Locke v. Liquid Air Corp.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE; JOHNSON
• Citation: Locke v. Liquid Air Corp., 725 F.2d 1331 (11th Cir. 1984)
• Decision Date: 02 March 1984
• Docket Number: No. 83-7150,83-7150
• Parties: James F. LOCKE, as father of Sean Michael Locke, a deceased minor, Plaintiff-Appellant, v. LIQUID AIR CORPORATION, a Delaware corporation qualified to do business in the State of Alabama, et al., Defendants-Appellees.

Page 1331

725 F.2d 1331

James F. LOCKE, as father of Sean Michael Locke, a deceased minor, Plaintiff-Appellant, v. LIQUID AIR CORPORATION, a Delaware corporation qualified to do business in the State of Alabama, et al Defendants-Appellees.

No. 83-7150.

United States Court of Appeals Eleventh Circuit.

March 2, 1984.

Clement J. Cartron, Huntsville, Ala., for plaintiff-appellant.

Robert H. Harris, Decatur, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Defendant Liquid Air's Decatur, Alabama, plant manufactures acetylene gas. The resulting by-product of the manufacturing process, a slurry compound of water and lime, is pumped into holding ponds or sludge pits; the lime settles to the bottom, leaving a pool of water. Lime slurry, although having a higher pH content than tapwater, is not toxic or poisonous. For several years the Liquid Air plant in Decatur operated with two slurry holding ponds. A third pond, in which plaintiff James Locke's son, Sean Locke, drowned, was constructed in 1980 and 1981 to meet the requirements of the Alabama Water Improvement Commission. This pond had not been placed into operation as a lime slurry holding pond at the time of Sean Locke's death. Lime sludge, however, had previously been dumped on the site on which this pond was excavated. In April of 1981, the excavation on this site had filled with water to a depth of approximately eight feet. This water came from natural sources, either surface drainage or fluctuating waters of the nearby Tennessee river, and not from the pumping of lime slurry into the holding pond. The pond was roughly the size of a football field and had steep sides, with a drop of ten to fifteen feet from ground level to the water. Truck ramps led down to the water in several places along the edge of the pond. The water in the pond was a dark greenish blue and the bottom of the pond was not visible.

Liquid Air's Decatur, Alabama, plant is surrounded by houses, a school, and Thornton's trailer park. On March 13, 1981, the Decatur plant manager, Tom McCoy, submitted an expenditure request to Liquid Air's home office for fencing to secure the plant: "Since the construction of the sludge pits there has been no fence to completely surround our property. On several occasions I have noticed neighborhood children playing around the sludge pits." ¹ None of Liquid Air's employees had ever seen anyone swimming in the sludge pits.

On Sunday afternoon, April 26, 1981, five minor children, including Sean Locke, who lived in nearby Thornton's trailer park rode their bicycles onto the Liquid Air plant site and up to the edge of the holding pond. None of Liquid Air's employees were present at the plant on that occasion, and the children entered the plant site without Liquid Air's knowledge or permission. Sean Locke, age nine, either waded into the pond, went swimming therein, or slipped and fell from its edge into the water, became stuck in the wet, cement-like bottom of the pond, and was drowned.

Plaintiff brought this action in Alabama state court, alleging, inter alia, that defendant negligently or wantonly failed to fence or post warning signs around the holding pond, and that as a proximate result thereof Sean Locke was drowned. ² Defendant removed the case to the United States District Court for the Northern District of Alabama, and subsequently moved for summary judgment on all counts of the complaint. Defendant's motion for summary judgment was granted by the district court on the ground that the holding pond could not, as a matter of Alabama law, be characterized as a dangerous instrumentality or condition.

Plaintiff appeals the district court's grant of summary judgment on his negligence claim based on the theory of straight negligence, dangerous instrumentality, or Restatement (Second) of Torts Sec. 339 (1965) and on his claim of wanton injury. We affirm.

I. Disputed Factual Issues

Plaintiff claims that two disputed issues of fact preclude a grant of summary judgment in this case: (1) whether lime slurry was actually present in the pond in which Sean Locke drowned, and (2) whether defendant Liquid Air was aware of the danger posed by the holding pond to neighborhood children on its premises. We agree that the evidence presents genuine issues of fact on these claims. Viewing the evidence in the light most favorable to the plaintiff, the party opposing the motion for summary judgment, as we must on appeal from a grant of summary judgment, Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983), we resolve these factual issues in plaintiff's favor. We find, however, that so resolved these facts do not alter the outcome of this case under the controlling rules of Alabama law, and thus are not material factual issues precluding the grant of summary judgment.

