attractive nuisance - Cumberland School of Law - Samford University

News from the Center Jor the Study oj Law and the Church. SamJord University, Birmingham. Alabama 

Y our church or other organization 

has a playground for the children 

behind the church's building. 

Neighborhood children corne and 

play on the playground equipment 

when no one is at the building. 

The leadership of the church 

is aware that local children corne 

and play on the church's playground 

equipment. Later, a child 

is severely injured while playing 

when no one is at the building. 

The injured child's parents sue the 

church. Does the church have anything 

to worry about? Maybe it 

does, because of the attractive nuisance 

doctrine. 

The attractive nuisance doctrine 

is a judicially created cause 

of action. It provides a remedy 

for persons injured on another's 

properhJ 

It is an exception to the commonlaw 

rule that land possessors owe 

no duty to trespassers or licensees 

other than not to willfully or wantonly 

injure them. The attractive 

nuisance doctrine evolved from 

the " turntable" theory pronounced 

by the United States Supreme 

Court in Sioux City & Pacific 

Railroad Co. v. Stout. 84 U.s. 

657 (1873). In Stout, a child recovered 

damages after he trespassed 

on railroad land and was injured 

ATTRACTIVE NUISANCE 

while playing with a turntable. 

The turntable doctrine is narrowly 

applied and rigorous standards of 

application have developed for its 

use. 

An attractive nuisance is a tort 

action that involves negligence. 

There are three essential elements 

to a right of recovery in a negligence 

action. First, there must be 

a duty owed to the defendant from 

the plaintiff; second, there is a 

breach of that duty, and third, the 

plaintiff suffers an injury as a result 

of the breach. Generally, in 

Summer/Fall 1994 

attractive nuisance actions, a landowner 

with a dangerous instrumentality 

or condition on his 

property is alleged to have 

breached his duty to take such precautions 

to prevent an unreasonable 

risk of harm to children 

whom he knows frequently gather 

there, or because something might 

be expected to attract them, corne 

upon the property to play. A landowner 

is not required to take precautions 

when he has no reason to 

expect that children will corne 

upon his land. 

NEW REGULATIONS FOR 

COMMERCIAL DRIVER'S 

LICENSE HOLDERS 

T he Federal Highway Administration 

and the U.S. Department 

of Transportation have published 

new alcohol and drug rules for 

persons required to have a commercial 

driver's license (COL). 49 

C.F.R. part 382 (1994). The rules 

provide the requirements applicable 

to employers and employee/volunteer 

drivers covered 

by the rules. Included are 

( continued 0 11 pg. 2) 

churches and other organizations 

that are considered "nonbusiness 

Private Motor Carriers of Passengers" 

(PMCP) by the federal motor 

carrier safety regulations. This 

article will give a brief explanation 

of COL's and then explain the new 

rules and how they relate to 

churches and other nonprofit organizations. 

(confirmed Oil pg. 5)

Attractive Nuisance continued ... 

The duty owed by a landowner 

depend s on the status of the 

unjured party in relation to the 

defendant's land . At commonlaw, 

there are three classifications 

of persons who enter another's 

property: invitee, licensee, and 

trespasser. Invitees are those with 

an express invitation from the occupier, 

such as business visitors 

and others, who come upon the 

premises to serve an interest or 

advantage mutual to the occupier 

and the visitor. The duty owed the 

invitee by the landowner is to keep 

his premises in a reasonably safe 

condition; to discover and warn 

the invitee of unreasonably dangerous 

conditions of which the 

landowner either knows or ought 

to know and not to wilfully or 

wantonly injure the invitee. If a 

p erson is on the lan downer 's 

property with his consent or as his 

guest, but with no business purpose, 

he attains the status of a licensee. 

A licensee must not be willfull 

y or wantonly injured or negligently 

injured after the landowner 

has discovered his peril. A 

trespasser is a person who enters 

or remains upon the land of another 

without the consent or privilege 

to do so. The landowner owes 

a trespasser only the duty not to 

wantonly or intentionally injure 

him. 

A proprietor has the duty to 

inspect his premises to become 

sufficiently advised 

to meet the demand of his 

duty toward those who it is 

reasonable to expect will 

enter his premises. It is no 

defense that he constructed 

and maintained the dangerous 

instrumentality in the 

same manner as others constructing 

and maintaining 

other such well-regulated 

instrumentalities. R. 

Clifford Fulford, The Tort Liability 

of Possessors of Property 

to Trespassing Children 

In A labama, 11 ALA. L. REV. 

1, 17 (1958). 

Some states have abandoned the 

classification system . In Rowland 

v. Christian, 443 P.2d 561 (Cal. 

1968), California abolished the traditional 

duty classification scheme 

for trespassers, licensees and 

invitees. Ordinary negligence 

principles of foreseeable risk and 

reason able care replaced the 

former classifica tion scheme. After 

the Rowland decision, Hawaii, 

Maryland, Rhode Island, New 

York, New Hampshire, Louisiana, 

Alaska, Missouri, and the District 

of Columbia also abolished all distinctions 

between entrants on 

land. W. PAGE KEETON ET. AL., 

PROSSER AND KEETON ON THE LAW OF 

ToRTS § 62, at 433 (5th ed. 1984). 

Another eight states have 

adopted the" modified" classification 

system in premises actions. 

