Coleman v. Alabama Power Company

718 So. 2d 56, 1998 Ala. Civ. App. LEXIS 385, 1998 WL 257285
CourtCourt of Civil Appeals of Alabama
DecidedMay 22, 1998
Docket2970151
StatusPublished

This text of 718 So. 2d 56 (Coleman v. Alabama Power Company) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coleman v. Alabama Power Company, 718 So. 2d 56, 1998 Ala. Civ. App. LEXIS 385, 1998 WL 257285 (Ala. Ct. App. 1998).

Opinion

CRAWLEY, Judge.

On November 14, 1993, 15-year-old Aaron Coleman was injured when a 32-foot citizen band radio (“CB”) antenna that he was disposing of came into contact with an uninsulated power line owned by Alabama Power Company (“APCo”). Coleman suffered electrical burns to his left hand and had to have his left leg amputated below the knee. He and his parents, Jim and Annette Coleman, sued APCo, alleging that APCo had negligently and/or wantonly breached a duty to insulate its power lines, a duty to warn of the danger of contact with those lines, and a duty to inspect those lines. APCo moved for a summary judgment, arguing that, under the facts of this case, it owed no duty to Aaron Coleman to warn or.to insulate.1 The trial court entered a summary judgment for APCo on both the negligence claim and the wantonness claim. The Colemans appealed to the Alabama Supreme Court, which transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7(6). We affirm.

Aaron Coleman lives with his parents, next to Mr. Ronnie Boyd off Redland Road in Elmore County. Another family, the Maness family, lives on the other side of Mr. Boyd’s property; Mr. Don Westbrook, an APCo employee, lives next door to the Maness family. All of the lots in this area abut a large, winding gully. A portion of the gully, approximately 15-feet deep at that point, abuts the back of Boyd’s property; a portion of the gully runs underneath the power line. The view of the gully behind Boyd’s house is obstructed by kudzu and other vegetation.

Since approximately 1988, Boyd has dumped debris in that gully, for the purpose of filling it in. He arranged to have a friend who works in the roofing business, James Price, dump roofing shingles and fill dirt into the gully. Price and his crews would transport shingles or fill dirt to the gully via dump truck. This practice continued at least until the date of the accident. Boyd instructed Price and his crews not to fill the gully above ground level because he did not want the shingles and other debris to be seen from surrounding areas.

The power line behind Boyd’s property is a portion of the Yates Dam transmission line. It is uninsulated and has been in place since 1920. The line carries approximately 46,000 volts of electricity. The line is approximately 28 feet above the ground at its lowest sag [58]*58point. It is in compliance with the National Electric Safety Code (“NESC”).

In November 1993, Aaron Coleman requested permission from Boyd to dispose of the CB antenna in the gully. Boyd granted Aaron that permission. The antenna was in pieces; two pieces were approximately 10 feet long and the third piece was approximately 32 feet long. Coleman disposed of the 10-foot pieces by carrying them parallel to the ground and tossing them into the gully. However, he picked up the 32-foot piece at one end and “walked up the pole up with his hands.” As he lifted the antenna, it either came into contact with the uninsulated power line or came dangerously close to the uninsulated power line, thus causing the electric current to “arc” to the antenna.

Our standard for reviewing a summary judgment is de novo; we apply the same standard the trial court applies. A motion for summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 55(c); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’” Lee, 592 So.2d at 1038. “Substantial 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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). See West, 547 So.2d at 871, and Bass v. SouthTrust Bank, 538 So.2d 794 (Ala.1989), for further discussion of the application of the summary judgment standard.

The Colemans argue that APCo had a duty either to insulate the lines behind Boyd’s house or to warn of the danger of contact with the power lines by either posting warning signs or placing orange warning balls on the power line itself. According to them, there exists a genuine issue of material fact concerning APCo’s duty and that issue precludes a summary judgment. After carefully considering the evidence presented by both parties and the law concerning a power company’s duty to insulate, we disagree.

“[A] supplier of electricity ... is not an insurer of the safety of the general public and is not under an obligation to so safeguard its lines or equipment that by no possibility can injury result therefrom. The duty of an electrical company is to exercise that degree of care commensurate with the danger involved.”

Central Alabama Elec. Coop. v. Tapley, 546 So.2d 371, 378 (Ala.1989).

“ ‘ “The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that ... it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.” ’ ”

Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979) (citations omitted).

In Alexander, the plaintiff was injured when a 37-foot length of pipe, which was being removed from a well being drilled 20 feet from the power line, contacted the power line. Alexander, 370 So.2d at 253. According to the court, there was no evidence that APCo had notice that any well-drilling was being conducted at a site near the power lines and, the supreme court said, “[ajbsent this notice, [APCo] had no duty to insulate the wires or take other precautionary measures unless under the totality of circumstances, [APCo] should have reasonably anticipated that persons, pursuing business or pleasure, might come in contact with the power lines.” Id. at 254. The supreme court later explained that there are two bases for finding that APCo had a duty to insulate — its having actual or constructive notice of an activity that presents the danger of contact [59]*59with the power line or its having knowledge of facts that, based upon the totality of the circumstances, gives it cause to reasonably anticipate that a person could come in contact with its power line. See Alabama Power Co. v. Cantrell, 507 So.2d 1295, 1298-99 (Ala.1986); see also Foster v. Alabama Power Co., 395 So.2d 27, 31 (Ala.1981).

The Colemans argue that APCo, during routine aerial inspection of its power lines, should have seen, or did see and ignored, evidence of dumping underneath the power lines in the gully behind Boyd’s house, and that such notice triggered the duty to insulate or warn.

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Related

Alabama Power Co. v. Cantrell
507 So. 2d 1295 (Supreme Court of Alabama, 1987)
Alabama Power Co. v. Brooks
479 So. 2d 1169 (Supreme Court of Alabama, 1985)
Bass v. SOUTHTRUST BANK OF BALDWIN CTY.
538 So. 2d 794 (Supreme Court of Alabama, 1989)
Bush v. Alabama Power Co.
457 So. 2d 350 (Supreme Court of Alabama, 1984)
Bonner v. Electric Power Bd.
583 So. 2d 260 (Supreme Court of Alabama, 1991)
Foster v. Alabama Power Co.
395 So. 2d 27 (Supreme Court of Alabama, 1981)
Alabama Power Co. v. Alexander
370 So. 2d 252 (Supreme Court of Alabama, 1979)
Lee v. City of Gadsden
592 So. 2d 1036 (Supreme Court of Alabama, 1992)
Central Alabama Elec. Co-Op. v. Tapley
546 So. 2d 371 (Supreme Court of Alabama, 1989)
West v. Founders Life Assur. Co. of Florida
547 So. 2d 870 (Supreme Court of Alabama, 1989)
Campbell v. Alabama Power Co.
378 So. 2d 718 (Supreme Court of Alabama, 1979)
Commonwealth ex. rel. Althouse v. Thompson
2 Foster 394 (Schuylkill County Court of Common Pleas, 1875)

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Bluebook (online)
718 So. 2d 56, 1998 Ala. Civ. App. LEXIS 385, 1998 WL 257285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-alabama-power-company-alacivapp-1998.