2014 USLAW Retail Compendium of Law

STATE OF ALABAMA RETAIL COMPENDIUM

OF LAW

Prepared by Thomas S. Thornton, III

Carr Allison 100 Vestavia Parkway Birmingham, AL 35216 Phone: (205) 822-2006

Email: tthornton@carrallison.com Web Site: carrallison.com

1

Retail, Restaurant, and Hospitality

Guide to Alabama Premises Liability

Introduction 2

A. The Alabama State Court System 2 B. Alabama Federal Courts 2

Negligence 3

A. General Negligence Principles 3 B. Elements of a Premises Liability Action 3 C. The “Out of Possession Landlord” 4

Examples of Retail/Premises Liability Claims 5

A. “Slip and Fall” Type Cases 5 B. Liability for Violent Crime 6 C. Claims Arising From the “Prevention of Thefts” 7 D. Food Poisoning 11 E. Defenses 12

Indemnification and Insurance-Procurement Agreements 14

A. Indemnification 14 B. Joint and Several Liability 14 C. Insurance Procurement Agreements 15 D. The Duty to Defend 15

Damages in Premises Liability Cases 16

A. Compensatory Damages 16 B. Punitive Damages 16 C. Wrongful Death 17

2

INTRODUCTION

A. The Alabama State Court System The Alabama court system includes the Alabama Supreme Court, which is the appellate court of last resort in Alabama, as well as the Court of Civil Appeals, an intermediate appellate court with original jurisdiction over a set category of cases, and the Court of Criminal Appeals, the intermediate court of appeals for criminal cases. Alabama’s sixty-seven counties are divided into 40 judicial circuits.1Each circuit includes one or more counties. These circuits are the trial courts for the state, including Circuit Court (Civil and Criminal), District Court (Civil and Criminal), and Probate Court.2 District Court has jurisdiction over civil matters with a value of $10,000.00 or less.3 All trials in District Court are non-jury. Circuit Courts have concurrent jurisdiction over civil matters valued from $3000.00 to $10,000.00, and exclusive jurisdiction over all civil matters with a value of more than $10,000.004. Alabama has its own Rules of Civil Procedure, which were adopted by Order of the Alabama Supreme Court on January 3, 1973, and became effective July 3, 1973. However, “[d]ue to the similarity between the Alabama Rules and the Federal Rules, a presumption arises that cases construing the Federal Rules are authority for construction of the Alabama Rules.”5 B. Alabama Federal Courts There are three Federal Court districts in the State of Alabama. The Northern, Middle, and Southern districts make up the State’s Federal Courts. The Northern District is comprised of counties in the Northern half of the state, while the southern half of the state is comprised of the Southern District, which covers the southwestern part of the state, and the Middle District, which covers the Southeastern part of the state.

1 http://www.alacourt.gov/JudicialCircuits.aspx

2 http://judicial.alabama.gov/chart_judicial.cfm (last visited May 19, 2014).

3 Code of Ala., § 12-12-30.

4 Code of Ala., § 12-11-30(a).

5 Ex parte Scott, 414 So. 2d 939, 941 (Ala. 1982).

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NEGLIGENCE

A. General Negligence Principles By definition, negligence is the “failure to do what an ordinarily prudent person would have done under the circumstances, or the doing of that which an ordinarily prudent person would not have done."6 In the context of premises liability, the owner of a premises “owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger may be avoided.”7 In Alabama, contributory negligence serves as a complete bar to recover for simple negligence; however, it is not a defense to acts of wantonness or willfulness.8 Contributory negligence is defined as negligence on the part of the plaintiff that proximately contributes to his or her injury.9 Contributory negligence must be pleaded as an affirmative defense and the defendant carries the burden of proof.10 In an effort to temper the harsh effects of contributory negligence, Alabama has adopted the “sudden emergency” and “last clear chance” doctrines. Under the sudden emergency doctrine, a person who, without fault of his own, is faced with a sudden emergency is held to the standard of care of a reasonably prudent person under the same or similar circumstances.11 The “last clear chance” doctrine (also known as subsequent negligence) permits recovery when the plaintiff was in a perilous position and the defendant, armed with knowledge of said peril, “failed to use reasonable and ordinary care in avoiding the accident” causing injury to the plaintiff.12 Negligence claims have a two year statute of limitations.13 B. Elements of a Premises Liability Action “In a premises-liability case, the elements of negligence are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.”14

