motion sought to alter, amend, or vacate the judgment and a new trial. The July 28, 2015, order of the trial court “grant[ing] in part” the father’s postjudgment motion could be construed as an order vacating a portion of the May 13, 2015, judgment and setting the issue addressed in that portion of the judgment for a new trial as provided in Rule 59(a). That is not, however, how the father construed the ruling, as is reflected in his August 21, 2015, response to the motion to stay and in his brief to this court, in which he states: “A final hearing on [the postjudgment motion] after several continuances, was conducted on the 7th day of December, 2015, with the [trial court] denying the requests for relief pertinent to this appeal.” Likewise, the trial court’s December 7, 2015, order does not appear to construe the July 28, 2015, order as granting the father any relief from the May 13, 2015, judgment. Therefore, I agree that the appeal is untimely because the July 28, 2015, order did not effectively rule on the postjudgment motion so as to affect the father’s time to appeal. Smith v. Smith, 4 So.3d 1178, 1180-81 (Ala.Civ.App.2008).

Moreover, I write to observe that there could be confusion associated with the entry of an electronic order that contains the term “granted” and that is generated within the trial court’s electronic-filing system when the electronic ordelr pertains to a postjudgment motion, especially considering that a typical postjudgment motion seeks multiple forms of relief, including that the judgment be altered, amended, or vacated, and/or that a new trial be granted. To avoid confusion, a ruling by the trial court purporting to grant any requested relief in a timely filed postjudgment motion should, within the time provided by Rule 59.1, Ala. R. Civ. P., specifically alter or amend something in the judgment, specifically vacate all or a portion of the judgment, or specifically state that a new trial is ordered.

      . The December 7, 2015, order states, in pertinent part:
      , “This cause comes before the Court on a Motion to Alter, Amend or Vacate filed by the [father] and the Court having granted the motion in part and having set the visitation of the minor child for a hearing and the Court having listened to the arguments . of the attorneys and having considered the same .... ”
      In addition, the transcript of the December 7, 2015, hearing indicates that no witnesses testified and that the trial court heard only arguments of counsel.


author: PITTMAN, Judge.

text:
    BOAZ CITY SCHOOL BOARD v. Kevin STEWART
    2150582
    Court of Civil Appeals of Alabama.
    November 4, 2016
    Rehearing Denied February 17, 2017
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160463
    Jeffrey McLaughlin of McLaughlin & Edmondson, LLC, Guntersville, for appellant.
    John D. Saxon, Birmingham, for appel-lee.
    Carl Johnson of Bishop, Colvin, Johnson & Kent, LLC, Birmingham, for amicus curiae Alabama Association of School Boards, in support of the appellant.
   PITTMAN, Judge.

This appeal arises from teacher-disciplinary proceedings under the Students First Act (“the SFA”), Ala. Code 1975, § 16-24C-1 et seq., involving Kevin Stewart (“the teacher”), a teacher in the City of Boaz school system. The superintendent of the Boaz school system, in a letter dated April 8, 2015, notified the teacher that termination of the teacher’s employment would be recommended by the superintendent because of the teacher’s work at a pawn shop during the course of a paid medical leave from.his employment as a teacher with the Boaz school system. After an ore tenus proceeding, the Boaz City School Board (“the Board”) voted to terminate the teacher’s employment. The teacher timely sought appellate review of that decision,, and a hearing officer was appointed to hear the teacher’s appeal on the administrative record. That hearing officer issued an order determining that the Board’s action was arbitrary and capricious and that the Board’s decision was due to be reversed. The Board appealed to this court from the hearing officer’s order.

Under the SFA, hearing officers are to apply an “arbitrary-and-capriciouS’ standard of review ... of employers’ decisions under the SFA.” Ex parte Lambert, 199 So. 3d 761, 768 (Ala. 2015). That standard “is meant to be extremely deferential to the ... decision” of a board of education employing a teacher, such as the Board in. this case, and “ ‘require[s] ... deference to’” the pertinent board’s decision from hearing officers “ ‘even if [a hearing officer] would have reached a different result than did the [b]oard.’ ” Huntsville City Bd. of Educ. v. Jacobs, 194 So.3d 929, 939 (Ala. Civ. App. 2014) (quoting Chilton Cty. Bd. of Educ. v. Cahalane, 117 So.3d 363, 368 (Ala. Civ. App. 2012)).

