Bell v. TR Miller Mill Co., Inc.

• Decision Date: 04 February 2000
• Citation: 768 So.2d 953
• Parties: Jasmin BELL, as mother of Jasmarie Bell, deceased v. T.R. MILLER MILL COMPANY, INC.
• Court: Alabama Supreme Court

768 So.2d 953

Jasmin BELL, as mother of Jasmarie Bell, deceased v. T.R. MILLER MILL COMPANY, INC.

1980653.

Supreme Court of Alabama.

February 4, 2000.

Rehearing Denied April 7, 2000.

Winn Faulk of Drinkard, Newton & Cumpton, Mobile, for appellant.

Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton; and James L. Martin, Eufaula, for appellee.

MADDOX, Justice.

The plaintiff Jasmin Bell filed this wrongful-death action based primarily upon the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). The action arose out of an automobile accident that occurred in Barbour County. The plaintiff alleges that that accident occurred when the plaintiffs automobile hit a sagging telephone line. The plaintiffs child, Jasmarie Bell, was killed in the accident. The plaintiff alleges that the telephone line was caused to sag when a pole, which had been manufactured by the defendant T.R. Miller Mill Company, Inc. ("Miller"), broke.

The action originally included Bellsouth Telecommunications (the owner of the telephone pole) and other defendants, but this appeal involves only the plaintiff and the defendant Miller. Trial was commenced before a jury, but the court granted Miller's motion for a directed verdict at the close of the plaintiff's case. The plaintiff appeals from the resulting judgment for Miller.

The facts relevant to this appeal are as follows: On August 12, 1995, Jasmin Bell and her two children, Jasmarie and Jason, were traveling north on U.S. Highway 431 near Eufaula. Immediately before Bell passed the intersection of U.S. Highway 431 and Alabama Highway 131 (Bakerhill Highway), Jeffrey Bertelson stopped his van at the Beeline convenience store located at the southwest corner of that intersection. Bertelson parked his van on the crest of a hill by a fuel island and went inside the store. The van rolled down the store's sloping driveway, toward Highway 131; it crossed Highway 131 and struck a guy-wire attached to a telephone pole. The guy-wire on the telephone pole either was severed or broke loose from the pole, and the pole broke. When the pole broke, the telephone lines sagged down over Highway 431 to a level of approximately 9 ½ feet above the road. A recreational vehicle (RV) traveling south on Highway 431 struck the lines, causing the lines to loop forward, upward, and over the RV (by a "jump rope effect"). After the lines cleared the RV, they dropped back down to a level of approximately one foot above the road. At this time, Bell's car, which was approaching the intersection, struck the low-lying lines. The lines lifted Bell's car into the air, and the car then came down on its back bumper and came to rest upside down in the highway. Jasmarie Bell was ejected from the car during the accident and died as a result.

Jasmin Bell, as the mother of Jasmarie, filed this action on January 9, 1996, in the Circuit Court of Barbour County. An amended complaint added Miller as a defendant. Against Miller she stated claims of negligent or wanton manufacturing and marketing of the telephone pole, alleging that, as a direct and proximate consequence of the negligence or wantonness, Miller's acts combined and concurred with the other defendants' acts to cause the wrongful death of Jasmarie Bell. Bell also based her wrongful-death claim against Miller on the AEMLD, alleging that the telephone pole had been defective and unreasonably dangerous and that as a result of its defective and unreasonably dangerous nature her daughter Jasmarie had been killed.¹

At the close of Bell's case, Miller filed a "Motion for a Directed Verdict at the Close of the Plaintiffs Case." After holding a hearing on Miller's motion, the trial court granted it.

Bell appeals from the resulting judgment for Miller. She presents five issues for review: (1) Whether a telephone or utility pole, despite having been installed in the ground, is a "product" for purposes of the AEMLD; (2) whether Bell offered substantial evidence to prove liability under the AEMLD; (3) whether Bell offered substantial evidence to prove her negligence or wantonness claim; (4) whether the evidence before the court at the close of Bell's evidence was sufficient to support a ruling that Miller was entitled to a judgment as a matter of law based upon its affirmative defense of "intervening cause"; and (5) whether the trial court erred in precluding Bell from offering into evidence a quality-control memorandum that was prepared for Miller and which Bell alleged related to the defect that she says caused the pole to break.

