Hatem v. Town of Dauphin Island) (Ex Parte Town of Dauphin Island ()
| Decision Date | 28 September 2018 |
| Docket Number | 1170424 |
| Citation | 274 So.3d 237 |
| Parties | EX PARTE TOWN OF DAUPHIN ISLAND (In re: Rebecca Hatem, a minor, by and through her mother and next friend Bobbi Rogers, and Bobbi Rogers v. Town of Dauphin Island) |
| Court | Alabama Supreme Court |
Lawrence M. Wettermark and Melissa P. Hunter of Galloway, Wettermark & Rutens, LLP, Mobile, for petitioner.
Kent D. McPhail and R. Jason Crane of Kent McPhail & Associates, LLC, Mobile, for respondents.
George W. Royer, Jr., of Lanier Ford Shaver & Payne P.C., Huntsville, for amici curiae City of Gadsden, City of Guntersville, City of Ft. Payne, City of Muscle Shoals, and City of Oxford, in support of the petitioner.
Ed R. Haden and Michael Taunon of Balch & Bingham LLP, for amicus curiae Alabama Power Company, in support of the petitioner.
The Town of Dauphin Island ("the Town") petitions this Court for a writ of mandamus directing the Mobile Circuit Court to set aside its order denying the Town's motion for a summary judgment based on the recreational-use statutes, in § 35-5-1 et seq., Ala. Code 1975, and to enter a summary judgment in its favor on the claims brought by Bobbi Rogers, individually, and in her capacity as next friend of her minor daughter, Rebecca Hatem (hereinafter collectively referred to as "the plaintiffs"). We grant the petition and issue the writ.
W & S Green, LLC, owns the property known as Green Park located in the Town. William L. Green III and his wife, Sally L. Green, are the only two members of W & S Green. The Greens reside in Florida. In 2008, the Town entered into a three-year "Land Use Lease Agreement" with W & S Green to lease the property known as Green Park to the Town. Pursuant to the terms of the lease, W & S Green granted the Town the exclusive right to use the property as a public-pedestrian park in exchange for compensation of $1.00 annually. The Town has maintained Green Park as a free public park and does not charge the public an admission fee for use of the park. Neither the Greens nor W & S Green have managed the property known as Green Park since it was leased to the Town in 2008. In 2011, the Town and W & S Green extended the term of the lease for an additional three years.
The Town is responsible for the maintenance and upkeep of the property under the terms of the lease. Corey Moore serves as the public-works superintendent and has seven employees under his direction. The Town maintains the park by trimming and removing small limbs and debris. However, because of its small size and limited resources, the Town does not have the capability to remove large limbs or trees. The Town contracts with outside tree services for the removal of large limbs and trees when necessary.
In 2006, a resident of the Town constructed a swing and donated it to the Town in memory of his deceased grandson. At some point the Town's public-works department hung the swing from the large tree that served as the centerpiece of Green Park. The chain from which the swing was hung was coated with thick plastic. In November 2013, Bill Phillips, a friend of the Greens and a resident of the Town, informed William Green that the swing had been hung from the tree. William was previously unaware that the swing had been hung in the tree and asked Phillips to contact Jeff Collier, the Town's mayor, to find out why the swing had been hung. William testified as follows about his concern regarding the swing:
William stated that he never visited the park and never saw the swing, the tree, or the limb the swing was attached to, nor did he have any knowledge of the condition of the tree or swing. He stated that there
Collier testified that Phillips contacted him and informed him of William's concerns that the swing might potentially damage the tree limb from which it was suspended. Collier assumed that Phillips was referring to potential scraping or chafing of the bark on the limb by the chain that the swing was suspended from. Collier specifically stated that at no time during his conversation with Phillips did they discuss the safety of the swing and the tree in terms of the swing causing the limb from which it was suspended to break. In response to his conversation with Phillips, Collier testified that he asked Moore to go "check out" the swing and do "whatever he felt was necessary."
Moore testified that he went to the park to inspect the swing on the day after Collier had informed him of William's concerns. Moore stated that he saw the swing suspended from a limb by a chain and that the chain had a "hose over it." Moore testified that the tree limb "did not look damaged at all" to him. Moore testified that, because William had concerns that the swing might injure the tree, he instructed his crew to take the swing down when they got a "chance." It is undisputed that the swing was not taken down.
On November 21, 2013, just several days after Phillips had spoken to Collier about the swing, Rebecca Hatem and her friend, Destiny Henry, entered the park and sat in the swing. Hatem testified that she and her friend had been sitting in the swing for approximately 10 minutes when they heard a "creaking" sound and looked up to see the tree limb falling. The limb landed on Hatem's leg, causing her to suffer a compound fracture
and pinning her under the limb.
Charlotte Hall, a family friend of the plaintiffs', was scheduled to pick Hatem up from the park on the day in question and to give her a ride home. Hall testified that she received a telephone call from Bobbi Rogers, Hatem's mother, informing her that Hatem had suffered a broken leg
at the park.1 Hall testified that she proceeded straight to the park and that when she reached Hatem she was being attended to by emergency personnel. Hall testified that Hatem was crying and that she attempted to calm her down. Hall called Rogers to report Hatem's condition and then gave her cellular telephone to Hatem so that she could talk to Rogers.
Hall testified that while she was present at the scene she overheard a conversation between unidentified individuals discussing the trees in the park. Hall stated that she did not know whether those individuals were employees of the Town. Hall testified as follows:
Hall testified that she did not remember handing her cell phone to anyone at the scene to talk to Rogers other than Hatem. Hall also stated that she did not remember hearing anyone else at the scene, other than Hatem, talking to Rogers on a cell phone.
Rogers has a different recollection. She states that she spoke with "someone from the City" on Hall's cell phone regarding the trees in the park. Rogers testified as follows:
On May 7, 2014, the plaintiffs sued the Town alleging negligence and seeking to recover damages for the injuries Hatem suffered. On May 15, 2014, the plaintiffs amended their complaint to assert a violation of § 35-15-24, Ala. Code 1975, alleging that the Town was aware of the dangerous condition presented by the tree limb and swing and that the Town failed to "remove, guard, or warn against" it. Rogers also asserted a claim based on a loss of services. On July 31, 2014, the plaintiffs filed a second...
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