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Crouch v. North Alabama Sand & Gravel, LLC

Supreme Court of Alabama

March 27, 2015

Roland Crouch and Sandra Crouch
v.
North Alabama Sand & Gravel, LLC, and Austin Powder Company

Appeal from Franklin Circuit Court (CV-06-306)

BOLIN, Justice.

Roland Crouch and Sandra Crouch appeal from a summary judgment in favor of North Alabama Sand & Gravel, LLC, now operating as Alliance Sand & Gravel, LLC, [1] and Austin Powder Company ("Austin Powder") on the Crouches' claim asserting property damage resulting from Alliance Sand & Gravel's blasting operations. We affirm in part and reverse in part.

I. Facts and Procedural History

Alliance Sand & Gravel owns and operates a sand and gravel quarry in Franklin. Alliance Sand & Gravel has used blasting to loosen the sand and gravel at its quarry since 2004. Austin Powder has performed the blasting for Alliance Sand & Gravel since 2005; the blasting is monitored by the use of seismographs. According to Alliance Sand & Gravel, it has performed approximately one blast per month since September 2004 and has never received a citation or a regulatory penalty as a result of its blasting operations.

On December 5, 2006, the Crouches sued Alliance Sand & Gravel and Austin Powder (hereinafter referred to collectively as "Alliance"), seeking compensation for damage to their property, which, they say, was caused by Alliance's blasting operations.[2] According to the Crouches, their house was in excellent condition before Alliance started its blasting and the blasting caused extensive damage to their house and diminished its value. The Crouches specifically alleged that Alliance conducted its blasting operations in a negligent and wanton manner; that it trespassed and/or created a nuisance by interfering with the Crouches' possession, use, and enjoyment of their property; and that it engaged in an abnormally dangerous activity for which it is strictly liable. Alliance moved for a summary judgment against the Crouches, pursuant to Rule 56(c), Ala. R. Civ. P.; the trial court granted Alliance's motion, and it certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.[3] The Crouches appeal.

II. Standard of Review

"In reviewing a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala. 1989). Evidence is 'substantial' if it is 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). In reviewing a summary judgment, this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala. 1990)."

Johnson v. Sorensen, 914 So.2d 830, 833 (Ala. 2005).

III. Analysis

A. Abnormally Dangerous Activity

In Harper v. Regency Development Co., 399 So.2d 248 (Ala. 1981), this Court adopted the doctrine set out in the Restatement (Second) of Torts § 519 (1977), which imposes strict liability upon one carrying on an abnormally dangerous activity that results in damage to the property of another. In Birmingham Coal & Coke Co., 10 So.3d 993, 996-97 (Ala. 2008), this Court, elaborating on Harper, stated:

"Liability in blasting cases is governed by the principles established in Harper v. Regency Development Co., 399 So.2d 248 (Ala. 1981). In that case this Court abandoned the application of traditional negligence principles in blasting cases and adopted a test based on the Restatement (Second) of Torts §§ 519-520 (1977). The Restatement (Second) of Torts § 519 provides:
"'(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
"'(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.'
"The Restatement (Second) of Torts § 520 lists the following factors as those that should be considered in determining whether an activity is abnormally dangerous:
"'(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
"'(b) likelihood that the harm that results will be great;
"'(c) inability to eliminate the risk by the exercise of ...

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