Opinion
No. 1050532.
Decided January 5, 2007.
Appeal from Jefferson Circuit Court (CV-02-4965)
James E. Laster, Jr., by and through his parents and next friends, James E. Laster, Sr., and Gloria Laster, and James E. Laster, Sr., and Gloria Laster, individually, appeal the summary judgment in favor of Norfolk Southern Railway Company, Inc., and the Alabama Great Railway Company. Because there are no genuine issues of material fact as to whether the railroads violated any duty to Laster, we affirm the summary judgment.
I. Factual and Procedural History
In August 2000, a train operated by Norfolk Southern Railway Company, Inc., and the Alabama Great Railway Company (collectively "Norfolk Southern"), severed the right foot of 10-year-old James E. Laster, Jr. ("James"), on private property owned by Norfolk Southern in Birmingham. Earlier that day, James had left his parents' house to play with nine-year-old Raymond Smith. James and Raymond decided to walk to Woodward Park. However, instead of walking on McMillion Avenue, they decided to walk along the railroad right-of-way that runs parallel to McMillion Avenue. James's parents had warned him not to walk on the right-of-way without an adult present, and James admitted that he knew that it was dangerous for him to take that route. However, he testified that he walked on the right-of-way because he was afraid of the fast cars, dogs, and "crazy people" on McMillion Avenue.
While James and Raymond were walking along the right-of-way, a train approached, and they moved as far from the tracks as the trees lining the tracks would allow. The train slowed and came to a stop in front of them. They turned around and began walking back toward James's house, because, James said, he was afraid that the train might start to move again. As James and Raymond passed an open hopper car, Raymond climbed the ladder to the top of the car. James heard a whooshing sound of air from the train's brakes, and, because he thought that the train might start moving, he called for Raymond to come down. Instead, Raymond replied "Hold up." James decided to pull his friend down, and he stood with his right foot on the rail in order to reach Raymond. Raymond fell on top of James, and James felt a burning pain in his right foot. The train had started rolling, and it rolled over and severed James's right foot.
James, by and through his parents, and his parents individually (hereinafter referred to collectively as "Laster") sued Norfolk Southern, asserting claims of negligence and wantonness, as well as a claim for the tort of outrage. Laster argues that Norfolk Southern should have known that children would trespass on its property and that they possibly would be injured by a train. Laster points out that the stretch of track on which James was injured has one of the highest incidences of pedestrian casualties and that, in the past, Norfolk Southern had used a trespasser-abatement program in the area, visiting schools and monitoring the tracks. Laster also argues that the engineer on the train failed to blow the horn before releasing the brakes and allowing the slack between the cars to work its way out. He contends that if the engineer had blown the horn before he released the brakes, then James and Raymond would have had more time to get away from the railroad car before the train cars actually began to move. He further argues that the train should not have stopped in such a densely populated area, suggesting other workable locations for a stop that would have posed a lesser risk to children. Following a hearing, the trial court granted Norfolk Southern's motion for a summary judgment, issuing an order that did not include factual findings or legal analysis. Laster appeals.
Laster argues that the trial court erred in entering a summary judgment in favor of Norfolk Southern. Norfolk Southern's argument in support of its summary-judgment motion was that the only duty it owed James was a duty to exercise reasonable care after its train crew discovered the child in a position of peril from which he could not remove himself. Norfolk Southern also contended that James's and Raymond's own contributory negligence was the sole proximate cause of their injuries. Finally, Norfolk Southern argued that even if the doctrine of attractive nuisance applied in this situation, Laster had not produced sufficient evidence indicating that the train was an attractive nuisance to survive a motion for a summary judgment.
II. Standard of Review
To grant a motion for a summary judgment, the trial court must determine that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Ex parte CSX Transp., Inc., 938 So.2d 959, 961 (Ala. 2006);see Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (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."West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989); § 12-21-12(d), Ala. Code 1975.
In our review of a summary judgment, we apply the same standard as does the trial court on factual issues. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Ex parte CSX Transp., 938 So.2d at 962; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990). The trial court's ruling on questions of law carries no presumption of correctness, and this Court reviews de novo the trial court's conclusion as to the appropriate legal standard to be applied. Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997).
