Oliver v. Townsend

• Decision Date: 30 September 1988
• Citation: 534 So.2d 1038
• Parties: Robert OLIVER, administrator of the estate of Ollie Oliver, deceased v. Elton TOWNSEND, in his capacity as sheriff of Winston County, and Aetna Casualty and Surety Company. Robert OLIVER, administrator of the estate of Ollie Oliver, deceased v. T. Malcolm BLAKE. Robert OLIVER, administrator of the estate of Ollie Oliver, deceased v. WINSTON COUNTY COMMISSION, Cullman County Commission, and Wendell Roden, in his capacity as sheriff of Cullman County. 86-587, 85-1066 and 86-433.
• Court: Alabama Supreme Court

Page 1038

534 So.2d 1038

Robert OLIVER, administrator of the estate of Ollie Oliver, deceased v. Elton TOWNSEND, in his capacity as sheriff of Winston County, and Aetna Casualty and Surety Company.

Robert OLIVER, administrator of the estate of Ollie Oliver, deceased v. T. Malcolm BLAKE.

Robert OLIVER, administrator of the estate of Ollie Oliver, deceased v. WINSTON COUNTY COMMISSION, Cullman County Commission, and Wendell Roden, in his capacity as sheriff of Cullman County.

86-587, 85-1066 and 86-433.

Supreme Court of Alabama.

Sept. 30, 1988.

James C. King of Wilson & King, Jasper, and Richard S. Jaffe of Jaffe, Burton & Digiorgio, Birmingham, for appellant.

Walter Joe James, Jr., of James & Lowe, Haleyville, for appellees Elton Townsend and Aetna Cas. & Sur. Co.

Morris W. Savage of Bankhead & Savage, Jasper, for appellee T. Malcolm Blake.

Hobson Manasco, Jr., Haleyville, for appellee Winston County Com'n.

Steve A. Baccus and Larry B. Moore of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees Cullman County Com'n and Wendell Roden.

PER CURIAM.

These three cases were consolidated on appeal from the Circuit Court of Winston County. Ollie Oliver ¹ died of hepatitis. After his death, Robert Oliver, administrator of the estate of Ollie Oliver, sued Dr. T. Malcolm Blake, the county commissions of Cullman and Winston Counties, the sheriffs of Cullman and Winston Counties, and the surety company that had provided the Winston County sheriff's bond.

The facts of this case are not complicated. Ollie was in custody in Cullman County following his conviction on a burglary charge. He was transferred to the Winston County jail to face similar charges in that county. While he was in the Winston County jail, Ollie complained of an illness. Sheriff's deputies took Ollie to Dr. Blake, who diagnosed a kidney disease and prescribed medication for it. Dr. Blake saw Ollie six times, from September 9, 1980, through October 1, 1980. On his final visit to see Dr. Blake, Ollie apparently exhibited the jaundiced skin and eyes symptomatic of hepatitis. Dr. Blake recommended hospitalization. Ollie was returned to Cullman County authorities that day, and they took him to Kilby State Prison Hospital. Ollie died three days later.

Robert Oliver's suit claimed negligent or wanton treatment by Dr. Blake, negligent or wanton supervision or actions by the various law enforcement authorities involved, and a denial of Ollie's rights by all parties so as to support a claim under 42 U.S.C. § 1983. The trial judge eventually granted summary judgment as to all defendants, and Robert Oliver brought these three appeals.

I

We first turn to the plaintiff's claims against Dr. Blake. In two counts of his complaint the plaintiff alleges causes of action against Dr. Blake. First, he claims that Dr. Blake "negligently and/or wantonly treated or cared for the plaintiff's decedent." Second, he claims that Dr. Blake's actions combined and concurred with the acts of the other defendants to deprive Ollie of his civil rights under color of state law and he seeks damages under 42 U.S.C. § 1983.

Our standard of review on an appeal from summary judgment is well settled. Summary judgment is proper only if there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. If there is a scintilla of evidence supporting the position of the non-moving party, summary judgment can not be granted. Cole v. First National Bank of Tuskaloosa, 485 So.2d 717, 719 (Ala.1986). A scintilla has been defined as a "mere gleam, glimmer, spark, the least particle, the smallest trace." Howard v. Crowder, 496 So.2d 31, 32 (Ala.1986).

Dr. Blake moved for summary judgment on May 14, 1984, and filed a supporting affidavit with his motion averring generally that he had exercised the same reasonable care, skill, and diligence that doctors in the same general neighborhood and in the national medical neighborhood would have exercised under the same conditions.

