Avery v. Geneva County
| Decision Date | 06 July 1990 |
| Citation | 567 So.2d 282 |
| Parties | Roger AVERY, Sr., as administrator of the Estate of Jeffrey James Avery, deceased v. GENEVA COUNTY, Geneva County Commission, and Jerry Sellers. 88-1647. |
| Court | Alabama Supreme Court |
Robert H. Harris of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
Peter A. McInish of Lee & McInish, Dothan, for appellees.
This is a wrongful death case. The action was filed by the deceased's father, who alleged that a Geneva County road crew released a large body of water and caused a flood and that the flood drowned his son, who was hunting downstream. The water had collected behind a beaver dam blocking two large culverts under a bridge on a county highway. The trial court entered summary judgment in favor of all the defendants, who included Geneva County, the Geneva County Commission, and Jerry Sellers, Geneva County's road and bridge superintendent.
On the morning of January 4, 1988, a Geneva County road crew began work breaking beaver dams throughout the county. Beavers build dams in front of bridge culverts and eventually stop the flow of water in the creeks. These dams must be broken in order to keep the water from flowing over the road and also to keep the beavers from removing dirt from the shoulder of the road and undermining the pavement of the road.
The evidence shows that a four-man road crew left the county's road and bridge maintenance yard that morning between 7:30 and 8:00 o'clock. They broke two other beaver dams before arriving at the dam on Ten Mile Creek on County Road 4. The crew saw that the dam-breaking machine, a truck mounted backhoe, was needed to break the dam, which blocked both culverts under the road. They picked up this machine from a previous location and took it to the dam. One of the crew members testified that it took approximately 10 minutes to set up the machine and then 30 to 40 minutes to clear one of the two culverts. The road crew all testified that they were finished breaking the dam to the extent of clearing one of the two culverts by 10:40 a.m.
Paul Kennedy, one of the residents living on County Road 4, said he drove by the road crew between 10:00 and 11:00 a.m. that morning, following his usual routine. He said he observed the crew working during that time as he drove around them on his way to Hartford.
Mr. Odom, a member of the road crew, testified that the crew cleared one of the two culverts blocked by the dam. He stated that as they broke the dam blocking the first culvert the force of the water did not appear to him to be dangerous. He also testified that while the water will come out in a powerful stream, it will not be released all at once. The other road crew members expressed similar views as to how the water escaped when the dam was broken.
Mr. Odom also testified that while he could not have withstood the force of the water up to 10 or 15 feet downstream, past that point the force of the released water would not have been too strong to withstand. However, he did state that he and two of the other crew members would think of warning persons downstream the next time a beaver dam was broken.
The county road and bridge superintendent, Jerry Sellers, testified that he did not believe a dangerous condition was created downstream by the release of the water. He was joined in this view by three other witnesses: Mr. Howell, a Geneva County commissioner; one of the road crew members; and the crew foreman.
On this same morning, 19-year-old Jeffrey Avery left his home between 6:50 and 7:00 a.m. 1 to go deer hunting alone. The Avery farm, and specifically the area where Jeffrey was hunting, is located approximately one mile downstream from the beaver dam on County Road 4.
Jeffrey was expected to return home around 9:30 a.m. to help his brothers load livestock onto a truck for a routine trip to market. When Jeffrey had not returned home by 9:30, his brother Frank Lloyd Avery 2 went to look for him. Frank testified that he went to the family property running along the creek. He said he found the woods full of water and that his two or three calls for Jeffrey brought no response.
Frank returned to the house, according to Mrs. Avery, at approximately 9:30. She remembered Kenneth Avery making calls to the market for the prices on livestock. When finished with his calls, just after 9:34, Kenneth Avery left the house in search of Jeffrey. He said he found Jeffrey's body at approximately 10:00 a.m. in water that was about chest deep. He returned to the house to inform the family.
Sheriff Whittle and Deputy Tice arrived at the creek at approximately 11:30. Upon their arrival, the sheriff said, the depth of the creek was 3 to 4 feet. The sheriff testified that when he left an hour later, the level of the creek had dropped approximately 1 foot. The sheriff said he found no evidence of foul play or of any struggle in the area.
