Bickford v. International Speedway Corp., 80-7124

• Decision Date: 31 August 1981
• Docket Number: No. 80-7124,80-7124
• Citation: 654 F.2d 1028
• Parties: 8 Fed. R. Evid. Serv. 1379 Shirley BICKFORD, as Administratrix of the Estate of Cuba Irene Fain Sisco, Deceased, Plaintiff-Appellant, v. INTERNATIONAL SPEEDWAY CORPORATION, Individually and d/b/a Alabama International Motor Speedway, Defendant-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1028

654 F.2d 1028

8 Fed. R. Evid. Serv. 1379

Shirley BICKFORD, as Administratrix of the Estate of Cuba Irene Fain Sisco, Deceased, Plaintiff-Appellant, v. INTERNATIONAL SPEEDWAY CORPORATION, Individually and d/b/a Alabama International Motor Speedway, Defendant-Appellee.

No. 80-7124.

United States Court of Appeals, Fifth Circuit.

Unit B

Aug. 31, 1981.

Hogan, Smith & Alspaugh, P. C., Stephen Shay Samples, Birmingham, Ala., Roberts & McNutt, Larry L. Roberts, Nashville, Tenn., for plaintiff-appellant.

Balch, Bingham, Baker, Hawthorne, Williams & Ward, C. William Gladden, Jr., James H. Miller, III, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before MILLER ^*, Judge, and FRANK M. JOHNSON, Jr. and THOMAS A. CLARK, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

As administratrix of the estate of Cuba Irene Sisco, Shirley Bickford brought this wrongful death action against International Speedway Corporation (Speedway). Jurisdiction was invoked under 28 U.S.C.A. § 1332 on the basis of diversity of citizenship and amount in controversy. After a trial before a jury the district court directed a verdict in favor of defendant and entered judgment accordingly. Bickford appeals. We reverse.

On August 7, 1977, Cuba Irene Sisco, a 67-year-old resident of Tennessee, went to the Alabama International Motor Speedway, which is owned by defendant Speedway, to watch her son David Sisco perform in the Talladega 500, a stock car race sanctioned by NASCAR. David, a NASCAR-certified stock car driver, had paid a fee to enter the race and in exchange had received several courtesy passes. Although these passes were distributed to the drivers by NASCAR, Speedway had prepared the passes and the only name printed on the passes was that of the Alabama International Motor Speedway. After signing a release, Cuba Irene Sisco used one of these passes to gain free admission into the paddock area, a fenced area located within the infield of the racetrack and adjacent to the pit area. The paddock fence, which has only one gate for entry and exit, encloses a graveled area approximately 1000 feet long and 300 feet wide. Within this area is a 140-yard by 50-foot paved roadway which provides access to parking. On the day in question there were no speed limit signs posted within the paddock area, no lines denoting passenger lanes or pedestrian crosswalks, and no other controls over the pedestrian or vehicular traffic. All persons within the paddock area were supposedly required by Speedway guards to have passes to gain entry to the paddock. At race time approximately 800 persons and 350 vehicles were within the paddock.

Soon after the race began David Sisco made an unscheduled pit stop. Ms. Sisco walked to the pit area to find out what was wrong. After a few minutes Ms. Sisco, accompanied by two other women, started walking back to the place where she had been watching the race. As the three women were about to cross the paved roadway, Sisco was struck by a pickup truck, was thrown over its top, and landed in the middle of the pavement. Sisco died of her injuries. The two other women were knocked backwards but sustained no serious injury.

Seventeen-year-old Hoyt Mullins, Jr., was driving the pickup truck, and his friend Phillip East was sitting on the passenger side. Both had been drinking beer that morning after having had little sleep the night before. Shortly after the race began the two boys decided to leave the area where they were parked and look for some of their friends. Mullins testified that the paddock gate was unattended and he did not realize he had entered a different area when he drove into the paddock. Mullins did not have a paddock pass to gain entry into that area, a fact about which Mullins was not allowed to testify. When the accident occurred, Mullins was talking to East, and he was unaware that he had hit anyone until he had driven yards past the point of impact. Various witnesses estimated that at the time Sisco was hit the pickup truck was traveling between 30 and 60 miles per hour.

