Terry v. NTN-Bower Corp., NTN-BOWER

Decision Date04 December 1992
Docket NumberNTN-BOWER
Citation615 So.2d 629
PartiesWilma TERRY v.CORPORATION. 2910671.
CourtAlabama Court of Civil Appeals

K. Stephen Jackson, Birmingham, for appellant.

C. Ellis Brazeal III of Walston, Stabler, Wells, Anderson & Bains, Birmingham, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

Wilma Terry, administratrix of the estate of Wade Terry, brought this action to recover benefits from NTN-Bower Corporation under the Workmen's Compensation Act of Alabama. NTN-Bower answered the complaint and subsequently filed a motion for summary judgment. The trial court granted NTN-Bower's motion. Terry appeals.

Terry asserts that the trial court erred in granting NTN-Bower's motion for summary judgment.

Summary judgment is proper only where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So.2d 732 (Ala.1989). The moving party bears the burden of proof. Where the nonmovant produces substantial evidence to support its position, summary judgment cannot be granted. Economy Fire & Cas. Co. v. Goar, 551 So.2d 957 (Ala.1989). Substantial evidence is "evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact to be proven." Economy Fire & Cas. Co.

The undisputed facts are as follows. Wade Terry was an employee of NTN-Bower and had been so employed for approximately 15 years. Terry worked the late shift, from 11:00 p.m. until 7:00 a.m. On January 24, 1990, Terry parked his vehicle in the parking lot adjacent to Hamilton Bar-B-Que, directly across Highway 78 from the NTN-Bower plant. Highway 78 is a four-lane public highway on which the speed limit immediately in front of the plant is 45 miles per hour. While crossing Highway 78, at approximately 10:45 p.m., Terry was struck by a vehicle and killed.

NTN-Bower's motion for summary judgment was based on the premise that Terry's accident did not arise out of or in the course of his employment with NTN-Bower.

By affidavit, in support of summary judgment, Paul Miller, NTN-Bower's human resource supervisor, explained that NTN-Bower has a designated employee parking lot on the same side of the highway as its plant, immediately adjacent to the plant, where employees are encouraged to park. The parking lot is manned by a guard 24 hours a day. NTN-Bower has no lease or other arrangement with the owner of Hamilton Bar-B-Que to allow NTN-Bower employees to park there. NTN-Bower owns no property on the side of the highway where Hamilton Bar-B-Que is located. At the time of his death, Terry was not performing any business or work on behalf of NTN-Bower.

In opposition to NTN-Bower's motion, Terry submitted the affidavit of Walt Johnson, the former owner of the property where Hamilton Bar-B-Que is located. Johnson stated that

"employees from NTN-Bower, including Wade Terry, regularly parked in the parking areas at Hamilton Bar-B-Que and the parking areas adjacent thereto. These people would cross Highway 78 and use the walkway that extended from Highway 78 to the front door of the plant to enter NTN-Bower. The walkway was removed immediately after Mr. Terry was killed."

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5 cases
  • Hospice Family Care v. Allen
    • United States
    • Alabama Court of Civil Appeals
    • June 10, 2016
    ...Tool Co., 652 So.2d 263 (Ala.Civ.App.1994) ; Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ.App.1993) ; Terry v. NTN–Bower Corp., 615 So.2d 629 (Ala.Civ.App.1992) ; Winn–Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987).’"Ex parte Shelby County Health Care Auth., 850......
  • EX PARTE SHELBY CTY. HEALTH CARE AUTHORITY
    • United States
    • Alabama Supreme Court
    • August 30, 2002
    ...Tool Co., 652 So.2d 263 (Ala. Civ.App.1994); Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ.App.1993); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App.1992); Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ. App.1987). Alabama courts have carved out only a few excep......
  • McClelland v. Simon-Williamson Clinic, P.C.
    • United States
    • Alabama Court of Civil Appeals
    • November 4, 2005
    ...work is generally not covered under the [Workers' Compensation] Act [§ 25-5-1 et seq., Ala.Code 1975]. See e.g., Terry v. NTN-Bower Corp., 615 So.2d 629, 631 (Ala.Civ.App. 1992). Every rule has its exceptions, as the saying goes, so the focus is whether any such exception "There are cases t......
  • Britt v. Shelby County Health Care Auth.
    • United States
    • Alabama Court of Civil Appeals
    • April 13, 2001
    ...still `on duty' and acting in furtherance of the employer's interest, also known as the `dual purpose doctrine'); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App. 1992) (employer may be liable if the employer has control over the instrumentality and the accident occurs in an area adjac......
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