6 Alabama C., G. & A. R.R. v. Bullard, 157 Ala. 618 (Ala. 1908).

7 Armstrong v. Georgia Marble Co., 575 So. 2d 1051 (Ala. 1991).

8 Golden v. McCurry, 392 So. 2d 815, 817 (Ala. 1980).

9 Cooper v. Bishop Freeman Co., 495 So. 2d 559, 569 (Ala. 1986) overruled on other grounds.

10 Aplin v. Tew, 839 So. 2d 635, 635 (Ala. 2002).

11 Bettis v. Thornton, 662 So. 2d 256, 257 (Ala. 1995).

12 Baker v. Helms, 527 So. 2d 1241,1244 (Ala. 1998).

13 Code of Ala., § 6-2-38(l).

14 Ex parte Harold L. Martin Distrib. Co., 769 So. 2d 313, 314 (Ala. 2000).

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“Slip and fall” cases are the most recognizable form of premises liability actions. Alabama law places more stringent requirements on a plaintiff in a slip and fall case. For instance, a plaintiff in a slip and fall action must make a prima facie case that the foreign substance caused the fall and that the owner of the premises had notice or should have had notice at the time the accident occurred.

“Actual or constructive notice of the presence of the substance must be proven before [the storekeeper] can be held responsible for the injury. Furthermore, the plaintiffs must prove (1) the substance slipped upon had been on the floor a sufficient length of time to impute constructive notice to [the storekeeper]; or (2) that [the storekeeper] had actual notice that the substance was on the floor; or (3) that [the storekeeper] was delinquent in not discovering and removing the substance.”15

Premises liability law in Alabama treats plaintiffs bringing claims alleging “defective premises” more favorably than those bringing claims involving foreign substances. In defective premises claims, a plaintiff must only show that the defect caused the plaintiff’s injury.

“[I]n cases where the alleged defect is a part of the premises . . . once a plaintiff has made a prima facie showing that a defect in a part of the premises has caused an injury, then the question whether the defendant had actual or constructive notice of the defect will go to the jury regardless of whether the plaintiff makes a prima facie showing that the defendant had or should have had notice of the defect at the time of the accident.”16

C. The “Out of Possession Landlord” Alabama caselaw has indicated that the “landlord is not liable in tort for injuries . . . unless the defects existed at the time of the letting, were known to him, and which he concealed from the tenant.”17 Furthermore, the Alabama Supreme Court has held that “a landlord cannot be liable to a tenant, his family, servants or guests for injuries caused by virtue of defects in the rented premises unless the defects were in existence at the time of the letting and were known to the landlord, and concealed from the tenant.”18 Absent knowledge of the defect before or at the time of leasing the property, a landlord who leases his premises to another party cannot be held liable for injuries to third parties or strangers occurring on the property as a result of a defect.19

15

East v. Wal-Mart Stores, Inc., 577 So. 2d 459, 460-61 (Ala. 1991). 16

Mims v. Jack’s Restaurant, 565 So. 2d 609, 610 (Ala. 1990) (See also Miller v. Liberty Park Joint Venture, LLC, 84 So. 3d 88, 92 (Ala. Civ. App. 2011). 17

Allen v. Stephens, 875 So. 2d 1207, 1211 (Ala. Civ. App. 2003). 18

Cohran v. Boothby Reality Co., 379 So. 2d 561, 563-64 (Ala. 1980). 19

Fowler v. CEC Entm’t, 921 So. 2d 428, 434 (Ala. Civ. App. 2005).

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EXAMPLES OF RETAIL/PREMISES LIABILITY CLAIMS

A. “Slip and Fall” Type Cases “Slip and Fall” type cases are among the most common types of premises liability actions. They come in a variety of forms, including; failure to maintain the safety of carpeting, flooring, or other walking surfaces, failure to provide adequate signage indicating a slippery or dangerous condition, damaged walking surfaces or stairwells, and inadequate lighting, among others. 1. Foreign Substance: The burden of showing negligence in a “slip and fall” case in which the injury occurred as a result of a foreign substance rests with the plaintiff.

“It is necessary for the plaintiff to prove: (a) that the foreign substance slipped upon was on the floor a sufficient length of time to impute constructive notice of the defendant, or (b) that the defendant had actual notice of the substance’s presence on the floor, or (c) that the defendant was delinquent in not discovering and removing the foreign substance. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in maintenance of its floors.”20

Constructive notice is established when the “evidence shows that the hazard has existed on the premises for such a length of time that a reasonably prudent storekeeper would have discovered and removed it. Direct evidence of the length of time the offending substance has remained on the floor is not required.”21 Constructive notice can be established by the plaintiff by presenting “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.”22 Actual notice is established when the evidence shows that the defendant had actual knowledge of the dangerous condition that caused the injury, yet failed to act on that knowledge. A plaintiff must show that the defendant or its agents had actual knowledge of the presence of a foreign substance in order to prove actual notice.23 2. Defective Premises

20

Hale v. Kroger Ltd. P’ship I, 28 So. 3d 772, 779 (Ala. Civ. App. 2009). 21

Id. 22

Id. at 782 23

See Perry v. Macon County Greyhound Park, Inc. 514 So. 2d 1280, 1282 (Ala. 1987).

