Fletcher v. Hale

Decision Date26 May 1989
Citation548 So.2d 135
PartiesMarie FLETCHER, as mother and personal representative of the Estate of Demetrius Fletcher, deceased v. Douglas V. HALE, et al. 88-564.
CourtAlabama Supreme Court

Stuart E. Smith of Watson, Gammons & Fees, Huntsville, for appellant.

James E. Davis, Jr. and Rennie S. Moody of Lanier, Ford, Shaver & Payne, Huntsville, for appellees.

HOUSTON, Justice.

Marie Fletcher appeals from a summary judgment for Douglas V. Hale and Danny Haswell, the sole remaining defendants 1 in Ms. Fletcher's suit to recover damages for the drowning death of her 10-year-old daughter, Demetrius. Demetrius drowned in a swimming pool at an apartment complex owned by Hale. Haswell was the maintenance supervisor at the apartment complex.

The trial court, after considering all affidavits, depositions, answers to interrogatories, and admissions of fact filed by the parties, entered the following final judgment:

"The determination as to the existence vel non of a duty resting upon a defendant is an issue of law for the court and not one for the jury. Sungas, Inc. v. Berry, [Perry], 450 So.2d 1085 (Ala.1984). The deceased minor [Demetrius] was a trespasser. The Court is of the opinion that defendants have breached no duty owed to the trespassing minor who drowned in a swimming pool located within an apartment complex. It is therefore ordered by the Court that the motions for summary judgment be, and the same are hereby, granted...."

Hale was the owner of University Parke Apartments and the possessor of the common areas, including the pools of that apartment complex, when 10-year-old Demetrius trespassed by entering the pool area during the early afternoon of a midsummer day. Hale had employed Haswell, who was a trained pool operator with a certificate of competency from the health department, and among Haswell's duties was "the close supervision" of the swimming pool.

In Motes v. Matthews, 497 So.2d 1121, 1122-23 (Ala.1986), we held:

"The attractive nuisance doctrine is not applicable in cases where one seeks to impose liability upon an occupier of property for the death of or injury to a trespassing child. Likewise, the conventional duty is not applicable in such cases, except where physical harm to a trespassing child is caused by a natural condition upon the property. When physical harm to a trespassing child is caused by a natural condition upon the property, the conventional duty which an occupier owes to a trespasser is the only duty owed to the trespassing child. In all other cases, the duty which an occupier of property owes to a trespassing child is set forth in § 339, Restatement (Second) of Torts:

" 'A possessor [occupier] of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

" '(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

" '(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

" '(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

" '(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

" '(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.' " (Emphasis in Motes.)

Reviewing the record in the light most favorable to the plaintiff and resolving all reasonable doubts against the defendants, which our standard of review mandates when the trial court has entered summary judgment in favor of the defendants (Motes v. Matthews, supra, at 1123), we find that the trial court had the following facts before it at the time it granted the defendants' motion for summary judgment:

The swimming pool was an artificial condition upon Hale's land. Hale had reason to know that such a pool, located at 1313 Boxwood, in Huntsville, Alabama, would be a place that children would likely trespass during the early afternoon of a midsummer's day. On occasions prior to the day on which Demetrius drowned, Haswell, as Hale's employee, had observed children, who were not children of the tenants at University Parke Apartments, using the pool. The pool was 10 feet deep at the place where Demetrius's body was found.

The pool was a "public swimming pool" subject to the "Swimming Pool Recommendations" issued by the Bureau of Environmental Health of the Alabama State Department of Health. 2 Among those recommendations are the following:

"Lifesaving Equipment: Each pool shall be provided with not less than one unit of lifesaving equipment consisting of: ... (3) a 1/4-inch heaving line equivalent in length to the width of the pool."

__________

"Conduct of Bathers: The pool management should prohibit boisterous or rough play, except supervised water sports, in all portions of the pool, pool enclosure, bathhouse and appurtenances."

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"Fence: A man-proof fence or other barrier should completely encircle the pool and should be located adjacent to the runways. The only unlocked opening should be to the bathhouse. Other openings may be provided for use of operating personnel if kept locked at all times that they are not in use."

The pool was also subject to the "Regulations Governing the Construction, Equipment and Operation of Public Swimming Pools" promulgated by the Madison County Board of Health, and those Regulations contain the following provisions applicable to pools at apartment houses:

"Every swimming pool shall be operated under the close supervision of a trained operator...."

______

"Clearness--at all times when the pool is in use the water shall be sufficiently clear to permit a black disc six inches in diameter on a white field, when placed on the bottom of the pool at the deepest point, to be clearly visible from the sidewalks of the pool at all distances up to ten yards measured from a line drawn across the pool through said disc. The main drain(s) shall be visible at all times. Failure to meet either of these requirements shall constitute grounds for immediate closing of the pool."

______

"An effective fence or barrier, at least 5 feet high, with entry at [the] shallow end, shall be provided so as to prevent unauthorized entry to the pool. A qualified attendant, with a valid certificate of lifesaving, shall be on duty at or near the poolside at all times when a pool is open to use by bathers. The attendant shall be in full charge of bathing and have authority to enforce all rules of safety and sanitation, and shall...

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  • Laster v. Norfolk Southern Ry. Co., Inc.
    • United States
    • Alabama Supreme Court
    • January 16, 2009
    ...poses a danger to children." Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So.2d 953, 961 n. 5 (Ala.1993) (citing Fletcher v. Hale, 548 So.2d 135 (Ala.1989), and Lyle v. Bouler, 547 So.2d 506 Motes held that the conventional duty of care recited in Beam is "not applicable ... except......
  • Pino v. Szuch
    • United States
    • West Virginia Supreme Court
    • July 17, 1991
    ...it is on the child. Several courts use similar age groupings when assessing a child's capacity to be negligent. See, e.g., Fletcher v. Hale, 548 So.2d 135 (Ala.1989); Friedman v. Park Dist. of Highland Park, 151 Ill.App.3d 374, 104 Ill.Dec. 329, 502 N.E.2d 826 (1986); Hoots v. Beeson, 272 N......
  • Oden v. Pepsi Cola Bottling Co. of Decatur, Inc.
    • United States
    • Alabama Supreme Court
    • May 28, 1993
    ...to his behavior. Pepsi argues that the trial court could have properly found that Mark was of sufficient maturity. In Fletcher v. Hale, 548 So.2d 135, 138 (Ala.1989), the Court quoted Justice Bloodworth's opinion in King v. South, 352 So.2d 1346, 1347 "It has long been the law in Alabama th......
  • Laster v. Norfolk Southern Railway Company, Inc., No. 1050532 (Ala. 1/5/2007)
    • United States
    • Alabama Supreme Court
    • January 5, 2007
    ...a danger to children." Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So. 2d 953, 961 n. 5 (Ala. 1993) (citing Fletcher v. Hale, 548 So. 2d 135 (Ala. 1989), and Lyle v. Bouler, 547 So. 2d 506 (Ala. Motes held that the conventional duty of care recited in Beam is "not applicable ... e......
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