Mallory By and Through Hocutt v. Hobbs Trailers
| Decision Date | 29 September 1989 |
| Citation | 554 So.2d 966 |
| Parties | Prod.Liab.Rep. (CCH) P 12,351 Heather MALLORY and Amy Mallory, By and Through their guardian, Truman H. HOCUTT v. HOBBS TRAILERS. Larry WALLACE; and Lee M. Creel, d/b/a Creel Trucking Company v. Heather MALLORY and Amy Mallory, By and Through their guardian, Truman H. HOCUTT. 87-810, 87-811. |
| Court | Alabama Supreme Court |
L. Andrew Hollis, David H. Marsh and Patricia F. Emens of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellants/cross-appellees Mallory.
Robert E. Parsons and David A. Lee of Parsons, Lee & Juliano, Birmingham, for appellants Wallace and Creel.
James B. Carlson of Rives & Peterson, Birmingham, for appellee Hobbs Trailers.
These appeals arise from a single wrongful death action brought by the dependent children of Arlene Elizabeth Mallory. Ms. Mallory was employed as a coal tester at Alabama Power Company's Gorgas Steam Plant. A 44-ton dump truck and trailer, while dumping a load of coal at the Gorgas facility, overturned on Ms. Mallory, fatally injuring her.
Heather and Amy Mallory, through their guardian, Truman H. Hocutt ("plaintiffs"), filed a wrongful death action. It was tried before a jury against four of the originally named defendants on various theories of liability: (1) against Larry Wallace, the driver of the coal truck, on claims of negligent and/or wanton misconduct in the maintenance and operation of the truck; (2) against Lee Creel, d/b/a Creel Trucking Each defendant filed a motion for a directed verdict at the close of the plaintiffs' evidence and again at the close of all the evidence. The motions were denied.
Company ("Creel"), on claims of negligent and/or wanton performance of his contract to transport coal to the Gorgas Steam Plant; (3) against Hobbs Trailers ("Hobbs"), a division of the Fruehauf Corporation, under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") (Ala.Code 1975, § 6-5-501 et seq.), on claims of negligent and/or wanton manufacture of the truck's trailer; and (4) against Thomas Welding and Repair, on claims of negligent and/or wanton performance of repair work done on the dump truck prior to the accident.
The jury returned a verdict for the plaintiffs and against defendants Wallace, Creel, and Hobbs, and awarded damages in the sum of $500,000. However, the jury found against the plaintiffs and in favor of defendant Thomas Welding and Repair. The trial court entered its judgment based on the jury's verdicts.
Defendants Wallace, Creel, and Hobbs filed motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court, in a written order, denied the motions of defendants Wallace and Creel, but granted defendant Hobbs's motion for JNOV. In that same order, the trial court, pursuant to Rule 50(c), A.R.Civ.P., conditionally granted Hobbs's motion for a new trial, in the event the order granting JNOV was reversed, on the following grounds: (1) That the plaintiffs had failed to prove that the trailer was in substantially the same condition at the time of the accident as it was when it left Hobbs's control; (2) that the plaintiffs had failed to prove that the trailer was being applied to its intended use at the time of the accident in question; and (3) that the plaintiffs' exhibits 15, 16, and 17 (all patents) were improperly admitted into evidence over proper objections by the defendant.
The plaintiffs appeal from the trial court's order granting the JNOV and, conditionally, a new trial to Hobbs. Wallace and Creel appeal from the judgment on the jury verdict in favor of the plaintiffs and from the order denying their post-judgment motions for JNOV and for new trial.
On February 7, 1984, Arlene Elizabeth Mallory, an employee of Alabama Power Company, was working as a coal tester at Alabama Power's Gorgas Steam Plant in Walker County. Ms. Mallory's job was to check the driver's dump-weight ticket and then to take three samples of coal from an incoming load to determine the quality of the coal. Coal testers stand alongside the rear of the truck while it is dumping the coal and use a shovel with a long handle to collect a sample at the beginning of the dumping process, a sample in the middle, and a sample at the end. 1
On the day of Ms. Mallory's death, two testers were working at the coal pile site, and two trucks came in at the same time. Ms. Mallory went to the truck of defendant Wallace and checked his dump-weight ticket. The testimony at trial established that Wallace transported a type of coal that often does not eject easily from a dump trailer.
Wallace parked his truck and started to lift the trailer, but stopped the lifting process, moved his truck, and then resumed the lifting process. 2 There was evidence at trial to show that Wallace's trailer, after he moved it and began to dump, was parked on a six-inch side-to-side slope on the coal ramp. A co-employee standing approximately 13 feet from Wallace's truck testified that he heard a cracking noise, felt the ground shake, and felt something hit his legs. He then realized that he was standing in coal up to his knees. Wallace's truck and trailer had overturned; Ms. Mallory's body was found under the trailer.
