Perry By and Through Perry v. Mobile County

• Decision Date: 23 September 1988
• Docket Number: No. 87-77,87-77
• Citation: 533 So.2d 602
• Parties: Michael PERRY, a minor, By and Through his mother and next friend, Brenda PERRY; and Brenda Perry, individually v. MOBILE COUNTY, et al.
• Court: Alabama Supreme Court

Page 602

533 So.2d 602

Michael PERRY, a minor, By and Through his mother and next friend, Brenda PERRY; and Brenda Perry, individually v. MOBILE COUNTY, et al.

No. 87-77.

Supreme Court of Alabama.

Sept. 23, 1988.

Patrick M. Sigler and Stephen C. Moore, Mobile, for appellants.

Lawrence M. Wettermark of Collins, Galloway & Smith, Mobile, for appellees Mobile County, Ala., and Mobile County Com'n.

Warren C. Herlong, Jr., and Sandy J. Grisham of Coale, Helmsing, Lyons & Sims, Mobile, for appellee M.L. Risher, individually and as Div. Engineer for the State of Ala. Highway Dept.

ON REHEARING EX MERO MOTU

SHORES, Justice.

On rehearing ex mero motu, the original opinion in this case is withdrawn and the following is substituted therefor:

This is an appeal from a summary judgment entered in favor of the defendants, Mobile County, the Mobile County Commission, and M.L. Risher, and made final pursuant to Rule 54(b), Ala.R.Civ.P. We affirm.

Michael Perry was injured in an automobile accident that occurred in the intersection of Hamilton Boulevard and Rangeline Road in Mobile County. The complaint alleged that Mobile County and the Mobile County Commission (hereinafter, both Mobile County and the Mobile County Commission will be referred to as "Mobile County") had negligently or wantonly designed, constructed, and maintained the intersection and had negligently continued to use at that intersection a flashing signal light that showed amber on one side and red on the other side. The plaintiffs alleged that, instead of this light, Mobile County should have used at this intersection a regular traffic signal with red, amber, and green lights on each side. The complaint was amended to allege negligent and wanton failure to warn of a dangerous roadway condition.

Mobile County's motion for summary judgment was granted by the trial court, but that judgment was reversed by this Court on a prior appeal because Mobile County had not complied with some of the plaintiffs' discovery requests. Perry v. Mobile County, 497 So.2d 829 (Ala.1986). On remand, after discovery had been completed, the trial court granted Mobile County's second motion for summary judgment.

The evidence in the record conclusively establishes that the intersection of Hamilton Boulevard and Rangeline Road is under the exclusive control of the State of Alabama. The State owns all of the right-of-way surrounding the intersection, and the intersection was entirely designed, constructed, and maintained by the State. Yet, the appellants, relying on Jefferson County v. Sulzby, 468 So.2d 112, 114 (Ala.1985), insist that Mobile County had a duty to warn of a dangerous condition of a roadway and a duty to keep the roadways under its control in a safe condition. The holding of Sulzby is not applicable to the facts in the instant case. It is undisputed that the intersection involved in this case, unlike that involved in Sulzby, was not under the control of the county. Consequently, Mobile County owed no duty to maintain the intersection in a safe condition, or to warn of the intersection's allegedly dangerous condition. Therefore, summary judgment was properly entered in favor of Mobile County.

The complaint was amended to add M.L. Risher as a defendant. Risher was employed by the State of Alabama Highway Department as a division engineer at the time of the accident, and the amended complaint alleged that Risher was negligent or wanton in designing and/or maintaining the intersection. It further alleged that Risher had negligently or wantonly failed to alter, modify, or change the intersection prior to the accident.

The evidence in the record is uncontroverted that Risher had no involvement with the design of the intersection; therefore, the only issue is whether Risher may be held liable for the alleged failure to alter, modify, or change the intersection prior to the accident.

After a party moving for summary judgment has made a prima facie showing that there is no genuine issue of material fact, the burden moves to the non-moving party to show by admissible evidence the existence of a genuine issue of material fact. Ala.R.Civ.P. 56(e); Horner v. First National Bank of Mobile, 473 So.2d 1025 (Ala.1985). If an affidavit is filed in opposition to a motion for summary judgment, the court should not consider it unless it is based on personal knowledge, Welch v. Houston County Hospital Board, 502 So.2d 340 (Ala.1987). The affidavit may not consist of bare conclusory statements, but must be based on facts, Nowell v. Mobile County Health Dept., 501 So.2d 468 (Ala.Civ.App.1986). An additional requirement is that the affidavit contain information that allows more than speculative or conjectural inferences, Thompson v. Lee, 439 So.2d 113 (Ala.1983). Where documents have been submitted, as exhibits to affidavits or otherwise, they must be admissible in evidence either as sworn or certified copies, Ala.R.Civ.P. 56(e).

In opposition to Risher's motion for summary judgment, the plaintiffs filed a motion and an affidavit that contains speculative and conclusory statements. The affidavit is not based on the personal knowledge of the affiant. It is accompanied by various documents, including computer printouts of accident reports, individual accident reports, and letters. None of these documents was certified or otherwise authenticated so as to be made admissible into evidence; therefore, they constitute inadmissible hearsay. Additionally, the affidavit referred to an accident report that is not in the record and also referred to the depositions of Michael Perry, Robert Williams, and Christopher Perry, but those depositions are not contained in the record. Under these facts, it would have been appropriate for the trial court to disregard the affidavit. However, we cannot be sure that it did, since no ruling on the matter was invoked.

The issue of admissibility of the evidence in opposition to the motion for summary judgment was raised by Risher for the first time on appeal. In response to his contention on this issue, we adopt the following language from C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983):

"A party must move to strike an affidavit that violates Rule 56(e); if he fails to do so, he will waive his objection and, in the absence of a 'gross miscarriage of justice,' the court may consider the defective affidavit. This principle applies to affidavits containing evidence that would not be admissible at trial as well as to affidavits that are defective in form. The motion to strike must be timely, [and] the decision on that question is left to the discretion of the trial judge. It is clear that a motion to strike presented for the first time on appeal comes too late.

"The court will disregard only the inadmissible portion of the challenged affidavit and consider the rest of it.... [A] motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be...