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June 14, 1996


Appeal from the Marion Circuit Court, No. CV-94-06, Bobby R. Aderholt, J. [686 So2d Page 1101]

The opinion of the court was delivered by: Shores, Justice.

The plaintiff Robert Ricketts appeals from a judgment based on a directed verdict for the defendant Norfolk Southern Railway Company, in a personal injury action. We reverse and remand.

Ricketts's action is based on injuries to his son, Eric Ricketts, who, at age 14, was severely injured in a fall from the Railroad's Brushy Creek trestle in Marion County, Alabama. The Brushy Creek trestle is 187 feet high, with a span of 1230 feet; it is the fifth highest trestle on the Norfolk Southern line. It is of "open deck" construction, meaning that a person standing on the trestle can look between the railroad ties to the ground below. There are no rails or banisters on the side of the trestle. In 1988, Norfolk Southern purchased the railroad line extending from Centralia, Illinois, to Haleyville, Alabama, which includes the Brushy Creek trestle. Norfolk Southern has never conducted railroad operations along that portion of the line from Hackleburg south to Haleyville; the Brushy Creek trestle is located along that portion. In December 1992, the railroad petitioned the Interstate Commerce Commission for permission to abandon the line between Red Bay and Haleyville, including the Brushy Creek trestle.

On the afternoon of September 14, 1993, Eric Ricketts and two companions, Sam McGough and Bubba Branch, drove their four-wheel all-terrain vehicles ("ATVs") out onto the trestle. Because the ATVs would not fit flat on the trestle deck, the boys rode them with the left wheels perched on top of one rail. At a point where he was 160 feet above the ground, Eric's ATV got stuck. As he attempted to get his ATV loose, he fell from the trestle, sustaining severe injuries. Eric was in a coma for four months following the accident. He is now spastic and can do nothing to help care for himself. Expensive shots are needed each three months to keep his spasticity under control. He requires 24-hour supervised care and will require such care for the rest of his life.

On July 12, 1994, Robert Ricketts, as Eric's father and next friend, sued Southern Railway Company, T.A. Heilig, Howard Frye, and fictitiously named defendants. Eric's mother, Shirley Ricketts, was later added as a plaintiff. The Rickettses' complaint alleged liability based on negligence, wantonness, the principle stated in Restatement (Second) of the Law of Torts, § 339 (1965), and the attractive nuisance theory. Norfolk Southern Railway Company (as successor in interest to Southern Railway Company) and defendants Heilig and Frye answered, denying that § 339 of the Restatement has any application in this case and pleading the affirmative defenses of contributory negligence and assumption of the risk. The court entered a summary judgment for the defendants on the plaintiffs' attractive nuisance claim.

On April 10, 1995, the trial began. The plaintiffs' case was concluded on April 17, 1996; at that time the plaintiffs dismissed defendants Heilig and Frye, with prejudice. Norfolk Southern then moved for a directed verdict. On April 19, 1995, Judge Bobby R. Aderholt granted Norfolk Southern's motion for a directed verdict, in open court:

"THE COURT: All right. After careful consideration of the criteria set out in [Lyle v. Bouler, 547 So.2d [506] 507 (Ala. 1989),] and the various elements of Section 339 of the Restatement of Torts, it is the Court's opinion that Section 339 is not applicable in this case and the court directs a verdict for the defendant [as to both] negligence and wantonness.

". . . .

"A more definite statement of findings will be forthcoming in an order."

On June 9, 1995, the trial judge issued the following order, which failed to make a more definite statement of findings:

"The Court having considered the motions of defendants for a directed verdict filed at the conclusion of the plaintiffs' case, . . . is of the opinion that such motions should be . . . granted. Accordingly, judgment is hereby entered for the defendants in this case."

The plaintiffs moved for a new trial, which was denied by the trial court. Robert Ricketts appealed. [686 So2d Page 1103]

We must determine whether the trial court erred in directing a verdict on both the negligence and wantonness counts for the defendant Norfolk Southern Railway. We look first to the standard of review applicable in a case like this:

"The standard of review applicable to a directed verdict or to a denial of a motion for a directed verdict is whether the non-moving party has presented substantial evidence in support of his position. If he has not, then a directed verdict is proper. Bailey v. Avera, 560 So.2d 1038, 1039 (Ala. 1990). A verdict is properly directed only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact for the jury to determine. Woodruff v. Johnson, 560 So.2d 1040 (Ala. 1990). Moreover, whether to direct a verdict is not a matter within the discretion of the trial court; on review no presumption of correctness attaches to such a ruling. McCord v. McCord, 575 So.2d 1056, 1057 (Ala. 1991); Barksdale v. St. Clair County Comm'n, 540 So.2d 1389 (Ala. 1989)."

K.S. v. Carr, 618 So.2d 707, 713 (Ala. 1993).

The trial judge stated in his order that he had considered the criteria set out in Lyle v. Bouler, 547 So.2d 506 (Ala. 1989). In Lyle v. Bouler the question was whether a landowner may owe a duty of care to a trespassing minor over the age of 14. The trial court entered a summary judgment for the defendant in Lyle v. Bouler on the grounds that no duty was owed to trespassing minors over the age of 14. In reversing that summary judgment, this Court stated:

"For over 50 years, this Court continued to use the age of 14 as the demarcation line in determining whether a child would be liable for his actions. In 1976, however, this Court ruled that 'for clarity and certainty's sake now and in the future,' § 339 of the Restatement (Second) of Torts (1965) would be the law. Tolbert v. Gulsby, 333 So.2d 129, 135 (Ala. 1976).

"Justice Houston, writing for the Court in Motes v. Matthews, 497 So.2d 1121, 1122 (Ala. 1986), reiterated our adoption of § 339, regardless of whether the child was a trespasser or a licensee. Because the Court has never reconciled § 339 with Central of Georgia [R.R. v. Robins, 209 Ala. 6, 95 So. 367 (1923)], the two standards continue to be applied, although they are clearly contradictory. In order to prevent further confusion, we reject the 14-year age limitation imposed in Central of Georgia and reassert our adherence to § 339, Restatement (Second) of Torts (1965).

"Section 339 provides:

" 'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

" '(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

" '(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

" '(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

" '(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

" '(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

"Subsection (c) and the comment to § 339 provide guidance in determining when a child assumes responsibility for his injuries. The comment states that few jurisdictions still use arbitrary age limits because 'in our present hazardous civilization some types of danger have become common, which an immature adolescent may reasonably not appreciate, although an adult may be expected to do so.'

"Most jurisdictions have held that a child [below] the age of 14 may recover for injuries sustained when trespassing on the [686 So2d Page 1104]

land of another. Others have extended recovery to 16 years and beyond. Skaggs v. Junis, 27 Ill. App.2d 251, 169 N.E.2d 684, 689 (1960) (16-year-old plaintiff allowed recovery); Hendricks v. Peabody Coal Co., 115 Ill. App.2d 35, 253 N.E.2d 56, 57 (1969) (16-year-old plaintiff allowed recovery); Boyer v. Guidicy Marble, Terrazzo & ...

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