Whaley v. Lawing

Citation352 So.2d 1090
PartiesRobert B. WHALEY v. Lloyd LAWING and Mary Lawing. SC 2157.
Decision Date23 September 1977
CourtSupreme Court of Alabama

William M. Acker, Jr., and Carleton P. Ketcham, Jr., Birmingham, for appellant.

Herbert W. Peterson, Birmingham, for appellees.

ALMON, Justice.

Plaintiff Robert B. Whaley sued defendants Lloyd and Mary Lawing for injuries sustained when a redwood sundeck on the home of defendants collapsed. The thrust of plaintiff's complaint is that the defendants were wantonly negligent in allowing the plaintiff, a social guest in their home, on the sundeck which they knew was unstable and dangerous. After presentation of the plaintiff's case, the trial court directed a verdict in favor of the defendants. Plaintiff appeals citing several grounds for reversal.

Initially, plaintiff urges the court to reevaluate and abolish the traditional distinctions between trespassers, licensees, and invitees in land occupancy cases. It is sufficient to point out that in light of our recent decision in McMullan v. Butler, 346 So.2d 950 (Ala., 1977), the status of trespasser, licensee, and invitee will continue to be viable classifications under Alabama law.

Second, plaintiff contends that it was error for the trial judge to exclude from evidence a complaint filed by the defendants prior to the accident charging the contractor with negligently constructing their home. The complaint was offered as proof of the defendant's knowledge of the defectively constructed sundeck.

As a general rule, the pleadings of a party in another action are admissible as admissions against interest where those pleadings were drawn under the party's direction or with his consent. Redwing Carriers, Inc. v. Stone, 293 Ala. 726, 310 So.2d 206 (1975); Cole v. Louisville & Nashville R.R., 267 Ala. 196, 100 So.2d 684 (1957). The prior pleadings, however, must be inconsistent with the present contentions of the party in order to be introduced as an admission against interest. Spurlin v. General Motors Corp., 531 F.2d 279 (5th Cir. 1976).

At the time the complaint was offered as evidence, defendant Mary Lawing had testified that she and her husband did have complaints against the contractor, but only concerning some unfinished wallpapering and painting and a "hollow" sound in the kitchen floor. She expressly denied having any complaints with the sundeck. In a discussion in chambers, the trial judge made it clear that he would allow the prior pleadings into evidence, but only if the complaint could be linked to the sundeck:

THE COURT: "If counsel assures me that there's some evidence to follow that up that it had anything to do with the deck, I'll let it in . . . ."

Upon plaintiff counsel's statement that he was unable to offer any evidence linking the prior complaint to the sundeck, the trial court refused to allow the complaint in evidence.

Since the defendants had admitted having complaints as to other portions of the house, the prior complaint against the contractor is probative of an inconsistency only with respect to defendants' contention that they had no knowledge of the sundeck's defective condition. Because the plaintiff was unable to offer any evidence correlating the prior complaint and the sundeck in order to show an inconsistency, the trial court's ruling was not in error.

Third, and most significantly, plaintiff maintains that the trial court committed reversible error in directing a verdict for the defendant since there was a scintilla of evidence supporting the material elements of plaintiff's case. That evidence, when viewed in a light most favorable to the plaintiff, reveals that the defendants Lloyd and Mary Lawing purchased a newly constructed home in Jefferson County in 1972. Attached to the rear of this house was an elevated redwood sundeck which was accessible either through a door entering the den or a staircase leading up from the ground. During the year and a half prior to its collapse, the sundeck was continuously and extensively used. For example, the sundeck was used on numerous occasions for social gatherings, and at times as many as 16 people occupied the deck simultaneously. Both defendants testified that at no time during this period did they notice or feel anything wrong with the deck. At no time did anyone complain about the safety of the deck. The plaintiff and his wife testified that they had experienced a slight bounce and vibration of the sundeck, but they never mentioned it to the...

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18 cases
  • Holland v. Baltimore & O. R. Co., 12429.
    • United States
    • Court of Appeals of Columbia District
    • 29 Mayo 1981
    ...4. Several jurisdictions have in fact recently refused to abolish the distinction even as to licensees and invitees. Whaley v. Lawing, 352 So.2d 1090, 1091 (Ala.1977); McAbe v. Walt Disney World Co., 350 So.2d 814, 815 (Fla.Dist. Ct.App.1977); Springer v. Pearson, 96 Idaho 477, 479, 531 P.2......
  • Younce v. Ferguson, 52168-9
    • United States
    • United States State Supreme Court of Washington
    • 11 Septiembre 1986
    ...at 310-12. Some have directly confronted the issue of whether to abandon the distinctions and have declined to do so. Whaley v. Lawing, 352 So.2d 1090 (Ala.1977); Bailey v. Pennington, 406 A.2d 44 (Del.1979); Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980); Hessler v. Cole, 7 ......
  • Tantimonico v. Allendale Mut. Ins. Co.
    • United States
    • United States State Supreme Court of Rhode Island
    • 25 Febrero 1994
    ...in the above jurisdictions, by the late seventies an increasing number of courts had specifically rejected Rowland. See Whaley v. Lawing, 352 So.2d 1090 (Ala.1977); Wood v. Camp, 284 So.2d 691 (Fla.1973); Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978); Sherman v. Suburban Trust Co., ......
  • Yalowizer v. Husky Oil Co., 5457
    • United States
    • United States State Supreme Court of Wyoming
    • 28 Mayo 1981
    ...cases from the appellate courts of states as noted particularly reject any notion of abandoning the common-law rule: Whaley v. Lawing, Ala., 352 So.2d 1090 (1977); McMullan v. Butler, Ala., 346 So.2d 950 (1977) (noted "trend" is still minority); Post v. Lunney, Fla., 261 So.2d 146 (1972) (a......
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