Whatley v. Cardinal Pest Control

• Decision Date: 19 September 1980
• Citation: 388 So.2d 529
• Parties: Timothy G. WHATLEY v. CARDINAL PEST CONTROL. 79-198.
• Court: Alabama Supreme Court

Page 529

388 So.2d 529

29 A.L.R.4th 981

Timothy G. WHATLEY v. CARDINAL PEST CONTROL.

79-198.

Supreme Court of Alabama.

Sept. 19, 1980.

Ruben K. King, Montgomery, for appellant.

H. E. Nix, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.

PER CURIAM.

Timothy G. Whatley challenges the trial court's grant of the defendant's motion for summary judgment in a suit claiming personal injuries in consequence of Cardinal Pest Control's negligent application of a pesticide chemical compound known as "Purge."

We begin our review by reaffirming the general proposition-too well settled to require citation of authority-that rarely is summary judgment appropriate in a claim based upon negligence. Stated another way, this Court is firmly committed to a rule of extreme caution in its review of a summary judgment granted in a tort claim context. But not even the application of this rule can spare the plaintiff from the fate of summary judgment where, after opportunity for full discovery, the evidence, when viewed most favorably to the plaintiff under the scintilla rule, fails to raise a reasonable inference that the alleged negligence was the proximate cause of the injury complained of.

The evidence in the instant case, which is essentially undisputed, is summarized in appellant's brief:

"The Appellant presented evidence that the condition or injury for which he sought recovery did not exist prior to the negligence of the Appellee; that the condition started immediately after exposure to the chemicals; that the chemicals used by Appellee was (sic) poisonous when inhaled or absorbed through the skin or eyes; that Appellant inhaled the chemicals while working; that Appellee used an excessive amount of the chemical compound 'Purge;' that the cause of Appellant's condition was diagnosed as 'unknown' in June, 1977; that traces of the chemicals would not be present in blood after the lapse of five months; and that (3) other individuals suffered similar symptoms at the same time and place."

Plaintiff/appellant's persuasive argument is summarized in the following two paragraphs of his brief:

"It seems absurd that four individuals, both male and female, black and white, would suffer the same or similar symptoms and that these would continue over such a long period of time if the cause was psychogenic. It is to be noted that the doctor that made the diagnosis that the cause was psychogenic made no reference nor was he questioned as to what his opinion would be had he known of the three other individuals that suffered the same condition."

"There is certainly a spark or glimmer in this case which would clearly be a scintilla of evidence that the proximate cause of the injury to the Appellant was excessive chemical exposure caused by the Appellee's failure to warn and, also, excessive use of a dangerous chemical."

Our focus on the dispositive question-whether the evidence raises a genuine issue of material fact-is sharpened by the following extracts from defendant/appellee's brief in reply to appellant's contentions:

"Appellant argues that he did not have the urtacaria prior to the time of his exposure to pesticides and that other individuals suffered the same or similar symptoms when exposed to the pesticides. The Appellant also notes that one doctor could not determine the cause of the urtacaria and uses that as an argument in support of his establishment of a scintilla of evidence. As previously noted in Cardinal's Statement of the Facts, Dr. Kathleen Cawthon diagnosed the cause of Mr. Whatley's problem as dietetic, not as a result of pesticide poisoning.

"The documents and letters of Dr. Kathleen Cawthon and numerous other documents, which ordinarily would not be allowable evidence in a motion for summary judgment, were not objected to by Cardinal and were considered by the Court. It was an easy matter for the Appellant to present any fact or opinion from an expert that would have created a scintilla of evidence in this matter, however, nothing was presented by Appellant which created a scintilla of evidence.

"As we see from the Record, the only expert testimony concerning the question of whether or not pesticides played a part in this urtacaria is from Dr. Irving London, and he unequivocally states that pesticides did not play a part in causing the urtacaria.

"Appellant argues that Dr. London's diagnosis as to the cause made no reference to the fact that others suffered similar symptoms. Appellant also argues that Dr. London was not questioned as to what his opinion would be had he known of three other individuals that suffered the same condition. To this argument, Appellee can only submit that Appellant did not see fit to attend the deposition of Dr. London. Appellant does not know, and it does not appear in the record, whether or not Dr. London knew of these other cases, if they existed. He may well have known of them while making his diagnosis as to cause and while stating that the cause of the urtacaria was psychogenic in origin. At any rate, it would be unfair to ask Cardinal to anticipate and ask questions for the Appellant.

"Cardinal respectfully contends that the Appellant has not raised an issue as to causation in this matter by putting forth even a scintilla of evidence that pesticides had anything to do with urtacaria or hives suffered by Appellant.

Under Rule 56 of the Alabama Rules of Civil Procedure, summary judgment is appropriate only when the moving party has demonstrated, by the pleadings, answers to interrogatories, depositions and affidavits, that there is no genuine issue of material fact and that the movant is entitled to the requested relief as a matter of law....