RECENT CIVIL DECISIONS
WINTER 2003-04

BY DAVID MARSH and TOM POWELL

*** ALABAMA POWER COMPANY V. ALDRIDGE, MS. 1010969 (ALA. DEC. 6, 2002) ***

Aldridge worked for Alabama Power for 20 years, working his way up from the “hard crew” to lead line­man — a supervisory position within the highest pay classification of the Electrical Workers’ Union. Aldridge suffered a neck injury for which he underwent surgery and he filed a claim for workers compensation benefits. Alabama Power refused the claim and Aldridge filed suit for Workers' Compensation benefits.

Aldridge was off work for eight months because of his injury and surgery. When he returned to work, Alabama Power placed him in its cus­tomer service center, but he complained that sit­ting all day caused him severe pain. Aldridge left that position and began receiving long-term dis­ability benefits. Eleven months later, Aldridge accepted a meter-reader’s position, but he injured his knee three days after he began that job. Aldridge claimed he injured his knee while walking his meter route. His doctor cleared him to return to work two months later. During the time Aldridge was not medically cleared to return to the meter-read­er job, he began working for another company, MDS, as a part-time dri­ver – a fact he did not share with Alabama Power.

Aldridge began miss­ing time from his meter-reader job because he claimed his knee still hurt and he was placed on another medical absence, during which time he continued to work for MDS. Aldridge had other absences, for a number of reasons, and his supervi­sor at Alabama Power ini­tiated an internal investi­gation. The investigator interviewed Aldridge and prepared a written state­ment that Aldridge refused to sign. Aldridge also refused to sign a release that would have given Alabama Power access to Aldridge’s dri­ving records at MDS. Ultimately, Aldridge was discharged by Alabama Power on the grounds that he made misrepre­sentations, failed to prop­erly report his absences and failing to maintain proper attendance.

Following his termi­nation, Aldridge sued Alabama Power for retal­iatory discharge, invasion of privacy, outrage and tortious interference with a business relationship. The trial court entered a summary judgment as to all of the claims except for retaliatory discharge and the case proceeded to a trial in which the jury returned a verdict in favor of Aldridge and awarded $250,000 in compensatory damages and $250,000 in punitive damages. The trial court denied Alabama Power’s post-judgment motions and it appealed.

Justice Lyons’s opin­ion for seven members of the Court, with Justice Johnstone concurring in part in the rationale, reversed and remanded the case with instructions to the trial court to enter a judgment as a matter of law in favor of Alabama Power. The basis for the decision included the fact that one of the “reasons” Aldridge had provided for an absence was that a storm had damaged his roof and that he needed to take the day off to per­form emergency repairs to protect his belongings. But Alabama Power’s investigation revealed that only four shingles were missing and the area was not covered by a tarp and Aldridge’s insurance adjuster was not even aware of any roof damage and none had been reported to him.

The Court held that, because Alabama Power had presented evidence supporting one of its legitimate reasons for dis­charge — that Aldridge made misrepresentations concerning his absence in order to make repairs to his roof; Aldridge had “failed to present sub­stantial evidence that APCo discharged him ‘solely because [he] has instituted or maintained any action against the employer to recover worker’s compensation benefits,’ § 25-5-11.1 (emphasis added).”

The Court’s applica­tion of “solely” to the facts in this case is criti­cal. The majority’s opin­ion contains a lengthy, cross-country tour of retaliatory discharge statutes in other states, including three others whose statutes contain the term, “solely,” and an analysis of Alabama’s statute. The Court gave great consideration to its decision in Norfolk Southern Ry. V. Johnson, 740 So. 2d 392 (Ala. 1999), a case concerning an employee who claimed he was discharged “sole­ly” for serving on a jury, in violation of Ala. Code Section 12-16-8.1. In that case, the Court had held that it was for the jury to determine whether Johnson had been discharged “solely” because he served on a jury in a case where Norfolk Southern was the defendant, given that Johnson was fired after his jury service but Norfolk Southern claimed in response that Johnson had given false answers during jury selec­tion.

