McGinnis v. Jim Walter Homes, Inc.

• Decision Date: 23 March 2001
• Citation: 800 So.2d 140
• Parties: Cornelius McGINNIS et al. v. JIM WALTER HOMES, INC., et al.
• Court: Alabama Supreme Court

800 So.2d 140

Cornelius McGINNIS et al. v. JIM WALTER HOMES, INC., et al.

1000209.

Supreme Court of Alabama.

March 23, 2001.

Rehearing Denied May 18, 2001.

M. Clay Alspaugh and Nicole L. Judge of Smith & Alspaugh, P.C., Birmingham; and J. Michael Campbell of Campbell & Springer, Birmingham, for appellants.

George W. Walker III and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellee Jim Walter Homes, Inc.

J. Russell Campbell, Spencer M. Taylor, and Allen M. Estes of Balch & Bingham, L.L.P., Birmingham, for appellee Alabama Power Company.

John W. Clark, Jr., and Freddie N. Harrington, Jr., of Clark & Scott, P.C., Birmingham, for appellee Holsombeck Electric Company, Inc.

HOUSTON, Justice.

Cornelius McGinnis and his wife Teresa McGinnis appeal from summary judgments in favor of Jim Walter Homes, Inc. ("Jim Walter"), Holsombeck Electric Company, Inc. ("Holsombeck"), and Alabama Power Company ("Alabama Power").

In 1990 the McGinnises entered into a contract with Jim Walter for Jim Walter to construct a substantially complete residence for them in or near Harpersville. Jim Walter contracted with Holsombeck for Holsombeck to install the electrical system in the McGinnis home. Jim Walter released the substantially completed residence to the McGinnises before July 18, 1991; that was the approximate date on which Alabama Power began supplying electricity to the McGinnis home.

Shortly after the McGinnises moved into their home in 1991, they began experiencing problems with the electrical system (light bulbs would blink and burn out; the electric heat pump/air conditioning unit would not cool; etc.). The McGinnises testified that they telephoned Jim Walter to complain about the electrical problems and that on two occasions Jim Walter sent someone to the McGinnis home to check out these problems. The McGinnises testified that they did not notify either Holsombeck or Alabama Power about these electrical problems.

At approximately 11:00 a.m. on April 12, 1996, a fire partially destroyed the McGinnis home, and the McGinnises' two-year-old daughter Takresha died as a result of the fire. The fire substantially destroyed the front middle bedroom and portions of the house immediately overhead in the attic. Takresha died of smoke inhalation.

On April 10, 1998, the McGinnises sued Jim Walter, Holsombeck, and Alabama Power. In one count, they alleged that the three defendants had negligently caused the fire that led to their daughter's death. In another count, they alleged that Alabama Power had caused the fire and the death by negligent or wanton construction, inspection, or repair in regard to the house.¹

Jim Walter, Holsombeck, and Alabama Power each moved for a summary judgment, and the court entered a summary judgment for of each defendant. This appeal followed.

The State fire marshal's investigation concluded that the fire originated in the front middle bedroom and that the most probable cause of the fire was "children playing with matches." The McGinnises contend that the fire originated in the attic of the house above the front middle bedroom and was caused by a failure in the electrical wiring system and that actions and/or inactions on the part of each defendant contributed to cause the fire.

I. The Claims Against Alabama Power

The following facts are undisputed: Alabama Power did not construct, inspect, or make repairs to the McGinnis home; Alabama Power had no duty to construct, inspect, or make repairs to the McGinnis home; Alabama Power was never made aware of any electrical problems in the McGinnis home; and Alabama Power's only action regarding the home was to connect electrical power to it in 1991.

In Chambers v. Buettner, 295 Ala. 8, 11, 321 So.2d 650, 652 (1975), this Court stated:

"The duty of a supplier of electricity to premises wholly owned and controlled by the recipient of service is well settled. A supplier who merely furnishes electricity is not responsible for defects in the system to which electricity is supplied. It is under no duty to inspect the system to which electricity is supplied. The duty of the supplier ends when the connection is properly made, when the supplier has no control over the premises, and the supplier is without actual knowledge of any defective or dangerous condition."

Thus, we see no basis for liability on the part of Alabama Power for negligent or wanton construction, inspection, or repair.

