Martin By and Through Martin v. Goodies Distribution

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM; HOOPER; ALMON
Citation695 So.2d 1175
PartiesTerrance MARTIN, By and Through his mother, Serena MARTIN v. GOODIES DISTRIBUTION. 1951262.
Decision Date30 May 1997

Page 1175

695 So.2d 1175
Terrance MARTIN, By and Through his mother, Serena MARTIN
v.
GOODIES DISTRIBUTION.
1951262.
Supreme Court of Alabama.
May 30, 1997.

Page 1176

W. Lee Gresham III of Hardin & Hawkins, Birmingham, for appellant.

Robert P. Fann and Michael B. Odom of Fann & Rea, P.C., Birmingham, for appellee.

PER CURIAM.

Terrance Martin, by and through his mother, Serena Martin, appeals from the summary judgment entered in favor of Goodies Distribution ("Goodies") in this negligence action.

Terrance, age seven, was injured when he was struck by an automobile after purchasing ice cream from Robert King, the driver of a Goodies ice cream truck. Terrance was attempting to cross the street and return home when he was struck by an automobile driven by Sherry Hope Hudson. From a position in front of the ice cream truck, Terrance stepped out into the street in order to look both ways before crossing. He had looked to his right and was struck as he turned to look to his left. Terrance suffered multiple fractures in one leg as a result of the collision.

Terrance sued Hudson and Goodies. In an amended complaint, he alleged that Goodies was liable for his injury because he claimed his injury was caused by negligence on the part of King, who Terrance says was an agent of Goodies. The trial court entered a summary judgment for Goodies and made that summary judgment final pursuant to Rule 54(b), Ala.R.Civ.P.; Terrance appealed.

Page 1177

I. Standard of Review

In order to enter a summary judgment, the trial court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence creating a genuine issue of material fact. Betts v. McDonald's Corp., 567 So.2d 1252 (Ala.1990).

II. Issues

In order to determine whether the trial court properly entered the summary judgment for Goodies, we must determine (1) whether Terrance presented substantial evidence that King, the driver of the Goodies ice cream truck who sold ice cream to Terrance, was an agent of Goodies; (2) if so, whether Terrance presented sufficient evidence to impose on Goodies a duty to assist Terrance in safely crossing the street; (3) if so, whether Terrance presented substantial evidence that Goodies breached that duty; and (4) if so, then whether the evidence before the court on the summary judgment motion showed that Terrance was contributorily negligent as a matter of law.

III. Discussion

To meet the burden of proof in a negligence action, a plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff to be injured. Ford Motor Co. v. Burdeshaw, 661 So.2d 236 (Ala.1995); Martin v. Arnold, 643 So.2d 564 (Ala.1994).

A.

Goodies argued to the trial court, and now argues to this Court, that King, the driver of the Goodies truck who sold ice cream to Terrance and who was present when Terrance was struck by the automobile, was not its agent or employee. Goodies insists that King was, instead, an independent contractor. Goodies notes that under Alabama law, a party is ordinarily not liable for the tortious acts of his independent contractor. Joseph Land & Co. v. Gresham, 603 So.2d 923 (Ala.1992); Boroughs v. Joiner, 337 So.2d 340 (Ala.1976).

In response, Terrance argues that he presented substantial evidence indicating that King was an agent of Goodies, making the issue of agency at least one of triable fact for the jury to decide. He notes that under the doctrine of respondeat superior a principal is vicariously liable for the torts of its agent if the tortious acts are committed within the line and scope of the agent's employment. Hudson v. Muller, 653 So.2d 942 (Ala.1995); Shearson Lehman Bros., Inc. v. Crisp, 646 So.2d 613 (Ala.1994).

The test for determining whether a person is an agent or employee of another, rather than an independent contractor with that other person, is whether that other person has reserved the right of control over the means and method by which the person's work will be performed, whether or not the right of control is actually exercised. Alabama Power Co. v. Beam, 472 So.2d 619 (Ala.1985). How the parties characterize the relationship is of no consequence; it is the facts of the relationship that control. Thus, we must determine whether Terrance presented substantial evidence indicating that Goodies had reserved control over the means and method by which King was to sell Goodies ice cream and other snacks.

The record indicates that Terrance specifically referred the trial court to evidence indicating the following facts, which he argued...

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20 practice notes
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • 5 Mayo 2006
    ...reserved the right of control over the means and method by which the person's work will be performed ...." Martin v. Goodies Distrib., 695 So.2d 1175, 1177 (Ala.1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-cont......
  • Ware v. Timmons, No. 1030488 (Ala. 9/22/2006), No. 1030488.
    • United States
    • Supreme Court of Alabama
    • 22 Septiembre 2006
    ...reserved the right of control over the means and method by which the person's work will be performed ...." Martin v. Goodies Distrib., 695 So. 2d 1175, 1177 (Ala. 1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-co......
  • Bain v. Colbert Cnty. Nw. Ala. Health Care Auth., 1150764
    • United States
    • Supreme Court of Alabama
    • 10 Febrero 2017
    ...of its agent if the tortious acts are committed within the line and scope of the agent's employment." Martin v. Goodies Distribution, 695 So.2d 1175, 1177 (Ala. 1997). On the other hand, "a party is ordinarily not liable for the tortious act of his independent contractor." Id."The test for ......
  • Yelder v. Credit Bureau of Montgomery, L.L.C., No. CIV. A. 00-A-270-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • 19 Enero 2001
    ...that defendant breached that duty, and that the breach proximately caused plaintiff to be injured. Martin v. Goodies Distribution, 695 So.2d 1175, 1177 (Ala.1997). Providian argues that even assuming it owes a duty of reasonable care to a person in whose name a credit card account is opened......
  • Request a trial to view additional results
20 cases
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • 5 Mayo 2006
    ...reserved the right of control over the means and method by which the person's work will be performed ...." Martin v. Goodies Distrib., 695 So.2d 1175, 1177 (Ala.1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-cont......
  • Ware v. Timmons, No. 1030488 (Ala. 9/22/2006), No. 1030488.
    • United States
    • Supreme Court of Alabama
    • 22 Septiembre 2006
    ...reserved the right of control over the means and method by which the person's work will be performed ...." Martin v. Goodies Distrib., 695 So. 2d 1175, 1177 (Ala. 1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-co......
  • Bain v. Colbert Cnty. Nw. Ala. Health Care Auth., 1150764
    • United States
    • Supreme Court of Alabama
    • 10 Febrero 2017
    ...of its agent if the tortious acts are committed within the line and scope of the agent's employment." Martin v. Goodies Distribution, 695 So.2d 1175, 1177 (Ala. 1997). On the other hand, "a party is ordinarily not liable for the tortious act of his independent contractor." Id."The test for ......
  • Yelder v. Credit Bureau of Montgomery, L.L.C., No. CIV. A. 00-A-270-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • 19 Enero 2001
    ...that defendant breached that duty, and that the breach proximately caused plaintiff to be injured. Martin v. Goodies Distribution, 695 So.2d 1175, 1177 (Ala.1997). Providian argues that even assuming it owes a duty of reasonable care to a person in whose name a credit card account is opened......
  • Request a trial to view additional results

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