ALABAMA TRANSPORTATION RESOURCES
- 1.1 Statutes of Limitation
- 1.2 Negligent Entrustment
- 1.3 Negligent Hiring, Retention and Supervision
- 1.4 Course and Scope of Employment
- 1.5 Comparative or Contributory Negligence
- 1.6 Contribution or Implied Indemnity from Third-Parties
- 1.7 Exclusivity of Workers Compensation
- 2.1 Caps?
- 2.2 Joint & Several Liability
- 2.3 Standard of Proof Required for Compensatory Damages
- 2.4 Wrongful Death Standing and Damages
- 2.5 Punitive Damages
- 2.6 Offers of Judgment (OOJ)
- 2.7 Must policy limits be disclosed pre-suit?
- 2.8 May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules.
Statutes of Limitation
Bodily Injury/Property Damage:
Negligence Claims – The statute of limitation is two years. Ala. Code § 6-2-38(1). The statute runs from the time a claim accrues. Ala. Code § 6-30(a). For a tort action, a “cause of action accrues only when the force wrongfully put in motion produces injury, the invasion of personal or property rights occurring at that time.” Stephens v. Creel, 429 So. 2d 278, 281 (Ala. 1983).
For a continuous tort, the claim accrues from the “date of injury” which is “the day on which the plaintiff was last exposed to the damages.” Hillis v. Rentokil, Inc., 596 So. 2d 888, 889 (Ala. 1989).
Note that Ala. Code § 6-2-8 provides a tolling provision for those with a disability (frequently age or mental condition and occasionally imprisonment) so that a minor, for example, has three years or the time period allowed by the statute of limitation to bring suit once the minor reaches the age of majority (nineteen). Varden v. Fulmer, 621 So. 2d 1320 (Ala. 1993).
Wantonness Claims – Two Years. Ex parte Capstone Bldg. Corp., No. 1090966, 2012 WL887497 (Ala. March 16, 2012). (Wantonness and recklessness are fundamentally different torts than those of intentional conduct. As such, wantonness claims are governed by the provisions of Alabama Code section 6-2-38(1), not section 6-2-34(1), which governs intentional acts and carries a six year statute of limitations
Add breach or oral/written contract for cargo losses?
Contract claims arising from contracts that are not under seal must commence within six years. The statute runs from the time the claim accrues. Ala. Code § 6-2-34(9). Contract claims arising from contracts that are under seal must commence within ten years. The statute runs from the time the claim accrues. Ala. Code § 6-2-33(1).
To establish a cause of action for negligent entrustment a plaintiff must show “1) an entrustment; 2) to an incompetent; 3) with knowledge that he is incompetent; 4) proximate cause; and damages.” Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 51 (Ala. 1995). The Alabama Supreme Court explained the incompetency element, stating
[I]n a master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, has been brought to him. Liability depends upon its being established by affirmative proof such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence.
Armstrong Business Services, Inc. v. AmSouth Bank, 817 So.2d 665, 682 (Ala. 2001) (quoting Bib B, Inc. v. Cottingham, 634 So.2d 999, 1003 (Ala. 1993) (quoting Lane v. Central Bank of America, N.A., 425 So.2d 1098, 1100 (Ala. 1983) (quoting Thompson v. Havard, 235 So. 2d 853 (Ala. 1970)). “The incompetence of a driver is measured by the driver’s demonstrated ability (or inability) to properly drive a vehicle.” Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 413-14 (Ala. 2005). If a plaintiff fails to establish through proper evidence the affirmative proof of either element, then summary judgment is appropriate. Havard, 235 So.2d at 858.
Negligent Hiring, Retention and Supervision
In Alabama, an employer is liable for negligent hiring or supervision only when a plaintiff can prove that the employer knew or should have known of the employee’s inadequacies. Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885, 889 (Ala. 1995). To prevail on a negligent hiring, training and supervision claim, a plaintiff must prove the defendant’s agent or employee had a history of negligently performing his duties, or that the defendant knew, or should have discovered in the exercise of due diligence, that the employee was not competent to perform the work he was hired to do. See McGinnis v. Jim Walter Homes, Inc., 800 So. 2d 140, 148 (Ala. 2001) (citing Lane v. Central Bank of Alabama, N.A., 425 So. 2d 1098, 1100 (Ala. 1983)).