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Generally, an invitee must not only show that he was injured as the result of a defective condition on the owner’s premises, but also that the owner knew or should have known of the defective condition.24 However, a showing of actual or constructive knowledge is not required at the summary judgment stage in some circumstances. For instance;

“in cases where the alleged defect is a part of the premises, once a plaintiff has made a prima facie showing that a defect in a part of the premises has caused an injury, then the question of whether the defendant had actual or constructive notice of the defect will go to the jury, regardless of whether the plaintiff makes a prima facie showing that the defendant had or should have had notice of the defect at the time of the accident.”25

This exception also applies “when the premises owner has failed to perform a reasonable inspection or maintenance of the premises to discover and remedy the defective condition.”26 The exception does not relieve the plaintiff of his duty to present substantial evidence that an actual defect did in fact exist and caused the injury at the summary judgment stage.27 3. Snow and Ice (Weather Related Falls) Although “slip and fall” cases involving snow and ice may not be as common in Alabama as they are in other parts of the country, Alabama law does address them. A landowner is not liable to invitees for harm caused to them by any condition on the land whose danger is known or obvious to them. Under circumstances when snow and ice are on the ground and visible, Alabama courts have held that a reasonable person would be expected to realize that a sidewalk covered with ice and snow would naturally be slippery.28 In some instances, snow may be brought into premises on the shoes and clothing of customers. A fall inside an invitor’s premises caused by snow is distinguishable from a fall resulting from some other foreign object as is usual in a slip and fall case. A defendant owes a plaintiff no duty to keep a force of moppers to clear the floor of snow brought in by incoming customers. When the weather creates a natural hazard, such as a snow or ice storm, a person of ordinary care is not under a duty to keep a floor in a public place completely free of such deposits.29 B. Liability for Criminal Acts by a Third Party Alabama courts have retained the general rules that absent a special relationship or special circumstances, a person has no duty to protect another from the criminal acts

24

Miller v. Liberty Park Joint Venture, LLC, 84 So. 3d 88, 92 (Ala. Civ. App. 2011). 25

Id (emphasis added). 26

Id. 27

Id. at 93. 28

See Hartzog v. Compass Bank, 686 So. 2d 325, 327 (Ala. Civ. App. 1996). 29

Gulas v. Ratliff, 283 Ala. 299, 302 (Ala. 1968).

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of a third person.30 However, an exception to the general rule has been recognized in Alabama where the particular criminal conduct is foreseeable.31 “[A] duty may be imposed on a store owner to take reasonable precautions to protect invitees from criminal attack in the exceptional case where the store owner possessed actual or constructive knowledge that criminal activity which could endanger an invitee was a probability.”32 The Supreme Court has recognized that it is difficult to impose such a duty.33 Alabama courts have also refused to impose liability on premises owners for the criminal acts of third parties based on the usual absence of proximate cause. It is the independent, intervening criminal act that is generally the proximate cause of a plaintiff’s injuries and not any action or inaction on the part of the premises owner.34 An injury must be the natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. The key here is foreseeability.

“This court has held many times that a person, who by some act or omission sets in motion a series of events, is not responsible for consequences of intervention of another agency, unless at the time of his original act or omission, the act of the intervening agency would reasonably be foreseen. If the injury results from an independent intervening, efficient cause, not reasonably foreseeable, the original negligent act or omission is not the proximate cause of injury.”35

In Alabama, the courts have imposed an objective standard with regard to the test of foreseeability in the context of third party criminal acts. The courts will look to the number and frequency of prior criminal acts in the area where the injury occurred to determine whether a particular criminal act was reasonably foreseeable. The number and frequency of prior criminal acts are objective, verifiable criteria. When the number and frequency of the crimes on the premises or the area surrounding the premises rises, and notice is shown on the part of the owner, then, and only then, would criminal activity become reasonably foreseeable, thereby imposing a duty on the owner of the premises.36 C. Claims Arising From the “Prevention of Thefts” A substantial problem faced by retailers is shoplifting by non-employees. In addition to the negative impact shoplifting poses on costs, shoplifting presents merchants with another issue. Suits from accused shoplifters are common when retailers attempt to prevent a perceived shoplifting attempt by a customer. Lawsuits for assault,

30

Broadus v. Chevron USA, 677 So. 2d 199, 202 (Ala. 1996). 31

Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1371 (Ala. 1986). 32

Ortell v. Spencer Companies, 477 So. 2d at 299 (Ala. 1985). 33

Baptist Mem. Hosp. v. Gosa, 686 So. 2d 1147, 1150 (Ala. 1996). 34

Id. 35

Id. 36

Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1372-73 (Ala. 1986).