We further note that, in undertaking appellate review of a hearing officer’s order entered in a case governed by the SFA, we review that order with no presumption that the order, as opposed to the decision of the disciplining board of education, is correct. See Cahalane, 117 So.3d at 368 (noting that, in disciplinary proceedings under the SFA, school boards receive evidence and are triers of fact and that hearing officers are “in no better position than is this court -to review” disciplinary decisions of school boards under the SFA). Cf. Alabama Dep’t of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 385 (Ala. Civ. App. 2008) (noting that, in the analogous context of proceedings involving judicial review of an administrative-agency decision under the Alabama Adininistrative Procedure Act, Ala. Code 1975, § 40-22-1 et seq., this court will review a circuit court’s judgment without a presumption of correctness because the circuit court is in no better position to review an agency’s decision than is this court). In effect, this court’s review function under the SFA is similar to that' obtaining in administrative-law' settings generally—that is, review of the underlying decision “as though the [initial] appeal had been taken directly to this court.” State Oil & Gas Bd. v. Seaman Paper Co., 285 Ala. 725, 742, 235 So.2d 860, 876 (1970); accord Alabama Pub. Serv. Comm’n v. Nunis, 252 Ala. 30, 34, 39 So.2d 409, 412 (1949).

The record before the Board reveals the following facts. In pursuance of its responsibilities as to governance of the school system in the City of Boaz, the Board has adopted a policy' manual governing the conduct of, among other things, the Board’s employees. Among the provisions of the policy manual is § 5.9.3, which governs paid sick leave of regular, full-time employees; two of its subdivisions provide as follows: "

“5.9.3.a.1.3 Use of Sick Leave—Eligible employees may only use sick leave for absences caused by the following:
“1. Personal illness.
“2, Incapacitating personal injury..
“5,9.3.a.l.4 Certification—Employees must certify that sick leave was used for one of the reasons provided in state law and specify the reason. If the employee’s principal or department head has probable cause to believe that an employee has abused or misused sick leave, a physician’s statement verifying the existence and nature of the illness or medical condition may be required by the Board. Abuse of sick leave may subject the employee to disciplinary action. “[Reference: Ala. Code § 16-1-18.1 (1975) ].”

(Emphasis added.) The Board’s policy manual also contains a prohibition of conflicts of interest, § 5.6, that provides that “[e]mployees may not use their offices or positions for personal gain and must adhere to applicable provisions of’ state ethics laws and may engage in “outside employment” only under particular terms and conditions, including:

“a. Employees will not engage in outside business activities or render any service for another employer during such time as duties and responsibilities have been assigned by the Board;
“b. Employees will not accept outside employment that would interfere with or impair the ability of the employee to perform duties as a Board employee effectively.”

The teacher has worked as an agricultural-science instructor at Boaz High School since 2001 and has, on occasion, worked as a tennis and swimming coach there. On or before January 12, 2015, the teacher and two other persons formed a corporation called “Sand Mountain Pawn and Outdoors, Inc.,” in order to operate an existing pawn-shop business that was conveyed to the incorporators by another person; according to testimony at the hearing before the Board, the teacher held a 35% ownership interest in the pawn-shop business. Soon thereafter, the teacher began disengaging from his work for the Board, directly notifying a superior on January 21, 2015, that he would no longer be able to coach tennis “[d]ue to the advice of [his] physician” and submitting a form “absence authorization” dated January 26, 2015, obtained from a chiropractor stating that the teacher was under the chiropractor’s cai-e and recommending that the teacher be “excused” from January 27, 2015, through February 24, 2015. However, the particular illness or injury made the basis of the teacher’s absence from his duties was not disclosed in either communication.

On February 4, 2015, during the period for which the teacher had sought to “excuse” his absence from his educational duties, another Board employee who had received information that the teacher was working at the pawn-shop business’s location went to that location and observed the teacher assisting customers of the business; when asked why he was working for the pawn-shop business while on sick leave from his employment with the Board, the employee admitted that the question was “kind of tricky” but apparently did not provide a substantive answer. On February 10, in response to that encounter, the teacher hand delivered a letter to the school-system superintendent again formally requesting a medical leave of absence and a form signed by a physician at a family-medicine clinic stating that the teacher was “[f]ully restricted” from working “until reassessment on February 24, 2015, and release[] by” the chiropractor who had executed the January 26, 2015, form. Again, however, neither the letter nor the form specified an illness or injury suffered by the teacher.

