Thomas v. Earnest

• Decision Date: 06 May 2011
• Docket Number: 1091428.
• Citation: 72 So.3d 580
• Parties: Larry THOMASv.Charles EARNEST and Zondra T. Hutto, administrator of the estate of James E. Kimble, deceased.
• Court: Alabama Supreme Court

72 So.3d 580

Larry THOMAS

v.Charles EARNEST and Zondra T. Hutto, administrator of the estate of James E. Kimble, deceased.

1091428.

Supreme Court of Alabama.

March 4, 2011.Rehearing Denied May 6, 2011.

W. Whitney Seals of Pate & Cochrun, L.L.P., Birmingham, for appellant.V. Edward Freeman II of Stone, Patton, Kierce & Freeman, Bessemer, for appellee Charles Earnest.Robert R. Kracke of Kracke & Thompson, LLP, Birmingham, for appellee Zondra T. Hutto, as administrator of the estate of James E. Kimble, deceased.SHAW, Justice.

Larry Thomas, the plaintiff below, appeals from a summary judgment in favor of Charles Earnest and Zondra T. Hutto, administrator of the estate of James E. Kimble, deceased, the defendants below, on Thomas's claims alleging personal injury arising out of a motor-vehicle accident that occurred in Bessemer. For the reasons discussed below, we reverse and remand.

Facts and Procedural History

On the afternoon of June 22, 2004, Thomas was a passenger in the rear seat of a motor vehicle driven by 16–year–old Jeromese Cook. Cook's mother was riding in the front passenger seat.¹ The vehicle was proceeding on Ray Street in Bessemer; as the vehicle approached the intersection of Ray Street and Fairfax Avenue, Cook stopped at a stop sign. As she was attempting to proceed onto Fairfax Avenue, Cook's vehicle was struck by a motor vehicle operated by James E. Kimble.

Earnest is the owner of real property located at the corner of Fairfax Avenue and Ray Street. Before the accident, Earnest had entered into a contractual agreement with Darrell Watson pursuant to which Watson had agreed to cut the grass on Earnest's property. However, it is alleged that, at the time of the accident, vegetation and grass on the lot was tall enough to restrict the view of drivers proceeding into the intersection at Ray Street and Fairfax Avenue.

On November 17, 2005, Thomas filed the underlying complaint asserting claims of negligence and wantonness against Hutto, as administrator of Kimble's estate; ² Earnest; Watson; and various fictitiously named defendants. Specifically, as to Earnest, Thomas's complaint alleged that Earnest “was negligent in his maintenance of the lot” and that drivers could not properly see traffic at the intersection, which, Thomas says, led to the accident. Earnest subsequently filed an answer to Thomas's complaint admitting his ownership of the subject property but denying that he had been negligent in its maintenance. Earnest's answer did not assert contributory negligence as an affirmative defense. Hutto filed an answer asserting 10 affirmative defenses to Thomas's claims, including the defense that Thomas's own alleged negligence barred his recovery.

Earnest later moved for a summary judgment as to the claims asserted against him. Earnest's motion was supported by Thomas's deposition and by numerous affidavits obtained from Thomas's anticipated witnesses, all of whom professed familiarity with Earnest's lot and indicated that, on the date of the accident, the grass and vegetation on the lot was high and, as a result, “[a]s you stopped at the [subject] intersection it was difficult to see other traffic traveling on Fairfax Avenue because of the high weeds and grass.” In the brief accompanying his summary-judgment motion, Earnest's sole contention in support of his request for a summary judgment was as follows:

“Taking the allegations as true as to the height of the weeds, the dangerousness of the intersection and the length of time that it had been in this condition, ... Thomas was guilty of contributory negligence, as a matter of law, by failing to warn ... Cook regarding the limited view because of the height of the weeds.”

Hutto subsequently joined Earnest's summary-judgment motion.

