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08/11/95 JAMES THOMAS ROBISON III v. DON GANTT

August 11, 1995

JAMES THOMAS ROBISON III, BY AND THROUGH JAMES THOMAS ROBISON, JR., HIS FATHER AND NEXT FRIEND
v.
DON GANTT; PORTSIDE CONDOMINIUM OWNERS' ASSOCIATION



Appeal from Baldwin Circuit Court. (CV-94-04).

The Name of this Case has been Corrected by the Court. As Amended.

Thigpen, Judge, Robertson, P.j., and Yates and Crawley, JJ., concur. Monroe, J., Dissents.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

In January 1994, James Thomas Robison III, a minor, filed a complaint, by and through his father and next friend, James Thomas Robison, Jr., against Don Gantt and the Portside Condominium Owners' Association (collectively referred to hereinafter as owners). Robison sought damages resulting from a snakebite that he had received in the swimming pool area of the owners' property. Robison alleged, among other things, that as a result of the snakebite, in addition to incurring medical expenses, he had suffered, and would continue to suffer, great pain, mental anguish, and impairment, and that he would continue to incur medical expenses. The owners denied the allegations of Robison's complaint and asserted that Robison had failed to state a claim upon which relief could be granted.

In August 1994, the owners filed a motion for a summary judgment, contending that there was no genuine issue of material fact, and that they were entitled to a judgment as a matter of law. In support of the motion, they attached a brief and excerpts from depositions. Among other things, the owners asserted that they had had no knowledge that a snake was on the premises. Robison filed a brief in opposition to the motion for summary judgment.

In January 1995, the trial court entered a summary judgment for the owners. Robison appealed to the Supreme Court, which transferred the case to this court, pursuant to Ala. Code 1975, § 12-2-7.

The record reveals that in July 1992, Robison was vacationing with his parents at the Portside Condominiums in Orange Beach, Alabama, in a rented condominium unit owned by Don Gantt. While playing in the area near the pool, Robison was bitten on the hand by a water moccasin.

The law regarding a summary judgment motion is well established. Such a motion tests the sufficiency of the evidence and should be granted when the trial court determines 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, A.R.Civ.P. The moving party bears the burden of negating the existence of a genuine issue of material fact. Melton v. Perry County Board of Education, 562 So. 2d 1341 (Ala. Civ. App. 1990).

"In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present 'substantial evidence' creating a genuine issue of material fact --'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.'"

Capital Alliance Insurance Co. v. Thorough-Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994) (citations omitted). Additionally, no presumption of correctness attaches to the trial court's decision, and this court's review is de novo. Lacey v. American Shell Co., 628 So. 2d 684 (Ala. Civ. App. 1993).

Robison contends that the summary judgment was improper because the owners knew, or should have known, that snakes were present in the river only 20 feet away from the pool area and on property adjacent to the condominium. Robison argues that, given his status as an invitee, the owners had breached their duty by failing to take reasonable steps to make the property reasonably safe and/or failing to warn him of known dangers. Robison also argues that whether the owners were negligent and breached their duty by failing to take reasonable precautions to reduce the likelihood that snakes would be present in the pool area, and whether they had failed to adequately warn of this possibility are questions that should be considered by a jury. He argues, citing Yamaha Motor Co., Ltd. v. Thornton, 579 So. 2d 619 (Ala. 1991), that where facts are such that different inferences and Conclusions may be reasonably drawn, the question of liability must be left to the jury. Robison further argues that the owners acted willfully and wantonly in allowing small children to play in an area located only 20 feet from a river containing snakes, without taking reasonable precautions or warning of the danger.

The duty owed to a person on the property of another depends on whether that person is classified as an invitee, a licensee, or a trespasser. An invitee is one who comes onto the premises of the landowner with the landowner's consent for a purpose that materially or commercially benefits the owner. Boyd v. Sears Roebuck & Co., 642 So. 2d 949 ...


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