The modified system differs from 

the common-law classifica ti on 

system in that the distinctions between 

licensees and invitees are 

discarded but the traditional duty 

limitations toward trespassing 

adults is retained. States that have 

adopted the modified approach 

are Connecticut, Florida, Illinois, 

Minnesota, Massachusetts, Wisconsin, 

North Dakota, and Maine. 

David A. Szwak, Note, Louisiana 

Premises Liability in the Post-Cates 

v. Beauregard Electric Cooperative 

Era, 53 LA. L. REV. 1935, 1936 n.ll 

(1993). 

Under ordinary conditions trespassing 

children, or children on 

the land of another as licensees, occupy 

the same position as trespassing 

adults. If an injured person 

is found to have been on the 

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defendant's property with his consent 

or as his guest, but with no 

business purpose, he attains the 

status of a licensee and must not 

be willfully or wantonly injured or 

negligently injured after the landowner 

has discovered his danger. 

The attractive nuisance doctrine ojfers 

an exception to the limited duty 

owed by a landowner to a trespasser. 

It applies only when trespassing children 

are involved. Tolbert v. Gulsbll, 

333 So.2d 129 (Ala. 1976). 

Initially, an important restriction 

of the attractive nuisance doctrine 

was tha t the dangerous condi tion 

on the landowner's property must 

have been naturally attractive to 

small children. The person had to 

be on the property that caused the 

injury because of something on the 

property that attracted him to it. 

Additionally, the owner must be 

aware that such a person would 

be attracted to the property and 

whatever w as on it that could 

cause injury. The attraction thus 

led to an invitation unto the property. 

"[A]n invitation may be implied 

from the nature of the place, 

or instrumentality, its use and alluring 

qualities calculated to attract 

children of immature judgment 

and lack of appreciation of 

the danger." Needham v. Birmingham 

Trussville Iron Co .. 157 So. 

849,850 (Ala. 1934). 

The Supreme Court of Alabama 

in Tolbert v. Gulsby, 333 So.2d 129 

(Ala. 1976), heard a case that involved 

a six-year-old child injured 

when he was shot in the eye by 

another child with an air rifle that 

the defendant left propped against 

a carport wall. The court decided 

that it would adopt Section 339 of 

the Restatement of Torts 2d as controlling 

in attractive nuisance 

claims, regardless of whether the


children are licensees or trespassers. 

According to the Restatement of 

Torts 2d, entitled" Artificial Conditions 

Highly Dangerous to Trespassing 

Children," an attractive 

nuisance claim may exist if certain 

conditions are present. Section 339 

states the following: 

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 realized 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. REsTATEMENT (SECOND) OF 

TORTS § 339 (1979). 

The above definition shows that 

the term "attractive nuisance" is a 

misnomer. Section 339 of the Restatement 

of Torts 2d does not require 

that a child be attracted to 

the land possessor's premises by 

a dangerous condition or instrumentality 

and that he is injured by 

the particular attraction. Nor does 

§ 339 rely upon the legal fiction of 

"implied invitation" to elevate a 

land possessor's duty of care to 

child trespassers. 

Despite these recognized differences, 

the courts continue to refer to injuredchild-trespasser 

cases popularly as 

"attractive nuisance" cases, even in 

those states that do not require the 

child's attraction to the dangerous 

condition. 

Not every dangerous instrumentality 

or condition on another 

person's property that attracts a 

child to it is considered an attractive 

nuisance. Even in states that 

require a child be "attracted" to a 

dangerous condition will not classify 

every dangerous condition as 

an attractive nuisance. 

[N]ot every instrument 

possibly dangerous to a 

child of tender years, or 

which such a child might 

convert into a means of 

amusement, constitutes an 

attractive nuisance. On the 

contrary, for the attractive 

nuisance rule to apply, the 

instrumentality or [land] 

condition must be of a nature 

likely to incite the curiosity 

of a child and [be] 

fraught with such danger 

as to reasonably require 

precaution to prevent children 

from making improper 

use thereof. 

Patterson v. Recreation and 

Park Comm'n, 226 So.2d 

211, 216 (La. App. 1st Cir. 

1969). 

However, a land-owner's 

nonconsent to the presence of children 

on his property, or that he objected 

to their presence, is not suf- 

- 3 - 

ficient to relieve him from liability 

if a child is hurt on his property. 

For example, a young child 

cannot read or appreciate a "No 

Trespassing" sign. However, 

"[t]his is not to say that the landowner 

should be restricted in any 

sense in his rights to resist the trespass 

by all lawful means or to use 

such reasonable force as may be 

necessary to remove trespassers 

discovered on his premises while 

their trespasses are in progress." 

R. Clifford Fulford, The Tort Liability 

of Possessors of Property To Trespassing 

Children In Alabama, 11 ALA. 

L. REv. 1,30 (1958). A landowner 

might not escape liability by taking 

some precautions to make his 

property secure, such as simply 

putting up a sign or a fence in an 

attempt to keep trespassers off his 

property. 

The attractive nuisance doctrine 

may vary from state to state. Some 

states require that the property 

owner must be aware of the dangerous 

condition on his property 

to be liable to an injured party. 

Others state the property owner 

had to know that children were 

drawn to the dangerous condition. 

