Gross v. Republic Steel Corp.

• Decision Date: 22 May 1981
• Citation: 400 So.2d 383
• Parties: Celisia Ann GROSS, a minor who sues by next friend and father, Fred Gross v. REPUBLIC STEEL CORPORATION. 79-942.
• Court: Alabama Supreme Court

Page 383

400 So.2d 383

Celisia Ann GROSS, a minor who sues by next friend and father, Fred Gross v. REPUBLIC STEEL CORPORATION.

79-942.

Supreme Court of Alabama.

May 22, 1981.

Rehearing Denied June 19, 1981.

R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham and Robert H. King, Gadsden, for appellant.

Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.

BEATTY, Justice.

Appeal from an order granting summary judgment in favor of the defendant, Republic Steel Corporation (Republic). We reverse and remand.

The case arose out of a one-automobile accident. The plaintiff was operating her automobile on Hickory Street, a paved public road in Gadsden about 7:30 p. m. on December 22, 1977. At or near a point on the road known as Black Creek Bridge she encountered fog which obscured her vision. At a point just beyond the bridge the road curves sharply to the left; however, the plaintiff continued in the same direction and ran into a guard rail which Republic had erected upon its property.

The plaintiff's original complaint named Republic, the City of Gadsden and others as defendants. Other defendants were added but subsequently removed. The plaintiff's allegations against Republic were that it

allowed the use of the area connected with said Guard Rail Barrier to be used by vehicular traffic or others and same gave the appearance at night time of being the continuation of said Hickory Street Road and same was dangerous and said Defendant Republic had no warning signs or other devices warning of said Danger and said Defendant Republic on said occasion and said time and place had the duty as a Landowner not to use or allow the use of its Land so as that it was an Attractive Nuisance and/or as a trap on said Land that could or would cause injuries to others and/or so as to endanger the members of the Public, including Plaintiff through the erection, use or control of its said Land located adjacent to said Hickory Street Public Road, ...

followed by allegations of negligent or wanton injury of the plaintiff proximately caused by the negligence or wantonness of the defendants, and a demand for $50,000.00 in damages.

Republic's motion to dismiss was denied, after which Republic answered by denying any negligence on its part, alleging contributory negligence by the plaintiff, and that the plaintiff was a trespasser on its property.

In due course Republic moved for summary judgment based upon the pleadings, the depositions of the plaintiff, of a passenger in her automobile, of one Elton M. Pledger, of one D. L. Haney, answers to the plaintiff's interrogatories, an affidavit of the plaintiff, and an affidavit of counsel for Republic. In response to Republic's motion for summary judgment the plaintiff filed the affidavit of one Cecil Ray Beaird, Cecil Dorsett and Robert Roberts. The trial court granted Republic's motion for summary judgment and later denied the City of Gadsden's motion for reconsideration. Following the entry of a Rule 54, ARCP order, the plaintiff appealed.

The defendant's position is that, since the accident occurred on its property, the plaintiff was a trespasser to whom the defendant owed only the duty not to intentionally injure her or lay a trap for her. Having acquired its property for steel plant operations, Republic contends, it might use that property as it sees fit except that it must not engage in a positive act creating a hidden danger that a person could not avoid by the exercise of reasonable care and skill. According to Republic, there is no evidence tending to show the creation of any danger or trap by the erection of the guard rail.

The cases cited to us by Republic are inapplicable, we perceive, to the factual situation posed by the plaintiff. In Eades v. American Cast-Iron Pipe Co., 208 Ala. 556, 94 So. 593 (1922), the conduct of the defendant in question was in allowing an artificial pool of water to accumulate on its land into which the victim entered and drowned. Alabama Great Southern R. Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964), is to the same effect. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375 (1964), dealt with an injury to a person on a highway being constructed by the defendant building contractor who, though having possession of the premises, nevertheless allowed use of the highway by members of the public. And in Wright v. Alabama Power Co., Ala., 355 So.2d 322 (1978), the injury occurred when the victim went upon the defendant's property and struck a partially submerged fence.

According to the plaintiff's evidence, prior to this occurrence Republic had placed a quantity of chert (or flintlike rock) material in the area between the curve in Hickory Street and the guard rail which, to west bound motorists such as the plaintiff, gave the appearance of being a continuation of the road. Additionally, Republic had previously located two powerful lights close together some two hundred yards west of the curve and a distance from the ground which, to a motorist driving on Hickory Street on a foggy evening, would appear to be the headlights of an oncoming vehicle. Furthermore, there was in existence about 350 feet north of Black Creek Bridge a settling pond created by Republic to receive waste waters from Republic's manufacturing process. The plaintiff's evidence, through Roberts's and Dorsett's affidavits, was that the combination of this warm water and cool December air would be expected to produce fog which would interfere with the vision of motorists driving west...