RECENT CIVIL DECISIONS
BY DAVID MARSH
*** ALABAMA SUPREME COURT TO THE 11 TH CIRCUIT: DON'T ASSUME THAT THE AEMLD SUBSUMES! ***
The recent good news from the Alabama Supreme Court is its determination that the AEMLD does not "subsume' all other claims that may be brought in a products liability case.
Two cases arising out of claims against different tobacco-company defendants provided the Court with the occasion to hold that bringing a claim against a manufacturer under the Alabama Extended Manufacturers Liability Doctrine ('AEMLD") does not automatically foreclose any common-law claims or any claim for breach of an implied warranty of merchantability.
In Spain v. Brown & Williamson Tobacco Corp., Ms. 1000143 (Ala. June 30, 2003), the Court was presented with a set of certified questions from the Eleventh Circuit Court of Appeals. Among those several questions, the Eleventh Circuit asked if it had correctly concluded "that the negligence and wantonness claims merge into an AEMLD claim."
Chief Justice Moore, joined by Justices Houston, Lyons, Brown, Harwood and Woodall, agreed in "Part I-A" of the per curiam opinion that the negligence and wantonness claims did not merge into an AEMLD claim. Justice Johnstone concurred in that result. The per curiam opinion said:
"With respect to tort claims, the complaint alleges negligence, wantonness, and claims under the AEMLD. In a secondary question, the Eleventh Circuit asks us to validate its assumption that the AEMLD subsumes preexisting remedies at common law. We noted in Keck v. Dryvit Systems. Inc., 830 So. 2d I (Ala. 2002), that the AEMLD, announced in Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala. 1976), is 'a judicially created accommodation of Alabama law to the doctrine of strict liability for damage or injuries caused by allegedly defective products.' 830 So. 2d at 5 . We cannot deduce from this Court's announcement of the AEMLD in Casrell that the common law was thereby abrogated by negative inference. As we said in Keck, 'Judicial decision-making should not be seen as the opportunity to legislate and, to the extent Casrell stands as an example of judicial legislation, it is time for this Court to defer to the Legislature for further expansion of the sweep of its holding.' 830 So. 2d at 8." (emphasis added)
The more extensive "Part I-B" of the per curiam opinion addressed the question of implied-warranty claims. Chief Justice Moore and Justices Lyons and Harwood concurred in "Part I-B;" Justices Johnstone and Woodall concurred specially; and Justices Houston and Brown concurred in the result. The per curiam opinion distinguished and explained a number of previous decisions that involved implied-warranty claims and concluded: "Thus, a claim alleging breach of an implied warranty of merchantability is separate and distinct from an AEMLD claim and is viable to redress an injury caused by an unreasonably dangerous product." (emphasis added)
Justice Johnstone's lengthy special writing in Spain contains an analysis of the unique claims and defenses of that case, with special attention given to statutes of limitations and rules of repose.
In a second opinion released that same day, Tillman v. R.J. Reynolds Tobacco Co., Ms. 1001644 (Ala. June 30, 2003), the Court answered the Eleventh Circuit's question that asked: "Whether there is any potential cause of action under any theory against any retail defendants including those that employ pharmacists who sell cigarettes for claims brought under the [AEMLD], or premised on negligence, wantonness, or civil conspiracy under Alabama law."
The per curiam opinion responded to the Eleventh Circuit's question by saying: "[W]e answer the question […] in the affirmative as to the potential cause of action premised on negligence and wantonness and any attendant cause of action for civil conspiracy; in all other respects we answer it in the negative." "Part Il-B" of the per curiam opinion said:
"Alabama remains a common-law state, and therefore common-law tort actions 'so far as [they are] not inconsistent with the Constitution, laws and institutions of this state…Shall continue in force, except as from time to time…may be altered or repealed by the Legislature.' 1-3-1, Ala. Code 1975. We will not presume to so define the boundaries of the judicially created AEMLD so that it subsumes the common-law tort actions of negligence and wantonness against the retailer defendants." (emphasis is in original).