The Aldridge decision stated: “The clear import of our holding in Norfolk Southern is that where a conclusive deter­mination can be made that retaliation is not the sole basis for the dis­charge a judgment as a matter of law is appropri­ate. A plaintiff, therefore, has the burden of pre­senting sufficient evi­dence indicating that the plaintiff was discharged because he or she filed a claim for workers’ com­pensation benefits, but if there is uncontradicted evidence of an indepen­dently sufficient basis for the discharge then the defendant is entitled to a judgment as a matter of law. An employer’s stated basis for a dis­charge is sufficient as a matter of law when the underlying facts sur­rounding the stated basis for the discharge are undisputed and there is not substantial evidence indicating (a) that the stated basis has been applied in a discriminato­ry manner to employees who have filed Workers' compensation claims, (b) that the stated basis con­flicts with express compa­ny policy on grounds for discharge, or (c) that the employer has disavowed the stated reason or has otherwise acknowledged its pretextual status.”

Chief Justice Moore’s dissenting opinion stated: “The majority has rewrit­ten the stated requirements for establishing a prima facie case of retal­iatory discharge. Such a change is not only unjus­tified by the statutory law, but also effectively immunizes employers from retaliatory-discharge claims.” The Chief Justice then discussed the history of the Court’s decisions construing Alabama’s retaliatory dis­charge statute and noted that the majority’s hold­ing in Aldridge was in direct conflict with some of those holdings. The Chief Justice concluded his dissent with the observation that the majority also had failed to follow the long-stand­ing rule that the workers’ compensation statutes are to be liberally construed.

• COMMENTARY: This decision is a sharp U-turn in the path of Alabama law. Earlier decisions held that the issue of whether a worker was discharged “solely” because he filed a claim for compensation benefits was more often than not a question for the jury rather than the judge. This new decision rejects that precedent and institutes a rule whereby the question may more often be answered by the judge, rather than the jury. Hence, the Chief Justice’s dissent.

*** EX PARTE HAYLES, MS. 1011811 (ALA. NOV. 27, 2002) ***

Hayles was the Alabama Department of Transportation super­visor responsible for over­seeing the work crew that was demolishing the old Kowaliga Bridge and McDuffie was an assis­tant bridge-maintenance engineer for ALDOT who developed the demolition plan for the bridge. Two ALDOT employees died when the bridge collapsed during the demolition. The wid­ows of the two workers sued a number of ALDOT employees, including Hayles and McDuffie, on various negligence and wanton­ness theories. The trial court entered summary judgments for all of the defendants except for Hayles and McDuffie, who then sought a writ of mandamus ordered that summary judgments be granted to them on the grounds of State-agent immunity.

The Supreme Court granted the writ, finding that the plaintiffs had offered no evidence to show that Hayles and McDuffie had exceeded the scope of their author­ity, acted in violation of ALDOT’s rules and regu­lations, or acted willfully, maliciously, fraudulently, in bad faith or beyond their authority. Justice Stuart’s opinion for seven members of the Court rejected the plaintiffs’ argument that neither Hayles nor McDuffie was entitled to State-agent immunity, on the basis that their actions exceed­ed the scope of their written job descriptions. The plaintiffs contended that the bridge collapsed prematurely because Hayles disregarded the master plan for the demolition and ordered that a steel diagonal brace be cut before the last concrete span was removed. The majority opinion found that, because Hayles and McDuffie were “exercis­ing their judgment in discharging their duties,” they were entitled to State-agent immunity.

Justice Johnstone, joined by Chief Justice Moore, agreed that McDuffie was entitled to immunity, but dissented as to Hayles’s immunity. The dissent opined that there was a jury question presented as to whether the deaths of the workers resulted from Hayles’s “formulating plans, poli­cies or designs,” or from “his simply bungling the mechanics of the demoli­tion.”

Furthermore, the dis­sent warned: “The gener­al policy of the Cranman restatement is to immu­nize government judg­ments, not workaday judgments as common to private enterprise as to government. If we are not careful, our decisions will regress into the pre­Cranman morass which accorded immunity to the likes of a school jani­tor ‘exercising discretion’ in failing to keep an exposed underground boiler pipe covered with a piece of plywood, Louviere v. Mobile County Bd. of Education, 670 So. 2d 873 (Ala. 1995).”

• COMMENTARY: The recent decisions that address State-agent immu­nity show evidence of ten­sion among the several members of the Court. Although Exparte Cranman was intended to restate the rules that apply in determining State-agent immunity, and perhaps provide a more simplified analysis, the Court has issued three dozen decisions in the past three years that cite or undertake to explain Cranman. Don’t think the dust has settled on this issue.

