Alabama Power Co. v. Marine Builders, Inc.

• Decision Date: 02 August 1985
• Citation: 475 So.2d 168
• Parties: Prod.Liab.Rep. (CCH) P 10,798 ALABAMA POWER COMPANY, a corporation v. MARINE BUILDERS, INC., a corporation; and Bangor Punta Corporation, a corporation. 83-2.
• Court: Alabama Supreme Court

Page 168

475 So.2d 168

Prod.Liab.Rep. (CCH) P 10,798

ALABAMA POWER COMPANY, a corporation v. MARINE BUILDERS, INC., a corporation; and Bangor Punta Corporation, a corporation.

83-2.

Supreme Court of Alabama.

Aug. 2, 1985.

Carroll H. Sullivan of Gaillard, Little, Hume & Sullivan, Mobile, Edward S. Allen of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, for appellant.

Peter V. Sintz and Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellee Marine Builders.

Alex T. Howard, Jr. and Alan C. Christian, of Johnstone, Adams, Howard, Bailey & Gordon, Mobile, for appellee Bangor Punta Corp.

BEATTY, Justice.

This is an appeal from a judgment entered upon a jury verdict for plaintiffs and against Alabama Power Company in the amount of $3.5 million. We affirm.

The case is an outgrowth of a boating accident which occurred on Dog River, at the entrance to Halls Mill Creek, a navigable waterway in Mobile County, Alabama, on May 6, 1979. At that time and place, David Williams was operating a 1975 O'Day 25-foot sailing vessel, manufactured and sold by Bangor Punta Corporation (Bangor Punta), and subsequently purchased second-hand by Williams. Williams's wife, Jeri, and his daughter, Jennifer, were passengers. As the vessel was proceeding, its mast, which measured 33 feet, 8 inches above water level, came into contact with the standard 7,200-volt electric distribution line maintained by Alabama Power Company (APCo) and suspended across Halls Mill Creek. The ensuing electrical shock killed both Mr. and Mrs. Williams and injured their daughter, Jennifer.

On July 20, 1979, the administrators of the estates of Mr. and Mrs. Williams and the guardians of their surviving minor children, Jennifer, Pamela, and Lori, filed individual lawsuits, which were consolidated in state court under 28 U.S.C. § 1333, ¹ pursuant to the admiralty jurisdiction of the United States, claiming damages for the deaths of Mr. and Mrs. Williams and for the personal injuries sustained by Jennifer. The first count claimed compensatory damages on behalf of the administrators and the minor children for the death of David Williams proximately caused by the negligence of APCo. The second count claimed punitive damages under the wrongful death statute. The third count claimed compensatory damages on behalf of Jennifer Williams.

APCo by answer denied any culpability. APCo also filed a third-party complaint against the United States ² seeking indemnity and contribution because of alleged misrepresentations by its representative, the Corps of Engineers, United States Army, which it claimed were the efficient cause of the accident. It also filed a third-party complaint against the Corps of Engineers and the National Oceanic and Atmospheric Administration of the Department of Commerce, alleging their negligent failure to cause charts of the water area to depict the subject power line to be the efficient cause of the accident.

The United States appealed, seeking removal of the cause to federal court. Removal ensued; however, the cause was subsequently remanded to state court following a dismissal of the United States as a party. Following this remand, APCo moved to name Marine Builders, Inc. (Marine Builders), and Bangor Punta as third-party defendants. This motion was granted, whereupon APCo filed its third-party complaint against Bangor Punta and Marine Builders. In its claim seeking indemnity and contribution from Bangor Punta, APCo maintained that the Williams sailing vessel was defective and unreasonably dangerous because it was not grounded. APCo also charged that Bangor Punta should have warned the ultimate consumer of sailboat electrocution accidents of which it had prior knowledge, and of the dangers attendant to aluminum mast contact with overhead power cables. As against Marine Builders, APCo alleged that it was negligent and wanton in moving its newly constructed shrimp trawlers from their construction site down Halls Mill Creek so as to have their masts repeatedly collide with APCo's distribution line. This, according to APCo, entitled it to indemnity and contribution if APCo was found to be liable to plaintiffs.

