Gossett v. Twin County Cable T.V., Inc.

CourtSupreme Court of Alabama
Writing for the CourtKENNEDY; HORNSBY; HOUSTON; HOUSTON
Citation594 So.2d 635
PartiesRay GOSSETT and Amy Gossett v. TWIN COUNTY CABLE T.V., INC., and Ron Nunnelly d/b/a Southeastern Communications. 1901088.
Decision Date14 February 1992

Page 635

594 So.2d 635
Ray GOSSETT and Amy Gossett
v.
TWIN COUNTY CABLE T.V., INC., and Ron Nunnelly d/b/a Southeastern Communications.
1901088.
Supreme Court of Alabama.
Feb. 14, 1992.

Page 637

P. Russell Tarver of Cherry, Givens, Tarver, Peters, Lockett & Diaz and Elizabeth R. Jones, Birmingham, for appellants.

Michael S. Jackson of Beers, Anderson, Jackson & Smith, P.C. and Randall Morgan of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellees.

KENNEDY, Justice.

Ray Gossett and Amy Gossett sued Twin County Cable T.V., Inc. ("Twin County"), Ron Nunnelly d/b/a Southeastern Communications ("Nunnelly"), Cornelius Maddox, Time Manufacturing Company, Inc., Easley Equipment Company, Inc., and various fictitiously named parties on claims by Mr. Gossett of negligence and product defects and on a claim by Mrs. Gossett of loss of consortium.

With respect to Nunnelly and Twin County, the Gossetts alleged that Mr. Gossett ("Gossett") was an employee of Nunnelly and an employee/servant of Twin County. Gossett averred that these relationships imposed on Nunnelly and Twin County a duty to maintain a safe workplace for Gossett, that they had breached that duty, and that the breach had resulted in injury to Gossett. Both Nunnelly and Twin County moved for a summary judgment, alleging that Gossett had been contributorily negligent.

The trial court held that Gossett was an employee of Nunnelly, but an independent subcontractor of Twin County. The trial court further held that Gossett was the cause of his own injuries and entered a summary judgment for Nunnelly and a summary judgment for Twin County. Those judgments were made final pursuant to Rule 54(b), A.R.Civ.P., and from those judgments Gossett appeals.

Undisputed evidence in this case discloses that Gossett worked for Nunnelly, the owner of Southeastern Communications. In turn, Nunnelly's company was engaged by Twin County to work on the installation of a cable television system in Montgomery County. Nunnelly's crew on this project consisted of himself, Gossett, and Ray Salter.

On August 28, 1988, Nunnelly, Gossett, and Salter were on a job site splicing cable and running cable to houses. Nunnelly became ill and left the job site for the day, giving specific instructions to Gossett that he was not to "run cable strand." This task involved attaching a cable strand to a telephone pole and then stringing the cable strand between adjacent poles. Nevertheless, after Nunnelly left the job site Gossett began to "run cable strand." Gossett's reason for doing this is disputed. Gossett testified that after Nunnelly departed, Twin County's sole representative on the site, Bob Garner, became agitated when Gossett told Garner that he was not to run cable strand at that job site. Gossett testified that Garner was "the main boss" on the project and that Garner ordered him to run cable strand anyway. Nunnelly testified that he had previously advised Garner that his crew would not run cable strand at that site. Garner said he did not recall either conversation. It is not disputed that at the time of the accident Gossett was engaged in the forbidden activity of running cable strand at that site.

Specifically, Gossett parked his truck, which was equipped with a lift bucket, beside a telephone pole along a roadway and then entered the lift bucket with some cable strand. The cable strand was positioned across the roadway toward a second pole, and then under Gossett's truck, and from there it was looped loosely in front of Gossett in the lift bucket. Gossett engaged the lift bucket, which then climbed to a height that reached the uppermost portion of the pole. At this point, one end of the cable was in front of Gossett in the lift bucket and it ran under his truck and across the roadway to the other end. To prepare the pole for the attachment of the cable strand, Gossett began drilling a hole through the pole. At that time Salter was on the ground below Gossett to act as a traffic flagman along the roadway, although he held no flag. In addition, two orange safety cones had been set out to alert traffic. The evidence was disputed as to whether Gossett and Salter had available any additional safety devices.

Page 638

Gossett testified that as an alternative to taking the cable strand up in the bucket to await attachment while he prepared the pole, he could have first prepared the pole without the cable strand in the bucket and then descended to pick up the cable strand once the pole was ready. This method would have reduced the time the cable strand was in front of his body awaiting placement.

