Galaxy Cable Inc. v. Davis

• Decision Date: 10 September 2010
• Docket Number: 1090086.
• Citation: 58 So.3d 93
• Parties: GALAXY CABLE, INC., d/b/a Galaxy Cablevisionv.Pamela DAVIS, as next friend of Benjamin Drake Davis, a minor.
• Court: Alabama Supreme Court

58 So.3d 93

GALAXY CABLE, INC., d/b/a Galaxy Cablevision

v.Pamela DAVIS, as next friend of Benjamin Drake Davis, a minor.

1090086.

Supreme Court of Alabama.

Sept. 10, 2010.

John D. Gleissner of Rogers & Associates, Birmingham, for appellant.Byron G. McMath and Ontkeno K. Boman of McMath Law Firm, P.C., Jasper, for appellee.BOLIN, Justice.

Galaxy Cable, Inc., doing business as Galaxy Cablevision (“Galaxy”), appeals from a judgment entered on a jury verdict in favor of Pamela Davis, as next friend of Benjamin Drake Davis, a minor, on Pamela's claims alleging negligence and wantonness. We affirm in part and reverse in part.

Facts and Procedural History

On January 21, 2005, then 11–year–old Benjamin was playing at Tammy Thomas's house with Thomas's minor son, Tyler. Thomas's house was owned by her father, Sammy McCullar. The property includes a basketball court, which is located near a power line. Benjamin and Tyler were playing basketball and, during the game, Benjamin was injured when he fell into an exposed and frayed metal guy wire, which was supporting a utility pole. Benjamin's leg was lacerated by the frayed wire. The utility pole belonged to Alabama Power Company, and Galaxy had a lease agreement with Alabama Power that allowed it to attach one of its cables to the pole.

On January 18, 2007, Pamela sued Thomas, McCullar, Galaxy, and Alabama Power, alleging negligence and wantonness. Subsequently, Pamela moved to dismiss Thomas and McCullar as defendants; her motion was granted. Alabama Power was dismissed as a defendant immediately before the trial began, leaving only Galaxy as a defendant.

At trial, Benjamin testified that he had been invited to play with Tyler on January 21, 2005. The boys were playing basketball between 4:30 p.m. and 5:30 p.m. when Benjamin went to retrieve the ball and tripped over the guy wire, lacerating his leg. Benjamin testified that it was still light outside when the incident occurred. He stated that no weeds or grass obstructed his view of the guy wire. Benjamin testified regarding the pain associated with his injury.

Pamela testified regarding the extent of Benjamin's injury. Tyler also testified regarding the incident. Tammy Thomas testified that the basketball court was set up on a lawn that she mowed and maintained. Thomas said that she mowed around the guy wire with her riding lawn mower when she mowed the area and that she sprayed herbicide on the ground around the guy wire to keep vegetation down during the seven years she had lived on the property. She stated that she never hit the guy wire with her riding lawnmower and that no cars ever parked near the guy wire. Thomas stated that, before this accident, no one had ever run into the guy wire. Thomas stated that she had never noticed a problem in the guy wire before the incident. She stated that, on the day of the accident, the steel guy wire was frayed at the bottom near the ground and that a plastic yellow guard that would usually cover the bottom of the guy wire was pushed up to the top of the guy wire. Thomas stated that she had never noticed the yellow guard before and that she did not know how long it had been at the top of the guy wire.

Sammy McCullar testified that he visited his property every other day and that he had never seen the guy wire “unbraided,” as it was on the day of the accident. He stated that he thought it must have been unbraided for only a short time because he would have noticed if it had been unbraided for a long time. When McCullar was asked if he had ever seen Tammy Thomas cut the grass next to the guy wire, he stated: “You can't cut grass up close to a guy wire, because it will knock you off of the lawn mower.”

Gregory Berthaut, a regional manager for Galaxy, testified as to how guy wires are installed, why they are installed, and the procedures followed when complaints about guy wires are made. Berthaut explained that a guy wire is made of multiple strands of wire that are braided together and that a yellow guy-wire guard is placed over the bottom of the guy wire near the ground and sometimes secured to a “preform” at the bottom of the guy wire to prevent the yellow guy-wire guard from moving. He stated that the plastic guy-wire guard is yellow so it is visible and someone could avoid it and so that people would avoid hitting the guy wire with a lawn mower when they are mowing in the vicinity of the guy wire. Berthaut was asked if Galaxy required that yellow guards be placed over guy wires, and he stated: “It is not in writing required. Any that you install now, you do. But there's wires that have been out for 20, 25 years that don't have these on them, both telephone, power, and cable.” He stated that someone would have to physically move a yellow guy-wire guard in order for the guard to be at the top of the utility pole. Berthaut also stated that over time ultraviolet rays weaken the yellow plastic guards.

