The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH MICHAEL HUME, )
)
Plaintiff, )
)
v. ) Case No.: 2:16-CV-00954-MHH
)
WILLIAM L. HUGHES, KERRY )
G. LOVELESS, MILLS-CONOLY )
ENGINEERING, P.C., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
This action arises from injuries plaintiff Joseph Michael Hume suffered after
he entered an enclosure containing high voltage electrical equipment on the
University of Montevallo campus in 2015.
In 2002, defendant Mills-Conoly Engineering assessed the University of
Montevallo’s existing electrical-distribution system and prepared recommendations
for corrective action to the system. (Doc. 76-5, p. 13). According to Mr. Hume,
Mills-Conoly failed to identify deficiencies in the system, including safety code
violations relating to the enclosure he entered. (Doc. 86, p. 4). Before the close of
discovery, Mills-Conoly moved for summary judgment, arguing that Alabama’s
statute of repose bars Mr. Hume’s claims. (Doc. 33). The Court permitted the parties
to continue discovery and reset the dispositive motion deadline. (Doc. 69). Mills-
Conoly then filed an amended motion for summary judgment. (Doc. 77). For the
reasons explained below, the Court grants Mills-Conoly’s motion for summary
judgment.
I. STANDARDS OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine dispute
as to a material fact that precludes summary judgment, a party opposing a motion
for summary judgment must cite “to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
When considering a summary judgment motion, a district court must view the
evidence in the record and draw reasonable inferences in the light most favorable to
the non-moving party. Asalde v. First Class Parking Sys., 898 F.3d 1136, 1138 (11th
Cir. 2018). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Mr. Hume’s Injury
The factual record in this case is extensive. The facts relevant to Mills-
Conoly’s motion for summary judgment are these: at the time of his accident, Mr.
Hume was a sophomore at the University of Montevallo. (Doc. 76-68, p. 12). One
summer evening, he and two friends began playing frisbee golf on the campus’s
“makeshift course.” (Doc. 76-68, pp. 19, 182). While playing, one of the frisbees
fell into an unmarked enclosure connected to Farmer Hall, the University’s Student
Center. (Doc. 76-68, pp. 16, 36). One side of the enclosure is a chain-link locked
fence; the other two accessible sides are brick. (Doc. 76-70; see also Doc. 76-68,
pp. 42–43). From where Mr. Hume was standing, he faced a brick wall; Mr. Hume
did not approach the enclosure from the chain-link side. (Doc. 76-68, pp. 42–43;
see also Doc. 76-76 (photograph where Mr. Hume marks where he climbed onto the
wall)). Mr. Hume asked his friends if they could retrieve the frisbee. (Doc. 76-68,
p. 55). When his friends said that they could not get the frisbee from their side, Mr.
Hume “hopped up on top of the wall and hopped in[to the enclosure] to recover the
frisbee.” (Doc. 76-68, pp. 55–56). At the time of Mr. Hume’s accident, there were
no warning signs on the enclosure indicating that it was a high-voltage area. (Doc.
57-1, pp. 276, 298; Doc. 78-12, pp. 75–76).
Mr. Hume swung into the enclosure, grabbed the frisbee, and moved to leave
the enclosure. (Doc. 76-68, pp. 74, 79; see Doc. 76-79 (noting where the frisbee was
inside the enclosure)). As he left the enclosure, Mr. Hume contacted a transformer
and suffered a severe shock. (Doc. 26, ¶ 15; Doc. 76-68, pp. 89–90).
Mr. Hume asserts that the enclosure should have had warning signs warning
and a protective cover. (Doc. 26, ¶ 16). Mr. Hume contends that Mills-Conoly
should have alerted the University to the enclosure’s deficiencies and recommended
installing warning signs and a protective cover. (Doc. 26, ¶¶ 138, 142).
B. Mills-Conoly’s Work for the University of Montevallo
The University first hired Mills-Conoly in 1999 to replace its fire alarm
system. (See Doc. 54-11, p. 1). By September 2001, Mills-Conoly had fully
completed the fire alarm replacement project for the University. (Doc. 51-1, p. 30;
Doc. 55-4).
