Lance, Inc. v. Ramanauskas

• Decision Date: 05 March 1999
• Citation: 731 So.2d 1204
• Parties: LANCE, INC. v. Michael RAMANAUSKAS and Tela Ramanauskas.
• Court: Alabama Supreme Court

731 So.2d 1204

LANCE, INC. v. Michael RAMANAUSKAS and Tela Ramanauskas.

1970952.

Supreme Court of Alabama.

March 5, 1999.

Donald F. Pierce, Forrest S. Latta, John Charles S. Pierce, and J. Robert Turnipseed of Pierce, Ledyard, Latta & Wadsden, P.C., Mobile; and Larry Harper and Mark King of Porterfield, Harper & Mills, P.C., Birmingham, of counsel, for appellant.

Robert T. Cunningham, Jr., Joseph M. Brown, Jr., and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for appellees.

LYONS, Justice.

Shawn Ramanauskas ("the child"), age 10, died after being electrocuted while attempting to purchase a snack from an ungrounded electric vending machine owned and maintained by Lance, Inc., a distributor of vending machines. The child's parents, Michael and Tela Ramanauskas ("the parents"), sued Lance, Inc., and several other defendants pursuant to Ala.Code 1975, § 6-5-391, which provides a cause of action for the wrongful-death of a minor. The other defendants were Williams Motel, Inc., and Holiday Inns, Inc. (hereinafter collectively referred to as "the motel"), the owners of the Holiday Inn of Clanton, Alabama, on whose premises the Lance, Inc., vending machine that electrocuted the child was located; the Montgomery Coca-Cola Bottling Company, Ltd. ("Montgomery Coca-Cola"), the owner of the soft drink vending machine that was adjacent to and in physical contact with the Lance vending machine on the motel's premises; Dixie-Narco, Inc., and U-Select-It, Corp., the manufacturers of the Coca-Cola and the Lance vending machines; and Sandra Gore, the manager of the Holiday Inn of Clanton, as well as several fictitiously named parties. The parents' theories of recovery from Dixie-Narco, Inc., and U-Select-It, Inc., were based on negligence, wantonness, and product liability. Their theories of recovery from the motel, Montgomery Coca-Cola, and Lance, Inc., were based only on negligence and wantonness.

After extensive discovery, the trial court entered a summary judgment in favor of all of the defendants except Lance, the motel, and Montgomery Coca-Cola. The motel and Montgomery Coca-Cola then entered into pro tanto settlements with the parents. Pursuant to their settlements, Montgomery Coca-Cola agreed to pay $3 million and the motel agreed to pay $7 million. The parents proceeded to trial against Lance alone, claiming that Lance had negligently and/or wantonly caused the child's death. The jury returned a verdict in favor of the parents and against Lance in the amount of $13 million. The trial court denied Lance's posttrial motion for a new trial, for a judgment as a matter of law ("JML"), for a remittitur, or to alter, amend, or vacate the judgment. Lance appeals.

Lance argues that the trial court erred in denying its motion for a JML or for a new trial because, it argues, the parents failed to establish that Lance had a duty to police the electrical circuits at the motel. Lance also contends that the trial court erred in denying its motion for a JML or for a new trial because, it says, the parents failed to present substantial evidence as to each element of their negligence claim and their wantonness claim.

Lance also argues that the jury was confused about how to treat the pro tanto settlements in arriving at the amount of its verdict. Lance also maintains that the jury's verdict was not unanimous. Lance contends that the confusion of the jury and the lack of a unanimous verdict were prejudicial and deprived it of due process and violated its right to a trial by jury. Lance also argues that the circumstances giving rise to the confusion judicially estop the parents from asserting a right to any more than $3 million of the $13 million awarded by the jury.

