Baptist Memorial Hosp. v. Gosa

• Decision Date: 06 September 1996
• Citation: 686 So.2d 1147
• Parties: 12 IER Cases 31 BAPTIST MEMORIAL HOSPITAL v. Brenda GOSA. BAPTIST MEMORIAL HOSPITAL v. Iris WRIGHT. 1950156, 1950157.
• Court: Alabama Supreme Court

Page 1147

686 So.2d 1147

12 IER Cases 31

BAPTIST MEMORIAL HOSPITAL v. Brenda GOSA.

BAPTIST MEMORIAL HOSPITAL v. Iris WRIGHT.

1950156, 1950157.

Supreme Court of Alabama.

Sept. 6, 1996.

Rehearing Denied Dec. 13, 1996.

Curtis Wright and Curtis Wright II of Dortch, Wright & Wright, Gadsden, and Oakley Melton, Jr. of Melton, Espy, Williams & Hayes, Montgomery, for Appellant.

Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for Appellees.

HOOPER, Chief Justice.

Iris Wright sued Baptist Memorial Hospital ("BMH"), alleging that a man had shot her in BMH's parking lot as she left work one evening. She sought damages on the theory that BMH was liable for the harm caused by the criminal act of that third party. Wright's friend, Brenda Gosa, also sued BMH on the same theory, seeking damages for wanton or negligent infliction of emotional distress; Gosa alleged that she was in the vicinity of the crime against Wright and became frightened--specifically, Gosa claims she was assaulted.

BMH appealed from a judgment for the plaintiff in each case, following a jury trial. The issues on appeal are: 1) May BMH use as an affirmative defense to Wright's claim the fact that it paid workers' compensation to Wright after her injury? We answer that question yes. 2) May Gosa recover damages from BMH based on the criminal actions of a third party that occurred in BMH's parking lot? We answer no. We reverse and remand.

I. Facts and Procedural History

Wright and Gosa were employees at BMH. On Saturday night, June 22, 1991, Wright and Gosa left work together at 9:30 p.m. and exited the rear of the hospital building into the employee parking lot. They stood in the parking lot and talked with each other for about 10 minutes before walking to their cars. When Wright arrived at her car, a man approached her, grabbed her purse, and shot her in the stomach as he left.

Gosa heard Wright yelling and thought that Wright had slipped and fallen. Gosa went over to assist Wright. Gosa claims that when she reached Wright, the man with the gun was still in the area looking at them and holding the gun.

Wright elected to and did receive workers' compensation disability and medical payment benefits. Thereafter, Wright and Gosa sued BMH, alleging negligence, wantonness, and/or willfulness in failing to provide security. BMH moved for a directed verdict based upon the affirmative defense of immunity (under the Workers' Compensation Act) as to Wright's claim. The trial judge denied BMH's motion. BMH also argued, as a basis for a directed verdict as to both plaintiffs' claims, that the evidence failed to establish that BMH had a duty to protect Wright and Gosa from third-party criminal acts in the hospital parking lot. The trial court denied BMH's motion for a directed verdict. The jury returned verdicts in favor of both plaintiffs. The jury assessed Wright's damages as follows: past damages, $76,380; future damages, $408,978; punitive damages, $402,816; for total damages of $888,174. It assessed Gosa's damages as follows: past damages, $83,614; future damages, $473,424; punitive damages $402,816; for total damages of $959,854. The court entered judgments for the plaintiffs based on the verdicts.

BMH argues, among other things, that, as to Wright, the trial judge erred in denying a directed verdict in favor of BMH, based upon undisputed evidence that Wright elected to and did receive workers' compensation disability benefits and workers' compensation medical payment benefits. BMH also argues that, as to both plaintiffs, the trial court erred in denying its motion for a directed verdict against the claims alleging a failure to protect the plaintiffs from criminal acts of a third party.

II. Workers' Compensation Defense

The trial court erred in failing to direct a verdict in favor of the defendant, BMH, as to all claims asserted by Wright. It is undisputed that Wright accepted workers' compensation payments from BMH, her employer. This Court has consistently held that "the acceptance of compensation payments under the Work[ers'] Compensation Act constitutes an election that estops the employee from resorting to any other remedy." Davis v. M.C. Dixon Lumber Co., 551 So.2d 305, 306 (Ala.1989), citing Kelley v. Dupree, 376 So.2d 1371 (Ala.1979).

