Maharry v. City of Gadsden

• Decision Date: 06 September 1991
• Citation: 587 So.2d 966
• Parties: Mary MAHARRY and Gerald Maharry v. CITY OF GADSDEN. 1900735.
• Court: Alabama Supreme Court

Page 966

587 So.2d 966

Mary MAHARRY and Gerald Maharry v. CITY OF GADSDEN.

1900735.

Supreme Court of Alabama.

Sept. 6, 1991.

Michael L. Roberts and Larry H. Keener of Floyd, Keener, Cusomano & Roberts, P.C., and John Edward Cunningham, Gadsden, for appellants.

George P. Ford of Ford & Hunter, P.C., Gadsden, for appellee.

MADDOX, Justice.

The issue presented in this case is whether the trial court erred in entering a summary judgment for the City of Gadsden based on a holding that "the city had no authority, right nor obligation to control, maintain or alter the roadway [where the accident occurred], nor [over] the design, striping or signing of same." Because we find that there was at least a "scintilla" of evidence that the city had control of the place of the accident, we hold that the trial court erred, and we reverse the judgment and remand the cause.

In the early 1980s, plans were made to connect Interstate Highway 759 (I-759) with State Highway 42 (S-42) somewhere in or around Gadsden, Alabama. The plans called for a joint effort by the state, city, and federal governments. Each was to contribute funds and consult on the project specifications. The state highway department advertised for bids and supervised the planning and actual construction of the project. Gadsden's chief engineer, Joseph Elmore, participated in the project at both of these stages. Copies of the project's blueprints were sent to Elmore, and he was involved in several inspections at differing stages of the project.

The resulting spur or connection roadway ran westwardly out of Gadsden as George Wallace Drive and connected with I-759 near a bridge over the Coosa River. This westward route sloped northward after passing the bridge. An exit to Highway 411 connected nearby. The eastbound and westbound lanes of this spur ran side-by-side; that is, there was no buffer or separating medium between the lanes.

On the evening of October 30, 1986, the Maharrys, appellants here and plaintiffs below, were travelling westward on this I- 759 spur. Mr. Maharry wanted to reach the exit to Highway 411 south and became confused as he saw the northward slope of I-759 west. According to his affidavit, he believed that the northward slope of the spur was the exit for Highway 411 north. In order to avoid exiting to Highway 411 north, he shifted one lane to the left. This lane turned out to be the eastbound lane of the I-759 spur. Immediately after changing lanes, the Maharrys collided with an eastbound vehicle.

On May 27, 1987, the Maharrys filed this action against the City of Gadsden, alleging negligent design and maintenance of a dangerous condition, and alleging negligent failure to correct, or ask for corrections on, the spur. The defendants filed a motion for summary judgment on January 10, 1989, asserting that the City had no obligation to correct the condition. The trial court agreed with the City's position and granted the City's motion for summary judgment. The Maharrys appealed.

The standard of review for a summary judgment motion has been repeatedly stated. In order to grant the motion, the court must find clearly that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Tripp v. Humana, Inc., 474 So.2d 88 (Ala.1985). The movant bears the burden initially of showing the two prongs of the standard. Id. at 90. If this burden is met, the burden shifts to the non-movant to rebut the showing. Id. Because this action was pending on June 11, 1987, the "scintilla of evidence" rule applies. Ala.Code 1975, § 12-21-12. Our review is de novo. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976), Frank Davis Buick AMC-Jeep, Inc. v. First Alabama Bank of Huntsville, 423 So.2d 855 (Ala.Civ.App.1982).

It seems from our review that the City called into question almost every element of the Maharrys' cause of action, although the trial court bottomed its ruling on lack of "control." 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. See, Rutley v. Country Skillet Poultry Co., 549 So.2d 82 (Ala.1989). Having examined the documents submitted in support of, and those in opposition to, the motion for summary...