Berthaut further testified that Galaxy performs annual leakage “ride-outs” as required by the Federal Communication Commission, to make sure that communication signals do not interfere with aircraft communications. During the annual ride-out inspections, the Galaxy employees rarely get out of their vehicles. He stated that to conduct a “ride-out” a technician rides around to look at the top of the poles and that no technician had reported that the yellow guard was at the top rather than the bottom of the guy wire attached to the pole that is the subject of this case. Berthaut stated that he did not know if Galaxy was the entity that had installed the yellow guard on the pole near Thomas's house because Galaxy had purchased the cable system from another company. He further testified that, if Galaxy employees are out on a service call and they see a problem, they usually correct it immediately. Berthaut testified that when Galaxy employees went to repair the guy wire after Benjamin's injury, Alabama Power had already repaired it.

After Berthaut's testimony, Pamela rested her case. Galaxy filed a motion for a judgment as a matter of law (“JML”). Galaxy read from portions of its written motion for a JML and discussed the arguments raised in the motion. Galaxy argued that Benjamin was a social guest of Tammy Thomas and that it owed Benjamin no duty, that there was no evidence of negligence or wantonness, that Galaxy had no notice of the allegedly dangerous condition, that the condition was open and obvious, that someone had intentionally placed the yellow guy-wire guard at the top of pole, and that a yellow guard is not required.¹

In response to Galaxy's motion for a JML, Pamela argued that Galaxy had raised several defenses in the motion that it had not raised in its answer and that those defenses had been waived. Pamela argued that the only affirmative defenses raised in Galaxy's answer were assumption of the risk and contributory negligence. Pamela argued that there was ample evidence to support both the negligence and the wantonness claims. The trial court denied Galaxy's motion for a JML. Galaxy then recalled Berthaut and Benjamin to testify.

The trial court charged the jury. Following deliberations, the jury returned a verdict in favor of Pamela in the amount of $30,000 in compensatory damages and $120,000 in punitive damages. Galaxy then filed a posttrial motion for a JML. The trial court held a hearing on the motion, but never ruled on the motion, which was denied by operation of law. Galaxy timely filed this appeal.

Discussion

Galaxy argues that the jury verdict is not supportable; it argues that no duty was imposed on it because no one could have superior knowledge of what was an open and obvious defect.

The duty owed by a landowner ² to an injured party depends upon the status of the injured party in relation to the landowner's land, i.e., is the injured party a trespasser, a licensee, or an invitee. A landowner owes a duty to a trespasser not to wantonly or intentionally injure him by dangers known by the landowner. A person who enters land with the landowner's consent to bestow some material or commercial benefit is an “invitee,” and a landowner owes an invitee the duty to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee. An entrant who is on the landowner's property with the landowner's consent or as his social guest, but with no business purpose, is a “licensee,” to whom the landowner owes a duty not to willfully, wantonly, or negligently injure him.

With regard to its argument that it owed no duty to Benjamin because this condition was open and obvious, Galaxy cites Dolgencorp, Inc. v. Taylor, 28 So.3d 737 (Ala.2009), Ex parte Neese, 819 So.2d 584 (Ala.2001), Browder v. Food Giant, Inc., 854 So.2d 594 (Ala.Civ.App.2002), Alabama Power Co. v. Williams, 570 So.2d 589 (Ala.1990), and Jones Food Co. v. Shipman, 981 So.2d 355 (Ala.2006), all of which involve an invitee.

In its brief, Galaxy states:

“The Court and parties wrestled with the premises liability categories, and although the plaintiff was not so categorized, as Galaxy Cable never invited or permitted his presence, Galaxy Cable nevertheless urged the imposition of the comparable lack of duty. We urge the Court to determine the duty to Galaxy Cable in this case with reference to the non-party owner and occupier of the land, the dominant estate, which means the plaintiff is a social guest was a licensee.”

(Galaxy's brief, p. 22.) The record indicates that the trial court did not charge the jury regarding a landowner's duty nor did the court charge the jury regarding Benjamin's status. Moreover, following the jury charges, counsel for Galaxy stated:

“Okay, Judge. And that's—that's all. I agree that we shouldn't pigeon hole as far as licensee, trespasser, invitee, social guest, et cetera, et cetera.”

Clearly, Galaxy acquiesced to the trial court's...