III. Analysis A. Duty of Care
Laster first argues that the trial court failed to apply the correct duty of care owed by the railroad. In its summary-judgment motion, Norfolk Southern argued that the conventional duty of care owed by a possessor of land to trespassers applies in this case. In general, "[a] railroad owes no duty to prevent injury to an undiscovered trespasser on its track. But when the railroad discovers the trespasser, it has the duty to exercise reasonable care to avoid injuring him or her."Beam v. Seaboard Sys. R.R., 536 So.2d 927, 928 (Ala. 1988) (citation omitted). Because it is undisputed that James and Raymond were trespassers on its property, Norfolk Southern contends, it owed to them a duty only to avoid wantonly or negligently injuring them after Norfolk Southern, through its agents, discovered that the boys were in a position of peril.
Although Norfolk Southern correctly states the conventional duty of care a possessor of land owes to a trespasser, this Court has long recognized exceptions to this limited duty where child trespassers are involved. First, this Court recognized the doctrine of attractive nuisance, which we have defined as "a condition which is naturally attractive to children at that place and is likely to be dangerous to such a person in the ordinary course of events, all of which is known to the defendant and not to the injured person and not obviously dangerous in itself. . . ." City of Dothan v. Gulledge, 276 Ala. 433, 435, 163 So.2d 217, 219 (1964). Next, this Court recognized a "straight-negligence" theory of liability, which "arguably developed as a reaction to the restrictive use of the attractive nuisance theory." Tolbert v. Gulsby, 333 So.2d 129, 132-33 (Ala. 1976). Finally, this Court has adopted the 2 Restatement (Second) of Torts: Artificial Conditions Highly Dangerous to Trespassing Children § 339 (1965), replacing the earlier theories of attractive nuisance and straight-negligence the Court had previously applied. Tolbert, 333 So.2d at 135.
Section 339 of the Restatement (Second) of Torts, like the doctrines of attractive nuisance and straight negligence, is an exception to the conventional duty of care in the case of trespassing children, requiring property owners to exercise reasonable care in order "to give primacy to child safety rather than unrestricted property rights." Motes v. Matthews, 497 So.2d 1121, 1122 (Ala. 1986). "A possessor of land owes a duty to exercise reasonable care to eliminate an artificial condition on land that poses a danger to children." Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So.2d 953, 961 n. 5 (Ala. 1993) (citingFletcher v. Hale, 548 So.2d 135 (Ala. 1989), and Lyle v. Bouler, 547 So.2d 506 (Ala. 1989)).
Motes held that the conventional duty of care recited inBeam is "not applicable . . . except where physical harm to a trespassing child is caused by a natural condition upon the property. . . . In all other cases, the duty which an occupier of property owes to a trespassing child is set forth in § 339, Restatement (Second) of Torts." Motes, 497 So.2d at 1122-23.
"'Section 339 provides:
"'"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
"'"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
"'"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
"'"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
"'"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
"'"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."'"
Ricketts v. Norfolk Southern Ry., 686 So.2d 1100, 1103 (Ala. 1996) (quoting Lyle v. Bouler, 547 So.2d 506, 507 (Ala. 1989)).
The threshold issue, then, in deciding whether the conventional duty of care or the duty of care put forward in § 339 applies, is whether the condition that injured the trespassing child was a natural or an artificial one. Norfolk Southern argues that § 339 has no application to a train operating on active railroad tracks, whether moving or stopped temporarily. However, Norfolk Southern has put forward no viable theory under which this Court could hold that a train is not an artificial condition. Norfolk Southern conflates the inquiry as to whether a train is a natural or an artificial condition upon the land with the analysis to be performed once § 339 is held to apply.
