591 So.2d 33 (Ala. 1991), 1901244, Terry, By and Through Terry v. Phillips 66 Co., Inc.

• Citation: 591 So.2d 33
• Date: 01 November 1991
• Docket Number: 1901244.
• Parties: Janet D. TERRY, a Minor, By and Through her Mother and Next Friend, Peggy TERRY, and Peggy Terry, Individually v. PHILLIPS 66 COMPANY, INC., et al.
• Court: Alabama Supreme Court

Page 33

591 So.2d 33 (Ala. 1991)

Janet D. TERRY, a Minor, By and Through her Mother and Next Friend, Peggy TERRY, and Peggy Terry, Individually

v.

PHILLIPS 66 COMPANY, INC., et al.

1901244.

Supreme Court of Alabama.

November 1, 1991

Page 34

Robert B. Roden of Roden & Hayes, P.C., Birmingham, for appellant.

William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellees.

KENNEDY, Justice.

Janet Terry, through her mother and next friend, Peggy Terry, and Peggy Terry, individually, filed an action against Phillips 66 Company, Inc. ("Phillips 66"), Terry & Young Oil Co., Inc. ("Terry & Young"), Billy Glenn Terry, Culver's Quick Stop, Pauline Culver, and Junior Culver, alleging that the defendants' negligence or wantonness had caused Janet's personal injuries. The trial court entered a summary judgment for Phillips 66, Terry & Young, and Billy Glenn Terry and made those judgments final pursuant to Rule 54(b), A.R.Civ.P. In this appeal, Janet argues that the trial court erred by entering a judgment for Terry & Young and Billy Glenn Terry; she makes no arguments in relation to Phillips 66.

In Stephens v. City of Montgomery, 575 So.2d 1095, 1097 (Ala.1991), we stated the following about summary judgment proceedings:

"The standard used to determine the propriety of a summary judgment is found in Rule 56(c), A.R.Civ.P.:

" 'The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

"The burdens placed on the parties by this rule have often been described:

" 'The burden is on one moving for summary judgment to demonstrate

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that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So.2d 601 (Ala.1980); Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980).'

Schoen v. Gulledge, 481 So.2d 1094, 1096-97 (Ala.1985).

"In determining whether there is substantial evidence to defeat a summary judgment motion, this Court reviews the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Sanders v. Kirkland & Co., 510 So.2d 138 (Ala.1987)."

Because this case was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, the plaintiffs must prove their case by "substantial evidence," which this Court has defined as "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). The trial court's ruling on a summary judgment motion is a nondiscretionary ruling, and no presumption of correctness attaches to that ruling; accordingly, our review of the evidence properly presented in the record is de novo. Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So.2d 698 (Ala.1988).

Janet and Peggy Terry contend that Janet was injured as a result of Junior Culver's smoking a cigarette while he pumped gasoline into the vehicle in which Janet was a passenger. According to the Terrys, the cigarette ignited the gasoline, which exploded, causing Janet Terry second and third degree burns. They contend that Billy Glenn Terry and Terry & Young are liable for Junior Culver's actions under the doctrine of respondeat superior.

The following facts are undisputed: Billy Glenn Terry is an employee of Terry & Young. Terry & Young own the land and the building where Janet's injury occurred, and it leased the land and building to Junior Culver, who operated Culver's Quick Stop on those premises. Neither Culver nor any of his employees were employed by Terry & Young or Billy Glenn Terry. Billy Glenn Terry was not on the premises when the accident occurred.

The Court has addressed the law applicable to this case in Sawyer v. Chevron U.S.A., Inc., 421 So.2d 1263 (Ala.1982), and Wood v. Shell Oil Co., 495 So.2d 1034 (Ala.1986).

In Sawyer, Sawyer brought an action against Chevron U.S.A., Inc. ("Chevron"), for injuries he sustained in an automobile collision. Sawyer was injured when a truck, which was driven by an employee of McDonald Petroleum Company, collided with the rear of an automobile in which Sawyer was a passenger. Sawyer alleged that McDonald Petroleum was Chevron's agent. The trial court entered a summary judgment for Chevron, and Sawyer appealed.

The Court, after a detailed factual analysis, reversed the judgment for Chevron, holding that there was a factual issue suitable for jury determination, which precluded summary judgment. 421 So.2d at 1266. As to the law regarding a master-servant relationship, the Court wrote:

"Sawyer contends the facts in this case are sufficient to present a jury question as to whether there existed a relationship of master and servant between Chevron and McDonald Petroleum....

"There is little doubt that the controlling question in this case is the relationship of McDonald Petroleum to Chevron. The test to be used in determining such relationship is whether Chevron had a reserved right of control over the means and agencies by which the work was done or the result produced, not the actual exercise of such control. Tuscaloosa

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Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608 (1937)."

421 So.2d at 1264.

In Wood, Harrison Wood filed an action against Shell Oil Company ("Shell") to recover damages for injuries he sustained when he slipped and fell on the premises of Parker Shell, which is apparently a gasoline service station. Wood contended that Parker Shell was an agent of Shell, and the Court addressed the existence of an agency relationship between the two. After a factual analysis as detailed as the analysis in Sawyer, the Court affirmed the summary judgment. As to the law to be applied, the Court wrote:

"The test to be applied in determining the existence of an agency relationship under the doctrine of respondeat superior is whether the alleged principal reserved a right of control over the manner of the alleged agent's performance."

495 So.2d at 1036.

Janet and Peggy Terry contend that Sawyer...