Evidence that children regularly 

played on the premises or with the 

dangerous instrumentality can be 

used to show the landowner had 

notice of a potential problem. 

Some states specifically exempt 

certain conditions from being an 

attractive nuisance. For example, 

in Eamestv. Regent Pool. Inc., 257 

So.2d 313 (Ala. 1972), a father sued 

to recover damages for the wrongful 

death of his nine-year-old son 

who drowned in the defendant's 

pool. The father argued that the 

defendant knew that children constantly 

and persistently used the 

pool premises and came unto the 

property without permission. The 

court maintained its earlier prece-


dent that the doctrine of attractive 

nuisance would not be applicable 

when the danger is 

patent and obvious to a trespassing 

child, and the court refused 

to an exception. 

The court in Regent said "[ilt 

is well settled in Alabama that 

where the danger from the instrumentality 

which caused 

the injury is patent and obvious 

the doctrine of attractive 

nuisance is inapplicable." Id. at 

316. The court noted that the 

attractive nuisance doctrine 

had never been extended in 

Alabama to bodies of water. 

Thus, Alabama courts have 

declined to protect trespassing 

children from water hazards. 

Alabama recognizes no exception, 

in cases of child trespassers, 

to the conventional rule that a landowner 

is not liable to a trespasser 

on his land when the trespasser is 

injured or drowns in a water hazard. 

Other conditions that some 

courts will not recognize as attractive 

nuisances involve fire, 

falling from a height or into an 

excavation, moving vehicles, 

ordinary visible machinery in 

motion, sliding or caving soil, 

and piles of lumber, crossties, 

and other building material. 

Some courts expect that a trespassing 

child may reasonably 

comprehend the danger in 

such situations. They explain 

that the landowner may assume 

that any child of sufficient 

age, allowed at large by 

his parents and so likely to 

trespass, will appreciate the 

danger and avoid it, or at least 

make his own intelligent and 

responSible choice. W. PAGE 

KEETON ET. AL., PROSSER AND KEETON 

ON THE LAW OF TORTS § 59, at 407 

(5thed. 1984). Of course, the court 

can always make an exception 

within any of the preceding categories, 

i.e., such as if the danger 

is partially hidden. 

Age can also be a limitation in 

an attractive nuisance action. 

Prior to Lyle v. Bouler. 547 So.2d 

506 (Ala. 1989), in Alabama no 

duty was owed to a minor over the 

age of fourteen. In Lyle, a sixteenyear-old 

boy drove with a friend 

onto the defendant's property 

without permission. They parked 

their car at a clay pit and then repeatedly 

climbed up the sides of 

the pit. The purpose of climbing 

the pit was to see which of the two 

could climb the highest. During 

one climb, the two reached a ledge 

and sat on it to rest. Several minutes 

later, the ledge collapsed, and 

the two boys fell about 15 feet to 

the bottom. In the fall, the 

plaintiff's back was broken. 

The Supreme Court of Alabama 

said it would no longer use age as 

a limitation to liability. Age could 

still be an important factor in determining 

liability, but it is one of 

several factors that must be considered. 

Factors to be considered 

included: (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. 

After all these factors were examined, 

then the landowner's conduct 

would be examined in accordance 

with section 339 of the Restatement 

of Torts 2d. 

Decisions in other courts have 

also allowed recovery for plaintiffs 

- 4 - 

over the age of 14, especially if 

coupled with a physical or 

mental disability. Still other 

decisions have refused to allow 

any recovery for a plaintiff 

over the age of twelve. 

The benefit or advantage the 

landowner achieves with a 

dangerous condition on his 

property must be weighed 

against any possible injured 

children. A landowner is not 

required to alleviate the dangerous 

condition at great personal 

cost if it is unreasonable 

to do so because of the amount 

of risk involved. Some things 

are useful and difficult to safeguard, 

but are attractive to 

children. 

A landowner, however, is only required 

to exercise reasonable care, 

and to take only those precautions 

that would be taken by a reasonable 

person under similar circumstances 

against such risks that 

could be reasonable foreseen and 

prevented. 

Churches and other organizations 

should be aware of any 

dangerous conditions or instrumentalities 

on their property. 

Each organization should 

also take adequate steps to secure 

its property. Failure to 

correct a dangerous condition 

or instrumentality, or to prevent 

children from injuring 

themselves on it, might lead to 

potential liability. It

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to. 

HOW TO PROTECT AGAINST 

AN ATTRACTIVE NUISANCE CLAIM 

Put up adequate fences and signs around playground 

areas. 

Make sure that the playground equipment at the 

organization meets "industry standards" related to safety. 

Conduct periodic inspections to make sure the grounds are 

safe and secure. 

Conduct periodic building inspections. Make sure that 

buildings are secure, including attics and basements. 

The organization should consult with its insurance carrier 

to discuss adequate liability insurance. 

Instruct employees to report to management any known 

trespassing. 

Be aware of any outside children coming onto the 

organization's property. 

Periodically check that no dangerous conditions exist on 

the property or in any buildings. 

Establish and carry out a maintenance plan for the 

organization's grounds and buildings. 

If the organization becomes aware of any dangerous 

conditions that exists on the property, take steps to either 

repair or alleviate such dangerous condition. 