On October 26, 2001, the University and Mills-Conoly amended the 1999
agreement for the fire alarm replacement project. (Doc. 55-6, p. 3). According to
the October 26, 2001 amendment, the University hired Mills-Conoly to look at
Montevallo’s existing electric system, verify what was there, and prepare
recommendations for corrective action based on Mills-Conoly’s engineering
judgment about “what needed to be done.” (Doc. 55-6, p. 3; Doc. 51-1, pp. 32–33).
In connection with Mills-Conoly’s work under the 2001 amendment, Craig
Mills, the President of Mills-Conoly, visited the University’s campus several times
to investigate and survey the University’s existing electrical system. (Doc. 33-4, p.
3; Doc. 51-1, pp. 46–47). Mr. Mills testified that “[a] site visit would consist of
taking any existing documents that we had that the [U]niversity provided to us, and
creating a schematic and a site plan of the equipment that we surveyed . . . .” (Doc.
51-1, p. 46). According to Mr. Mills, the documents he received were not “very
good,” and the University “wanted [] [him] to prepare the as-built documents”
because the University “didn’t have anything up-to-date.” (Doc. 51-1, p. 47).
During the site visits, Mr. Mills and University plant personnel looked at the
University’s electrical installations, “and if [they] saw anything that [they] felt like
was a code issue, [they] would make a note of it and include it in [their] [] inspection
report.” (Doc. 51-1, pp. 46, 48).
Mills-Conoly’s work under the 2001 amendment culminated in a “Primary
Electrical Distribution Study for the University of Montevallo” dated October 24,
2002. (Doc. 33-4). The study identifies the scope of Mills-Conoly’s work as
follows:
The scope of this project involves investigating the existing campus
primary electrical distribution system for deficiencies, determining the
most feasible solution to alleviate deficiencies and estimating the cost
to repair/replace system(s) as required. The existing primary
distribution system(s) will be evaluated for code
compliance/deficiencies based on applicable Institute of Electrical and
Electronics Engineers (IEEE) and National Fire Protection Association
(NFPA) code criteria, and sound engineering practice.
(Doc. 33-4, p. 3, ¶ 1.2).1 According to the study’s general section, the “study will
outline survey findings, identify code violations and deficiencies, develop
conclusions, make recommendations, and provide preliminary cost estimates based
on recommendations.” (Doc. 33-4, p. 3).
The second part of the study, entitled “Survey Findings,” contains Mills-
Conoly’s observations and descriptions of the University’s existing electrical
system. (Doc. 33-4, pp. 4–10). Mills-Conoly reported the following relevant
findings:
Primary feeder No. 8 is fed from fused switch labeled “MS1C” [] and
is fused at 125A. “MS1C” is antiquated and in need of replacement.
Primary feeder No. 8 serves Tutwiler Hall, Bibb Graves Hall, Hanson
Hall, Coner Hall, Morgan Hall, Farmer Hall, Myrick Hall, McCall Pool
and Child Study Center via transformers “T25” through “T33.”2 . . .
[] Primary feeder No. 9 is fed from fused switch labeled “MS1D” [] and
is fused at 150 A. “MS1D is antiquated and in need of replacement.
Primary feeder No. 9 serves the Central Utilities Plant via transformer
“T34” []. Transformer installation does not appear to meet the
clearance and marking requirement of NESC 410.
. . .
1 The applicable code editions are the 1999 National Electrical Code and the 1997 National
Electrical Safety Code. (Doc. 51-1, p. 43).
2 Transformers T25 through T33 include the transformers housed in the enclosure at issue in this
case. (See Doc. 33-4, p. 9).
Transformers housed in transclosure to form a three phase transformer
bank generally are in poor condition. Generally the housings have
deteriorated and [are] in need of replacement. . . .
[] Open transformer banks enclosed with fencing appear to be in fair
condition but are very unsightly. There are several open transformer
banks within buildings. This is a dangerous condition and needs to be
alleviated.
(Doc. 33-4, pp. 6, 10).
