Contributory Negligence Per Se

June 21, 2009

As most of my readers are aware, Alabama is a contributory negligence state. “Contributory negligence is  negligence on the part of the plaintiff that proximately contributed to the alleged injury.”  Alabama Pattern Jury Instructions 30.00.  In suits where contributory negligence is asserted as an affirmative defense, the jury is instructed that “if you are reasonably satisfied from the evidence that the plaintiff was guilty of contributory negligence, the plaintiff cannot recover for any simple negligence of the defendant.”  APJI 30.02.

In my experience, juries rarely use contributory negligence to bar a plaintiff from recovery, but more often apply a comparative negligence analysis, and will mitigate their verdict with the plaintiff’s own negligence.

Negligence, as well as contributory negligence, is almost always an issue of fact for the jury.  In occasional instances, however, the court is allowed to find that a plaintiff was guilty of contributory negligence as a matter of law, and take the issue from the jury.

The Alabama Supreme Court recently held that a builder’s reliance on its geotechnical engineer did not amount to contributory negligence as a matter of law, as the geotech, Qore, argued.  In Qore, Inc. v. Bradford Building Co., __ So.2d __ (Ala. June 12, 2009), the Court considered a foundation defect case in which Qore performed construction materials testing (CMT) for the builder, but failed to locate an area on the site, which had been a gasoline station, which contained gas tank pits.  The area was not properly backfilled and compacted, and as a result, the new building’s foundation cracked.

The builder, Bradford, sued Qore and obtained a judgment in the amount of $196,937.  On appeal, Qore argued that Bradford should have known that it had failed to locate the tank pits, and that Bradford’s constructive knowledge amounted to contributory negligence as a matter of law.

To establish contributory negligence as a matter of law, a defendant must demonstrate that the plaintiff put himself at risk of being injured and that the plaintiff had a conscious appreciation of that risk at the moment the incident occurred.  Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 860-861 (Ala. 2002).

Qore argued that a Bradford employee had observed the improper work, and had testified that “in hindsight,” it had been a mistake to rely on Qore’s testing. The Court held that this evidence did not prove that as a matter of law, Bradford had consciously placed itself at risk of being harmed.

In  a few previous opinions, the Court has determined that a plaintiff was contributorily negligent as a matter of law.  In Serio v. Merrell, Inc., 941 So.2d 960 (Ala. 2006), the plaintiff stopped her vehicle at a “T” intersection.  Her direction of travel was controlled by a stop sign, and vehicles on the intersecting highway had the right-of-way.  After stopping, the plaintiff looked both ways and proceeded into the intersection, where her vehicle was struck by a gravel truck approaching from her left.  The gravel truck was traveling 60 mph in a 45 mph speed zone.

In affirming summary judgment for the defendant, the Court held:

While the question of contributory negligence is normally one for the jury, if the facts are such that all reasonable people would logically have to reach the conclusion that the plaintiff was contributorily negligent, then contributory negligence may be found as a matter of law.  Merrell made a prima facie showing that Serio was contributorily negligent, entitling it to summary judgment based on that defense, by establishing that she pulled into the path of the large oncoming truck when she could not have failed to see it if she had looked to her left before, or as, she moved forward into the intersection.  Her own testimony established that she consciously appreciated the danger posed by pulling onto a highway on which the vehicles traveling have the right-of-way, without first making sure that no vehicle was approaching too closely.  She admitted that there was no reason she could not have seen the tractor-trailer truck before she pulled out, given the prevailing conditions.  Serio at 964-965.

had observed CDG and Milam improperly backfilling the
tank pits and that Cahoon testified that, “in hindsight,” it
had been a mistake to trust CDG and Milam to properly compact
the soil in the tank pits and to rely on QORE to verify that
the soil in the tank pits had been suitably compacted.

Spoliation of Evidence in Construction Defect Claims

May 30, 2009

In defending construction defect claims, one must always consider the defense of spoliation of evidence.  Often, either before or after making such calims, plaintiffs will repair the alleged defective condition, destroying crucial evidence that must be analyzed by the defense.  The law requires that the plaintiff give notice to the defendant of anticipated repairs, providing him with an opportunity to inspect the alleged defcts.  When notice is not given, sanctions, including dismissal in some cases, are available.

