Dibiasi v. Joe Wheeler Elec. Membership

• Decision Date: 11 January 2008
• Docket Number: 1060848.
• Citation: 988 So.2d 454
• Parties: Narriman DIBIASI and Julia Brewer, as co-administratrixes of the estate of Dominic DiBiasi v. JOE WHEELER ELECTRIC MEMBERSHIP CORP.
• Court: Alabama Supreme Court

988 So.2d 454

Narriman DIBIASI and Julia Brewer, as co-administratrixes of the estate of Dominic DiBiasi

v.

JOE WHEELER ELECTRIC MEMBERSHIP CORP.

1060848.

Supreme Court of Alabama.

January 11, 2008.

M. Clay Martin and Tara L. Helms of Watson, Jimmerson, Martin, McKinney, Graffeo & Helms, P.C., Huntsville, for appellants.

John W. Dodson and Patrick G. Montgomery of Ferguson, Frost, & Dodson, L.L.P., Birmingham, for appellee.

SEE, Justice.

This wrongful-death action was brought on behalf of Dominic DiBiasi ("Dominic"), who was electrocuted when he grabbed an uninsulated high-voltage transmission line hanging over the roof of the house on which he was standing. The transmission line, owned by Hartselle Utilities ("Hartselle"), was attached to a utility pole owned by Joe Wheeler Electric Membership Corp. ("Joe Wheeler"). Narriman DiBiasi, Dominic's mother, and Julia Brewer, Dominic's common-law wife, as co-administratrixes of Dominic's estate (hereinafter referred to collectively as "DiBiasi"), filed a wrongful-death action against both Hartselle and Joe Wheeler, alleging negligence and wantonness on the part of both parties. Joe Wheeler moved for a summary judgment, arguing that its pole was not defective and that Joe Wheeler owed no duty to Dominic. The trial court granted Joe Wheeler's motion and entered a judgment in its favor, stating that "the plaintiffs' claims set forth against [Joe Wheeler] in their original Complaint and all amendments thereto are dismissed with prejudice." The summary judgment was made final pursuant to Rule 54(b), Ala. R. Civ. P.

DiBiasi now appeals, arguing that there is substantial evidence indicating that Joe Wheeler owed a duty to Dominic. However, because DiBiasi makes no apparent argument in support of her wantonness claim, it is waived, and, therefore, we do not address it. See Pardue v. Potter 632 So.2d 470, 473 (Ala.1994) ("Issues not argued in the appellant's brief are waived." (citing Deutcsh v. Birmingham Post Co., 603 So.2d 910 (Ala.1992)); Bogle v. Scheer, 512 So.2d 1336 (Ala.1987)). We affirm the trial court's judgment.

Facts and Procedural History

On October 11, 2004, Dominic was residing with Alan and Sherry Holt at 1607 Main Street West, Hartselle, Alabama, to which Hartselle supplies the power. On the morning of the accident, he was working around the house when he and Alan decided to climb onto the roof to inspect the gutters. While they were on the roof, the men saw two lines above the roof of the Holts' house—one line was 2 to 2.5 feet above the peak of the roof, while the other was approximately 5 feet above the peak of the roof. The two men discussed attaching a pulley to the lines and sliding down, in the belief that the lines were support cables for the nearby utility poles. It appears that both men grabbed the lower of the two lines, a neutral line, and determined that "it would probably hold [them]." Dominic was curious about the higher of the two lines, and he grabbed it to determine whether it would hold them; that line, however, was an uninsulated 7,200-volt transmission line, and Dominic was killed when he grabbed it.

The line that electrocuted Dominic was an electric transmission line owned by Hartselle that crossed the Holts' house as it ran between two poles—one owned by Hartselle and the other owned by Joe Wheeler. Hartselle attached its line to Joe Wheeler's pole as part of a "joint-use" or "pole-sharing" agreement. The agreement allows the sharing of poles for the transmission of power to the companies' respective customers without the need to duplicate infrastructure.