In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice.
What if Line and Scope is Admitted?
Under the doctrine of respondeat superior a principal is vicariously liable for the torts of its agent if the tortious acts are committed within the line and scope of the agent’s employment. Martin v. Goodies Distribution, 695 So. 2d 1175 (Ala. 1997).
Course and Scope of Employment
Distinguishing vicarious and direct liability of an employer, the Alabama Supreme Court explained, “the employer is vicariously liable for acts of its employee that were done for the employer’s benefit, i.e., acts done in the line and scope of employment or for acts done for the furtherance of the employer’s interest. The employer is directly liable for its own conduct if it authorizes or participates in the employee’s acts or ratifies the employee’s conduct after it learns of the action.” Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992). Under the doctrine of respondeat superior a principal is vicariously liable for the torts of its agent if the tortious acts are committed within the line and scope of the agent’s employment. Martin v. Goodies Distribution, 695 So. 2d 1175 (Ala. 1997). On the other hand, a party is not responsible for the tortious acts of his independent contractor. Id. “The test for determining whether a person is an agent or employee of another, rather than an independent contractor with that other person, is whether that other person has reserved the right of control over the means and method by which the person’s work will be performed.” Id. at 1177.
Comparative or Contributory Negligence
Alabama is one of four jurisdictions that still adhere to the principle of contributory negligence, which operates as a complete bar on a claim for negligence if it proximately contributes to the plaintiff’s injury. Creel v. Brown, 508 So. 2d 684, 687 (Ala.1987). By comparison, comparative negligence considers the extent to which the plaintiff caused the accident and the extent to which the defendant caused the accident. The Alabama Supreme Court has reaffirmed its adherence to the doctrine of contributory negligence, and nothing indicates it will change its position any time soon. See Williams v. Delta Int’l Machinery Corp., 619 So. 2d 1330 (Ala. 1993) (“We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth this issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years.”).
- What is Contributory Negligence?
The defendant must prove the plaintiff
- Had knowledge of the condition;
- Had an appreciation of the danger under the surrounding circumstances; and
- Failed to exercise reasonable care, by placing himself in the way of danger.
Burden of proof: Defendants bear the burden of raising and proving the defense of contributory negligence. Wyser v. Ray Sumlin Construction Co., Inc., 680 So. 2d 235, 238 (Ala. 1996); Hairrell v. Smith, 678 So. 2d 1139, 1140 (Ala. Civ. App. 1996).
Jury issue: The issue of whether a plaintiff was contributorily negligent is ordinarily an issue for the trier of fact. However, “where the facts are such that all reasonable persons must reach the same conclusion, contributory negligence may be found as a matter of law.” 839 So. 2d 635, 638.
Child’s contributory negligence: Alabama’s contributory negligence law, as it applies to children, is similar to its treatment of a child’s original negligence (These rules also apply to the defense of assumption of the risk.)
- Under 7: A child under seven (7) cannot be guilty of contributory negligence.
- 7-14: A child between the ages of seven (7) and fourteen (14) is presumed incapable of contributory negligence, but a defendant can rebut this presumption by producing evidence that the child possesses the discretion, intelligence, and sensitivity to danger that an ordinary 14-year-old possesses. Savage Industries, Inc., v. Duke, 598 So. 2d 856, 858 (Ala. 1992).
Factors to Consider in Rebutting Presumption:
- the child’s intelligence;
- the child’s capacity to understand the potential danger of the hazard;
- the child’s actual knowledge of the danger;
- the child’s ability to exercise discretion;
- the child’s education level;
- the child’s maturity; and
- the child’s age.
See Ricketts v. Norfolk Southern Railway Co., 686 So. 2d 1100, 1104 (Ala. 1996); Savage Industries, 598 So. 2d at 858; Jones v. Power Cleaning Contractors, 551 So. 2d 996, 999 (Ala. 1989).