Jeffrey's father, Roger Avery, Sr., had been to the creek two days before Jeffrey's death. He testified that the creek was so shallow that he could "cross it with his shoes on." Three days after his son's death, Mr. Avery went to the scene to study the condition of the land. He concluded that a large body of water had come down the creek and flooded the area.
Jeffrey's brother testified that one of the road crew members, Ronnie Odom, told him that the dam was broken between 9:00 and 10:00 a.m. The record shows further evidence of a possible irregularity in that the daily activity sheets used by the road crew were more detailed for January 4 than for any other day. The testimony in the record showed that the sheet for January 4 indicated that the road crew broke the dams on County Road 4 at 10:30 a.m. There were no other sheets discussed in the record in which the specific time for work performed had been noted.
The record shows that Jeffrey had been taking medication for seizures since age 13, although he had been known to have had only one seizure during his lifetime. He saw a doctor in Dothan every six months for these seizures and took his medication regularly.
The defendants filed a general motion for summary judgment. The court granted that motion, and the plaintiff appeals from the defendants' summary judgment.
The plaintiff alleged in his complaint that the releasing of a large body of water without warning to Jeffrey Avery or anyone else who might be located downstream from the pond constituted negligence as well as an abnormally dangerous activity. He further alleged that Jeffrey's death was proximately caused by the release of this water, that the release of the water constituted a trespass onto his property, and that the defendants' actions constituted wanton behavior. We note that neither the plaintiff nor the defendants have raised in any manner the issue of sovereign immunity.
The plaintiff claims that the trial court erred in entering summary judgment against all counts of the complaint. He contends that there is a genuine issue of material fact, namely the exact time the county road crew released the water from the beaver dam into the creek. The defendants claim that there was no evidence presented by the plaintiff of a duty owed by the defendants or of a breach of duty. Additionally, the defendants claim that the plaintiff has not shown that any actions of the defendants proximately caused the death of Jeffrey Avery.
We review a summary judgment to determine if there is any genuine issue of material fact and if the movant is entitled to a judgment as a matter of law. A.R.Civ.P. 56; Tripp v. Humana, Inc., 474 So.2d 88 (Ala.1985). We note that this case was filed after June 11, 1987, and is therefore subject to the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12. Therefore, in order to defeat a properly supported motion for summary judgment, the plaintiff must present evidence of such quality and weight that fair minded persons in the exercise of impartial judgment can reasonably infer the existence of the facts sought to be proved. Economy Fire & Cas. Co. v. Goar, 551 So.2d 957, 959 (Ala.1989); see also Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Rowden v. Tomlinson, 538 So.2d 15 (Ala.1988) (Jones, J., concurring specially). The facts and evidence should be construed in a light most favorable to the plaintiff as the non-moving party in this case. Best v. Houtz, 541 So.2d 8 (Ala.1989).
In summary judgment cases, after the defendant has made a prima facie showing that it had no duty or that it was not negligent, the plaintiff's burden is to present substantial evidence of the following: (1) a duty owing from the defendants, (2) a negligent breach of that duty, (3) which proximately caused (4) the plaintiff to be injured or damaged. Jones v. General Motors Corp., 557 So.2d 1259 (Ala.1990).
The defendants claim that they had no duty to warn persons downstream prior to breaking the beaver dam and that even if a duty was owed, it would be only to persons within the immediate vicinity of the beaver dam. We find no Alabama cases guiding us as to the duty owed under these specific facts.
Generally, however, the defendants here owed the plaintiff the duty to not change the course of nature so as to interfere with the enjoyment of the subservient premises. See Sloss-Sheffield Steel & Iron Co. v. Webb, 184 Ala. 452, 455, 63 So. 518, 519 (1913). In that case, a landowner who had created a pond by changing the natural flow of water was liable for damage to the land of the lower owner when the dam broke. Further, we find that the liability of a defendant for depositing or placing foreign substances upon the lands of the plaintiff has been stated in Sloss-Sheffield Steel & Iron Co. v. McCullough, 177 Ala. 448, 456, 59 So. 210, 213 (1912) (quoting Alabama Western R.R. v. Wilson, 1 Ala.App. 306, 55 So. 932...
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