On August 3, 1984, the day the summary judgment motion was set for hearing, the plaintiff filed a motion in opposition to the summary judgment and attached the affidavit of Dr. Morton Meltzer in support of his motion. The supporting affidavit was not signed by Dr. Meltzer. At the hearing, the trial court gave the parties seven days to file briefs. On Friday, August 10, 1984, Oliver's attorney filed a brief that included the following:

"As before mentioned and as mentioned at the hearing on August 3, 1984, the affidavit of Dr. Morton Meltzer is initially filed unsigned and is in transit from Dr. Meltzer's office to the Plaintiff's attorney's office. Rules 56(a) and (f) provide reasonable means of allowing the supplemental attachment of the signed affidavits or, in the alternative, to allow the plaintiffs to obtain a signed affidavit. The Plaintiff has, however, made an offer of proof to the Court that the signed affidavit is on its way. It is noted that the Plaintiff requested that the motions for summary judgment hearing be set on a date other than August 3, 1984. (see Exhibit A) The request was made, in part, to allow the signed affidavit to be received in order to be attached."

The Exhibit A mentioned is a letter to the trial judge dated July 17, 1984, requesting a September setting of the hearing, but not giving any specific reason for the request that it not be scheduled for August 3.

Also on August 10, Dr. Blake filed a motion to strike Dr. Meltzer's unsigned affidavit. The record includes a response by Oliver's attorney to this motion that is marked as having been dictated on August 11, transcribed on August 13, and filed on August 14. The response reads:

"In this morning's mail, Saturday, August 11, 1984, I received Morris Savage's documents in regard to the motion for summary judgement. On today's date, I had a conversation on the telephone with Dr. Morton Meltzer wherein he advised me that the signed affidavit together with some other documents had been mailed to my office. I checked my mail this morning, and they were not in there. I believe that those documents will appear in the mail Monday or Tuesday, and again, I am making this known to the Court as an offer of proof that the signed document is available and but for problems with the mail, would have been available at the time of the hearing on the motion for summary judgement.

"I am further making an offer of proof that Dr. Meltzer can be available for live, in-court testimony with regard to his facts and opinions which could not have been rendered until the taking of all of the depositions that have been taken in order to give him a substantial basis of fact upon which to base his opinion.

"I would further point out to the Court that at no time has Dr. T. Malcolm Blake, by and through his attorney, sent requests for production of documents or interrogatories requesting the designation of and the identity under Rule 26 of Plaintiff's expert witness in this case.

"For the foregoing reasons, as well as the reasons previously cited in the letter brief dated August 10, 1984, Plaintiff respectfully requests that the motion for summary judgement filed by Dr. T. Malcolm Blake be denied or, in the alternative, that the motion for summary judgement be continued until such time as additional testimony of Dr. Morton Meltzer could be placed into the record.

"P.S. Enclosed is a copy of the signed affidavit of Dr. Morton Meltzer which came in the Monday, August 13, 1984, mail."

A signed and notarized copy of Dr. Meltzer's affidavit follows in the record, and it is the same affidavit that was filed unsigned at the hearing.

The court made no ruling on this controversy at the time. Instead, the next entry in the record is an order signed by the trial court on August 31, 1984, stating: "By agreement of the parties the above referenced case is continued generally from the trial setting of September 10, 1984."

The next significant entry in the record is a motion for protective order served on April 30, 1986, and filed on May 2, by the Winston County Commission. The motion stated that the deposition of Dr. Meltzer had been scheduled for May 10, 1986, in Cameron, North Carolina, and requested a continuance of that deposition on the ground that the Commission's pending motion for summary judgment "is a meritorious motion and, if granted by this court, would be dispositive of this case as to the Defendant, Winston County Commission."

On April 30, 1986, the court ordered that the deposition of Dr. Meltzer "shall not be taken on Saturday, May 10, 1986, but rather shall be continued to a later date." On May 1, the trial court entered a summary judgment for the Winston County Commission, stating simply "that there is no genuine issue as to any material fact and that the Defendant, Winston County Commission, is entitled to a judgment as a matter of law."

On May 5, 1986, the court entered the following judgment in favor of Dr. Blake:

"This cause coming on to be heard on the Motion for Summary Judgment of the defendant, Dr. T. Malcolm Blake, and the Court having heard the arguments of counsel for the respective parties, reviewed the contents of the Court file and reviewed the affidavit of the defendant and the unexecuted counter-affidavit on behalf of the plaintiff, finds that the plaintiff has not presented any expert medical testimony as to what was or was not the proper practice, treatment or procedure and has not demonstrated that his case falls within the exception of the rule requiring expert medical testimony and, therefore, has failed to establish the existence of a genuine issue of material fact and that, accordingly, the Motion for Summary Judgment is due to be granted, and the defendant, Dr. T. Malcolm Blake, is entitled to a judgment as a matter of law.

"IT IS, THEREFORE, THE ORDER, JUDGMENT AND DECREE OF THE COURT That the Motion for Summary Judgment of Dr. T. Malcolm Blake be and...