Pell v. Tidwell

139 So. 3d 165, 2013 WL 1926153, 2013 Ala. Civ. App. LEXIS 110
CourtCourt of Civil Appeals of Alabama
DecidedMay 10, 2013
Docket2120313
StatusPublished

This text of 139 So. 3d 165 (Pell v. Tidwell) 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
Pell v. Tidwell, 139 So. 3d 165, 2013 WL 1926153, 2013 Ala. Civ. App. LEXIS 110 (Ala. Ct. App. 2013).

Opinion

THOMPSON, Presiding Judge.

Thomas Pell appeals from the summary judgment entered in favor of Lance Tid-well and the Municipal Utilities Board of Albertville (“the board”). Pell filed a civil action against Tidwell, the board, and Donna Rucks alleging negligence in connection with a motor-vehicle accident in which Rucks’s vehicle collided with the vehicle in which Pell was a passenger. Pell asserted that Tidwell, a board employee, had negligently signaled to Rucks that she could proceed and that Rucks had then proceeded across the intersection where the accident occurred without verifying that the way was clear.

In his appellate brief, Pell acknowledges that the facts in this case are not in dispute, and, in fact, he adopts the evidence as set forth in the brief in support of the motion for a summary judgment filed by Tidwell and the board. That evidence tends to show the following:

In his job with the board, Tidwell drove and operated a truck with a lift bucket. He had a commercial driver’s license to operate the truck, and he testified by deposition that he had never been involved in any previous motor-vehicle accidents.

On December 4, 2006, Tidwell was driving his truck northbound on Highway 431 in Albertville. In that area, Highway 431 is a divided four-lane highway with a grass median between the northbound and southbound lanes. In his deposition, Tid-well testified that he pulled into the left-turn lane in anticipation of making a left turn onto Buchanan Road. He stated that he saw a Toyota automobile in the paved portion of the median. Tidwell said that the Toyota appeared to be pointing slightly to the north, and it looked to him as though the driver intended to pull onto Highway 431 to travel north.

Tidwell said that, in entering the left-turn lane, he pulled the truck so far to the left that part of the truck was off the pavement. Because of the way the Toyota was situated in the median, Tidwell said, there was not enough room for him to turn into the median to begin his turn onto Buchanan Road. He said that he saw the driver of the Toyota raise both hands in the air. Because the Toyota was preventing him from making the left turn, Tidwell elected to yield the right-of-way to the Toyota. He said that he looked in the side mirror on the passenger side of the truck to make sure that the lefthand, or inside, northbound lane was clear. He said that, when the lane was clear as far as he could see, he pointed his finger at the inside northbound lane. Tidwell said that, by making that hand signal, he meant that the inside lane was clear so that the Toyota could turn into that lane and travel north.

Rucks, the driver of the Toyota, testified by deposition that she saw Tidwell approach in the truck and recognized that he had the right-of-way to make a left turn. She said that she saw Tidwell signal and relied on his signal to mean that she could [167]*167“go.” She waved an acknowledgment to Tidwell and started across the northbound lanes; she did not turn into the inside northbound lane as Tidwell had expected. Rucks testified that she did not pause to ensure that all the lanes were clear before she proceeded across the northbound lanes of Highway 431. As Rucks crossed into the outside northbound lane, not the lane Tidwell had motioned for her to enter, her car collided with the car in which Pell was a passenger. Pell’s leg was broken in the accident.

After considering the evidence and the parties’ arguments, the trial court entered a summary judgment in favor of Tidwell and the board on August 20, 2010. Pell’s claims against Rucks remained pending, however.1 On November 29, 2012, the trial court entered a judgment dismissing the remaining claims against Rucks after she and Pell entered a pro tanto joint stipulation of dismissal. Pell then appealed the judgment in favor of Tidwell and the board to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

We review a summary judgment pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

As mentioned, the parties do not dispute the events that led to the collision between Rucks’s vehicle and the vehicle in which Pell was a passenger. The issue in this case is whether, as a matter of law, Tidwell can be held liable for negligently signaling Rucks to proceed.2 Tidwell and the board argue that Tidwell had no legal duty to Rucks or Pell when Tidwell motioned for Rucks to proceed. They assert that Tid-well’s “act of courtesy” in motioning Rucks to the inside lane did not impose a duty on Tidwell, and it did not relieve Rucks of what they said was her affirmative, nondel-egable duty to yield the right-of-way to traffic proceeding on the through street, that is, traffic traveling northbound on Highway 431.

[168]*168Pell, on the other hand, maintains that even though Tidwell was under no affirmative duty to act, once he volunteered to do so, he was then charged with the duty of acting with due care. When Tidwell checked his side mirror and motioned to Rucks, Pell says, he “assumed the duty to act as a reasonable and prudent person.” Therefore, according to Pell, Tidwell is liable for any negligence in connection with signaling to Rucks to proceed.

In their brief on appeal, Tidwell and the board cite Parker v. Birmingham, Electric Co., 254 Ala. 488, 48 So.2d 873 (1950), to support their argument that Tidwell did not owe Rucks a duty of care. In Parker, the plaintiff had been a passenger on a bus operating between Birmingham and Bessemer. After the passenger disembarked, she had to cross a four-lane “super highway.” The passenger could not see around the bus to determine whether it was safe for her to cross. The bus driver signaled to her to cross the highway in front of the bus. The passenger started across the highway, and, as she cleared the bus, she was hit by a car traveling down the highway. The passenger sued the bus line, claiming, among other things, that the bus driver had been negligent in motioning her across the highway. Our supreme court held that the plaintiff could not sustain her action because the bus company was no more responsible than the passenger for the passenger’s safe crossing. Specifically, our supreme court stated:

“It may be added that the signal by the operator that plaintiff might walk in front of the bus in safety does not create a danger not readily observable to the passenger.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bass v. SOUTHTRUST BANK OF BALDWIN CTY.
538 So. 2d 794 (Supreme Court of Alabama, 1989)
Dawson v. Griffin
816 P.2d 374 (Supreme Court of Kansas, 1991)
Wilson v. Brown
496 So. 2d 756 (Supreme Court of Alabama, 1986)
Cunningham v. National Service Industries, Inc.
331 S.E.2d 899 (Court of Appeals of Georgia, 1985)
Edosomwan Ex Rel. Edosomwan v. A.B.C. Daycare & Kindergarten, Inc.
32 So. 3d 591 (Court of Civil Appeals of Alabama, 2009)
Massingale v. Sibley
449 So. 2d 98 (Louisiana Court of Appeal, 1984)
Blue Cross and Blue Shield v. Hodurski
899 So. 2d 949 (Supreme Court of Alabama, 2004)
Williams v. State Farm Mut. Auto. Ins. Co.
886 So. 2d 72 (Supreme Court of Alabama, 2003)
Tucker v. Cullman-Jefferson Counties Gas Dist.
864 So. 2d 317 (Supreme Court of Alabama, 2003)
Dow v. Alabama Democratic Party
897 So. 2d 1035 (Supreme Court of Alabama, 2004)
Askew by Askew v. Zeller
521 A.2d 459 (Supreme Court of Pennsylvania, 1987)
Peka v. Boose
431 N.W.2d 399 (Michigan Court of Appeals, 1988)
Key v. Hamilton
963 N.E.2d 573 (Indiana Court of Appeals, 2012)
Duval v. Mears
602 N.E.2d 265 (Ohio Court of Appeals, 1991)
Parker v. Birmingham Electric Co.
48 So. 2d 873 (Supreme Court of Alabama, 1950)

Cite This Page — Counsel Stack

Bluebook (online)
139 So. 3d 165, 2013 WL 1926153, 2013 Ala. Civ. App. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pell-v-tidwell-alacivapp-2013.