Foster v. Alabama Power Co.

Decision Date20 February 1981
Citation395 So.2d 27
PartiesI. J. FOSTER v. ALABAMA POWER COMPANY et al. Richard Dale FOSTER, a minor, 15 years of age, by his father and next friend, I. J. Foster v. ALABAMA POWER COMPANY et al. 79-933, 79-934.
CourtAlabama Supreme Court

Charles L. Howard, Jr. of Howard & Howard, Birmingham, for appellants.

S. Allen Baker, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.

MADDOX, Justice.

This appeal is from an order of the trial court granting summary judgment in favor of the defendant, Alabama Power Company. Plaintiffs, father and son, filed separate actions against Alabama Power Company alleging that on September 3, 1973, Richard Dale Foster, the 15-year-old son of I. J. Foster, climbed a transmission line tower owned or maintained by Alabama Power Company in the vicinity of Overton, Alabama. Young Foster came in contact with a high voltage line, experienced electrical shock and was caused to fall and suffer severe and permanent personal injury.

In their complaints, as last amended, the plaintiffs claimed: (1) that Alabama Power Company was negligent in and about its trade or business; (2) that the power line was negligently maintained; (3) that the defendant wantonly conducted the trade or business of handling the transmission of electricity and did wantonly maintain the power line; (4) that the defendant negligently or wantonly created circumstances which induced persons to go on the tower; (5) that the defendant negligently or wantonly failed to cause a proper warning; (6) that the defendant negligently or wantonly failed to properly maintain warning devices; and (7) that the defendant negligently or wantonly failed to provide or maintain adequate safeguards or barriers, all in the transmission of electricity, a dangerous instrumentality.

Alabama Power answered and moved for summary judgment on the grounds that there were no genuine issues of material fact, on the ground that Richard Dale Foster was a trespasser upon the transmission line tower at the time of his injury and that the only duty owed to him by Alabama Power was not to willfully or wantonly injure him.

The trial court granted Alabama Power's motion for summary judgment on December 11, 1979. Shortly thereafter, the appellants, plaintiffs below, moved to have the court set aside its order and judgment on the grounds that they were not ready for the matter to be submitted to the court for a final order and that they wanted more time in which to perform additional discovery and an opportunity to file a response to the motion for summary judgment before final submission. Thereafter, appellants performed additional discovery and the matter was submitted to the court for a final judgment. Once again, the court found in favor of Alabama Power and issued an order granting summary judgment in its favor on April 16, 1980.

The only issue presented is whether the trial court erred in granting summary judgment in favor of the Power Company. In deciding whether there was a genuine issue as to any material fact which would warrant submission of the case to a jury, we must examine the duty, if any, owed by Alabama Power to Richard Dale Foster, and the applicability of the doctrine of attractive nuisance to these facts in order to determine the appropriateness of summary judgment on these facts.

In examining the applicability of the doctrine of attractive nuisance, we must determine whether the transmission line tower was a dangerous condition or a dangerous instrumentality. An excellent statement of the rationale upon which the attractive nuisance doctrine is based is found in Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). The Court stated:

This doctrine offers an exception to the limited duty owed by a landowner to a trespasser. It applies only where trespassing children are involved. Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964); see, Fulford, The Tort Liability of Possessors of Property to Trespassing Children in Alabama, 11 Ala.L.Rev. 1, 9-13 (1958). The doctrine evolved from the "turntable" theory pronounced by the United States Supreme Court in Sioux City and P. R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873) and was adopted by this court in the case of Alabama Great Southern Railroad Co. v. Crocker, 131 Ala. 584, 31 So. 561 (1901). The turntable doctrine over the years has been narrowly applied and rigorous standards of application have developed around its use. The most important restriction is that the dangerous condition on the landowner's property must be found to be naturally attractive to small children thus leading to the "attractive nuisance" terminology.

333 So.2d at 132. Thus, the Court noted that the doctrine only applies where "trespassing children" are involved and where the landowner's property is found to be "naturally attractive to small children."