*** EX PARTE WOOD, MS. 1011916 (ALA. DEC. 6, 2002) ***

A minor child who had been adjudicated as a delinquent and then committed to the Alabama Department of Youth Services’ Vacca Campus brought a class action against J. Walter Wood Jr., who is the executive director of DYS, and other ficti­tiously described defen­dants. The minor plain­tiff sought compensatory and punitive damages, attorney fees and cost, claiming that Wood is personally responsible for providing and imple­menting appropriate edu­cational opportunities required by Alabama law for those individuals committed to the custody of DYS and that Wood acted in bad faith by willfully denying to the minor plaintiff and simi­larly situated class mem­bers “equitable and ade­quate” educational pro­grams. The complaint alleged that the minor plaintiff only attended two hours of school each day, as opposed to the minimum of six hours prescribed by Ala. Code Section 16-1-1 and Rule 290-3-1-.02 of the State Department of Education.

The trial court denied Wood’s summary judg­ment motion that was premised upon State-agent immunity grounds and Wood petitioned for a writ of mandamus directing the trial court to enter the summary judgment. Justice Lyons’s opinion for all nine members of the Court denied the writ, finding that Woods had failed to prove that his conduct that was the subject of the lawsuit consisted of “discretionary acts.” In reaching that result, the Court rejected Wood’s “broad assertion that the claims identified in [the] complaint require him to exercise his judgment and discretion in carrying out State policy.”

The Court also analogized Wood’s own self-serving affidavit to that of the defendant State-agent physicians in Dunnam v. Ovbiagele, 814 So. 2d 232 (Ala. 2001), who (like Wood) had averred that their actions were “discretionary.” Because Wood’s affidavit was “conclusory” and lacking the necessary factual details necessary to meet his burden of showing his role in the curriculum decisions, the Court found no abuse of discretion on the trial court’s part in denying Wood’s motion for summary judgment.

• COMMENTARY: Seemingly, this case was decided on the basis of a less-than-adequate affidavit offered to support the motion for summary judgment. However, it may be the case that the movant could not truthfully have better described the extent of his “discretion.”

*** CROWL V. KAYO OIL CO., MS. 1002058 (ALA. OCT. 18, 2002) ***

Crowl slipped and was injured at a service station parking lot in Huntsville. Shortly before the two-year statute of limitations ran, Crowl sued Conoco, Inc. and six fictitiously named defendants, alleging that they had negligently or wantonly maintained the service station parking lot. Crowl attempted service by leaving the summons and complaint and a set of interrogatories at the service station itself. Two months later, Crowl filed an application for a default judgment, which the trial court granted against Conoco in the amount of $200,000. A year later, Conoco moved to set aside the default judgment, alleging that it had no ownership interest and that it did not perform any business operations at the service station where Crowl was injured, and that it had not received notice that the suit had been filed. The trial court granted Conoco’s motion.

Crowl amended his complaint, less than a week after the trail court set aside the default judgment, so as to substitute Kayo Oil Company in place of previously named fictitious parties. Kayo moved to dismiss the amended complaint, on the basis that the two-year statute of limitations had expired and that the amendment naming Kayo had been filed more than three and a half years following Crowl’s injury. The trial court granted Kayo’s motion and Crowl appealed.

Retired Justice Hugh Maddox wrote and opinion for five members of the Court that affirmed, treating the dismissal as a summary judgment (because the trail court had considered matters outside the pleadings). The majority agreed that Crowl had not exercised “due diligence” to ascertain the name of the premises owner and had not timely substituted the owner for fictitiously named defendant.

According to the dissenting opinion written by Justice Harwood, who was joined by Justice Lyons, the majority apparently did not find it necessary for the substituted defendant to show that it was caused any prejudice by Crowl’s delay in order for the substitution to be rejected. Justice Johnstone wrote a separate dissent, which also was joined by Justice Lyons, in which he noted that the substituted defendant had “actively and thoroughly disguised” the premises as though it was owned by a different corporation” and opined that the courts should not reward a defendant for disguising its identity.”