Norfolk Southern cites Holland v. Baltimore Ohio R.R., 431 A.2d 597 (D.C.App. 1981), for the proposition that § 339 does not apply where children trespassers are injured by a moving train. TheHolland court performed an "independent analysis" of § 339 and concluded that the Restatement test could not be met because element (c), that the child does not discover or realize the risk, could not be satisfied, reasoning that
"'[n]othing could be more pregnant with warning of danger than the noise and appearance of a huge, rumbling string of railroad cars. It cannot be compared with the silent, deadly danger of high-power electricity, the inanimate attraction of stationary machines, traps or turntables, loose boards, unseen pitfalls, or the still, inviting depths of a swimming pool to a tiny child.'"
431 A.2d at 603 (quoting Herrera v. Southern Pacific Ry., 188 Cal. App. 2d 441, 449, 10 Cal. Rptr. 575, 580 (1961)). The fact that a train might be an obvious danger under subparagraph (c) of § 339, however, does not mean that it is a natural condition upon the land. Nor do the other cases upon which Norfolk Southern relies hold that a train that is stopped temporarily is not an artificial condition upon the land; these cases were decided on various other grounds: Louisville Nashville R.R. v. Spence's Adm'r, 282 S.W.2d 826, 829 (Ky. 1955), applied the conventional duty of care owed to trespassing children; it thus did not involve § 339. Alston v. Baltimore Ohio R.R., 433 F. Supp. 553, 570 (D.D.C. 1977), concluded that "as the `circumstances' of Myron's accident unquestionably include his full appreciation of the risk, the instant case does not meet the requirement of Restatement 339(c). . . ."Alston dealt with a plaintiff who knew that hopping onto a freight train was dangerous; it does not stand for the proposition that a moving train is not an artificial condition. Finally, in Hughes v. Union Pacific R.R., 114 Idaho 466, 470, 757 P.2d 1185, 1189-90 (1988), the Supreme Court of Idaho stated that Restatement § 339 did not represent the law of Idaho. The court decided that, based upon the particular facts of the case, the plaintiff "'appreciate[d] the dangers created by certain artificial conditions.'" Hughes, 114 Idaho at 470, 757 P.2d at 1189 (quoting Guilfoyle v. Missouri, Kansas, Texas R.R., 812 F.2d 1290, 1292 (10th Cir. 1987)). We do note that although the Idaho court did not apply § 339, the quoted language suggests that that court considered a train to be an artificial condition. Thus, the cases Norfolk Southern cites simply do not hold that § 339 does not apply to a temporarily stopped train.
Alabama cases distinguish only between those conditions that are natural and those that are artificial; therefore, a train must fit in either the one category or the other. Alabama caselaw suggests that a train, whether stopped or moving, is an artificial condition upon the land. In Slaughter v. Moncrief, 758 So.2d 1102, 1106 (Ala.Civ.App. 1999), the court held that a temporarily parked pickup truck on an inclined driveway is an artificial condition. Alabama courts have engaged in the § 339 analysis and found a number of conditions upon the land to be artificial, namely, a railroad trestle, Ricketts, 686 So.2d at 1103-07; an electrical transmission switching tower, Henderson v. Alabama Power Co., 627 So.2d 878, 880 (Ala. 1993), abrogated on other grounds, Ex parte Apicella, 809 So.2d 865 (Ala. 2001); a swimming pool,Fletcher v. Hale, 548 So.2d 135 (Ala. 1989); a clay pit, Lyle v. Bouler, 547 So.2d 506, 507 (Ala. 1989); excavated land,Motes, 497 So.2d at 1124; a trampoline positioned near the roof of a house, Kennedy v. Graham, 516 So.2d 572 (Ala. 1987); an air rifle,Tolbert, 333 So.2d at 135; and a house under construction, Tanner v. Lee, 725 So.2d 988, 989 (Ala.Civ.App. 1998).
In other cases, this Court engaged in the § 339 analysis while specifically declining to decide whether there was an "artificial condition" on the land. See Hollis v. Norfolk Southern Ry., 667 So.2d 727, 731 (Ala. 1995) (a manmade cliff that closely resembled a natural cliff); Gentle v. Pine Valley Apartments, 631 So.2d 928, 936 n. 3 (Ala. 1994) (a dog).