NEW REGULATIONS FOR COMMERCIAL 

DRIVER'S LICENSE HOLDERS (con tinued!rompagel) 

A PMCP provides private, 

interstate transportation of 

passengers that is not in furtherance 

of a commercial purpose 

and uses a vehicle designed 

to carry more than 15 

passen gers, including the 

driver (or the vehicle's weight 

is greater than 10,000 pounds). 

Examples of nonbusiness 

PMCPs include churches, 

scout groups, and other charitable 

organizations that may 

purchase or lease buses for the 

private transportation of their respective 

groups. The new rules 

generally require application beginning 

on January 1, 1995 for 

large employers (generally, employers 

that employ 50 or more 

safety-sensitive drivers) and January 

1, 1996 for all other employers. 

Nonprofit organizations, including 

churches, are subject to a federal law 

passed in 1986 that requires drivers of 

commercial motor vehicles to have a 

- 5 - 

commercial driver's license. 

The Commercial Motor Vehicle 

Safety Act (49 U.s. c. § 

2701) requires each individual 

state to meet the same minimum 

standards for commercial 

driver licensing to help reduce 

or prevent commercial 

motor vehicle (CMV) accidents, 

fatalities and injuries. 

The Act's purpose is to improve 

safety by p ermitting 

commercial drivers to hold 

only one license (a commercial 

driver's license), disqualifying 

drivers convicted of certain 

serious traffic violations, and 

stren gthening commercial 

driver licensing and testing 

standards. The Act requires 

drivers of certain vehicles to 

take both a written test and a 

road test to ensure their qualifications 

and ability to drive 

such vehicles. Churches and 

other nonprofit organizations 

are not exempt from the Act. 

See LAW & CHURCH (Winter 

1991). 

Commercial licenses are d ivided 

into three d ifferent 

classes. A driver is issued a 

CDL according to the classification 

of the veh icle . The 

classes are: 

Class A - 26,001 pound combination 

vehicle hauling tO,OOO 

pounds or more, e.g., a tractor 

trailer. 

Class B - 26,001 pound single 

vehicle hauling 10,000 pounds 

or more, e.g., a school bus. 

Class C - a vehicle designed 

for 16 or more persons including 

the driver, e.g., a van; and 

Class D , or the regular 

driver 's license, which is the 

same type license all drivers 

now have and will be valid for

Alcohol and Drug Regulations continued ... 

operating noncommercial vehicles 

such as passenger cars. 

A van designed for 15 or 

fewer p eople, including the 

driver, would not fall under 

Class C and the driver would 

only have to have a regular 

driver's license. If, however, 

an organization uses a van designed 

for 16 or more people, 

including the driver, the driver 

is required to have a Class C 

commercial driver's license. 

An organization that intends 

to use many drivers should 

consider only purchasing or 

acquiring vehicles designed to 

seat 15 or fewer persons. 

Under the Act, each driver 

will have only one driver's license. 

A driver may operate 

any CMV in his license class 

plus his personal passenger 

car using his COL. The COL 

will be issued listing all the 

appropriate classes, endorsements 

and restrictions and will 

be valid for a four-year period 

from the issuance date. Any 

person, and his sponsoring 

entity or employer, found violating 

the Act can be fined up 

to $5000 per offense. 

The states are tied into the 

Commercial Driver's License 

Information System to exchange 

information about 

Commercial Motor Vehicle 

drivers and traffic violations. 

States use the system to make 

certain that CDL applicants 

have not already obtained a 

CDL and to facilitate a check 

of the driver's record. Employers 

have access to the 

clearinghouse through the licensing 

agency within the 

state. 

Drivers required to have a COL, 

and their employers, are now subject 

to new regulations concerning alcohol 

and drug misuse. The term "driver" 

includes volunteer drivers who are required 

to have a COL. 

Alcohol Testing 

Some of the new rules pertain to 

alcohol testing. Because alcohol is 

a legal substance, the rules define 

specific prohibited alcohol-related 

conduct. Performance of safetysensitive 

functions is prohibited: 

(1) while having a breath alcohol 

concentration of 0.04 percent or 

greater as indicated by an alcohol 

breath test; (2) while using alcohol; 

or (3) within four hours after using 

alcohol. In addition, refusal to 

submit to an alcohol test and using 

alcohol within eight hours after 

an accident, or until tested (for 

drivers required to be tested), is 

prohibited. Safety-sensitive functions 

include all time spent at the 

driving controls of a commercial 

motor vehicle in operation, waiting 

to be dispatched unless relieved 

from duty, all time inspecting 

equipment, all time in or upon 

any commercial motor vehicle except 

driving time and time spent 

resting in a sleeper berth, and all 

time loading or unloading a vehicle. 

49 C.F.R. § 395.2. 

The following alcohol tests are 

required: 

(1) Pre-employment- conducted 

before applicants are hired or after 

an offer to hire, but before actually 

performing safety-sensitive 

functions for the first time. 

Also required when employees 

transfer to a safety-sensitive 

(Driver) position; 

(2) Post-accident - conducted 

after accidents on drivers whose 

performance could have contributed 

to the accident (as deter- 

- 6 - 

mined by a citation for a moving 

traffic violation) and for all 

fatal accidents even if the 

driver is not cited for a moving 

traffic violation; 

(3) Reasonable suspicion - 

conducted when a trained supervisor 

or organization official 

observes behavior or appearance 

that is characteristic 

of alcohol misuse; 

(4) Random - conducted on 

a random unannounced basis 

just before, during or just after 

the performance of safety-sensitive 

functions; and 

(5) Return-to-duty and follow-up 

- conducted when an 

individual who has violated 

the prohibited alcohol conduct 

standards returns to performing 

safety-sensitive duties. 

