Hume v. Hughes

Filing 116

MEMORANDUM OPINION - Based on the foregoing and the discussion during the September 26, 2019 hearing, the Court denies Mr. Hughes's and Mr. Loveless's motion for summary judgment based on their trespass and recreational use arguments. Signed by Judge Madeline Hughes Haikala on 10/31/2019. (KEK)

FILED
2019 Nov-01 AM 09:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH MICHAEL HUME,

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Plaintiff,
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v.
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WILLIAM L. HUGHES, KERRY )
G. LOVELESS, MILLS-CONOLY )
ENGINEERING, P.C.,
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Defendants.
)

Case No.: 2:16-CV-00954-MHH

MEMORANDUM OPINION
On October 28, 2019, the Court entered a memorandum opinion addressing
Mr. Hughes’s and Mr. Loveless’s summary judgment arguments based on stateagent immunity. (Doc. 114). Mr. Hughes and Mr. Loveless also have moved for
summary judgment based on affirmative defenses regarding premises liability and
Alabama’s recreational use statutes. (Doc. 80, pp. 15–23). For the reasons below,
these arguments are not persuasive.
Mr. Hughes and Mr. Loveless argue that they “had no legal duty to provide
warnings” on the Farmer Hall enclosure because Mr. Hume was a “trespasser.”
(Doc. 80, pp. 15–18). For the defendants’ trespasser theory to warrant judgment in
their favor as a matter of law, Mr. Hughes and Mr. Loveless would have to establish
as a matter of law that Mr. Hume was a trespasser and would have to demonstrate

that they had no duty to warn a trespasser of the high voltage area. Mr. Hughes and
Mr. Loveless have not accomplished these tasks.
The defendants do not contend that Mr. Hume, a Montevallo student, was a
trespasser on the University’s campus. Rather, they argue that Mr. Hume trespassed
in the locked enclosure that contained the high voltage equipment at issue. The
defendants have offered no authority that suggests that a person otherwise invited
onto certain premises may be a trespasser with respect to an isolated area on the
premises, and the defendants’ trespass theory rests on the presence of a locked gate
that Mr. Hume could not see when he climbed the wall into an enclosure that he
thought contained water heaters. A jury will have to determine whether Mr. Hume
trespassed in the enclosure.
Even if he did, Mr. Hughes and Mr. Loveless still would owe a duty to him
not to injure him wantonly or intentionally. Ryals v. U.S. Steel Corp., 562 So. 2d
192, 194 (Ala. 1990). Mr. Hughes and Mr. Loveless also would owe Mr. Hume a
duty “to use reasonable care to warn [Mr. Hume] of dangers known by [Mr. Hughes
and Mr. Loveless] to exist on the property.” Ala. Code § 6-5-345 (2012). The
evidence here indicates Mr. Hughes and Mr. Loveless were aware that students were
present near the Farmer Hall enclosure at night, that the Farmer Hall enclosure
contained live and exposed electrical equipment, and that live and exposed electrical
equipment poses a serious risk of harm. (Doc. 57-1, p. 302; Doc. 76-38, p. 259). A
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jury must decide whether the defendants knew that the warning sign was missing
from the enclosure or abdicated their obligation to maintain the warning sign.
Mr. Hughes and Mr. Loveless also argue that Alabama’s recreational use
statutes immunize them from liability. (Doc. 80, pp. 19–22). Here, those statutes
apply only to public recreational land. Ex parte City of Guntersville, 238 So. 3d
1243, 1247 (Ala. 2017) (discussing city’s liability with respect to municipal park).
At best, there is a question of fact as to whether the area outside of state college
buildings constitutes public recreational land. The defendants’ public recreational
land theory is at odds with their trespass theory. Compare Tuders v. Kell, 739 So.
2d 1069, 1073 (Ala. 1999) (“The recreational-use statute applies to landowners who
have given express permission for their land to be used for recreational purposes.”),
with Kitchens v. United States, 604 F. Supp. 531, 534 (M.D. Ala. 1985) (citation
omitted) (“In Alabama, a trespasser is one who enters land without the owner’s
permission.”). A jury will have to determine the nature of the property at issue.
Based on the foregoing and the discussion during the September 26, 2019
hearing, the Court denies Mr. Hughes’s and Mr. Loveless’s motion for summary
judgment based on their trespass and recreational use arguments.

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DONE and ORDERED this October 31, 2019.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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