 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Tuders v. Kell6/25/1999
REL:06/25/99TUDERS
NOTICE: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
OCTOBER TERM, 1998-99
The plaintiffs -- Randy Tuders; James Tuders; Larry Nance, individually and as personal representative of the estate of Bobbi Jo Nance, deceased; and Anita Hicks, individually and as mother of Amanda Hicks and Kyle Hicks, deceased minors -- appeal from a summary judgment entered in favor of the defendant, Paul Kell, doing business as Kell Realty Company. We affirm.
I.
On July 4, 1995, Randy Tuders and his son James Tuders; Larry Nance and his wife Bobbi Jo Nance; and Anita Hicks and her children Amanda and Kyle Hicks (all referred to as "the boaters"), were passengers in a boat on Neely Henry Lake when a severe thunderstorm developed suddenly. As the weather got worse and the boaters saw lightning in their vicinity, they decided to get off the water immediately. The nearest shelter from the lightning and rain was a pier and boathouse, still under construction, that belonged to Kell. They tied the boat to the pier and stood on the pier under an overhanging portion of the boathouse roof to wait out the storm. Approximately 15 minutes later the boathouse collapsed. Bobbi Jo Nance, Amanda Hicks, and Kyle Hicks died; the others were injured. At the time of the accident, Kyle Hicks, Amanda Hicks, and James Tuders were ages 4, 8, and 16, respectively.
Kell had drawn a sketch of the boathouse he wanted and then had hired someone to build it for him. The plaintiffs testified that it was apparent that the boathouse was under construction. It had a roof, but the outside walls were incomplete. Bracing had been used to stabilize the walls of the boathouse during its construction; however, the bracing had been removed from the north wall before the construction was complete and before the boaters took shelter there. The evidence does not indicate who removed the bracing from the boathouse.
Randy Tuders, James Tuders, Larry Nance, and Anita Hicks filed a wrongful-death and personal-injury complaint against Kell and others. They alleged that the defendants had negligently caused the deaths and personal injures incurred in the July 4, 1995, incident. The trial court entered a summary judgment in favor of Kell, holding that the boaters were trespassers on Kell's property; that the only duty Kell owed to the boaters was to refrain from wantonly or intentionally injuring them; that the plaintiffs did not present substantial evidence indicating that Kell had wantonly or intentionally injured them; and that §§ 35-15-1 to -5, Ala. Code 1975, shielded Kell from any liability in this case. The plaintiffs appealed. All defendants other than Kell have been dismissed.
II.
We first address whether the Code sections governing the recreational use of land, §§ 35-15-1 to -5 ("the recreational-use statute"), apply to a situation like that presented in this case. If so, then a landowner like Kell is liable only for willfully or maliciously injuring those who enter the land for recreational purposes. Kell argues that the recreational-use statute applies to him and that it limits his liability for accidents occurring on his property that arise out of certain recreational uses, among them water sports and boating. The plaintiffs argue that in order for the recreational-use statute to apply, a landowner
Page 1 2 3 4 5 6 7 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|