• COMMENTARY – While this decision raises many concerns about fundamental fairness, you should take this as a warning that the present Court won’t hesitate to apply the fictitious-party rules as narrowly as possible.

***TUCK V. HEALTHCARE AUTHORITY OF THE CITY OF HUNTSVILLE, MSN. 1011100 (ALA. NOV. 27, 2002) ***

Tuck’s mother was admitted to Huntsville Hospital for treatment of respiratory problems and “confusion.” One of the admitting nurses, Mizelle, determined that Mrs. Tuck was at risk for a fall, so he initiated a fall-management protocol, which he later explained included explaining the call bell to the patient, raising the bed rails and placing the bed in its lowest position. Despite these measures, Mrs. Tuck was found twice out of her bed and both times she was hallucinating. A “restraint protocol was then initiated, with a belt placed around Mrs. Tuck’s midsection that was less restrictive than ankle and wrist restraints.

After the midsection restraint was placed on her, Mrs. Tuck was found on the floor at the foot of her bed with her leg folded beneath her. The on-call doctor determined that Mrs. Tuck had broken her hip when she fell out of her bed.

Mrs. Tuck sued the hospital for medical malpractice. She later died of unrelated causes and her son was substituted as the plaintiff. The hospital moved for summary judgment, which Tuck opposed with an affidavit of Cantrell, who is a former nurse and an administrator at a school of nursing. The trial court denied the hospital’s summary judgment motion, as well as its motion to strike Cantrell’s’ affidavit.

At trial, the hospital moved to exclude Cantrell’s affidavit on the basis that Cantrell did not qualify as a “similarly situated health-care provider” pursuant to Ala. Code Section 6-5-548. The trial court granted the motion to exclude Cantrell’s testimony and Tuck then sought to call Buchmann, an employee of the hospital who provided the training in the use of patient restraints, to testify as an expert on the standard of care for applying such restraints. The trial court did not allow Buchmann to testify, because he had not been disclosed before trial. The trial court denied Tuck’s motion for a mistrial and, at the close of Tuck’s case, the trial court entered a pre-verdict judgment as a matter of law in favor of the hospital. Tuck appealed.

Justice Lyons’s opinion for an undivided Court affirmed the judgment, finding the trial court had not abused its discretion in disqualifying Cantrell, or in not allowing Buchmann to testify or in denying Tuck’s motion for a mistrial. The Court reasoned that Cantrell was not “similarly situated” because she testified at the trial that she had not worked as a staff nurse in a hospital since 1978 and that she had last worked as a nurse in 1992, she had not taught nursing students in a clinical setting since 1978, and she never had used the type of restraints that were placed on Mrs. Tuck. The only exceptions the Court could find to the usual “similarly situated” requirements for a nurse expert were where (1) the expert was highly trained and experienced in the area of practice and (2) the expert’s work in the year preceding the alleged malpractice demonstrated the expert’s competence to testify as to the standard of care. See Dowdy v. Lewis, 612 So. 2d 1149 (Ala. 1992), and HealthTrust, Inc. v. Cantrell, 689 So. 2d 822 (ala. 1997). The Court found that Cantrell did not fit within either of these exceptions. The Court also rejected Tuck’s arguments that he was prejudiced by the trial court’s essentially changing its mind between the summary judgment proceedings and trial with respect to Cantrell’s ability to testify and a related argument that Tuck should have been permitted to offer Buchmann’s testimony after Cantrell’s testimony was excluded and that a mistrial should have been granted based on those at-trial developments. The Court found no legal basis for allowing Buchmann’s testimony or for granting a mistrial.

Finally, the Court noted that it was releasing another decision on the same date, in Ex parte HealthSouth Corporation, Ms. 1011582 (Ala. Nov. 27, 2002), which reformulated the applicability of the expert-witness exceptions (discussed below). In this case, however, the Court held that the subject matter required the plaintiff to offer expert testimony as to whether the hospital breached the standard of care, because placing and maintaining the restraints did not constitute “rou­tine, custodial care” of the patient.

*** EXPARTE HEALTH SOUTH CORPORATION, MS. 1011582 (ALA. NOV. 27, 2002) ***

Mrs. Heath was admitted to HealthSouth for back surgery, after which she was transferred to the rehabilitation section of HealthSouth’s facility. Immediately before she was moved from the surgery ward, Mrs. Heath was given Valium, mor­phine and Percodan. Although Percodan should be given four hours apart, Mrs. Heath was given a second Percodan two hours and forty-five minutes later, shortly after she arrived at the rehabilitation floor.

