Opinion
SC 1151.
December 4, 1975.
Appeal from the Circuit Court, Jefferson County, Ingram Beasley, J.
Trawick Calhoun, Birmingham, for appellant.
The party moving for a summary judgment must clearly establish that the other party could not recover under any discernable circumstances and a summary judgment will not lie if the plaintiff has produced a scintilla of the defendant's negligence. M. Folmar v. Montgomery Fair Company, Inc.; Gafer's Montgomery Fair Company, 293 Ala. 686, 309 So.2d 818. A movant for a summary judgment has the burden to show that there is no genuine issue of a material fact. John C. Ray and Richard M. Plough v. Midfield Park, Inc., SC 742, 9 ABR 726, decided February 13, 1975. When a person by his negligence produces a dangerous condition of things, which does not become active for mischief until another person has operated upon it by the commission of another negligent act, which might not unreasonably be anticipated to occur, the original act of negligence is then regarded as the "proximate cause" of the injury which finally results. Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 267 So.2d 132. An action lies against him who creates a nuisance . . . and notwithstanding a recovery for the erection, it may be afterward maintained against him for the continuance, though he has leased it to another. Grady v. Walsen, 46 Ala. 381.
Lyman Harris, Birmingham, for appellee.
A guest of a tenant has no greater rights against the landowner than the tenant would have in an action against the landowner. Davenport v. Bonner, 275 Ala. 131, 152 So.2d 678 (1963). In the absence of a covenant to repair or to keep in repair, a landowner is liable to his tenant, or to a guest of his tenant, only for injuries resulting from latent defects that were known to the landowner at the time of the leasing and which the landowner concealed from his tenant. Davenport v. Bonner, 275 Ala. 131, 152 So.2d 678 (1963); Uhlig v. Moore, 265 Ala. 646, 93 So.2d 490 (1957); Green v. Jefferson County Building and Loan Association, 241 Ala. 549, 37 So.2d 415 (1941); Lacey v. Deaton, 228 Ala. 368, 153 So. 650 (1934). The question to ask in determining whether a defect is latent is whether the defect could have been discovered by the tenant in the exercise of reasonable diligence. Bullock-McCall-McDonnell Electric Co. v. Coleman, 136 Ala. 610, 33 So. 884 (1903). A landowner is not required to warn his tenant or the guests of his tenant of those defects which are open and obvious to the tenant and to the guests of the tenant. If the presence of a defect is observed by the guest, the defect is open and obvious. King v. Winslett, 287 Ala. 98, 248 So.2d 566 (1971); Clay v. Bentley, 260 Ala. 78, 72 So.2d 412 (1954); Lamson and Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937).
The owner of a trailer park was sued by an insurance salesman who was injured while he was calling upon one of his customers who rented a lot in the trailer park. The trailer park owner moved for summary judgment and filed with his motion a deposition of the injured party, his own deposition, and an affidavit made by him. This evidence, submitted with the motion, in substance, showed that the plaintiff was a life insurance salesman and was calling on one of his customers who rented a trailer lot from the defendant. On the customer's rented lot, there was a concrete block which was used as a step from the top of a retaining wall to the area adjacent to the customer's trailer. The concrete block was not secured in any way, and when the plaintiff stepped on the block on his way into the trailer, he noticed that it "quivered" with him. Later, the salesman went back to his car to get a copy of the insurance policy, and on his way back into the trailer, he stepped from the retaining wall to the concrete block. The block rolled with him, he fell, and was injured.
The trailer park owner's deposition and his affidavit state that he and his wife own the trailer park and they rent lots to tenants under oral leases. It is undisputed that the accident occurred on the leased lot. The landowner denied that he placed the concrete block next to the retaining wall and he said that he did not know who did. He also denied that he had entered into any covenant to repair the premises. The trial court granted summary judgment.
The plaintiff argues that a genuine issue of material fact was presented in that there was at least a scintilla of evidence that the defendant maintained some control over the improvements made on his property. The trailer park owner did testify that the tenants were free to make improvements on their lots "if they passed the Health Department inspection and the Zoning Board inspection." Plaintiff says that this testimony indicated that the owner of the trailer park did exercise some control over what improvements were made. Plaintiff also points to the fact that the defendant built a step on the premises after plaintiff's fall and that this evidence shows that the trailer park owner exercised some control over the improvements which could be made on the trailer lots.
We have viewed the evidence in a light most favorable to the plaintiff, as required by Rule 56, Alabama Rules of Civil Procedure, and we find that there is no genuine issue as to any material fact. The judgment of the trial court, in granting summary judgment, is affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.