In Price v. Macon County Greyhound Park, Inc., [Ms. 2090881, Aug. 19, 2011] __ So. 3d __ (Ala. Civ. App. 2011), the Alabama Court of Civil Appeals, on an application for rehearing, withdrew an earlier opinion and affirmed summary judgment in favor of the defendant Macon County Greyhound Park, Inc. ("MGP"). Price, an invitee at the park, alleged she fell as a result of some loose asphalt on the park's asphalt driveway and suffered injury. Price alleged claims of negligence and wantonness. MGP denied liability and asserted as an affirmative defense that the loose asphalt Price fell on was "open and obvious." MGP moved for summary judgment arguing with respect to Price's negligence claim that the evidence did not establish that the park had actual or constructive notice and the presence of the loose asphalt was open and obvious. MGP further asserted that it was entitled to summary judgment with respect to Price's wantonness claim. MGP argued that the evidence did not establish that it had acted or failed to act with knowledge of the conditions or a consciousness that its acting or failing to act would likely or probably result in Price's injury. In opposition to the summary judgment motion, Price asserted that MGP affirmatively created the hazard that caused Price to trip and fall and, therefore, it was presumed as a matter of law to have notice of the presence of the hazard. The circuit court granted summary judgment in favor of the defendants without stating its rationale for the ruling. On appeal, the Court of Civil Appeals held that the plaintiff had failed to present substantial evidence that MGP created the hazard that caused her to fall and, therefore, MGP was not presumed to have notice of the hazard. Since Price could not prove that MGP created the hazard, she was required to produce substantial evidence indicating MGP had actual knowledge or constructive notice of the hazard before she fell. However, Price did not argue on appeal that she produced such evidence. Thus, the Court of Civil Appeals held that argument waived and affirmed summary judgment on the negligence claim. As Price failed to present any evidence from which it could be inferred that MGP knew of the presence of the particular debris that caused Price to fall in the location where she fell, her claim for wantonness was also dismissed.