As Gossett was drilling the hole, a recreational vehicle drove over the cable strand in the roadway, accidentally snagging the cable strand and, in turn, causing the cable strand to tighten in front of Gossett. The ensnared cable strand then pulled Gossett from the bucket to the pavement below as the recreational vehicle continued down the roadway with the cable strand attached to its under-carriage. As a result, Gossett suffered substantial physical injuries.

On Nunnelly's and Twin County's respective motions for summary judgment, the trial court held that there existed no genuine issue of material fact and ruled on matters of law in favor of Nunnelly and Twin County.

The standard for granting a summary judgment motion is that the court must conclude "that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." A.R.Civ.P. 56(c). The burden of establishing that there exists no genuine issue of material fact is on the moving party. Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the burden shifts to the opposing party to establish a genuine issue of material fact. Stephens v. City of Montgomery, 575 So.2d 1095, 1097 (Ala.1991).

In cases commenced after July 11, 1987, as was this case, in order to survive a defendant's motion for summary judgment, a plaintiff must overcome the defendant's prima facie showing by the plaintiff's own showing of "substantial evidence." Ala.Code 1975, § 12-21-12. This Court has defined "substantial evidence" as "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).

No presumption of correctness attaches to a summary judgment, and our review of such a judgment is de novo. Hightower & Co. v. United States Fidelity & Guar. Co., 527 So.2d 698 (Ala.1988).

Issues relating to Nunnelly

Gossett argues that the trial court erred in entering the summary judgment for Nunnelly because, Gossett says, as a matter of law it was foreseeable by Nunnelly that Gossett would disobey his instructions...

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61 practice notes
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • May 5, 2006
    ...is tested by the degree of control the alleged master retains over the alleged servant." Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635, 639 (Ala.1992). Thus, Timmons argues that Dr. Ware, as the supervising anesthesiologist, had a reserved right of control over Nurse Hayes's acts a......
  • Ware v. Timmons, No. 1030488 (Ala. 9/22/2006), No. 1030488.
    • United States
    • Supreme Court of Alabama
    • September 22, 2006
    ...is tested by the degree of control the alleged master retains over the alleged servant." Gossett v. Twin County Cable T.V., Inc., 594 So. 2d 635, 639 (Ala. 1992). Thus, Timmons argues that Dr. Ware, as the supervising anesthesiologist, had a reserved right of control over Nurse Hayes's acts......
  • Grant v. Wesfam Rests., Inc., Case No. 5:10-cv-3457-TMP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 31, 2013
    ...wrong committed by defendants upon which a claim of civil conspiracy could be based, the conspiracy claim cannot stand. Nelson, 594 So. 2d at 635. As discussed above, plaintiff's claims for abuse of process and defamation, the underlying wrongs upon which his conspiracy claims are based, ca......
  • So. Ala. Skills Training Consortium v. Ford, 2060837.
    • United States
    • Alabama Court of Civil Appeals
    • June 6, 2008
    ...factor is `the degree of control the alleged [employer] retains over the alleged [employee].' Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635, 639 (Ala.1992) (also stating that "`[i]t is the reserved right of control rather than its actual exercise that furnishes the true test of whe......
  • Request a trial to view additional results
61 cases
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • May 5, 2006
    ...is tested by the degree of control the alleged master retains over the alleged servant." Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635, 639 (Ala.1992). Thus, Timmons argues that Dr. Ware, as the supervising anesthesiologist, had a reserved right of control over Nurse Hayes's acts a......
  • Ware v. Timmons, No. 1030488 (Ala. 9/22/2006), No. 1030488.
    • United States
    • Supreme Court of Alabama
    • September 22, 2006
    ...is tested by the degree of control the alleged master retains over the alleged servant." Gossett v. Twin County Cable T.V., Inc., 594 So. 2d 635, 639 (Ala. 1992). Thus, Timmons argues that Dr. Ware, as the supervising anesthesiologist, had a reserved right of control over Nurse Hayes's acts......
  • Grant v. Wesfam Rests., Inc., Case No. 5:10-cv-3457-TMP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 31, 2013
    ...wrong committed by defendants upon which a claim of civil conspiracy could be based, the conspiracy claim cannot stand. Nelson, 594 So. 2d at 635. As discussed above, plaintiff's claims for abuse of process and defamation, the underlying wrongs upon which his conspiracy claims are based, ca......
  • So. Ala. Skills Training Consortium v. Ford, 2060837.
    • United States
    • Alabama Court of Civil Appeals
    • June 6, 2008
    ...factor is `the degree of control the alleged [employer] retains over the alleged [employee].' Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635, 639 (Ala.1992) (also stating that "`[i]t is the reserved right of control rather than its actual exercise that furnishes the true test of whe......
  • Request a trial to view additional results

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