#### Barbara J. FINDLEY v. ALABAMA POWER COMPANY.

2970389.

Court of Civil Appeals of Alabama.

Sept. 11, 1998.

Rehearing Denied Oct. 23, 1998.

Certiorari Denied May 14,1999 Alabama Supreme Court 1980261.

S. Greg Burge and Joseph W. Buffing-ton of Heninger, Burge *&*Vargo, Birmingham, for appellant.

Charles A. Burkhart and R. Bruce Barze, Jr., of Balch *&*Bingham, L.L.P., Birmingham; and George A. Monk of Merrill, Porch, Dillon & Fite, Anniston, for appellee.

CRAWLEY, Judge.

Barbara Findley sued Alabama Power Company (“APCo”), stating that on July 16, 1995, she was injured when her automobile collided with a utility pole maintained and controlled by APCo. Findley alleged that APCo was guilty of negligence because, she said, APCo “located the said utility pole in close and dangerous proximity to the traveled portion of a public highway and ... the utility pole was in the right-of-way of said highway and rendered the highway dangerous for use by [Find-ley] and by other members of the traveling public.” Findley further alleged that APCo was guilty of wanton misconduct because, she said, it had been “warned prior to the date of the accident that [its] pole location was a hazard to the traveling public” and yet “failed and refused to move the said pole until after this accident.”

APCo answered, denying the allegations and alleging contributory negligence on the part of Findley. Thereafter, *1209APCo filed a summary judgment motion, supported by a narrative summary of undisputed facts, a brief, and certain documentation. Findley filed a response in opposition to the summary judgment motion, along with a brief and documentation in support of her position. After a hearing, the trial court entered a summary judgment in favor of APCo. Findley appeals. This case was transferred to this court by the Supreme Court, pursuant to Ala.Code 1975, § 12-2-7(6).

“A motion for summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. See *West v. Founders Life Assurance Co. of Florida,*547 So.2d 870 (Ala.1989), and *Bass v. SouthTrust Bank,*538 So.2d 794 (Ala.1989), for a discussion of the applicability of the substantial evidence rule.

In *Birmingham Electric Co. v. Lawson,*239 Ala. 236, 237, 194 So. 659, 661 (1940), our supreme court stated:

> “[T]he only foundation for legal liability to one injured or damaged in the legitimate use of the highway in consequence of the .location or maintenance of [a utility] pole is negligence in placing or maintaining the [pole] in such close proximity to the portion of the highway set apart and devoted to public use as to be dangerous to members of the public in the legitimate use of the highway, and *the negligence must be a proximate cause of the injury.”*

(Emphasis added.)

At approximately 9:00 a.m. on July 16, 1995, Findley, while returning home from her job as a nurse, was involved in a one-car accident approximately two miles from her home. Findley’s automobile struck a utility pole; . Findley was injured in the accident. The majority of the damage to Findley’s automobile was to the left front of the vehicle.

Findley can recall only sketchy details of the accident. Findley testified that she remembers passing her neighbor Patty Maxwell’s house, which is located about 50 yards from the utility pole. Findley stated that the next thing she remembers after passing Maxwell’s house is seeing the utility pole directly in front of her, just seconds before the impact. Findley says that it was a sunny day and that the road was dry. Findley had worked from 7:00 p.m. on Saturday, July 15, 1995, until 7:30 a.m. or later on Sunday, July 16, 1995. At the time of the accident, Findley had been awake for approximately 24 hours. During her deposition, Findley was asked, in reference to the time of the accident, “Were you awake, asleep?” and she replied, “I was awake, I assume. I don’t know.” Rodney Findley, Findley’s husband, testified that she has told him on several occasions that she does not remember how the accident happened — that it is just a blank.

APCo submitted the affidavit of the state trooper who investigated the accident, who stated that he spoke with Find-ley as a part of his investigation of the accident and that Findley told him “that she had just gotten off work after having ‘pulled a long shift’ and that she became drowsy, fell asleep at the wheel, and left the traveled portion of the roadway, resulting in her automobile striking a utility pole.” The trooper also stated that Find-ley’s statement to him “was consistent with [his] physical examination of the roadway, which reflected that [there were] no skid marks, scrub marks or other marking indicating a braking maneuver.”

Findley testified that she does not remember talking to the trooper, and Rodney Findley testified that although the trooper came to the hospital and spoke with Findley, he does not recall what was said. Findley submitted her affidavit, in which she stated, “At no time prior to this accident did I ever become drowsy or did I feel tired and incapable of driving my vehicle to my home.”

