Lemond Const. Co. v. Wheeler

Decision Date29 September 1995
Citation669 So.2d 855
CourtAlabama Supreme Court

Charles E. Sharp, Michael W. Ray and Joel A. Williams of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for Appellant.

Kenneth Ingram, Jr. and Larry W. Morris of Morris, Haynes, Ingram & Hornsby, Alexander City, Michael D. Cook, Valley, for Appellee.

William D. Coleman of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, for amicus curiae Alabama Branch, Associated General Contractors of America, Inc.


Lemond Construction Company (hereinafter referred to as "Lemond") appeals from a judgment entered on a jury verdict in a wrongful death action rendered in favor of the plaintiff, Richard Wheeler, the father of a minor child, Christopher Wheeler. We affirm.


In the early morning hours of June 6, 1992, Christopher ("Chris") Wheeler, age 13, was a passenger in an automobile driven by Jason Colley, then age 15. He was killed when Jason lost control of the vehicle and the vehicle struck a group of trees.

Chris and Jason were friends and neighbors in Lanett. On Friday, June 5, the night of Jason's 15th birthday, Chris was "sleeping over" at Jason's home. Both children were to leave the next morning with Chris's parents for a trip to Florida.

However, sometime after midnight, the boys decided to take Jason's father's car for a ride. Jason drove, and they rode without incident for about a half-mile before returning home. Sometime later, but still in the early morning of June 6, Chris wakened Jason and the two decided to take the car for another drive. While riding around town, a City of Lanett police officer noticed their vehicle. Because Jason had driven into an intersection marked "Do Not Enter," the officer suspected that the driver of the vehicle might be under the influence of alcohol and began to follow it. When Jason saw that a police patrol car was following him, he attempted to elude the patrol car, and a high speed-chase ensued. The evidence indicated that as the chase proceeded down Magnolia Road Jason's vehicle may have reached speeds as great as 70 miles per hour. However, after crossing railroad tracks at a high speed, Jason became frightened and slowed down to 35 or 40 miles per hour. The vehicle then came upon an unmarked road construction area, where Jason lost control, and the vehicle struck two large trees. Both boys were thrown from the car, and Chris suffered a fatal head injury. The area of Magnolia Road "under construction" was part of a project to upgrade the city's sewer system. Lemond was the contractor employed by the city to perform the work on that project.

In August 1992, Richard Wheeler filed a wrongful death action against the City of Lanett and Lemond. The complaint alleged that the city and its police officers had acted in a negligent or reckless and wanton manner in pursuing the vehicle driven by Jason and that the city had also negligently and/or wantonly failed to maintain Magnolia Road in a safe condition. It further alleged that Lemond had negligently and/or wantonly failed to leave the roadway in a safe condition at the end of a workday and had negligently and/or wantonly failed to place warning signs that Wheeler says were needed to alert motorists to the condition of the roadway. Wheeler alleged that the negligence and/or wantonness of the defendants combined or concurred to cause Chris's death.

Wheeler eventually settled his claim against the City of Lanett, and the city was dismissed from the action. Lemond answered the complaint by denying the allegations and asserting the defenses of assumption of the risk and contributory negligence. It also asserted that the accident was proximately caused by an intervening cause unrelated to any of its own acts or omissions. The case went to trial in November 1993.

At trial, Wheeler argued that Lemond had breached its duty of care to the public by failing to perform the construction work in accord with the plans and specifications prepared for the city by Engineering Service Associates, Inc. As a part of the project, trenches were dug across the road surface so that sewer pipe could be laid beneath the road. Once the pipe was laid in the trench, the trench was filled with gravel to within a few inches of the road surface. The last few inches of the trench were then filled to level with the road with a material known as "crusher run," a type of crushed stone, prior to later final road resurfacing. Wheeler argued that the contract required the use of temporary asphalt, rather than "crusher run," which can be dislodged from the trench by vehicular traffic. In contrast, Lemond argued that the contract called for the use of "crusher run" as the top layer of fill material. Wheeler offered evidence that the trenches in Magnolia Road were as much as eight inches deep at the time of Chris's fatal accident and that in that condition the road was not safe to drive an automobile on. Lemond offered contradictory testimony indicating that the road surface was in a safe condition when its employees left the work site at the end of the day on June 5 and at the time of the accident. Wheeler offered evidence that Lemond was required by the contract to post warning signs or other devices along the roadway to warn motorists of the construction area. Lemond argued that such signs were not required because the road was always in a normal driving condition when it was opened to regular traffic.