Justice Houston and Harwood concurred; Chief Justice Moore and Justices See, Lyons, Brown, Woodall and Stuart concurred in part and dissented in part; and Justice Johnstone concurred specially in part and dissented in part. Justice Moore's special writing, in which Justices Brown and Stuart concurred, stated in part; and Justice Johnstone concurred specifically in part and dissented in part. Justice Moore's special writing, in which Justices Brown and Stuart concurred, stated in part: "[T]he judicially created AEMLD does not subsume common-law tort claims of negligence and wantonness." Justice See agreed "that the AEMLD does not subsume all of the negligence and wantonness claims." Justice Lyons wrote that he concurred in Part II-B.
• COMMENTARY: The per curiam opinion in Tillman specifically recognized that "some federal district courts in Alabama have expressly held" that a plaintiff's negligence and wantonness claims "merge with her AEMLD claim." The Eleventh Circuit's questions in Spain reflect that it had adopted the view of those federal trial court judges, who had embraced the "subsume" argument that many readers will remember as an argument doggedly advanced by defendants in recent years.
We are happy to see that the Alabama Supreme Court has now resolved this question sensibly, succinctly and correctly.
*** PREVIOUS MILL-OWNER NOT ENTITLED TO WORKERS' COMP. EXCLUSIVE-REMEDY DEFENSE ***
In Ex parte Weaver, Ms. 1010582 (Ala. June 27, 2003), seven members of the Supreme Court joined in reversing the judgment of the Court of Civil Appeals in the case in which the plaintiff, Weaver, was injured when a handrail on a catwalk gave way at the paper mill where Weaver worked. Weaver sued his former employer Kimberly-Clark Corporation, and other defendants for negligently or wantonly installing, maintaining or repairing the catwalk and handrail. Without dispute, Weaver's fall occurred after his employment with Kimberly-Clark had terminated and after Kimberly-Clark had ceased to own the mill where the catwalk was located. The Court of Civil Appeals affirmed the trial court's summary judgment that was premised upon the exclusive-remedy provisions of the Workers' Compensation Act.
Justice Johnstone's opinion, in which Chief Justice Moore and Justices Houston, Brown, Harwood, Woodall and Stuart concurred (Justice See dissented and Justice Lyons recused himself), found that the exclusivity provision of the Workers' Compensation Act means what it say's but only what it says: "An essential element of the exclusivity immunity of 25-5-52 is that the injury he 'occasioned by an accident . . . proximately resulting from and while [the employee is] engaged in actual performance of the duties of his or her employment' with the employer. Likewise, an essential element of the exclusivity immunity of 25-5-53 is that the 'injury …is due to an accident…while [the employee is] engaged in the service or business of the employer.' The timing and circumstances of [Weaver's] accident and injury do not satisfy either essential element. [Weaver's] injury was not 'occasioned by an accident…proximately resulting from and while [[Weaver] was] engaged in the actual performance of the duties of his…employment' with Kimberly-Clark. 25-5-53. Therefore, the claim of immunity by Kimberly-Clark does not meet the express requirements of either 25-5-52 or 25-5-53. The argument by Kimberly-Clark that it was [Weaver's] employer at the time of the alleged negligence or wantonness is not enough to satisfy all of the express requirements of either section for the exclusivity-immunity.
"The language of exclusivity provisions read together with the definitions of 'employer' and 'employee' do not '"fairly and reasonably" support' and interpretation that these statues protect former employers from actions by former employees for injuries sustained after the termination of the employer-employee relationship." (emphasis added; citation omitted)
• COMMENTARY: This excellent construction of the exclusivity provisions of the Workers' Compensation Act should go a long way toward improving work-place safety in Alabama. In today's business environment it is quite common for one corporation to sell a mill outright to another corporation', with no change in the facilities or the workers. Had the lower courts' rulings been allowed to stand, a former owner-employer would have little motivation to correct unsafe conditions before selling off the mill to the next owner-employer.