The trial court entered a summary judgment in favor of Earnest and Hutto on May 14, 2010. Conceding that negligence is ordinarily a jury question, but concluding that, “here, reasonable minds cannot differ,” the trial court stated:

“Larry Thomas knew that you could not see around the weeds (Larry Thomas Depo [.] at 19, Lines 13–14), was familiar with the intersection, he had been there a lot in the past, the grass was high before the accident and the day of the accident and had been that way for quite awhile. Accordingly, the Plaintiff, Larry Thomas, had a duty to warn the driver of the vehicle in which he was a passenger of the danger that was ‘known and appreciated’ by Larry Thomas at such time as the driver of the vehicle ‘entered the sphere of danger.’ Adams v. Coffee County, 596 So.2d 892 (Ala.1992).

“If you could not see around the weeds as Larry Thomas claims (Larry Thomas Depo[.] at 19, Lines 13–14), then Larry Thomas had a duty as a matter of law to warn the driver of the danger that was known to him and had been known to him for sometime. If the weeds were such that the obstruction created by them could not be seen around, then the vehicle in which [Thomas] was a passenger should never have pulled from a stopped position into the intersection where the collision occurred.

“Based on the facts of this case, it would appear that Larry Thomas had a duty not only to warn the driver, but to direct the driver to take another route and avoid the route which was dangerous to the extent Larry Thomas claims. This order does not hinge on the additional duty to direct the driver of the known danger.

“[Thomas's] testimony confirms his knowledge and appreciation of the danger, that he made no effort to warn the driver of the danger and that ... nothing prevented [Thomas] from fulfilling his duty to make known to the driver the danger when the vehicle entered the ‘sphere of danger.’

“Taking the allegations as true as to the height of the weeds, [Thomas's] knowledge of the dangerousness of the intersection and the length of time that it had been in this condition, Larry Thomas was guilty of contributory negligence, as a matter of law, by failing to warn the driver, Jeromese Cook, regarding the limited view created by the presence and height of the weeds.”

Following the trial court's entry of the foregoing order, Thomas, on June 25, 2010, filed a timely notice of appeal.³

Standard of Review

“ ‘ “This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952–53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala.1989); Ala.Code 1975, § 12–21–12. ‘[S]ubstantial evidence is evidence 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.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” '

“ Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038–39 (Ala.2004)).”

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

Discussion

I.

On appeal, Thomas initially contends that Earnest waived the right to assert the affirmative defense of contributory negligence by failing to include it in his answer. Thomas further argues that, even assuming Earnest could properly assert the doctrine of contributory negligence as a defense to Thomas's claims, there were remaining questions of material fact that, Thomas says, prevented the trial court's entry of a summary judgment in Earnest's and Hutto's favor.

It is generally true that a party's failure to include an affirmative defense in its answer constitutes a waiver of that defense; however, this rule is not without exception.

“Regarding affirmative defenses, this Court has said:

“ ‘Once an answer is filed, if an affirmative defense is not pleaded, it is waived. Robinson v. [ Morse ], 352 So.2d 1355, 1357 (Ala.1977). The defense may be revived if the adverse party offers no objection ( Bechtel v. Crown [ Central ] Petroleum Corp., 451 So.2d 793, 796 (Ala.1984)); or if the party who should have pleaded it is allowed to amend his pleading ( Piersol v. ITT [ Phillips ] Drill Division, Inc., 445 So.2d 559, 561 (Ala.1984)); or if the defense appears on the face of the complaint (cf., Sims v. Lewis, 374 So.2d 298, 302 (Ala.1979); and Williams v. McMillan, 352 So.2d 1347, 1349 (Ala.1977)). See, also, 2A J. Moore, Federal Practice § 8.27[3] at 8–251 (3d ed. 1984)....’ “ Wallace v. Alabama Ass'n of Classified School Employees, 463 So.2d 135, 136–37 (Ala.1984)....”

Pinigis v. Regions Bank, 942 So.2d 841, 846–47 (Ala.2006) (emphasis added).

It is undisputed that contributory negligence is an affirmative defense that must be pleaded, see Rule 8(c), Ala. R. Civ. P., and that Earnest failed to plead contributory negligence in his answer. However, as Earnest points out in his brief to this Court, it appears from the record that Thomas never objected to Earnest's introduction of the defense in his summary-judgment motion or argued that the defense had been waived. Thus, as stated in Pinigis, Thomas's failure to object allowed the defense to be “revived.” Further, Thomas may not raise his objection to the assertion of the defense for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather,...