Morris v. Merritt Oil Co.

• Decision Date: 06 September 1996
• Citation: 686 So.2d 1139
• Parties: LaNita MORRIS v. MERRITT OIL COMPANY, et al. 1940228.
• Court: Alabama Supreme Court

Page 1139

686 So.2d 1139

LaNita MORRIS v. MERRITT OIL COMPANY, et al.

1940228.

Supreme Court of Alabama.

Sept. 6, 1996.

Rehearing Denied Nov. 22, 1996.

Clifford C. Sharpe, Mobile, and Robert J. Hedge of Jackson, Taylor & Martino, P.C., Mobile, for Appellant.

Willie J. Huntley, Jr., of Crosby, Saad, Bebbe & Crump, P.C., Mobile, for Merritt Oil Company.

Thomas M. Galloway, Jr. and Andrew J. Rutens of Collins, Galloway & Smith, Mobile, for Everette W. Barnette.

Edward P. Turner, Jr. and E. Tatum Turner of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for Henry McCulley.

COOK, Justice.

The plaintiff appeals from a summary judgment entered in favor of all defendants in an action in which the plaintiff claimed that the defendants negligently or wantonly failed to provide her with a safe workplace; fraudulently suppressed material facts; failed to "rescue"; and committed outrageous conduct.

Defendant Merritt Oil Company is owned by defendants Fred Walding and Rick Merritt. Defendant Everette W. Barnette is "sales coordinator" for Merritt Oil. Defendant Henry McCulley is the owner of a company that provides video/arcade game machines (including the "Klondike" machine) to businesses.

Barnette and Walding saw the Klondike machine in a convenience store in Wagarville, Alabama, and contacted McCulley about placing Klondike machines in Merritt Oil stores. McCulley placed the Klondike in Merritt Oil stores in Grove Hill, Thomasville, Creola, and Prichard in November 1992 on the basis of oral agreements between himself and Barnette (acting for Merritt Oil). Sixty percent of the profits from the games went to McCulley, and 40 percent to Merritt Oil.

The Klondike was removed from the Grove Hill store after a short time because customers were abusing the machine.

In Thomasville, the police chief told McCulley that he did not want a "gambling device" in his town, and a Thomasville police officer came to the Merritt Oil store there and ordered that the Klondike to be unplugged. The machine was unplugged for a short time; however, Walding, Merritt, and Barnette decided to plug it back in, and no further complaints about the Thomasville machine were received.

The city attorney in Creola ordered that the Klondike be removed from a Merritt Oil store in that town because of complaints that it was a "gambling device."

Despite these experiences, the defendants did not investigate the legality of the Klondike.

The plaintiff, LaNita Morris, was employed as a cashier in the Merritt Oil convenience store in Prichard. In November 1992, when McCulley placed the Klondike machine in the Prichard store, he showed Morris how the game worked and how to replace the quarters in the machine.

In December 1992, a Prichard police officer visited the Merritt Oil store and asked Morris to demonstrate to him how the machine worked. The officer returned to the police station and, after consulting the Code of Alabama, decided that the Klondike was an illegal gambling device. The officer returned to the store, confiscated the Klondike, and arrested Morris. Three charges were filed by the Prichard police regarding the Klondike: 1) operating a vending machine without a vending license; 2) conspiring to promote gambling; and 3) promoting gambling. Morris was charged only with promoting gambling; however, this charge was nol-prossed.

In May 1993, the attorney general's office issued an opinion stating that, under Alabama law, the Klondike was an illegal gambling device.

Morris sued Merritt Oil; its owners, Fred Walding and Rick Merritt; its sales coordinator, Everette W. Barnette; and Henry McCulley. Her complaint alleged negligence and wantonness in placing an illegal gambling device in the store; negligence and wantonness in failing to investigate the legality of the device before placing it in the store; failure to provide Morris a safe place to work; failure to "rescue" Morris when she was arrested, or failure to take reasonable steps to protect Morris; suppression of material facts regarding the alleged gambling device; and outrageous conduct.

Barnette and Merritt Oil cross-claimed against McCulley, alleging fraud, specifically that McCulley had fraudulently led them to believe that the machine was legal. The trial court granted the defendants' motions for summary judgment on Morris's claims against them, and granted McCulley's motion for a summary judgment on the cross-claims. Morris appealed.

Morris acknowledges that there is no Alabama precedent for her claims under the specific facts of this case. However, says Morris, pursuant to a basic and fundamental principle of law, she is due a remedy for the harm she has suffered: "[E]very person, for any injury done him, in his ... person or reputation, shall have a remedy by due process of law." Ala. Const.1901, Art. I, § 13.

