EX PARTE MOUNTAIN TOP INDOOR FLEA MARKET

MADDOX, Justice.

The plaintiff, a business invitee, was injured when she slipped and fell on loose gravel on the premises of the defendant Mountain Top Indoor Flea Market, Inc. She sued that defendant and others, alleging that they had caused her to fall and be injured. The trial court entered a summary judgment in favor of the defendants on the ground that the evidence showed, as a matter of law, that the plaintiff "had knowledge of the existence of the dangerous condition[,] if in fact the condition [was] dangerous, and ... with appreciation of such danger ... failed to exercise care for her own safety by putting herself in the way of such known danger."1

The plaintiff appealed. The Court of Civil Appeals reversed the summary judgment, holding that a genuine issue of material fact existed as to whether the plaintiff appreciated the known danger at the time of the incident. Lowery v. Mountain Top Indoor Flea Market, Inc., 699 So.2d 155 (Ala.Civ. App.1996). The Court of Civil Appeals based its ruling in part on Marquis v. Marquis, 480 So.2d 1213, 1215-16 (Ala.1985), where this Court held that for the plaintiff's "knowledge of the dangerous condition" to bar a recovery "the plaintiff also must have a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred," and stated "`that the plaintiff's appreciation of the danger is, almost always, a question of fact for the determination of the jury'" (quoting Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 607, 235 So.2d 371, 377 (1970)). We granted the defendants' certiorari petition to review the holding of the Court of Civil Appeals. We conclude that the trial court properly entered the summary judgment; therefore, we reverse the judgment of the Court of Civil Appeals and remand for further proceedings or an order consistent with this opinion.

The facts are not disputed. The plaintiff, Robbie Ann Lowery, while an invitee of Mountain Top Indoor Flea Market, Inc. (the "Flea Market"), was injured when she fell in an area that had previously been excavated for drainage. She sued the Flea Market; Melton Terrell, its president and one of its owners; and Janie Terrell, who was Melton Terrell's wife and who was also an owner, alleging that the Flea Market and the Terrells had negligently or wantonly constructed and/or maintained the graveled area where she fell. The defendants filed a motion for summary judgment, in which they claimed that "the fall sustained by the plaintiff, upon which this suit is based, was due to her own negligence and/or that she voluntarily assumed the risk which caused her fall and alleged injury."

In reversing the judgment of the Court of Civil Appeals, we have applied the principle that "[i]n reviewing the disposition of a motion for summary judgment, we utilize the same standard as ... the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So.2d 872 (Ala. 1979)); see Rule 56(c) Ala.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to [a] judgment as a matter of law." Berner v. Caldwell, 543 So.2d 686, 688 (Ala. 1989); Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So.2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989).

This action was filed after June 11, 1987; therefore, the nonmovant must meet the burden of establishing the existence of a genuine issue of material fact by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "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." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986).

The summary judgment was appropriate, based on the grounds set forth in the trial court's order. This Court in Sisk v. Heil Co., 639 So.2d 1363, 1365 (Ala.1994), addressing landowner liability, stated:

This Court has further held:

Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980) (emphasis omitted).

Hines v. Hardy, 567 So.2d 1283, 1284 (Ala. 1990) (emphasis omitted).

We realize, just as the Court of Civil Appeals stated, that a summary judgment is rarely appropriate in negligence and personal injury cases. Cabaniss v. Wilson, 501 So.2d 1177 (Ala.1986). However, see Duffy v. Bel Air Corp., 481 So.2d 872, 873 (Ala. 1985) (when material facts are not in dispute and only a question of law exists, that question to be determined by the trial court); Shaw v. Lipscomb, supra (this Court affirmed a summary judgment for the defendant where plaintiff slipped and fell on a twig or sweetgum ball); Hines v. Hardy, supra (summary judgment for defendant affirmed where plaintiff stepped on an outdoor crosstie); Bennett v. Cole, 426 So.2d 829 (Ala.Civ. App.1981), affirmed, 426 So.2d 832 (Ala.1982) (defendant's judgment notwithstanding plaintiff's verdict affirmed because evidence was insufficient for a finding of negligence where a grocery store patron tripped on a "car stop" in the parking lot); and Sisk v. Heil Co., supra (this Court held that the plaintiff, as an adult of normal intelligence, should have been aware of the need for caution when walking on mud and stepping over a strip of gravel).

In McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala. 1992), this Court reversed a summary judgment in a slip-and-fall action where the same defendant involved in the present case argued the defense of assumption of the risk. This Court in McClendon noted that the plaintiff "Charlotte McClendon's assumption of the risk was the sole basis for the summary judgment." Id. at 958. However, McClendon is distinguishable from the present case on the basis that the summary judgment in the present case was entered on the ground that the danger posed by the gravel area was open and obvious and that the plaintiff's testimony, in her deposition, shows as a matter of law, that she appreciated the danger before she started across the graveled area. Further, the facts of McClendon appear to be distinguishable from those of this present case; the plaintiff in McClendon stated in her affidavit:

601 So.2d at 960 (emphasis added).

Each case involving a landowner's liability must be decided upon its facts. We conclude that the facts of this case require a finding that Robbie Ann Lowery did have "a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred." Marquis, 480 So.2d at 1215.

Consequently, we hold that the trial court properly entered the summary judgment in favor of the defendant. The judgment of the Court of Civil Appeals is reversed and the cause is remanded for further proceedings or an order consistent with this opinion.

REVERSED AND REMANDED.

HOOPER, C.J., and ALMON, SHORES, KENNEDY, BUTTS, and SEE, JJ., concur.

HOUSTON, J., concurs specially.

COOK, J., dissents.

HOUSTON, Justice (concurring specially).

I dissented in McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 961 (Ala.1992). The majority opinion in this case is consistent with my dissent in McClendon.

COOK, Justice (dissenting).

I respectfully dissent. In keeping with our holding in McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala. 1992), I disagree with the majority's opinion that the summary judgment was proper in this case because the plaintiff had "a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred." 699 So.2d at 160.

In McClendon, which involved the same defendant as in the instant case, we held that a summary judgment was precluded because genuine issues of material fact existed regarding whether the flea market had used reasonable care and diligence to maintain the surface of its premises and whether the plaintiff knew or should have known of risks associated with walking on a gravel and dirt surface.

The facts in McClendon are directly analogous to those in instant case. In McClendon, Charlotte McClendon visited Mountain Top Indoor Flea Market, as she and her family had on many occasions. 601 So.2d 957. McClendon slipped and fell when her left foot slid on loose gravel after she stepped onto the gravel and dirt surface, which was found throughout the flea market. Id. at 958. McClendon argued that Mountain Top had a duty to her, as an invitee, "to provide a means of ingress to and egress from the leased premises that did not pose an unreasonable risk of danger" and "to warn invitees of the dangerous character of the surface." Id. We reversed Mountain Top's summary judgment and remanded the case for further proceedings. Id. at 961.

Like the plaintiff in McClendon, Robbie Lowery, the plaintiff in the instant case, slipped and fell at Mountain Top Indoor Flea Market while walking in a section of the common area that had been excavated for drainage. Lowery argues that Mountain Top knew of what she alleged to be an unreasonably dangerous condition that existed in the graveled common areas. I agree. As of 1988, Mountain Top, which operated only on Sundays, accommodated approximately 1,100 vendors and 30,000 patrons. Mountain Top should have become aware of the danger of its graveled premises in 1988, when the plaintiff in McClendon was injured. In addition, a firefighter, who worked part-time at Mountain Top, stated by deposition in McClendon that several people had fallen on the gravel and dirt surface while he was on duty at Mountain Top. Id. at 960.

It is undisputed that a property owner is not generally liable for injuries sustained by an invitee when the injuries resulted from a dangerous condition that either was known to the invitee or should have been observed by exercising reasonable care. Id. at 959. However, in Marquis v. Marquis, 480 So.2d 1213, 1215-16 (Ala.1985), we held:

(Emphasis added.)

The fact that the gravel flooring of the flea market was visible to Lowery does not indicate that she appreciated the danger that she was likely to fall, especially when her incident occurred in the common area of the flea market where patrons had to walk in order to gain access to the flea market and no warning signs indicated that the common areas were inaccessible.

While a property owner is not an insurer, I do not believe that our cases stand for the proposition that a landowner can maintain a common area that presents a danger to a pedestrian customer and assert that the danger is open and obvious after the customer sustains a fall, especially when the plaintiff customer, as in this case, was using the area in a safe and cautious manner and in a way reasonably to be expected by the property owner. It is obviously apparent that after the plaintiff found herself in this graveled area, in order to get to another location she had to traverse the graveled area. The implication in this case is that the plaintiff should have sat down and waited to be extricated once she realized that she was on a surface of loose rocks, gravel, and dirt. It is not unreasonable to require a landowner to make reasonably safe an area that is open for use by the general public.

For these reasons, I believe a genuine issue of material fact exists as to whether, at the moment the incident occurred, Lowery consciously appreciated the danger posed by the gravel. This case is like McClendon. The summary judgment in this case was properly reversed and the case properly remanded by the Court of Civil Appeals for a jury to determine whether Lowery appreciated the danger of Mountain Top's graveled premises.

Therefore, I would affirm the judgment of the Court of Civil Appeals. I agree with that court that a genuine issue of material fact existed as to whether, at the time of the incident, Lowery appreciated the known danger.