Franklin v. City of Athens

• Decision Date: 30 June 2005
• Docket Number: 2030606.
• Citation: 938 So.2d 950
• Parties: Shamalita FRANKLIN et al. v. CITY OF ATHENS and CSX Transportation, Inc.
• Court: Alabama Court of Civil Appeals

938 So.2d 950

Shamalita FRANKLIN et al. v. CITY OF ATHENS and CSX Transportation, Inc.

2030606.

Court of Civil Appeals of Alabama.

June 30, 2005.

Rehearing Denied September 16, 2005.

William D. Davis III of Davis & Associates, Huntsville, for appellants.

Benjamin R. Rice of Spurrier, Rice & Hall, Huntsville, for appellee the City of Athens.

Morris Wade Richardson and David W. Spurlock of Adams & Reese/Lange Simpson, LLP, Birmingham, for appellee CSX Transportation, Inc.

PER CURIAM.

Shamalita Franklin, Daphne J. Johnson, Genny Ervin, and Florence Hanserd-Yarborough ("the plaintiffs") appeal from a summary judgment of the Limestone Circuit Court in favor of the City of Athens ("the City") and CSX Transportation, Inc. ("CSX").

On June 13, 2002, the plaintiffs filed a complaint in the trial court naming as defendants the City and CSX. The complaint asserted claims of negligence and wantonness based upon an alleged breach of duties to provide proper warning to the plaintiffs of a "dangerous condition," i.e., a "ditch" dug across Pryor Street in the City in front of a railroad crossing where the plaintiffs were involved in an incident while occupying a moving automobile that resulted in injury to them. The complaint also asserted claims of negligence and wantonness against CSX and the City based upon alleged breaches of a duty to maintain the roadway. The City and CSX filed answers asserting that the complaint failed to state a claim upon which relief could be granted, denying the pertinent allegations of the complaint, and asserting various affirmative defenses. In September and October 2003, the City and CSX filed summary-judgment motions; the plaintiffs then filed a response to both motions. On March 2, 2004, the trial court entered a summary judgment in favor of both the City and CSX. On April 1, 2004, the plaintiffs filed a notice of appeal. The Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The record reveals that during the first week of June 2000, CSX began upgrading crossings and replacing rails at certain railroad crossings located within the City, including a crossing located on Pryor Street. CSX coordinated street closings with the City and borrowed certain traffic-control devices from the City to block motorized progress across the streets that were to be affected by the railroad crossing maintenance. As repair work began at the Pryor Street crossing, CSX employees placed a row of orange and white traffic "barrels" and an "A-frame" or "sawhorse" painted barricade with an attached "ROAD CLOSED" sign at the intersection of Pryor Street and Marion Street; that intersection was located one block west of the railroad crossing. CSX also posted a second row of orange and white traffic "barrels" immediately in front of the actual crossing.

On the night of June 13, 2000, Franklin was operating an automobile and conveying Ervin to her home after they had visited one of Franklin's relatives in a Huntsville hospital; Johnson and Hanserd-Yarborough were also passengers in Franklin's automobile. Franklin, who was unfamiliar with the area, became lost while driving to Ervin's home. Franklin subsequently turned the automobile onto Pryor Street, proceeding eastbound, and attempted to cross the railroad tracks while slowing down to approximately 10 to 15 miles per hour. As she did so, Franklin drove her vehicle off the asphalt and onto the ballast of the railroad bed. Franklin and her three passengers suffered injuries in the incident and were subsequently taken to a hospital emergency room; they were treated for soreness and bruising and were released.

Although the plaintiffs raise five issues on appeal, those issues focus upon two core questions: whether the trial court erred (1) in entering a summary judgment in favor of the City and (2) in entering a summary judgment in favor of CSX.

"A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. In determining, on a summary judgment motion, whether there is a genuine issue of material fact, the court must view the evidence in the light most favorable to the nonmoving party, resolving all reasonable doubts against the moving party. The burden is initially on the moving party to make a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. If it makes that showing, then the burden shifts to the nonmoving party to present evidence creating a material factual issue for resolution by a jury, so as to avoid the entry of a judgment. Hilliard v. City of Huntsville Electric Utility Board, 599 So.2d 1108 (Ala.1992)."

Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 601 (Ala.1998).

