Brown v. Whitaker Contracting Corp.

• Decision Date: 03 May 1996
• Citation: 681 So.2d 226
• Parties: Hobson L. BROWN, Williams Oil Co., Inc., and Federated Insurance Company, v. WHITAKER CONTRACTING CORPORATION. 2941022.
• Court: Alabama Court of Civil Appeals

Page 226

681 So.2d 226

Hobson L. BROWN, Williams Oil Co., Inc., and Federated Insurance Company, v. WHITAKER CONTRACTING CORPORATION.

2941022.

Court of Civil Appeals of Alabama.

May 3, 1996.

Rehearing Denied June 7, 1996.

Certiorari Denied Sept. 6, 1996

Alabama Supreme Court 1951620.

LaBella S. Alvis, Deborah Alley Smith and Susan S. Hayes of Rives & Peterson, Birmingham, for Appellants.

Jack W. Torbert of Torbert and Torbert, P.A., Gadsden, for Appellee.

RICHARD L. HOLMES, Retired Appellate Judge.

Hobson L. Brown, Williams Oil Co., Inc., and Federated Insurance Company (hereinafter collectively referred to as plaintiffs) appeal from the trial court's order granting Whitaker Contracting Corporation's (Whitaker) summary judgment motion in Whitaker's favor.

The plaintiffs' claims against Blount County and the Blount County Commission remained pending. The trial court determined that there was no just reason for delay in the entry of a final judgment and directed the entry of a judgment in favor of Whitaker, pursuant to Rule 54(b), Ala.R.Civ.P. This case is before this court pursuant to Ala.Code 1975, § 12-2-7(6).

The plaintiffs contend that the trial court committed reversible error when it granted the summary judgment motion in Whitaker's favor because, they say, the evidence that was submitted created a genuine issue of a material fact. Specifically, the plaintiffs contend that they presented sufficient evidence to create a genuine issue of a material fact as to whether Whitaker's failure to adequately warn of the hazard created by the extremely low shoulder proximately caused the accident and resulting injuries and damages.

Rule 56(c), Ala.R.Civ.P., provides that a summary judgment is appropriate in situations where no genuine issue of any material fact exists and the movant is entitled to a judgment as a matter of law. It is well settled that the moving party has the burden of establishing that no genuine issue of a material fact exists and that all reasonable uncertainties regarding the existence of a genuine issue of a material fact must be resolved against the moving party. Porter v. Fisher, 636 So.2d 682 (Ala.Civ.App.1994).

Once the movant makes a prima facie showing that no genuine issue of a material fact exists, then the burden shifts to the non-moving party to present substantial evidence regarding the existence of a genuine issue of a material fact. Porter, 636 So.2d 682.

Our review of the record reveals the following pertinent facts: On May 1, 1992, Hobson L. Brown was driving a tractor and tanker owned by his employer, Williams Oil Company (Williams). Federated Insurance Company was Williams's insurance carrier on that date.

Brown was travelling north on Blount County Road 25, transporting gasoline for delivery to a gas station just south of Warrenton on Blount County Road 25. About halfway through a slight curve to the right, the right front wheel of the rig dropped off the pavement.

Brown testified in his deposition that the wheel dropped off the pavement, the rig leaned to the right, and he attempted to get the rig back on the road. Brown indicated that when he tried to nudge the rig back onto the road, as he normally would, the rig leaned over even more because the shoulder was so low. Therefore, he pulled the wheel hard to bring the rig back onto the pavement. When the rig returned to the pavement, it began to fishtail and he was unable to straighten it out. The rig turned over off the right-hand side of the road and hit a tree. Gas leaked from the rig. The rig subsequently exploded when the wrecker service was attempting to set the tanker back on its wheels.

The portion of County Road 25 where the accident occurred was designated as Unit Two of a construction project and was repaved between November 9, 1991, and February 21, 1992. Whitaker contracted with Blount County to be responsible for the repaving, the restriping, and the placing of the signs in accordance with the Alabama Manual on Uniform Traffic Control Devices (MUTCD). It was the county's responsibility under the contract to build up the shoulders of the road after the construction project was complete. The construction project was certified as complete in May 1993.

Whitaker was aware of the "low and unsafe shoulders" in the project area because David Reed, one of its employees, wrote a letter dated February 3, 1992, to Richard Spraggins, the Blount County engineer, which stated in pertinent part:

"During a recent safety inspection of the above referenced projects, low and unsafe shoulders were observed. [Whitaker] understands that the Blount County Commission will build the shoulders to a safe standard. Please advise Whitaker when Blount County will address the correction of this problem and also please forward [to Whitaker] documentation which would excuse our firm of exposure might an accident occur due to the low shoulder conditions on these projects."

Brown stated that he had travelled the road where the accident occurred several times because it was a standard business route. Brown testified that he was aware that the surface of the road had been repaved in the several months preceding the accident, but that he did not expect the shoulder to be as low as it was.

Brown testified that although he remembers seeing a sign that said "Road Construction next 4.1 miles," located about three and one-half miles from the scene of the accident, he does not recall seeing any sign which warned of "low shoulder."

Charles Barrett, a vice-president at Whitaker, testified in his deposition that a sign indicating "Road Construction next ___miles" and a sign warning of "low shoulder" were placed on County Road 25 in November 1991, at each end of the construction area, and that these signs were not removed prior to the May 1, 1992, accident. Barrett also testified that Whitaker placed the signs warning of "low shoulder" and that because Blount County did not request a sign warning of "low shoulder," he did not know if Blount County would have made a notation in the county's records of the sign warning of "low shoulder."

Spraggins...