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Messer v. Turner12/16/2005
The plaintiff, Lenvil Dale Messer, as administrator of the estate of Frank R. Messer ("the administrator"), appeals a summary judgment in favor of the defendant, Bobby Ray Turner. We affirm in part, reverse in part, and remand.
On January 25, 2003, a truck driven by Turner struck and injured an 88-year-old pedestrian named Frank R. Messer ("Messer") on County Road 153 in Lauderdale County. On March 3, 2003, while he was in the hospital being treated for his injuries, Messer sued Turner. Alleging a claim of negligence, Messer sought to recover for the injuries he sustained when he was struck by Turner's truck. Messer demanded a jury trial. However, on March 8, 2003, Messer died as a proximate result of the injuries he sustained in the accident.
After Messer's death, the administrator amended Messer's complaint. The amended complaint substituted the administrator for Messer as the plaintiff in the lawsuit, realleged a personal-injury claim premised upon negligence, alleged a personal-injury claim premised upon wantonness, and alleged wrongful-death claims premised upon negligence and wantonness. The amended complaint also renewed Messer's demand for a jury trial. Answering the amended complaint, Turner denied that he was guilty of negligence or wantonness. In addition, he asserted the affirmative defenses of contributory negligence and assumption of the risk.
On October 24, 2003, Turner moved for a summary judgment on two grounds. First, he argued that the evidence did not establish that he had breached his duty of care. Second, Turner argued that the evidence established that Messer was guilty of contributory negligence as a matter of law. Turner supported his summary-judgment motion with, among other things, his affidavit.
In pertinent part, Turner's affidavit stated:
"On January 25, 2003, I was driving my 1992 Chevrolet truck south on County Road 153 in Lauderdale County, Alabama[,] going to purchase goat feed in Grassy, Alabama. I was driving at a speed of approximately 25 mph, although the posted speed limit on County Road 153 was 45 mph. It was a sunny day and there was nothing to obstruct my vision. County Road 153 is a two lane road with no shoulder and no dividing line. I had driven on the road many times before.
"I came upon a man who was standing off the right side of the road at a mailbox. The man, who I have since learned was Frank Messer, did not appear confused or incapacitated, but appeared to be getting his mail.
"The mailbox was located several feet south of a dirt and gravel driveway that led to a trailer. I have since learned that Mr. Messer lived in that ... trailer. ... There was an area of grass, gravel, and dirt between the mailbox and the driveway that a person could walk from the mailbox to the driveway without stepping onto the road. As my vehicle approached the area of the mailbox, Mr. Messer turned from the mailbox to his left[,] taking a step in the road but turned to face the driveway and my truck. I immediately began to move my truck to the left to give Mr. Messer plenty of room to walk along the road's edge, and I made a quick glance in my side mirror to make sure no vehicle was attempting to pass me. Instead of walking along the road's edge[,] Mr. Messer took several more steps toward the center of the road into the path of my truck. I was so close to Mr. Messer when he walked toward the center of the road that all I could do was apply my brakes and swerve my truck to the left trying to avoid Mr. Messer. Unfortunately, the front right fender of my truck struck Messer, knocking him backwards and towards the edge of the road where he landed. When my truck hit Mr. Messer, he was four to five f
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