Neal v. Sem Ray Inc.

• Citation: 68 So.3d 194
• Decision Date: 11 February 2011
• Docket Number: 2091068.
• Parties: Tina NEALv.SEM RAY, INC., and Ronder Stringer.
• Court: Alabama Court of Civil Appeals

68 So.3d 194

Tina NEAL

v.SEM RAY, INC., and Ronder Stringer.

2091068.

Court of Civil Appeals of Alabama.

Feb. 11, 2011.

Anthony E. Ifediba and Adedapo T. Agboola of The Ifediba Law Group, Birmingham, for appellant.S. Anthony Higgins of Holtsford Gilliland Higgins Hitson & Howard, P.C., Montgomery, for appellees.BRYAN, Judge.

Tina Neal, the plaintiff below, appeals from a partial summary judgment in favor of Sem Ray, Inc. (“Sem Ray”), and Ronder Stringer, two of the defendants below, with respect to Neal's claim of negligence in the operation of a dump truck. We affirm.

The following facts are undisputed. Stringer and Neal are cousins. Stringer is employed by Sem Ray as a dump-truck driver. On July 21, 2008, Stringer telephoned Neal's mother and asked her to ride with Stringer on a trip to deliver a load of gravel to a job site in Atmore; however, Neal's mother could not ride with Stringer due to a prior engagement. Consequently, Stringer asked Neal to ride with her and keep her company. Initially, Neal did not want to go; however, Neal's mother asked Neal to ride with Stringer because Neal's mother could not go, and Neal agreed to go. The next day, Stringer picked up Neal in Troy at 3:30 a.m., and they headed to Atmore. En route to Atmore, the dump truck turned over, and Neal was injured.

On December 19, 2008, Neal sued Stringer, Sem Ray, and First Continental Leasing,¹ stating claims of negligence and wantonness in the operation of the dump truck against all the defendants; claims of negligence and wantonness in the hiring, training, and supervision of Stringer against Sem Ray and First Continental Leasing; claims of negligence and wantonness in the entrustment of the dump truck to Stringer against Sem Ray and First Continental Leasing; and claims of negligence and wantonness jointly and severally against Stringer, Sem Ray, First Continental Leasing, and fictitiously named parties.

Answering, Stringer, Sem Ray, and First Continental Leasing denied liability and, as an affirmative defense, asserted that they were not liable with respect to Neal's negligence claims because, they said, Neal was a guest in the dump truck within the meaning of the Alabama Guest Statute, § 32–1–2, Ala.Code 1975, when she was injured.² Subsequently, Stringer, Sem Ray, and First Continental Leasing moved for a summary judgment, which Neal opposed.

Following a hearing, the trial court entered an order denying the summary-judgment motion with respect to the claim of wantonness in the operation of the dump truck against Stringer and granting the summary-judgment motion with respect to all Neal's other claims. The trial court did not certify the partial summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., and it subsequently conducted a jury trial with respect to Neal's claim of wantonness in the operation of the dump truck against Stringer. The jury returned a verdict in favor of Stringer with respect to that claim, and the trial court entered a judgment on that jury verdict. Thereafter, Neal timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.

In her brief to this court, Neal argues and cites authority only with respect to her claim of negligence in the operation of the dump truck against Stringer and Sem Ray. In Tucker v. Cullman–Jefferson Counties Gas District, 864 So.2d 317, 319 (Ala.2003), the supreme court stated:

“In his brief to this Court Tucker argues and cites authority only with respect to the summary judgment on his breach-of-contract claim; he never expresses disagreement with the dismissal of his fraud claim or the summary judgment as to his claim alleging ‘other wrongful conduct.’ Apparently, he has elected not to pursue those claims. ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985).’ Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988). Accordingly, we treat the fraud claim and the claim alleging ‘other wrongful conduct’ as having been abandoned by Tucker, and we affirm the judgments as to those claims. Thus, we address only the propriety of the summary judgment on the breach-of-contract claim.”

