Daniels v. East Alabama Paving, Inc.

• Decision Date: 04 June 1999
• Citation: 740 So.2d 1033
• Parties: Joyce DANIELS et al. v. EAST ALABAMA PAVING, INC. East Alabama Paving, Inc. v. Joyce Daniels et al.
• Court: Alabama Supreme Court

740 So.2d 1033

Joyce DANIELS et al. v. EAST ALABAMA PAVING, INC.

East Alabama Paving, Inc. v. Joyce Daniels et al.

1951.

Supreme Court of Alabama.

June 4, 1999.

Rehearings Denied August 27, 1999.

G. William Gill of McPhillips, Shinbaum & Gill, L.L.P., Montgomery, for appellants/ cross appellees Joyce Daniels et al.

Bert S. Nettles, Mark D. Hess, and Peter D. LeJeune of London & Yancey, L.L.C., Birmingham; and Gerald C. Swann, Jr., of Ball, Ball, Matthews & Novak, P.C., Montgomery, "of counsel," for appellee/cross appellant East Alabama Paving, Inc. LYONS, Justice.

Joyce Daniels, Katherine Daniels, Lillie Cook Daniels, Vellica Daniels Osborne, Jesse J. Cook, and Sharita Daniels, all of whom were plaintiffs in an action against East Alabama Paving, Inc. ("EAPI"), appeal from a post-trial order entered in that case. EAPI cross appeals. We affirm in part, reverse in part, and remand.

The case arose out of a single-vehicle accident that occurred on Interstate Highway 85 in Macon County, on November 24, 1993, at approximately 8:30 p.m. It involved 10 members of the Daniels family— Joyce Daniels, Stephanie Nicole Daniels-Howard, Katherine Daniels, Lillie Cook Daniels, Vellica Daniels Osborne, Jesse J. Cook, Juan E. Daniels, Sharita Daniels, Arleisha Daniels, and Sirenthia Daniels ("the Danielses").

At issue is a several-inch elevation or drop-off the plaintiffs allege existed on 85 between the traveling lane and the emergency lane and/or shoulder. At the time of the accident, EAPI had a contract with the Alabama Department of Transportation ("ADOT") to resurface a portion of I-85, including the portion where the accident occurred. EAPI's contract was standard in the industry and provided that if the difference in elevation between two lanes was two inches or less, the elevation should be rolled and tapered to eliminate a vertical edge. Furthermore, if the elevation exceeded two inches, then under the contract EAPI had a duty either to place various significant warning devices or to close the lane.

The accident occurred when Katherine Daniels, the driver, lost control of the vehicle in which the Danielses were traveling. The vehicle left the roadway and overturned at least twice. Three-year-old Stephanie ("the decedent") was killed and the remaining family members sustained varying injuries.

The Danielses sued EAPI. The gist of their allegation was that EAPI had negligently and/or wantonly created a dangerous and hazardous condition on I-85; that EAPI had negligently and/or wantonly failed to warn against the dangerous and hazardous condition; and that the dangerous and hazardous condition had proximately caused the accident and resulting injuries. Joyce Daniels made an additional claim, alleging the wrongful death of a minor, pursuant to Ala.Code 1975, § 6-5-391.

The case proceeded to trial. The trial court ultimately dismissed Arleisha and Sirenthia as parties. The court entered a judgment as matter of law ("JML") in favor of EAPI on the wantonness count and submitted the wrongful-death claim and the negligence count to the jury. The jury returned a verdict in favor of Joyce Daniels, as administratrix of Stephanie's estate, on the wrongful-death claim, awarding punitive damages of $5,000,000. The jury returned individual verdicts in favor of the Danielses, awarding compensatory damages to each plaintiff who had not been dismissed. The trial court entered a judgment based on the verdicts. EAPI moved for a JML, a new trial, or a remittitur. The trial court entered a post-trial order 1) denying EAPI's motion for JML on the negligence count and 2) conditionally granting EAPI's motion for a new trial if the Danielses refused to accept the following remittiturs:

PLAINTIFF AWARD REMITTED TO Joyce, as $5,000,000 $2,000,000 (wrongful death) administratrix of the estate of Stephanie Joyce, $2,500,000 $250,000 (compensatory) individually Jesse $200,000 $40,000 (compensatory) Lillie $175,000 $35,000 (compensatory) Katherine $150,000 $20,000 (compensatory) Vellica $104,000 $29,000 (compensatory) Juan $15,000 (no remittitur) Sharita $10,000 $367 (compensatory)

