Gilmore v. Shell Oil Co.

• Decision Date: 26 February 1993
• Citation: 613 So.2d 1272
• Parties: Charlie J. GILMORE, as Administrator of the Estate of Charlie M. Gilmore, deceased v. SHELL OIL COMPANY, a corporation, et al. 1910915.
• Court: Alabama Supreme Court

Page 1272

613 So.2d 1272

Charlie J. GILMORE, as Administrator of the Estate of Charlie M. Gilmore, deceased v. SHELL OIL COMPANY, a corporation, et al.

1910915.

Supreme Court of Alabama.

Feb. 26, 1993.

William P. Traylor III, Deborah S. Braden and P. Mark Petro of Yearout, Myers & Traylor, P.C., Birmingham, for appellant.

C. William Gladden, Andrew J. Sinor, Jr. and Stephen E. Whitehead of Balch & Bingham, Birmingham, for appellees.

INGRAM, Justice.

Charlie J. Gilmore, as personal representative of the estate of Charlie M. Gilmore (the deceased, Charlie M. Gilmore, will hereinafter be called "Michael"), sued Shell Oil Company, T & P, Inc., Terry E. Parker, and Bobby McSwain, alleging that the defendants had negligently or wantonly allowed Michael, a purported business invitee, to fatally injure himself with a handgun that he had found on the defendants' premises. Gilmore also alleged that Parker negligently entrusted the handgun to McSwain and that the unguarded and accessible handgun created a private nuisance.

Gilmore appeals from a summary judgment for the defendants. Gilmore argues that he presented sufficient evidence to defeat the defendants' motion for summary judgment; specifically, he says he presented evidence creating two genuine issues of material fact: (1) whether Michael's death was "suicide"; and (2) whether the defendants had breached their standard of care owed to Michael, who the plaintiff says was a business invitee.

A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. A "genuine issue of material fact" is a disputed factual issue that is "outcome determinative." "A fact is outcome determinative if the resolution of that fact [before the trial court] will establish or eliminate a claim or defense ...; if the fact is determinative of an issue to be tried, it is 'material.' " John J. Coleman III, Summary Judgment in Alabama: The Nuances of Practice Under Rule 56, 20 Cumb.L.Rev. 1, 5 (1989) (citing William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 480 (1982) ("An issue is not material simply because it may affect the outcome. It is material only if it must inevitably be decided") (emphasis in original)).

This Court, reviewing a summary judgment, will view the entire record, as it was before the trial court when the summary judgment was entered, in the light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991). In order to defeat a properly supported motion for summary judgment, the nonmovant must show that a genuine issue as to a material fact exists and that resolution of this disputed fact is determinative of an issue to be decided. This factual dispute must be created by "substantial evidence." See § 12-21-12, Ala.Code 1975. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The facts of this case are as follows: Michael, who was 17 at the time of his death, was an acquaintance of McSwain, who was working at T & P, Inc., a Shell gasoline station/convenience store owned by Terry Parker. The plaintiff says Michael was at the store to visit McSwain. After arriving at the store, Michael went behind the cashier's counter to make some telephone calls. While he was behind the counter, McSwain was across the store sweeping the floor. McSwain testified that he looked up from his sweeping and saw that Michael had taken a handgun from beneath the counter.

Parker, who had worked the shift before McSwain's shift, alleged that he had inadvertently left the handgun. Parker testified that he had brought the handgun to the store for his protection. The handgun was kept on a shelf under the cashier's counter toward the back of the shelf, where it could not be seen by customers in the store.

According to McSwain, he looked up and saw Michael with the handgun. He testified that Michael had opened the chamber of the handgun and removed all the bullets. Michael then replaced one of the bullets, closed the chamber, put the handgun to his head, and pulled the trigger. The shot killed him.

The dispositive issue on appeal is whether a genuine issue of material fact exists as to the cause of Michael's death, assuming, but not deciding, that Michael was a business invitee and further assuming that the presence of the handgun in an accessible area was a breach of the defendants' duty owed to Michael.

This Court has held:

"Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury."

Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976). "[H]owever negligent a party may have been in some particular, he is accountable only to those injured as a proximate result of such negligence. Where some independent agency intervenes and is the immediate cause of the injury, the party guilty of prior negligence is not liable." Hall v. Booth, 423 So.2d 184, 185 (Ala.1982).

Additionally, this Court has long recognized that a defendant who creates a dangerous "condition" is not responsible for a plaintiff's injury that results from the intervention of another agency, if at the time of the defendant's original negligence the intervening agency could not reasonably be foreseen. See, e.g., City of Mobile v. Havard, 289 Ala. 532, 538, 268 So.2d 805, 810 (1972); Morgan v. City of Tuscaloosa, 268 Ala. 493, 496, 108 So.2d 342, 345 (1959); Garrett v. Louisville & N.R.R., 196 Ala. 52, 53, 71 So. 685, 686 (1916). In such cases, we have held that the defendant's negligence is not the "proximate cause" of the plaintiff's injury, and, therefore, that the defendant is not liable. Vines, 336 So.2d at 1339.

Such an unforeseen agency, which breaks the chain of causation that otherwise might have linked the defendant's negligence to the plaintiff's injury, has been referred to as an "intervening efficient cause." See General Motors Corp. v. Edwards, 482 So.2d 1176, 1194 (Ala.1985). In order for conduct to be considered an intervening efficient cause, it must (1) occur after the defendant's negligent act, (2) be unforeseeable to the defendant at the time he acts, and (3) be sufficient to be the sole cause-in-fact of the plaintiff's injury. Id. at 1194-95; see also Vines, 336 So.2d at 1339.

In Louisville & N.R.R. v. Maddox, 236 Ala. 594, 183 So. 849 (1938), this Court held, "The idea of contributory negligence presupposes negligence of the defendant, and contributory negligence, though it may be a contributing or concurring cause, can never be an efficient intervening cause to break the chain of causation flowing from the defendant's negligence and insulate the same." Id. at 601, 183 So. at 854 (opinion on rehearing). However,

"the general rule, which is subject to certain exceptions, is that a plaintiff's own conduct may be a superseding [or intervening efficient] cause, absolving a negligent defendant from liability, even though [the plaintiff's] conduct amounts to contributory negligence.... However, in order to be a superseding cause, a plaintiff's negligence must be more than mere contributory negligence, ... and, in addition to being unforeseeable, such conduct must rise to such a level of culpability as to replace the defendant's negligence as the legal cause of the accident."

57A Am.Jur.2d Negligence § 650 (1989) (emphasis supplied). We now expressly adopt the general rule as stated in 57A Am.Jur.2d and hold that a plaintiff's conduct can constitute an intervening efficient cause, but only if, in addition to meeting the Edwards criteria set forth above for an intervening efficient cause, the plaintiff's conduct (1) is "so highly extraordinary or unexpected that it can be said to fall without the realm of reasonable foreseeability as a matter of law," 57A Am.Jur.2d Negligence § 652 (emphasis added); and (2) is more than mere contributory negligence and is of a higher culpability level than the defendant's negligence. Id. § 650. We distinguish this rule from the rule established in Maddox that the plaintiff's own negligence cannot be an intervening efficient cause. See Maddox, 236 Ala. at 601, 183 So. at 854.

The defendants argue that Michael's conduct was an intervening efficient cause, breaking the chain of causation that otherwise might have linked the defendants' negligence and Michael's death. Assuming that Parker acted negligently and created a dangerous condition by leaving the handgun loaded and accessible, Michael's subsequent act of intentionally and deliberately shooting himself in the head was unforeseeable as a matter of law and was sufficiently culpable to supersede the defendants' negligence as the proximate cause of Michael's death.

Gilmore argues that a fact question exists as to whether Michael's death was a "suicide." In his brief to this Court, Gilmore argues that there is a presumption against suicide and that evidence in the record supports the inference that Michael did not intend his own death. For example, McSwain testified that Michael was "happy-go-lucky" and that, moments before his death, Michael had been discussing his plans for the holidays, his plans to return to high school, and his plans to purchase tennis shoes. Gilmore testified that his son had never threatened or attempted to commit suicide and that he believes his son did not intentionally shoot himself.

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