Valley Bldg. & Supply, Inc. v. Lombus

CourtSupreme Court of Alabama
Citation590 So.2d 142
PartiesVALLEY BUILDING & SUPPLY, INC. v. Diane LOMBUS, as administratrix of the Estate of Johnny Lombus, deceased. 89-1788.
Decision Date28 June 1991

Page 142

590 So.2d 142
Diane LOMBUS, as administratrix of the Estate of Johnny Lombus, deceased.
Supreme Court of Alabama.
June 28, 1991.
On Return after Remand Nov. 22, 1991.

Page 143

John W. Clark, Jr. and David M. Wilson of Clark & Scott, Birmingham, for appellant.

Steven F. Casey of Balch & Bingham, Birmingham, R. Blake Lazenby of Wooten, Thornton, Carpenter, O'Brien & Lazenby, Talladega, for appellee.

MADDOX, Justice.

Valley Building and Supply, Inc. ("Valley"), appeals from a judgment entered on a jury verdict of $600,000 in favor of Diane Lombus ("Lombus"), as administratrix of the estate of Johnny Lombus, in a wrongful death action. Valley contends that the trial court erred in 1) denying Valley's motion for directed verdict as to the wantonness count, 2) denying Valley's motion for mistrial after the issue of insurance had been improperly injected into the case by Lombus, 3) failing to give the entire oral charge to the jury when the jury had asked to be reinstructed on the issues of negligence and wantonness, and 4) failing to grant Valley's motion for remittitur.

On December 16, 1988, an employee of Mitchell Transport, Inc., delivered a load of roofing material on an 18-wheel tractor-trailer rig to Valley at its business location on U.S. Highway 280 in Childersburg, Alabama. After unloading the roofing material, the driver asked Valley employees how he was to exit Valley's premises. He was told that Valley employees would stop the traffic on U.S. Highway 280, and that he would then be able to back into the highway.

In order to stop the traffic, Kyle Spates, an employee of Valley's, enlisted the aid of Eddie Lytton, a customer of Valley's. Neither was equipped with any type of warning devices in order to stop the traffic. Spates stopped at the edge of the highway, and Lytton proceeded down the highway. There was evidence that Lytton was to stop the traffic and then inform Spates when it was safe for the truck to back onto the highway; that Lytton signaled that it was safe, and that Spates then signaled the truck driver to back onto the highway. There was conflicting evidence, however, on this point, and one witness who was travelling on Highway 280 near the point of the collision testified that he "never saw anyone flagging traffic" and that "no one was stopping, no brakes lights or nothing." In any event, Johnny Lombus, who was traveling east on U.S. Highway 280, collided with the rear of the 18-wheel tractor-trailer rig and was killed instantly.

Ms. Lombus filed a wrongful death action against Valley, Mitchell Transport, Inc., and James Earl McHenry, alleging negligence and wantonness. Ms. Lombus entered into a pro tanto settlement with McHenry and Mitchell Transport during the trial, leaving Valley as the sole defendant.

Valley alleged that Mr. Lombus had been contributorily negligent in regard to the accident, and at trial, at the close of the plaintiff's evidence, Valley moved for a directed verdict on the wantonness claim. The motion was denied. Valley renewed the motion at the close of all of the evidence, and it was again denied. The jury returned a verdict in favor of Ms. Lombus in the amount of $600,000 and the trial court entered a judgment thereon. Valley filed a motion for a judgment notwithstanding the verdict, or, alternatively, for a new trial, or for remittitur. That motion was denied.

On appeal, Valley argues, among other things, that the trial court erred in submitting the wantonness claim to the jury. In reviewing the sufficiency of the evidence, we apply the "substantial evidence rule," because this action was filed after June 11, 1987. Ala.Code 1975, § 12-21-12; Koch v. State Farm Fire & Casualty Co., 565 So.2d 226 (Ala.1990) (in actions filed after June 11, 1987, a directed verdict for the defendant is proper when the plaintiff has

Page 144

failed to present "substantial evidence" as to each element of her cause of action); Robichaux v. AFBIC Development Co., 551 So.2d 1017 (Ala.1989).

What constitutes wanton misconduct depends on the facts presented in each particular case. South Central Bell Telephone Co. v. Branum, 568 So.2d 795 (Ala.1990); Central Alabama Electric Coop. v. Tapley, 546 So.2d 371 (Ala.1989); Brown v. Turner, 497 So.2d 1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, is not to be confused with negligence (i.e., mere inadvertence):

"Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury...."

510 So.2d at 145. See also Central Alabama Electric Coop. v. Tapley, supra, and South Central Bell Telephone Co. v. Branum, supra.

Valley argues that the only "act" that could be considered wanton would be the fact that Kyle Spates was aware that, if the truck was backed into the highway before the oncoming traffic was stopped, an accident could occur. At the time of the accident, it was "rush hour" in Childersburg. Nevertheless, Valley contends that Spates's acts, under the circumstances, were not wanton because Spates believed that all oncoming traffic had been stopped before the truck was backed into the highway. Ms. Lombus, on the other hand, argues that the evidence adduced at trial--that it was Kyle Spates's responsibility to stop the oncoming traffic, that he delegated this responsibility to a Valley customer, and that he failed to provide any warning devices to the customer to be used in stopping the traffic--was substantial evidence that Spates failed to determine that the oncoming traffic had been stopped before he directed the driver of the 18-wheel tractor-trailer rig to back into the highway. This, she argues, made with the knowledge that it was "rush hour" in Childersburg, constituted evidence to support a finding of wanton conduct.

Ms. Lombus contends that the facts in this case are more egregious than those in Bishop v. Poore, 475 So.2d 486 (Ala.1985), in which this Court found the facts were sufficient to support a claim of wantonness. In that case, the defendant, after stopping at a stop sign at the exit from a parking lot, drove across two northbound lanes of traffic to enter the southbound lane of traffic. The plaintiff was proceeding north on a motorcycle, and the vehicles collided, causing injury to the plaintiff and damage to his motorcycle. A majority of this Court held that there was a scintilla of evidence that permitted an inference that the defendant had failed to look in the direction of the plaintiff, and that that failure could be regarded as reckless indifference to the consequences with knowledge that such an omission could likely result in injury to another. Bishop v. Poore, supra; Whaley v. Lawing, 352 So.2d 1090, 1092...

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