Joyce, as administratrix of Stephanie's estate, accepted the remittitur of the wrongful-death award; that award and the remittitur are not before this Court on appeal. The trial court did not order a remittitur of Juan's award; that award also is not before this Court on appeal. Joyce (individually), Jesse, Lillie, Katherine, Vellica, and Sharita refused to accept the remittiturs. They contend 1) that the trial court erred in ordering remittiturs of their personal-injury awards and 2) that the trial court erred in entering a JML on their wantonness count, thereby refusing to submit the issue of punitive damages to the jury (except as to the wrongful-death claim). EAPI cross appealed, contending that the evidence was insufficient to support submitting the case to the jury on the issue of negligence or, alternatively, that the trial court should have ordered further reductions of the damages awards.

I. The Sufficiency of the Evidence as to Negligence and Wantonness

The Danielses contend that the trial court erred in entering a JML in favor of EAPI on the wantonness count, thereby precluding the jury from considering the individual claims for punitive damages. EAPI contends that the trial court erred in not also entering a JML in its favor on the personal-injury claims to the extent those claims were based on a theory of negligence. When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented substantial evidence to allow the factual issue to be submitted to the jury for resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). See, also, § 12-21-12, Ala.Code 1975, and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A motion for JML "is properly denied where there exists any conflict in the evidence for consideration by the jury." Cloverleaf Plaza, Inc. v. Cooper & Co., 565 So.2d 1147, 1149 (Ala.1990). In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences from that evidence as the jury would have been free to draw.

A. Negligence

The Danielses presented evidence in support of their contention that EAPI had created a dangerous condition on I-85 and that EAPI had failed to warn against the condition. As previously noted, any drop-off of two inches or less had to be rolled and tapered to prevent a vertical edge. If the drop-off exceeded two inches, additional traffic-control devices were required or, alternatively, the lane should have been closed. Frank Osborne, who is Vellica's husband, went to the accident scene the day after the accident occurred. Osborne testified that he measured the pavement edge and that in various locations it measured three to four inches and appeared "straight up and down." Osborne also took photographs of the accident scene. The Danielses introduced these photographs at trial; they indicated that the pavement edge was vertical and that it exceeded two inches in height. Clifford A. Prosser, a traffic-accident consultant, investigator, and reconstructionist, reviewed certain evidence in the case and opined that the accident was the "classic pavement-edge-drop and oversteer-loss-of-control-type accident." Robert V. Kolar, a consulting engineer, testified that, based on the photographic evidence, he was able to determine that the pavement edge was 3.37 inches high and that it appeared nearly vertical.

EAPI presented evidence in support of its contention that the pavement edge and/or drop-off was in a safe condition when its employees left the work site at the end of the day on which the accident occurred. EAPI offered evidence that there were signs at the beginning and at the end of the construction zone informing drivers that they were entering/exiting a construction zone. William Gray, a project engineer with ADOT, testified that ADOT had the responsibility to make sure that all traffic-control devices, e.g., barrels, low-shoulder signs, etc., were in place and that they complied with plans and specifications incorporated in the Alabama Manual on Uniform Traffic Control Devices. Gray testified that EAPI was responsible for actually placing the traffic-control devices on the roadway at ADOT's instruction, and that ADOT "comes back behind [EAPI] and makes sure that they do their job." Gray further testified that there were no additional traffic-control devices in place at the time of the accident because, he says, ADOT determined that none were necessary. Bennie Dease, an employee of ADOT, testified that on the morning of the day of the accident he had stopped in various spots and measured the pavement edge and that the edge drop-off was two inches or less. Dease testified that he made a notation to this effect in the ADOT diary, which was introduced into evidence. Rex Stroud, a superintendent with EAPI, testified that he routinely walked behind the paving truck and the roller machine and actually observed the pavement edges. He further testified that he had no knowledge that any pavement edge on this particular project had ever exceeded two inches or had not been tapered. Stroud testified that if he had observed a drop-off exceeding two inches, he probably would have closed the lane or put up additional traffic-control devices.

The evidence created a conflict regarding 1) whether the pavement edge and/or drop-off exceeded two inches and 2) whether the pavement edge and/or drop-off had been rolled and tapered. This conflict in the evidence created a jury question, which was resolved in favor of the Danielses. Accordingly, the trial court properly denied EAPI's...