*** IF AN EMPLOYER IS IMMUNE, IT IS COMPLETELY IMMUNE ***
In Ex parte Progress Rail Services Corp., Ms. 1012357 (Ala. June 20, 2003), eight member of the Supreme Court concluded that, if an employer meets the requirements of the exclusive-remedy provisions of the Workers' Compensation Act, it is immune from all claims, including allegations that it intentionally and willfully failed to provide a safe place to work.
The facts of this case are tragic: Lydia Garcia and her husband, Daniel, worked for Progress Rail, a company whose business activities included cutting up old rail cars and locomotives for scrap metal. Their supervisor directed them to work at opposite ends of a 4,000-gallon diesel fuel tank with cutting torches; the tank exploded and Lydia was so badly burned that she died two weeks later. It was undisputed that, at the time of the accident, Lydia was an employee of Progress Rail and that her injury and death were caused by an accident arising out of and in the course of her employment.
Progress Rail apparently filed an action seeking to have the trial court determine that Daniel Garcia and the couple's three children could obtain benefits under the Workers' Compensation Act. Four days before judgment was entered in the first action, Daniel Garcia and the children sued Progress Rail and other defendants for various tortious conduct. The trial court's judgment stated that, after it paid benefits to Daniel and the children pursuant to the judgment, Progress Rail's obligations to them would cease. Progress Rail moved to dismiss the second action and the trial court denied that motion. Progress Rail then sought a writ of mandamus directing the trial court to dismiss the claims made against it in the second case, on the basis that they were barred by the exclusive-remedy provisions of the Workers' Compensation Act.
Justice Harwood's opinion, joined by every other member of the Court with the exception of the Chief Justice (who dissented without opinion), issued the writ. That opinion said: "The thrust of the Garcia's' argument in response to Progress Rail's exclusivity argument is essentially that 25-1-1 imposes on an employer a statutory duty to provide its employees with a safe place to work and that this duty, when intentionally and willfully breached, gives rise to a cause of action unencumbered by the exclusive-remedy provisions of the Act. Progress Rail argues that] the Act's exclusivity provisions apply and control, even though the accident arose out of a failure to provide a safe place to work and regardless of whether the employer's conduct was negligent, wanton, intentional, or willful."
While the Court discussed several of its previous decisions, its result was reached in large part by comparing and distinguishing its opinions in Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90 (Ala. 1989), and Ex parte Shelby County Health Care Authority, Ms. 1001647 (Ala. Aug. 30, 2002):
"[W] hile recognizing the immunity an employer enjoys with respect to an employee's on-the-job injury the Court [in Lowman ] declared the principle later echoed in Shelby County Health Care, supra, that the exclusivity provisions do not apply if an employee's injury falls outside the coverage of the Act. As Lowman declared, 'an employer is protected from tort liability only as to injuries expressly covered by the language of the Act.' 547 So. 2d at 93. Therefore, the statement in Lowman that 'intentional tortious conduct. . . committed beyond the bounds of the employer's proper role is actionable,' 547 So. 2d at 95 (emphasis supplied), does not support the different proposition for which the Garcias' cite it — that intentional tortious conduct committed within the bounds of the employer's proper role is actionable."
"Of course, Shelby County Health Care stands only for the proposition that the immunity and exclusivity provisions of the Act pose no barrier to a civil tort action in a case where the underlying injury is not covered under the Act."
"In conclusion, we cannot agree with the Garcias that it 'stands to reason' that, because the Legislature has imposed a statutory duty on employers to provide their employees with a safe place to work, an injured employee can maintain an action against an employer for a breach of that duty even though the injury is fully covered under the Act, with that action to be exempt from what this Court has declared to be the 'complete immunity' provided to an employer for such injuries." (emphasis added).
• COMMENTARY: The Courts opinion in Ex parte Progress Rail, while seemingly harsh, is a correct application of the principles of Alabama's worker's compensation law. This opinion separates those cases where the injury is sustained away from the job (and the employer does not enjoy complete immunity) and those where the injury is sustained on the job (and the employer does enjoy complete immunity,).
