Nail v. Jefferson County Truck Growers Ass'n, Inc.

• Decision Date: 02 December 1988
• Citation: 542 So.2d 1208
• Parties: William J. NAIL v. JEFFERSON COUNTY TRUCK GROWERS ASSOCIATION, INC., and Bert Swann. Wayne SOJOURNER v. JEFFERSON COUNTY TRUCK GROWERS ASSOCIATION, INC., and Bert Swann. 86-1203, 86-1340.
• Court: Alabama Supreme Court

Page 1208

542 So.2d 1208

William J. NAIL v. JEFFERSON COUNTY TRUCK GROWERS ASSOCIATION, INC., and Bert Swann.

Wayne SOJOURNER v. JEFFERSON COUNTY TRUCK GROWERS ASSOCIATION, INC., and Bert Swann.

86-1203, 86-1340.

Supreme Court of Alabama.

Dec. 2, 1988.

Rehearing Denied April 7, 1989.

Izas Bahakel, Birmingham, for appellant William J. Nail.

M. Richard Hughes, Birmingham, for appellant Wayne Sojourner.

Max Hudson of Rives & Peterson, and Bert P. Taylor of Smith & Taylor, Birmingham, for appellee.

BEATTY, Justice.

These consolidated appeals arise from actions brought by William Nail and his employee, Wayne Sojourner, against the Jefferson County Truck Growers Association ("Association"), operators of the Jefferson County Farmers' Market ("Market"), and the Market manager, Bert Swann. The actions were filed following a shootout at the Market on July 4, 1981. Nail and Sojourner appeal from a trial court order granting the defendants' judgment notwithstanding the verdict ("JNOV") as to Sojourner's claim and two of Nail's five claims and granting the defendants a new trial as to Nail's remaining claims. We affirm the trial court's order as it applies to Nail, but reverse as to Sojourner.

William Nail subleased four blocks in Shed One at the Market, from which he ran his retail produce business. Billy Joe Keith was another produce retailer who also leased blocks in Shed One. In early January 1981, the Market manager, Bert Swann, informed Nail that the Block and Bay Committee had decided to terminate his sublease. On January 15, 1981, a termination of tenancy notice was served on Nail by a deputy sheriff. Nail refused to vacate and continued to pay rent. Another notice was served, but Nail again refused to vacate. The Association then filed an unlawful detainer action against Nail in district court and obtained a judgment for damages and possession. Nail appealed to the circuit court.

The Market, meanwhile, leased the four blocks occupied by Nail to Billy Joe Keith's son. Nail remained in possession, and animosity grew in Shed One between the Nail faction and the Keith faction. The hostility culminated in the July 4, 1981, shootout.

Testimony established that on several occasions before the shootout the Keiths, Nail, and Sojourner informed Swann of the growing rancor between the Nails and the Keiths. Nail and Sojourner contend that the defendants placed an extra security guard on duty in response to their request, and that this additional guard was told to watch Shed One. On the day of the shooting, however, this extra guard replaced the gate guard, who had gone home sick. The defendants did not call in another guard to patrol the Market.

That day, July 4, a fight broke out between Keith employees and Nail employees. Each group threw fireworks onto the other's produce stands. William Nail apparently fired a weapon through the roof in an attempt to break up the fight. Billy Joe Keith, however, misinterpreted this shot. Believing he was being fired upon, Keith shot Nail. Nail returned the fire, striking Keith twice in the back and striking Billy Joe Keith's father once in the neck. Sojourner was shot in the leg. A security guard arrived two minutes after the shootout was over.

After the shootout, the Market barred Nail and Keith from their blocks in Shed One. Both refused to vacate the premises, whereupon they were arrested and jailed for criminal trespass. Both were subsequently acquitted on criminal trespass charges.

Following his acquittal, Nail filed the present action against the Association and Swann. He made five charges in his complaint: (1) abuse of legal process; (2) malicious prosecution; (3) breach of covenant of quiet and peaceable possession; (4) outrageous conduct; and (5) negligent failure to prevent "trouble" that the Market had voluntarily undertaken to avoid. Sojourner made only one claim against the Association: that it had notice of a potentially dangerous situation, assumed a duty to provide adequate security, and negligently failed to carry out that duty.