Mr. Mills testified that the study contained an error: the study should have
identified NESC section 110 instead of section 410. (Doc. 51-1, p. 59). Section 110
of the 1997 NESC is “titled protective arrangements and electric supply stations,”
and the section “refers to clearances and warning signs” for electrical enclosures.
(Doc. 51-1, p. 60). Although Mills-Conoly noted the warning sign deficiencies with
respect to “Primary feeder No. 9,” Mills-Conoly did not note a similar deficiency
with respect to “Primary feeder No. 8,” which services Farmer Hall. (See Doc. 33-
4, p. 6).3
The third and fourth parts of the study contain Mills-Conoly’s conclusions
and recommendations for the University’s electrical system. (Doc. 33-4, pp. 11–
13). Mills-Conoly concluded that “[t]he entire primary distribution system is in need
of upgrading” and that “[t]he original primary switchgear and associated feeders are
3 Mr. Mills testified that he has no direct evidence of whether a sign was present on the Farmer
Hall enclosure in 2002. (Doc. 51-1, p. 86). Mr. Mills did testify, however, that “if . . . there was
not a sign on the fence” of the Farmer Hall enclosure in 2002, he would have included that
deficiency in his study. (Doc. 51-1, p. 86–87).
in need of total replacement.” (Doc. 33-4, p. 11). Mills-Conoly also concluded that
Alabama Power Company’s planned change to a “more efficient 12470Volt []
system” “will necessitate a complete primary underground distribution system
upgrade for [] Montevallo,” which in turn “will require replacement of existing
building transformers . . . .” (Doc. 33-4, p. 11). Based on its findings and
conclusions, Mills-Conoly recommended that the University “[r]eplace the existing
electrical primary distribution system” and also recommended that the new primary
distribution system include pad-mounted transformers. (Doc. 33-4, p. 13).4 Mills-
Conoly also prepared preliminary estimates of the cost of replacing the University’s
electrical distribution system. (Doc. 33-4, pp. 30–32).
At the time of Mr. Hume’s injury, the University had not implemented any of
Mills-Conoly’s recommendations for the subject enclosure. (Doc. 57-1, p. 98; Doc.
57-2, pp. 470–71, 474). In fact, the University did not act on any of Mills-Conoly’s
recommendations.
C. Mr. Hume’s Lawsuit
Mr. Hume filed this action on June 8, 2016, and he has amended his complaint
twice. (Doc 1; Doc. 17; Doc. 26). Mr. Hume added Mills-Conoly as a defendant in
4 Pad-mounted transformers are fully enclosed. (Doc. 57-1, p. 96). Had the University
implemented this recommendation between 2002 and 2015, Mr. Hume would not have been
injured. (See Doc. 76-3, pp. 489–90).
this action through his second amended complaint. (Doc. 26). Mr. Hume asserts
breach-of-contract, negligence, and wantonness claims against Mills-Conoly based
on allegations that Mills-Conoly failed to identify deficiencies in the University’s
electrical system and failed to recommend appropriate corrections for those
deficiencies. (Doc. 26, ¶¶ 135–146).
III. ANALYSIS
A. Negligence and Wantonness
Under Alabama law, a defendant’s negligence is actionable only if the
negligence proximately causes the plaintiff’s injuries. Martin v. Arnold, 643 So. 2d
564, 567 (Ala. 1994).5 So too with wantonness: “‘Proximate cause is an essential
element of both negligence claims and wantonness claims.’” Lemley v. Wilson, 178
So. 3d 834, 841–42 (Ala. 2015) (internal citations omitted) (quoting Martin v.
Arnold, 643 So. 2d 564, 567 (Ala. 1994)). In Alabama, “[p]roximate cause is an act
or omission that in a natural and continuous sequence, unbroken by any new
independent causes, produces the injury and without which the injury would not
have occurred.” Lemley, 178 So. 3d at 842.
5 “Alabama law follows the traditional conflict-of-law principles of lex loci contractus and lex loci
delecti.” Lifestar Response of Ala., Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009) (citing
Liberty Mut. Ins. Co. v. Wheelwright, 851 So. 2d 466 (Ala. 2002)). The contract between the
University and Mills-Conoly was formed in Alabama, and Mr. Hume’s injury occurred in
Alabama. Thus, the Court applies Alabama law to Mr. Hume’s claims against Mills-Conoly.
