Oden v. Pepsi Cola Bottling Co. of Decatur, Inc.

• Citation: 621 So.2d 953
• Parties: Prod.Liab.Rep. (CCH) P 13,620 Jerry ODEN, as administrator of the Estate of Mark Jeremy Oden, deceased v. PEPSI COLA BOTTLING COMPANY OF DECATUR, INC. Jerry ODEN, as administrator of the Estate of Mark Jeremy Oden, deceased v. The VENDO COMPANY. 1910502, 1910503.
• Decision Date: 28 May 1993
• Court: Supreme Court of Alabama

Page 953

621 So.2d 953

Prod.Liab.Rep. (CCH) P 13,620

Jerry ODEN, as administrator of the Estate of Mark Jeremy Oden, deceased v. PEPSI COLA BOTTLING COMPANY OF DECATUR, INC.

Jerry ODEN, as administrator of the Estate of Mark Jeremy Oden, deceased v. The VENDO COMPANY.

1910502, 1910503.

Supreme Court of Alabama.

May 28, 1993.

Lanny S. Vines and R. Bradford Wash of Emond & Vines, Birmingham, for Jerry Oden.

J. Glynn Tubb of Eyster, Key, Tubb, Weaver & Roth, Decatur, for Pepsi-Cola Bottling Co. of Decatur, Inc.

W. Stanley Rodgers and George E. Knox, Jr. of Lanier Ford Shaver & Payne P.C., Huntsville, for The Vendo Co.

HORNSBY, Chief Justice.

Jerry Oden, as administrator of the estate of his son Mark Jeremy Oden, appeals from summary judgments in favor of the defendants, Pepsi-Cola Bottling Company of Decatur, Inc. ("Pepsi"), and The Vendo Company ("Vendo"), in a products liability action alleging negligent, wanton, and defective design, labeling, and installation of a soft drink vending machine. ¹ We affirm.

On October 18, 1988, Mark died from injuries he sustained when a soft drink vending machine fell on him. The machine was located outside Jack Hopper's general merchandise store in Eva, Alabama. It is undisputed that Mark and a friend were tilting the machine forward to steal drinks from it. To accomplish the theft, Mark's friend stood between the machine and the wall of the store and tilted the machine forward and Mark stood in front of the machine to steady it. Tilting the machine in this manner dislodges drink cans, and the cans drop out of the machine. Mark and his friend had used this tilting procedure successfully that same evening to steal drinks from several other vending machines located in front of the same store. However, Mark was unable to steady this particular machine. It fell on him and crushed him.

The vending machine that is the subject of this litigation was manufactured by Vendo and was sold to Pepsi in 1984. On April 26, 1989, Oden filed this action against Vendo and Pepsi, alleging that the vending machine was defective because it did not carry a warning that the machine would fall over when tilted, did not have an anti-theft device to prevent drink cans from falling out when the machine was tilted forward, and did not have brackets to anchor the vending machine to the ground or to a permanent fixture so as to prevent tilting. Oden also alleged that Vendo and Pepsi had negligently and wantonly failed to provide the above-mentioned safety devices, with knowledge that it was possible to steal drinks from these machines by tilting them forward, and with knowledge that some individuals who were stealing drinks in this manner had been seriously injured or killed.

"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So.2d 872 (Ala.1979)); Rule 56(c) Ala.R.Civ.P. When the movant has carried the burden of making a prima facie showing, by admissible evidence, that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the party opposing the summary judgment motion has the burden of presenting substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.

Because the parties do not dispute the fact that Mark was stealing drinks from the vending machine when it fell on him, we conclude that the judgment in favor of Vendo and Pepsi was proper. In Hinkle v. Railway Express Agency, 242 Ala. 374, 6 So.2d 417 (1942), this Court stated: "A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or part on an illegal or immoral act or transaction to which he is a party." 242 Ala. at 379, 6 So.2d at 421. We interpret the rule in Hinkle to bar any action seeking damages based on injuries that were a direct result of the injured party's knowing and intentional participation in a crime involving moral turpitude.

