Tinsley v. Henderson

• Decision Date: 26 February 1993
• Citation: 613 So.2d 1268
• Parties: Roy TINSLEY and Gloria J. Tinsley, as Administrators of the Estate of Timothy B. Tinsley, deceased v. John A. HENDERSON. 1910750.
• Court: Alabama Supreme Court

Page 1268

613 So.2d 1268

Roy TINSLEY and Gloria J. Tinsley, as Administrators of the Estate of Timothy B. Tinsley, deceased v. John A. HENDERSON.

1910750.

Supreme Court of Alabama.

Feb. 26, 1993.

John S. Thrower, Jr. of Thrower & Thrower, Opelika, for appellants.

Stanley A. Martin of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellee.

ALMON, Justice.

The plaintiffs, Roy Tinsley and Gloria J. Tinsley, appeal from a summary judgment in favor of the defendant, John A. Henderson. As the personal representatives of the estate of their deceased son, Timothy B. Tinsley, the Tinsleys brought an action alleging that Henderson negligently and wantonly caused the death of their son when Henderson's pickup truck collided with a bicycle ridden by Timothy. The issue is whether the Tinsleys submitted substantial evidence of Henderson's alleged negligence or wantonness.

Henderson and his wife were the only witnesses to the accident. On July 5, 1989, between 7:00 and 7:15 p.m. Henderson and his wife were travelling south on County Road 23 in Chambers County. County Road 23 is two-laned and paved. The sky was clear, and it was still daylight. County Road 40, a dirt road, runs east and west and intersects County Road 23, which runs north and south. At the intersection of County Roads 23 and 40, Timothy rode out in front of the Hendersons' pickup truck on his bicycle and was struck by the left front portion of the truck. Timothy died from injuries caused by the collision.

Henderson and his wife lived within several miles of the scene of the accident, and Henderson was familiar with the intersection. No traffic signal, stop sign, or other warning sign marked the intersection of County Roads 23 and 40. In his deposition, Henderson said that shortly before the accident he checked his speedometer and saw that he was driving 50 miles per hour. Later in the deposition, Henderson added that he braked after he saw Timothy on his bicycle and that he was travelling 45 miles per hour at the time of impact. The evidence does not indicate that Henderson was at any time exceeding the speed limit.

In his deposition, Henderson stated that he did not see Timothy until his pickup truck was about to enter the intersection. An embankment, some trees, and some tall grass on the eastern side of County Road 23 obstructed any view that Henderson otherwise might have had of Timothy as he approached the intersection. Henderson testified that he saw Timothy "humped over" his bicycle and that he appeared to be pedaling as fast as he could. Although Henderson's deposition does not explicitly indicate in what direction Timothy was traveling, it appears from the circumstances of the case that the boy was traveling west on County Road 40 toward County Road 23. On the factual question of when he first saw Timothy, Henderson's deposition testimony varies somewhat. Early in his deposition, he testified as follows:

"Q. Immediately prior to the accident what, if anything, did you see before the impact?

"A. I didn't see anything until the boy run in front of me.

"Q. All right. Now, did he run in front of you or did he ride a bicycle in front of you?

"A. Rode a bicycle."

Later in the same deposition, however, Henderson stated:

"Q. Now, when did you first see the kid?

"A. Right at the edge of the road.

"Q. Okay. At the edge of the road? Did you see him--when you say the edge of the road, you're talking about--

"A. Just before the blacktop.

"Q. --Just before you get on the blacktop?

Approximately how far was he from the blacktop?

"A. About two foot.

"Q. About two feet? All right. And you did not see him at any time prior to that?

"A. No."

Henderson stated that, once he saw Timothy on his bicycle at the edge of the pavement, he braked hard, hit the boy and skidded onto the left shoulder of County Road 23.

In January 1990 the Tinsleys filed a complaint against Henderson, alleging that he had negligently or wantonly caused the death of their son Timothy. In June 1990 the Tinsleys amended their complaint to include negligence claims against Chambers County, Alabama, and "the Chambers County, Alabama Highway Department." Based on the pleadings, the depositions of the Tinsleys and Henderson, and interrogatories answered by Henderson, Henderson filed a motion for summary judgment pursuant to Rule 56, Ala.R.Civ.P. In opposition to Henderson's motion, the Tinsleys filed a response, relying on the same depositions, as well as their own affidavits and the affidavit of Hubert Motley. After a hearing, the trial court granted Henderson's motion, holding that the Tinsleys had not produced substantial evidence of any negligence or wantonness on the part of Henderson. Making an express determination that there was no just reason for delay, the trial judge directed the entry of a final judgment in favor of Henderson, pursuant to Rule 54(b), Ala.R.Civ.P.

A summary judgment under Rule 56, Ala.R.Civ.P., is proper only when the trial court determines that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. See Lee v. Clark & Assocs. Real Estate, Inc., 512 So.2d 42, 44 (Ala.1987); George v. Federal Land Bank of Jackson, 501 So.2d 432, 434 (Ala.1986); Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So.2d 112, 114 (Ala.1983). "On motion for summary judgment, when the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the non-movant to show 'substantial evidence' in support of his position." Bean v. Craig, 557 So.2d 1249, 1252 (Ala.1990). The trial court considers the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts against the moving party. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So.2d 403, 404 (Ala.1990). Section 12-21-12, Ala.Code 1975, requires proof by "substantial evidence" in order to "submit an issue of fact to the trier of facts." Section 12-21-12(d) defines "substantial evidence" as

"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 sought to be proven."

This Court has construed this definition to mean "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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also Brooks v. Colonial Chevrolet-Buick, Inc., 579 So.2d 1328, 1330 (Ala.1991); Thomas v. Principal Financial Group, 566 So.2d 735, 738 (Ala.1990), cert. denied, 502 U.S. 1009, 112 S.Ct. 649, 116 L.Ed.2d 666 (1991). "Speculation and conclusory allegations are insufficient to create a genuine issue of material fact." Brooks, 579 So.2d at 1330.

As they phrase it in their brief, the Tinsleys assert that they have submitted evidence of such weight and quality that fair-minded persons "might reach different conclusions as to the negligence or wantonness of the Appellee, John A. Henderson." First, they argue that there is a dispute about exactly how fast Henderson was travelling both immediately before and at the time of impact. Second, they argue that there is also a dispute about when Henderson first saw Timothy on his bicycle.

We hold that the Tinsleys failed to...