Workers' compensation immunity under Ala.Code 1975, § 25-5-53, is, as Wright argues, an affirmative defense. Bechtel v. Crown Cent. Petroleum Corp., 451 So.2d 793, 795 (Ala.1984). The hospital amended its original answer to add an affirmative defense Rule 15(a), Ala.R.Civ.P., states:

of workers' compensation immunity, but Wright contended at trial and again before this Court that the hospital's failure to plead workers' compensation immunity in its original answer precluded the hospital from later amending its answer to include a § 25-5-53 defense. Wright argues that the hospital's delay in pleading the affirmative defense prejudiced her. Wright's argument is without merit.

"Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court's own motion or a motion of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. ..."

(Emphasis added.) Unlike parties attempting to amend under the federal version of Rule 15(a), an amending party in Alabama need not show good cause in order to amend its pleadings, as long as the amendment is filed "more than days" before trial is first set. It is up to the party opposing the amendment to come forward, make a motion for disallowance of the amendment, and then demonstrate to the trial court that justice requires that the amendment be disallowed.

The hospital's amendment adding a workers' compensation immunity defense was filed more than 42 days before the trial date set in this case. Wright had the heavy burden of proving that justice required that the hospital's amendment be disallowed. Wright asserted that she was prejudiced by the hospital's delay in filing the amendment because the statute of limitations for bringing a co-employee action against certain hospital employees had run before the amendment was filed. In essence, Wright argues that had she known that the hospital would raise this obviously dispositive affirmative defense of workers' compensation immunity she would have amended her complaint to add co-employee claims, which are not entirely subject to § 25-5-53.

However, nothing prevented Wright from bringing any potential co-employee claims before the statute of limitations ran on those claims. If Wright was prejudiced, she was prejudiced by her own tactical decision not to assert her potential co-employee claims; BMH's delay in adding the affirmative defense was not the cause of Wright's decision not to assert the co-employee claims.

III. Liability Based on Criminal Acts of a Third Party

It is well settled that absent a special relationship or special circumstances, a person has no duty to protect another from criminal acts of a third person. See Broadus v. Chevron USA, Inc., 677 So.2d 199 (Ala.1996); Steiger v. Huntsville City Board of Education, 653 So.2d 975 (Ala.1995); Saccuzzo v. Krystal Co., 646 So.2d 595 (Ala.1994); Moye v. A.G. Gaston Motels, Inc., 499 So.2d 1368, 1370 (Ala.1986).

On at least one previous occasion, a plaintiff has urged this Court to adopt Restatement (Second) of Torts, § 344 (1965), which places a generalized duty on the owner of premises to discover, warn against, and protect against the criminal acts of a third party. However, this Court has rejected that doctrine and has retained the general rule that absent a special relationship or special circumstances a person has no duty to protect another from criminal acts of a third person. Broadus, 677 So.2d at 202; Henley v. Pizitz Realty Co., 456 So.2d 272 (Ala.1984). However, "[t]here is a [single] exception to this general rule, which arises where the 'particular criminal conduct was foreseeable.' " Moye, 499 So.2d at 1371, quoting Henley v. Pizitz Realty Co., 456 So.2d at 276.

In Moye, this Court explained the analysis a court must consider in determining whether to impose liability on a premises owner for the criminal acts of a third party:

" 'This Court has recognized that a duty may be imposed on a store owner to take reasonable precautions to protect invitees from criminal attack in the exceptional case where the store owner possessed actual or constructive knowledge that criminal activity which could endanger an invitee was a probability.' Ortell v. Spencer Companies, [477 So.2d 299] at 299 [ (Ala.1985) ].

"This Court has recognized that it is indeed difficult to impose such a duty, not yet having been presented the case whose facts command a finding of such a duty.

"A second reason we have generally refused to impose liability on premises owners for the criminal acts of third parties is the usual absence of 'proximate cause'; it is the independent, intervening criminal act that is generally the proximate cause of plaintiff's injuries and not any action or inaction on the part of the premises owner. In Latham v. Aronov Realty Co., [435 So.2d 209] at 211 [ (Ala.1983) ], this Court quoted Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976):

" 'Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. If, between the alleged negligent act or omission and the injury, there occurs an independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961)....'

" 'The key here is foreseeability. This court has...