Follow-up tests are unannounced 

and at least six tests 

must be conducted in the first 

12 months after a driver returns 

to duty. Follow-up testing 

may be extended up to 60 

months following a return to 

duty. 

Employers must conduct 

random alcohol testing on at 

least 25% of all the safety-sensitive 

drivers. Testing dates 

and times are unannounced 

and are with unpredictable frequency 

throughout the year. 

The random alcohol testing 

must be conducted just before, 

during, or just after a driver's 

performance of safety-sensitive 

duties. The driver is randomly 

selected for testing, 

usually from a "pool" of drivers 

subject to testing. Although 

currently 25% of drivers are 

randomly tested, adjustments 

are made to the annual random 

testing rate based on the 

violations (alcohol tests 0.04 or


greater and refusals to test) in 

the industry subject to the 

FHWA regulations. The random 

rate is set for each industry 

regulated by the Department 

of Transportation. 

The rules require breath testing 

using evidential breath 

testing devices (EBT) approved 

by the National Highway 

Traffic Safety Administration 

(NHTSA). The NHTSA 

periodically publishes a list of 

approved devices in the Federal 

Register. Two breath tests 

are required to determine if a 

person has a prohibited alcohol 

concentration. A screening 

test is conducted first. Any 

result less than 0.02 alcohol 

concentration is considered a 

"negative" test. If the alcohol 

concentration is 0.02 or 

greater, a second confirmation 

test must be conducted. The 

driver and the individual conducting 

the breath test complete 

the alcohol testing form 

to ensure that the results are 

properly recorded . The confirmation 

test results determine 

any actions taken. 

Employers are responsible for 

implementing and conducting the 

testing programs. ThetJ may do this 

using their own employees, contract 

services, or by joining in a 

consortium that provides services 

to all member companies. 

Law enforcement officials 

will not conduct the tests as 

part of roadside or other inspections, 

except possibly for 

post-accident tests. Any individual 

who conducts the testing 

must be trained to operate 

the EBT and be proficient in 

the breath testing procedures. 

Any driver who engages in prohibited 

alcohol conduct is immediately 

removed from safety-sensitive 

functions. Drivers who have 

engaged in alcohol misuse cannot 

return to safety-sensitive duties 

until they are evaluated by a substance 

abuse professional and 

complied with any treatment recommendations 

to help them with 

an alcohol problem. Also, drivers 

who have any alcohol concentration 

(defined as 0.02 or greater) 

when tested just before, during or 

after performing safety-sensitive 

functions are removed from performing 

such duties for 24 hours. 

It is the employer's responsibility to 

notiftJ its employees about the new alcohol 

rules. Employers must provide 

information about alcohol misuse, the 

employer's policy, the testing requirements, 

and how and where drivers can 

get help for alcohol abuse. 

Supervisors of safety-sensitive 

drivers must attend at least one 

hour of training on alcohol misuse 

symptoms and indicators used in 

making determinations for reasonable 

suspicion testing. 

Drivers who violate the alcohol 

misuse rules are referred to a substance 

abuse professional for 

evaluation. Any treatment or rehabilitation 

is provided according 

to the employer's policy. The rules 

do not require that the employer 

provide rehabilitation, pay for 

treatment, or reinstate the driver 

in his safety-sensitive position. 

Any employer who does decide to 

return a driver to safety-sensitive 

duties must ensure that the driver: 

(1) has been evaluated by a substance 

abuse professional; (2) has 

complied with any recommended 

treatment; (3) has taken a returnto-duty 

alcohol test (with a result 

- 7 - 

less than 0.02); and (4) is subject 

to unannounced follow-up 

alcohol tests. 

The FHWAmonitors compliance 

with the rules by requiring 

employers to keep detailed 

records of their alcohol misuse 

prevention programs. The 

FHWA will also conduct inspections 

of employers' programs. 

Also, selected employers 

have to submit annual calendar 

year summary reports to 

the FHWA. Driver alcohol 

testing records, however, are 

confidential. The test results 

and other confidential information 

are only released to the 

employer and the substance 

abuse professional. Any other 

release of this inform a tion is 

only with the driver's consent. 

If a driver initiates a grievance, 

hearing, lawsuit or other action 

as a result of a violation 

of the rules, the employer may 

release relevant information to 

the decisionmaker. 

Drug Testing 

The drug testing rules issued 

by the FHWA in November 

1988, with later amendments, 

remain in effect. The FHWA's 

new controlled substances' 

rule will take effect beginning 

in January 1995 for all drivers 

of vehicles requiring a commercial 

driver's license employed 

or used by large employers. 

The drug testing rules 

cover the same drivers as the 

alcohol testing rules. The 

types of tests required are: preemployment; 

reasonable suspicion; 

post-accident; random; 

return-to-duty; and follow-up. 

Drug testing entails analyzing 

a driver's urine specimen.


