Ex Parte Essary

• Decision Date: 02 November 2007
• Docket Number: 1060458.
• Citation: 992 So.2d 5
• Parties: Ex parte Thomas Wade ESSARY. (In re Latrice Burrell, Irene Banks, and Loretta Pratcher v. Thomas Wade Essary).
• Court: Alabama Supreme Court

992 So.2d 5

Ex parte Thomas Wade ESSARY (In re Latrice Burrell, Irene Banks, and Loretta Pratcher v. Thomas Wade Essary).

1060458.

Supreme Court of Alabama.

November 2, 2007.

Rehearing Denied April 25, 2008.

William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for petitioner.

Philip D. Segrest, Jr., Tallassee, for respondent Latrice Burrell.

SMITH, Justice.

Thomas Wade Essary, the defendant below, appeals that part of the judgment of the Court of Civil Appeals reversing the trial court's summary judgment in his favor. Burrell v. Essary, 992 So.2d 1 (Ala. Civ.App.2006). We reverse that portion of the Court of Civil Appeals' judgment and render a judgment in favor of Essary.

Facts and Procedural History

On the evening of May 22, 2002, Essary was driving west on McPherson Landing Road in Tuscaloosa County. Essary reached the intersection of McPherson Landing Road and Highway 69, where a stop sign obligates the westbound traffic on McPherson Landing Road to stop and yield to traffic traveling north and south on Highway 69. There are no stop signs halting traffic traveling on Highway 69. As Essary proceeded through the intersection, his vehicle collided with a vehicle traveling south on Highway 69 that was being driven by Latrice Burrell and occupied by Irene Banks and Loretta Pratcher.

On August 31, 2004, Burrell, Banks, and Pratcher sued Essary and his automobile insurer in the Hale Circuit Court to recover damages for negligence, wantonness, and trespass. The case was later transferred to the Tuscaloosa Circuit Court.

Essary moved for a summary judgment, asserting that the negligence claim was barred by the applicable statute of limitations and that his conduct did not constitute either wantonness or a trespass. Essary supported his motion with, among other things, his deposition and the depositions of Burrell and Banks. Essary testified in his deposition that he did not see Burrell's vehicle when he entered the intersection. Burrell's deposition testimony indicated that Essary made a "rolling stop" at the intersection and that he then pulled out in front of the vehicle she was driving. Essary argued in his motion for a summary judgment that "the evidence indicates at most that [Essary] made a `rolling stop' and failed to yield the right-of-way. [Essary], without dispute, testified that he looked both ways before entering the intersection and did not see [Burrell's] vehicle approaching. He testified that he may have failed to see [Burrell's] vehicle due to the artificial lighting along the highway. There is no evidence that [Essary] was drunk, intoxicated, that he was conscious that [Burrell's] vehicle was near or that a collision was about to occur. That is, there is no substantial evidence that [Essary's] conduct rose to the level of wantonness, as that term is defined in Alabama."

In opposition to the summary-judgment motion, the plaintiffs submitted, among other things, an affidavit by Burrell, in which she stated that, in her "opinion," Essary came to "rolling stop" at the intersection and, after a vehicle being driven by Erica Banks passed the intersection, accelerated into the intersection as he passed the stop sign. Burrell stated: "In my opinion, he was attempting to `shoot through the gap,' between the lead vehicle and the vehicle I was driving."

After a hearing on the motion, the trial court entered a summary judgment in favor of Essary on all claims. The trial court held, among other things, that there was no substantial evidence of wanton conduct. The trial court subsequently denied a postjudgment motion by the plaintiffs, who then appealed to this Court. We transferred the case to the Alabama Court of Civil Appeals pursuant to Ala.Code 1975, § 12-2-7(6). The Court of Civil Appeals affirmed the trial court's judgment on the negligence claim and the trespass claim, but reversed the trial court's judgment on the wantonness claim, holding that the plaintiffs had established a genuine issue of material fact regarding whether Essary had acted wantonly. Burrell v. Essary, supra. Specifically, the Court of Civil Appeals held:

"Burrell's testimony regarding the circumstances of the collision conflicted with Essary's testimony and tended to prove a set of circumstances from which a jury could draw a `reasonable inference' that Essary knew that the vehicle driven by Burrell was close to the intersection when he accelerated into the intersection despite being aware that his doing so would likely or probably result in injury to the plaintiffs."

992 So.2d at 5. Essary filed an application for rehearing, which the Court of Civil Appeals overruled. He then petitioned this Court for certiorari review alleging, among other things, that the Court of Civil Appeals' decision conflicted with Wilson v. Cuevas, 420 So.2d 62 (Ala.1982). See Rule 39(a)(1)(D), Ala. R.App. P. We granted the petition, and we now reverse the part of the judgment of the Court of Civil Appeals that reversed the trial court's judgment on the wantonness claim and render a judgment in favor of Essary on that claim.

Standard of Review

"`We review this case de novo, applying the oft-stated principles governing appellate review of a trial court's grant or denial of a summary judgment motion:

"`"We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. `Substantial evidence' is `evidence 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.' In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw."'"

General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala.2002) (quoting American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002)). Moreover, "[o]n certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court." Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996).

Discussion

The issue before the Court is whether the Court of Civil Appeals erred in reversing a summary judgment in favor of Essary on the plaintiffs' wantonness count. Essary argues that he produced substantial evidence establishing that no genuine issue of material fact existed as to the wantonness count and that the plaintiffs failed to present substantial evidence creating such an issue. He argues that, at best, the evidence in this case shows only mere negligence.

"Wantonness" has been defined by this Court as the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala. 1994). To constitute wantonness, it is not necessary that the actor know that a person is within the zone made dangerous by his conduct; it is enough that he knows that a strong possibility exists that others may rightfully come within that zone. Joseph v. Staggs, 519 So.2d 952, 954 (Ala. 1988). Also, it is not essential that the actor should have entertained a specific design or intent to injure the plaintiff, only that the actor is "conscious" that injury will likely or probably result from his actions. Id. "Conscious" has been defined as "`perceiving, apprehending, or noticing with a degree of controlled thought or observation: capable of or marked by thought, will, design, or perception'"; "'having an awareness of one's own existence, sensations, and thoughts, and of one's environment; capable of complex response to environment; deliberate.'" Berry v. Fife, 590 So.2d 884, 885 (Ala.1991) (quoting Webster's New Collegiate Dictionary 239 (1981) and The American Heritage Dictionary of the English Language 283 (1969), respectively).

Additionally, when determining if a defendant's actions constitute wanton conduct, it is important for the court to distinguish between wantonness and negligence.

"`"Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury ....

"`"Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as ... a conscious ... act. `Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.' McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913)...."'"

Tolbert v. Tolbert, 903 So.2d 103, 114-15 (Ala.2004) (quoting Ex parte Anderson, 682 So.2d 467, 470 (Ala.1996), quoting in turn Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145-46 (Ala.1987)) (emphasis added).

The determination whether a defendant's acts constitute wanton conduct depends on the facts in each particular case. Ex parte Anderson, 682 So.2d at 470. In support of his motion for a summary judgment, Essary submitted his deposition and the depositions of Burrell and Irene Banks. In his deposition, Essary testified that he drove on McPherson Landing Road frequently and that he was familiar with the intersection where the collision occurred. Essary stated that on the evening of the accident he was traveling west on McPherson...