Walker v. Capstone Bldg. Corp.

• Court: Alabama Court of Civil Appeals
• Citation: 96 So.3d 71
• Docket Number: 2081153.
• Parties: William WALKER v. CAPSTONE BUILDING CORPORATION.
• Decision Date: 26 March 2010

96 So.3d 71

William WALKER
v.
CAPSTONE BUILDING CORPORATION.

2081153.

Court of Civil Appeals of Alabama.

March 26, 2010.

Thomas M. Powell and Derrick A. Mills of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.

Stanley A. Cash and Joseph R. Duncan, Jr., of Huie, Fernambucq & Stewart, Birmingham, for appellee.

THOMPSON, Presiding Judge.

William “Toby” Walker appeals from a portion of a summary judgment entered by the Tuscaloosa Circuit Court in favor of Capstone Building Corporation (“Capstone”). For the reasons stated herein, we reverse that portion of the summary judgment from which Walker appeals, and we remand the cause for further proceedings.

Walker filed an action against Capstone and several fictitiously named parties on July 10, 2007. He alleged that Capstone had been the general contractor on a construction job on which he had worked. Walker alleged that, on July 12, 2005, while working at the construction site, he

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stepped on a manhole cover, which flipped over, causing him to fall partially into the manhole and causing him serious injury. He asserted that Capstone had been responsible for providing a safe work environment at the site but that it had failed in that responsibility. Walker alleged that Capstone previously had been made aware that the manhole cover that had flipped over was not properly secured and was unsafe because of a previous accident involving the same manhole cover. He alleged that Capstone's failure to properly secure the manhole cover constituted negligence or wantonness.

On April 20, 2009, Capstone filed a motion to dismiss or, in the alternative, for a summary judgment. It contended that the evidence developed during discovery demonstrated that the incident giving rise to Walker's action occurred on June 6, 2005, not on July 12, 2005, as alleged in the complaint. As a result, Capstone argued, Walker's claims alleging negligence and wantonness were barred by the two-year statute of limitations set forth in § 6–2–38, Ala.Code 1975. In support of its motion, Capstone submitted, among other things, the incident report generated as a result of the accident forming the basis of Walker's action, deposition excerpts, and affidavits. Walker filed a response to Capstone's motion in which he argued that there was a question of fact as to when the incident occurred and that, even if his negligence claim was barred by the applicable statute of limitations, his claim of wantonness was, he maintained, subject to a six-year statute of limitations that had not run at the time he filed his action.

On April 23, 2009, Walker filed an amended complaint in which he sought to add a claim alleging that Capstone had “committed trespass” against him with regard to its failure to maintain a safe work environment. Capstone argued in reply that Walker had filed his amended complaint less than 42 days before the first trial setting in the matter and had failed to obtain leave of court to do so as required by Rule 15, Ala. R. Civ. P. Thus, Capstone argued, Walker's amended complaint was due to be stricken.

On August 10, 2009, the trial court granted Capstone's motion and entered a summary judgment in its favor.¹ The trial court also found that Walker's attempt to amend his complaint was untimely and that he had not obtained leave to amend his complaint as required by Rule 15, Ala. R. Civ. P. After the trial court denied Walker's motion to alter, amend, or vacate the judgment, Walker filed a timely appeal to our supreme court, which transferred his appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.

Walker presents a single issue on appeal: What is the statute of limitations for a claim of wantonness? This is a purely legal question, which this court reviews de novo. See Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

Walker contends that the statute of limitations applicable to wantonness claims is set forth in § 6–2–34(1), Ala.Code 1975, which provides that “[a]ctions for any trespass to person or liberty, such as false imprisonment or assault and battery,” are subject to a six-year statute of limitations. He argues that, because it is undisputed

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that his action was filed within six years of the date on which he was allegedly injured, the trial court erred when it entered a summary judgment in favor of Capstone as to his wantonness claim.² In asserting that argument, Walker relies on our supreme court's decisions in McKenzie v. Killian, 887 So.2d 861 (Ala.2004), and Carr v. International Refining & Manufacturing Co., 13 So.3d 947 (Ala.2009) (plurality opinion).

In McKenzie, the plaintiff stopped her vehicle on an interstate highway while a previous vehicular accident was cleared. Two vehicles entering the interstate highway from an on-ramp collided with the plaintiff's stopped vehicle. The plaintiff sued the driver of one of the vehicles and several fictitiously named defendants, alleging claims of negligence and wantonness. The plaintiff later amended her complaint to substitute the driver of the other vehicle for one of the fictitiously named defendants.

The substituted defendant filed a motion for a summary judgment in which, among other things, he argued that because the plaintiff had not been ignorant of his identity, the claims against him did not relate back to the time the plaintiff had filed her action. Instead, he argued, the action was barred as to him because the plaintiff's negligence and wantonness claims were governed by a two-year statute of limitations, and the plaintiff had substituted him for a fictitiously named defendant more than two years after the accident giving rise to the plaintiff's action. The plaintiff responded that her wantonness claim was governed by the six-year statute of limitations applicable to claims of trespass to the person. The trial court entered a summary judgment in favor of the defendant.

On appeal, the supreme court determined that the plaintiff's wantonness claim was governed by the six-year statute of limitations applicable to claims of trespass to the person rather than a two-year statute of limitations. The court first resolved the difference between trespass, which is governed by the six-year statute of limitations, and trespass on the case, which is governed by a two-year statute of limitations. The court recognized that “[t]he distinction between trespass and trespass on the case has been a quagmire in Alabama jurisprudence for many years,” 887 So.2d at 866, and that there were two competing theories regarding the differentiation between those torts. On the one hand, many cases had held that a claim of trespass required the application of direct force to the plaintiff while a claim of trespass on the case required only an indirect application of force to the plaintiff. Id. at 867–69 (discussing Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973); and Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616 (1934)). On the other hand, many cases had implied, if not directly held, that the dividing line between the two torts was based not on the cause of the plaintiff's injury but on the defendant's intent in inflicting that injury; a willful infliction of injury constituted trespass while a negligent infliction of injury constituted trespass on...