The Alabama Supreme Court has held that when the subject of the lawsuit is destroyed without giving the defense an opportunity to inspect, and that inspection is necessary to the defense, the lawsuit must be dismissed. Capitol Chevrolet Inc. v. Smedley, 614 So.2d 439 (Ala. 1993); Cincinnati Ins. Co. v. Synergy Gas, Inc, 585 So.2d 822, 827 (Ala. 1991); Ex parte General Motors Corp, 769 So.2d 903 (Ala. 1989).

In Smedley, the Court reversed the trial court’s judgment and ordered that the case be dismissed based on spoliation. The Court recognized that without access to the evidence, to independently evaluate the cause of the fire, the defendants were left with no way to establish a defense. Acknowledging that dismissal was a severe sanction, the Court held that the dismissal of claims may be appropriate if a party destroys or disposes of evidence that it knows or should know is evidence that is important to possible or pending litigation.

The Court has identified five factors to be analyzed in deciding the appropriate remedy for spoliation of evidence: (1) the importance of the evidence destroyed; (2) the culpability of the defending party; (3) fundamental fairness, (4) alternative sources of information obtainable from the evidence destroyed, and (5) the possible effectiveness of other sanctions less severe than dismissal. Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84 (Ala. 2004).

In Story v. RAJ Properties, Inc., 909 So.2d 797 (Ala. 2005), the Court affirmed summary judgment in favor of a builder, EIFS installer, and EIFS manufacuturer where the plaintiff homeowner had removed the EIFS form the home, repaired the damaged sheathing, and reclad the home with brick.  The defendants were not notified, and their experts testified that they were unable to conduct any significant analysis of the EIFS material or the alleged damage by viewing photographs produced by the plaintiff.

In Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005) the 11th Circuit Court of Appeals reversed a jury’s verdict against Daimler with instructions that the district court enter judgment for Daimler based on the spoliation of evidence doctrine. In doing so, the Court noted that the defendant had suffered extreme prejudice when it lost its opportunity to inspect the evidence; that the trial court had erred in leaving the issue of spoliation for the jury and that the “spoliation of critical evidence for whatever reason … may result in trial by ambush.”


An Accident or an Indictment of the Industry?

May 26, 2009

Trucking accidents always present obstacles for the defense. The sheer physics involved often create situations involving serious injuries and fatalities. Couple the likely damages involved with the fact that there is a natural prejudice among the vast majority of the jury pool, and defending carriers and their drivers is frequently an uphill battle, to say the least.

With that said, it is without question that one of the major questions that absolutely must be addressed is that of collateral issues such as negligent entrustment and negligent supervision. Most of the lawsuits that I have defended contain these claims, in addition to simple negligence and wantonness claims against the driver and carrier.

The laws of evidence generally will prohibit the plaintiff from introducing evidence of past instances of negligent conduct committed by a defendant to show that he or she was negligent in the present lawsuit. However, if there is a viable claim that the owner of the vehicle negligently entrusted the truck to a driver, then the driver’s entire history can be admissible to prove that the owner should have known that the driver was incompetent, and therefore that the owner’s negligence in entrusting the truck to the driver was an additional cause of the accident.

Although such a claim theoretically does not create additional damages for plaintiffs, it can turn an otherwise straightforward accident into an indictment of the trucking industry, by allowing a plaintiff’s attorney to grandstand about the driver’s history, rather than the subject accident. It is therefore crucial that a driver’s history must be explored early in the litigation, and if possible, these issues must be addressed in a motion for summary judgment or for partial summary judgment.

Here in Alabama, the Supreme Court has made it clear that it is “essential that the plaintiff prove that the driver was incompetent, i.e., that he is likely because of his youth, inexperience or other wise to use [the vehicle] in a manner involving unreasonable risk of physical harm to himself and others.”  Reeves v. King, 534 So. 2d 1107, 1108 (Ala. 1988). In addition to proving that the driver was incompetent, the plaintiff must also prove that the owner knew (or that given the negative history, should have known) that he or she was incompetent. If the driver’s history is relatively good, then most judges will, understanding how evidence of prior violations and accidents will prejudice a jury, dismiss the collateral claims.

