Garner v. Covington County

• Citation: 624 So.2d 1346
• Parties: Gina GARNER, as the mother of Jonathan Garner, a deceased minor v. COVINGTON COUNTY and City of Opp. CITY OF OPP v. Gina GARNER, as the mother of Jonathan Garner, a deceased minor. CITY OF OPP v. Ruth OWENS. CITY OF OPP v. Sharon DAVIS. 1911100, 1911105, 1911150 and 1911151.
• Decision Date: 25 June 1993
• Court: Supreme Court of Alabama

Page 1346

624 So.2d 1346

Gina GARNER, as the mother of Jonathan Garner, a deceased minor v. COVINGTON COUNTY and City of Opp.

CITY OF OPP v. Gina GARNER, as the mother of Jonathan Garner, a deceased minor.

CITY OF OPP v. Ruth OWENS.

CITY OF OPP v. Sharon DAVIS.

1911100, 1911105, 1911150 and 1911151.

Supreme Court of Alabama.

June 25, 1993.

Rehearing Denied Aug. 13, 1993.

J. Keith Givens and J. Farrest Taylor of Cherry, Givens, Peters, Lockett & Diaz, P.C., Dothan, for appellant/cross-appellee Gina Garner.

John B. Givhan and William B. Alverson, Jr. of Albrittons, Givhan, Clifton & Alverson, Andalusia, for appellee/cross-appellant City of Opp.

Peter A. McInish of Lee & McInish, Dothan, and W. Sidney Fuller, Andalusia, for Covington County.

James H. Evans, Atty. Gen., and Marc Givhan, Deputy Atty. Gen., for State.

Frank J. Tipler, Jr. and James Harvey Tipler of Tipler and Tipler, Andalusia, for Ruth Owens and Sharon Davis.

James W. Webb and Bart Harmon of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for amicus curiae Ass'n of County Commissions of Alabama.

Jack Drake of Drake & Pierce, Tuscaloosa, and Bruce McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.

Ken Smith, League counsel, Alabama League of Municipalities, amicus curiae in support of appellees.

ALMON, Justice.

These appeals arise from wrongful death and personal injury actions filed by Gina Garner, Sharon Davis, and Ruth Owens against the City of Opp and Covington County. The plaintiffs alleged that the defendants had negligently maintained a stop sign at an intersection and had thereby caused an automobile accident in which Davis and Owens suffered injuries and Garner's minor son was killed. The jury returned verdicts in favor of Covington County in all three actions, and returned verdicts against Opp awarding Davis $42,000 and Owens $100,000 in their personal injury actions, and awarding Garner $750,000 in her wrongful death action based on the death of her minor son. The trial court reduced the $750,000 verdict to $100,000 pursuant to Ala.Code 1975, § 11-93-2, and entered judgments for the plaintiffs.

Opp, in the appeals numbered 1911105, 1911150, and 1911151, appeals from the trial court's denial of its motion for j.n.o.v. Opp specifically argues that the trial court erred because, it says, the plaintiffs failed to prove that the actions of Opp were the proximate cause of the injuries and the death. Opp also argues that the trial court erred in instructing the jury that Opp, as a matter of law, had a legal duty to maintain the intersection.

Gina Garner also raises several issues in her appeal, number 1911100. Garner first argues that the trial court erred in submitting to the jury the question of whether Covington County had a duty to maintain the intersection. Garner also argues that the trial court erred in failing to give her requested jury instruction as to the duty of the county. Last, Garner challenges the constitutionality of the $100,000 "cap" imposed by Ala.Code 1975, § 11-93-2, on the recovery of damages against governmental entities.

The facts leading up to the institution of these actions are as follows:

On August 12, 1988, Sharon Davis and her mother, Ruth Owens, travelled by automobile from Luverne to Opp to pick up Davis's niece and nephew and bring them back to Luverne. Because Davis had never been to Opp before, she met her brother on Highway 331 and followed him into town. Davis's brother travelled southward on Maloy Street; both he and Davis stopped at the intersection of Maloy Street and Old Perry Store Road. After picking up the children, Davis returned by the same route, approximately one hour later, this time heading northward on Maloy Street.

As Davis approached the intersection of Maloy Street and Old Perry Store Road, she slowed her automobile but failed to come to a complete stop. There was a stop sign at the intersection, but it was covered by a red crape myrtle bush and was not visible. As Davis entered the intersection, her car was struck by a truck heading westward on Old Perry Store Road. Davis's 19-month-old nephew--who was Gina Garner's son--was thrown from the car and suffered fatal injuries. Davis and Ruth Owens also suffered substantial injuries from the accident. Neither Davis nor Owens has any memory of the accident.