Upon APCo's motion, the trial court dismissed the plaintiffs' claims under Alabama's wrongful death statute, thus effectively deciding that the case would proceed exclusively under admiralty jurisdiction and substantive law. See Kennedy Engine Company v. Dog River Marina and Boatworks, 432 So.2d 1214 (Ala.1983). A later amendment by APCo to its third-party complaint was stricken on motion. Following trial, the jury returned five separate verdicts for the plaintiffs against APCo in the aggregate sum of $3.5 million. The jury also found in favor of the third-party defendants, Bangor Punta and Marine Builders. APCo's motions for judgment notwithstanding the verdict, new trial, or remittitur, partially including grounds relating to its third-party claims, were denied. APCo paid the judgments and took this appeal from the judgments in favor of Marine Builders and Bangor Punta. The issues raised will be treated seriatim.

I.

Whether the trial court erred in excluding from evidence a sailboat "mast warning."

This issue pertains to a "mast warning" sticker which, beginning with the 1976 model of the O'Day 25-foot sailboat, Bangor Punta placed upon each boat it manufactured. This sticker contained language warning that contact with overhead power lines was dangerous, and restated the warning found in the operating and rigging instructions furnished with the vessel. This "mast warning" was not affixed to the 1975 model of the Williams sailboat, but, as stated above, was placed on later models. During the trial, APCo's attempts to introduce evidence of this warning were excluded on objection. The trial court also excluded evidence included in answers to interrogatories by and in the deposition of James H. Hunt, Bangor Punta's president, pertaining to such warnings.

APCo acknowledges in brief that the "mast warning" was first introduced after the 1975 sailboat of the Williamses had been sold by Bangor Punta and left its possession. APCo maintains that this evidence was, nevertheless, relevant on the issue of Bangor Punta's negligence, because the "mast warning" came into existence some three years before the accident. It is apparent that the trial court's refusal to admit this evidence was based upon its conclusion that it constituted an inadmissible subsequent remedial measure.

That rule, of course "is designed to protect the important policy of encouraging defendants to repair and improve their products and premises without the fear that such actions will be used later against them in a lawsuit." Werner v. Upjohn Company, 628 F.2d 848, 855 (4th Cir.1980). To be sure, federal cases, under Federal Rule of Evidence 407, allow the introduction of subsequent remedial measures to prove the feasibility of such remedial measures, but only when feasibility is controverted. Werner at 853. That position is also followed by Alabama case law, which follows Werner. In Standridge v. Alabama Power Co., 418 So.2d 84 (Ala.1982), this Court stated:

"There are several exceptions to the general rule of inadmissibility of evidence of subsequent repairs or remedial measures. A party may introduce such evidence to show the existence of a condition at the time of an accident; Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975); to show the feasibility of the use of safeguards or precautionary measures; Werner v. Upjohn Co., 628 F.2d 848 (4th Cir.1980); to impeach a witness, Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941); or to give testimony which is part of the res gestae.

"Alabama Power acknowledges another exception, that evidence of subsequent repairs may be admitted for the limited purpose of showing a party's control of the alleged defective premises or instrumentality. Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941); Gulf Railroad Co. v. Havard, 217 Ala. 639, 117 So. 223 (1928). Nevertheless, in order for evidence to be admissible to establish control, control must be a controverted issue in the case. Werner v. Upjohn Co., 628 F.2d 848 (4th Cir.1980); Gulf Railroad Co. v. Havard, 217 Ala. 639, 117 So. 223 (1928). Alabama Power's major contention was that it had no duty to Mr. Standridge, not that it had no control over the premises. The estate asserts that the evidence of subsequent remedies is admissible to establish the company's duty to Mr. Standridge. We cannot agree. Duty is an essential element of a cause of action for negligence. The issue of duty does not fall outside the general rule that evidence of subsequent remedial measures is inadmissible to prove a party's negligence. Thus, the trial judge properly excluded evidence of any subsequent remedies provided by Alabama Power." 418 So.2d at 88-89.

The same reasoning applies here. The exception to establish the feasibility of a "mast warning" was never controverted at trial by Bangor Punta; indeed, feasibility was conceded by it in its motion in limine filed before trial. For aught that appears, APCo's purpose in introducing such evidence was to show Bangor Punta's negligence in the first instance, i.e., in selling the sailboat without that warning, and not to controvert at trial the feasibility of such a warning.

APCo, however, argues that the absence of the "mast warning" was nevertheless admissible because Bangor Punta had knowledge of the danger of electrical shock from possible contact with lower power lines before this accident took place. In other words, APCo would have this evidence admitted against Bangor Punta, even though Bangor Punta's control over the sailboat had long since ceased, so long as Bangor Punta had knowledge of the danger before the accident. Alabama cases have focused on post-accident remedial changes to premises, facilities, or articles under the defendant's control which proximately...