Pittman v. United Toll Systems, LLC

Decision Date21 November 2003
Citation882 So.2d 842
CourtAlabama Supreme Court

James G. Bodin and Aaron J. Luck of McPhillips, Shinbaum & Gill, L.L.P., Montgomery, for appellant.

Dorothy A. Powell and Deborah Ann Wakefield of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.

HARWOOD, Justice.

On April 11, 2002, Gayle Pittman sued United Toll Systems, LLC ("United Toll"), State Farm Mutual Automobile Insurance Company ("State Farm"), and certain fictitiously named defendants, seeking to recover damages for injuries she sustained in an automobile accident that occurred on the approach to a toll bridge operated by United Toll. The accident was caused by a chain reaction set in motion by icy conditions on the bridge. Pittman alleged negligence and wantonness against United Toll and alleged breach of contract as to both State Farm1 and United Toll. United Toll moved for a summary judgment on all pending claims against it on the sole basis of the defense of assumption of the risk. Pittman responded and the trial court, after hearing oral arguments on the motion, entered a summary judgment for United Toll on all claims without stating its rationale. Pittman filed a motion to alter, amend, or vacate the trial court's judgment; the court denied that motion. Pittman appealed.

On appeal, Pittman argues that the trial court erred in entering a summary judgment for United Toll because, she says, in response to its summary-judgment motion she presented substantial evidence creating genuine issues of material fact (1) as to whether she had actual knowledge and appreciation of the danger of ice on the bridge and (2) as to whether she voluntarily proceeded onto the approach to the bridge with an understanding that there was ice on the bridge.

This Court's review of a summary judgment is de novo.

"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,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003)]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

The accident occurred on one of the approaches to the Alabama River Parkway Toll Bridge, which is owned and operated by United Toll. The bridge, which crosses the Alabama River separating Elmore County and Montgomery County, is used frequently by motorists traveling between the two counties.

The record reveals the following facts. Pittman, a resident of Elmore County, commonly used this route to travel to and from her job in Montgomery. On December 21, 2000, the day the accident occurred, the weather was cold and there was precipitation in the from of a wintry mix of rain and ice. Although Pittman's employer told her the day before that her employer could pick her up that morning because of the wintry conditions, Pittman decided to drive herself to work. Pittman left her home early that morning because of the wintry conditions. While she was on the way to work, Pittman heard over the radio that there were a number of accidents on Interstate 65, the other route she could use, and that traffic was being directed to the bridge. In her deposition, Pittman testified that, operating with the general knowledge that "ice usually freezes on bridges first," and in order to avoid crossing multiple bridges on Interstate 65, she decided to take the toll bridge. Because of the wintry weather and the possibility of ice on the road, Pittman drove more slowly than usual and kept a lookout for other vehicles. At approximately 7:00 a.m., Pittman arrived at the north end of the bridge in her vehicle traveling south toward Montgomery. Pittman stopped at the tollbooth, paid the toll, and exited the tollbooth plaza. The bridge is constructed so that the five lanes emerging from the five tollbooths merge into a two-lane road. It is this two-lane road that constitutes the actual bridge. Before reaching the point where the five lanes merge into two, Pittman saw a black truck in the lane immediately to her right. Pittman slowed and allowed the truck to merge in front of her. The truck did not make any erratic movements as it continued toward the bridge, but once it was on the actual bridge, Pittman saw it beginning to slide into the opposing, northbound lane. Pittman stopped her vehicle in an area between the tollbooth plaza and the bridge to avoid the same fate. When she had been stopped for only a few seconds, Pittman saw a vehicle, driven by Johnetta Johnson, cross the bridge in the northbound lane and swerve to avoid the black truck. Johnson lost control of the vehicle, and it slid across the northbound lanes, crashing into Pittman's stationary vehicle, causing Pittman's air bag to inflate. Pittman alleges that, not immediately, but as a result of the accident, she suffered injuries to her arm and spine.

I. Actual Knowledge

United Toll, in its motion for a summary judgment and in its brief in support of its motion, asserted as its basis for a summary judgment only that by attempting to cross the bridge in the wintry conditions Pittman had assumed the risk of injury. Consistent with that position, United Toll never argued to the trial judge that the pleadings and the evidence did not establish a breach of some duty owed by it.

"A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Vines v. Beloit Corp., 631 So.2d 1003, 1004 (Ala.1994). A defendant relying on the affirmative defense of assumption of the risk bears the burden of presenting substantial evidence indicating that the plaintiff assumed the risk that gave rise to the injury. Superskate, Inc. v. Nolen, 641 So.2d 231, 237 (Ala.1994)."

Ex parte Barran, 730 So.2d 203, 205 (Ala.1998).

This Court has stated:

"The affirmative defense of assumption of the risk requires that the defendant prove (1) that the plaintiff had knowledge of, and an appreciation of, the danger the plaintiff faced; and (2) that the plaintiff voluntarily consented to bear the risk posed by that danger. Gulf Shores Marine Indus., Inc. v. Eastburn, 719 So.2d 238, 240 (Ala.Civ.App.1998). Assumption of the risk is described as `a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk.' Cooper v. Bishop Freeman Co., 495 So.2d 559, 563 (Ala.1986), overruled on other grounds, Burlington Northern R.R. v. Whitt, 575 So.2d 1011 (Ala.1990)."

Ex parte Potmesil, 785 So.2d 340, 343 (Ala.2000). Questions of assumption of the risk are usually within the province of the jury, but if there is no genuine issue of material fact, that is, if reasonable persons must draw the same conclusion from the facts presented, then whether the plaintiff has assumed the risk becomes a question of law for the court. See Sears v. Waste Processing Equip., Inc., 695 So.2d 51, 53 (Ala.Civ.App.1997). Otherwise stated, a summary judgment is improper if Pittman has presented any admissible evidence from which the trier of fact could conclude that she did not assume the risk of her injury.

United Toll argues that Pittman knew and appreciated the risks involved with using the bridge on December 21, 2000, citing seven factors it says prove that Pittman assumed the risk, as a matter of law:

"Prior to the accident, [Pittman] was aware of the following: (1) it was icy and cold, (2) the forecast was for winter weather, (3) she had observed the icy weather, (4) she knew to be cautious, to maintain a reasonable speed and to maintain a reasonable distance from other vehicles due to the ice; (5) she was aware that other drivers may not be operating their vehicles properly, (6) she was aware that bridges can freeze and be icy, (7) was aware she did not have to drive to work that day, could have contacted her employer to come pick her up, and could have taken a different route to get to work."

(United Toll's brief, 10-11.) This Court has explained that "[a]ssumption of the risk proceeds from the injured person's actual awareness of the risk." McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala.1991)(emphasis added). Further, "[i]n determining whether assumption of the risk has been proven, the fact-finder looks to the plaintiff's state of mind, using a subjective standard — asking whether the plaintiff knew of the risk, not whether he should have known of it. McKerley v. Etowah-DeKalb-Cherokee Mental Health Bd., Inc., 686 So.2d 1194, 1197 (Ala.Civ.App.1996)." Ex parte Potmesil, 785 So.2d at 343 (emphasis added).

The first two factors cited by United Toll do not even address the conditions on the bridge at the time of the...

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