Lankford v. Sullivan, Long & Hagerty

• Decision Date: 09 July 1982
• Citation: 416 So.2d 996
• Court: Alabama Supreme Court
• Parties: Hoyt LANKFORD, Bonnie Lankford, Posey O. Pace and Nadean Pace v. SULLIVAN, LONG & HAGERTY, a Corporation; Can Tex Industries, a Division of Harsco Corporation; and Texas Vitrified Manufacturing Company. 80-459.

Page 996

416 So.2d 996

Hoyt LANKFORD, Bonnie Lankford, Posey O. Pace and Nadean Pace v. SULLIVAN, LONG & HAGERTY, a Corporation; Can Tex Industries, a Division of Harsco Corporation; and Texas Vitrified Manufacturing Company.

80-459.

Supreme Court of Alabama.

July 9, 1982.

George White, Gadsden, and R. Ben Hogan, III, of Hogan, Smith & Alspaugh, Birmingham, for appellants.

Charles E. Sharp and John F. Whitaker, of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee Sullivan, Long & Hagerty.

Larry W. Harper, of Porterfield, Scholl, Clark & Harper, Birmingham, for appellees Can Tex Industries and Texas Vitrified Mfg. Co.

Lanny S. Vines, Birmingham, for amicus curiae The Alabama Trial Lawyers Assn.

L. Murray Alley, Fournier J. Gale, III, and Cathy S. Wright, of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for amicus curiae Associated Industries of Alabama.

ALMON, Justice.

This is a products liability case. At issue is the constitutionality of Code 1975, § 6-5-500 et seq. This appeal is from the granting of summary judgment in favor of the defendants/appellees. We reverse.

On May 27, 1980, Hoyt Lankford and Posey O. Pace, employees of the City of Gadsden Waterworks and Sewer Board, were injured when a manlift (a type of elevator) upon which they were riding suddenly collapsed and fell. The accident occurred at the 6th Street South pumping station in Gadsden, Alabama. The two employees and their wives filed suit, alleging that the appellees were negligent in the design, manufacture, installation and inspection of the manlift and that the appellees were negligent as a matter of law under the Alabama extended manufacturer's liability doctrine. The appellees filed a motion for summary judgment based on Code 1975, § 6-5-502.

Section 6-5-502 provides in part:

(a) All product liability actions against an original seller must be commenced within the following time limits and not otherwise:

(1) Except as specifically provided in subsections (b), (c) and (e) of this section, within one year of the time the personal injury, death or property damage occurs; and

(2) Except as specifically provided in subsections (b), (c) and (e) of this section, each element of a product liability action shall be deemed to accrue at the time the personal injury, death or property damage occurs;

(b) Where the personal injury, including personal injury resulting in death, or property damage (i) either is latent or by its nature is not discoverable in the exercise of reasonable diligence at the time of its occurrence, and (ii) is the result of ingestion of or exposure to some toxic or harmful or injury-producing substance, element or particle, including radiation, over a period of time as opposed to resulting from a sudden and fortuitous trauma, then, in that event, the product liability action claiming damages for such personal injury, or property damage must be commenced within one year from the date such personal injury or property damage is or in the exercise of reasonable diligence should have been discovered by (c) Notwithstanding the provisions of subsections (a) and (b) of this section, a product liability action against an original seller must be brought within 10 years after the manufactured product is first put to use by any person or business entity who did not acquire the manufactured product for either resale or other distribution in its unused condition or for incorporation as a component part in a manufactured product which is to be sold or otherwise distributed in its unused condition.

the plaintiff or the plaintiff's decedent, and in such cases each of the elements of the product liability action shall be deemed to accrue at the time the personal injury is or in the exercise of reasonable diligence should have been discovered by the plaintiff or the plaintiff's decedent; and

The undisputed facts submitted by the appellees showed that the manlift was installed in late 1964 or early 1965 by Sullivan, Long & Hagerty. The accident occurred some fifteen years later and as a result this suit would be barred by subsection (c) of § 6-5-502.

Appellants contend that § 6-5-500 et seq. (Act No. 79-468) violates Article I, § 13, of the Alabama Constitution. Section 13 provides "[t]hat all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay."

