Herston v. Whitesell
Decision Date | 12 August 1977 |
Citation | 348 So.2d 1054 |
Parties | David Glen HERSTON v. Calvin M. WHITESELL, Thomas T. Gallion, III, and Cary Dozier. SC 1982. |
Court | Alabama Supreme Court |
Ralph H. Ford, of Ford, Caldwell, Ford & Payne, Huntsville, John B. Crawley and Robert H. Ford, Troy, for appellant.
William B. Moore, Jr., Montgomery, for appellees Whitesell and Gallion.
Joseph C. Espy, III, of Melton & Espy, Montgomery, for appellee Cary Dozier.
Appellant Herston brought suit against Attorneys Whitesell, Gallion and Dozier, appellees, alleging that they negligently and with conscious indifference gave Herston "unskillful" advice, negligently gave improper notice of Herston's claim to the City of Troy, and negligently failed to file Herston's claim for damages within the one year period of time allowed by law.
The case is before us on summary judgment granted in favor of appellees. The issue is whether a material question of fact exists, in which case the judgment should be reversed, or whether the judgment should be affirmed as a matter of law. Rule 56, Alabama Rules of Civil Procedure. We believe material questions of fact do exist and reverse.
On April 2, 1974, appellant Herston fell while painting the interior of the City of Troy's water tower. The appellant or his firm, Horizon Paint Contractors, had contracted with the City of Troy for the performance of the work. Inside the water tank, according to the appellant's complaint, there are about 30 metal rods which radiate from the center of the water tower to the walls of the water tower. The rods are held together in the center by a "pie plate" or "disc." Nuts, screwed onto the ends of the rods, attach the rods to the pie plate. Any given rod would rest on the pie plate in its hole without being secured by a nut, but if adequate weight were placed on a rod it would pull loose from the pie plate. Several of the employees of Horizon Paint noticed that some of the nuts were missing. The day after work began, notice of the missing nuts was given to the employees or agents of the City of Troy. Melvin McLendon, Supervisor for the Water Department of the City of Troy, indicated that the rods would be fixed immediately. An employee of the City brought some nuts out to the site but made no effort to put the nuts on the rods, so Horizon Paint employees put on the nuts that were made available at that time. Over the next six weeks employees of Horizon Paint continued to ask Melvin McLendon as well as James Ray, Mayor of the City, and other City employees for nuts to attach to the remaining rods. Upon each request the City assured them that it would immediately provide the nuts and fix the rods.
Upon completion of painting the outside and the inside of the tower, with the exception of the "crown" of the tower, appellant Herston entered the tank to complete the job. He placed a 20 foot long board on several rods. He was midway on the board when the rods pulled out and appellant fell about 35 feet to the bottom of the tank.
Summary judgment was rendered on the pleadings and affidavits of the parties. The trial court reached its decision before allowing depositions.
Appellant's affidavit contains, inter alia, the following:
Appellee Gallion's view of this situation, as indicated by his affidavit, is as follows:
Appellee Whitesell states the following in his affidavit:
Appellee Dozier's affidavit does not vary significantly from the appellant's with regard to Dozier's activity.
The elements of an action against an attorney in his professional capacity for negligence are essentially no different from those of any other negligence suit. To recover, the appellant must prove a duty, a breach of the duty, that the breach was the proximate cause of the injury, and damages. Alabama Digest, Negligence, Key 1; Wade, The Attorney's Liability for Negligence, 12 Vand. Law Rev. 755 (1959); Barclift and Newman, The Attorney's Liability for Negligence: an Alabama Perspective, 7 Cumberland Law Rev. 69 (1976).
As to duty, the appellant contends that an attorney-client relationship existed between him and the appellees. Gallion and Whitesell deny the existence of such a relationship. In this instance, whether an attorney-client relationship existed is a question of fact for the jury. Walker v. Goodman, 21 Ala. 647 (1852). Pinkston v. Arrington & Graham, 98 Ala. 489, 13 So.2d 561 (1892).
The duty an attorney owes his client is to use "reasonable care and skill" in managing the business of his client. Goodman v. Walker, 30 Ala. 482, 496 (1857); Evans v. Watrous, 2 Port. 205 (1835). If an attorney had a duty to use more than reasonable care and skill, no one would venture to act in such a capacity. Goodman, supra; Evans, supra. The duty of using reasonable care and skill applies to the manner in which the attorney pursues the case and the law which he applies to the case. As Dean Wade states in his...
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Commonly Used Experts
...the breach was the proximate cause of the injury, and damages. Malloy v. Sullivan , 387 So. 2d 169 (Ala. 1980); Herston v. Whitesell , 348 So. 2d 1054 (Ala. 1977). As stated by the California Court of Appeals in Theobald , we see no reason why contributory negligence should not be applicabl......
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Commonly Used Experts
...the breach was the proximate cause of the injury, and damages. Malloy v. Sullivan , 387 So. 2d 169 (Ala. 1980); Herston v. Whitesell , 348 So. 2d 1054 (Ala. 1977). As stated by the California Court of Appeals in Theobald , we see no reason why contributory negligence should not be applicabl......
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Commonly Used Experts
...the breach was the proximate cause of the injury, and damages. Malloy v. Sullivan , 387 So. 2d 169 (Ala. 1980); Herston v. Whitesell , 348 So. 2d 1054 (Ala. 1977). As stated by the California Court of Appeals in Theobald , we see no reason why contributory negligence should not be applicabl......
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Commonly Used Experts
...the breach was the proximate cause of the injury, and damages. Malloy v. Sullivan , 387 So. 2d 169 (Ala. 1980); Herston v. Whitesell , 348 So. 2d 1054 (Ala. 1977). As stated by the California Court of Appeals in Theobald , we see no reason why contributory negligence should not be applicabl......