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battery, wrongful detention, false imprisonment/arrest, malicious prosecution and defamation, along with punitive damage claims are common in these instances. 1. False Arrest and Imprisonment Alabama law holds that a merchant or a merchant’s employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person may take that person into custody and detain him in a reasonable manner for a reasonable length of time, without being civilly liable for false arrest or false imprisonment.37 Additionally, neither the merchant nor the employee of the merchant may be held civilly liable for causing the arrest if the merchant or the employee of the merchant has probable cause for believing that the person arrested committed larceny of the goods held for sale.38 As indicated by Ala. Code § 15-10-14(a) and (c), merchants and their employee’s are immune from civil liability for false imprisonment or false arrest so long as they have probable cause to suspect a customer of shoplifting and acted reasonably in any detention. The existence of probable cause in the false arrest context is a jury question.39 False imprisonment claims have a six year statute of limitations.40 2. Malicious Prosecution Alabama law does not view malicious prosecution actions favorably. “Public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge.”41 A cause of action for malicious prosecution requires that the following elements be met: (1) that a judicial proceeding was initiated by the merchant (or owner of the premises) against the alleged shoplifter; (2) that it was initiated without probable cause; (3) that it was instituted maliciously; (4) that it was terminated in favor of the alleged shoplifter; and (5) that the alleged shoplifter suffered damage.42 As used in malicious prosecution actions, the term “probable cause” is defined as such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest strong suspicion that the person arrested is guilty.43 Furthermore, a desire for revenge or ill will is not essential to the existence of malice.44 The question asked by the court is not whether the malicious prosecution plaintiff was guilty of the thing charged, but whether the malicious prosecution defendant acted in good faith on the appearance of things.45 The test that an appellate court must apply when reviewing the lack-of-probable-cause element in a malicious prosecution case in which summary judgment has been granted to a defendant is as follows:

37

Phillips v. K-Mart Corp., 682 So. 2d 1390, 1392 (Ala. Civ. App. 1996) Citing Code of Ala., § 15-10-14(a). 38

Code of Ala., § 15-10-14(c). 39

Frison v. Delchamps Store No. 11, 507 So. 2d 478, 480 (Ala. 1987) 40

Code of Ala. § 6-2-34(1). 41

Eidson v. Olin Corp., 527 So. 2d 1283, 1284 (Ala. 1984). 42

Delchamps, Inc. v. Morgan, 601 So. 2d 442, 444-445 (Ala. 1992). 43

Id at 445. 44

See S.S. Kresge Co. v. Ruby, 348 So. 2d 484 (Ala. 1977). 45

Birwood Paper Co. v. Damsky, 229 So. 2d 514, 521 (Ala. 1969).

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“Can one or more undisputed facts be found in the record below establishing that the defendant acted in good faith on the appearance of things as they existed when suit was filed, based upon direct evidence, or upon circumstantial evidence and inferences that can reasonably be drawn therefrom? If so, then summary judgment in favor of the defendant on plaintiff’s malicious prosecution count would be appropriate.”46 When the facts regarding the existence of probable cause and the

absence of malice are not in dispute, the question presented is one of law for the court.47 When disputed facts are presented, however, the issue of the existence of probable cause and the absence of malice is not a question of law for the trial court.48

The statute of limitations for malicious prosecution claims is two years.49

3. Defamation Defamation may include slanderous or libelous utterances made during the time of the attempted prevention of theft. To establish a prima facie case of defamation, a plaintiff must show:[1] that the defendant was at least negligent [2] in publishing [3] a false and defamatory statement to another [4] concerning the plaintiff, [5] which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod).50 A plaintiff usually satisfies the publication element by proof of communication of the defamatory matter to someone other than himself.51 Special damages are the material harms that are the intended result or natural consequence of the slanderous statement, and the general rule is that they are limited to 'material loss capable of being measured in money.52 Truth is a 'complete and absolute defense' to defamation.53 Defamation claims have a two year statute of limitations.54 a. Slander The elements of slander are applicable to a case which deals with slander per se. The elements of a claim of slander are: 1) a false defamatory statement concerning

46

Eidson, 527 So. 2d at 1285-86. 47

Lee v. Minute Stop, Inc., 874 So. 2d 505, 511 (Ala. 2003) 48

Id. 49

Code of Ala. § 6-2-38(h). 50

Ex parte Bole, 103 So. 3d 40 (Ala. 2012) 51

Delta Health Group, Inc. v. Stafford, 887 So. 2d 887, 896 (Ala. 2004) 52

Butler v. Town of Argo, 871 So. 2d 1, 18 (Ala. 2003) 53

Id. 54

Code of Ala. § 6-2-38(k).