It should be noted that, at least in Alabama, a spotless history is not required.  In Pryor v. Brown & Root USA, Inc., 674 So. 2d 45 (Ala. 1995). The Supreme Court considered a situation in which a personal injury action was brought against an employer in connection with an accident occurring after its employee left work but was driving the employers vehicle. The Court found that the employee had been charged with DUI in another state, and had received two speeding tickets. In affirming summary judgment in favor of the employer on a claim of negligent entrustment, the Court found that the employee’s past driving record was not sufficient to support the claim.

Likewise, in Thedford v. Payne, 813 So. 2d 905 (Ala. Civ. App. 2001), the Court of Civil Appeals considered a case in which a passenger brought an action against the driver and his mother. In reversing the trial court’s judgment on the negligent entrustment claim, the Court held that evidence showing that the driver, who had only been driving for one year prior to the accident, and had been involved in a similar accident some three months prior to the subject accident, was not sufficient proof of negligent entrustment, and that the trial Court aired in submitting the plaintiff’s claims to the jury.

In the absence of these collateral issues, it is unlikely rhat evidence of past conduct will be admitted.  However, failing to appreciate the danger that these issues raise in the defense of trucking lawsuits can place the client at a definite disadventage.


iPhone as Grounds for New Trial

May 20, 2009
Several recent articles have discussed the new phenomenon of jurors use of the internet during trials on which they are empaneled.  With the prevalence of handheld mobile devices with internet capability, it is feasible to gather information regarding almost any subject from the jury room, or even the jury box. Furthermore, social networking site such as Twitter and Facebook allow jurors to post updates as a trial is ongoing.
Recently, the New York Times  reported that a Florida judge declared a mistrial in a criminal matter in which no less than nine jurors researched the case on the internet during trial.
Not content to let jurors have all the fun, a state special education hearing office was terminated for blogging about cases on her docket.  As Law.com  reported, the district court that heard her appeal “found that given her blog posts, which offered criticism about the school district and administrative policies, the hearing officer’s impartiality had come into question, prompting parties to request her recusal in multiple matters and causing disruption to the school district.”
Although Alabama courts have not yet taken up the issue of internet research or blogging during deliberations, several Supreme Court opinions would indicate that such conduct is improper.  First, regarding communications by jurors, to grant a new trial or mistrial, the court must find that “the conduct of the juror should be such as to indicate bias or corruption in the performance of his duty, or the circumstances should indicate that his misconduct influenced the verdict rendered.”  Carr v Irons,  259 So.2d 240 (Ala. 1972).  This rule could certainly apply to blogs, email, and postings on Twitter, Facebook, etc., if the communication is deemed to show bias or corruption.  Also troublesome is the potential for receiving comments or other feedback from the juror’s audience, and the potential that he or she will gain insight outside the evidence presented.
The second consideration is the possibility of jurors conducting their own research into the evidence.  Although this practice has long been improper, the advent of handheld technology has certainly created a new wrinkle, as jurors now have virtual libraries at their fingertips at all times.  Pursuant to Alabama law, jurors may not consider “extraneous facts,” defined as those “obtained by the jury or introduced to it by some process outside the scope of the trial.”  Sharrief v. Gerlach, 798 So.2d 646, 653 (Ala.2001).  In non-internet cases, the Supreme Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia.  See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997).
The following are contained in the Alabama Pattern Jury Instructions, and are currently given by Alabama judges:
APJI 1.11 Jurors Not to Discuss Case During Trial
Until this case is submitted to you for your deliberations, you must not discuss the case with anyone nor permit anyone to discuss the case with you or in your hearing. You are to keep an open mind and you shall neither discuss nor decide any issue in this case among yourselves until the case is submitted to you for your deliberations under the instructions of the Court.
If members of your family or friends or anyone else should ask you about the case, you should tell them that you are under the Court’s instruction not to discuss it. The attorneys, parties and witnesses are not permitted to talk to you during the trial. Even a discussion which has no relation to the case might give a bad appearance. If the participants in the trial fail to greet you or converse with you during this trial it will be due to this rule.
APJI 1.14 Jurors Should Not Make Any Investigation of Their Own During the Course of Trial
No juror should attempt to make an individual investigation of the facts or of the place testified about. It therefore follows that you are not authorized to gather evidence on your own account or on behalf of any of the parties to this case. You should not [visit the scene of the accident] [attempt to inspect or examine any object or property unless that object or property has been received in evidence and the inspection is made in the court room or in the jury room].
Some Alabama judges are beginning to modify the above instructions by specifically mentioning internet research.  Also, depending on the nature of the case, thought should be given to discussing the use of the internet, blogs and social networking during voir dire examination of the jury panel.  Hopefully, more specific instructional and discussion will serve to limit new trials and mistrials that result from such conduct.  However, we have probably only seen the beginning of a trend.

