Pollock v. Girl Scouts of S. Ala., Inc.

• Decision Date: 27 February 2015
• Docket Number: 2130538.
• Citation: 176 So.3d 222
• Parties: Dana Louise POLLOCK v. GIRL SCOUTS OF SOUTHERN ALABAMA, INC.
• Court: Alabama Court of Civil Appeals

176 So.3d 222

Dana Louise POLLOCK

v.GIRL SCOUTS OF SOUTHERN ALABAMA, INC.

2130538.

Court of Civil Appeals of Alabama.

Feb. 27, 2015.

Eaton G. Barnardand L. Blade Thompson of Eaton G. Barnard, P.C., Mobile, for appellant.

Helen J. Alfordand Kristy W. Dugan of Alford Bolin, LLC, Mobile, for appellee.

Opinion

DONALDSON, Judge.

In order for an injured employee to be entitled to receive compensation under the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala.Code 1975(“the Act”), the injury must arise out of and in the course of employment with the employer. See § 25–5–1(8), Ala.Code 1975. In this case, Dana Louise Pollock appeals from a summary judgment entered in favor of her employer, Girl Scouts of Southern Alabama, Inc. (“GSSA”), by the Mobile Circuit Court (“the trial court”) denying Pollock benefits she claimed under the Act. The trial court concluded, as a matter of law, that Pollock's injury resulting from a horseback ride did not arise out of or occur in the course of her employment with GSSA. We affirm the trial court's judgment.

Facts and Procedural History

On June 12, 2013, Pollock filed a complaint in the trial court seeking compensation and benefits under the Act. Pollock claimed that on June 29, 2011, she was employed by GSSA and suffered an injury to her back while she and other employees of GSSA were horseback riding at Camp Scoutshire Woods (hereinafter sometimes referred to as “the camp”), a summer camp located in Citronelle and operated by GSSA. GSSA filed an answer on July 1, 2013, denying that Pollock's injury was compensable on various grounds, including that Pollock's injury did not arise out of and in the course of her employment with GSSA. GSSA filed a motion to bifurcate the trial to first resolve the dispute as to the compensability of Pollock's injuries, to be followed if necessary by a trial on any remaining issues. The trial court granted that motion.

On January 6, 2014, GSSA filed a motion for a summary judgment as to the compensability of Pollock's injuries under the Act and a brief in support thereof. In further support of the motion, GSSA submitted interrogatory responses and excerpts from a deposition of Pollock and affidavits of Liz Brent, the chief executive officer of GSSA; Anna Marie Phelps, the director of the camp; Sally McGough, the horse director of the camp; and Kirsten Robinson, a GSSA employee who worked at the camp. On January 28, 2014, Pollock filed a response to the motion for a summary judgment, to which she attached excerpts from her deposition and her own sworn affidavit executed on January 27, 2014. On February 3, 2014, GSSA filed a motion to strike portions of Pollock's affidavit on the grounds that certain statements in her affidavit contradicted her sworn deposition testimony and that the affidavit was based, in part, on hearsay. On the same day, GSSA also filed an objection to Pollock's response to GSSA's motion for a summary judgment on the basis that Pollock's response relied on her allegedly improper affidavit. Pollock did not file a response to GSSA's motion to strike or to GSSA's objection.

The submissions of the parties on the motion for a summary judgment reveal the following undisputed facts. Pollock was employed by GSSA as the business manager of the camp and as the assistant to Phelps, the director of the camp. The GSSA holds a six-week program for Girl Scouts at the camp each summer. Pollock had worked at the camp since 2002. At the end of each summer, Pollock's employment would terminate. Typically, Pollock would reapply for employment the following year and would be rehired.

In 2011, there were 10 horses at the camp. As the camp's horse director, McGough, a GSSA employee, managed horseback-riding activities for campers and maintained the horses. She had no supervisory or managerial oversight of Pollock. Pollock's responsibilities at the camp did not involve horseback-riding activities, although she testified in her deposition that she would occasionally assist McGough by feeding, grooming, or putting out hay for the horses.

At the beginning of every camp season, McGough would organize a horseback ride for camp staff for the purpose of evaluating the horses. Pollock had participated in that ride in previous years, but she did not participate in 2011. Staff members who attend this ride did so on a voluntary basis. Similarly, at the end of every camp season, McGough would organize a second ride for camp staff. The second staff horseback ride was not part of any staff member's job duties and was not conducted to evaluate the horses. Participation in the ride was voluntary and not required by GSSA. GSSA did not derive a benefit from the second staff ride, and the ride was not a part of the staff's compensation, i.e., the ride was not a reward for the staff members' work performance during the camp session.

