A tanker truck driver received injuries when the truck he was driving overturned because its front wheel dropped off the pavement onto a low shoulder in a construction area. The driver and his employer sued the highway construction company for failure to place "low shoulder" warning signs along the construction site. The trial court granted the construction company's motion for summary judgment. The appeals court reversed this judgment, ruling an issue of material fact existed as to whether the construction company failed to adequately warn of the low shoulder hazard.

THE CRASH

Hobson L. Brown (Brown) was driving a tractor and tanker filled with a load of gasoline north on Alabama's Blount County Road 25 toward Warrenton on May 1, 1992. The rig was owned by Brown's employer, Williams Oil Company (Williams), and insured by Federated Insurance Company.

As Brown reached the halfway point of a slight curve to the right, his right front wheel dropped off the pavement. The rig leaned to the right, and Brown tried to get it back on the road. Because the shoulder was so low, the rig leaned even more. He had to pull the wheel hard to bring it back onto the pavement. When he returned to the pavement, the truck fishtailed; and Brown could not straighten it out. The rig turned over on the right side of the road, hit a tree, and gasoline leaked out. It exploded when the wrecker service tried to set it back on its wheels.

The portion of the highway where Brown's crash happened was repaved between November of 1991 and February of 1992. Blount County hired Whitaker Construction (Whitaker) to repave, restripe, and place signs according to the Alabama Manual on Uniform Traffic Control Devices (Alabama MUTCD). The county was responsible for building up the road shoulders after the construction was certified as complete.

As a result of the crash, Brown, Williams, and Federated Insurance (collectively, Brown) sued Whitaker, Blount County, and the Blount County Commission.

TRIAL COURT DECISION

Brown offered evidence that Whitaker was aware of the "low and unsafe shoulders" in the construction area. One of Whitaker's employees wrote a letter on February 3, 1992 to the Blount County engineer stating that low and unsafe shoulders had been observed. The letter asked the county to "advise Whitaker when Blount County will address the correction of this problem and also please forward [to Whitaker] documentation which would excuse our firm of exposure might an accident occur due to the low shoulder conditions on these projects."

Brown regularly traveled County Road 25 and testified he was aware it had been repaved; however, he did not expect the shoulder to be so low. He remembered seeing a road construction sign but not a warning about the low shoulder. A Whitaker vice-president testified that low shoulder signs were placed with the construction signs in November 1991 (at each end of the construction zone) and that the signs were still in place at the time of the crash.

County employees, who conducted daily inspections and submitted reports during the construction period, noted no low shoulder warning signs. The county engineer testified that he did not know if a low shoulder sign was in place on the date of the crash.

Brown's expert witness asserted that a significant drop-off with no proper warning devices was a "dangerous condition." In his opinion, such a dangerous condition existed on County Road 25 on the date of the crash. He recommended low shoulder signs every mile along the construction route.

The Blount Circuit Court granted Whitaker's motion for summary judgment. The claims against the county and commission remained pending. Brown appealed the summary judgment.

APPEALS COURT DECISION

Brown argued that the trial court committed reversible error in granting the summary judgment. The evidence, contended Brown, created a "genuine issue of a material fact" as to whether Whitaker's failure to warn motorists of the hazard created by the low shoulder proximately caused the crash, Brown's injuries, and the damage to the truck.

The appeals court referred to Rule 56(c), Ala. R. Civ. P. which states that "a summary judgment is appropriate in situations where no genuine issue of any material fact exists and the movant is entitled to a judgement as a matter of law."

Citing Porter v. Fisher, 636 So.2d 682 (Ala. Civ. App. 1994), the court continued, "Once the movant makes a prima facie showing that no genuine issue of a material fact exists, then the burden shifts to the non-moving party to present substantial evidence regarding the existence of a genuine issue of a material fact."

Further, the court stated, "Appellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect. 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d Section(s) 2659, at 99."

In addition, the appeals court pointed out that the trial court should consider all factors pertinent to the case and then list in its order the factors it considered in reaching its decision. The appeals court noted, "Hereinafter, if a trial court should fail to list the factors considered, then the case will be returned so that the trial court can list those factors."

The appeals court concluded from the testimony about the lack of drop-off warnings that:

The court also noted that a summary judgment is "rarely appropriate in negligence and personal injury cases. Cabaniss v. Wilson, 501 So.2d 1177 (Ala. 1986)."

The Court of Civil Appeals reversed the trial court's judgment and remanded the case during its October term, 1995-96.