«ELECTRONICALLY FILED 4/22/2014 2:23 PM 01-CV-2013-904090.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK IN THE CIRCUIT COURT ...»
4/22/2014 2:23 PM
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMACORNELIUS BENSON, et al., ) ) Plaintiffs, ) ) v. ) Civil Action Number: CV-2013-904090-CPP ) UNITED PARCEL SERVICE COMPANY, ) For hearing on May 28, 2014, INC., et al., ) at 9:00 o’clock, a.m.
) Defendants. )
MOTION FOR PARTIAL SUMMARY JUDGMENT
further support of this motion, UPS states:
NARRATIVE SUMMARY OF UNDISPUTED MATERIAL FACTS1I.
1. Plaintiffs’ claims against UPS arise from the August 14, 2013, crash of UPS Flight 1354 (the “Aircraft”) on its approach to Runway 18/36 at Birmingham-Shuttlesworth International Airport. (Compl., introductory paragraph and 18.)
2. Plaintiffs assert claims against UPS for negligence, trespass, and the tort of outrage and mental anguish in relation to the crash. (Id. at 34-39.)
3. On the morning of the crash, the Aircraft is alleged to have first flown over the property of plaintiff Pamela Yarber (“Yarber”), where plaintiffs claim it struck the tops of some trees. (Id. at 19.)
4. Plaintiffs contend that the Aircraft began dropping debris over some portion of Yarber’s property, and continued to drop debris as it crossed over some portion of the property owned by plaintiffs Cornelius Benson and Barbara Jean Benson (collectively, the “Bensons”).
(Id. at 19-20.)
5. The Aircraft flew past the Bensons’ property, across a street, and crashed in a field owned by the Birmingham Airport Authority beyond the street. (Id. at 18, 20, 21.)
6. Plaintiffs do not appear to allege that the Aircraft flew over the property of plaintiff Christopher Whitfield (“Whitfield”). (See Compl.)
7. At the time of the crash, Whitfield was at his girlfriend’s house in Vestavia Hills, Alabama. (Ex. A, C. Whitfield Answers to Interrogs., Resp. Interrog. No. 5.) While these facts may be taken as true for summary-judgment purposes, UPS expressly reserves the right to contest any or all of them either at trial or at any other stage of these proceedings.
8. When the Aircraft crashed, Yarber was in California. (Ex. B, P. Yarber Answers to Interrogs., Resp. Interrog. No. 5.)
9. The Bensons were at home asleep when the Aircraft flew over some portion of their property. (See Compl., 20-21.)
10. They were awakened, after the Aircraft had passed over their property, by the noise and commotion created when the Aircraft crashed in the field across the street. (See id.)
11. The closest any debris is alleged to have come to the Bensons, as a result of the Aircraft dropping debris as it passed over, is a location outside the Benson’s home, approximately 40 feet from their bedroom. (Id. at 20.)
II. STANDARD OF REVIEWRule 56(c)(3) of the Alabama Rules of Civil Procedure provides that summary judgment is appropriate when “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Ala. R. Civ. P. 56(c)(3). “When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating such an issue.” Miller v. Archstone Communities Trust, 797 So. 2d 1099, 1100 (Ala. Civ. App. 2001) (quoting Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala. 1989)). “Evidence is ‘substantial’ if it is 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.’” Id. (quoting West v. Founders’ Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)).
Significantly, “[m]ere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party’s burden to offer facts to defeat the motion.” Crowne Investments, Inc. v. Bryant, 638 So. 2d 873, 878 (Ala. 1994). Thus, the non-moving party may not rest upon the mere allegations or denials in the original pleadings, but must set forth “specific facts” showing a “genuine issue” for trial. Ala. R. Civ. P. 56(e); see also Eason v. Middleton, 398 So. 2d 245, 248 (Ala. 1981). Consequently, “[w]hen a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the [moving party], the trial court must consider the [moving party’s] evidence uncontroverted, with no genuine issue of material fact existing,” and summary judgment is appropriate. Hurst v.
Alabama Power Co., 675 So. 2d 397, 400 (Ala. 1996).
UPS incorporates herein Section II(A) of its motion for partial judgment on the pleadings filed contemporaneously with this motion. For the same reasons stated in that portion of UPS’s motion for partial judgment on the pleadings, UPS is entitled to partial summary judgment with respect to plaintiffs’ claims for the tort of outrage. Therefore, plaintiffs cannot recover any damages for mental anguish in connection with their claims for the tort of outrage.
Damages for mental anguish are not recoverable in connection with a claim for trespass, “[u]nless the trespass is attended with words or acts of insult or contumely.” Jefferies v. Bush, 608 So. 2d 361, 363 (Ala. 1992). There is no allegation in plaintiffs’ complaint that the crash or the alleged entry of debris from the Aircraft onto plaintiffs’ properties was accompanied by any words or acts of insult or contumely. (See Compl.) There is an absence of any evidence to support such a claim, and it is difficult (if not impossible) to imagine how any such evidence could exist in this case. Accordingly, plaintiffs cannot recover any damages for mental anguish in connection with their claims for trespass.
“In negligence actions, Alabama follows the ‘zone-of-danger’ test, which limits recovery of mental anguish damages ‘to those plaintiffs who sustain a physical injury2 as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.’” Wal-mart Stores, Inc. v. Bowers, 752 So. 2d 1201, 1203 (Ala. 1999) (quoting AALAR, Ltd., Inc. v. Francis, 716 So. 2d 1141, 1147 (Ala. 1998)). Under the zone-of-danger test, plaintiffs in this case cannot recover damages for emotional distress.
