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Messer v. Turner12/16/2005
mary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So. 2d 47 (Ala. 2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So. 2d 659 (Ala. 2001). See Ex parte Helms, 873 So. 2d 1139 (Ala. 2003), and Willis v. Parker, 814 So. 2d 857 (Ala. 2001)."
Hollis v. City of Brighton, 885 So. 2d 135, 140 (Ala. 2004).
"' victim's initial contributory negligence in placing himself in a position of peril is no defense to [a claim of] subsequent negligence on part of the defendant.' Dees v. Gilley, 339 So. 2d 1000, 1002 (Ala. 1979). The elements of proof of subsequent negligence are: (1) that the plaintiff was in a perilous position; (2) that the defendant had knowledge of that position; (3) that, armed with such knowledge, the defendant failed to use reasonable and ordinary care in avoiding the accident; (4) that the use of reasonable and ordinary care would have avoided the accident; and (5) that plaintiff was injured as a result. Treadway v. Brantley, 437 So. 2d 93 (Ala. 1983)."
Zaharavich v. Clingerman, 529 So. 2d 978, 979 (Ala. 1988).
Section 32-5A-213, Ala. Code 1975, provides, in pertinent part:
" very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person."
(Emphasis added.)
In the case now before us, the undisputed evidence established that Turner saw Messer, an 88-year-old man, looking down at his mail and walking into the road as Turner approached in his truck; that Messer never looked up before Turner's truck struck him; and that Messer continued walking in the road until Turner's truck struck him. Turner introduced no evidence establishing that he honked his horn after he saw Messer walking into the road. The investigating state trooper's affidavit tended to prove that Turner did not honk his horn after he saw Messer. Accordingly, even if Messer were guilty of contributory negligence as a matter of law, the evidence before the trial court nonetheless established a genuine issue of material fact regarding whether Turner was guilty of subsequent negligence in failing to honk his horn after he saw Messer walking into the road. Consequently, we must reverse the summary judgment in favor of Turner with respect to the administrator's claims premised upon negligence and remand the case to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
All the judges concur.
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