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the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting to at least negligence on the part of the defendant; and 4) either actionability of the statement irrespective of physical harm or the existence of special harm caused by the publication of the statement.55 Slander per se is inclusive of accusations of commission of a felonious criminal offense or crime of moral turpitude. It is well established that an “oral publication imputing a crime of larceny falls within this definition.”56

“A plaintiff must prove by a preponderance of the evidence that the defendant was negligent in making the statement. The negligence requirement is the minimal threshold of ‘fault’ allowed under the rule established in Gurtz v. Robert Welch, Inc. If however, the communications were protected by a qualified privilege, the plaintiff’s burden of proof is higher. He must prove ‘common law malice’ in its traditional sense.”57

Defendants in an action based on slander may be protected from slander by a qualified or conditional privilege. The test for determining what is a conditional or qualified privilege is as follows:

“Where a party makes a communication and such communication is prompted by duty owed either to the public or to a third party or the communication is one in which the party has an interest, and is made to another having a corresponding interest, communication is privileged, if made in good faith and without actual malice.”58

“The Plaintiff bears the burden of proving common law actual malice by adducing evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like . . . or . . . violence of the defendant’s language, and the mode and extent of the publication of the like.”59 Slander claims have a two year statute of limitations.60 b. Libel Actions for libel are predicated on written or printed malicious aspersions of character; distinct from slander which rests on oral defamation. The foundation of an action for libel, similar to slander, is a malicious injury to reputation, and any false and malicious imputation of crime or moral delinquency by one published of and concerning

55

McCain v. Talladega Publishing Co., 544 So. 2d 875, 877 (Ala. 1989). 56

Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091-92 (Ala. 1988). 57

Mead Corp. v. Hicks, 448 So. 2d 308, 313 (Ala. 1983). 58

Nelson, 534 So. 2d at 313 (quoting Webster v. Byrd, 494 So. 2d 31, 36 (Ala. 1986)). 59

Kenney v. Gurley, 95 So. 34, 37 (Ala. 1923)). 60

Code of Ala. § 6-2-38(k).

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another, which subjects the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances, or the public, with resulting damage to his reputation.61 If the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. When a defamatory publication is actionable per se and the law infers injury to reputation as a natural consequence, defendants may present evidence to show that the alleged libel was made “on a privileged occasion or under circumstances and conditions which made it privileged.”62 A showing of absolute or qualified privilege by a defendant constitutes a complete defense. As with slander, if a party makes a communication and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without malice.63 Libel claims have a two year statute of limitations.64 4. Assault and Battery In Alabama, an assault and battery is: “any touching by one person of the person of another in rudeness or in anger.”65 While every battery includes an assault, an assault does not necessarily require a battery to complete it. What it does take to constitute an assault is an unlawful attempt to commit a battery, incomplete by reason of some intervening cause; or, to state it differently, to constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a manner under such circumstances as to create in the mind of the party alleging assault a well-founded fear of an imminent battery.66 Essential to an assault claim is a plaintiff’s well founded fear of an imminent battery. The plaintiff must show that they were threatened with physical harm. A testimony devoid of any allegation of a threat of physical harm will lead to the failure of an assault and battery claim. Merchants may be justified in using proper necessary force to ensure that customers suspected of shoplifting are detained.67 Assault and battery claims have a six year statute of limitations.68 D. Food Poisoning Actions resulting from food “poisoning” have been reviewed under a theory of negligence by Alabama courts. The proper standard applicable to negligence claims

61

Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So. 2d 152, 157 (Ala. 2002). 62

Ferdon v. Dickens, 161 Ala. 181, 49 So. 888 (Ala. 1909). 63

Mead Corp. v. Hicks, 448 So. 2d 308, 312 (Ala. 1983). 64

Code of Ala. § 6-2-38(k). 65

Seigel v. Long, 53 So. 753, 754 (Ala. 1910). 66

Whitlow v. Bruno’s Inc., 567 So. 2d 1235, 1238 (Ala. 1990). 67

Kmart Corp. v. Perdue, 708 So. 2d 106, 110 (Ala. 1997). 68

Code of Ala. § 6-2-34(1).

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arising from a restaurant’s service of food, the consumption of which causes illness, has been discussed at length.

