SLAUGHTER EX REL. FOSTER v. Moncrief
Decision Date | 19 March 1999 |
Citation | 758 So.2d 1102 |
Parties | Christopher D. SLAUGHTER, a minor, by and through his mother Rachel M. FOSTER; and Rachel M. Foster, individually v. J.R. MONCRIEF and Susan Moncrief. |
Court | Alabama Court of Civil Appeals |
Roger D. Burton and Charles H. Boohaker of Roger D. Burton, P.C., Birmingham, for appellant.
William S. Crowson of McDaniel, Bains & Norris, P.C., Birmingham, for appellees.
Alabama Supreme Court 1981309.
Christopher Slaughter was injured when he fell from the bed of a pick-up truck owned by J.R. Moncrief and Susan Moncrief. Slaughter was four years old at the time of the accident. The truck was located on the Moncriefs' property and was parked on a steep cement driveway with the back of the bed downhill. Slaughter's mother, Rachel M. Foster, testified that her son was playing outside their apartment and walked to the Moncriefs' home to play with their two daughters, Beverly and Amanda, ages eight and seven, respectively. Slaughter, Beverly, and Amanda climbed into the back of the truck and started playing with rocks as if they were baking cakes. Neither Foster nor Mr. or Mrs. Moncrief was watching the children at the time of the accident. Neither Mr. Moncrief nor Mrs. Moncrief was aware that the children were playing in the truck, nor were they aware that Slaughter was in their yard.
Mr. Moncrief testified that he normally parked the truck facing the garage with the back of the truck downhill. He described his driveway as fairly steep. He testified that other children from time to time play in his yard with his children. He also testified that he knew that his children had played in the truck bed one time, and that that one time was under his supervision, and that the truck was parked in the same manner then as it was at the time of Slaughter's accident. He admitted that playing in the back of the truck without supervision posed a danger to children. He testified that he had no objection if neighborhood children played with his children in his yard. He also testified that young children would probably not understand the risk of falling from the back of the truck.
Mrs. Moncrief testified that Slaughter had played with her children before, but that they usually played in a shaded empty lot across the street, and rarely played in her yard. She also testified that one of her daughters and another child had played in the back of the truck once while she supervised them. She testified that she had told her children that they were not allowed to play in the back of the truck.
Slaughter, through his mother, sued the Moncriefs, alleging negligence and wantonness. The trial court entered a summary judgment for the Moncriefs. Slaughter appealed to the supreme court, which transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7(6).
A motion for summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. See West v. Founders Life Assurance Co. of Florida, 547 So.2d 870 (Ala.1989), and Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794 (Ala.1989), for a discussion of the application of the substantial-evidence rule in the summary-judgment context.
Slaughter argues that issues of fact exist and preclude a summary judgment. Slaughter premises the Moncriefs' liability on Restatement (Second) of Torts § 339 (1965), which the Supreme Court adopted in Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). The Tolbert court noted that the common-law attractive-nuisance doctrine applied only to trespassing children, but it adopted as Alabama law the principles of § 339 and applied them to children without regard to their status as licensees or as trespassers. Id. at 135. Section 339, entitled "Artificial Conditions Highly Dangerous to Trespassing Children," states:
In Motes v. Matthews, 497 So.2d 1121, 1121-22 (Ala.1986), the supreme court explained the law relating to § 339, as follows:
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...Alabama caselaw suggests that a train, whether stopped or moving, is an artificial condition upon the land. In Slaughter v. Moncrief, 758 So.2d 1102, 1106 (Ala.Civ. App.1999), the court held that a temporarily parked pickup truck on an inclined driveway was an artificial condition. Alabama ......
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