In addition, Mrs. Heath, who is an insulin-depen­dent diabetic, did not receive a schedule dose of insulin. After Mrs. Heath was moved to the rehabilita­tion unit, an LPN who was working her first day on the job raised two of the four side rails on Mrs. Heath’s bed and left her with a buzzer near her hand. Shortly after she received the second Percodan, Mrs. Heath needed to use the bath­room and pressed the buzzer for thirty minutes to an hour. After that time, she assumed the nurses would not assist her and she attempted to go to the bathroom with­out assistance. As she climbed from her bed, she fell and broke her hip, which required an immediate surgical repair.

Mrs. Heath and her husband sued HealthSouth and other defendants, alleging they had breached the stan­dard of care by failing to identify Mrs. Heath as being at risk for falling, failing to supervise and monitor Mrs. Heath while she was being treat­ed in the facility, failing to train the nursing staff on safety issues and fail­ing to respond to Heath’s calls for assistance.

HealthSouth moved for summary judgment, offering a supporting affi­davit of a registered nurse. The Heaths responded with an affi­davit of another regis­tered nurse. HealthSouth moved to strike the affi­davit of the Heaths’ nurse expert on the basis that she had not practiced in the same discipline for the year preceding Mrs. Heath’s fall. The trial court struck the affidavit and entered summary judgment in favor of HealthSouth. The Heaths appealed.

Justice Lyons’s opin­ion for five members of the Court, with Justice See concurring specially and Justices Brown and Stuart concurring in the result, agreed with the Heaths that the subject matter of this lawsuit did not require that the Heaths offer expert testi­mony to establish that HealthSouth breached the standard of care. The Court stated that this case fell within an excep­tion to the expert-testi­mony requirement, because “medical exper­tise is not necessary to prove the plaintiff’s case, such as here when nurses have failed to respond to a routine; custodial call from a patient.” The Court also rejected HealthSouth’s argument that presented a host of “what-ifs” if the Court were to recognize that an unassisted jury could rec­ognize negligence in this case, noting that “where the issue is whether a nurse breached the stan­dard of care by not responding to a routine call within a 30-minute period, laypersons could answer all of the afore­mentioned hypotheticals by using their ‘common knowledge and experi­ence.’ We do not see how an expert would be nec­essary to testify as to the ‘medical standards’ involved.”

Chief Justice Moore dissented, opining that the text of the Medical Liability Act does not leave room for the majority’s expansion of the “judicially created excep­tions to the AMLA.”

• COMMENTARY: If you have a client who suffered an in-hospital injury, including a case where a foreign object was left in the patient’s body, you should closely study the Heath decision to see one of the no-expert-needed exceptions applies.

*** EXPARTE PIKE FABRICATION, INC., MS. 1010388 (ALA. NOV. 22, 2002) ***

Dorsey Trailer, Inc., the plaintiff in this case, developed a process for manufacturing foam-core shelving to be used in trailers and vans. Dorsey is located in Coffee County. Pike Fabrication, Inc., and Dorsey reached an agreement whereby Pike would use Dorsey’s process at its own plant in Pike County. The older Dorsey (“Dorsey I”) filed for bankruptcy and another Dorsey com­pany (“Dorsey II”) was formed in Coffee County, which purchased all of Dorsey I’s assets.

Dorsey II sued Pike in Coffee County, alleging that Pike illegally dis­closed, marketed or oth­erwise made use of the formulas for the foam-core shelving that Dorsey II alleged it acquired from Dorsey I. Pike moved to dismiss the case for improper venue or have the case transferred to Pike County. Dorsey II offered no response to Pike’s motion, but the trial court denied the motion and reserved the authority to revisit the issue.

Pike sought a writ of mandamus directing the Coffee County court to transfer the case to Pike County. Justice Brown’s opinion for nine mem­bers of the Court granted the writ, noting that Pike’s affidavit offered in support of its motion showed that its principal place of business was in Pike County and that all of the shelving units at issue were manufactured in Pike County, to which Dorsey II had offered no contradictory evidence. Furthermore, the Court said, the fact that Pike’s president had made two “isolated” inquiries to Dorsey II concerning some possible leases in Coffee County was not sufficient to establish that Pike “did business by agent” in Coffee County for purposes of the venue statute.