II. The Negligence Claim

In this case it is undisputed that nine year old Sean Locke's status at the time of his death in relation to defendant Liquid Air's property was that of a trespasser. It is well settled that under Alabama law "[t]he duty owed by a landowner depends on the status of the injured party in relation to the defendant's land. If the injured party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him." Tolbert v. Gulsby, 333 So.2d 129, 131 (Ala.1976). This rule applies to adult and child trespassers alike. Id. In the case of a trespassing child, however, two exceptions to this rule have been recognized by the Alabama courts: attractive nuisance and dangerous instrumentality (also referred to by the Alabama Supreme Court as "straight negligence" ³) theories of negligence liability. Neither exception applies on the facts of this case to relieve plaintiff of the operation of the rule that a landowner is not liable for negligent injuries to a trespassing child.

The Alabama Supreme Court has consistently held that water hazards are not attractive nuisances, and thus that the doctrine of attractive nuisance ⁴ affords no exception to the general rule when a trespassing child is injured or killed in a water hazard. E.g., Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974); Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313 (1972); Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964); Luallen v. Woodstock Iron & Steel Corp., 236 Ala. 621, 184 So. 182 (1938); Cobb v. Lowe Manufacturing Co., 227 Ala. 456, 150 So. 687 (1933); Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352 (1927). Water hazardous due to a concealed or submerged condition is included within this rule that water hazards are not attractive nuisances. Glover v. City of Mobile, 417 So.2d 175 (Ala.1982) (artificial whirlpools in a river); Earnest v. Regent Pool, Inc., supra (dirty water in a swimming pool concealing slimy, deep bottom); Alabama Great Southern Railroad Co. v. Green, supra (dirty water in a reservoir concealing metal spikes); Cobb v. Lowe Manufacturing Co., supra (suction of culvert in a drainage ditch); Cox v. Alabama Water Co., supra (dirty water in a reservoir concealing slimy, sloping sides). These cases rest on the assumption that water, including water concealing a submerged hazardous condition, is an obvious and patent danger reasonably appreciated by any child of sufficient maturity to be allowed abroad without supervision.

In this case, involving the drowning death of a trespassing child in a holding pond concealing a sticky lime bottom, it is clear that under Alabama law the doctrine of attractive nuisance does not provide an exception to the rule that a landowner is not liable for negligent injuries to a trespassing child. Plaintiff does not disagree, but instead claims that dangerous instrumentality or straight negligence, theory ⁵ affords him such an exception. We hold that the Alabama law is clear that it does not.

Although dangerous instrumentality, or straight negligence, theory was arguably developed as a reaction to the restrictive use of attractive nuisance doctrine, ⁶ no distinction between attractive nuisance and dangerous instrumentality doctrine has been made by the Alabama Supreme Court in relation to water hazards. Thus, in Mayo v. Mobile Asphalt Co., 272 Ala. 442, 131 So.2d 881 (Ala.1961), the court relied on Cobb v. Lowe Manufacturing Co., supra, an attractive nuisance case, in affirming the dismissal of plaintiff's dangerous instrumentality count: "We have held that water hazards are not dangerous instrumentalities and no legal duty is imposed on the owner of the property to erect barriers, or other safeguards to protect children, not invitees, from water hazards." 131 So.2d at 884. Further, water hazards due to a concealed or hidden condition is included within this rule that water hazards are not dangerous instrumentalities. Earnest v. Regent Pool, Inc., supra (plaintiff claimed slimy, sloping sides and bottom of a swimming pool created dangerous and defective condition; court held that demurrer to the complaint was properly sustained); Alabama Great Southern Railroad Co. v. Green, supra (plaintiff claimed metal spikes concealed by dirty water in a reservoir created a dangerous condition; court held that lower court erred in overruling the demurrer to the complaint). Alabama dangerous instrumentality, or straight negligence, doctrine does not provide an exception to the rule that a landowner is not liable for negligent injuries to a trespassing child in this case. ⁷

In sum, as "Alabama recognizes no exception, in the case of a child trespasser, to the conventional rule that a landowner is not liable to a trespasser on his land, when the trespasser is injured or drowns in a water hazard," Earnest v. Regent Pool, Inc., 257 So.2d at 316, we hold that the district court properly concluded that...