Hilliard v. City of Huntsville Elec. Utility Bd.

• Decision Date: 22 May 1992
• Citation: 599 So.2d 1108
• Court: Alabama Supreme Court
• Parties: Steve Wilson HILLIARD, as Administrator of the Estate of Darlene Cobb Hilliard, Deceased, et al. v. CITY OF HUNTSVILLE ELECTRIC UTILITY BOARD. 1901771.

Page 1108

599 So.2d 1108

46 A.L.R.5th 839

Steve Wilson HILLIARD, as Administrator of the Estate of Darlene Cobb Hilliard, Deceased, et al. v. CITY OF HUNTSVILLE ELECTRIC UTILITY BOARD.

1901771.

Supreme Court of Alabama.

May 22, 1992.

Douglas J. Fees of Morris, Smith, Siniard, Cloud, Fees & Conchin, P.C., Huntsville, for appellants.

Dennis Riley of Morring, Schrimsher & Riley, Huntsville, for appellee.

MADDOX, Justice.

This is a wrongful death action in which the personal representative, Steve Wilson Hilliard, sued the City of Huntsville Electric Utility Board ("Utility Board"), alleging negligence and/or wantonness and nuisance. The issue presented is whether the trial court erred in entering a summary judgment for the Utility Board.

Hilliard, as personal representative of the estate of his deceased wife, Darlene Cobb Hilliard, and on behalf of his deceased children, filed this wrongful death action claiming that the negligent or wanton conduct on the part of the Utility Board caused an electrical fire that resulted in the death of his wife and two children. We conclude that Hilliard presented sufficient evidence to submit his case to the jury, and, therefore, we reverse the judgment of the trial court, and remand for action consistent with this opinion.

Hilliard and his family resided in one apartment of a converted residential quadraplex located at 922 Meridian Street in Huntsville, Alabama. The quadraplex had been formerly used for commercial and residential purposes, and had been converted by Philip Kromis, the owner, to four residential units. As part of the conversion, Kromis hired Landman Electric Company ("Landman") to install needed additional interior wiring, and he requested that the Utility Board transfer an existing single-meter, 200-ampere, overhead electrical service to a four-meter, 400-ampere, underground service. A Utility Board employee prepared a work order for the change requested by Kromis, and a work crew installed the four-meter underground service. However, at Kromis's request, the work crew did not disconnect the existing single-meter overhead service.

Sometime thereafter, an electrical fire broke out in the apartment building. Hilliard's wife and two children died in the fire. Hilliard sued Kromis, Landman, the City of Huntsville, and the Utility Board, alleging that they had wrongfully caused the death of his family. Hilliard settled with both Kromis and Landman, and the trial court entered a judgment on the pleadings for the City; that judgment was affirmed by this Court in Hilliard v. City of Huntsville, 585 So.2d 889 (Ala.1991).

The Utility Board filed a motion for summary judgment and made a prima facie showing that it had not been negligent or wanton and that it had not created a nuisance. The trial court granted the motion. Hilliard appeals.

Hilliard asserted two claims against the Utility Board: (1) negligence and/or wantonness associated with the Board's connection and/or failure to disconnect the electrical services at issue, and (2) nuisance. Hilliard alleged that the Utility Board was negligent and/or wanton in connecting the four-meter, underground electrical service without first disconnecting the single-meter, overhead electrical service. Hilliard's principal contention is that the Utility Board's actions (i.e., connecting the four-meter service, and failing to disconnect the single-meter service) violated various safety standards promulgated by the National Electrical Code ("the NEC") and the expressed policy of the Utility Board itself. Further, he points out that a summary judgment is rarely appropriate in a negligence action, and argues that the summary judgment was not appropriate here.

Additionally, Hilliard asserts that the Utility Board's actions created a nuisance as defined by Ala.Code 1975, § 6-5-120; that is, Hilliard argues that the Utility Board's actions caused a dangerous condition that brought about "hurt, inconvenience [and] damage to another [i.e., his family]." Id.