COMMENTARY:

We hope that Dorsey Trailers does not go under for good and that Dorsey Trailers will continue to provide the bench and bar with answers to some of the procedural issues that arise under Alabama law. Readers no doubt will recall the bellwether deci­sion in Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala. 1981), that has been cited in 55 decisions.

SHORT TAKES

*** SMART PROFESSIONAL PHOTOCOPY CORPORATION, V. CHILDERS-SIMS, MS. 1010354 (ALA. OCT. 11, 2002) ***

Justice Lyons’s opinion for five members of the Court vacated a class action certification of claims that the “Smart” Corporation overcharged patients and litigants for copies of their medical records. The putative plaintiffs claimed that the overcharges had been paid by mistake, rather than through fraud. The Court held that a trier of fact would have to deter­mine whether each class member “operated under a mistake of fact,” Because individual claims would predominate, the Court found the class had been certified improperly.

*** EX PARTE HARALSON, MS. 1012071 (ALA. JAN. 17, 2003) *** 

Justice Lyons’s opinion for a 9-0 Court held that a deputy sheriff who was operating a patrol car that collided with the plaintiff’s car and caused her injuries was not immune from suit simply because “his mere status as a State official cloaks him with the State’s constitutional immunity.” Rather, the Court held that the deputy’s immunity could only be determined by examining whether he was acting in his official capacity as a deputy sher­iff at the time of the acci­dent (i.e., whether he was “on duty”). If the plain­tiff could show that the deputy was “on a person­al errand or otherwise had departed from the line and scope of his employment” at the time of the accident, the Court said, the plaintiff “may possibly prevail” on her claims.

*** PORTERFIELD V. AUDUBON INDEMNITY CO., MS. 1010894 (ALA. NOV. 22, 2002) ***

Justice Harwood’s opin­ion for a 9-0 Court gave a qualified “No” answer to a certified question from the federal court in Montgomery, which inquired whether the pol­lution exclusion clause in a comprehensive general liability policy precludes coverage to an insured for liability for injuries allegedly caused by the ingestion of lead con-tamed in paint, blinds, water, pipes and soil on premises operated by the insured. The 50-page opinion concluded that the insurer would owe a duty to indemnify the insured against those per­sonal injuries specifically presented by the facts of this case, i.e., those injuries arising out of the inhalation and ingestion of lead-paint particles resulting from the peeling and flaking of interior surface lead paint.

*** SOUTHERN BAKERIES, INC. V. KNIPP, MS. 1010743 (ALA. DEC. 13, 2002) ***

Justice See’s opinion for five members of the Court held that two workers could not recover for emotional dis­tress and mental anguish caused by their apprehension that they might develop lung cancer or other diseases as a result of their exposure to asbestos while removing an old oven after they had been assured the oven was asbestos-free. The bare majority found that, although “fear is a real phenomenon and can be debilitating,” in this case it did not pre­sent a “legally cognizable present injury” for which the plaintiffs could recov­er damages. Justice Woodall’s dissent, which was joined by Justices Lyons and Johnstone, focused on the rule that emotional distress is compensable in a fraud action, even where the claims for emotional dis­tress are based on mere “uncertainty” as to the likelihood of eventual economic loss resulting from the fraud.

*** WENGER TREE SERVICE V. ROYAL TRUCK & EQUIPMENT, INC., MS. 1011373 (ALA. DEC. 20, 2002)***

Justice Johnstone’s opin­ion for four members of the Court, with Justice Houston concurring spe­cially, reversed the trial court’s dismissal for lack of personal jurisdiction of the defendant, a Pennsylvania company that sold specialized trucks to the plaintiff, an Alabama sole proprietor­ship. The facts showed that the plaintiff had ini­tiated a purchase inquiry to the defendant over the telephone after reading an advertisement in a trade magazine delivered to his business in Madison County. Another Madison County resident offered evidence that she had communicated with the defendant by way of e­mail concerning truck sales. ‘The Court found the evidence was suffi­cient to give Alabama courts jurisdiction over a non-resident who made a “direct sale” to an Alabama plaintiff.