DiBiasi sued both Hartselle and Joe Wheeler, alleging both negligence and wantonness. The negligence and wantonness claim against Joe Wheeler alleges as follows:

"a. Defendant Joe Wheeler failed to properly place the utility pole on the south end of the residential property located at 1607 Main Street West, Hartselle, Alabama, and allowed the electric power line in question to be in close proximity to the house located at such address;

"b. Defendant Joe Wheeler failed to install a utility pole on the south end of the residential property located at 1607 Main Street West, Hartselle, Alabama, which was sufficient in height to allow for the proper clearance of the utility line in question over the home located on such property "c. Defendant Joe Wheeler failed to properly construct, install, or erect an electric power pole on the south end of the residential property located at 1607 Main Street West, Hartselle, Alabama, and, thus, allowed for the power line in question to be hung or run in a manner that did not comply with the minimum clearance construction standards of the electrical industry for such lines; and

"d. Defendant Joe Wheeler failed to properly maintain and inspect the electric power pole located on the south end of the residential property at 1607 Main Street West, Hartselle, Alabama, and thereby allowed for a dangerous condition to be created by the line in question being in close proximity to the house located on such property."¹

Joe Wheeler argued in its motion for a summary judgment that it "had no duty to inspect, maintain, or supervise the power lines of another company, Hartselle." Joe Wheeler further argued that "[n]o evidence exists that [it] had any notice of a dangerous condition in the [Hartselle] lines and no evidence exists that Joe Wheeler was required to or was expected to inspect the power lines servicing another utility company's customer." DiBiasi responded, arguing, among other things, that,

"even if Joe Wheeler was under no duty to inspect the power line that caused [Dominic]'s death, once Joe Wheeler became aware that the power line improperly and hazardously ran from its pole directly over a residence, this created a duty in Joe Wheeler to take appropriate action. The failure of Joe Wheeler to take any action once armed with this knowledge properly creates liability."

The trial court granted Joe Wheeler's summary-judgment motion, finding as follows:

"Under the facts set forth in the record ... Joe Wheeler owed no duty to ... Dominic, to inspect electric transmission lines that were attached to its utility pole ... that were owned, installed, controlled and maintained exclusively by [Hartselle]. The plaintiffs have failed to produce substantial evidence ... that Joe Wheeler had knowledge or reason to know that [Hartselle]'s electric transmission lines were too close to the roof of the house occupied by [Dominic] .... This Court understands that certain of its conclusions disregard opinions expressed by [DiBiasi]'s expert in his affidavit. That is so because the disregarded opinions are not based on substantial evidence or on specific electric code provisions, accepted utility industry standards or legal authorities, and that would require the Court to engage in conjecture about unproven facts or impermissibly draw inferences from assumed facts or from other inferences for which there is no evidentiary support."²

DiBiasi now appeals, arguing that the trial court improperly granted Joe Wheeler's summary-judgment motion because, DiBiasi says, she produced substantial evidence showing that Joe Wheeler owed a duty to Dominic that it breached, resulting in his death.

Issues

DiBiasi argues that the trial court improperly entered a summary judgment for Joe Wheeler because, she says, (1) DiBiasi presented evidence indicating that Joe Wheeler knew or should have known that its pole was being used to create an unreasonably dangerous condition and, therefore, it owed a duty to Dominic to require the removal of the dangerous condition, and (2) DiBiasi presented substantial evidence from which a jury could reasonably infer that Joe Wheeler knew or should have known that its utility pole was being used to run an uninsulated transmission line over the Holt residence in a manner that created an unreasonably dangerous hazard.

Standard of Review

A summary judgment is appropriate only if the trial court finds that there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. Once a movant makes a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to produce "substantial evidence" that creates a genuine issue of material fact. Ex parte CSX Transp., Inc., 938 So.2d 959, 961 (Ala.2006). "Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte CSX Transp., 938 So.2d at 961 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)); § 12-21-12(d), Ala.Code 1975. "`"If the nonmovant [assuming the nonmovant has the burden of proof at trial] cannot produce sufficient evidence to prove each element of its claim, the movant is entitled to a summary judgment, for a trial would be useless."'" Prowell v. Children's Hosp. of Alabama, 949 So.2d 117, 128 (Ala.2006) (quoting Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999), quoting in turn and approving language from Justice Houston's special writing in Berner v. Caldwell, 543 So.2d 686, 691 (Houston, J., concurring specially)).

On appeal, this Court reviews a summary judgment de novo. Ex parte Essary, [Ms. 1060458, Nov. 2, 2007] ___ So.2d ___, ___ (Ala.2007). In doing so, we apply the same standard of review as did the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). "`"Our review is subject to the caveat that we must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant."'" Ex parte CSX Transp., 938 So.2d at 962 (quoting Payton v. Monsanto Co., 801 So.2d 829, 833 (Ala.2001), quoting in turn Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)....