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494 So. 2d 4

Docket 84-1219.

Burns v. Moore

Nancy BURNS, as Administratrix of the Estate of Charles R. Burns v. Bettie Talley MOORE.

Supreme Court of Alabama

Decided April 11, 1986.

As Modified on Denial of Rehearing July 18, 1986.

Supreme Court of Alabama · decided 1986-07-18

Cited by 14 later decisions — most recently May 1991

1 federal appellate · 13 state decisions

Key passage — most relied on by later courts

“"Under § 25-5-11 , an employee may be liable in damages for the death of, or injuries sustained by, a fellow employee; however, such liability can be based only on injury or death proximately caused by the offending employee's 'willful conduct.' "Section 25-5-11 (c)(1) clearly defines 'willful conduct' in terms of a 'purpose or intent or design to injure another.' The plaintiff need not show that the co-employee defendant specifically intended to injure the person who was injured. What must be shown, however, is that the co-employee defendant set out purposefully, intentionally, or by design to injure someone , and that his actions in furtherance of that purpose, intent, or design, resulted in, or proximately caused, the injury or death upon which suit was brought. In defining 'willful conduct' in these terms, the Legislature recognized the clear distinction that has developed in Alabama between 'wanton conduct' and 'willful conduct': " ' "Wantonness" is the conscious doing of some act or the omission of some duty under knowledge of existing conditions [while] conscious that from the doing of such act or omission of such duty, injury will likely or probably result. " ' "Willfulness" is the conscious doing of some act or omission of some duty under knowledge of existing conditions accompanied with a design or purpose to inflict injury. " 'Therefore, in "wanton conduct" and "wanton injury" a purpose or intent or design to injure is not an ingredient; *Page 903 and where a perso”

quoted by 2 later decisions, including 527 So. 2d 102 - Reed v. Brunson, 577 So. 2d 900 - Lee v. Ledsinger

“`Wantonness' is defined by the Court as the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.”

quoted by 1 later decision, including 567 So. 2d 1314 - Anderson v. Moore Coal Co., Inc.

Relies on Kilcrease v. Harris · Dixie Electric Company v. Maggio · Crocker v. Lee

Good law ✅— No negative treatment on recordhow we know

Decided 1986-07-18

View the full empirical analysis of this case →

¶1*5 G. William Noble, of Barnett, Tingle, Noble & Sexton, Birmingham, and Betty C. Love, of Love, Love & Love, Talladega, for appellant.

¶2Ralph D. Gaines, Jr., and Robert B. Barnett, Jr., of Gaines & Cleckler, Talladega, for appellee.

¶3JONES, Justice.

¶4This is a wrongful death case. Plaintiff brought her action on counts of negligence and wanton misconduct. At the close of Plaintiff's case in chief, the trial judge directed a verdict in favor of Defendant on the wantonness count, and allowed the negligence count to go to the jury. Defendant's answer affirmatively raised the defense of contributory negligence. Plaintiff appeals from the subsequent judgment on a verdict in favor of Defendant. Plaintiff's appeal challenges the trial judge's granting of Defendant's motion for directed verdict on the wantonness claim.

¶5Our determination of this question is guided by three fundamental propositions. First, the proper standard of review of any directed verdict is an objective "sufficiency of the evidence" test:

"A directed verdict is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ." Deaton, Inc. v. Burroughs,456 So.2d 771, 775 (Ala.1984).

¶6The second proposition: Evidence sufficient to defeat a directed verdict motion under that objective test is any evidence, "no matter how slight, ... which, if believed, would support a verdict in favor of the party against whom a directed verdict is sought." Deaton, supra, at 775, citing Herston v. Whitesell,374 So.2d 267, 270 (Ala.1979).

¶7The final proposition: Although proof of wanton misconduct requires a showing of Defendant's "conscious doing of some act," "wantonness" does not require any intent to injure another. The test for whether the conduct rises above simple negligence to the level of wantonness is a fact question to be submitted to the jury, unless there is a total lack of any evidence from which the jury could reasonably infer the higher degree of culpability.

"`Wantonness" is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty, injury will likely or probably result....' Kilcrease v. Harris,288 Ala. 245, 251, 259 So.2d 797, 801 (1972); Culpepper &*6Stone Plumbing & Heating Co. v. Turner,276 Ala. 359, 162 So.2d 455 (1964). One may be guilty of wanton misconduct without actual intent to injure anyone. Birmingham Railway, Light & Power Co. v. Murphy,2 Ala.App. 588, 56 So. 817 (1911). In this sense, `... A willful or intentional act is not involved in wantonness....' Atlantic Coast Line R. Co. v. Brackin,248 Ala. 459, 461, 28 So.2d 193, 194 (1946). `... [W]antonness may arise where the defendant has knowledge that persons, though not seen, are likely to be in a position of danger and with conscious disregard of known conditions of danger....' Crocker v. Lee,261 Ala. 439, 444, 74 So.2d 429, 434 (1954). The knowledge requirement of wantonness `need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference.' Kilcrease v. Harris, supra (288 Ala. at 252, 259 So.2d at 802)." Dixie Electric Co. v. Maggio,294 Ala. 411, 414, 318 So.2d 274, 276 (1975).