Several recent articles have discussed the new phenomenon of jurors’ use of the internet during trials on which they are empaneled.  With the prevalence of handheld mobile devices with internet capability, it is possible to gather information regarding almost any subject from the jury room, or even the jury box. Furthermore, social networking sites such as Twitter and Facebook allow jurors to post updates as a trial is ongoing.

Recently, the New York Times reported that a Florida judge declared a mistrial in a criminal matter in which no less than nine jurors had researched the case on the internet during trial.

Not content to let jurors have all the fun, a state special education hearing office was terminated for blogging about cases on her docket.  As Law.com reported, the district court that heard her appeal “found that given her blog posts, which offered criticism about the school district and administrative policies, the hearing officer’s impartiality had come into question, prompting parties to request her recusal in multiple matters and causing disruption to the school district.”

Although Alabama courts have not yet taken up the issue of internet research or blogging during deliberations, several Supreme Court opinions would indicate that such conduct is improper.  First, regarding communications by jurors, to grant a new trial or mistrial, the court must find that “the conduct of the juror should be such as to indicate bias or corruption in the performance of his duty, or the circumstances should indicate that his misconduct influenced the verdict rendered.”  Carr v Irons,  259 So.2d 240 (Ala. 1972).  This rule could certainly apply to blogs, email, and postings on Twitter, Facebook, etc., if the communication is deemed to show bias or corruption.  Also troublesome is the potential for receiving comments or other feedback from the juror’s audience, and the potential that he or she will gain insight outside the evidence presented.

The second consideration is the possibility of jurors conducting their own research into the evidence.  Although this practice has long been improper, the advent of handheld technology has certainly created a new wrinkle, as jurors now have virtual libraries at their fingertips at all times.  Pursuant to Alabama law, jurors may not consider “extraneous facts,” defined as those “obtained by the jury or introduced to it by some process outside the scope of the trial.”  Sharrief v. Gerlach, 798 So.2d 646, 653 (Ala.2001).  In non-internet cases, the Supreme Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia.  See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997).

The following are contained in the Alabama Pattern Jury Instructions, and are currently given by Alabama judges:

APJI 1.11 Jurors Not to Discuss Case During Trial

Until this case is submitted to you for your deliberations, you must not discuss the case with anyone nor permit anyone to discuss the case with you or in your hearing. You are to keep an open mind and you shall neither discuss nor decide any issue in this case among yourselves until the case is submitted to you for your deliberations under the instructions of the Court.
If members of your family or friends or anyone else should ask you about the case, you should tell them that you are under the Court’s instruction not to discuss it. The attorneys, parties and witnesses are not permitted to talk to you during the trial. Even a discussion which has no relation to the case might give a bad appearance. If the participants in the trial fail to greet you or converse with you during this trial it will be due to this rule.

APJI 1.14 Jurors Should Not Make Any Investigation of Their Own During the Course of Trial

No juror should attempt to make an individual investigation of the facts or of the place testified about. It therefore follows that you are not authorized to gather evidence on your own account or on behalf of any of the parties to this case. You should not [visit the scene of the accident] [attempt to inspect or examine any object or property unless that object or property has been received in evidence and the inspection is made in the court room or in the jury room].

Some Alabama judges are beginning to modify the above instructions by specifically mentioning internet research.  Also, depending on the nature of the case, thought should be given to discussing the use of the internet, blogs and social networking during voir dire examination of the jury panel.  Hopefully, more specific instructional and discussion will serve to limit new trials and mistrials that result from such conduct.  However, we have probably only seen the beginning of a trend.



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