The defendants point out that this constitutional provision applies only to rights that exist at the time of the injury:

"Historically, § 13 ... was viewed to apply only in instances where a litigant had a vested interest in a particular cause of action....

" 'When a duty has been breached producing a legal claim for damages, such claimant cannot be denied the benefit of his claim for the absence of a remedy. But this provision does not undertake to preserve existing duties against legislative change made before the breach occurs. There can be no claim for damages to the person or property of anyone except as it follows from the breach of a legal duty.' "

Reed v. Brunson, 527 So.2d 102, 114 (Ala.1988) (quoting Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939) (emphasis supplied)).

Morris, however, argues that she has "a vested interest in a particular cause of action" for the breach of various duties owed her by the defendants that she says proximately and foreseeably resulted in her alleged harm. Morris claims that the defendants breached duties they owed her (1) when they negligently and wantonly placed an illegal gambling device in the store where she worked; and (2) when they negligently and wantonly failed to investigate to determine whether the Klondike was a legal machine. These two allegations are the basis of Morris's contention that the defendants failed to provide her with a safe workplace. Further, says Morris, the defendants (1) suppressed a material fact--the illegality of the Klondike machine--and thereby breached their duty to inform her of a circumstance that would have affected her decision to work in the Merritt Oil store; and (2) breached their duty to "rescue" her when she was arrested.

" 'To recover in a negligence action, the plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury to the plaintiff as a result of that breach.' "

Kelly v. M. Trigg Enterprises, Inc., 605 So.2d 1185, 1190 (Ala.1992) (quoting Hall v. Thomas, 564 So.2d 936, 937 (Ala.1990)).

"Whether there is a duty is the threshold inquiry in a negligence case. 'It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty.' Morton v. Prescott 564 So.2d 913, 915 (Ala.1990). 'The trial court must determine whether a duty existed and, if so, the extent of that duty.' Perkins v. Dean, 570 So.2d 1217, 1220 (Ala.1990).... 'The ultimate test of the existence of a duty to use due care is found in the foreseeability that harm may result if care is not exercised.' Buchanan v. Merger Enterprises, Inc., 463 So.2d 121, 126 (Ala.1984.)"

Ledbetter v. United American Ins. Co., 624 So.2d 1371, 1373 (Ala.1993).

There was no evidence before the trial court to indicate that defendant Henry McCulley owed any duty to Morris. McCulley's business is to provide video/arcade games to businesses that request such products. At the request of Merritt Oil, McCulley supplied Klondike machines to Merritt Oil convenience stores, believing the Klondike to be a legal game. McCulley's only contact with Morris was in demonstrating to her how to maintain the Klondike and how to explain its operation to customers. Morris presented no evidence of a relationship between herself and McCulley that would support a finding that McCulley owed any duty to Morris. The summary judgment was correctly entered in favor of McCulley.

Procter & Gamble Co. v. Staples, 551 So.2d 949 (Ala.1989), addressed the duty to provide a safe workplace:

"Reading [Ala.Code 1975, § 25-1-1(a) and § 25-1-1(c)(1) ] together, we conclude that the duty to provide a safe workplace is imposed upon the one who has control or custody of the employment or place of employment."

551 So.2d at 951. And, in Harris v. Hand, 530 So.2d 191 (Ala.1988), this Court held:

"Section 25-1-1 imposes on employers the duty to provide reasonably safe employment. A co-employee is not liable to another employee unless he (1) voluntarily assumed or (2) was delegated his employer's duty to provide a reasonably safe workplace. Fontenot v. Bramlett, 470 So.2d 669, 672 (Ala.1985)....

" '[T]he fact that a [co-employee] is in an administrative or supervisory position alone does not make that person liable.' Clements v. Webster, 425 So.2d 1058, 1060 (Ala.1982).... As this Court stated recently:

" ' "Liability of a co-employee must be predicated upon the breach of a personal duty owed to the injured employee and not upon general administrative responsibilities of the third-party co-employee defendant. It is insufficient, for example, to merely allege and prove a generalized duty of a co-employee to provide the injured employee with a reasonably safe place to work. An employee is not liable for injuries to another employee because of the failure of the employer to furnish a safe place to work or suitable appliances or instrumentalities. 57 C.J.S. Master and Servant § 578 n. 33, and accompanying text at 350.

" ' "The burden is upon the injured party to prove with specificity the defendant's delegated or assumed duty and its breach for which recovery is...