On February 16, 2015, the Boaz school superintendent sent a letter to the teacher (“the February 2016 letter”) stating that the work excuse from the family-medicine physician “failed to certify the information required under” § 5.9.3 of the Board’s policy manual; directing the teacher to “immediately obtain certification regarding the existence, nature and extent of [his] medical condition,” to include “whether reasonable accommodations might be provided by the Board so that [he could] continue working for the Board”; and seeking, if no accommodations could be provided, “an explanation as to how [the teacher could] be unable to teach but still perform work” for the pawn-shop businéss. The February 2016 letter was hand delivered to the teacher-at the pawn-shop business’s location on February 18, 2015. Six days later, on February 24, 2015, the teacher sent an e-mail message to the superintendent stating that he was “requesting to extend [his] medical leave” and that he would “remit [his] physician’s certification” on February 27, 2015. Also on February 24, 2015, the teacher’s chiropractor prepared a letter to the superintendent averring that the employee was “being treated for a serious chronic degenerative health condition” that “can result in transient periods of partial to full incapacitation,” that the chiropractor had conducted a “re-examination” of the teacher on that date and had observed “remaining positive orthopedic tests, decreased range of motion, and weakness of the extensor muscles of the spine,” and that the chiropractor could “recommend no accommodations to [the teacher’s] school work environment that [would] ensure[ ] the safety and well being of’ the teacher or his students. The letter sought to extend the teacher’s release from work until April 7, 2015, and stated that the teacher’s condition would be reevaluated as to his ability to return to his work duties for the Board. The chiropractor’s letter was provided to school-system personnel on March 4, 2015, in connection with the teacher’s rejection of an offer by the Board to accommodate the teacher by allowing him to do light-duty work.

In light of the chiropractor’s letter, the superintendent transmitted to the Board a recommendation on March 13, 2015, that leave for the teacher be approved for up to 12 weeks in duration, with paid sick leave and personal leave being expended first and the remaining leave being unpaid under applicable federal law. After the Board had accepted the superintendent’s recommendation, the superintendent sent a second letter to the teacher (“the March 2015 letter”) notifying him that, although his request for leave had been approved, he would be required, as of April 2, 2015, to pay for any further employee benefits and that the teacher would not receive regular pay for any further leave; the superintendent also represented that, under § 5.6 of the Board’s policy manual, the teacher was not to engage in any outside business activities for other employers between the hours of 7:30 a.m. and 3:00 p.m. Monday through Friday and warned that it would be the responsibility of the teacher to keep the superintendent informed as to the teacher’s status. The March 2015 letter, like the February 2015 letter, was personally delivered to the teacher at the pawnshop business’s location, where the teacher was observed to have been discussing arrangements of displays at the location.

On April 8, 2015, after the teacher had been observed by private’ investigators to have been exerting himself at the pawnshop business’s location to pull and push heavy items such as shelving racks, lawn mowers, and pallets, he reported to work for the Board without having obtained medical clearance. The superintendent thereafter sent a third letter to the teacher (“the April 2015 letter”) informing him that the superintendent would be recommending to the Board that the teacher’s employment be terminated. The April 2015 letter, among other things, stated that the teacher had not been present for work during school hours, averred that the teacher had been observed both before and after the granting of his medical-leave requests working at the pawn-shop business’s location, and concluded that the teacher had “not been forthcoming about [his] ownership interest in the [pawn-shop business, [his] work there, and/or [his] medical condition/ability to work.” The April 2015 letter also informed the teacher of his right to request a hearing before the Board regarding the proposed termination of his employment, which hearing was requested and granted.

At the hearing on the employee’s termination, the employee testified that the condition for which he had sought chiropractic treatment was a detachment of-one of his ribs from his spinal column; he initially identified the detachment as having been a discrete event that occurred on January 27, 2015, the day after the chiropractor’s “absence authorization” form was completed, but later testified that the condition was one from which he had suffered for approximately 10 years before the hearing and that nothing had. “trigger[ed]” his work absence in late January 2015. Further, the evidence adduced at the hearing revealed the teacher to have been a near-constant fixture at the pawn-shop business’s location during his time off from his teaching-job between January 2015 and April 2015, and he admitted that he had not been “completely forthcoming ... about how much [he had been] doing” at that location with Board personnel. After the close of the hearing, the Board voted unanimously to terminate • the teacher’s employment and issued a written decision observing that the evidence had established both the substance of the superintendent’s grounds stated in the April 2015 letter and that the teacher had failed “to adhere to [B]oard policy including but not limited to [§ ] 5.6” (emphasis added).'

