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CONTRIBUTORY NEGLIGENCE - THOMAS V. EARNEST

In Thomas v. Earnest, [Ms. 1091428 Mar. 4, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme Court reversed the trial court's finding that a back seat passenger of a vehicle was contributorily negligent as a matter of law. The plaintiff was a back seat passenger in a vehicle driven by his friend Cook. Cook's mother was also in the vehicle and was in the front passenger seat. As Cook's vehicle came to a stop at the intersection of Fairfax Avenue and Ray Street in Bessemer, Alabama, the plaintiff noticed that the lot on the corner of Fairfax Avenue and Ray Street was overgrown with grass and weeds but said nothing to Cook. According to the plaintiff, Cook appeared to be paying attention and under the supervision of her mother. As Cook pulled out into the intersection, her vehicle was struck by another vehicle. Thereafter, the plaintiff filed suit against the owner of the overgrown lot, the person who was hired to maintain that lot, and the estate of the driver who was driving the other vehicle. The owner of the overgrown lot did not assert contributory negligence in his answer. Nevertheless, the owner moved for and was granted summary judgment on that issue. On appeal, the plaintiff argued that the summary judgment was improper because (1) the lot owner waived his contributory negligence defense by not asserting it in his answer; and (2) there were fact issues as to whether the plaintiff was contributorily negligent. On appeal, the court rejected Plaintiff's waiver argument but concluded that there were fact issues making summary judgment inappropriate. First, the Court concluded that the plaintiff waived the argument that the lot owner had waived his contributory negligence defense by not asserting it in his answer because the plaintiff did not object when the lot owner first raised that defense in his motion for summary judgment. Second, the Court concluded that there were fact issues that made summary judgment on the plaintiff's contributory negligence claim inappropriate. The Court noted that a rear seated passenger does not have an absolute duty to warn a driver of a known, appreciated danger. Instead, such a passenger must simply exercise reasonable care for his own safety. Given that standard, the Court found that whether the plaintiff was contributorily negligent was a jury question. In particular, the Court focused on the fact that Cook, the driver of the vehicle in which the plaintiff was a passenger, appeared to have seen and appreciated the risk posed by the overgrown lot and also appeared to be under the supervision of her mother. Given this evidence, the Court reasoned that a jury could conclude that the plaintiff had no duty to warn Cook of the hazard presented by the overgrown lot or take any other actions to prevent the accident. As a result, the Court reversed the entry of summary judgment for the lot owner and remanded the case for further proceedings.

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