- 14 and over: Children fourteen (14) years old and older are presumed capable of contributory negligence. Keller v. Kiedinger, 389 So. 2d 129, 133 (Ala. 1980).
Note that the Alabama Supreme Court has explicitly rejected the 14-year age limitation in cases involving a landowner’s liability to a child trespasser whose injury arises from an artificial condition on the land. Ricketts, 686 So. 2d at 1103. Prior Alabama law held that a landowner was not liable for an injury to a trespassing child who was fourteen (14) or older at the time of his injury. Id. The Court held that it would apply the factors listed in subsection 4(b) above to determine if the landowner can prevail on the defense of contributory negligence. Id. “[T]he ultimate question was not whether the child appreciated the danger of falling but rather was whether the child had a full knowledge of and appreciation of the risk involved.” Id.
- Additional exceptions to the General Rules:
- Children engaged in “adult activities”: For public policy reasons, children engaged in “adult activities” are held to an adult standard of care. [Note: The Alabama Supreme Court has specifically held that a child passenger in a car driven by another child is not engaged in an “adult activity.”] Lemond Construction Co. v. Wheeler, 669 So. 2d 855, 860 (Ala. 1995); Keller, 389 So. 2d at 133.
- Children working in jobs “fraught with peril”: In these cases, the Alabama Supreme Court has held that it will not hold a child over the age of 14 to an adult standard of care. Jones v. Power Cleaning Contractors, 551 So. 2d at 999 (Ala. 1989) (this case involved a 15-year-old who lost an eye working with dangerous acids). .
- A Child’s Contributory Negligence vs. a Parent’s Failure to
Although a child might be too young to be negligent, a defendant can still defend a case if the child’s injury was a result of a parent’s failure to properly supervise. Williamson v. Tyson Foods, Inc., 626 So. 2d 1261 (Ala. 1993). The child in question visited a chicken house owned by an independent contractor selling chickens to Tyson Foods and was injured when he stuck his finger in a feeder. The plaintiff’s father worked on the chicken farm, and the family was given a place to live near the chicken farm. The independent contractor was sued for failing to use reasonable care to protect children from a dangerous artificial condition. However, the husband knew about the dangers of the feeding system and did not prevent the child from sticking his finger in it. The Court held the plaintiff failed to show that the father’s failure to protect the child from the risk known to the father was foreseeable to the independent contractor. Additionally, the father’s failure to properly supervise the child at the chicken farm was the proximate cause of the child’s injuries. Therefore, the defendant was not liable.
- Disabled persons’ contributory negligence: Under Alabama law, disabled persons might not be held to the same standard of care as persons not suffering from a disability. Shepherd v. Gardner Wholesale, Inc., 256 So. 2d 877 (Ala. 1972).
Disabled persons are deemed to exercise “ordinary care” if they act as an ordinarily prudent person with the same infirmity would act under the same or similar circumstances. Shepherd, 256 So. 2d at 882-83. This modified analysis essentially converts the “reasonable man standard” to the “reasonable disabled man standard.”
- Imputed negligence: Imputed negligence issues arise whenever a third party affiliated with the plaintiff may have acted negligently and caused or contributed to the plaintiff’s injury. The focus of the court’s inquiry in imputed negligence situations is whether the plaintiff is in some way responsible for the third party’s actions or negligence. This issue generally arises in cases where the plaintiff was a passenger in a car when the injury occurred, or when the plaintiff is the child, spouse, or employee of the person who acted negligently.
- A parent’s negligence is not imputable to a child. Williams v. BIC Corp., 771 So. 2d 441 (Ala. 2000); Pilkington v. Peking Chinese Restaurant, Inc., 596 So. 2d 586, 589 (Ala. 1992).