Pursuant to Ala. Code 1975, § 16-24C-6(a), a portion of the SFA, “[t]enured teachers ... may be terminated at any time ... for incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, or other good and just cause.” In this case, the Board concluded that the. superintendent, in light of dhe teacher’s ongoing involvement with the pawn-shop business during his absence from his work for the Board, had correctly identified the teacher’s conduct with respect to seeking, obtaining, and using sick leave with respect to his long-standing chronic rib condition as being, in effect, a misrepresentation or suppression of his ability to work for the Board. Stated in another manner, the work absences on the part of the teacher between January 2015 and April 2015 could properly have been determined by the Board actually to have been “caused” by his desire to perform duties in aid of the pawn-shop business that he co-owned so as to be outside the permissible scope of sick leave under § 5.9.3.a.l.3 of the Board’s policy manual, especially given the teacher’s conduct in reporting for work with no medical or chiropractic release to do so just after the paid component of the leave approved by > the Board had expired in early April 2015. Compare Waters v. City & Cty. of Montgomery Pers. Bd., 507 So.2d 951, 952 (Ala. Civ. App. 1986) (employee who had gone hunting while on sick leave properly held to have abused sick leave so; as- to- warrant termination of public employment).

As amicus curiae the Alabama Association of School Boards correctly notes, Standard 2 of the Alabama Educator Code of Ethics, which stipulates that educators “should exemplify honesty and integrity in the course of professional practice,” Ala. Admin. Code (State Bd. of Educ.), Rule 290-4-l-.01(6)(c), also specifically proscribes “[falsifying, misrepresenting, omitting, or erroneously reporting reasons for absences or leaves.” Rule 290-4-1-.01(6)(e)2(iv). The Board’s determination that the teacher’s conduct in this case'warranted discipline was consistent with the duty of school systems under state administrative regulations of ensuring that “all educators ... who have contact with children ... act in accordance with” that ethical code. Rule 290-4-l-.01(6). Thus, the Board’s action, far from being arbitrary or capricious so as to run afoul of the standard espoused by our supreme court in Lambert, supra, falls squarely within the authority of a school board to terminate the employment of a tenured teacher for conduct within the scope of § 16-24C-6(a).

We conclude that the decision of the Board to terminate the employment of the teacher was proper. We do so notwithstanding the contrary conclusion of the hearing officer, who in our view improperly limited his inquiry in the order reversing the Board’s decision solely to whether the conduct demonstrated in the eyidentia-ry record before the Board amounted to a violation of the conflict-of-interest provisions contained in § 5.6 of the Board’s policy manual. Cfi Cahalane, 117 So.3d at 371 (holding that the same hearing officer as in this case “erred in substituting his judgment for that of’ the pertinent school board in that case). The order under review is, therefore, reversed, and the cause is remanded to the hearing officer with instructions to affirm the Board’s decision.

REVERSED AND REMANDED WITH INSTRUCTIONS..

Thompson, P. J., and Thomas, Moore, and Donaldson, JJ., concur.

      . The teacher sent a handwritten request to the superintendent on March 4, 2015, clarifying that the anticipated ending date for the medical leave he was seeking was April 7, 2015.

      . A second copy of the March 2015 letter was sent to the teacher via certified mail.


author: MOORE, Judge.

text:
    Valerie SMITH v. WELLS FARGO BANK, NA
    2150715
    Court of Civil Appeals of Alabama.
    November 4, 2016
    Rehearing Denied March 3, 2017
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160506

      Mark Erdberg of Jaffe & Erdberg, P.C., Birmingham, for appellant.
    Thomas Coleman, Jr., of Smith, Spires, Peddy, Hamilton & Coleman, P.C., Birmingham, for appellee.
   MOORE, Judge.

Valerie Smith appeals from a summary judgment entered by the Jefferson Circuit Court .(“the trial court”) in favor of Wells Fargo Bank, NA (“Wells Fargo”), on Smith’s claims. We reverse the trial court’s judgment and remand the case.