APCo placed this utility pole in its location on Broughton Road in 1946, and since *1210its placement there had been no accidents involving the utility pole, until Findley’s 1995 accident. The Findleys had lived on Broughton Road approximately 13 years before the accident, and they drove by the utility pole on a daily basis. Rodney Find-ley had previously been employed by APCo to map utility poles once the poles were in place. He admitted that, although he thought the utility pole was “mighty close to the road,” he did not report the situation to APCo, and he did not consider the utility pole to be a hazard until after Findley’s accident.

Broughton Road curves slightly where the utility pole was located, and a small ditch runs parallel to Broughton Road. The utility pole was located between the edge of the pavement and the ditch. William Broughton, a neighbor of the Find-leys, who lives approximately 250 yards from the utility pole, testified that he considered the utility pole to be in a dangerous spot because, he said, it was only about two to three feet from the edge of the road. Broughton further testified that on two or three occasions before Findley’s accident he had requested that APCo move the utility pole. Broughton also testified that after the accident he insisted that the utility pole be relocated to the other side of the ditch and that APCo finally complied with this request.

APCo also submitted the affidavit of George F. Brooks, its supervisor of risk services for the eastern division. Brooks stated that he had obtained measurements at the accident scene and that the distance from the edge of the pavement to the original site of the utility pole was 6 feet, 3 inches and that the distance from the edge of the pavement to the present location of the utility pole was 16 feet, 8 inches.

Findley’s expert testified that before the accident the utility pole was located on the outermost edge of the roadbed and that it was his opinion that the utility pole should not have been located in the roadbed, but should have been placed on the other side of the ditch. APCo’s expert testified that the utility pole was located on the outside edge of the shoulder of the road, between the edge of the pavement and the ditch, and that he would recommend that the utility pole be placed on the other side of the ditch (where it is currently located). APCo’s expert further testified that if the utility pole had been located on the other side of the ditch, it was “[his] best judgment that [Findley’s car] wouldn’t have hit the pole.”

*The Negligence Claim*

Findley contends that APCo was guilty of negligence because, she says, it located the utility pole too close to the highway, and that negligence, she says, caused her automobile accident. Findley argues that the trial court erred in entering a summary judgment in favor of APCo because, she claims, she presented sufficient evidence to submit the issues of negligence and contributory negligence to a jury. APCo contends that Findley did not present substantial evidence that it was negligent. APCo further contends that Findley failed to rebut its showing that she was contributorily negligent.

The dispositive issue is whether Findley produced substantial evidence to defeat APCo’s properly supported motion for summary judgment. Specifically, we must determine whether Findley rebutted APCo’s showing, via the affidavit of a state trooper who interviewed Findley at the scene of the accident, that Findley “became drowsy, fell asleep at the wheel, and left the travelled portion of the roadway,” and was therefore contributorily negligent.

The issue of contributory negligence turns on whether Findley continued to drive while drowsy, knowing that she might fall asleep at the wheel.

> “In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent; it lies within his own control to keep awake or cease from driving; and so the mere fact of his going to *1211sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven.... If such circumstances are claimed to have been proven, it then becomes a question of fact whether or not the driver was negligent; and in determining that issue, all the relevant circumstances are to be considered, *including the fact that ordinarily sleep does not come upon one without warning of its approach.”*

*Kilburn v. Bush,*223 A.D.2d 110, 115, 646 N.Y.S.2d 429, 432 (N.Y.App.Div.1996) (quoting *Bushnell v. Bushnell,*103 Conn. 583, 592, 131 A. 432, 435 (1925)) (emphasis added). Findley’s affidavit in opposition to APCo’s motion for summary judgment states that “[a]t no time prior to th[e] accident did [she] ever become drowsy or ... feel tired and incapable of driving.” This statement, construed most favorably to Findley, is sufficient to create a factual issue as to whether she fell asleep, because “ordinarily sleep does not come upon one without warning of its approach.” *See Kil-burn v. Bush,*223 A.D.2d at 115, 646 N.Y.S.2d at 432. That evidence rebutted APCo’s showing and created a genuine issue of material fact as to whether Find-ley did, in fact, become drowsy and fall asleep at .the wheel.

The statement in Findley’s affidavit did not violate the rule that a party cannot create an issue of fact by submitting an affidavit that directly contradicts, without explanation, that party’s earlier testimony. *See Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc.,*611 So.2d 238, 245 (Ala.1992). *See also Liles v. Flatley,*643 So.2d 947 (Ala.1994). The statement in Findley’s affidavit that, prior to the accident, she did not “become drowsy or ... feel tired and incapable of driving” does not directly contradict her earlier deposition testimony that, at the time of the accident, she “assumed she was awake” but did not know, or that she did not remember much of the accident. *See Ex parte Coleman,*705 So.2d 392 (Ala.1997) (witness’s statement that he “did not remember” who installed air conditioner constituted no evidence of fact that a non-licensed electrician installed air conditioner).