- A driver’s negligence generally is not imputable to his passenger. Shelter Mut. Ins. Co. v. Barton, 822 So. 2d 1149 (Ala. 2001); Barnett v. Norfolk Southern Railway Co., 671 So. 2d 718, 719 (Ala. Civ. App. 1995); Johnson v. Battles, 52 So. 2d 702, 707 (Ala. 1951); Newell Contracting Co. v. Berry, 134 So. 870, 872 (Ala. 1931). See Ala. Code § 32-1-2 (a.k.a. the Guest Statute). For a good case discussing whether one is a guest or a passenger-for-hire see White v. Pratt, 721 So. 2d 210 (Ala. Civ. App. 1998); Thedford v. Payne, 813 So. 2d 905 (Ala. Civ. App. 2001).
- A driver’s negligence is only imputable to a passenger if the passenger has some authority or control over the car’s movement. Shelter Mut. Ins. Co. v. Barton, 822 So. 2d 1149; Barnett, 671 So. 2d at 719; Johnson, 52 So. 2d at 707. For instance, negligence might be imputable in a case where the passenger was the driver’s employer and was directing the driver’s actions. See also Alewine v. So. Ry. Co., 671 So. 2d 718 (Ala. Civ. App. 1995).
- Defendants must be careful to distinguish a passenger’s own negligence from imputed negligence. Passengers have a duty to exercise reasonable care to prevent injury. Driver v. National Security Fire & Casualty Co., 658 So. 2d 390, 393 (Ala. 1995); Barnett, 671 So. 2d at 719; Johnson, 52 So. 2d at 707. For example, a passenger can be contributorily negligent if she accepts a ride from a driver who she knows is, or may be, intoxicated. Driver, 658 So. 2d at 393.
- Wantonness or willfulness: Contributory negligence is not a defense to a wantonness or willfulness claim. Sims v. Crate, 789 So. 2d 220 (Ala. 2000); Ex parte Gradford, 699 So. 2d 149 (Ala. 1997); Knight v. Alabama Power Co., 580 So. 2d 576, 577 (Ala. 1991).
- Defenses to Allegations of Contributory Negligence:
The Sudden Emergency Doctrine:
“The sudden emergency doctrine is available to explain why in certain situations a person is not held to the strict standard of care required of a reasonably prudent person acting under ordinary circumstances.” Whitaker, 812 So. 2d at 1257. The plaintiff must prove:
- A sudden emergency
- The emergency was not created by the person claiming sudden emergency. Id. See also Moore v. Horton, 694 So. 2d 21 (Ala. 1997).
- Small businesses–Punitive damages against a business with a net worth of $2,000,000 or less are limited to $50,000 or 10% of the business’ net worth, whichever is greater.
- Physical Injury–the cap in cases for physical injuries is three times the compensatory damages or $1,500,000, whichever is greater. “Physical Injury” does not include mental anguish.
- Intentional infliction of injury, class actions, and wrongful death–cap is not applicable.
- Recoverable? If so, standard for it?
Whitaker v. Coca-Cola Co. USA, 812 So. 2d 1252 (Ala. Civ. App. 2001). The defendant must show that the plaintiff had a “conscious appreciation of the danger at the moment the incident causing the injury occurred.” Aplin v. Tew, 839 So.2d 635 (Ala. 2002). The “conscious appreciation” is an objective standard, not a subjective standard. See Ammons v. Tesker Mfg. Corp., 853 So. 2d 210 (Ala. 2002).
Contribution or Implied Indemnity from Third-Parties
The general rule in Alabama is that there is no right to contribution or indemnity among joint tortfeasors. Gobble v. Bradford, 147 So. 619, 619-20 (Ala. 1933); Consolidated Pipe & Supply Co., Inc., v. Stockham Valves & Fittings, Inc., 365 So. 2d 968, 970 (Ala. 1978); Crigler v. Salac, 438 So. 2d 1375, 1385 (Ala. 1983).
This rule is based upon the equitable maxim that “. . . no man can make his own misconduct the ground for an action in his own favor.” Sherman Concrete Pipe Machinery, Inc., v. Gadsden Concrete & Metal Pipe Co., Inc., 335 So. 2d 125, 127 (Ala. 1976).