Procedural History

On February 13, 2015, Smith filed a complaint against Wells Fargo and a number of fictitiously named defendants, alleging, among other things, that, on March 12, 2013, she had visited the Wells Fargo branch in East Lake in Birmingham; that an employee of Wells Fargo had instructed Smith to sit in a chair; and that the chair had collapsed, causing Smith to be injured. Smith asserted claims of negligence; wantonness; failure to maintain the premises in a safe condition; failure to warn; negligent and wanton hiring, training, and supervision; and respondeat superior. Wells Fargo answered the complaint on March 10, 2015. On January 26, 2016, Wells Fargo filed a motion for a summary judgment, arguing that it was entitled to a summary judgment because the seating capacity of the chair constituted an open and obvious danger to Smith in relation to her size and that Wells Fargo had had no knowledge that the chair would constitute a dangerous condition on its premises. Smith filed a memorandum in opposition to Wells Fargo’s summary-judgment motion on February 26, 2016. On February 29, 2016, Wells Fargo filed an evidentiary submission in support of its summary-judgment motion, attaching thereto photographs as exhibits to one of the depositions that had been included as part of its original submission. Smith filed a response to that evidentiary submission on March 2, 2016, in which she, among other things, moved to strike from the record each of those photographs as not having been properly authenticated. On March 9, 2016, the trial court entered an order granting Wells Fargo’s motion for a summary judgment as to all the counts in Smith’s complaint. Smith filed her notice of appeal to the Alabama Supreme Court on April 20, 2016; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1976.

Facts

Wells Fargo attached to its summary-judgment motion, among other things, excerpts of the transcript of Smith’s deposition testimony. In that deposition, Smith testified that she was 33 years old and that, on the day of the incident, she had gone to the bank with her mother so that her mother could have a document notarized. According to Smith, when the branch manager learned that she did not have an account at Wells Fargo, he told her and her mother to come into his office and Smith and her mother complied with that request. Smith stated that she went to sit down in a chair that was positioned in the manager’s office to the left, that she could not really maneuver because she is “a heavy person,” and that she “would never just flop down in a chair,” but she had not even had a chance to put her weight or her rear into the chair when it made a loud, cracking noise, fell apart, and collapsed. She stated that she had tried to catch herself but had been unable to and that she had hurt her knee and her back in the resulting fall. Smith confirmed that she had not put any weight onfo the chair and that it had fallen apart once she had put her hand on it. She stated that she has wide hips so she could not sit back in the chair. According to Smith, when she sits she does so gently, and, she said, she was surprised when the chair collapsed. She stated that the branch manager had seemed very surprised and shocked when the chair collapsed. Smith testified that, because she has wide hips, she tries not to sit all the way back onto any chair, especially chairs with armrests, and that, when she does, she is very careful. She stated that, before she attempted to sit on the chair in question, she had had no concerns and that the chair had seemed stable enough to her.

Wells Fargo also attached to its summary-judgment motion excerpts from the transcript of Patricia Crenshaw’s deposition testimony. Crenshaw, Smith’s mother, testified that she had visited the branch at East Lake maybe 10 times before the incident and that she had never seen anyone have problems with a fall or chairs breaking or heard of such an incident. She testified that nobody had said anything about the chair after the fall and that the branch manager had been as surprised as she and Smith after the fall.

In its response to Smith’s request for production of documents, Wells Fargo asserted that it was not aware of any instances of the subject chair or any chairs collapsing before Smith’s accident. Smith attached a copy of the entirety of the transcript of her depositión testimony to her response to Wells Fargo’s summary-judgment motion. Smith also testified that she had never heard of anybody else being injured at the bank as the result of a chair disassembling. Smith also submitted her affidavit, in which she stated that, before the chair collapsed, the bank’s branch manager had instructed her to sit down in one of the bank’s chairs. She testified that she had never had a chair collapse out from under her before.

Standard of Review?'

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala. 1992).
“‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving ■ party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that, burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw ¿11 reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the non-moving party must present “substan-. tial evidence” creating a genuine issue of material fact—“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.” Ala, Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004).”

Chancellor v. White, 34 So.3d 1270, 1273 (Ala. Civ. App. 2008).