In the instant case, the doctrine of attractive nuisance cannot apply because Richard Dale Foster was 15 years old at the time of his injury and the evidence presented in connection with the motion for summary judgment shows that he was a boy of intelligence. For example, he was an Eagle Scout. In Central of Georgia R. Co. v. Robins, 209 Ala. 6, 95 So. 367 (1923), this Court first discussed a number of cases which held that someone over 14 years of age cannot recover under the doctrine of attractive nuisance and then stated:

We think this is the correct view of the matter, deducible from the nature of the duty prescribed, and from the necessities of the class for whose benefit the law has raised the duty. Certainly it is in accord with the general consensus of judicial opinion, and it is almost conclusively significant that among all the reported cases we do not find a single instance in which the doctrine of the turntable cases has been applied to, or even invoked by, a child who has passed the age of 14; for the absence of such instances would seem to indicate either a general implicit understanding that youths of 14 and over are not children of "tender years," or else that at that age they are no longer subject to the domination of childish instincts, and do not need the protection of the rule so far, at least, as turntables are concerned.

209 Ala. at 8, 95 So. 367. Further, this Court, in Abbott v. Alabama Power Co., 214 Ala. 281, 107 So. 811 (1926), citing Robins, stated:

(T)he plaintiff could not recover, as for an attractive nuisance, as he was a boy of intelligence and over 15 years of age. Central R. R. of Ga. v. Robins, 95 So. 367, 209 Ala. 6, 36 A.L.R. 10.

Appellants further contend that the Alabama Power transmission line tower with its high voltage power line is a dangerous instrumentality. The maintaining of a dangerous instrumentality on one's property creates "straight negligence" liability. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). This doctrine, like that of attractive nuisance, depends upon the status of the injured party in relation to the defendant's land.

In Tolbert v. Gulsby, this Court, commenting upon the duty owed to persons upon another's land, stated:

Under a negligence count, the duty owed by a landowner depends on the status of the injured party in relation to the defendant's land. See Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). If the injured party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964); Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). "Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults." Alabama Great Southern Railroad Co. v. Green, supra; Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972). If plaintiff is found to have been on defendant's property with his consent or as his guest, but with no business purpose, he attains the status of licensee and is owed the duty not to be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril. Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).

"Wantonness" has been defined by this court as

"the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97; Tucker v. Cox, 282 Ala. 489, 213 So.2d 222; Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 365, 162 So.2d 455. Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger * * *. Lewis v. Zell, 279 Ala. 33, 181 So.2d 101; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13. Knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. Britton v. Doehring, supra; Lewis v. Zell, supra." Kilcrease v. Harris, 288 Ala. 245, 251, 259 So.2d 797, 801-02 (1972).

333 So.2d at 131-132.

Thus, if the injured person is found to be a trespasser, the only duty owed to him by the landowner is not to wantonly or intentionally injure him. The duty owed is the same, whether the trespasser is an adult or a child. As stated in Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964):

Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults. Highland Avenue & Belt R. Co. v. Robbins, 124 Ala. 113, 27 So. 422....

To continue reading

Request your trial
15 cases
  • Huffman v. Appalachian Power Co.
    • United States
    • West Virginia Supreme Court
    • 19 Marzo 1992
    ...company for purposes of premises liability. See, e.g., Caraglio v. Frontier Power Co., 192 F.2d 175 (10th Cir.1951); Foster v. Alabama Power Co., 395 So.2d 27 (Ala.1981); Ryckeley v. Georgia Power Co., 122 Ga.App. 107, 176 S.E.2d 493 (1970); Moseley v. Kansas City, 170 Kan. 585, 228 P.2d 69......
  • Miller v. General Motors Corp.
    • United States
    • United States Appellate Court of Illinois
    • 6 Diciembre 1990
    ...(1918), 212 Ill.App. 48; Rodriguez v. Schlittenhart (Ct.App.1989), 161 Ariz. 609, 780 P.2d 442; Foster v. Alabama Power Co. (Ala.1981), 395 So.2d 27; Bennett, 542 F.2d 92; Glastris v. Union Electric Co. (Mo.Ct.App.1976), 542 S.W.2d 65; Ryckeley, 122 Ga.App. 107, 176 S.E.2d 493; Ross v. Sequ......
  • Maffucci v. Royal Park Ltd. Partnership
    • United States
    • Connecticut Supreme Court
    • 27 Enero 1998
    ...such as [the plaintiff] on its pole in proximity to the live wires at the top." Id., 542 F.2d at 94. Similarly, in Foster v. Alabama Power Co., 395 So.2d 27, 31 (Ala.1981), the court concluded that notwithstanding "evidence that the [defendant] might have had reason to know that people were......
  • Alabama Power Co. v. Cantrell
    • United States
    • Alabama Supreme Court
    • 5 Septiembre 1986
    ...to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.' Foster v. Alabama Power Company, 395 So.2d 27, 30 (Ala.1981), citing Curtis on the Law of Electricity, § 510. In other words, Alabama Power must either insulate its electrical lines......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT