Laster v. Norfolk Southern Ry. Co., Inc., 1050532.

Citation13 So.3d 922
Decision Date16 January 2009
Docket Number1050532.
PartiesJames E. LASTER, Jr., a minor who sues by and through his parents and next friends, James E. LASTER, Sr., and Gloria Laster, et al. v. NORFOLK SOUTHERN RAILWAY COMPANY, INC., and the Alabama Great Southern Railway Company.
CourtSupreme Court of Alabama

M. Clay Alspaugh and Richard D. Stratton of Smith & Alspaugh, P.C., Birmingham, for appellants.

Crawford S. McGivaren, Jr., Steve A. Tucker, and John M. Graham of Cabaniss, Johnston, Gardner, Dumas & O'Neal, LLP, Birmingham, for appellees.

On Application for Rehearing

SEE, Justice.

This Court's opinion of January 5, 2007, is withdrawn, and the following is substituted therefor.

James E. Laster, Jr., a minor ("James"), by and through his parents and next friends, James E. Laster, Sr., and Gloria Laster, and James E. Laster, Sr., and Gloria Laster, individually, appeal a summary judgment in favor of Norfolk Southern Railway Company, Inc., and the Alabama Great Southern Railway Company. Because there are no genuine issues of material fact as to whether the railroads violated any duty to James, we affirm the summary judgment.

I. Factual and Procedural History

In August 2000, a train operated by Norfolk Southern Railway Company, Inc., and the Alabama Great Southern Railway Company (collectively "Norfolk Southern") severed the right foot of 10-year-old James, on private property owned by Norfolk Southern in Birmingham. Earlier that day, James had left his parents' house to play with nine-year-old Raymond Smith. James and Raymond decided to walk to Woodward Park. However, instead of walking on McMillion Avenue, they decided to walk along the railroad right-of-way that runs parallel to McMillion Avenue. James's parents had warned him not to walk on the right-of-way without an adult present, and James admitted that he knew that it was dangerous to take that route. However, he testified that he walked on the right-of-way because he was afraid of the fast cars, dogs, and "crazy people" on McMillion Avenue.

While James and Raymond were walking along the right-of-way, a train approached, and they moved as far from the tracks as the trees lining the tracks would allow. The train slowed and came to a stop in front of them. They turned around and began walking back toward James's house, because, James said, he was afraid that the train might start to move again. As James and Raymond passed an open hopper car, Raymond climbed the ladder to the top of the car. James had heard a whooshing sound of air from the brakes of the train, and, because he thought that the train might start moving, he called for Raymond to come down. Instead, Raymond replied, "Hold up." James decided to pull his friend down, and he stood with his right foot on the rail in order to reach Raymond. Raymond fell on top of James, and James felt a burning pain in his right foot. The train had started rolling, and it rolled over and severed James's right foot.

James, by and through his parents, and his parents individually (hereinafter referred to collectively as "Laster") sued Norfolk Southern, asserting claims of negligence and wantonness, as well as the tort of outrage. Laster argues that Norfolk Southern should have known that children would trespass on its property and that they possibly would be injured by a train. Laster points out that the stretch of track on which James was injured has one of the highest incidences of pedestrian casualties and that, in the past, Norfolk Southern had used a trespasser-abatement program in the area, visiting schools and monitoring the tracks. Laster also argues that the engineer on the train failed to blow the horn before releasing the brakes and allowing the slack between the cars to work its way out. He contends that if the engineer had blown the horn before he released the brakes, then James and Raymond would have had time to get away from the railroad car before the train cars actually began to move. He further argues that the train should not have stopped in such a densely populated area, suggesting other workable locations for a stop that would have posed less of a risk to children. Following a hearing, the trial court granted Norfolk Southern's motion for a summary judgment, issuing an order that did not include factual findings or legal analysis. Laster appeals.

