Glover v. City of Mobile
Decision Date | 23 July 1982 |
Citation | 417 So.2d 175 |
Parties | Leon GLOVER, etc. v. CITY OF MOBILE, etc. 81-183. |
Court | Alabama Supreme Court |
George J. Moore of Moore & Layden, Mobile, for appellants.
Thomas M. Galloway, Jr., of Collins, Galloway & Smith, Mobile, for appellees.
Plaintiff Leon Glover, as Administrator, brought an action against Defendant City of Mobile for the wrongful death of his two minor sons. Plaintiff now appeals from a summary judgment for Defendant and the denial of his motion to reconsider.
We affirm.
Luscher Park, a recreational facility of the City of Mobile, borders on and is a part of the shoreline of the Dog River. Along a portion of the shoreline, the City built a pier, bulkheads, and a pavilion containing a food concession and a public restroom facility. The park is open to the public and no admission fee is charged. In an affidavit in support of the City's motion for summary judgment, the Mobile Parks Superintendent stated that the City "has never operated a swimming facility at Luscher Park."
Glover contends, however, that whirlpools in the water in front of the pavilion create a dangerous situation for those who do swim in the river, and that the City knew or should have known of the danger to the general public. Glover's two minor sons drowned in the Dog River while visiting Luscher Park in June of 1978.
Plaintiff alleges both negligent performance and wanton breach of the City's implied contract with the general public to take reasonable steps for water safety at the park and that both decedents were third party beneficiaries of that implied contract; that Luscher Park was an attractive nuisance because of the accessibility and alluring nature of the water; and that the City could have undertaken reasonable and feasible ways to remove or lessen the dangers posed by the deep water and whirlpools. Plaintiff also maintains that the provisions of Code 1975, § 35-15-1 et seq., are both unconstitutional and inapplicable to the instant case.
We note that § 35-15-1 et seq., enacted by the Legislature in 1965 as Act 463, was passed:
"[t]o clarify and codify the common law with respect to the duty of care owed by landowners towards the persons who may be upon their premises for hunting, fishing, sporting or recreational purposes and not for purposes connected with the landowner's business."
The statute itself provides:
Although the question of the applicability of § 35-15-1, et seq., to a municipality/landowner has not been addressed by this Court, we find that any discussion of that issue here would merely be an exercise in academics. The established rules of premises liability sufficiently resolve the pivotal question here of the City's duty to Plaintiff's sons because:
Sheffield Co. v. Morton, 161 Ala. 153, 161, 49 So. 772 (1909).
The common law principle to which the Legislature referred in its statement of purpose for the adoption of Act 463 was well-stated in W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375 (1963):
W. S. Fowler, at 276 Ala. 600, 165 So.2d 375.
Both the statute and the Fowler decision were considered and approved in Wright v. Alabama Power Company, 355 So.2d 322 (Ala.1978), wherein this Court held:
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