At the time of the crash, Yarber was in California and Whitfield was at his girlfriend’s As explained in Section III(D), below, the physical injury cannot merely be physical symptoms resulting from emotional distress brought on by damage to property. The physical injury contemplated here is injury brought on by some physical impact. See Hamilton v. Scott, 97 So.
3d 728, 736 (Ala. 2012). In Hamilton, the Court stated:
97 So. 3d at 736 (emphasis added).
home in Vestavia Hills, Alabama. (P. Yarber Answers to Interrogs., Resp. Interrog. No. 5; C.
Whitfield Answers to Interrogs., Resp. Interrog. No. 5.) They could not have suffered any physical injury in connection with the crash, and they were both clearly outside the zone of danger. Accordingly, neither one of them can recover damages for emotional distress in connection with a negligence cause of action. See Bowers, 752 So. 2d at 1203; White Consol.
Indus., Inc. v. Wilkerson, 737 So. 2d 447, 449 (Ala. 1999) (holding jury erred in awarding damages for mental anguish where plaintiffs were away from their home when it burned down and were not physically injured).
The Bensons were home when the crash occurred, but there is an absence of evidence that they suffered any physical injuries from the crash, and UPS does not believe any such evidence exists. The allegations in the complaint suggest the Bensons did not suffer any physical injury as a direct result of the crash. The complaint alleges that the Aircraft flew over the Bensons’ property, and crashed beyond their home. (Id. at 20.) The complaint contains a detailed description of the effect the crash allegedly had on the Bensons’ property, but the closest it alleges any falling debris came to the Bensons is 40 feet away from the bedroom where they were sleeping. (See id.) The complaint alleges the Bensons woke up, after the Aircraft had passed over their property, to the commotion and noise from the Aircraft crashing beyond their home, not as a result of any injuries they allegedly suffered. (See id. at 21.) The allegations in the complaint and the absence of any evidence of physical injuries suffered by the Bensons in connection with the crash suggest that the Bensons’ did not suffer any physical injuries in connection with the crash.
Because they did not suffer any physical injuries, in order to recover damages for mental anguish under the zone-of-danger test, the Bensons must show that they were placed in immediate risk of physical harm by UPS’s conduct. See Bowers, 752 So. 2d at 1203. “In applying the zone of danger rule, the plaintiff’s presence in the zone of danger must be contemporaneous with a fear for the plaintiff’s own safety.” 86 C.J.S. Torts § 86 (2014); see also Jones v. Howard Univ., 589 A. 2d 419, 423 (D.C. 1991) (“In applying the zone of danger rule we recognize that its logic requires that the plaintiff's presence in the zone of danger be contemporaneous with her fear for her own safety.”); 1 Ala. Pattern Jury Instr. Civ. 11.11, Mental Anguish—Zone of Danger (3d ed.) (“To recover for mental anguish, (name of plaintiff) must prove to your reasonable satisfaction all of the following... (4) [t]hat the immediate risk of physical harm caused (name of plaintiff) mental anguish.).3 The Bensons were never in the zone of danger. The closest the complaint describes any debris coming to the Bensons is 40 feet from the bedroom in which they were sleeping. (See Compl., 20.) Presumably, if any debris had come closer to the Bensons, the complaint would have referenced that debris instead of this debris that allegedly landed outside their home, a significant distance from where they were inside the home sleeping. Being located at least 40 feet from the nearest falling debris, the Bensons were never placed in immediate risk of physical harm by any alleged conduct of UPS.
Even if the Bensons were considered as being within the zone of danger, they were not aware of any danger at the time, so they did not suffer any fear contemporaneous with their Plaintiffs do not allege they suffered mental anguish out of fear caused by an immediate risk of physical harm. (See Compl.) The only mental anguish they allege that relates to potential physical harm is limited to fear of possible, future, physical harm caused by other aircraft. (See id. at 39.) presence in the zone of danger. When the Aircraft flew over the Bensons’ home and was dropping debris, the Bensons were asleep. (See Compl., 20-21.) The subsequent commotion and noise from the Aircraft impacting the ground beyond their home is what awoke them. (See id.) If the Bensons were in the zone of danger while the Aircraft was flying over their property, they were not aware of that danger at the time, because they were asleep. Accordingly, they did not suffer any fear contemporaneous with their presence in the zone of danger.
If the Benson suffered any fear associated with the crash, it was after the Aircraft had already passed over their property, after any debris had already landed, and after the Aircraft had already crashed beyond their house, a significant distance away. (See id.) At that point, the Bensons were clearly not at risk of immediate physical harm relating to any debris (which had already fallen) or the Aircraft (which had already crashed a distance away from the Benson’s home). (See id.) The complaint does not allege there were any other potential hazards created by the crash that might have put the Bensons at risk of immediate physical harm. (See Compl.) Because any fear allegedly experienced by the Bensons would have arisen while the Bensons were outside the zone of danger, the Bensons cannot recover damages for mental anguish under the zone-of-danger test. See Jones, 589 A. 2d at 423; 86 C.J.S. Torts § 86 (2014); 1 Ala. Pattern Jury Instr. Civ. 11.11.
For the foregoing reasons, plaintiffs cannot recover any damages for mental anguish in connection with their claims for negligence.
D. Plaintiffs Cannot Recover Damages for Alleged Physical Symptoms Resulting Solely from Claimed Mental Anguish, Because They Cannot Recover for any Underlying Mental Anguish.
Under Alabama law, in the absence of a physical injury to a person, damages are not recoverable based on alleged physical symptoms resulting solely from mental anguish (nervous reactions) when damages are not recoverable for the underlying mental anguish. See B.F.