Nail's case and Sojourner's case were tried together before the same jury and ended with verdicts for both plaintiffs. The Market and Swann moved for JNOV as to each of the plaintiffs' claims. The trial court granted these motions as to Sojourner's claim and Nail's negligence and outrageous conduct claims, and ordered a new trial on Nail's three other claims. From this order, Nail and Sojourner appeal.

At issue in both Nail's appeal and Sojourner's appeal is whether the trial court properly granted JNOV as to their negligence claims. In reviewing the grant of a JNOV, this Court will affirm only if there is no conflict in the evidence for the jury to resolve, and the existence of such a conflict is determined by the scintilla rule. Gary v. Kirkland, 514 So.2d 970, 971 (Ala.1987). In Gary, this Court stated:

"[W]hen even a scintilla of evidence is present, in favor of a non-moving party, a JNOV is improper. Under Alabama law, a scintilla is described as 'a mere gleam, glimmer, a spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint.' "

514 So.2d at 972 (quoting Howard v. Crowder, 496 So.2d 31 (Ala.1986)).

Nail and Sojourner seek damages from the Association for negligently failing to prevent injuries caused by the intentional tort of a third person. In analogous cases, this Court has affirmed summary judgment for the defendant. Summary judgment has been held proper in such cases because the plaintiff typically has failed to show that the defendant had a duty to prevent the kind of injury which occurred. In Latham v. Aronov Realty Co., 435 So.2d 209 (Ala.1983), for example, the plaintiff, Woodrow Wilson Latham, sought to recover from the owners of University Mall in Tuscaloosa after he was injured during a fight in the mall parking lot. Latham charged that the owners were negligent in failing to maintain proper security on the premises, and that the negligence was "willful" and "wanton" because the defendants had knowledge of the danger to him.

Latham offered the mall manager's testimony that the defendants knew about a previous theft of property and the abduction of another mall employee from the parking lot on a previous occasion. He also produced evidence that the mall security guard had called the Tuscaloosa Police Department on prior occasions to disperse unruly crowds in the parking lot. We held that Latham's evidence did not constitute a scintilla of proof that the mall was under a duty to prevent the kind of harm that occurred.

In Latham, we quoted with approval the Tennessee Supreme Court:

" 'In our opinion the appropriate rule applicable to this case is as follows: There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises....' "

435 So.2d at 213 (quoting Cornpropst v. Sloan, 528 S.W.2d 188, 197-98 (Tenn.1975)). We thus adopted the rule that, in order for the plaintiff to recover in negligence, there must be evidence that the owner knew or had reason to know of a probability of conduct by third persons that would endanger the plaintiff.

This Court repeatedly has applied the rule from Latham in cases which deny the plaintiff a trial. In Henley v. Pizitz Realty Co., 456 So.2d 272 (Ala.1984), for example, the plaintiff sued the owner of a parking deck from which she was abducted and raped. The plaintiff sought to establish a duty on the part of the defendant to protect her from the attack, by showing that the defendant had notice of the following crimes that had occurred in the parking deck over a ten-year period: one battery upon the owner of a car; six breakings and enterings of cars; two robberies; six thefts, one theft in which the thief was shot by a customer; and the rape that was involved in Henley. The plaintiff also argued that the presence of a monitoring system in the parking deck was a recognition of the likelihood of criminal activity and the assumption of a duty to protect her from attack. We held, however, that the evidence failed to show that the defendant knew or should have known of a likelihood of conduct on the part of a third person that would endanger her, and we therefore affirmed summary judgment for the defendant.

We applied the rule from Latham most recently in Frazier v. Laborers International Union of North America, Local No. 559, 502 So.2d 743 (Ala.1987). The plaintiff in Frazier was the personal representative of a union member who was killed by a stray bullet while waiting in an employment line on the union local's premises. The plaintiff argued that the defendants possessed constructive knowledge that criminal activity that could endanger an invitee was a probability, and that they therefore had a duty to protect their invitees from criminal attack. The decedent's brother testified in an affidavit that there were prior disturbances, fights, and arguments in which guns had been drawn and that the police had been summoned to quell these disturbances. We held that "even viewing the evidence most favorably to the plaintiff, and taking her evidence as true, it, nevertheless, falls far short of establishing that the occurrence of such criminal activity was a probability." Frazier, 502 So.2d at 746. Since the plaintiff failed to produce evidence that criminal attack was a probability, we affirmed the summary judgment for the defendants.

In the present case, Nail and Sojourner have produced sufficient evidence that the Market knew or should have known there was a probability of conduct by third...