Hail v. Regency Terrace Owners Ass'n

• Citation: 782 So.2d 1271
• Parties: Barbara B. HAIL, as executrix of the estate of Jack Lee Hail, deceased v. REGENCY TERRACE OWNERS ASSOCIATION et al.
• Decision Date: 22 December 1999
• Court: Supreme Court of Alabama

782 So.2d 1271

Barbara B. HAIL, as executrix of the estate of Jack Lee Hail, deceased v. REGENCY TERRACE OWNERS ASSOCIATION et al.

1981397.

Supreme Court of Alabama.

December 22, 1999.

Rehearing Denied April 28, 2000.

Opinion on Return to Remand October 27, 2000.

W. Lee Pittman of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellant.

Roderick K. Nelson and Judy B. Van Heest of Beers, Anderson, Jackson, Nelson, Hughes & Patty, P.C., Montgomery, for appellees Regency Terrace Owners Association and Metcalf Realty Company, Inc.

Joseph E. Stott of Clark & Scott, P.C., Birmingham, for appellee Bagby Elevator Company, Inc.

PER CURIAM.

Barbara B. Hail, as the executrix of the estate of her husband Jack Lee Hail, filed a wrongful-death action against Regency Terrace Owners Association (the "Association"), Metcalf Realty Company, Inc. ("Metcalf"), Bagby Elevator Company, Inc. ("Bagby"), Radionics, Inc. ("Radionics"), and Automatic Detection Systems, Inc. ("ADS"). The circuit court entered summary judgments for the defendants. Mrs. Hail appealed the summary judgments in favor of the Association, Metcalf, and Bagby. Therefore, Radionics and ADS are not parties to this appeal. We reverse and remand.

Jack Hail resided in a condominium apartment he owned in the Regency Terrace Condominiums in Birmingham. Management of the building was the responsibility of the Association, which is governed by a board of directors and elected officers. The Association's board hired Metcalf to manage the property and maintain the building. On May 3, 1995, a fire occurred in the maintenance man's office, which was located adjacent to the building's lobby. At the time of the fire, Mr. Hail was found in the lobby of the building; he later died as a result of injuries sustained in that fire. The Birmingham Fire Department concluded that the fire was the result of arson, but no arrest was made. In the 13 months preceding the May 3, 1995, fire, between 8 and 13 other smaller fires had occurred in or around the building's trash chutes. These fires were also suspected to be arson fires. Testimony from the president of the Association suggests there had been 8 previous fires; testimony by Mrs. Hail suggests there had been 13 previous fires. The Association held numerous meetings to inform its members of the danger of these fires. At these meetings, various safety precautions were discussed and those precautions were later implemented. It became apparent at these meetings that the maintenance man and one resident were considered, by at least some of the owners, to be the primary suspects. However, no one was ever charged with starting the fires.

The building has two elevators, which serve all floors of the building. These elevators are serviced by Bagby. At the time of the fire that killed Mr. Hail, these elevators were equipped with a "recall system" that was designed to prevent them from opening onto a floor where smoke had been detected, but, instead, to deliver passengers to a predetermined alternate floor. The building has two stairwells, one at each end of the hallway. These stairs are outside the building, and they lead from each upper floor to ground level. Mrs. Hail contends that on May 3, 1995, the "recall system" failed and that as a result of the failure an elevator delivered Mr. Hail to a smoke-filled lobby, where he was overcome by smoke and fire.

Mrs. Hail filed this wrongful-death action on September 4, 1996. On August 18, 1998, Bagby filed a motion for summary judgment, along with a brief in support of the motion. Mrs. Hail filed a responsive brief on September 8, 1998, in which she asked the trial court, pursuant to Rule 56(f), for additional time for opposing Bagby's motion. The trial court entered a summary judgment for Bagby on November 12, 1998. On January 27, 1999, Bagby moved for an order, pursuant to Rule 54(b), making its summary judgment final. On February 11, 1999, the Association and Metcalf filed a joint motion for summary judgment. On February 19 and 23, 1999, Mrs. Hail submitted additional affidavits to be considered in opposition to the summary-judgment motions of Bagby, Regency, and Metcalf. On March 1, 1999, the trial court entered a Rule 54(b) order making Bagby's summary judgment final. On March 24, 1999, the trial court entered summary judgments for Metcalf and the Association. Mrs. Hail has appealed all three of these summary judgments.