At trial, Davis testified that she never saw a stop sign at the intersection. The plaintiffs introduced photographs of the intersection taken by a witness who appeared on the scene immediately after the accident. These photographs illustrate that the stop sign was not visible to Davis when she entered the intersection, and this fact is substantially undisputed. The plaintiffs also questioned Keith Wilson, a witness who had followed Davis as she drove northward on Maloy street toward the intersection. Wilson testified that Davis slowed down considerably before entering the intersection, but that her brake lights never came on and she never completely stopped.

The defendants introduced deposition testimony in which Davis stated that she had seen the back of the stop sign and had recognized it as a stop sign when she had stopped at the Maloy Street/Old Perry Store Road intersection on the way into town. The defendants also questioned John Bryan, a policeman who spoke with Davis at the hospital soon after the accident. Bryan testified that Davis told him that she thought she had run a stop sign immediately before being struck by the truck.

After the close of the evidence, the jury returned verdicts in favor of the plaintiffs against Opp; the jury found in favor of Covington County. The trial court subsequently reduced Garner's verdict of $750,000 to $100,000, pursuant to § 11-93-2.

Opp argues that its motion for j.n.o.v. should have been granted because, it argues, the plaintiffs failed to prove that the failure of Opp to maintain the intersection was the proximate cause of the injuries and the death. Opp asserts that Davis knew of the stop sign before she entered the intersection and merely failed to stop. Opp also contends that testimony of Davis or Owens as to the cause of the accident is necessary to the maintenance of the action. Because neither Davis nor Owens could testify as to causation, Opp contends that any attempt to establish causation is mere conjecture. Opp relies heavily on Smoyer v. Birmingham Area Chamber of Commerce, 517 So.2d 585 (Ala.1987), and Peoples v. Town of Ragland, 583 So.2d 221 (Ala.1991), to support this argument.

The facts of Smoyer and Peoples are, however, distinguishable from those in this case. In Smoyer, the plaintiff's car was struck by a car leaving a hotel driveway and entering the highway. He brought an action alleging that the hotel driveway had been negligently designed and maintained. This Court held that there was simply no causal connection between any negligence of the hotel and the plaintiff's injury. We specifically pointed out that no one could testify that the person leaving the hotel did not stop; therefore, it was impossible to infer that the condition of the driveway contributed to the accident. Here, Wilson did testify that Davis did not come to a complete stop before entering the intersection. Also, there is evidence from which the jury could reasonably conclude that the obstructed stop sign was the immediate cause of the injury, while in Smoyer the accident occurred well after the driver had exited the hotel driveway.

In Peoples, this Court held that the plaintiff failed to establish that the lack of a traffic control device at an intersection proximately caused her injuries. Although we did find it significant that the plaintiff was unable to testify as to the cause of the wreck because of memory loss, the issue ultimately turned on the actions of the plaintiff: she accelerated into the oncoming traffic after "creeping out" into the intersection to see beyond a wall that blocked her view. Therefore, neither Peoples nor Smoyer compels a holding that the plaintiffs here failed to establish proximate cause as a matter of law. Also neither case stands for the proposition that one injured in an accident must testify as to causation to be entitled to recover.

The question of proximate causation is ordinarily one for the jury, if reasonable inferences from the evidence support the plaintiff's theory. Marshall County v. Uptain, 409 So.2d 423 (Ala.1982). Here the question is particularly suited for the jury because of the conflicting nature of the evidence. While the defendants did produce evidence tending to show that Davis knew of the existence of the sign, the jury was justified in inferring that Davis did not know of the sign. For example, the fact that Davis slowed down considerably before entering the intersection does not, ipso facto, establish that she knew the stop sign was there. Motorists who are unfamiliar with particular routes may merely have a tendency to slow down before entering any unmarked intersection. Furthermore, the fact that, after the accident, she stated to Officer Bryan that she thought she had run a stop sign does not establish as a matter of law that she knew the stop sign was there as she entered the intersection. Therefore, we hold that the trial court did not err by denying Opp's motion for j.n.o.v.

Opp next argues that the trial court erred in instructing the jury that Opp, as a matter of law, had a duty to maintain the intersection, while submitting to the jury the question of Covington County's duty. Opp contends that this instruction unfairly prejudiced it in the jury's consideration and that it is entitled to a new trial.

Opp's argument is without merit. The trial court instructed the jury pursuant to Instruction 27.01, Alabama Pattern Jury Instructions (Civil). That instruction charges that municipalities have the duty of maintaining their streets in reasonably good condition; this has long been the law in Alabama. See Ala.Code...