Mullins was subsequently arrested and, approximately one hour after the accident, given a photoelectric intoximeter test. His blood alcohol level registered 0.08; a level of 0.10 constitutes legal intoxication in Alabama. Because Bickford presented evidence that alcohol dissipates at the average hourly rate of .02, the jury could infer that Mullins was legally intoxicated at the time of the accident. No criminal charges were brought against Mullins, however, and Mullins' liability is not an issue in this appeal.

The evidence reflected that Speedway allowed alcoholic beverages to be consumed at Alabama International Motor Speedway. While 216 law enforcement personnel were hired by Speedway to maintain order, ¹ patrons were to be arrested for drunkenness only if they became disorderly or unruly. It appears from the record that none of Speedway's agents or employees observed Mullins' operation of his pickup truck prior to the accident.

Appellant Bickford offered the testimony of several witnesses in support of her contention that Speedway negligently or wantonly failed to adequately control Mullins and the crowd on the day of the accident. At the close of plaintiff's case, the district court directed a verdict in Speedway's favor thereby not allowing the case to go to the jury. The district court found that since Sisco did not pay consideration to gain admittance to the race she was, as a matter of law a licensee and not a business invitee of Speedway. Reasoning that Speedway only owed a licensee the duty of not causing willful or wanton injury and there was no evidence of such conduct by Speedway, the district court held that the evidence was insufficient to present a jury question as to whether Speedway breached any duty which it may have owed to the deceased. The court further held that plaintiff Bickford had failed to establish a causal connection between the alleged acts of negligence and Sisco's death. On appeal Bickford argues that the district court erred by not allowing her case to go to the jury. Specifically, she urges that the jury should have decided whether Sisco was a licensee or an invitee, whether the acts or omissions of Speedway proximately caused Sisco's death, and whether the actions of Speedway constituted willful or wanton conduct. Additionally, Bickford challenges two evidentiary rulings of the district court. We agree with Bickford's contentions and accordingly reverse.

In reviewing the action of the district court in granting the motion for a directed verdict, we start with the proposition that the evidence will be viewed as a whole and in a light most favorable to the party opposing the motion. E. g., Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). A directed verdict is appropriate only if there is a complete absence of probative facts to support a particular inference or if the facts and inferences point so strongly and overwhelmingly in one party's favor that reasonable persons could only arrive at one verdict. Id. But reversal is inappropriate if the ruling of the district court can be affirmed on any grounds, regardless of whether those grounds were used by the district court. E.g., Riley v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 97, 85 L.Ed. 36 (1940).

We first examine Bickford's contention that the issue whether Sisco was a licensee or an invitee is a factual issue about which reasonable persons could differ and thus should have been submitted to the jury. See, e. g., Winn-Dixie Montgomery, Inc. v. Rowell, 52 Ala.App. 1, 288 So.2d 785, 789 (1973) ("The question of whether a person is or is not an invitee is factual and in a jury trial devolves upon the jury for determination."). This initial factual determination is of significant consequence, for in Alabama, as under the common law, a landowner's liability to persons injured on his or her land is generally dependent on the status of the injured person in relation to the land. A person who is on another's property with the consent of the owner or occupant or as a guest, but with no business purpose, attains the status of a licensee; a licensee is owed only the duty not to be willfully or wantonly injured, and not to be negligently injured after the owner or occupant has discovered the licensee in peril. E. g., Hickey v. Charlton, 335 So.2d 389, 391 (Ala. 1976). On the other hand, a person who enters the premises of another for purposes connected with the business of the owner or occupant of the premises is an invitee, Winn-Dixie...