The train in this case is a machine made by human hands, and it more closely resembles a pickup truck or an air rifle than it does a natural condition such as a ravine or a tree. This Court held in Copeland v. Pike Liberal Arts School, 553 So.2d 100, 103 (Ala. 1989), that a ravine was a natural condition and that the landowner in the case owed a trespassing child only the conventional duty of care. In concluding that § 339 did not apply, we noted that "[t]he ravine was not created by any action of the defendants, but, instead, was a natural condition of the land." 553 So.2d at 102. Also, in Mullins v. Pannell, 289 Ala. 252, 255, 266 So.2d 862, 864 (1972), this Court held that "[n]atural objects, such as a tree, are not regarded as constituting an attractive nuisance." Thus, the defendant owed only the conventional duty of care to a child trespasser who fell from his tree. The fact that there was various artificial debris, such as planks and boards, under the tree did not affect the natural character of the tree. Id.
The law of other jurisdictions also supports our determination that a train is an artificial condition. See Klein v. National R.R. Passenger Corp. (No. Civ.A. 04-955, March 31, 2006) (E.D. Pa. 2006) (not reported in F. Supp. 2d) ("In this case, the laddered freight car was an artificial condition upon the land that allowed the 21' high catenary wires to become dangerous."); Thunder Hawk v. Union Pacific R.R., 844 P.2d 1045, 1051 (Wyo. 1992) (reversing a summary judgment for a railroad where a child was injured when he jumped from a stopped train).
We decline to hold that a train is a natural condition upon the land. Thus, we apply the duty of care owed for artificial conditions as delineated by § 339.
B. The § 339 Elements
Having held that the duty of care set out in Restatement § 339, rather than the conventional duty of care, applies in this case, we turn to the elements of the Restatement test. Because Laster has the burden at trial of establishing all the elements of § 339, Norfolk Southern need only demonstrate that there was no genuine issue of material fact regarding one of the five elements in order for a summary judgment to be proper.Motes v. Matthews, 497 So.2d at 1123 (1986).
1. James's Appreciation of Danger
Norfolk Southern argues that there is no genuine issue of fact with regard to element (c) of § 339, which deals with the child's appreciation of the danger of the instrumentality. We agree.
The record supports a finding that James understood the risk involved in walking on the railroad right-of-way and that he appreciated the danger of a stopped train. James testified that he knew that trains were dangerous and that his parents had repeatedly warned him not to walk on the railroad tracks without an adult. He stated that he had heard of a man who "got killed by, run over by a train." After the train came to a stop, James and Raymond turned around and walked back toward James's house. James testified that they "didn't want to get to the front of the train, like if it just started back and stuff. That would be kind of scary." When Norfolk Southern's attorney asked James if he turned around "because you knew if the train came to a stop there, it would probably start back up at some point?" the boy replied, "Yes, sir." Finally, James was aware that the train was ready to move because he testified that he heard the "whooshing" sound of the train's air brakes being released, and he was familiar enough with that sound to associate it with a train starting.
Norfolk Southern produced sufficient evidence that James appreciated the danger of approaching the train and that, therefore, he could not satisfy element (c) of § 339. See Dennis v. Northcutt, 923 So.2d 275, 281 (Ala. 2005) ("'"If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56 burden of production either by submitting affirmative evidence that negates an essential element in the nonmovant's claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant's evidence is insufficient to establish an essential element of the nonmovant's claim. . . ."'"). Norfolk Southern has thus met its burden of establishing that summary judgment was appropriate in this case.
In order to defeat a properly supported summary-judgment motion, Laster must present "substantial evidence" creating a genuine issue of material fact. 923 So.2d at 280. 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." West v. Founders Life, 547 So.2d at 871. Laster, however, put forward no evidence that James did not appreciate the danger of approaching the train after it stopped. Indeed, Laster states in his brief that James was leaving the area of the train out of respect for the danger it posed. Laster's brief at 36. The evidence suggests that James understood that trains are dangerous. He understood that the train could begin to move again at anytime, yet he still attempted to pull his friend off the train. In Hollis v. Norfolk Southern Ry., 667 So.2d 727 (Ala. 1995), this Court discussed whether subsection (c) applied to a 16-year-old who was injured as he walked along the edge of a manmade cliff at night. The Court, discussing whether the teenager appreciated the danger of this course of action, stated that "a landowner is not subject to liability when a child knows of a danger and appreciates the risk involved, but chooses to go forward and to encounter the danger out of `recklessness or bravado.'"Hollis, 667 So.2d at 732 (quoting Restatement (Second) Torts § 339 cmt. m.). Here, although James's motives in trying to help his friend are commendable, he appreciated the danger and nonetheless approached the train.