The primary issue presented in this case is whether the plaintiff met her burden of presenting substantial evidence to prove her claims against the defendant Miller.

In addressing this issue, we re-state the rules that govern our review. An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law,² uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present "substantial evidence" in order to withstand a motion for a judgment as a matter of law. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, supra, at 1353. In reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala. 1992).

I.

We first consider whether a telephone pole that has been installed in the ground is a "product" for purposes of the AEMLD. Miller, citing Wells v. Clowers Constr. Co., 476 So.2d 105 (Ala.1985), argues that, because the telephone pole was installed in the ground and was securely attached to the land, it was a structural improvement and, as such, cannot be classified as a "product" for purposes of the AEMLD. Miller recognizes that the Court of Civil Appeals, in Thornton Properties v. Alabama Power Co., 550 So.2d 1024, 1025-26 (Ala.Civ.App.1989), held that the utility poles in question in that case were personal property, not fixtures, but it states that the opinion in Thornton Properties "is inconsistent and in conflict with the holding of this Honorable Court in Wood Preserving Corp. v. State Tax Commission, 235 Ala. 438, 179 So. 254 (1938)." The plaintiff states that since it decided the Wells case this Court has decided several cases, under the AEMLD doctrine, that involved products that had a more permanent connection to real estate than did the telephone pole in this case. She cites Beam v. Tramco, Inc., 655 So.2d 979 (Ala.1995) (involving a conveyor belt installed in a grain-storage facility); Sears, Roebuck & Co. v. Harris, 630 So.2d 1018 (Ala.1993)(gas water heater in a home); McDaniel v. French Oil Mill Mach. Co., 623 So.2d 1146 (Ala.1993)(cylindrical rotary soybean conditioner located in a soybean extraction facility); and King v. S.R. Smith, Inc., 578 So.2d 1285 (Ala.1991)(diving board that had been installed with an in-ground, vinyl-lined swimming pool).

Although we note that a number of jurisdictions adhere to the general rule upon which Miller's argument is based, namely that structural improvements to real property are not considered products for purposes of products-liability actions,³ we believe that a review of our cases applying AEMLD law involving products that have been affixed to real property shows that the policies underlying the application of the AEMLD doctrine have little relation to the policies underlying the fixtures doctrine, and that the application of products-liability law should not be totally dependent upon the intricacies of real-property law. Consequently, based upon the facts of this case, we hold that, although the telephone pole here was installed in the ground and was attached to the property, it did not by that fact lose its character as a "product" for purposes of the AEMLD.⁴ Cf. Pamperin v. Interlake Companies, Inc., 634 So.2d 1137, 1140 (Fla.Dist.Ct.App.1994) (holding that, as a matter of law, a storage-rack system attached to real property is a "product" for purposes of a products-liability action); Wireman v. Keneco Distribs., Inc., 75 Ohio St.3d 103, 106, 661 N.E.2d 744, 747 (1996) (holding that, based upon the statutory definition of "product," an item must be personal property before it can fall within the realm of products-liability law); and Pacific Metal Co. v. Northwestern Bank of Helena, 205 Mont. 323, 327, 667 P.2d 958, 962 (1983) (holding that a building constructed on leased real property pursuant to a lease was personal property).

II.

The next issue Bell raises is whether she presented substantial evidence to substantiate her products-liability claim. In order to establish liability under the AEMLD, the plaintiff must show that an injury was caused by one who sold a product in a defective condition that made the product unreasonably dangerous to the ultimate user or consumer; that the seller was engaged in the business of selling such a product; and that the product was expected to, and did, reach the user without substantial change in the condition in which it was sold. Sapp v. Beech Aircraft Corp., 564 So.2d 418 (Ala.1990). Furthermore, the burden of proof rests with the plaintiff to prove that...