“Although the existence of proximate cause is ‘almost always’ a question of
fact, almost always is not always.” Hammonds v. United States, 418 Fed. Appx.
853, 857 (11th Cir. 2011) (quoting Thompson v. Gaier, 512 So. 2d 775 (Ala. 1987)).
A district court may enter judgment based on a failure of proof of proximate cause
if the non-moving party cannot present “substantial evidence” on the issue.
Wilbanks v. Utd. Refractories, Inc., 112 So. 3d 472, 474 (Ala. 2012). Speculative or
conjectural evidence “does not rise to the level of substantial evidence.” McGinnis
v. Jim Walter Homes, Inc., 800 So. 2d 140, 145 (Ala. 2001).
Mr. Hume’s claims against Mills-Conoly “are based on the fact that [Mills-
Conoly] failed to identify specific deficiencies in the subject enclosure . . . .” (Doc.
86, p. 4). Mr. Hume contends that had Mills-Conoly recommended installing
warning signs on, or a protective cover over, the Farmer Hall enclosure—as opposed
to a complete electrical-system overhaul—his injury would not have occurred.
(Doc. 86, p. 7). Mills-Conoly responds that accepting Mr. Hume’s conclusion about
proximate causation would require the Court to make “speculative and inferential
leaps.” (Doc. 91, p. 9). Mills-Conoly has the better argument.
The evidence connecting Mills-Conoly’s failure to recommend warning signs
with Mr. Hume’s injury raises “nothing more than speculation, conjecture, or a
guess.” See McGinnis, 800 So. 2d at 145. Specifically, with respect to signage, a
finding of proximate cause would require jurors to assume as true the following: (1)
there were no warning signs on the subject enclosure when Mills-Conoly conducted
its 2002 study; (2) had Mills-Conoly recommended additional signage on the subject
enclosure, the University would have approved and implemented that
recommendation; (3) had the University approved and implemented the
recommendation, the added signs would have been installed; (4) had the signs been
installed, they would have remained properly installed for the twelve-year period
between their installation and Mr. Hume’s accident; and (5) had the signs remained
installed for twelve years, Mr. Hume would have heeded their warnings. This asks
too much of the rule that a district court must draw inferences in favor of the non-
moving party.
To avoid summary judgment, Mr. Hume points to his own testimony and the
testimony of Eddye Lawley—the Director of the University’s Physical Plant at the
time of Mills-Conoly’s 2002 study. (See Doc. 86, pp. 7–8). Mr. Lawley testified
that “[h]ad Mills-Conoly Engineering recommended the placement of warning signs
on all three sides of the enclosure [he] would have ensured that work was done.”
(Doc. 85-2, p. 2). Mr. Hume testified that “had the enclosure been signed with
warnings and electrical type signs[,]” he would not have entered it. (Doc. 76-68, pp.
216–17; Doc. 86, p. 8). This, Mr. Hume argues, establishes a causal link between
Mills-Conoly’s failure to recommend installing warning signs on the subject
enclosure and his injury. (Doc. 86, p. 18).
Even if the Court assumes Mr. Lawley and Mr. Hume’s statements were true,
those statements do not establish proximate causation. Mr. Hume’s conclusion fails
to account for the nearly thirteen-year period between Mills-Conoly’s report and his
injury, as well as the role University personnel would play in maintaining any added
signs over those 13 years. Mr. Hume’s own expert, Michael Anthony, testified that
“[b]ased on the evidence, it is clear that the Montevallo employees did absolutely
nothing to maintain signage on the subject enclosure.” (Doc. 76-3, p. 167). Mr.
Anthony added that this case is “not just about signs. It’s a deeper problem with the
University of Montevallo management . . . .” (Doc. 76-3, p. 182). According to Mr.
