Wint v. Alabama Eye & Tissue Bank
| Decision Date | 02 February 1996 |
| Parties | Gladys WINT v. ALABAMA EYE & TISSUE BANK. 1941309. |
| Court | Alabama Supreme Court |
Bob Sherling of Sherling, Browning & York, P.C., Mobile, for Appellant.
David A. Hamby, Jr. and Harry V. Satterwhite of Gillion, Brooks & Hamby, P.C., Mobile, for Appellee.
Gladys Wint appeals from a summary judgment entered for Alabama Eye & Tissue Bank, which was one of three defendants in an action alleging conversion and trespass to chattels.
On April 9, 1991, at approximately 10:35 a.m., Mrs. Wint's husband, Leroy Wint, Jr., died after having been admitted to Providence Hospital in Mobile. The supervising nurse on duty that morning approached Mrs. Wint shortly thereafter and asked her whether she would consider allowing Mr. Wint's body to be used for organ donations, specifically mentioning the possibility of donating Wint's eyes. She refused. The supervising nurse notified Alabama Eye & Tissue Bank of the refusal at approximately 11:00 a.m.
At approximately 3:00 p.m. that same day, Dr. Leland C. Edmonds, a Providence Hospital pathologist, performed an autopsy on the body of Leroy Wint at Providence Hospital. In his autopsy report, he wrote "Eyes have previously been collected by the Eye Bank." The body was then sent to the Radney Funeral Home in Saraland for embalming.
In July 1991, a copy of Dr. Edmonds's autopsy report was sent to the Wint family. The family noticed Edmonds's statement regarding the eyes and contacted Providence Hospital. The hospital administration informed the family that it had no records indicating that Mr. Wint's eyes had been removed and that Edmonds's statement was in error. After being asked by the hospital administration to review his notes from the Wint autopsy, Edmonds issued a statement indicating that his initial statement about the eyes was the result of an error in transcribing the autopsy report and that he believed Mr. Wint's eyes had not been removed when he examined the body.
Mr. Wint's body was exhumed on November 23, 1994, after Mrs. Wint had filed this action. Dr. Leroy Riddick, a state medical examiner, examined the body, finding that both eyes were absent and finding in the eye sockets only plastic eye caps used to support the eyelids. At his deposition, Dr. Riddick testified that the enucleation procedure performed on Mr. Wint's body did not seem to be consistent with the procedures normally followed in removing an organ donor's eyes. He stated (1) that cotton was not used to pack under the eye caps and (2) that none of the muscle or tendon tissue that connects the eye to the eye socket was left in the socket.
After reviewing Dr. Riddick's report from the exhumation, Dr. Edmonds again changed his story. He stated that he again believed that his initial statement that Mr. Wint's eyes had been removed, made at the time of the autopsy, was correct, but that his statement that the eye bank had taken the eyes was based merely upon an assumption.
On December 17, 1993, Gladys Wint sued Providence Hospital and Alabama Eye & Tissue Bank, alleging conversion and trespass to chattels. She settled her claims against Providence Hospital in 1994. On January 9, 1995, she amended her complaint to add Radney Funeral Home as a defendant.
Alabama Eye & Tissue Bank filed its initial motion for summary judgment on December 22, 1994, arguing a lack of substantial evidence to support the plaintiff's conversion and trespass to chattel claims against it. It supported its motion by an affidavit from Alabama Eye & Tissue Bank's vice president of operations and by excerpts from deposition testimony by various of the plaintiff's witnesses. 1 In January 1995, Alabama Eye & Tissue Bank filed a supplemental brief in support of its summary judgment motion, arguing that the plaintiff had filed her complaint beyond the two-year period allowed by Ala.Code 1975, § 6-2-38(n), for claims based upon the doctrine of respondeat superior. The trial judge granted the eye bank's summary judgment motion on April 5, 1995, citing no grounds for his decision. Gladys Wint appeals from the summary judgment.
This appeal presents two issues: (1) Whether the plaintiff presented substantial evidence tending to show that anyone associated with Alabama Eye & Tissue Bank took Leroy Wint's eyes against his family's wishes, and (2) whether Ala.Code 1975, § 6-2-38(n), which provides a two-year statute of limitations for respondeat superior actions, applies to bar the plaintiff's claims against Alabama Eye & Tissue Bank.
