Henderson By and Through Hartsfield v. Alabama Power Co.

• Decision Date: 25 June 1993
• Parties: Craig HENDERSON, a minor, By and Through his mother and next friend, Linda HARTSFIELD v. ALABAMA POWER COMPANY. ALABAMA POWER COMPANY v. Craig HENDERSON, a minor, By and Through his mother and next friend, Linda HARTSFIELD. 1901875, 1901946.
• Court: Alabama Supreme Court

Page 878

627 So.2d 878

Craig HENDERSON, a minor, By and Through his mother and next friend, Linda HARTSFIELD v. ALABAMA POWER COMPANY.

ALABAMA POWER COMPANY v. Craig HENDERSON, a minor, By and Through his mother and next friend, Linda HARTSFIELD.

1901875, 1901946.

Supreme Court of Alabama.

June 25, 1993.

Rehearing Denied Aug. 27, 1993.

Joseph G. Pierce and Jack Drake of Drake & Pierce, Tuscaloosa, and Ralph I. Knowles, Jr. of Doffermyre, Shields, Canfield & Knowles, Atlanta, GA, for appellant/cross-appellee.

S. Allen Baker, Jr. and James A. Bradford of Balch & Bingham, Birmingham, and William J. Hust, Jr. of Zeanah, Hust, Summerford, Davis & Frazier, Tuscaloosa, and Forrest S. Latta of Pierce, Carr & Alford, Mobile, for appellee/cross-appellant.

Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.

ADAMS, Justice.

Craig Henderson and Alabama Power Company ("APCo") appeal and cross appeal, respectively, from a judgment awarding Henderson $15,303.84 in compensatory damages but reducing to $250,000 a jury's $500,000 punitive damages award, in Henderson's personal injury action against APCo. We affirm in part, reverse in part, and remand.

In 1988, APCo owned and operated an "electrical transmission switching tower" near the Cedar Knoll and Idlewood residential subdivisions of Tuscaloosa, Alabama. The tower, which was constructed in 1957, supported a number of transmission lines carrying 44,000 volts of electricity. It was approximately 33 feet high and 5 feet square and was composed of vertical and horizontal steel bands reinforced by diagonal steel braces.

When initially constructed, the tower was fitted with an "anti-climbing guard"--a barbed wire latticework enclosed within a square steel frame. This framework was installed horizontally on the tower midway between the base of the tower and the first series of wires. The width of the frame exceeded the width of the tower; thus, the barbed wire extended slightly beyond the tower on all four sides. In 1967, APCo attached to the tower--outside the guard--a steel "switch operating rod," or pole, two inches in diameter.

On September 13, 1988, 12-year-old Craig Henderson and at least three other children climbed the tower, getting past the anti-climbing device by means of the switch operating pole. While Henderson was playing on the tower, his head contacted one of the power lines and the resulting electrical "flash" knocked him from the tower. He was transported by helicopter to the burn unit at the Children's Hospital in Birmingham, where he was treated for "deep second degree" burns to his face, thighs, and other parts of his upper body.

On November 23, 1988, Henderson, by and through his mother, sued APCo on counts alleging negligence and wantonness. The cause proceeded to trial, and, on May 23, 1991, the jury awarded Henderson $15,303.84 in compensatory damages and $500,000 in punitive damages. APCo moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial; and for a "remittitur, or, in the alternative, [a vacation of] the punitive damage[s] award." Henderson, in a "motion for [a] declaratory judgment and for entry of judgment in excess of $250,000," challenged the constitutionality of Ala.Code 1975, § 6-11-21, which, subject to enumerated exceptions, limits to $250,000 jury awards of punitive damages.

Following a post-verdict review of the damages award as required by Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), the trial court entered an order expressly finding that the jury's award was supported by clear and convincing evidence of wantonness and was not excessive. Although "acknowledg[ing] its continuing questioning of the constitutional [validity] of § 6-11-21," the trial court, nevertheless, reduced the punitive damages award to the statutory limit--deferring to this Court a resolution of the plaintiff's challenge to the constitutionality of the statute.