The analysis is performed at 

laboratories certified and 

monitored by the Department 

of Health and Human Services 

(DHHS). There are over 90 

DHHS-certified drug testing 

laboratories located throughout 

the United States and they 

are published monthly in the 

Federal Register. The driver 

provides a urine specimen and 

the" collector" seals and labels 

the specimen, completes a 

chain of custody document, 

and prepares the specimen 

and accompanying paperwork 

for shipment to a drug 

testing laboratory. The specimen 

collection procedures and 

chain of custody ensure that 

the specimen's security, 

proper identification and integrity 

are not compromised. 

All urine specimens are analyzed 

for marijuana, cocaine, 

amphetamines, opiates (including 

heroin) and 

phencyclidine (PCP). Testing 

involves a two-stage process. 

A screening test is first performed. 

If it is positive for one 

or more of the drugs, then a 

confirmation test is performed 

for each identified drug. The 

confirmation test ensures that 

over-the-counter medications 

or preparations are not reported 

as positive results. All 

drug test results are reviewed 

and interpreted by a physician 

before they are reported to the 

employer. 

if the laboratory reports a positive 

result to the physician, the 

physician contacts the driver and 

conducts an interview to learn if 

there is an alternative medical explanation 

for the drugs found in 

the driver's urine specimen. 

If the driver provides appropriate 

documentation and the physician 

discovers that it is a legitimate 

medical use of the prohibited 

drug, the drug test result is reported 

as negative to the employer. 

The drug rules prohibit any unauthorized 

use of the controlled 

substances. Illicit use of drugs by 

safety-sensitive drivers is prohibitedonoroffduty. 

TheFHWAhas 

some additional rules that prohibit 

the used of legally prescribed controlled 

substances (such as barbiturates, 

amphetamines, morphine, 

etc.) by safety-sensitive drivers 

involved in interstate commerce. 

Other regulations require drivers 

involved in interstate commerce to 

report any medical use of controlled 

substances. 

As with an alcohol misuse violation, 

a driver is removed from 

safety-sensitive duty if he has a 

positive drug test result. The 

driver is not removed until the 

physician has interviewed him 

and determined that the positive 

drug test resulted from the unauthorized 

use of a controlled substance. 

A driver is not returned to 

safety-sensitive duties until he has 

been evaluated by a substance 

abuse professional or physician, 

has complied with recommended 

rehabilitation, and has a negative 

result on a return-to-duty drug 

test. Follow-up testing to monitor 

the driver's compliance with 

abstinence from drug use may be 

required. 

Employers are responsible for conducting 

random, unannounced drug tests. 

The total number conducted 

each year must equal at least 50% 

of the safety-sensitive drivers. 

Random testing for drugs does not 

- 8 - 

have to be conducted in immediate 

time proximity to performing 

safety-sensitive functions. 

Once notified of selection 

testing, a driver must proceed 

to a collection site to accomplish 

the urine specimen 

collection. 

Employers must also provide 

information on drug use 

and treatment resources to 

safety-sensitive drivers, just as 

they have to provide for alcohol. 

All supervisors and officials 

of businesses with safetysensitive 

drivers must attend 

at least one hour of training on 

the signs and symptoms of 

drug abuse. Employers must 

also keep the drug test results 

and the records confidential. 

Drug test results and records 

are not released to others without 

the driver's written consent. 

Some exceptions are allowed, 

however, for arbitration, 

litigation or administrative 

proceedings arising from 

a positive drug test. Statistical 

records and reports are maintained 

by employers and drug 

testing laboratories. The information 

is aggregated data and 

is used to monitor compliance 

with the rules and to assess the 

effectiveness of the drug testing 

programs. 

Other Applicable 

Regulations 

There are other rules that affeet 

PMCPs, including 

churches. Each PMCP must 

contact the FHWA's Office of 

Motor Carriers in its state to 

obtain a Motor Carrier Identification 

Report, Form MCS- 

150. An Office of Motor Carriers 

office is located in each


state capital and larger states 

have additional satellite offices 

located throughout the state. 

The completed MCS-150 must 

be forwarded to the FHWA's 

Office of Motor Carrier Information 

Management, 400 7th 

Street, S.W., Washington, D.C. 

20590. Fa ilure to submit a 

Form MCS-150 could result in 

FHWA enforcement action. 

After receiving the completed 

MCS-150, the FHWA will assign 

the PMCP a U.S. DOT 

number. All PMCPs are required 

to be marked on both 

sides with the following: (1) 

the motor carrier 's name; (2) 

the city and state of its principal 

place of business or where 

the vehicle is customarily 

based; and (3) the motor carrier 

identification number preceded 

by "USDOT." 

Every motor carrier must 

also ensure that its vehicles are 

regularly inspected, repaired, 

Pinette v. Capitol Square Review 

and Advisory Board, 30 

F.3d 675 (6th Cir. 1994), cert. 

granted, 115 S.Ct. 787 (U.S. Jan. 

13,1995) (No. 94-780). 

The United States Supreme 

Court has agreed to hear a case 

to decide whether a private 

organization's display of a religious 

symbol in a public forum 

violates the establishment 

clause. Capitol Square is a tenacre 

public square located in 

downtown Columbus, Ohio, 

and owned by the State of 

Ohio. Ohio's state capitol 

and maintained. All vehicle parts 

and accessories must at all times 

be in a safe and proper working 

order. Pushout windows, emergency 

doors, and emergency door 

marking lights in buses are to be 

inspected at least every 90 days. 