Section 13 has been considered at length by several recent opinions of this Court. The standards of review and the results of cases decided on the basis of § 13 have been somewhat divergent. ¹ We trust that this opinion will make clear this Court's review of § 13.

I APPROPRIATE STANDARD OF REVIEW

The principles set out by Justice Shores in her concurring opinion in Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980), best describe what we perceive to be the appropriate standards of review and also the rationale for the review. Due to the importance we attach to the principles stated by Justice Shores, we quote at length from her opinion:

"The language of the provision [§ 13] is not unique. Thirty-seven other states include a similarly-worded provision in their constitutions, A. E. Dick Howard, The Road from Runnymede, Appendix; indeed, its origins can be traced back to the Magna Charta. 2 Coke, Institutes, Cap. 29, p. 56. Although its language is broad enough to be subject to varying interpretations, it can generally be said to incorporate into our constitution a fundamental principle of fairness, a perhaps vaguely conceived but important notion of limitation on the power of government to infringe upon individual rights, and to act arbitrarily. What those rights are, what degree of infringement is permitted, and with how much justification, are inquiries which have been the subject of long-standing debate, and have puzzled minds more perspicacious than mine. Underlying all of these inquiries is the oft-unstated but all pervasive question of who is to answer them: legislature or courts? How do courts supply content to the provision without overstepping their traditional role and legislating themselves? The answers to these questions are important, for too literal a reading of the prohibitions of § 13 may effectively preclude governmental action in areas of crucial public concern; too broad a reading eviscerates the very rights the section was intended to protect.

"....

"... The rights guaranteed include those possessed at common law by individuals injured by wrongful acts of others, and their redress must be sought through the courts....

"....

"Legislation which abolishes or alters a common-law cause of action, then, or its enforcement through legal process, is automatically suspect under § 13. It is not, however, automatically invalid. Grantham, [v. Denke, 359 So.2d 785 (Ala.1978) ], itself restates the established rule that such legislation will survive constitutional scrutiny if one of two conditions is satisfied:

1. The right is voluntarily relinquished by its possessor in exchange for equivalent benefits or protection, or

2. The legislation eradicates or ameliorates a perceived social evil and is thus a valid exercise of the police power.

I find it helpful to think of these alternatives as two different aspects of the quid pro quo concept: Thus, a right may be abolished if the individual possessor receives something in return for it (the individual quid pro quo dwelt upon in Grantham ), or if society at large receives a benefit (thereby justifying exercise of the police power.)

"....

"Of the dozens of cases decided under § 13, however, there are many which involve no deprivation of common-law causes of action, and in which the Court has declined to exercise a stricter than normal standard of review.... In this type of case, § 13 is construed as a general prohibition against arbitrary and capricious governmental action. The Court quite properly exhibits a high degree of deference to the legislative decision-making process in these situations because the guidelines for review are so vague. Where common-law causes of action for injury are impaired, however, the mandate of § 13 is explicit."

The review articulated by Justice Shores is a two-tiered approach. Where common-law rights are altered or abolished, this Court will review such legislation more strictly than normal. Where no common law right is affected, a judicial deference to the legislature is required; however, the legislation may not be arbitrary or capricious.

It is argued by the appellees that because privity was required at common law to maintain an action such as this one, no common law right is altered and hence we should not apply the more strict standard of review. However, the statute of repose contained in § 6-5-502(c) is a bar to all actions whether or not there is privity. To base our review on whether or not there is privity would be to avoid the real issue; and because we would reach the same result under either standard of review, we do not think the issue of privity is determinative.

II REVIEW OF A COMMON LAW RIGHT

Proceeding with our § 13 review, we must be mindful of the fact that it is not for the courts to determine the wisdom of legislation. The only provision for the court is one of power. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944). Justice Shores further stated in her concurring opinion in Fireman's Fund, supra :

"In short, the power of the legislature is plenary, except where limited by the constitution. Where legislation infringes upon a right protected by § 13, however, we are dealing with a limitation on the power of the legislature. By determining the validity of such legislation, we do not pass judgment on its wisdom, but follow our own supreme mandate to uphold the constitution of this state.

"When examining statutes...