“The law requires that, in the selection of the food for his restaurant and in cooking it for his customers, he shall exercise that same degree of care which a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table.”69

Alabama courts have noted that evidence that a restaurant served food, the consumption of which caused the plaintiff to become ill, does not, on its own, give rise to an inference or a presumption that the restaurant was negligent in its preparation of the plaintiff’s food.70 There must be evidence from which a jury could at least infer that the restaurant failed to act with due care in preparing the plaintiff’s food.71 It is important to note that the courts have stated that the defendant (merchant) is not liable as an insurer against all harms. Hence, a restaurateur is not liable to the plaintiff if the plaintiff was made sick by eating food unless the jury believes from the evidence presented by the plaintiff that the restaurateur was guilty of negligence. Essential to a plaintiff’s negligence claim resulting from food poisoning is the production of evidence from which a jury could infer a negligent act or failure on the part of the defendant. E. Defenses The courts of Alabama have provided defendants in premises liability cases with a number of useful defenses. 1. Assumption of the Risk Alabama adheres to the “assumption of the risk” doctrine. Under the theory of assumption of the risk, a plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.72 The difference between contributory negligence and assumption of the risk is that contributory negligence is a matter of some fault or departure from the standard reasonable conduct and assumption of the risk involves an intelligent decision to confront the danger presented.73 2. Lack of Notice (Lack of Knowledge) It is well settled in Alabama that a store owner has a duty to exercise reasonable care to provide and maintain reasonably safe premises for the use of its customers. Consequently, injured plaintiffs must prove that their injury was proximately caused by

69

McCarley v. Wood Drugs, Inc., 153 So. 446 (Ala. 1934). 70

Hogue v. Logan’s Roadhouse, Inc., 61 So. 3d 1077, 1082 (Ala. Civ. App. 2010). 71

Id. 72

Ex parte Barran, 730 So. 2d 203 (Ala. 1998) (adopting Restatement (Second) of Torts § 496A

(1965)).

73 Sprouse v. Belcher Oil Co., 577 So. 2d 443, 444 (Ala. 1991).

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the negligence of the store owner or one of its servants or employees. In cases in which the defect is not a part of the premises, the injured plaintiff must also prove actual or constructive notice before the store owner can be held responsible for the injury.74 The entire basis of a store owner’s liability rests upon its superior knowledge of the danger which causes the customer’s injuries. Therefore, if that superior knowledge is lacking the store owner cannot be held liable.75 If a plaintiff fails to present evidence that the defendant had either actual or constructive knowledge of a defect in the condition of the premises, then his claim fails. Actual or constructive notice of the presence of the offending substance must be proven before the proprietor can be held responsible for the injury.76 3. Contributory Negligence To establish contributory negligence as a matter of law, a defendant seeking a summary judgment must show that the plaintiff put himself in danger’s way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred. The proof required for establishing contributory negligence as a matter of law should be distinguished from an instruction given to a jury when determining whether a plaintiff has been guilty of contributory negligence. A jury determining whether a plaintiff has been guilty of contributory negligence must decide only whether a plaintiff failed to exercise reasonable care. The court protects against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiff’s conscious appreciation of the danger.77 4. Open and Obvious “A condition is open and obvious when it is known to the plaintiff or should have been observed by the plaintiff in the exercise of reasonable care.”78 As stated above, the entire basis of a store owner’s liability rests upon its superior knowledge of the danger which causes the customer’s injuries. Therefore, if that superior knowledge is lacking, as when the danger is open and obvious, the store owner cannot be held liable.79 The court uses an objective standard to assess whether a hazard is open and obvious. The question is whether the danger should have been observed, not whether in fact it was consciously appreciated by the injured patron.

“In order for a defendant-invitor in a premises liability case to win a summary judgment or a judgment as a matter of law grounded in the absence of a duty on the invitor to eliminate open and obvious hazards or to warn the invitee about them, the record need not contain undisputed

74

Horne v. Gregerson’s Foods, Inc., 849 So. 2d 173, 175 (Ala. Civ. App. 2002). 75

Powell v. Piggly Wiggly Ala. Distrib. Co., 60 So. 3d 921, 926 (Ala. Civ. App. 2010). 76

Perry v. Macon County Greyhound Park, Inc. 514 So. 2d 1280, 1283 (Ala. 1987). 77

Sessions v. Nonnenmann, 842 So. 2d 649, 653 (Ala. 2002). 78

Quillen v. Quillen, 388 So. 2d 985, 989 (Ala. 1980). 79

Id.

