Fletcher v. Hale

• Court: Supreme Court of Alabama
• Writing for the Court: HOUSTON; Bloodworth; HORNSBY
• Citation: 548 So.2d 135
• Parties: Marie FLETCHER, as mother and personal representative of the Estate of Demetrius Fletcher, deceased v. Douglas V. HALE, et al. 88-564.
• Decision Date: 26 May 1989

Page 135

548 So.2d 135 Marie FLETCHER, as mother and personal representative of the Estate of Demetrius Fletcher, deceased
v.
Douglas V. HALE, et al. 88-564. Supreme Court of Alabama. May 26, 1989.
Rehearing Denied July 7, 1989.

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.

Page 136

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...