*** RAILROAD IMMUNE UNDER FEDERAL LAW FROM CLAIMS ARISING OUT OF GRADE CROSSING COLLISION ***
In Alabama Great Southern Railroad Co., v. Johnson, Ms. 1011573 (Ala. June 27, 2003), the entire Court reversed and rendered judgment in favor of the defendant railroads in a case in which the jury had awarded $750,000 on negligence and wantonness claims. The plaintiff Johnson claimed that his vehicle was struck by a train at a place in Boligee where three railroad tracks (a "siding track," a "mainline track" and a "house track") crossed the road on which he was traveling. This crossing was equipped with crossbucks, automatically activated flashing lights, an automatically activated bell, pavement markings and "no passing" signs. Before the collision, a train numbered A56 had stopped on the siding track for about 15 minutes to load cars and the crew went to buy snacks. The lights and bells at the crossing were flashing and sounding during the entire time the A56 was stopped at the crossing. Mr. Johnson and other drivers of vehicles approaching the crossing were unable to see any northbound trains approaching the crossing on the mainline track, because the parked A56 blocked their view.
While the A56 was parked on the siding track, a northbound train numbered W96 approached the crossing at 40 miles per hour. Mr. Johnson was driving a mail truck and, according to witnesses, he had waited at the crossing for about 10 to 20 seconds before he proceeded across the crossing and into the path of the oncoming W96 train. The W96 struck the mail truck, injuring Johnson.
The railroads claimed that the trial court erred to reversal by refusing to enter judgments as a matter of law on all of Johnson's claims, because federal law preempted any duty on their part to provide any additional warnings . The Alabama Supreme Court agreed, principally based upon the United States Supreme Court's rulings in CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993), and Norfolk Southern Ry. v Shanklin, 529 U.S. 344 (2000), which collectively held that, where federal funds were used to improve a crossing through the installation of warning devices, state tort law addressing the same subject is displaced or preempted.
In the Alabama Great Southern v. Johnson case, the Alabama Supreme Court noted that there was no question that federal funds had been used to improve the Boligee crossing where Johnson was injured and that Johnson even stipulated that he could not proceed on any claims that the railroads should have installed additional warnings, signs, signals or devices at the crossing. Rather, Johnson argued (as he had to the jury), the crossing should have been flagged with a flagman or protected by having the A56 train remaining across the intersection so as to prevent vehicles from passing through the crossing. The Court found that even these theories were preempted, because a flagman would be encompassed by the definition of an "active warning device" and parking the A56 train across the intersection was tantamount to an assertion that the warning devices in place at the crossing (both active and passive) were not adequate.
• COMMENTARY: Railroad crossing cases at one time could be quite legally complicated. That appears to be no longer the case. The presently ridiculous state of the law is that; If the taxpayers have provided corporate welfare so that a railroad might improve the safety conditions at its crossing, the railroad likely is immune from state tort liability when one of those taxpayers is injured or killed at that crossing.
*** EX PARTE HOLTON, MS. 1012143 (ALA. JUNE 13, 2003) ***
A 9-0 Supreme Court reversed the judgment of the Court of Civil Appeals that had reversed the trial court's determination that a worker had been permanently and totally disabled. The worker, Holton, broke his neck at the C6-C7 vertebrae and was paralyzed from the neck down after swinging on a rope swing at a riverfront location while cooling off during a work break suggested by his supervisor. Justice See's opinion for the Court found that Holton's injury occurred during the course of his employment and was, thus, a compensable injury
*** EX PARTE NALL, MS. 1012099 (ALA. JUNE 6, 2003) ***
In a 7-1 decision, the Court issued a writ of mandamus ordering the trial court to enter a summary judgment in favor of two high school baseball coaches. The minor plaintiff was a team member standing near third base who was struck in the head by a foul ball that was batted by one of the coaches during a practice demonstration. Judge Brown's opinion for the majority found that the coaches were due to be afforded state-agent immunity under the "educating students" provision of Ex parte Cranman, 792 So. 2d 392 (Ala. 2000).