A vehicle cannot be driven if it is 

likely to break down or cause an 

accident. Every motor carrier 

must require its drivers to complete 

a vehicle inspection report at 

the end of each day. The report 

must identify the CMV and list 

anything wrong tha t could affect 

its safe operation. Before the vehicle 

is driven again, the motor 

carrier must repair any safety defects 

listed on the vehicle inspection 

report. 

The primary enforcement activity 

for PMCPs is driver/ vehicle 

inspections. Inspections are performed 

a t carrier terminals or destination 

points such as amusement 

parks, convention centers, and 

sporting complexes, as well as on 

Headnotes 

building is located in Capitol 

Square along with other governmental 

office buildings. For over 

a century, countless public gatherings 

and cultural festivals have 

been held in the square. During 

the holiday season, the square has 

been decorated with lights, a 

Christmas tree, and in recent 

years, a menorah. By state law, the 

Capitol Square Review and Advisory 

Board (Board) has the sole 

authority to regulate the various 

uses of the square. 

In November 1993, the Board 

voted to ban unattended displays 

from the square during December 

- 9 - 

the road. 

For more information and 

assistance concerning the application 

of the new regulations 

to your organization's vehicles, 

contact: 

Office of the Secretary of 

Transportation 

Drug Enforcement and 

Program Compliance, 

Room 9404 

400 7th Street, SW. 

Washington, D.C. 20590 

(202) 366-3784 R 

1993. A week la ter, however, 

the Board reversed its decision 

following public outcry. A 

Christmas tree went up and 

the Board granted a permit to 

erect a menorah on the square 

during the eigh t days of 

Chanukah. The Ku Klux Klan 

(Klan) applied for a permit to 

erect a cross on the square. The 

Board denied the permit and 

an administrative hearing was 

held that resulted in a ruling 

adverse to the Klan's permit 

request. The Klan tried to get 

an injunction in federal court 

requiring the Board to issue

Headnotes continued ... 

the permit. After hearings, the 

district court granted the 

Klan's request for an injunction 

and ordered the Board to 

issue the permit. The court 

concluded that Capitol Square 

was a traditional public forum 

and the cross the Klan proposed 

to erect was protected 

speech. Reasoning that because 

a private party (not the 

government) sought to displaya 

religious symbol in a 

public forum, the court said a 

reasonable observer would 

not perceive the display to be 

an endorsement of religion. 

The Board appealed to the 

Sixth Circuit Court of Appeals 

and moved for an emergency 

stay pending the appeal, 

which was denied. The Klan 

erected the cross on the Capitol 

Square. A day later, it was 

vandalized. The Court of Appeals 

later held the Klan was 

entitled to erect the cross in the 

public square. 

In its decision on the merits, 

the court noted that private 

religious speech is protected 

under the free speech and free 

exercise clauses. Without a 

compelling interest, the government 

may not discriminate 

against private speech in a 

public forum because of the 

speaker's views. Speakers 

with a religious message are 

entitled no less access to public 

forums than that afforded 

a speaker whose message is 

secular or otherwise nonreligious. 

The court said there 

was an immense difference 

between government speech 

endorsing religion, which the 

establishment clause forbids, 

and private speech endorsing 

religion, which the free speech and 

free exercise clauses protect. 

The court held that Capitol 

Square was a traditional public 

forum. The court noted groups as 

divergent as the Klan and the 

United Way had held rallies and 

sponsored speeches in the square. 

The court explained what constitutes 

a traditional public forum: 

In places which by long tradition 

or by government fiat 

have been devoted to assembly 

and debate, the rights of 

the State to limit expressive 

activity are sharply circumscribed. 

At one end of the 

spectrum are streets and 

parks which "have immemorial 

been held in trust for the 

use of the public and, time 

out of mind, have been used 

for purposes of assembly, 

communicating thoughts between 

citizens, and discussing 

public questions." Citation 

omitted. In these quintessential 

public forums, the 

government may not prohibit 

all communicative activity. 

For the State to enforce 

a content-based exclusion it 

must show that its regulation 

is necessary to serve a compelling 

state interest and that 

it is narrowly drawn to 

achieve that end. J.d. at 678. 

The court said that the Klan was 

entitled to the full protection of the 

public forum doctrine, although it 

sought to erect a cross rather than 

sponsor speech. 

The Board argued that a cross is 

a religious symbol and the location 

of it on the Capitol Square would 

lead a reasonable observer to conclude 

that the State of Ohio en- 

- 10- 

dorsed Christianity. The court 

responded by saying the government 

display of a religious 

symbol did not violate the 

Lemon test. Lemon asks 

whether a reasonable observer 

would view the disputed displayas 

a government endorsement 

of religion. The court responded 

no, the display is not 

a government sponsored display; 

in fact, it was privately 

funded and privately maintained, 

and carried an express 

disclaimer of any government 

support. The court also said 

that religious groups may not 

be selectively denied access to 

public forums. Speech that is 

distasteful, unpopular, and 

outright offensive also enjoys 

first amendment protection. 

The United States Supreme 

Court should decide the case 

by the end of this term. 

