City of Mobile v. Largay

• Decision Date: 20 May 1977
• Citation: 346 So.2d 393
• Parties: CITY OF MOBILE, a Municipal Corporation v. Florence Ruth LARGAY. SC 1881.
• Court: Alabama Supreme Court

Page 393

346 So.2d 393

CITY OF MOBILE, a Municipal Corporation v. Florence Ruth LARGAY.

SC 1881.

Supreme Court of Alabama.

May 20, 1977.

Robert C. Campbell, III, Mobile, for appellant.

James A. Yance of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.

PER CURIAM.

Defendant, City of Mobile, appeals from a judgment and jury verdict of $25,253 awarded plaintiff, Florence Ruth Largay, and from denial of its motion for new trial. We hold that the trial court erred in submitting the case to the jury on the issue of proximate cause. We reverse and render.

At approximately 3:00 p. m. on October 25, 1974, in broad, open daylight, plaintiff, a 19-year-old college student who worked part time for the Mobile Press-Register, parked her car in a public parking space on Franklin Street in Mobile, Alabama, alongside a vacant city museum building known as the Old Roche Building. As she was getting out of her car, an unidentified black male proceeded to cross the street towards her car and spoke to her. The black male had come from the opposite side of Franklin Street. She turned back to her car and picked up some papers. When she stood up beside the car to close the door, the same man was standing immediately in front of her. He pulled a knife and forced her into her car. She fought back, grabbed the knife and screamed. She was cut by the knife and pushed down on the floorboard. The assailant tried to start the car six or seven times. Failing in his attempt to start it, he dragged her down the sidewalk and through an open cellar door into the vacant city museum building owned by the City of Mobile. She was blindfolded and her hands were tied behind her back with a belt. The assailant beat her, raped her, and left her for dead. The man has not been apprehended. Plaintiff finally worked her hands loose from the belt and made her way back to the street, where she was able to obtain the assistance of two fellow employees who had just parked their cars on their way to work.

The building where this assault occurred was purchased by the City of Mobile in 1972. It had previously been owned by the Housing Authority. It was used as a museum for approximately four years. In March 1973, it was closed to the public for restoration. The evidence showed that city employees checked the building about once a week. The fully restored museum was re-opened on February 8, 1976. There was some testimony which indicated that prior to this incident the building had been broken into on several occasions. According to other testimony, "winos" and derelicts slept in the cellar area of the building; wine and whiskey bottles littered the area in and around the building; and cars parked in the vicinity of the building had been broken into. Photographs taken immediately following the incident and introduced into evidence show the building in a state of disrepair.

Plaintiff sued the City of Mobile and a jury rendered a verdict in her favor in the amount of $25,253. The City, having moved for a directed verdict at the close of plaintiff's case, then moved for judgment notwithstanding the verdict or a new trial. The motion was denied. The City appeals.

The City raises the following issues on appeal:

I. Whether the doctrine of municipal immunity operates as a bar to the plaintiff's recovery.

II. Whether plaintiff was a trespasser on the property owned by the City, and thus the legal duty owed her by the City was merely not to injure her intentionally or wantonly.

III. Whether the proximate cause of plaintiff's injuries was the act of the unidentified assailant. Or, stated otherwise, whether his criminal act was an efficient superseding, or independent intervening, cause and relieved the City of any liability.

I. Municipal Immunity

Because this case arose before Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), the City contends that, if the ownership and operation of this building was a governmental function, the plaintiff's case is barred.

In view of the result which we reach on the issue of proximate cause, we find it unnecessary to address this issue.

II. City's Duty as a Property Owner

Although we entertain grave doubts concerning the duty owed plaintiff by the City, we pretermit consideration of that issue, too, because of the result which we reach on the issue of proximate cause.

III. Proximate Cause

The third issue raised by the City is dispositive of this appeal: Was the issue of proximate cause properly submitted to the jury, or should the trial court have ruled, as a matter of law, that the City's allegedly negligent maintenance of its building was not a proximate cause of plaintiff's injuries?

Solely for purposes of deciding this issue, we assume, since the jury must have so found, that the City had negligently maintained the building. But, as this Court stated in Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976):

"Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. If, between the alleged negligent act or omission and the injury, there occurs an independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961) . . . ."

"The key here is foreseeability. This court has held many times that a person, who by some act or omission sets in motion a series of events, is not responsible for consequences of intervention of another agency, unless at the time of his original act or omission, the act of the intervening agency could reasonably be foreseen. If so, the causal chain is not broken. If the injury results from an independent intervening, efficient cause, not reasonably foreseeable, the original negligent act or omission is not the proximate cause of injury. . . ."

Generally, we have held that the issue of proximate cause is a question for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 593, 206 So.2d 594 (1967). This general rule is not applicable when the evidence establishes no reasonable inference in support of a plaintiff's claim. Williamson v. Birmingham Transit Corp., 344 So.2d 489 (Ala.1977). Where the evidence, when viewed in the light most favorable to the party against whom a motion for a directed verdict has been granted, establishes no such inference, the moving party is entitled to a directed verdict.

We hold that the evidence in the present case fails to establish any reasonable inference in support of plaintiff's case on the issue of proximate cause and that the trial court erred in denying the City's motion for a directed verdict on that issue.

To hold otherwise would be directly contrary to our recent decision in Vines v. Plantation Motor Lodge, supra, and would have the effect of overruling that case. Vines is directly in point.

In Vines, the defendants had, in violation of a city ordinance, left their truck unlocked with the keys in the ignition. The truck, which was parked in a dark alley behind defendants' business (in a high crime rate area ), was stolen by a teenager, who was apparently under the influence of drugs and who drove it in such a manner that it collided with the motorcycle on which Bobby Dean Vines and her husband Gary were riding. Gary was killed.

Although this Court observed that an alarming number of auto thefts occur when keys are left in the vehicle and that a substantial proportion of stolen vehicles are involved in accidents, we held that the thief's negligent driving was the proximate cause of the injuries and that the consequences of the theft were too remote to have been reasonably foreseeable by defendants when they left the truck unattended with the keys in the ignition. The Court affirmed the trial court's grant of summary judgment in favor of defendants.

In the present case, the criminal act was at least as unforeseeable as that in Vines. Clearly, the assailant did not even intend to use the building until his first plan to carry the plaintiff away was thwarted when he was unable to start her car. Only when he failed after six or seven attempts to start the car, did he resort to the unlocked cellar.

We hold, as a matter of law, that the use of the unlocked cellar for the perpetration of rape was not a reasonably foreseeable consequence of the City's failure to maintain the building.

REVERSED AND RENDERED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES, J., dissents.

JONES, Justice (dissenting):

I respectfully dissent. Because I reach a different conclusion than that reached by the majority on the issue of proximate cause (and I because I would affirm), I will address all three issues:

I. Municipal Immunity

II. Duty

III. Proximate Cause

I. Municipal Immunity

Because this case arose before Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), I agree with the City's contention that, if the ownership and operation of this building was a governmental function, the plaintiff's case is barred. The City's "governmental immunity" defense is to be tested by the pre-Jackson standard which is based on the governmental/proprietary distinction.

Initially, then, we must determine if the trial Judge was correct in submitting to the jury the factual determination whether this building was being operated as a museum (the contention of the City), or had been abandoned for any use (contention of the plaintiff). The trial Judge charged the jury as follows:

"I charge you that on the question of a museum that the burden is on the plaintiff to reasonably satisfy you that the building was not serving as a museum in October of 1974."

After defining "museum," the trial Judge continued:

"I charge you that...