Because "[t]he difference between trespass to chattels and conversion is immaterial when there is a 'wrongful taking and carrying away of the property of another,' " there is no need to treat the trespass to chattels and conversion claims separately. Roberts and Cusimano, Alabama Tort Law Handbook, § 29.0, p. 598 (1990) (citing Roberson v. Harris, 45 Ala.App. 537, 233 So.2d 96 (1970)). In order to recover from Alabama Eye & Tissue Bank under either of her theories, Mrs. Wint must prove that someone from the eye bank took or carried away Leroy Wint's eyes.
Once Alabama Eye & Tissue Bank made a prima facie showing that none of its employees took or carried away Leroy Wint's eyes, "the burden shift[ed] to the nonmovant [Mrs. Wint] to produce 'substantial evidence' creating ... a [genuine] dispute" as to whether one of Alabama Eye & Tissue Bank's employees took or carried away the eyes. Mardis v. Ford Motor Credit Co., 642 So.2d 701, 704 (Ala.1994) (citing § 12-21-12, Ala.Code 1975; Bean v. Craig, 557 So.2d 1249, 1252 (Ala.1990)).
To rebut Alabama Eye & Tissue Bank's prima facie showing, Mrs. Wint proffered evidence indicating the following: (1) Alabama Eye & Tissue Bank was contacted by a nurse from Providence Hospital at 11:00 a.m. and informed of Leroy Wint's death and of the family's refusal to donate his eyes; (2) The hospital did not before the autopsy inform anyone outside the hospital of Mr. Wint's death, other than his family and the eye bank; (3) Leroy Wint's eyes were not present at 3:00 p.m. when the first autopsy was done, and Dr. Edmonds assumed that Alabama Eye & Tissue Bank had taken his eyes; (4) Alabama Eye & Tissue Bank is the only entity authorized to harvest donated eyes at Providence Hospital and is the only entity that does so in Alabama; (5) The enucleation procedure takes only 10 to 15 minutes and is usually done in the morgue, but occasionally is done in the deceased's hospital room; (6) Dr. Edmonds, under pressure, recanted his earlier statement that Mr. Wint's eyes were missing at the time of the initial autopsy, but, after the exhumation report confirmed that Mr. Wint's eyes had been taken, reaffirmed his original statement that Mr. Wint's eyes had been missing at the time of the autopsy.
In Smoyer v. Birmingham Area Chamber of Commerce, 517 So.2d 585 (Ala.1987), this Court upheld a summary judgment based upon the trial court's conclusion that the plaintiff had produced insufficient evidence of causation to support her negligence claim; this Court held: "Evidence that affords nothing more than a mere speculation, conjecture, or guess is completely insufficient to warrant the submission of a case to the jury." 517 So.2d at 588 (citing Sprayberry v. First National Bank, 465 So.2d 1111 (Ala.1984); Headrick v. United Insurance Co. of America, 279 Ala. 82, 181 So.2d 896 (1966)). Mrs. Wint's claims against Alabama Eye & Tissue Bank are based merely upon conjecture or guess.
After ample time to discover and search the records of Alabama Eye & Tissue Bank, Providence Hospital, and the American Red Cross, 2 the plaintiff had found no document connecting Alabama Eye & Tissue Bank with the disappearance of Mr. Wint's eyes. The plaintiff was unable to find records of any eye tissue collected by Alabama Eye & Tissue Bank that was not documented to have come from a legitimate donor. In fact, the plaintiff could not find any record showing that an eye bank employee was present anywhere in Providence Hospital on the day of Leroy Wint's death. 3 Even though the eyes must have been taken between 11:00 a.m. and 3:00 p.m. in a busy metropolitan hospital, the plaintiff failed to locate--and thus produced no testimony from--anyone who saw an Alabama Eye & Tissue Bank employee at Providence Hospital that day.
The plaintiff failed to produce "substantial evidence" tending to show that any employee of Alabama Eye & Tissue Bank was in any way connected...
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