Appeal from Jefferson Circuit Court. (CV-91-8419). Roger Moore, Trial Judge.
As Amended. Released for Publication August 16, 1995.
Kennedy, Hornsby, C. J., and Maddox, Shores, Houston, Steagall, and Ingram, JJ., concur.
The opinion of the court was delivered by: Kennedy
The plaintiff, Mary Christine Jackson, appeals from a summary judgment entered in favor of the defendant, USX Corporation.
A summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P.
To overcome a properly supported motion for summary judgment, the nonmoving party must present substantial evidence supporting its claims and creating a genuine issue of material fact. § 12-21-12, Ala. Code 1975. To satisfy the "substantial evidence test," the nonmoving party is required to present "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).
Viewed in a light most favorable to the plaintiff as the nonmoving party, the evidence suggests the following:
On July 11, 1990, Steven Gene Jackson was traveling on Forestdale Bend Road in Jefferson County when his truck collided with a tree that had fallen across the road. He died shortly thereafter as a result of injuries sustained in the collision.
Forestdale Bend Road is located in an unincorporated part of Jefferson County. That portion of the county has been designated as "urban" by the state planning engineer. The road itself was acquired by prescription prior to July 11, 1990. Jefferson County was responsible for maintenance and supervision of the road. The County routinely removed limbs and branches from the road; it had been notified seven months before the accident that a tree on Forestdale Bend Road was leaning at a 45-degree angle above the road.
The section of Forestdale Bend Road where the accident occurred is located in an undeveloped, heavily forested area owned by USX. It is undisputed that USX does not inspect the condition of trees growing on its lands. USX contends that inspection of the conditions of thousands of trees in a sparsely populated area such as this would impose an undue burden on USX. USX had received no notice that any tree was leaning across the road.
Mary Christine Jackson, as administratrix of Steven Jackson's estate, filed this wrongful death action against USX and Jefferson County, alleging that the defendants were liable for Steven Jackson's death, on the theories of negligence, wantonness, and nuisance. The plaintiff settled with Jefferson County, and it is not a party to this appeal.
The plaintiff argues that USX, as the owner of property abutting Forestdale Bend Road, a public highway, owed a duty to travelers on that road to prevent injury from defective or dangerous conditions created by the property. USX contends that the County had the exclusive authority to maintain and control its roadways and has a legal duty to keep its roadways in repair and in a reasonably safe condition.
In Danford v. Arnold, 582 So. 2d 545 (Ala. 1991), a property owner sold timber to a lumber company and allowed the lumber company to remove the timber from a portion of the property abutting a public road. During the logging operations, mud carried by the trucks removing the timber accumulated on the road and caused the plaintiff's automobile accident. This Court held that there was no evidence in the record upon which a jury could find any duty owed by the property owner to the plaintiff, much less a breach of any duty that resulted in the plaintiff's injuries. In particular, the Court noted ...