On June 29, 2011, McGough invited Pollock to participate in the end-of-camp-season horseback ride with other GSSA employees at the camp. Pollock asked for and received permission to go on the ride from Phelps, Pollock's immediate supervisor. Phelps testified that she questioned Pollock concerning whether it was advisable for her to participate because Phelps was aware of back injuries Pollock previously had experienced. A total of four staff members, including Pollock and McGough, voluntarily participated in the ride. During the ride, the horse on which Pollock was riding bolted unexpectedly. Pollock was thrown into the air and then collided with the horse. She heard a pop and felt an intense pain. Pollock was transported by ambulance to the University of South Alabama Medical Center, where she was treated and released. Pollock was diagnosed with a T11 compression fracture

and other spinal injuries and continues to experience chronic pain.

On February 7, 2014, the trial court held a hearing on the motion for a summary judgment filed by GSSA. A transcript of that hearing is not in the record. On February 18, 2014, the trial court entered a summary judgment in favor of GSSA and an order granting GSSA's motion to strike Pollock's affidavit. In its judgment, the trial court determined that Pollock's injury occurred while she was engaged in the voluntary activity of horseback riding, which was unrelated to her job duties as business manager and assistant to the camp director. The trial court concluded that Pollock's injuries did not arise out of or in the course of her employment with GSSA. Pollock did not file a postjudgment motion to alter, amend, or vacate the summary judgment. Pollock filed a timely notice of appeal to this court on March 31, 2014.

Discussion

I. GSSA's Motion to Strike Pollock's Affidavit

Pollock first contends that the trial court exceeded its discretion in striking the affidavit of Pollock. Pollock argues that, although a party is not allowed to directly contradict prior sworn testimony to avoid the entry of a summary judgment, see Continental Eagle Corp. v. Mokrzycki,611 So.2d 313, 317 (Ala.1992)(citing Doe v. Swift,570 So.2d 1209, 1214 (Ala.1990)), a party is permitted to submit, pursuant to Rule 56(e), “ ‘a subsequent affidavit merely to clarify his or her answers to ambiguous questions asked by counsel during a deposition or other prior sworn proceeding or to supply information not necessarily sought by questions asked at the deposition or other prior sworn proceeding [and that] the trial court should consider the subsequent affidavit.’ ” Sartin v. Madden,955 So.2d 1024, 1030 (Ala.Civ.App.2006)(quoting Wilson v. Teng,786 So.2d 485, 497 (Ala.2000)).

GSSA moved to strike portions of Pollock's affidavit on the grounds that it contradicted her deposition testimony and that it contained hearsay. The trial court did not specify the ground on which it granted the motion. Pollock did not respond to GSSA's motion to strike portions of her affidavit, nor did she respond to GSSA's objection to her response to the motion for a summary judgment. She did not file a postjudgment motion to raise her objections to the trial court's granting GSSA's motion to strike. Therefore, Pollock's arguments as to this issue have not been adequately preserved because she has raised them for the first time on appeal. “ ‘ “Our review is limited to the issues that were before the trial court—an issue raised on appeal must have first been presented to and ruled on by the trial court.” ’ ” Cashion v. Torbert,881 So.2d 408, 413 (Ala.2003)(quoting Ex parte Weaver,871 So.2d 820, 823 (Ala.2003), quoting in turn Norman v. Bozeman,605 So.2d 1210, 1214 (Ala.1992)).

II. Arising out of and in the Course of Employment

Pollock argues that the summary judgment was not proper insofar as it was based on the determination that her injuries did not arise out of and in the course of her employment with GSSA.

“With regard to the standard for reviewing a summary judgment, this court has stated:

“ ‘ “We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc.,564 So.2d 412 (Ala.1990). If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant's prima facie showing by “substantial evidence.” ’ Lee v. City of Gadsden,592 So.2d 1036, 1038 (Ala.1992).” '

“Barrett v. Lee Brass Co.,883 So.2d 227, 228 (Ala.Civ.App.2003)(quoting Bailey v. R.E. Garrison Trucking Co.,834 So.2d 122, 123 (Ala.Civ.App.2002)).”

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