864 So.2d at 319.

Accordingly, in the case now before us, due to Neal's failure to present argument and to cite authority regarding any of her claims other than her claim of negligence in the operation of the dump truck against Stringer and Sem Ray, we treat all of her claims other than her claim of negligence in the operation of the dump truck against Stringer and Sem Ray as having been abandoned by Neal, and we affirm the judgments with respect to all of those claims. Thus, we will consider only the propriety of the partial summary judgment with respect to Neal's claim of negligence in the operation of the dump truck against Stringer and Sem Ray. See Tucker.

Our review of the partial summary judgment with respect to Neal's claim of negligence in the operation of the dump truck against Stringer and Sem Ray is governed by the following principles:

“This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952–53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala.1989); Ala.Code 1975, § 12–21–12. ‘[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038–39 (Ala.2004).

Citing Cash v. Caldwell, 603 So.2d 1001 (Ala.1992), Neal argues that the evidence established a genuine issue of material fact regarding whether she was a guest in the dump truck operated by Stringer within the meaning of the Alabama Guest Statute because, she says, the evidence established that she accompanied Stringer at the instance of Stringer for a purpose that benefited Stringer on a trip that was solely for the benefit of Stringer and Sem Ray. In Cash v. Caldwell, the supreme court summarized the facts and the procedural history pertinent to the Cashes' negligence claim against Caldwell:

“In April 1988, Evelyn and Richard Cash left their home in California for a trip of several weeks across the country in their mobile home. They planned to stop in Birmingham to see Richard's sister, Mary Cash Caldwell, and his mother, Mrs. Sweatt, who was ill. While the Cashes were in Texas, Richard telephoned Mary, and she asked them to come to Birmingham because their mother's condition was deteriorating and she needed help.

“On April 18, 1988, Evelyn drove with Mary to take Mrs. Sweatt to see her physician in Birmingham. The doctor admitted Mrs. Sweatt to the hospital immediately. Mary and Evelyn returned home to retrieve Mrs. Sweatt's personal belongings. That evening Mary, Evelyn, and Richard returned to the hospital to see Mrs. Sweatt.

“The three left the hospital in Mary's automobile, just as it was beginning to rain. Mary was driving, Richard was in the right front seat, and Evelyn was in the right back seat. All three were wearing seat belts. It began raining very hard, and soon there was three to four inches of water on the road. As Mary began to make a sharp left turn, the car went into a counterclockwise spin and hit a telephone pole. Evelyn was seriously injured when her side of the car was crushed as it hit the telephone pole. On April 16, 1990, Evelyn and Richard sued Mary; Evelyn sought damages based on her personal injuries arising out of the accident, and Richard sought damages based on an alleged loss of consortium.

“On December 16, 1991, Mary moved for a summary judgment, claiming that Evelyn was a guest in the car and was therefore barred from suing her, as the automobile driver, under § 32–1–2, Code of Alabama 1975. The trial judge concluded ... that both Evelyn and Richard were ‘guests' in Mary's car, so, as a matter of law, under § 32–1–2, they could have no recovery based on negligence....”

603 So.2d at 1002. Reversing the summary judgment with respect to Evelyn and Richard's negligence claim, the supreme court stated:

“We must determine whether the trial court erred in holding that the Cashes were ‘guests' as a matter of law. The Cashes contend that they were ‘passengers,’ and thus are not barred from suing under the Alabama Guest Statute, § 32–1–2. They argue further that if the legislature had intended to limit liability in family relationships in all situations, it would have so provided in the Guest Statute.

“....

“The statute does not define the word ‘guest’; therefore, we must look to case law. In Wagnon v. Patterson, 260 Ala. 297, 303, 70 So.2d 244 (1954), this Court stated as follows:

“ ‘ “The general rule is that if the transportation of a rider confers a benefit only on the person to whom the...