¶8We summarize the facts most favorable to Plaintiff: The Defendant, Bettie Talley Moore, while driving her automobile along a narrow paved road, struck and killed Charles Burns. Mr. Burns was standing or walking near or in the road when he was struck. While working in his yard just before the accident, Mr. Burns had been removing trash from his property to a vacant lot across the road. The road on which he was killed connected to another road less than one-half block beyond his home. The intersection of the two roads forms what witnesses called a "dangerous intersection," at which no signs or signals were posted to direct the traffic.

¶9Mrs. Moore was familiar with the road, and was aware that the residents of the neighborhood, including small children, often walked along this road. At the time of the accident, Mrs. Moore's attention was drawn toward the right of the road as she checked for traffic approaching the intersection. She saw Mr. Burns immediately before he was struck, applied her brakes, and skidded her car about 60 feet before hitting a mailbox post and then another 60 feet before coming to a stop 10 to 15 feet to the left side of the road. When Mrs. Moore's car struck Mr. Burns, she was driving between 35 and 40 miles per hour.

¶10In Culpepper & Stone Plumbing & Heating Co. v. Turner,276 Ala. 359, 162 So.2d 455 (1964), the facts were reasonably similar. There, the driver of a pickup truck ran into the rear of another pickup truck when he "looked around to his left and omitted to keep a lookout ahead at the critical time when plaintiff's truck came to a stop." 276 Ala. at 365, 162 So.2d at 460.

There, this Court held:
"Whether the action of defendant's driver resulted from mere inadvertence or inattention, which would be nothing more than negligence; or whether the driver's action resulted from a conscious indifference to the likely or probable consequences, which would be wantonness, was a question for the jury." 276 Ala. at 365, 162 So.2d at 460-61.

¶11We cannot say that the facts of this case, as they appear most favorable for Plaintiff, do not present any proof as to a material issue—the wantonness vel non of Defendant. Therefore, the questions of whether Mrs. Moore's conduct constituted mere negligence, and whether it rose above simple negligence to the level of wanton misconduct, was a question for the jury. Because the trial judge allowed the jury to answer only the first question—whether Defendant was guilty of negligence—we must reverse and remand for a new trial.

¶12Defendant argues that because the jury returned a verdict for Defendant, it necessarily must have found that Defendant's actions were free from any negligence. We cannot accept this quantum leap in logic. The jury was presented with a claim for negligence and a defense of contributory negligence. If the jury found that Mrs. Moore was negligent, but then found that Mr. Burns was contributorily negligent, it would be constrained to find for Defendant, because contributory negligence acts as a complete bar to an action based on negligence. Contributory negligence, *7 however, would not act as a bar in an action based on wanton misconduct. Because it is not clear whether the jury found an absence of negligent conduct or the presence of contributory negligence, the cause must be remanded for a new trial. Because the appeal does not challenge the jury verdict and judgment entered thereon in favor of Defendant on the negligence claim, the new trial mandated on remand shall be limited to the claim for wanton misconduct. Smith v. Bradford,475 So.2d 526 (Ala.1985); see, also, McMurray v. Johnson,481 So.2d 887 (Ala.1985).

¶13REVERSED AND REMANDED.

¶14MADDOX, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

¶15TORBERT, C.J., and HOUSTON, J., dissent.

¶16

ON APPLICATION FOR REHEARING

¶17JONES, Justice.

¶18This Court's order of June 13, 1986, denying rehearing without opinion, is hereby set aside. We overrule the application, but in doing so we modify our original opinion to clarify our instructions to the trial court on remand.

¶19OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.

¶20MADDOX, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

¶21TORBERT, C.J., and HOUSTON, J., dissent.

¶22TORBERT, Chief Justice (dissenting).[1]

¶23I find no evidence that warranted sending the wantonness claim to the jury. In my view, the evidence supposedly allowing an inference of wantonness in this case is no more persuasive than the evidence supposedly allowing the inference of wantonness in Bishop v. Poore,475 So.2d 486 (Ala.1985). I must dissent here, just as I did in Bishop.

¶24HOUSTON, J., concurs.

NOTES

¶25[1] Reporter's Note: This dissenting opinion was issued with regard to the majority's opinion of April 11, 1986.

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