In reviewing a summary judgment, this Court applies the same standard the trial court applied "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). A summary judgment is proper when there is no genuine issue of material fact and the defendant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala. 1999). See, also, Calvert v. Casualty Reciprocal Exch. Ins. Co., 523 So.2d 361 (Ala. 1988); Nettles v. Henderson, 510 So.2d 212 (Ala.1987); Wilson v. Brown, 496 So.2d 756 (Ala.1986). However, "[i]n reviewing the trial court's ruling on a motion for summary judgment, this Court must evaluate the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant." Norfolk S. Ry. v. Johnson, 740 So.2d 392 (Ala. 1999), citing Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992).

I. Metcalf and the Association's Summary Judgments

Mrs. Hail sued Metcalf and the Association under a premises-liability theory, alleging that they were liable for Mr. Hail's death. She argues that the 8 to 13 fires that had occurred in the building during the 13 months before the fatal fire, gave Metcalf and the Association notice of probable harm, harm that in fact, she says, caused the death of her husband. Furthermore, because the maintenance man was suspected of causing these fires, and because Metcalf and the Association were responsible for hiring him, Mrs. Hail contends that it was unreasonable not to dismiss him when he first became a suspect. Dismissing him, she says, would have prevented the fire that caused Mr. Hail's death.

The Association's representative acknowledged that, before the date of the fire that killed Mr. Hail, the Association had held numerous meetings with the residents to deal with the series of fires. A frequent topic of discussion at these meetings was the residents' desire to get the maintenance man off the property, yet he was not removed until after that fire. The maintenance man had been employed at Regency Terrace for approximately one year before the fire, and the president of the Association said he could not recall any arson fires in the building before this maintenance man was hired. The fatal fire originated in the maintenance man's office. Shortly after that fire occurred, the maintenance man was discharged. As of the date the last summary judgment was entered in this case, no other fire had occurred on the property.

Metcalf and the Association contended in their joint summary-judgment motion that, assuming arson was the cause of the fire, the arson would have been a criminal act of a third party and they, therefore, cannot be held liable under a theory of premises liability. We disagree. "It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third party." Moye v. A.G. Gaston Motels, Inc., 499 So.2d 1368, 1370 (Ala.1986). "Special circumstances" arise when the defendant "knew or had reason to know of a probability of conduct by [a third person] that would endanger the plaintiff." Saccuzzo v. Krystal Co., 646 So.2d 595, 596 (Ala.1994), quoting Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So.2d 1208, 1211 (Ala.1988). Knowledge on the part of a premises owner or manager of a probability that harm will be caused to a person on the premises, by the action of a third party, can create a duty on the part of the owner or manager to take reasonable precautions. Ortell v. Spencer Companies, Inc., 477 So.2d 299 (Ala.1985). However, while prior incidents of criminal conduct can indicate the premises owner or manager had notice that someone on the premises could be harmed by the criminal act of a third person, proof of prior criminal acts does not conclusively establish such notice. Saccuzzo, 646 So.2d at 596, citing Williams v. First Alabama Bank, 545 So.2d at 27 (Ala.1989).

In Henley v. Pizitz Realty Co., 456 So.2d 272 (Ala.1984), this Court considered a case in which an invitee was abducted from a parking deck and was taken off the premises and raped. The assaulted invitee sued the premises owner; this Court affirmed a summary judgment for the defendant premises owner, concluding that the plaintiff had presented no "evidence that the defendant [premises owner] either knew or should have known of a likelihood of conduct on the part of a third person such as [the rapist] which would endanger the invitee." Id. at 277. This Court has rarely held that the danger to an invitee posed by the potential criminal act of a third person was so imminent that the premises owner should have foreseen the eventual consequence. Saccuzzo, 646 So.2d at 596. See, also, Ex parte McRae's of Alabama, Inc., 703 So.2d 351 (Ala.1997); Ortell v. Spencer Companies, Inc., supra; CIE Service Corp. v. Smith, 460 So.2d 1244 (Ala.1984). Thus, these cases present a question of foreseeability. However, for a fact-finder to find foreseeability, an invitee-plaintiff is not required to prove "that the particular consequence should have been anticipated, but rather that some general harm or consequence could have been anticipated." Thetford v. City of Clanton, 605 So.2d 835, 840 (Ala.1992).

Metcalf and the Association argue that the fatal fire was not foreseeable. However, this argument is contradicted by evidence of the significant steps the Association...