We first address whether the trial court erred in granting the City's summary-judgment motion. The plaintiffs contend that the City's failure to maintain the area of roadway adjacent to the railroad crossing and the City's failure to warn the plaintiffs that the roadway was closed at the time of the June 13, 2000, incident caused the plaintiffs to suffer physical injuries and to incur damages. In order to prevail on a negligence claim, a plaintiff must demonstrate the following elements: (1) that the defendant owes the plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach proximately caused the plaintiff to be injured. Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994). "The absence of any one of these [elements] renders a complaint bad or the evidence insufficient." Calvert Fire Ins. Co. v. Green, 278 Ala. 673, 677, 180 So.2d 269, 273 (1965). The existence of a duty is a question of law to be decided by the court. Rose v. Miller & Co., 432 So.2d 1237, 1238 (Ala.1983).

The plaintiffs argue that the City had a duty to maintain the area of the roadway adjacent to the Pryor Street crossing because, they say, "governmental entities" have a common-law duty to keep their streets in a reasonably safe condition. See Elmore County Comm'n v. Ragona, 540 So.2d 720, 724 (Ala.1989). We agree.

In its motion for a summary judgment and its submissions in support thereof, the City essentially argues that it owed no duty to the plaintiffs and, therefore, that it was entitled to a judgment as a matter of law. The City asserts that it owed no duty because § 11-49-3, Ala.Code 1975, places a duty on CSX to maintain the railroad crossing. The City also argued that if it owed a duty it did not breach that duty because it was not involved in the repair of the intersection.

Merely because CSX owed a duty with respect to the safety of the motoring public does not mean that the City was relieved of its similar, coexisting duty. The negligence of two or more tortfeasors may combine to result in a single, indivisible injury for which both tortfeasors are liable. See Springer v. Jefferson County, 595 So.2d 1381 (Ala.1992) The City failed to explain why the fact that CSX owed a duty operated to relieve the City of its duty. In this case, if there is substantial evidence indicating that CSX left a hazard in a public roadway overnight without adequate barriers or other warning devices, and that the City knew or should have known that that hazard was left in place by CSX without adequate barriers or other warning devices, the City owed a duty to warn the motoring public of that hazard. This duty is no different from that which the City would have had under § 11-47-190 to warn the public upon learning of a hazard created by any private citizen or other party in a public right-of-way after the hazard became known or should have became known to the City. See, e.g., Hale v. City of Tuscaloosa, 449 So.2d 1243 (Ala.1984); Isbell v. City of Huntsville, 295 Ala. 380, 330 So.2d 607 (1976) (explaining in the context of an action brought against both a railroad company and a city that, among other things, the predecessor of § 11-47-190 made the city liable for culpable neglect to remedy a dangerous condition in a city street negligently created or allowed to exist by a person or corporation not "related to" the city); Louisville & N.R. Co. v. Stanley, 232 Ala. 273, 274, 167 So. 745, 746 (1936) (stating, arguably in dictum, that the city has a primary duty to keep its streets in safe condition and that "the city cannot relieve itself of liability by a delegation of the authority to another"); City of Bessemer v. Brantley, 258 Ala. 675, 679, 65 So.2d 160, 163 (1953) ("It is the duty of the city to use reasonable care that no such danger shall remain in a public street where people have the right to travel, although it was caused by another."); City of Mobile v. Reeves, 249 Ala. 488, 31 So.2d 688 (1947); City of Montgomery v. Moon, 208 Ala. 472, 473, 94 So. 337, 338 (1922) (recognizing, in the context of an action against both a railroad company and a city, that "`[i]t is the duty of the municipality to guard and protect excavations made in the streets and sidewalks, or in such close proximity thereto as to endanger persons traveling on the street'"); City of Montgomery v. Ferguson, 207 Ala. 430, 433, 93 So. 4, 6-7 (1922) (holding, in the context of an action against both a railroad company and a city, that a jury charge stating that "[m]unicipal corporations are due the traveler upon their public thoroughfare the duty of keeping those thoroughfares to the full width thereof in a reasonably safe condition for travel by night as well as by day stated the general rule"); and Brobston v. Burgess, 290 Pa. 331, 337, 138 A. 849, 850 (1927) ("A similar duty to keep in proper repair rests on a municipality as to its streets, and the fact that another may also be sued does not prevent an action against it."). Cf. Southern Ry. Co. v. Quillen, 250 Ala. 536, 541, 35 So.2d 193, 197 (1948) ("the railroad company and the city council could not by their cooperation exonerate either from the...