Analysis

Smith first argues on appeal that she was an invitee of Wells Fargo at the time of her injury and that the trial court therefore erred in entering a summary judgment in favor of Wells Fargo because, she says, Wells Fargo denied in its summary-judgment motion that Smith was an invitee of the bank. Smith argues that whether a plaintiff is a licensee or an invitee is a question for a jury and, thus, that the entry of a summary judgment was inappropriate. We note that, in its summary-judgment motion, Wells Fargo stated; in pertinent part: “[Wells Fargo], for purposes of its legal argument, will assume that [Smith] was an invitee on the. day of her accident, but [Wells Fargo] does not concede this point.” Wells Fargo proceeded to analyze Smith’s claims as though Smith was an invitee of the bank. Accordingly, the trial court’s granting of Wells Fargo’s motion for a summary judgment did not amount to a finding by the trial court that Smith was not an invitee of the bank. Rather, Wells Fargo proceeded in its summary-judgment motion as though Smith had been an invitee of the bank, and the trial court concluded that, assuming Smith was an invitee, Wells Fargo was still entitled to a summary judgment:' Becahse Smith has' failed to show that the trial court erred on this point, we decline to address whether Smith was properly considered an invitee of Wells Fargo, and, instead, we proceéd, as Wells Fargo did in its summary-judgment motion, as though Smith was ah invitee of the bank.'

Smith next argues that the trial court erred in entering a summary judgment in favor of Wells Fargo because, she says, whether the danger was open and obvious and whether Wells Fargo had actual or constructive knowledge that the chair .was defective were questions for a jury. We agree. ■

In its summary-judgment motion, Wells Fargo argued, among other things, that Smith “recognized and anticipated the open and obvious danger posed by the chair’s size in relation to hers” and that it cannot be liable for injuries to an invitee, such as Smith, “when the danger should have been perceived in the exercise of reasonable care.”

“‘A condition is “open and obvious” when it is “known to the [plaintiff] or should have been observed by the [plaintiff] in the exercise of reasonable care.” Quillen v. Quillen, 388 So.2d 985, 989 (Ala. 1980). “The entire basis of [a store owner’s] liability rests upon [its] superi- or knowledge of the danger' which causes the [customer’s] injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the [store owner] cannot' be held liable.” Id. (citation omitted).’ ”

Horne v. Gregerson’s Foods, Inc., 849 So.2d 173, 176 (Ala. Civ. App. 2002) (quoting Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala. 2002)).

In this case, Smith testified in her deposition that she is a heavy person and' that she has wide hips and tries not to sit all the way back into any chair, especially a chair with armrests. Smith also stated, however, that she had not put her weight on, or her rear into, the chair before it collapsed and that the chair had fallen apart once she put her 'hand onto it. Smith testified that the chair had seemed stable to her before she attempted to sit in it and that she had been surprised when the chair collapsed, as was the bank’s branch manager. Our supreme court has observed that

“ ‘[questions of openness and obviousness of a defect or danger and of an [invitee’s] knowledge are generally not to be resolved on a motion for summary judgment.’ Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 463 (Ala. 1993). See also Woodward[ v. Health Care Auth. of Huntsville, 727 So.2d 814 (Ala. Civ. App. 1998) ]. Additionally, ‘this Court has indicated that even though a defect is open and obvious, an injured invitee is not barred from recovery where the invitee, acting reasonably, did not appreciate the danger of the defect.’ Young v. La Quinta Inns, Inc., 682 So.2d 402, 404 (Ala. 1996).” '

Ex parte Kraatz, 775 So.2d 801, 804 (Ala. 2000). Viewing the evidence in a light most favorable to Smith, as we must, we conclude that genuine issues of material fact remain as to whether the danger presented in the present case was open and obvious and whether Smith appreciated the danger of any defect. Accordingly, the entry of a summary judgment was inappropriate with regard- to Wells Fargo’s argument that the chair presented an open and obvious danger.

Wells Fargo also argued in its summary-judgment'motion that it lacked superior knowledge of the danger presented by the chair. In Hale v. Kroger Limited Partnership I, 28 S.o.3d 772, 778-79 (Ala. Civ. App. 2009), this court stated, in pertinent part:

