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Fowler v. CEC Entertainment4/22/2005
On March 18, 2003, Bobbie Fowler sued CEC Entertainment d/b/a Chuck E. Cheese's ("CEC"), FSR Enterprises, and Ferris S. Richey Enterprises (FSR Enterprises and Ferris S. Richey Enterprises are hereinafter collectively referred to as "FSR" or "the FSR entities") seeking damages based on an injury sustained when she fell on stairs in front of the entranceway of a Chuck E. Cheese's restaurant ("the restaurant"). In her complaint, Fowler alleged that CEC and FSR were guilty of negligent and wanton conduct in causing her injuries. On December 19, 2003, CEC, as lessee of the building housing the restaurant, filed a cross-claim against FSR, as lessor, seeking indemnity in the event CEC was found liable. FSR answered the cross-claim.
On February 9, 2004, FSR filed a motion for a summary judgment seeking a judgment in its favor on the claims brought by both Fowler and CEC. Likewise, CEC filed a motion for a summary judgment on the claims brought by Fowler and on its cross-claims against FSR. Fowler filed a response to the summary-judgment motions. In support of their respective summary-judgment motions, CEC and FSR attached copies of the lease for the property housing the restaurant; the deposition testimony of Ferris S. Richey, Jr., one of the owners of the FSR entities; and excerpts from the deposition testimony of Fowler and Bryan Freeman, a general manager employed at the restaurant. Fowler supported her response to the summary-judgment motions with similar exhibits and also included the deposition testimony of Joann Green, the general manager at the restaurant at the time of the incident; also attached to Fowler's response were black and white copies of photographs of the entranceway into the restaurant and of the stairs on which Fowler fell. On July 23, 2004, the trial court entered a summary judgment in favor of CEC and FSR on Fowler's claims. Fowler appealed to the Supreme Court of Alabama, which transferred the appeal to this court, pursuant to ยง 12-2-7(6), Ala. Code 1975.
The record indicates that Fowler was 65 years old at the time of the incident. Fowler regularly wears bifocals. On February 17, 2002, Fowler, along with members of her immediate family, attended the birthday party of her three-year-old granddaughter at a Chuck E. Cheese's restaurant located in Roebuck; it was the second time Fowler had patronized the restaurant. In her deposition testimony, Fowler testified that she was unsure about the exact time of day that the party took place on February 17, 2002, but she guessed that the party was from 2 p.m. to 4 p.m. Fowler walked up the two steps leading to the restaurant's front door without difficulty; the steps were painted yellow. According to Fowler, she did not notice a problem with the steps when she entered the restaurant.
After exiting the front door of the restaurant, Fowler stated that she began to walk down the two steps leading to the parking lot when her foot "snagged on something" and "threw out on the pavement." Fowler further explained in her deposition that "when I stepped down, when my foot first hit [the stair], that's when my foot got caught in something and it threw me off and it bent my foot back in under me and when I landed on the pavement, I landed on my foot." Fowler testified that she landed on the pavement in front of the steps. While sitting on the pavement, Fowler observed a "dent out in the step." According to Fowler, the "dent" was painted yellow and "looked smooth" but it was not and the "dent" was in the middle of the step. Fowler testified that she was only carrying her purse when she fell, that she was wearing her glasses when she fell, and that she was looking down at the step before she fell. Fowler was wearing Keds brand tennis sho
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