Both parties appeal the judgment, which was based on the jury's verdict and the trial court's ruling on the post-verdict motions. The dispositive issues on appeal, broadly stated, are whether the punitive damages award, which was based on the wantonness count, was supported by the evidence, and, if so, whether § 6-11-21 violates the constitution of Alabama.

I. Wantonness (Case 1901946)

Section 6-11-21 was enacted as part of a "package of bills" collectively called "the Alabama Tort Reform Act." L. Nelson, Tort Reform in Alabama: Are Damages Restrictions Unconstitutional? 40 Ala.L.Rev. 533, 533 (1989); Act No. 87-185, § 2, 1987 Ala. Acts 251. The section provides:

"An award of punitive damages shall not exceed $250,000.00, unless it is based upon one or more of the following:

"(1) A pattern or practice of intentional wrongful conduct, even though the damage or injury was inflicted only on the plaintiff; or,

"(2) Conduct involving actual malice other than fraud or bad faith not a part of a pattern or practice; or,

"(3) Libel, slander or defamation."

Although Henderson contends that APCo's conduct falls within at least one of the first two statutory exceptions to the damages limitation, his contentions are unsupported by the evidence and must be rejected. We address, therefore, the broader question presented by APCo's motion for a new trial, that is, whether the jury's finding that APCo wantonly breached the duty owed to the plaintiff was against the weight of the evidence.

The duty owed to trespassing children by individuals and entities maintaining artificial conditions on land is set out by Restatement (Second) of Torts § 339 (1977). That section states:

"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."

See also Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976) (adopting § 339).

In adopting § 339, this Court recognized the special duty owing to a class of plaintiffs, defined in § 339(c), whose natural proclivity for wonder and adventure often exceeds their sense of impending danger. See Motes v. Matthews, 497 So.2d 1121 (Ala.1986). Whether a particular plaintiff falls within this class will ordinarily present a jury question. See Lyle v. Bouler, 547 So.2d 506 (Ala.1989).

APCo contends that § 339 "establishes a special 'negligence' standard for the benefit of trespassing children." Brief of Appellant Alabama Power Company, at 54. It concedes, however, that the duty set forth in § 339 may also form the basis of a cause of action for wantonness--subject to a "heightened knowledge" requirement. Id. ¹

This "heightened knowledge" requirement for wantonness has been defined as "the conscious doing of some act or the omission of some duty [while] under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result." Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101, 104 (1965). Wantonness will be found where the evidence demonstrates "that with reckless indifference to the consequences [a party] consciously and intentionally did some wrongful act or omitted some known duty which produced the result." Id.

In the context of § 339, wantonness may be summarized as the defendant's conscious acts or omissions in the maintenance of an artificial condition on a place where the defendant knows children will likely trespass, accompanied by the awareness that they will thereby expose themselves to a high probability of injury. It need not be shown that the defendant specifically anticipated the trespass of the plaintiff, Tolbert, 333 So.2d at 134, but only that the defendant anticipated trespasses by members of the protected class to which the plaintiff belonged, and that such persons trespassing would thereby be exposed to a high risk of injury due to the defendant's acts or omissions. The defendant's knowledge, although the sine qua non of wantonness, "may be made to appear like any other fact, by showing circumstances ... from which the fact of knowledge is a legitimate inference." Blount Brothers Constr. Co. v. Rose, 274 Ala. 429, 437, 149 So.2d 821, 830 (1962). ²

A. Knowledge of Conditions

APCo argues that liability must be predicated on its knowledge that "children were likely to trespass on the transmission tower" involved in this case. In fact, the jury was so instructed at APCo's request. Reply Brief of Appellant Alabama Power Company, at 6 n. 1 (emphasis in original.) Henderson contends that this proposition mischaracterizes the duty set forth in § 339, and that the relevant "place" is the area of the easement in the vicinity of the tower. We need not resolve this issue, because APCo's awareness of the likelihood that children would attempt to climb the tower itself was clearly inferable from the evidence.

This evidence included, inter alia, testimony and documents demonstrating the extent of knowledge possessed by the utility industry generally. For example, Henderson introduced provisions of the National Electrical Safety Code, which in pertinent part...