Many other jurisdictions apply a similar rule. See Amato v. United States, 549 F.Supp. 863, 867 (D.N.J.1982), aff'd without opinion, 729 F.2d 1445 (3d Cir.1984) (bank robber, severely injured by gunfire during a bank robbery, could not recover from FBI on theory that it had acted negligently when, with prior notice of his plan to rob the bank, it failed to apprehend him for the lesser crime of conspiracy); Lord v. Fogcutter Bar, 813 P.2d 660, 662 (Alaska 1991) (intoxicated man who left a bar with a woman and was later convicted of raping her could not recover from bar and bartender on theory that the bartender was criminally negligent in continuing to serve him after he had become intoxicated); Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1239 (Alaska 1983) (man convicted of intentionally shooting a third person could not recover from manufacturer and seller of shotgun on theory that the shotgun was defectively designed); Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981) (wife convicted of murdering her husband could not recover from her psychiatrist on theory that the psychiatrist had negligently failed to prevent her from shooting her husband); Barker v. Kallash, 63 N.Y.2d 19, 24-26, 479 N.Y.S.2d 201, 203, 206, 468 N.E.2d 39, 41-42 (1984) (parents of boy injured while constructing a pipe bomb, in violation of statute, using gun powder extracted from firecrackers, could not recover from the boy who had sold him the firecrackers in violation of state law); Glazier v. Lee, 171 Mich.App. 216, 429 N.W.2d 857, 860 (1988) (man who murdered his girlfriend could not recover from his psychiatrist on theory that the psychiatrist had negligently failed to prevent him from shooting his girlfriend).

This rule promotes the desirable public policy objective of preventing those who knowingly and intentionally engage in an illegal or immoral act involving moral turpitude from imposing liability on others for the consequences of their own behavior. Even so, such a rule derives principally not from consideration for the defendant, "but from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government." Bonnier v. Chicago, B. & Q. R.R., 351 Ill.App. 34, 51, 113 N.E.2d 615, 622 (1953), rev'd on other grounds, 2 Ill.2d 606, 119 N.E.2d 254, cert. denied, 348 U.S. 830, 75 S.Ct. 53, 99 L.Ed. 655 (1954) (citations omitted).

Our interpretation of Hinkle does not foreclose a trespasser's action against a landowner who willfully or wantonly injures him, ² unless the injuries incurred are a direct result of an injured party's knowing and intentional participation in a crime of moral turpitude. That is, our application of the rule in Hinkle would bar an action by a trespasser injured while attempting to enter an occupied dwelling for the purpose of inflicting bodily injury on the occupant of the dwelling.

For the foregoing reasons, the judgments in favor of Vendo and Pepsi are due to be affirmed.

AFFIRMED.

MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.

KENNEDY and INGRAM, JJ., concur in the result in part and dissent in part, with separate opinions.

KENNEDY, Justice (concurring in the result in part; dissenting in part).

Although I disagree with its reasoning, I agree with the majority that Vendo was entitled to a judgment on Oden's negligence and wantonness claims. As to all other claims raised I respectfully dissent.

In the interest of brevity, I address my comments only to the resolution of those claims from which I dissent, the AEMLD claims against Vendo and Pepsi and the negligence and wantonness claims against Pepsi.

Mark Oden was a 14-year-old, who, along with a friend, was attempting to tilt a soft drink machine when the machine toppled and crushed Mark to death.

It is undisputed that approximately one year before Mark's death, Pepsi had been sent by Vendo, through Pepsi U.S.A., free labels warning about the risks of tilting the Vendo machines and detailed information on the installation of anchor brackets to help prevent such tilting. In the materials sent to Pepsi, Vendo had stated:

"There have been several accidents recently, where vending machines have been tipped over, resulting in serious personal injury or death. These accidents have been the result of intentional misuse and abuse of the vending machine involving the tilting, shaking, or rocking of the machine in an effort to obtain free product or the return of coins."

In addition to enclosing free warning labels, Vendo included a postage-paid postcard for ordering more free warning labels.

The warning labels stated: "DO NOT TIP OR ROCK THIS VENDING MACHINE." Below this statement was a drawing of a vending machine depicted as falling toward a human figure. The figure had lightning-like lines coming from its head, as if to indicate distress or pain. Immediately below the drawing was: "TIPPING OR ROCKING MAY CAUSE SERIOUS INJURY OR DEATH."

It is undisputed that Pepsi ignored the Vendo materials and took no action on Vendo's concerns. For example, Pepsi did not attach any of the free labels to its Vendo machines and did not seek to attach any anchor brackets to them.

Pepsi and Vendo argue that, based on public policy grounds, Oden cannot maintain this action because Mark was engaged in illegal activity at the time of his death. They cite Hinkle v. Railway Express Agency, 242 Ala. 374, 6 So.2d 417 (1942).

Hinkle states a rule that would bar a plaintiff from maintaining an action where the plaintiff's claims cannot be established unless the plaintiff relies on proof of an illegal act that the plaintiff participated in: "A person cannot maintain a cause of...