Lance further maintains that plaintiffs' arguments improperly invoked sympathy and injected Lance's financial situation and the fact that it had insurance coverage into the trial. Those improper arguments, it says, require a new trial or a remittitur of the damages. Lance also asserts that the trial court erred in not awarding a new trial or a remittitur because, it argues, the parents did not present evidence that Lance's conduct was so reprehensible as to support the jury's verdict; because the damages award, it says, is disproportionate to awards in similar cases; and because, it says, the damages award is tainted by the improper references of the parents' counsel to Lance's misconduct in other states. Finally, Lance argues that the verdict is constitutionally unacceptable because, it says, the child's electrocution was unforeseeable, and the penalty imposed was excessive.

I. The Sufficiency of the Evidence as to Lance's Allegedly Negligent and Wanton Conduct

Lance first contends that the trial court erred in denying its postverdict motion for a JML because, it says, the parents did not produce evidence from which the jury could reasonably conclude that Lance had been either negligent or wanton or that if it had been, that its negligence or wantonness had caused the child's death. When reviewing a ruling on a motion for a JML, this Court applies the same standard applied by the trial court in granting or denying the 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). In reviewing a ruling on a motion for 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. Carter, 598 So.2d at 1353. If the question is one of law, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala. 1992).

A. Negligence

Lance argues that the parents did not produce substantial evidence from which the jury could find that Lance had been negligent or that its negligence caused the child's death. To support their negligence claim, the parents had to produce substantial evidence that Lance owed a duty of care to the child or to a class of persons that included the child, that Lance breached that duty of care, and that this breach proximately caused the child's death. See Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So.2d 199 (Ala.1992). Lance contends that the parents did not produce any evidence that it owed a duty of care to the child or to other persons using its vending machines, and that the parents did not produce substantial evidence that Lance's conduct was the proximate cause of the child's death.

A duty of care arises when it is foreseeable that harm may result if care is not exercised. See Bush v. Alabama Power Co., 457 So.2d 350 (Ala.1984). Lance maintains that it was under no duty to police the condition of the circuitry providing electrical current to its vending machines because, it says, it was not foreseeable that someone might be electrocuted while using its machines. Lance says that no incident related to an electrical problem associated with its vending machines was reported before the child's death.¹

The parents direct our attention to Harris v. Board of Water & Sewer Comm'rs of City of Mobile, 294 Ala. 606, 320 So.2d 624, 630 (1975), where this Court, citing Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974), held that "where one party to a contract assumes a duty to another party to that contract, and it is foreseeable that injury to a third party—not a party to the contract—may occur upon a breach of that duty, the promisor owes a duty to all those within the foreseeable area of risk." The foreseeability of injury to others upon the negligent performance of a contract is the touchstone of tort liability to a third party. See Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So.2d 496 (Ala. 1984). The parents maintain that they produced substantial evidence that Lance and the motel had entered into a contract, and that pursuant to that contract Lance had assumed a duty to keep its vending machine safe. The parents say that they submitted substantial evidence that it was foreseeable that injury could occur if the vending machine was not properly installed and maintained, and that, therefore, the question of foreseeability was properly submitted to the jury. We agree.

The evidence showed that although at the time of the accident vending machines owned by both Lance and Montgomery Coca-Cola were plugged into a receptacle that accepted a three-pronged plug typically used when a circuit is grounded, the receptacle had been improperly installed by the motel's handyman five years earlier; not only was the receptacle not grounded, it was wired with reversed polarity. The evidence further indicated that the motel did not take corrective measures after a series of specific complaints of electric shocks involving the machines that were plugged into that receptacle, beginning just three days before the child's death. The evidence also showed that Montgomery Coca-Cola was aware of an incident in which a user had been shocked at another vending machine located at the same motel four years before the child's death, that the soft drink machine was touching the Lance vending machine at the time of the death, that the soft drink machine was filthy, that the grounding prong had been removed from its plug, and that Montgomery Coca-Cola knew that its machines at many locations shocked customers at least once a year.

The evidence reflected that, pursuant to its contract with the motel, Lance agreed to "maintain and keep [the vending machine] in good working order," for a fee of approximately $300 per year. The Lance corporate representative...