Anthony, because of these deeper problems, “no one ever noticed that there was no
sign in [sic] the subject enclosure” during the four years preceding Mr. Hume’s
injury. (Doc. 76-3, pp. 169–70, 227–28). Far from establishing that University
personnel would have maintained any recommended signage, the evidence presented
by Mr. Hume tends to point to the opposite conclusion: University personnel would
not have adequately maintained added signage between 2002 and 2015.
Mr. Hume alternatively points to Mills-Conoly’s failure to recommend a
protective cover over the Farmer Hall enclosure as a proximate cause of his injuries.
(Doc. 86, p. 18). In response, Mills-Conoly contends that Mr. Hume’s argument “is
premised entirely on the speculation and conjecture that . . . if it recommended a top
be placed over the enclosure, th[at] recommendation[] would have been followed by
Montevallo.” (Doc. 91, p. 9). That is so.
As stated, a theory of proximate causation may not rest on “mere conjecture
and speculation.” Townsend v. General Motors Corp., 642 So. 2d 411, 423 (Ala.
1994). Instead, a theory of causation must rise to the level of reasonable inference.
A reasonable inference “is a reasonable deduction of fact, unknown or unproved,
from a fact that is known or proved.” Khirieh v. State Farm Mut. Auto. Ins. Co., 594
So. 2d 1220, 1224 (Ala. 1992) (citations and quotations omitted).
Here, Mr. Lawley testified that he would have ensured the installation of a
protective cover on the subject enclosure had Mills-Conoly recommended one.
(Doc. 85-2, p. 2). This testimony is inherently speculative—it is an opinion, given
almost 16 years after the fact and with the benefit of hindsight, about what Mr.
Lawley would have done under different circumstances. And even if the Court
assumes that Mr. Lawley would have approved of Mills-Conoly’s recommendation
in 2002, there is no evidence that the University would have done the same. In fact,
there appears to be evidence to the contrary. At the time of Mr. Hume’s injury, the
University had not adopted even one of Mills-Conoly’s recommendations as to the
Farmer Hall enclosure. (Doc. 57-2, pp. 470–71, 474).
As with signs, Mr. Hume’s theory of proximate causation regarding a cover
rests on stacked assumptions: it requires an assumption about what Mr. Lawley
would have done 16 years ago and a further assumption about what the University
would have done. Alabama law does not permit such speculation. See generally
K.D. ex rel. J.D. v. Wooten, 2015 WL 1138492, at *8 (N.D. Ala. Mar. 13, 2015)
(citing D.A.C. ex rel. D.D. v. Thrasher, 655 So. 2d 959, 962 (Ala. 1995)) (theory of
proximate causation failed at summary judgment when it required speculation about
what the Birmingham Board of Education would have done with information that it
did not receive).
Therefore, because Mr. Hume has failed to demonstrate by substantial
evidence a genuine dispute of material fact on the issue of whether Mills-Conoly’s
failure to recommend warning signs or a protective cover for the subject enclosure
was the proximate cause of Mr. Hume’s injuries, the Court concludes that Mills-
Conoly is entitled to summary judgment on Mr. Hume’s negligence and wantonness
claims.
B. Breach of Contract
Mr. Hume’s breach-of-contract claim against Mills-Conoly rests on the same
conduct that underlies his negligence and wantonness claims, namely Mills-
Conoly’s failure to recommend the installation of warning signs and a protective
cover on the subject enclosure. (Doc. 86, pp. 22–24). For breach-of-contract claims
in Alabama, “the damages claimed must be the natural and proximate consequences
of the breach . . . .” HealthSouth Rehab. Corp. v. Falcon Mgmt. Co., 799 So. 2d 177,
183 (Ala. 2001) (quoting Aldridge v. Dolbeer, 567 So. 2d 1267, 1269-70 (Ala. 1990)
(citations and quotations omitted)). As above, even if Mills-Conoly breached its
agreement with the University, that breach did not proximately cause Mr. Hume’s
injuries. Thus, Mills-Conoly is entitled to summary judgment on Mr. Hume’s
breach-of-contract claims.
IV. CONCLUSION
Based on the foregoing, the Court grants Mills-Conoly Engineering’s motion
for summary judgment, (Doc. 77).
DONE and ORDERED this October 16, 2019.
oy DELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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