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evidence that the plaintiff-invitee consciously appreciated the danger at the moment of the mishap.”80

The Alabama Supreme Court has expressly rejected the notion that an invitor owes a duty to eliminate open and obvious hazards or to warn the invitee about them if the invitor should anticipate the harm despite such knowledge or obviousness.81 5. Rainwater Defense As stated above, some “slip and fall” cases are based on a foreign substance such as rain or snow. The courts of Alabama have provided premises owners with a defense in these circumstances. “Although a storekeeper owes a duty to exercise reasonable care to maintain the premises in a safe condition, where the foreign substance is rain water tracked in by customers and in the absence of unusual accumulations, due care does not require that a storekeeper keep the floor completely free of water.”82 “A fall caused by snow or rain is distinguishable from a fall resulting from some other object as is usual in a slip and fall case.”83 In cases that involved a plaintiff slipping on rain in a lobby of a store, the Alabama Supreme Court has stated that “it is not the duty of persons in control of such passageways to keep a force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several obvious reasons unnecessary to mention in detail.”84 6. Shopkeepers Defense In cases involving the prevention of theft, Alabama provides shopkeepers with a statutory defense. Alabama Code § 15-10-14(a) and (c) provide a defense for malicious prosecution arising from a prevention of theft as long as a merchant, or his employee, have probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover those goods by taking the person into custody for the purpose of attempting to effect such recovery.85

INDEMNIFICATION AND INSURANCE-PROCUREMENT AGREEMENTS

A. Indemnification A claim of indemnity would transfer the entire loss of one tortfeasor, who has been ordered to pay the loss to the plaintiff(s), to another who is culpable. Indemnity seeks to transfer the entire loss of one tortfeasor to another who, in equity and justice, should bear it.86 The general rule in Alabama prohibits joint tortfeasors from enforcing

80

Jones Food Co. v. Shipman, 981 So. 2d 355, 363 (Ala. 2006). 81

Ex parte Gold Kist, Inc. 686 So. 2d 260, 261 (Ala. 1996). 82

Terrell v. Warehouse Groceries, 364 So. 2d 675, 677 (Ala. 1978). 83

Gulas v. Ratliff, 283 Ala. 299, 303 (Ala. 1996). 84

Cox v. Goldstein, 53 So. 2d 354 (Ala. 1951). 85

Code of Ala., § 15-10-14(a) and (c). 86

Sherman Concrete Pipe Mach., Inc. v. Gadsden Concrete & Metal Pipe Co., 335 So. 2d 125 (Ala. 1976).

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contribution from the others who participate in the wrong.87 This follows the maxim that no man can make is own misconduct the ground for an action in his own favor. In the case of indemnity, where joint tortfeasors are equally at fault, i.e. where each is chargeable with active or affirmative negligence contributing to the injury, for which recovery is had, neither is entitled to indemnity from the other. However, Alabama has recognized several circumstances in which indemnity may be granted: 1) Express Indemnity – When there is an express agreement or contract between

the parties that clearly indicated an intention to indemnify, the indemnitor clearly understands the agreement, and there is no evidence of disproportionate bargaining power on the part of the indemnitee.88

2) Negligence-based Theory – A joint tortfeasor may claim indemnity where he has

been held liable either (a) “constructively, without fault, for a tort of another party” or (b) “directly, for the party’s own fault when another party’s fault actually caused the harm.”89 Further, “the alleged indemnitee may recover from another party that has breached a duty owed to the indemnitee.”90

3) Common Law Indemnity -Typically, in a situation involving a fiduciary

relationship, such as master/servant, principal/agent or employer/employee, Alabama recognizes a very limited common law right of indemnification. A joint wrongdoer who is not guilty of any fault other than that based upon his or her status as a principal, master or employer, has a right to seek indemnification against the party serving as the conduit of liability.91

B. Joint and Several Liability Joint Liability occurs where two or more separate acts, on the part of the defendants, combine to cause one indivisible injury to the plaintiff(s).92 In Alabama, damages are not apportioned among joint tortfeasors; instead, joint tortfeasors are jointly and severally liable for the entire amount of damages awarded.93 Moreover, a judgment can be satisfied from either or both of the defendants and satisfaction of the judgment by one joint tortfeasor would discharge the other tortfeasor from liability. The tortfeasor that satisfied the judgment would have no recourse or claim against the other tortfeasor for contribution or indemnity unless there existed a contract stating such terms.94 Alabama does not allow contribution among joint tortfeasors.95 C. Insurance Procurement Agreements

87

Consolidated Pipe & Supply Co. v. Sockham Valves & Fittings, Inc., 365 So. 2d 968, 971 (Ala. 1978). 88

Industrial Tile, Inc. v. Stewart, 388 So. 2d 171, 175 (Ala. 1980) (citing Eley v. Brunner-Lay S. Corp., 266 So. 2d 276 (Ala. 1972)). 89

M. Roberts and G. Gusimano, Alabama Tort Law § 36.05 (4th ed. 2004) (Citing Phelps &

Johnson, Indemnity Actions in Alabama Products Liability Cases, 34 Ala. L. Rev. 23, 44-46 (1983)). 90

Id. 91

Criglar v. Salac, 438 So. 2d 1375 (Ala. 1983). 92

Butler v. Olshan, 191 So. 2d 7, 24 (Ala. 1966). 93

Matkin v. Smith, 643 So. 2d 949, 951 (Ala. 1994). 94

Id. 95

Gobble v. Bradford, 147 So. 619, 619 (Ala. 1933).

