Marquis v. Marquis
| Decision Date | 13 December 1985 |
| Citation | 480 So.2d 1213 |
| Parties | Herman MARQUIS v. E.H. MARQUIS. 84-374. |
| Court | Alabama Supreme Court |
William P. Gray, Jr. and Thomas A. Nettles, IV, of Gray, Espy & Nettles, Tuscaloosa, for appellant.
Olin Zeanah and Steve Henry of Zeanah & Hust, Tuscaloosa, for appellee.
This is an appeal from a judgment following a directed verdict in favor of defendant, E.H. Marquis. Plaintiff-appellant, Herman Marquis, contends that the trial court erred by directing a verdict for the defendant on plaintiff's negligence and wantonness counts. We agree and reverse the grant of directed verdict as to both counts of plaintiff's complaint.
Plaintiff and defendant are brothers. In January 1983, plaintiff, at the request of the defendant, assisted defendant in cutting firewood on defendant's land. Defendant cut a large tree with his chainsaw, but the tree became lodged on top of a smaller tree, so that it would not fall completely to the ground. The defendant's chainsaw became stuck as he attempted to saw the smaller tree, and the defendant requested that the plaintiff come to his aid. The plaintiff was asked by the defendant to saw the small tree, which was now bent as a result of the force exerted by the larger tree upon it, at a point above the place where the defendant's saw was bound. The plaintiff cut the tree as requested by the defendant, but before the plaintiff was able to cut completely through the tree the trunk split, striking the plaintiff and severely injuring his leg.
The plaintiff filed an action against the defendant, alleging that the defendant negligently or wantonly caused the tree to fall on the plaintiff. At the end of the plaintiff's case, the trial court directed a verdict against the plaintiff on both counts of plaintiff's complaint, finding that due to the openness and obviousness of the dangerous condition which caused the plaintiff's injuries, there was no breach of duty by the defendant. The plaintiff's motion for judgment notwithstanding the verdict or new trial was denied.
Although this case presents a close question, we think the trial court erred by directing a verdict for the defendant on the negligence and wantonness counts under the facts of the instant case.
At the outset, we note that our standard of review is the same standard as that applied by the trial court in passing on the motion for directed verdict. As stated in Kingsberry Homes Corporation v. Ralston, 285 Ala. 600 at 605, 235 So.2d 371 at 375 (1970):
We have held in numerous civil cases that "the question must go to the jury if the evidence furnishes a scintilla in support of [plaintiff's] theory"; and in considering the propriety of refusing the affirmative charge for defendant, we will review those tendencies of the evidence most favorable to plaintiff, regardless of any view we might have as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not inferences which we might think to be the more probable. Orange v. Shannon, 284 Ala. 202, 224 So.2d 236 (1969).
More recently, this Court said:
In cases involving questions of actionable negligence, this standard has often been translated to read as follows:
[W]here from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions as to negligence or contributory negligence, such questions are for the jury, and it is only when the facts are such that all reasonable men must draw the same conclusion that negligence or contributory negligence is ever a question of law for the Court.
Quillen v. Quillen, 388 So.2d 985, 987-88 (Ala.1980) (citations omitted). We opine that the evidence at the trial of the instant case was such that reasonable persons could draw different conclusions as to the defendant's negligence or plaintiff's contributory negligence and, therefore, that the question of open and obvious danger was one for the jury. See Ex parte Bennett, 426 So.2d 832 (Ala.1983).
One essential element to be proven by a plaintiff in every negligence action is the breach of a duty owed by the defendant to the plaintiff. Bryant v. Morley, 406 So.2d 394 (Ala.1981). We find, as did the trial court, that the plaintiff had invitee status while on the defendant's property the day of the incident. The record reflects that the plaintiff was on the defendant's land at the express invitation of the defendant and that the plaintiff's presence was of material commercial benefit to the defendant in his business endeavor of selling firewood. This is sufficient to give rise to invitee status. See Osborn v. Brown, 361 So.2d 82 (Ala.1978); Nelson v. Gatlin, 288 Ala. 151, 258 So.2d 730 (1972). As an invitee, the plaintiff was owed a duty by the landowner-defendant to use reasonable care to keep the premises in a reasonably safe condition for the contemplated uses within the scope of the invitation and to warn of dangers of which he knew or should have known and which were not known to the plaintiff. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937).
In Lamson & Sessions, supra, the Court recognized, however, that this duty is limited:
The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.
Accord, McRee v. Woodward Iron Co., 279 Ala. 88, 182 So.2d 209 (1966); Claybrooke v. Bently, 260 Ala. 678, 72 So.2d 412 (1954).
Lamson & Sessions Bolt Co., 234 Ala. at 63, 173 So. at 391. Whether we speak in terms of the duty owed by the defendant or of contributory negligence of the plaintiff, the plaintiff cannot recover for negligence or wantonness if the plaintiff's injury was caused by an open and obvious danger of which the plaintiff knew, or should have been aware. However, not only must the plaintiff have knowledge of the dangerous condition, but the plaintiff also must have a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred. Owens v. National Security of Alabama, Inc., 454 So.2d 1387 (Ala.1984); Furgerson v. Dresser...
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...must have a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred.Marquis v. Marquis, 480 So.2d 1213, 1215 (Ala.1985) Although the question of the plaintiff's appreciation of the danger is "almost always" a jury question, there are instances......
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