“ ‘A premises owner owes his, invitees a duty to keep the premises in a reasonably safe condition and to warn them of any “defects and dangers that are known to the landowner but are unknown or hidden to the invitee[s].” Prentiss v. Evergreen Presbyterian Church, 644 So.2d [475] at 477 [(Ala. 1994) ] (emphasis added); and Howard v. Andy’s Store for Men, 757 So.2d 1208, 1210 (Ala. Civ. App. 2000). A premises owner, however, owes no duty to.protect invitees from all conceivable dangers they might face while on the premises because “ ‘[t]he owner of a premises ... is not an insurer of the safety of his invitees ... and the principie of res ipsa loqui-tur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee.’ ” Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala. 2000) (quoting Tice v. Tice, 361 So.2d [1051] at 1052 [ (Ala. 1978) ]). See also Kmart Corp. v. Bassett, 769 So.2d 282, 286 n. 4 (Ala. 2000) (holding that the principle of res ipsa loquitur does not apply to premises-liability claims).
“ ‘Instead, “ ‘[t]he entire basis of an invitor’s liability rests upon his superi- or knowledge of the danger which causes the invitee’s injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable.’ ” Jones Food Co. v. Shipman, 981 So.2d 355, 363 (Ala. 2006) (quoting Quillen v. Quillen, 388 So.2d 985, 989 (Ala. 1980)). See also Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala. 2002); and Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937).’
“Edwards v. Intergraph Servs. Co., 4 So.3d 495, 503 (Ala. Civ. App. 2008).
“In Winn-Dixie Store No. 1501 v. Brown, 394 So.2d 49 (Ala. Civ. App. 1981), this court stated:
‘“As the burdén of showing negligence rests with the plaintiff, it is necessary to prove: (a) that the foreign substance slipped upon was on the floor a sufficient length of time to impute constructive notice to the defendant, or (b) that the defendant had actual notice of the substance’s presence on the floor, or (c) that the defendant was delinquent in not discovering and removing the foreign substance. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors. S.H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1957).’
394 So.2d at 50. In the context of a motion for a summary judgment, the movant has the burden of proving such facts as would negate an essential element in the nonmovant’s claim or demonstrating that the nonmovant does not have sufficient evidence to support an essential element of his or her claim. Ex parte General Motors, 769 So.2d 903, 909 (Ala. 1999).”

Wells Fargo cites Gasser Chair Co. v. Nordengreen, 991 N.E.2d 122 (Ind. Ct. App. 2013), a case in which a chair collapsed when a patron of a casino sat on the chair. The Indiana Court of Appeals affirmed a summary judgment in favor of the casino on the patron’s premises-liability claim because the patron had failed to demonstrate that the casino had actual or constructive knowledge that the chair was dangerous. 991 N.E.2d at 126-27. In the present case, Wells Fargo presented evidence indicating that there had been no incidences of any chairs collapsing at the particular Wells Fargo branch location before Smith’s incident. Additionally, both Smith and her mother testified in their depositions that they had not been aware of any chairs collapsing at the bank before the incident. Smith and her mother also testified that the bank manager had looked shocked and surprised when the chair collapsed beneath Smith. Thus, Wells Fargo presented evidence negating any inference that Wells Fargo was aware of any defect in the chair. Like in Nordengreen, Smith failed to present any evidence in response to Wells Fargo’s summary-judgment motion indicating that Wells Fargo had actual or constructive knowledge that the chair that collapsed and caused her injuries was dangerous.

Smith cites Winn-Dixie Montgomery, Inc. v. Weeks, 504 So.2d 1210 (Ala. 1987), however, for the proposition that the collapse of the chair itself could lead to the inference that the chair was defective. In Weeks, a child that was riding in a shopping cart at a grocery store tried to reach candy that was in a display rack next to the checkout counter and, as he did so, the shopping cart tilted over and the child’s cheek was impaled on an allegedly broken wire that was sticking up on the candy rack. Id. at 1210. Our supreme court determined that the case had properly been submitted to the jury to determine whether the shopping cart and the candy rack were defective, despite the grocery store’s argument that there had been no evidence showing how long the alleged defect might have existed or that the grocery store had been aware, or should have been aware, of the defect. Id. at 1211. Specifically, our supreme court stated that “[t]he evidence in [Weeks] was susceptible of several inferences,” noting that “[o]ne inference that could be drawn by a jury was that the cart provided was defective, and that the defect caused it to collapse when a child tried to reach candy placed within a child’s reach at the check-out counter.” 504 So.2d at 1211.

Smith also cites Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala. 1990), in which the patron of a restaurant injured herself after tripping on the metal threshold of a doorway. Our supreme court distinguished that ease from one in which a substance had caused a slick spot on a floor, observing that, when the defect or instrumentality is a part of the premises, like the cart or display rack in Weeks, and the instrumentality requires ordinary and reasonable maintenance in order to provide a safe premises for the store’s customers, the question whether the premises owner had constructive notice of the defect was for a jury to decide. 565 So.2d at 611. Smith asserts that Mims stands for the proposition that, “[i]f the chair [in the present case] is no longer able to do its job without collapsing, then there is substantial evidence by which a jury could reasonably conclude that Wells Fargo breached its duty to maintain the chair in a safe condition or to make sure-that the chair was safe before its employee instructed [Smith] to sit in the chair.”