*** RONDEROS V. ROWELL, MS. 1010080 (ALA. JUNE 6, 2003) ***
Justice Stuart's opinion for a 5-0 Court affirmed the trial court's conclusion that the plaintiff's proffered expert witness in a medical malpractice case was a "similarly situated health care provider. The facts showed that Dr. Ronderos was a "board-eligible neurosurgeon" at the time he treated the plaintiff's decedent. Dr. Ronderos became board-certified in neurological surgery three months after he per formed the surgery at issue and before the action was filed. The plaintiff offered Dr. Regan, an orthopedic surgeon who was not board-certified in neurological surgery, as her expert witness. The Court agreed with the trial court that the defendant had to have been board-certified at the time of the alleged breach of the standard of care in order to trigger the application of the "similarly situated, board-certified" standard.
*** AETNA LIFE INS. CO. V. CHARACTER, MS. 1020068 (ALA. MAY 30, 2003) ***
A 5-0 Court reversed and remanded a judgment entered in favor of a policyholder on his claim for long-term disability benefits, given that the policyholder was capable of performing a "reasonable occupation," as defined by the long-term disability plan. The per curiam opinion found no statutory provision that prevented Aetna from limiting the definition of "total disability" to the definition contained in the plan.
*** HALES V. PROEQUITIES, INC., MS. 1011015 (ALA. JULY 11, 2003) ***
Seven members of the Court found that the defendant investment company's delay of more than two years in moving to compel arbitration - during which time the parties conducted substantial discovery and the defendant took the deposition of one of the elderly plaintiffs — evidenced "an intention [by ProEquities] to abandon the right [to compel arbitration] in favor of the judicial process.
*** PETTY-FITZMAURICE V. STEEN, MS. 1020560 (ALA. JULY 11, 2003) ***
Steen and Petty-Fitzmaurice were operating two separate "Sea Doo" watercraft on lake Jordan when the collided; Steen's leg was severed below the knee. Steen sued Petty-Fitzmaurice, Bombardier (the manufacturer of the See-Doo) and Yamaha of Sylacauga (the local retailer). Prior to trial, Steen entered into a pro tanto settlement with Bombardier and the retailer was dismissed. The jury returned a verdict of $3,430,000 against Petty-Fitzmaurice, which the trial court reduced to $2,680,000 to take into account the pro tanto settlement. Petty-Fitzmaurice on the basis that the trial court had taken and answered questions from the jury during its deliberations without Petty-Fitzmaurice's counsel being present. At least one of the questions concerned whether fault could be apportioned between Petty-Fitzmaurice and the settling defendant s. Relying on case law dating as far back as 1896, Justice Lyons' opinion for the eight member of the court found the trial court's discussions were reversible error.
*** EX PARTE SCHAEFFEL, MS. 1020459 (ALA. JUNE 13, 2003) ***
Schaeffel, a refrigeration repairman, fell through a ceiling in a floor-to-ceiling freezer and was injured. Because he had left his flashlight in his truck, he failed to see apiece of conduit and he tripped on it. Justice Houston's 5-0 opinion sustained summary judgment for the storeowner. The analysis in this case contains an excellent discussion of the distinguishing features between "total darkness" and "partial darkness," with respect to whether the darkness constitutes an open and obvious danger.
*** LEE V. MINUTE STOP, INC., MS. 1012303 (ALA. JUNE 20, 2003) ***
Lee was charged with first-degree robber and the charges were dismissed at a preliminary hearing because the police lacked probable cause to arrest him. He later sued the store, the City of Mobile and four Mobile policemen. With respect to the City and the policemen, Lee alleged malicious prosecution, false arrest, wantonness, negligent supervision and abuse of process. Retire Justice Maddox wrote an opinion which five justices concurred and none dissented, affirming summary judgments in favor of all defendants and finding that the polices officers' act of arresting Lee for a felony without a warrant was discretionary "and the officers were protected under 6-5-338, Ala. Code 1975." (emphasis added).