*Proximate Cause*

APCo contends that the proximate cause of the accident was Findley’s act of driving approximately 6 to 10 feet off the traveled portion of the road, not the placement of the utility pole. Our supreme court stated the following in *Marshall County v. Uptain,*409 So.2d 423, 425 (Ala.1981):

> “The question of proximate case is almost always’ a question of fact to be determined by the jury. The question must go to the jury if reasonable inferences from the evidence support the theory of the complaint. The question of whether [the defendant’s] alleged negligence was the proximate cause of [the plaintiffs] injuries was a question of fact and [was] properly submitted to the jury.”

(Citations omitted.)

It was inappropriate for the trial court to enter a summary judgment on the negligence claim in favor of APCo because Findley presented substantial evidence to create a genuine issue of material fact and because the issue of proximate cause of Findley’s injuries was a question of fact to be determined by a jury.

*The Wantonness Claim*

Findley contends that APCo was guilty of wanton misconduct because, she says, it had been advised that the location of the utility pole was dangerous before the date of the accident and yet failed to move the pole. Findley argues that APCo had been warned on three different occasions that the pole posed a hazard to motorists. All three “warnings,” however, came from William H. Broughton, a property owner who lived within 250 yards of the pole. Broughton testified that he asked APCo “on two or three occasions to move the *1212pole” because he “felt like it was dangerous.”

In *Griffin Lumber Co. v. Harper,*247 Ala. 616, 618, 25 So.2d 505, 506 (1946), our supreme court explained:

> “Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury.”

In *Gilbert v. Southern Bell Telephone & Telegraph Co.,*200 Ala. 3, 75 So. 315 (1917), the plaintiff was injured when his vehicle struck a telephone pole located four feet from the outside edge of the road. Our supreme court held that the trial court had correctly submitted the plaintiffs negligence claim to the jury, but had erred by failing to direct a verdict for the defendant on the wantonness claim. The court stated:

> “The pole had long stood where it was on the margin of a much-traveled road. At best for plaintiff it stood only so near the graveled part of the road that the hubs of passing vehicles had left some marks or scratches on it. There was no evidence that anyone else had ever been hurt there. A finding that defendant had wantonly, willfully, or intentionally caused the damage of which plaintiff complained would have had no support in the rational inferences afforded by the evidence.”

200 Ala. at 4, 75 So. at 316. Findley, likewise, did not present substantial evidence of APCo’s wantonness. Requests by Mr. Broughton that APCo move its pole because Broughton “felt like [the pole] was dangerous” constitute a mere lay opinion of dangerousness and do not establish that the location of the pole was a hazard. The “marks and scratches” on the pole in *Gilbert,*which had been left by “the hubs of passing.vehicles,” constituted much more evidence of the pole’s potentially hazardous location, yet the *Gilbert*court held that, without proof that “anyone else had ever been hurt there,” there was not sufficient evidence of wantonness to submit the issue to a jury. Consequently, we affirm the summary judgment as to the wantonness claim.

The judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

ROBERTSON, P.J., and YATES and MONROE, JJ., concur.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissenting.

I would affirm the summary judgment in favor of Alabama Power Company; therefore, I must respectfully dissent.

To defeat Alabama Power’s, motion for a summary judgment on the issue of negligence, Findley must present substantial evidence, or “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved,” in support of her claim. *West v. Founders Life Assurance Co. of Florida,*547 So.2d 870, 871 (Ala.1989). In order to establish negligence, Findley must present evidence (1) that Alabama Power owed her, as a foreseeable plaintiff, a duty; (2) that Alabama Power breached that duty; and (3) that the breach proximately caused her injuries. *Martin v. Arnold,*643 So.2d 564 (Ala.1994).

The Supreme Court of Alabama has held that the proximate cause of any injury is “an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, produces the injury and without which the injury would not have occurred.” *Byrd v. Commercial Credit Corp.,*675 So.2d 392, 393 (Ala.1996). Thus, Findley must prove some nexus between Alabama Power’s actions and her injuries; mere proof of an accident and an *1213injury is not sufficient to establish negligence. *Khirieh v. State Farm Mut. Auto. Ins. Co.,*594 So.2d 1220 (Ala.1992) (citations omitted). Further, it must be determined whether the injury resulting from the defendant’s conduct was foreseeable. *Lyon v. Volkswagen of America, Inc.,*676 So.2d 356 (Ala.Civ.App.1996).

*Restatement (Second) of Torts*states that the issue of foreseeability concerns whether travelers on the roadway could come into contact with a power pole during the course of a deviation that the defendant should have reasonably anticipated. See *Restatement (Second) of Torts*§ 368, cmt. h (1965).