Laster argues that the trial court erred in entering a summary judgment in favor of Norfolk Southern. Norfolk Southern's argument in support of its summary-judgment motion was that the only duty it owed James was a duty to exercise reasonable care after its train crew discovered the child in a position of peril from which he could not remove himself. Norfolk Southern also contended that James's and Raymond's own contributory negligence was the sole proximate cause of James's injuries. Finally, Norfolk Southern argued that even if the doctrine of attractive nuisance applied in this situation, Laster had not produced sufficient evidence indicating that the train was an attractive nuisance to survive a motion for a summary judgment.

II. Standard of Review

To grant a motion for a summary judgment, the trial court must determine that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Ex parte CSX Transp., Inc., 938 So.2d 959, 961 (Ala. 2006); see Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is 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." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); § 12-21-12(d), Ala.Code 1975.

In our review of a summary judgment, we apply the same standard as does the trial court on factual issues. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Ex parte CSX Transp., 938 So.2d at 962; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990). The trial court's ruling on questions of law carries no presumption of correctness, and this Court reviews de novo the trial court's conclusion as to the appropriate legal standard to be applied. Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).

III. Analysis
A. Duty of Care

Laster first argues that the trial court failed to apply the correct duty of care owed by the railroad. In its summary-judgment motion, Norfolk Southern argued that the conventional duty of care owed by a possessor of land to trespassers applies in this case. In general, "[a] railroad owes no duty to prevent injury to an undiscovered trespasser on its track. But when the railroad discovers the trespasser, it has the duty to exercise reasonable care to avoid injuring him or her." Beam v. Seaboard Sys. R.R., 536 So.2d 927, 928 (Ala.1988) (citation omitted). Because it is undisputed that James and Raymond were trespassers on its property, Norfolk Southern contends, it owed them a duty only to avoid wantonly or negligently injuring them after Norfolk Southern, through its agents, discovered that the boys were in a position of peril.

Although Norfolk Southern correctly states the conventional duty of care a possessor of land owes a trespasser, this Court has long recognized exceptions to this limited duty where child trespassers are involved. First, this Court has recognized the doctrine of attractive nuisance, which we have defined as "a condition which is naturally attractive to children at that place and is likely to be dangerous to such a person in the ordinary course of events, all of which is known to the defendant and not to the injured person and not obviously dangerous in itself." City of Dothan v. Gulledge, 276 Ala. 433, 435, 163 So.2d 217, 219 (1964). Next, this Court recognized a "straight-negligence" theory of liability, which "arguably developed as a reaction to the restrictive use of the attractive nuisance theory." Tolbert v. Gulsby, 333 So.2d 129, 132-33 (Ala.1976). Finally, this Court has adopted the 2 Restatement (Second) of Torts: Artificial Conditions Highly Dangerous to Trespassing Children § 339 (1965), replacing the earlier theories of attractive nuisance and straight-negligence the Court had previously applied. Tolbert, 333 So.2d at 135.

Section 339 of the Restatement (Second) of Torts, like the doctrines of attractive nuisance and straight negligence, is an exception to the conventional duty of care in the case of trespassing children, requiring property owners to exercise reasonable care in order "to give primacy to child safety rather than unrestricted property rights." Motes v. Matthews, 497 So.2d 1121, 1122 (Ala.1986). "A possessor of land owes a duty to exercise reasonable care to eliminate an artificial condition on land that poses a danger to children." Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So.2d 953, 961 n. 5 (Ala.1993) (citing Fletcher v. Hale, 548 So.2d 135 (Ala.1989), and Lyle v. Bouler, 547 So.2d 506 (Ala.1989)).

Motes held that the conventional duty of care recited in Beam is "not applicable ... except where physical harm to a trespassing child is caused by a natural condition upon the property.... In all other cases, the duty which an occupier of property owes to a trespassing child is set forth in § 339, Restatement (Second) of Torts." Motes, 497 So.2d at 1122-23.

"`Section 339 provides:

"`"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...

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