Plaintiffs' first contention on appeal is that the trial court erred in granting Hobbs's motion for a judgment notwithstanding the jury's verdict in favor of the plaintiffs and against Hobbs. We agree.
The post-judgment motion for JNOV requires the trial court to test the jury's verdict against the evidence (viewed in a light most favorable to the non-moving party), and to determine whether there was any credible evidence from which the jury could have drawn inferences to support the verdict. Casey v. Jones, 410 So.2d 5 (Ala.1981). On appeal, this Court determines the propriety of the trial court's ruling granting or denying a motion for JNOV by making "a purely objective determination of whether the party having the burden of proof has produced evidence requiring resolution by a jury." Ex parte Oliver, 532 So.2d 627, 628 (Ala.1988).
By granting Hobbs's motion for JNOV, the trial court held, in effect, that the plaintiffs had not produced any credible evidence in support of their claims of defects in the design of the trailer that overturned and killed Ms. Mallory. Our review of the evidence convinces us otherwise. The plaintiffs' expert, Daniel W. Smith, a mechanical engineer, testified that, in his opinion, the trailer was unreasonably dangerous because of its instability and resulting propensity to turn over, but that an anti-tipover device might have prevented this accident.
Smith acknowledged that there were several factors that could combine in varying degrees to cause a tipover, such as "sticky" or "wet" coal, putting the trailer into the dumping position while it is parked on a certain degree of ground slope, and cracks in the body or in the existing welds of the trailer--all of which were present here. Additionally, when asked to apportion the fault in causing this trailer to tip over, Smith stated that, in his opinion, the cracks in the trailer and its welds were 60-70% at fault and the design of the trailer itself was 30-40% at fault.
William Robertson, a mechanical engineer employed by Hobbs as an in-house design engineer, acknowledged that Hobbs knew of the tipover hazard involved with the design of this trailer. Robertson further testified that the Fruehauf Research and Development Department had focused specifically on the stability problem but that no studies regarding the stability problem, or efforts to cure it, had ever been undertaken by Hobbs. Robertson also stated that although Hobbs had evaluated an "outrigger" stabilizing device and had found that it improved trailer stability, Hobbs had rejected development or use of the device.
We reemphasize that we are testing the propriety of the trial court's order granting Hobbs's post-judgment motion for JNOV--a "sufficiency of the evidence" issue--and, therefore, that we must uphold the jury's verdict if there was any conflict in the evidence for the jury to resolve. Handley v. City of Birmingham, 475 So.2d 1185 (Ala.1985). Although certain portions of Smith's testimony were somewhat self-contradictory (to the extent that he later admitted that he was of the opinion that the design defects alone would not have caused this tipover), viewing the evidence in a light most favorable to the plaintiffs, we hold that the jury was presented with sufficient evidence to support a verdict of liability against Hobbs based on design defects.
Having so held, we turn to the plaintiffs' second argument on appeal: That the trial court erred in conditionally granting Hobbs's motion for a new trial in the event Hobbs's JNOV did not withstand appellate review.
In denying the post-judgment motions of Wallace and Creel and granting Hobbs's motion for JNOV, the trial court concluded its order by holding:
Unlike the "sufficiency of the evidence" standard that tests the propriety of the grant or denial of a motion for JNOV...
To continue reading
Request your trial
-
General Motors Corp. v. Jernigan
...with sufficient evidence to support a verdict of liability against [the defendant] based on design defects." Mallory v. Hobbs Trailers, 554 So.2d 966, 969 (Ala.1989). Based upon Dr. Burton's testimony, the jury reasonably could have concluded that the cause of Jeffrey's injuries was a colli......
-
Star Freight, Inc. v. Sheffield
...more subjective "palpably wrong, manifestly unjust" standard.' Casey v. Jones, 410 So.2d 5, 8 (Ala.1982)." See also Mallory v. Hobbs Trailers, 554 So.2d 966 (Ala.1989). Having reviewed the record, we conclude that the trial court did not err in denying Star Freight's motions for directed ve......
-
Ex parte Dolgen Corp.
...for that of the jury. Therefore, I respectfully dissent from the denial of this petition. MADDOX, J., concurs. 1 See Mallory v. Hobbs Trailers, 554 So.2d 966, 970 (Ala.1989); Dorton v. Landmark Dental Care, 577 So.2d 425, 428 (Ala.1991); Life Insurance Co. of Georgia v. Johnson, 684 So.2d 6......
-
Alabama Power Co. v. Williams
...776 (Ala.1988). On a motion for JNOV, the evidence must be viewed in a light most favorable to the non-moving party. Mallory v. Hobbs Trailers, 554 So.2d 966, 969 (Ala.1989). A directed verdict is proper only where there is a complete absence of proof 1 on an issue material to the claim or ......