In Mims, the patron of the restaurant had presented evidence in opposition to the restaurant’s summary-judgment motion indicating that some of the screws that moored the threshold of the doorway to the floor were missing and that the threshold was loose. 565 So.2d at 610. Our supreme court observed that that evidence, combined with the patron’s testimony that she had tripped on the threshold and that it had been the cause of the accident, amounted to substantial evidence from which a jury could find that a defect existed in the door’s threshold and that the defect had caused the patron to trip, causing her injuries. Id. Our supreme court further stated, in pertinent part, that

“in cases where the alleged defect is a part of the premises (in this case, a loose threshold in the main entrance of a restaurant), once a plaintiff has made a prima facie showing that a defect in a part of the premises has caused an injury, then the question whether the defendant had actual or constructive notice of the defect will go to the jury, regardless of whether the plaintiff makes a prima facie showing that the defendant had or should have had notice of the defect at the time of the accident.”

Id.

In Isbell v. Aztecas Mexican Grill, 78 So.3d 420 (Ala. Civ. App. 2011), the-patron of a restaurant filed a complaint against the restaurant after a booth in which the patron was sitting collapsed, causing him injuries. This court reversed the summary judgment that had been entered in favor of the restaurant, based on the holding in Mims. 78 So.3d at 425. Specifically, this court stated that, given the holding in Mims, “we must agree with [the patron] that, because the booth seat that collapsed under him was a fixture or ‘a part of the premises,’ the issue whether [the restaurant] had actual or constructive notice of the alleged defect in the booth seat should ‘go to the jury, regardless [of the fact that [the patron] failed to make] a prima facie showing .that [the, restaurant] .had or should have-had. notice of the defect at the time of the accident.” Id.

In accordance with Mims, in which our supreme court categorized the cart or display rack in Weeks as “a part of the premises,” '565 So.2d at 611, we conclude that the chair in the present case, like the booth in Isbell, was also a part of the premises. In the present case, Smith included in her complaint a claim for failure to maintain the premises in a safe condition. Thus, her claim for recovery falls within the premise of Isbell. In Burlington Coat Factory of Alabama, LLC v. Butler, 156 So.3d 963, 965 (Ala. Civ. App. 2014), a shopper was injured when metal brackets at a store came loose from the wall and fell, hitting her in the face. In distinguishing the circumstances in that' case from those in Isbell, this court stated, in pertinent part:

“Although Isbell appears to render a premises owner potentially liable for any accident resulting from what could be considered a defect in the premises without regard to whether the defect could possibly have been detected by the premises owner, and therefore to run counter 'to the long-standing principles of premises liability, including the principle that such liability is premised upon the superior knowledge of the premises owner of the conditions on the premises, we note that the opinion in Isbell does not indicate that the premises owner had argued that the booth that had collapsed was not defective. In contrast, as will be explained infra, in the present case [the store] argues that [the shopper] failed to produce substantial evidence indicating that the brackets were defective.”

156 So.3d at 969-70 n.4. As noted by this court, the store in Burlington argued that there did not exist substantial evidence indicating that the brackets were defective. 156 So.3d at 967.

In the present case, however, like in isbell, there is no indication in the record that Wells Fargo argued that the chair that collapsed and allegedly caused Smith’s injuries was not defective. Rather, in its summary-judgment motion, Wells Fargo argued that the chair was an open and obvious danger' and that Smith had failed to present any evidence indicating that Wells Fargo had actual or constructive knowledge of that danger. Because Wells Fargo’s position in its summary-judgment motion relied on the dangers of the chair, we conclude that, like in Isbell, the issue whether Wells Fargo had actual or constructive notice of the alleged defect in the chair should go to the jury, regardless of the fact that Smith failed to make a prima facie showing that the bank had or should have had notice of the defect at the time of the accident. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings. Because we are reversing the summary judgment for the reasons stated herein, we decline to address Smith’s final argument on appeal regarding whether the trial court erred in failing to strike from the record the evi-dentiary submissions submitted on February 29, 2016, by Wells Fargo in support of its summary-judgment motion.

REVERSED AND REMANDED.

Thompson, P.J., and Thomas and Donaldson, JJ., concur.

Pittman, J., recuses himself.