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Hail v. Regency Terrace Owners Association12/22/1999
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This Court has rarely held that the danger was so imminent that the defendant should have foreseen the eventual consequence. Saccuzzo, 646 So. 2d at 596; see Ex parte McRae's, 703 So. 2d at 352; Ortell, 477 So. 2d at 299; CIE Service Corp. v. Smith, 460 So. 2d 1244, 1247 (Ala. 1984). Because of this extremely high standard, for the evidence to support the imposition of liability it must indicate that the harm to the plaintiff was impending and was plainly evident to the defendant.
Mrs. Hail argues that because 8 to 13 fires had occurred in the building in the previous 13 months and because the maintenance man was suspected of setting the fires, the Association should have known of the potential harm and should have dismissed him. She argues that dismissing him would have been a reasonable step for the Association to take. That step, she says, would have prevented the fire that caused Mr. Hail's death. These 8 to 13 previous fires were all smaller fires and were all located in a trash chute, and no one, not even the maintenance man, was ever charged with starting them. The Association did take steps to try to protect the residents, by holding educational meetings and installing fire-safety equipment, but the record contains no evidence indicating that the Association had, or should have had, any knowledge that the fatal fire was imminent or even probable. Nor is there any evidence, only speculation, that the maintenance man started any fire, including the one that caused Mr. Hail's death. This evidence simply does not rise to the high standard required by Alabama law for holding the Association and Metcalf Realty Company liable for the criminal acts of a third party.
The trial court correctly entered the summary judgments for Regency Terrace Owners Association and Metcalf Realty Company.
JOHNSTONE, Justice (concurring in part and dissenting in part).
I respectfully dissent from the holding in the discussion of Bagby's summary judgment that Mrs. Hail, the nonmoving party, bore the initial evidentiary burden in accordance with the new rule promulgated by Ex parte General Motors Corp., [Ms. 1971318, September 24, 1999] ___ So. 2d ___ (Ala. 1999). I dissent in this regard for the same reasons expressed in my dissent in Ex parte General Motors. Thus, while I agree that Bagby's summary judgment should be reversed, I do not agree that Mrs. Hail should again be put to her proof in opposition to Bagby's motion inasmuch as Bagby has offered no evidence that Mr. Hail was not on the defective elevator. I concur in the other holdings in the main opinion.
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