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.

Kentucky Jury Awards $3.8 Million on Third Party Bad Faith Claim

June 7, 2009

On June 3, a Jefferson County, Kentucky jury awarded a woman $3.8 million in a bad faith suit against her doctor’s insurer, American Physican’s Assurance Corp.  Shortly after Debbie Daniels underwent a hysterectomy and tummy tuck, her insision opened, necesitating emergency surgery and a lengthy and difficult recovery.

The insurer’s claim file indicated that, although it determined that its insured was liable and evaluated the claim at $1 million, it refused to enter into settlement negotiations for two years before offering $75,000, according to the Louisville Courier-Journal.  Daniels eventually settled with her doctor for $650,000, and reserved the right to sue American Physican’s Assurance.

I don’t claim to know much about Kentucky law, and can’t offer any opinion on whether the verdict will stand up on appeal, but it isn’t likely that such a claim would survive in Alabama, where longstanding law provides that “a party may not bring an action against an insurance company for bad-faith failure to pay an insurance claim if the party does not have a direct contractual relationship with the insurance company.”  Williams v State Farm Mut. Auto. Ins. Co., 886 So.2d 72 (Ala. 2003).


Alabama Supreme Court Will Not Follow Federal Maritime Punitive Damages Standard

June 3, 2009

Recently, the Alabama Supreme Court declined to follow a U.S. Supreme Court standard setting a ratio of punitive to compensatory damage at .65 to 1.  In Line v. Ventura, No. 1070736, ___ So.2d___ (Ala 2009), a legal malpractice action, the court held that in its recent holding in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), the U.S. Supreme court had limited the application of the ratio to maritime cases.  The Court expressly noted that it would continue to follow the ratio set out in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), and BMW of North America v. Gore, 517 U.S. 559 (1996), which set forth a general ratio of 10 to 1 for punitive to compensatory damages.


Alabama Supreme Court Clarifies Rules for Permissive Intervention

May 22, 2009

Last week, the Alabama Supreme Court upheld a trial court’s denial of a carrier’s motion for permissive intervention in a Mobile construction defect lawsuit.  As is common, the carrier had asked the trial court for permission to participate in discovery and issue special verdict forms to the jury in the event of a verdict in favor of the plaintiff.

In affirming the trial court’s denial, the Court, in QBE Insurance Corp. v. Austin Co., Inc., ___ So.2d ___ (Ala. 2009), held that the decision whether to grant or deny a motion to intervene was within the discretion of the trial judge, and adopted the 11th Circuit’s factors for making that determination:

(1) The length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the existing parties as a result of the would-be intervenor’s failure to apply as soon as he knew or reasonably should have known of his interest; (3) the extent of prejudice to the would-be intervenor if his petition is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely.  U.S. v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983).

In QBE, the Court noted that the motion was not filed until 16 months after the complaint was filed, that 17 parties were already involved in the litigation, and that discovery had nearly been completed.  Further, the Court held that QBE’s rights would not be prejudiced by the denial, as it could file a declaratory judgment action to determine any coverage issues.


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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