Warner v. Orange County Department 

of Probation, 870 

F.Supp. 69 (S.D.N.Y. 1994). 

The plaintiff, Warner, 

brought an action to obtain declaratory 

and compensatory 

relief that the Department of 

Probation coerced him into attending 

Alcoholics Anonymous 

(A.A.) meetings, violating 

the United States 

Constitution's first amendment 

establishment of religion 

clause. Warner pled guilty to 

his third alcohol-related driving 

offense within a period of 

slightly more than one year. 

One of the conditions he had 

to fulfill to receive probation 

was to attend Alcoholics 

Anonymous at the direction of 

his probation officer.

Headnotes continued ... 

Warner attended AA meetings 

under the direction of his 

probation officer for several 

months. Warner, who is an 

atheist, complained to his probation 

officer about what he 

perceived as the religious nature 

of the AA meetings he 

had attended. H is probation 

officer did not excuse Warner 

from attending AA meetings, 

but instead told him to focus 

on how AA could help him 

with his abuse of alcohol. 

The essential statement of 

the A.A program is the Twelve 

Steps. The Twelve Steps are as 

follows: 

1. We admitted we were 

powerless over alcohol- that 

our lives had become unmanageable. 

2. Came to believe that a 

Power grea ter than ourselves 

could restore us to sanity. 

3. Made a decision to turn 

our will and our lives over to 

the care of God as we understood 

Him. 

4. Made a searching and 

fearless moral inventory of 

ourselves. 

5. Admitted to God, to ourselves 

and to another human 

being the exact nature of our 

wrongs. 

6. Were entirely ready to 

have God remove all these defects 

of character. 

7. Humbly ask Him to remove 

our shortcomings. 

8. Made a list of all persons 

we had harmed, and became 

willing to make amends to 

them all. 

9. Made direct amends to 

such people wherever possible, 

except when to do so 

would injure them or others. 

10. Continued to take personal 

inventory and when we were 

wrong promptly admitted it. 

11. Sought through prayer and 

meditation to improve our conscious 

contact with God, as we 

understood Him, praying only for 

knowledge of His will for us and 

the power to carry that out. 

12. Having had a spiritual awakening 

as the result of these steps, 

we tried to carry this message to 

alcoholics, and to practice these 

principles in all our affairs. 

At the center of the Twelve Steps 

is the concept of a higher power. 

The Twelve Steps stand for the 

proposition that recovery from alcoholism 

requires a spiritual 

awakening. The emphasis on a 

higher power is also the central 

theme of AA's basic text, entitled 

"Alcoholics Anonymous," but 

commonly called the "Big Book." 

Group prayer was also common at 

the A.A. meetings Warner attended. 

Meetings would begin 

with a nondenominational prayer 

and end with the Lord's Prayer. 

Persons who attended the meetings 

were strongly encouraged to 

pray. 

The court found that the AA 

meetings Warner attended was 

the functional equivalent of religious 

exercise, and was a violation 

of the establishment clause. The 

court said sending probationers to 

rehabilitation programs that engage 

in the functional equivalent 

of religious exercise is an action 

that tends to establish a state religious 

faith. "[Tlhe defendant in 

this case did not have the intention 

of establishing a state religious 

faith when it coerced the 

probationer into attending A.A 

- 11 - 

meetings. Nonetheless, the 

practical effect of coercing probationers 

into the exercise of 

religion is to tend towards a 

state-mandated and state-approved 

religion." !d. at 73. 

The court also noted that the 

defendant's action was not justified 

because it was attempting 

to rehabili ta te a person 

convicted of a serious offense. 

"It would be ironic and selfdefeating 

if in the attempt to 

restore offenders to full membership 

in our society, the state 

were to ignore the Constitution, 

our society's foremost legal 

statement of our values." 

!d. The court found Warner 

entitled to only a one dollar 

nominal damages award due 

to the defendant's violation of 

the establishment clause, 

along with reasonable attorneys' 

fees. 

Other courts have upheld 

sentencing persons convicted 

of alcohol-related crimes to attend 

AA meetings. In those 

cases, however, nonreligious 

alternatives to AA meetings 

were also available.

LAW & CHURCH 

Published by the Center for the 

Study of Law and the Church, 

Cumberland School of Law, 

Samford University 

Birmingham, AL 35229-7015 

Telephone - Local: 205/870-2409 

Toll Free Number : 1-800-888-7303 

Published Quarterly - Winter, Spring, 

Summer, and Fall of each year. 

Subscription: $10.00 annually. 

Copyright 1995 

Center for the Study of Law & the Church, Samford University 

Chriss H. Doss, Director 

Linda Dukes Connor, Associate Director 

This publication is designed to provide information in regard to the subject matter covered. It is sold with the 

understanding that legal advice is not being rendered. If legal advice is required, the services of a competent 

attorney should be sought. 

Samford University is an Equal Opportunity Institution and welcomes applications for employment and 

educational programs from all individuals regardless of race, color, sex, handicap, or national or ethnic origin. 

CENTER FOR THE STUDY OF LAW & THE CHURCH 

Cumberland School of Law 

Samford University 

Birmingham, Alabama 35229-7015 

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Cumberland School of Law-Samford University 

Birmingham, AL 35229-7015, Telephone: 205/870-2409 

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