Our Standard of Review

Because we are dealing with a summary judgment, our review is de novo. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). That is, we must examine all the evidence that the trial court had before it in making its determination. Id. The two-tiered standard of review has been repeatedly stated: For a summary judgment to be proper, there must be no genuine issue of material fact and the movant must be entitled to a judgment as a matter of law. Ala.R.Civ.P. 56(c), Tripp v. Humana, Inc., 474 So.2d 88 (Ala.1985). Further, on review of a summary judgment, we must view all the evidence in a light most favorable to the nonmovant, and we must entertain all reasonable inferences from the evidence in favor of the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991). See, also, Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

The movant must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law. Fincher, 583 So.2d at 257. If this showing is made, the burden then shifts to the nonmovant to rebut the movant's prima facie showing by presenting "substantial evidence" to create a genuine issue of material fact. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala.Code 1975, § 12-21-12, West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In the case at bar, both sides submitted briefs to the trial court arguing their respective positions and excerpting the relevant deposition and affidavit testimony in support of their positions. The Utility Board met its burden by a showing that the facts of the case were largely undisputed ¹ and that its actions had not caused the fire. Also, the Utility Board claimed that it owed no duty to the Hilliards, citing Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975). Additionally, the Board claimed substantive, municipal immunity as a bar to Hilliard's recovery. ²

To rebut the Utility Board's prima facie showing, Hilliard presented excerpted deposition and affidavit testimony from various lay and expert witnesses. We conclude that Hilliard presented substantial evidence supporting all the requisite elements of a prima facie case of negligence, ³ thereby rebutting the Utility Board's prima facie showing on the motion for summary judgment. As to the nuisance count, we conclude that Hilliard's proffered evidence as to his negligence count has sufficient bearing on his nuisance count to allow that issue to be submitted to the jury also.

The Negligence Count

"The basic elements of any negligence action are: 1) an obligation owed by the defendant to the plaintiff, 2) a breach of the standard of care applicable to that obligation, 3) causation, and 4) damage." Maharry v. City of Gadsden, 587 So.2d 966, 968 (Ala.1991); see also, Rutley v. Country Skillet Poultry Co., 549 So.2d 82 (Ala.1989). Hilliard presented sufficient evidence that the Utility Board had assumed a duty to use reasonable care in carrying out the work order involved here. See, King v. National Spa & Pool Institute, Inc., 570 So.2d 612, 614 (Ala.1990) (one who originally has no duty to do or refrain from doing something may assume such a duty, in which case he will be expected to act non-negligently). Richard Knox, a Utility Board representative, testified that Utility Board employees complied with NEC requirements in carrying out work orders. Henry O'Quinn, also a Utility Board representative, testified that work crews normally performed work orders as written, and that it was the responsibility of the work crew's foreman to ensure that the work order was carried out as written. Additionally, Knox testified that there was a Utility Board policy against connecting a new electrical service to a building without first disconnecting an existing service. In short, we are convinced that Hilliard sufficiently established a duty. ⁴

As to breach of the duty, it was undisputed that the work crew here failed to disconnect the old, single-unit service when the crew connected the new, four-unit service. Because the plaintiff presented sufficient evidence of an assumed duty on the Utility Board's part to perform the work order's mandates with due care, and because there was evidence that the failure to disconnect the old service violated the NEC and the Board's own policy, the undisputed evidence of the work crew's failure to disconnect the old service satisfies the breach of duty element.

As to causation, we note initially that issues of causation are normally properly submitted to the jury, because they are generally dependent on the facts of the case. Fletcher v. Hale, 548 So.2d 135 (Ala.1989). Further, the trial court should displace a jury's consideration of causation issues only where there is a lack of substantial evidence from which the jury could reasonably infer a causal connection between the culpable conduct and the resulting injury. Graham v. Wal-Mart Stores, Inc., 529 So.2d 938 (Ala.1988). Additionally, conflicts in the evidence militate towards submission of an issue to the jury. See, Land v. Niehaus, 340 So.2d 760 (Ala.1976); Dean v. Mayes, 274 Ala. 88, 145 So.2d 439 (1962).

Causation analysis consists of two concepts: factual or "but-for" causation, and legal or proximate causation. Springer v. Jefferson County, 595 So.2d 1381 (Ala.1992). As we stated in Springer:

"Factual causation, or 'but for' causation, is that part of causation analysis that asks if the complained-of injury or damage would have occurred but for the act or omission of the defendant. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton On Torts § 41 (5th ed. 1984). Proximate or legal causation is that part of causation analysis that asks if 'the act for which the [defendant] is responsible [is] of...