Lemond moved for a directed verdict in its favor at the close of Wheeler's case-in-chief, asserting that Jason's actions as an underage, unlicensed driver fleeing from police were the intervening proximate cause of Chris's death, and that the death was not proximately caused by any condition of the roadway. The trial court denied the motion. Lemond renewed its motion for a directed verdict at the close of all evidence, but the court again denied it. At that time, Wheeler moved for a directed verdict on Lemond's assumption-of-the-risk defense and its contributory negligence defense, arguing that, as a 13-year-old, Chris could not have "assumed the risk" and could not have been contributorily negligent. The trial court granted the motion. The case was then submitted to the jury, which returned a verdict in favor of Wheeler and set punitive damages against Lemond at $3,500,000. Lemond moved for a J.N.O.V. or, in the alternative, a new trial or a remittitur of damages. After a hearing on the issues raised by Lemond, the trial court denied the motion. Lemond appealed.


Lemond first argues that the trial court committed reversible error by allowing Wheeler's expert on construction contracts to testify as to whether Lemond had complied with the technical specifications that were a part of the contract between the City of Lanett and Lemond. Lemond argues that it was error to allow an expert offered by a person not a party to a contract to testify as to the meaning of the contract. In response, Wheeler contends that because the trial court ruled, as a matter of law, that the contract was ambiguous, his expert's testimony was admissible to assist the jury in determining the meaning of the contract.

This case is not the usual case involving the meaning of a contract where the two parties to the contract dispute its meaning and are on opposite sides of a lawsuit. Here, the dispute is between Lemond, a party to the contract, and Wheeler, who is not a party to the contract. The meaning of the contract was at issue in this case because the contract requirements set forth in the project specifications regarding preparation of the road surface for the safe passage of vehicular traffic is one means by which Lemond's duty to the public could be measured. The trial court concluded, as a matter of law, that the contract was ambiguous as to whether the specifications required "crusher run" or temporary asphalt to cap the sewer pipe trenches until the road was resurfaced. Once a trial court determines that a contract is ambiguous or that its terms are of doubtful meaning, the question of the true meaning of the contract becomes a question for the jury to decide. Dill v. Blakeney, 568 So.2d 774 (Ala.1990); Rivers v. Oakwood College, 442 So.2d 74 (Ala.1983); Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980).

The trial court determined that expert testimony would assist the jury in interpreting the technical language in the engineering specifications. Expert testimony is admissible where technical trade terms and expressions in a contract are peculiar to a specialized discipline and are not of common knowledge. Flagg-Utica Corp. v. City of Florence, 275 Ala. 475, 156 So.2d 338 (1963). See Miles College, supra; W.L. Shepherd Lumber Co. v. Atlantic Coast Line R.R., 216 Ala. 89, 112 So. 323 (1927); Richard P. Baer & Co. v. Mobile Cooperage & Box Mfg. Co., 159 Ala. 491, 49 So. 92 (1909); McCombs v. Stephenson, 154 Ala. 109, 44 So. 867 (1907). Furthermore, "[a] ruling on the admissibility of expert testimony is largely within the discretion of the trial court and will not be overturned unless that has been an abuse of discretion." Tidwell v. Upjohn Co., 626 So.2d 1297, 1300 (Ala.1993). Accordingly, the trial court did not err in admitting the testimony of Wheeler's expert witness.


Lemond next argues that the trial court committed reversible error by directing a verdict for Wheeler on the issues of assumption of risk and contributory negligence. It is well settled under Alabama law that a child between the ages of 7 and 14 is prima facie presumed incapable of contributory negligence; however, that presumption may be rebutted by evidence that the child possesses the discretion, intelligence, and sensitivity to danger that an ordinary 14-year-old child possesses. Savage Industries, Inc. v. Duke, 598 So.2d 856 (Ala.1992); Works v. Allstate Indemnity Co., 594 So.2d 60 (Ala.1992); Birmingham Ry. Light & Power Co. v. Jones, 146...

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