However, in Holcim Inc. v. The Ohio Casualty Ins. Co., 38 So. 3d 722 (Ala. 2009), the Court answered a certified question from the Eleventh Circuit Court of Appeals and held that parties may enter into valid indemnity agreements that allow an indemnitee to recover from the indemnitor claims resulting solely from the negligence of the indemnitee, even though joint tortfeasors are generally not entitled to common law indemnity or contribution.
Exclusivity of Workers Compensation
As a general rule, the Alabama Workers’ Compensation Act is the exclusive remedy for an employee against his/her employer for injuries sustained on the job. (§ 25-5-52 and § 25-5-53) Section 25-5-11 permits an employee to bring an action against “any party other than the employer” for injury or death caused by willful conduct. Employees may not, however, file a claim against his or her employer for willful and intentional failure to provide a safe workplace. Ex parte McCartney Construction Co., 720 So. 2d 910 (Ala. 1998).
Caps?In cases that do not arise out of the wrongful death of an individual, Alabama places certain limits on punitive damages. Pursuant to Alabama Code § 6-11-21 punitive damages are limited to three times the compensatory damages or $500,000, whichever is greater. There are some exceptions:
Joint & Several Liability“[Where the negligent acts of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable.” State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293 (Ala. 1999) (internal citations omitted). Therefore, either of the two joint tortfeasors is liable for the entire amount of recoverable damages without considering which party contributed more to cause the injury. Damages cannot be apportioned between joint tortfeasors, and a juries attempt to do so is improper. A plaintiff is thus left to his/her discretion in deciding which of several tortfeasors from whom to collect the full amount of any judgment. Thus, the one with the deepest pockets gets to pay, i.e. the insured defendant.
Standard of Proof Required for Compensatory Damages
A plaintiff must prove his or her compensatory damages by a preponderance of the evidence.
1. Collateral Source (Meds billed v. paid)
A plaintiff is entitled to introduce evidence of the full amount of his or her medical bills. In response, a defendant may introduce evidence that the plaintiff’s medical bills were (1) paid; and (2) resolved for a lesser amount than the provider originally billed.
Wrongful Death Standing and Damages
In order to succeed on a wrongful death claim, a plaintiff must only prove the defendant engaged in simple negligence, which proximately caused the decedent’s death.
Negligence is “the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or the doing of something that a reasonably prudent person would not have done under the same or similar circumstances.” Ford Motor Co. v. Burdeshaw, 661 So.2d 236, 238 (Ala. 1995); see also Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala. 2001) (“The elements of a negligence claim are a duty, a breach of that duty, causation, and damage”). Negligence is usually characterized as inattention, thoughtlessness, or heedlessness, a lack of due care. Simple negligence is the inadvertent omission of duty. See Central Alabama Elec. Cooperative v. Tapley, 546 So. 2d 371, 379 (Ala. 1989).
The only damages recoverable for wrongful death in Alabama are punitive damages and the amount of the award is completely within the discretion of the jury. Punitive damages are not awarded to compensate the victim, but instead are awarded to punish and deter the wrongdoer. The jury will be instructed to return a verdict appropriate to the goal sought to be achieved—preservation of life— while considering the enormity of the wrong, the preventability of the death, and the public’s interest in deterring others from committing the same or similar wrongful conduct. This generally means the more culpable the conduct, the greater the damages. Punitive damages can be awarded for simple negligence.
Punitive damages, except in a wrongful death suit, are only recoverable where there is “clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, recklessness, fraud, wantonness or malice with regard to the plaintiff.” Ala. Code § 6-11¬20(a).
Clear and convincing evidence is defined as: “Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level or proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.” Ala. Code § 6-11-20(b)(4).
See Section 2.1.
Offers of Judgment (OOJ)
At any time more than fifteen (15) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten (10) days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time, not less than ten (10) days, prior to the commencement of hearings to determine the amount or extent of liability.
If a defense verdict is obtained after OOJ is offered, the AL Supreme Court held Rule 68 of the AL Rules of Civil Procedure does not provide a basis for an award of costs. Judd v. Sandefer, 852 So. 2d 164 (Ala. 2002).
Must policy limits be disclosed pre-suit?
May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules.