Wilson v. Alabama Power Co.

518 So. 2d 105, 1987 Ala. LEXIS 4684, 1987 WL 31815
CourtSupreme Court of Alabama
DecidedDecember 4, 1987
Docket86-808
StatusPublished
Cited by4 cases

This text of 518 So. 2d 105 (Wilson v. Alabama Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Alabama Power Co., 518 So. 2d 105, 1987 Ala. LEXIS 4684, 1987 WL 31815 (Ala. 1987).

Opinions

BEATTY, Justice.

Appeal by plaintiffs, John R. Wilson and Linda Wilson, from a summary judgment rendered for the defendant, Alabama Power Company (“APCo”), in plaintiffs’ action to recover damages for personal injuries and loss of consortium, allegedly due to defendant’s negligence and wanton conduct. We reverse and remand.

[106]*106On the date of his injury, plaintiff John R. Wilson was engaged in his employment as a telephone lineman with South Central Bell Telephone Company (“Bell”). Equipped with spiked climbers, he had climbed a telephone pole to a height of approximately 22 feet when his climbers lost their grip on the pole and he slid down the pole to the ground. He suffered a severe fracture of the distal tibia and fibula, an injury of the ankle and lower leg.

The pole Wilson had climbed was owned by Bell. At the base of that pole was a galvanized steel ground rod approximately eight feet in length. The ground rod was owned by, and had been installed by, the defendant, APCo, and at the time of this occurrence it was protruding approximately two inches above the surface of the ground.

Plaintiffs initiated this action, claiming, among other things, that APCo had negligently or wantonly failed to drive the ground rod below the surface of the ground, or to warn of the danger posed by the extension of the ground rod above the ground, proximately resulting in injuries, etc.

APCo’s motion to dismiss was overruled; its answer subsequently filed contained general and specific denials and alleged contributory negligence, assumption of risk, and intervening negligence of a third party. After discovery, and on the day set for trial, APCo filed its motion in limine, the purpose of which was to prevent the plaintiffs’ introduction of evidence of a certain APCo regulation requiring that its ground rods be driven below ground. The trial court continued the case to afford additional time for the development of the proximate cause issue.

APCo subsequently moved for summary judgment. A hearing on this motion was held, the plaintiffs arguing that the deposition of Dr. Frederick N. Meyer provided the link of causation sufficient to defeat summary judgment. The trial court disagreed and entered summary judgment for APCo. This appeal followed.

The question presented is whether summary judgment was properly entered. The answer to this question lies in the presence or absence of some evidence of proximate cause.

As succinctly stated in Marshall County v. Uptain, 409 So.2d 423, 426 (Ala.1981):

“ ‘The proximate cause of an injury is the primary moving cause without which it would not have occurred, but which, in the natural and probable sequence of events, produces .the injury.’ City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972), appeal after remand, Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974). Negligence need not be the sole cause of injury in order to hold the negligent person liable. It is sufficient that his or her negligence, ‘concurring with one or more efficient causes, ... is the proximate cause of the injury.’ Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 267 So.2d 132 (1972) (quoting Shepard v. Gardner Wholesale, Inc., 288 Ala. 43, 256 So.2d 877 (1972), and Chambers v. Cox, 222 Ala. 1, 130 So. 416 (1930)). When the concurring cause is another person’s negligence which might reasonably be anticipated or foreseen, the original act of negligence may be regarded as the proximate cause of the injury which results. See Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224 (1944); Goodwyn v. Gibson, 235 Ala. 19, 177 So. 140 (1937); Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277 (1936).”

Indeed, in Uptain, supra, this Court found that proximate cause could have existed in a county’s failure to re-erect a roadway stop sign two years before a vehicular accident in which the vehicle, its driver therefore not warned, entered an intersection and struck another automobile. This Court, at 426, upheld a jury’s finding that the county’s negligence was the proximate cause of the resulting injury:

“Clearly from the facts of this case, a jury could find that Marshall County breached a duty in failing to maintain the stop sign. It was foreseeable that as a result of this negligence, a car might travel through the intersection without stopping and as a result, [cause] an inju[107]*107ry from an automobile accident. Thus, it was not error for the trial judge to refuse to instruct the jury that if Judy Kaylor was negligent in any degree, Marshall County could not be liable.”

Moreover, this Court has stated, in Sullivan v. Alabama Power Co., 246 Ala. 262, 268, 20 So.2d 224 (1944):

“It is not necessary that the defendant should anticipate the injury in the precise form as resulted. Nor need the particular consequences have been within the contemplation of the parties. Alabama Power Co. v. Bass, 218 Ala. 586, 119 So. 625, 63 A.L.R. 1; 25 C.J.S., Damages, § 25, pp. 487, 488; 17 C.J. p. 751, § 82.
“In line with our decisions on this subject is the statement: ‘As regards proximate cause * * * the courts look more for the possibility of a hazard of some form to some person than for the expectation of the particular chance that happened. Accordingly, it is not necessary to a defendant’s liability, after his negligence has been established, to show, in addition thereto, that the particular consequences of his negligence could have been foreseen by him; it is sufficient that the injuries are the natural, although not the necessary and inevitable, result of the negligent fault — such injuries as are likely, in ordinary circumstances, to ensue from the act or omission in question.’ ...”

Plaintiffs direct us to the deposition of Dr. Frederick N. Meyer for the requisite causal connection between the placement of the ground rod and John Wilson’s injury. Dr. Meyer, an orthopedic surgeon at the University of South Alabama Medical Center, who had examined and treated Mr. Wilson, testified as follows:

“Q. Dr. Meyer, by way of background, the testimony in this case is that Mr. Wilson was working as a telephone lineman, was on a telephone pole at a height of approximately twenty feet, eighteen to twenty feet, that by whatever means his feet became dislodged from the pole, [and he] fell, landpng] on the ground at the base of the pole. His testimony is that his left foot struck a metal ground rod which was driven into the ground on the left side of that pole and protruded approximately two inches above the ground.

“I brought with me the climber that he was wearing which was strapped to that foot as well as the boot he was wearing at the time and I would ask you to take a look at those, if-you would, please, sir.

“A. Okay.

“Q. As to the boot, it’s Mr. Wilson’s representation that the mark there on the front of the boot is where he believes he struck the ground rod.

“A. Okay. I assume that this thing probably fits under there like this.

“Q. Yes, sir. The front of the boot fits in there and then the strap goes around it and the upper part of the climber straps to the upper calf below the knee.

“Q.

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Bluebook (online)
518 So. 2d 105, 1987 Ala. LEXIS 4684, 1987 WL 31815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-alabama-power-co-ala-1987.