Tolbert v. Gulsby

• Decision Date: 28 May 1976
• Parties: Gary R. TOLBERT, a minor, et al. v. Bruce H. GULSBY et al. SC 1220.
• Court: Alabama Supreme Court

Page 129

333 So.2d 129

Gary R. TOLBERT, a minor, et al. v. Bruce H. GULSBY et al.

SC 1220.

Supreme Court of Alabama.

May 28, 1976.

Braxton L. Kittrell, Jr., Mobile, for appellants.

Fred W. Killion, Jr., Mobile, for appellees.

HEFLIN, Chief Justice.

This case is an appeal from the granting of summary judgment in favor of defendants below. The action arose on four counts alleging liability based on (1) negligence, (2) wantonness, (3) presence of attractive nuisance on defendant's premises and (4) presence of a dangerous instrumentality.

The undisputed facts are that plaintiff Gary R. Tolbert, a six-year-old, was shot in the eye by another child with an air rifle which was located in defendants' carport. The moving papers consisted of the pleadings and affidavits of defendants, Bruce and Esther Gulsby. Plaintiffs opposed the motion by submitting two affidavits of Curtis A. Tolbert, Gary's father, and depositions of plaintiff Gary R. Tolbert, Defendant Bruce H. Gulsby, and one Tammy Lynn Chandler. The issue on appeal is whether the trial judge erred in granting the defendants' motion for summary judgment as to each of the four counts.

On appeal from summary judgment, the appellate court looks at the same factors which the court below considered in ruling on the motion. 10 Wright & Miller, Federal Practice and Procedure, § 2716, p. 430 (1973). Rule 56 of the Alabama Rules of Civil Procedure states that summary judgment 'shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' On a motion for summary judgment all reasonable inferences from the facts are viewed most favorably to the non-moving party and the moving party is required to establish that the other party could not recover under 'any discernible circumstances.' Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975); see United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir. 1973); Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440 (1972).

The question before the court is this: Is there evidence which, when considered in a light most favorable to the plaintiffs, would support any one of plaintiffs' theories of liability, and, thus, defeat summary judgment.

Under a negligence count, the duty owed by a landowner depends on the status of the injured party in relation to the defendant's land. See Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). If the injured party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964); Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). 'Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults.' Alabama Great Southern Railroad Co. v. Green, supra; Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972). If plaintiff is found to have been on defendant's property with his consent or as his guest, but with no business purpose, he attains the status of licensee and is owed the duty not to be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril. Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).

'Wantonness' has been defined by this court as

'the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97; Tucker v. Cox, 282 Ala. 489, 213 So.2d 222; Culpepper v. Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 365, 162 So.2d 455. Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger * * *. Lewis v. Zell, 279 Ala. 33, 181 So.2d 101; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13. Knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. Britton v. Doehring, supra; Lewis v. Zell, supra.' Kilcrease v. Harris, 288 Ala. 245, 251, 259 So.2d 797, 801--02 (1972).

From the record before the court, there is no direct evidence that defendant Bruce Gulsby knew that plaintiff Gary Tolbert was on his property at the time of the injury. Defendant Esther Gulsby acknowledges that she had seen the plaintiff earlier in the day but states that she had no knowledge that the air rifle was propped on the carport. Bruce Gulsby maintains that he does not believe that the air rifle was cocked and, further, that he had propped it against the wall behind a lawn chair with an enclosed back and seat so that it was not in plain view. There is evidence that children frequently played in defendants' yard and that plaintiff Gary Tolbert had been there on other occasions, although there is no evidence that he was present at the time of the injury by either express or implied invitation. Based on the facts before the court, it would appear that he was either a trespasser or a licensee to whom the only duties owed were not to be intentionally or wantonly injured or not to be negligently injured after the defendants had knowledge of his peril. There is no evidence of intentional injury, nor of knowledge on the part of defendants of plaintiff's peril. Thus summary judgment on the negligence count was proper.

Arguably there is a scintilla of evidence of wanton conduct in that at least two witnesses assert that defendant Bruce Gulsby admitted that the air rifle had been left in a cocked position ready for firing. In the case of Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), it was held that a wanton count should go to the jury if there is the least particle of evidence to support a finding of wantonness.

Plaintiffs' complaint also contains a count asserting liability based on the attractive nuisance doctrine. This doctrine offers an exception to the limited duty owed by a landowner to a trespasser. It applies only where trespassing children are involved. Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964); see, Fulford, The Tort Liability of Possessors of Property to Trespassing Children in Alabama, 11 Ala.L.Rev. 1, 9--13 (1958). The doctrine evolved form the 'turntable' theory pronounced by the United States Supreme Court in Sioux City and P.R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873) and was adopted by this court in the case of Alabama Great Southern Railroad Co. v. Crocker, 131 Ala. 584, 31 So. 561 (1901). The turntable doctrine over the years has been narrowly applied and rigorous standards of application have developed around its use. The most important restriction is that the dangerous condition on the landowner's property must be found to be naturally attractive to small children--thus leading to the 'attractive nuisance' terminology. According to Gary Tolbert's deposition, he was not attracted to Mr. Gulsby's carport because of the air rifle. Thus it appears that summary judgment was properly granted as to the attractive nuisance count.

The fourth count of plaintiff's complaint charges liability on the theory that Bruce Gulsby was maintaining a dangerous instrumentality on his property. This doctrine is based on a 'straight' negligence theory and arguably developed as a reaction to the restrictive use of the attractive nuisance theory. See Fulford, The Tort Liability of Possessors of Property to Trespassing Children in Alabama, supra. The doctrine is set out in Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 191, 67 So. 407, 410 (1914), which quotes Thompson on Negligence, section 1030 (1880):

'We now come to a class of decisions which hold the landowner liable in damages in the case of children injured by dangerous things suffered to exist unguarded on his premises, where they are accustomed to come with or without license. These decisions proceed on one or the other of two grounds: (1) That, where the owner or occupier of grounds brings, or artificially creates something thereon, which, from its nature, is especially attractive to children, and which, at the same time, is dangerous to them, he is bound, in the exercise of social duty and the ordinary offices of humanity, to take reasonable pains to see that such dangerous things are so guarded that children will not be injured by coming in contact with them. (2) That, although the dangerous thing may not be what is termed an 'attractive nuisance' (that is to say, may not have especial attraction for children by reason of their childish instincts), yet where it is so left exposed that they are likely to come in contact with it, and where their coming on contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them.'

This theory was also discussed by the court in Republic Steel v. Tillery, 261 Ala. 34, 38, 72 So.2d 719, 721 (1954) where the court reaffirmed its 'straight' negligence roots:

'(I)n Sheffield Co. v. Morton, supra (161 Ala. 153, 49 So. 774), it is said: 'Every theory of negligence works around to the question whether some one did or...