> “A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who

> “(a) are traveling on the highway, or “(b) foreseeably deviate from it in the ordinary course of travel.”

*Restatement (Second) of Torts*§ 368 (1965).

In 1946, Alabama Power installed the power pole at issue more than six feet from the roadway. One of the witnesses for Findley testified that the road along which the pole is located is “very busy.” Findley drove past this power pole on a daily basis for 13 years. On the day of the accident, the weather was sunny and dry. The power pole is visible 75 yards from its location and there are no bushes or any other type of obstruction concealing a clear view of the pole.

Findley testified that she remembered passing the home of a neighbor who lives approximately 50 yards from the location of the power pole. Findley testified that she does not remember anything after that until she saw the pole directly in front of her automobile. She said she did not have time to brake or to swerve to miss the pole; there were no skid marks on the road to indicate that Findley made any attempt to stop the vehicle before it hit the power pole. Findley testified that she does not know whether she had already driven off the road when she first saw the power pole.

Findley’s accident was the first accident involving this power pole in the 49 years that the pole had been in place. Findley drove so far to the right of the paved road that the left front of her automobile struck the pole. When it struck the pole, the driver’s side of Findley’s automobile was approximately six feet from the side of the roadway and the passenger side was approximately 10 feet from the paved road.

These facts do not support Findley’s claim that the placement of the power pole proximately caused her injuries; she has not established a nexus between Alabama Power’s actions and her injuries. Where the plaintiff fails to show that the action of the defendant proximately caused her injury, an action for negligence cannot be sustained, as a matter of law. *Bell v. Colony Apartments Co.,*568 So.2d 805 (Ala.1990). Although I recognize that a summary judgment is rarely appropriate in a negligence action, *Butler v. AAA Warehousing & Moving Co.,*686 So.2d 291 (Ala.Civ.App.1996), the question of the sufficiency of the evidence is clearly within the province of the trial court. When, in response to a properly supported summary judgment motion, the plaintiff fails to carry her burden of proof by presenting substantial evidence to support her claim, it is the *duty*of the trial judge to dispose of the matter by entering a summary judgment in favor of the defendant.

The Supreme Court of Alabama has determined that in placing power poles along the roadways an electric company has the duty to install or maintain those poles in such a manner that they are not dangerous to the traveling public. *Birmingham**1214*Electric Co. v. Lawson,*239 Ala. 236, 194 So. 659 (1940).

> “[T]he only foundation for legal liability to one injured or damaged in the legitimate use of the highway in consequence of -the location or maintenance of such pole is negligence in placing or maintaining the same in such close proximity to the portion of the highway set apart and devoted to public use as to be dangerous to members of the public in the legitimate use of the highway, and the negligence must be a proximate cause of the injury.”

*Birmingham Electric Co.,*239 Ala. at 237, 194 So. at 661.

While I suppose that it is technically always “foreseeable” that a driver could drive off the road and hit a power pole no matter where the pole is located, under the applicable law Alabama Power does not bear liability for such a wide deviation from the roadway. Rather, Alabama Power is liable where its negligent placement or maintenance of a power pole is “dangerous to members of the public *in the legitimate use of the highway.” Id.*I interpret that language to mean that there is liability to drivers who exercise a minimal level of care in driving. It can not be said that Findley exercised such care in operating her vehicle.

I ■ do not believe that Alabama Power could reasonably anticipate that, in the “ordinary course of travel,” Findley would leave the roadway and drive directly into the power pole. Findley’s actions did not constitute a minor or a foreseeable deviation from the roadway. .

Findley does not allege that the power pole’s proximity to the road caused her accident; rather, she alleges that she was injured because of the pole’s proximity to the road. I would note that many objects, both natural and manmade, including trees, rocks, ditches, fences, and mailboxes, line the roadways of this state and are located closer to the roadways than was this power pole. In leaving the paved roadway, Findley was not entitled to a path completely free of all obstacles until she could stop or regain control of her vehicle and reenter the roadway.

I do not believe Findley presented sufficient evidence to withstand Alabama Power’s motion for a summary judgment. Findley has presented no evidence that Alabama Power breached a duty it owed her. Because Findley presented no evidence indicating that Alabama Power breached a duty, Alabama Power was entitled to a judgment as a matter of law. It is clear from the record that Findley’s driving, not the location of the power pole, was the proximate cause of her injuries; the pole was merely the object she hit after leaving the road. Although questions of proximate causation and negligence are generally reserved for the jury, the question whether the evidence presented by the plaintiff is sufficient to go to the jury is clearly within the trial court’s discretion. Where, as here, the evidence presented by the plaintiff is not sufficient to create a factual question on the issues of negligence and proximate causation, the trial court may properly enter a summary judgment.

I would affirm the judgment of the trial court; therefore, I must respectfully dissent.