Laster argues that, given the stress of the emergency situation created when the train began to move, the boys should not be held to the same correctness of judgment and ability to recognize danger as one in normal circumstances. See Interstate Eng'g v. Burnette, 474 So.2d 624, 628 (Ala. 1985) ("'[I]f a person without fault of his own is faced with a sudden emergency, he is not to be held to the same correctness of judgment or actions as if he had time to fully consider the situation. . . .'"). However, Laster presents no evidence indicating that James did not appreciate the danger of the situation, notwithstanding the stress of the moment.
2. The Rescue Doctrine
Laster argues that even if this Court holds that James appreciated the danger of a stopped train so as to preclude recovery under § 339, he may still be able to recover if Raymond, his nine-year-old companion, did not appreciate that same danger. Because James attempted to come to Raymond's rescue, Laster argues, the "rescue doctrine" applies. This Court has recognized the rescue doctrine as an exception to the doctrines of assumption of the risk and contributory negligence.Seaboard Air Line Ry. v. Johnson, 217 Ala. 251, 254, 115 So. 168, 170 (1927). In Dillard v. Pittway Corp., 719 So.2d 188, 193 (Ala. 1998), this Court stated:
"Essentially, the rescue doctrine provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position and that the rescuer may incur injuries in doing so. Thus, if the defendant has acted negligently toward the person being rescued, he has acted negligently toward the rescuer."
This Court has never decided whether the rescue doctrine applies to allow a plaintiff who otherwise appreciated the danger of an instrumentality nonetheless to recover under § 339. However, we have recognized the rescue doctrine in cases where a rescuer otherwise would have been barred from recovering damages by the doctrine of assumption of the risk. Dillard, 719 So.2d at 193. Assumption of the risk and appreciation of danger are analogous concepts, and Norfolk Southern has not put forward any reason why the rescue doctrine should not be applied in this case. Further, courts in other jurisdictions have applied the rescue doctrine to cases based on § 339. See Bennett v. Stanley, 92 Ohio St.3d 35, 43, 748 N.E.2d 41, 48-49 (2001) ("While the attractive nuisance doctrine is not ordinarily applicable to adults, it `may be successfully invoked by an adult seeking damages for his or her own injury if the injury was suffered in an attempt to rescue a child from a danger created by the defendant's negligence.'"); Luck v. Baltimore Ohio R.R., 510 F.2d 663, 667 (D.C. Cir. 1974) (applying the rescue doctrine in an attractive-nuisance case). For these reasons, if James was injured in an attempt to rescue Raymond from Norfolk Southern's negligence, he could recover if Raymond, among other things, did not appreciate the danger of the train.
However, Laster, who asserts that the rescue doctrine applies here, has failed to demonstrate that its application would allow him to recover in this case. A summary judgment is appropriate when "it appears from the combined evidentiary showings before the court at the hearing that there is no genuine issue of fact to be resolved." Jerome A. Hoffman, Alabama Civil Procedure § 10.3 (2d ed. 2001). Rule 56(c)(3), Ala. R. Civ. P., states:
"[A summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Thus, if the record does not demonstrate an issue of material fact regarding Raymond's appreciation of the danger of playing on a stopped train, then a summary judgment was appropriate.
There is little evidence in the record regarding Raymond and his appreciation of danger. Neither party deposed Raymond or had him execute an affidavit. Nor did the trial court make any factual findings with respect to Raymond in its order. However, "when the trial judge makes no specific findings of fact as to an issue, we will assume that the judge has made findings necessary to support the judgment, unless those findings are clearly erroneous." Ex parte Owen, 860 So.2d 877, 880 (Ala. 2003) (citing Casey v. Manning, 571 So.2d 1024, 1025 (Ala. 1990)).