The McGinnises also claim Alabama Power should be held liable for the fire and death because, they say, Alabama Power violated a Shelby County building ordinance² when it connected electric-utility service to the McGinnis house in 1991; at that time a final inspection of the electrical system had not been conducted by the Shelby County building inspectors.³ The McGinnises say that this action on the part of Alabama Power constituted negligence.

Houses built in the Harpersville city limits are not subject to the Shelby County building ordinance. Alabama Power argues that it was unaware that the McGinnis house was subject to the ordinance. Alabama Power maintains that it relies upon its customers to tell it where their residences are located and that all information provided to Alabama Power concerning this residence stated that it was in Harpersville. Cornelius McGinnis filed an affidavit stating that this house was located outside the Harpersville city limits, but the affidavit does not state that the McGinnises made Alabama Power aware of this fact. Alabama Power also argues that the McGinnises failed to produce substantial evidence indicating that Alabama Power's act of connecting electrical power to the McGinnis home in 1991 was a proximate cause of the fire and the resulting death of their daughter in 1996. "Evidence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence." Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000). Alabama Power points out that the McGinnises are supporting their claim by applying an inference upon an inference—(1) that defectively or improperly installed wiring caused the fire, (2) that this defective condition was discoverable, (3) that the discoverable defect would, in fact, have been discovered by the Shelby County building inspectors,⁴ and (4) that the Shelby County building inspectors would have required that the defect be corrected before they approved the home for electrical service. We agree that the McGinnises failed to produce substantial evidence indicating that Alabama Power's act of connecting power to the McGinnis home in 1991 was a proximate cause of the fire and resulting death of their daughter in 1996. Brushwitz, 757 So.2d at 432. The trial court correctly entered the summary judgment in favor of Alabama Power. That summary judgment is affirmed.

II. The Claims Against Jim Walter

The trial court entered a summary judgment for Jim Walter on July 10, 2000. On our review of that summary judgment, we are limited to considering the evidence that was before the trial court when it granted Jim Walter's motion for summary judgment. Turner v. Systems Fuel, Inc., 475 So.2d 539, 541-42 (Ala.1985).⁵ We review that evidence to determine whether it created a genuine issue of material fact, and, if it does not, whether the movant, Jim Walter, was entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. Jim Walter, as the moving party, had the burden of establishing that there was no genuine issue of material fact. Lott v. Tarver, 741 So.2d 394, 396 (Ala.1999). In conducting this review, we consider all of the relevant undisputed evidence and we view relevant disputed evidence in a light most favorable to the nonmovants, the McGinnises; and we resolve all reasonable doubts against the movant, Jim Walter. Wally's, Inc. v. Intergraph Corp., 727 So.2d 34, 37 (Ala.1998).

In their brief, the McGinnises rely on Article 13A, Title 6, Ala.Code 1975, §§ 6-5-220 to 6-5-228, "Actions Against Architects, Contractors, Engineers." They contend that they contracted with Jim Walter to build their home and therefore that Jim Walter is liable under these statutes for the damage to their home and the death of their daughter, both of which resulted from a fire caused by the defective condition of the electrical wiring installed in their home during construction. We cannot, however, consider arguments raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Therefore, we cannot consider whether Jim Walter could be liable for Takresha's death under Ala.Code 1975, §§ 6-5-220 to 6-5-228, because this argument was not presented to the trial court.⁶

In their response in opposition to Jim Walter's summary-judgment motion, the McGinnises argued that Jim Walter (1) was vicariously liable for the acts of omissions of Holsombeck, who they say acted as Jim Walter's agent, servant, or employee; (2) was directly liable, based upon what the McGinnises say was a voluntary undertaking to inspect and repair their home (see Cochran v. Keeton, 47 Ala.App. 194, 252 So.2d 307 (Civ.1970)

); and (3) was directly liable because Holsombeck was not competent to install the electrical system in the McGinnis house.

A general contractor is not liable for the alleged negligence of an independent contractor. Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651, 655 (Ala.1976). Whether a relationship is one involving an independent contractor or is a master-servant relationship depends on whether the entity for which the work is being performed has reserved the right of control over the means by which the work is done. Pugh v. Butler Tel. Co., 512 So.2d 1317 (Ala.1987). In the absence of a nondelegable duty, the mere retention of the right to supervise or inspect the work of one who would otherwise be an independent contractor, as the work progresses to ensure compliance with the terms of an agreement, does not operate to...