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Procurement agreements differ from indemnity agreements. An insurance procurement agreement involves the promisor’s agreement to obtain or purchase insurance coverage, regardless of whether a contingency occurs.96 Agreements to procure insurance are generally enforceable under Alabama law, and a party who breaches such an agreement is liable for damages resulting from the failure to obtain the promised insurance.97 D. The Duty to Defend The duty to defend can arise in contractual agreements, such as a lease agreement, and in the context of an insurance policy. In the insurance context, the insurer has a duty to defend the insured and retains an attorney to provide the defense. So long as the interests of the insurer and the insured coincide, they are both clients of the retained attorney, with the mutual goal of defeating the action against the insured.98

DAMAGES IN PREMISES LIABILITY CASES

A. Compensatory Damages Compensatory damages in tort actions are intended to reimburse one for a loss suffered by reason of an injury to person or property; an award of compensatory damages connotes a giving of an equivalent or substitute of equal value for the loss or injury. Compensatory damages in Alabama can cover losses such as medical expenses, physical pain, lost earnings, or mental distress. Alabama law does not proscribe statutory caps for economic damages in all tort cases. However, the Alabama Code does set specific limits and rules for verdicts in many cases. Personal injury damages are considered either economic or noneconomic. Section 6-5-544(a) of the Ala. Code defines noneconomic losses as those which “compensate for pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium and other nonpecuniary damage.”99 Economic losses can generally be calculated with reference to bills, paychecks, statements, etc. while awards for noneconomic damages require a much more subjective approach. B. Punitive Damages The purpose of punitive damages is to punish the defendant for its conduct. Under Alabama law, punitive damages may not be awarded in civil actions other than those for wrongful death or “a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff.”100 The jury has the discretion to award punitive damages if it finds the plaintiff’s evidence to be “clear and convincing.”101 Before

96

Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So. 2d 633 (Ala. 1993). 97

Turner v. Deutz-Allis Credit Corp., 544 So. 2d 840, 844 (Ala. 1988). 98

Lifestar Response of Ala., Inc. v. Admiral Ins. Co., 17 So. 3d 200, 216 (Ala. 2009). 99

Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 158 (Ala. 1991). 100

Code of Ala., § 6-11-20(a). 101

1 Ala. Pattern Jury Instr. Civ. 11.03 (2d ed. 2007).

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awarding punitive damages, the jury must first award compensatory or nominal damages.102 The Code of Alabama states that caps on punitive damages “shall not apply to actions for wrongful death or for intentional infliction of physical injury.”103 Since the Alabama Legislature’s amendment to section 6-11-21 in 1999, there has been a punitive damages cap requiring that no award exceed three times compensatory damages or $500,000.00, whichever is greater. The cap for “small business” is decreased to the greater of $50,000.00 or 10% of the net worth of the business. If the claim involves physical injury, the cap is increased, but the award still cannot exceed the greater of $1,500,000.00 or three times compensatory damages.104 In cases involving joint tortfeasors, the statutory cap on punitive damages may apply to one tortfeasor but not another.105 Alabama law states that a tortfeasor acting with a greater degree of culpability deserves greater punishment and will not enjoy the benefit of the statutory cap simply because it is appropriate for the less-culpable tortfeasor.106 C. Wrongful Death Alabama is the only state which denies recovery for compensatory damages in wrongful death claims. Although the state’s death statute does not express this rule, the Alabama Supreme Court has interpreted its language in such a way that only punitive damages are permitted. The Court has held:

“[w]hile human life is incapable of translation into a compensatory measurement, the amount of an award of punitive damages may be measured by the gravity of the wrong done, the punishment called for by the act of the wrongdoer, and the need to deter similar wrongs in order to preserve human life.”107

Because the goal is the prevention of death, the Alabama Supreme Court insists that the statute is “remedial and not penal” in nature.108

102

Id. 103

Code of Ala., § 6-11-21. 104

Id. 105

Reserve Nat’l Ins. Co. v. Crowell, 614 So. 2d 1005, 1010 (Ala. 1993). 106

Id. 107

Estes Health Care Ctrs., Inc. v. Bannerman, 411 So. 2d 109, 113 (Ala. 1982). 108

Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 818 (Ala. 1988).