This Court has declined to set an age limitation after which a child is no longer protected by § 339. Lyle v. Bouler, 547 So.2d at 508. However, we have recognized that age is a factor in deciding whether a child can appreciate a hazard on another's property. Id. The Court inLyle set forth a nonexhaustive list of factors that "merit examination":
"(1) the intelligence of the child; (2) the capacity of the child to understand the potential danger of the hazard; (3) the child's actual knowledge of the danger; (4) the child's ability to exercise discretion; (5) the education level of the child; (6) the maturity of the child; and (7) the age of the child."
547 So.2d at 508. At trial, Laster bore the burden of showing that Raymond did not appreciate the danger of climbing onto a railroad car, and such a showing might have included evidence based on some or all of the listed factors. However, based on the record before the trial court, the only evidence that would allow it to weigh these factors and determine whether Raymond appreciated the danger was the fact that Raymond was nine years old at the time of the incident. Further, James testified that Raymond continued to climb on the railroad car notwithstanding James's warning that the train would start soon.See Hollis, 667 So.2d at 732 ("[A] landowner is not subject to liability when a child knows of a danger and appreciates the risk involved, but chooses to go forward and to encounter the danger out of `recklessness or bravado.'" (quoting Restatement (Second) Torts § 339 cmt. m.)). Given the lack of evidence in the record indicating that Raymond did not appreciate the danger involved in climbing on the train car, we cannot conclude that the summary judgment in this case was clearly erroneous.
Because discovery had been completed, Norfolk Southern could meet its Rule 56 burden by demonstrating to the trial court that Laster's evidence was insufficient to establish an essential element of his claim. Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala. 1999). Laster then could have "'defeat[ed] a motion for summary judgment . . . by directing the trial court's attention to evidence of that essential element already in the record, that was ignored or overlooked by [Norfolk Southern], or [could] submit an affidavit requesting additional time for discovery. . . .'" Id. (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala. 1989) (Houston, J., concurring specially)). However, Laster did not provide any additional evidence regarding Raymond's appreciation of danger, and a summary judgment was proper as to Laster's negligence claim founded on the rescue doctrine. See Rule 56(e), Ala. R. Civ. P. (stating that a party "may not rest on mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial"); Ronald L. Carlson, Successful Techniques for Civil Trials § 8:26 (2d ed. 1992) ("The mere possibility that a fact issue may exist is not enough to defeat summary judgment, and the litigant opposing summary judgment may not rest upon mere conclusory allegations or denials as a vehicle for obtaining trial."). For these reasons, we cannot hold that the trial court erred in entering a summary judgment for Norfolk Southern on the basis that James was injured during an attempt to rescue his friend.
Because the trial court's summary judgment for Norfolk Southern based on element (c) of Restatement § 339 was proper, it is not necessary for this Court to address Laster's contributory-negligence argument. See Premiere Chevrolet, Inc. v. Headrick, 748 So.2d 891, 893 (Ala. 1999) ("The appellate courts will affirm the ruling of the trial court if it is right for any reason, even one not presented to or considered by the trial judge."); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala. 1988) ("An appellee can defend the trial court's ruling with an argument not raised below, for this Court `will affirm the judgment appealed from if supported on any valid legal ground.'" (quoting Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala. 1983))).
IV. Conclusion
Laster has failed to meet his burden to produce substantial evidence showing that James did not appreciate the danger of approaching a stopped train so that a summary judgment would be improper. Also, Laster has failed to produce substantial evidence indicating that Raymond did not appreciate the danger of climbing on a stopped train; thus, Laster is unable to demonstrate that the rescue doctrine would allow him to recover for James's injuries on the basis of Norfolk Southern's breach of its duty of care owed to Raymond. Therefore, the trial court did not err in entering a summary judgment for Norfolk Southern.
AFFIRMED.
Nabers, C.J., and Harwood, Stuart, and Bolin, JJ., concur.