The Appellate Corner, 0122 ALBJ, Vol. 83 No. 1 Pg. 66 (January, 2022)

PositionVol. 83 1 Pg. 66

The Appellate Corner

No. Vol. 83 No. 1 Pg. 66

Alabama Bar Lawyer

January, 2022



From the Alabama Supreme Court

State Immunity

Ex parte Cooper, No. 1200269 (Ala. Sept. 30,2021)

Director of ALDOT was entitled to Section 14 state immunity on claim that he breached a duty to a motorist to maintain roadways in reasonably safe condition and failed to follow general ALDOT duties.

State Agent Immunity

Smith v. Alexander, No. 1200215 (Ala. Sept. 30,2021)

DHR employees were entitled to state agent immunity in exercising discretion and judgment in their making decisions concerning the handling of a DHR-supervised minor who, after multiple violent incidents, was arrested and jailed, and during whose custody the minor had confrontation with jail guards which eventually caused catastrophic injury to minor. Decision to leave minor in jail and to bail him out after initial court date was discretionary and based on determination that minor could not be safely transported solely by DHR personnel. DHR employee's determination that jail was not a "placement" was entitled to deference.

Medical Liability; Punitive Damages

Bednarski v. Johnson, No. 1200183 (Ala. Sept. 30,2021)

Hope Johnson and her mother visited OBGYN for birth-control pills. Mother advised that she had experienced blood clots, and on blood testing of Hope, it was determined that she had factor V Leiden, a condition which contributes to clotting. Nevertheless, OBGYN prescribed hormonal birth control pills, which taken by someone with factor V increases the risk of clotting. Within two months, Hope visited an AUC Clinic, complaining of shortness of breath, headaches, etc. She was diagnosed with bronchitis by Bednarski. She returned to AUC two days later with worsened conditions and was given an inhaler by Dr. Willis at AUC. She died the next day of a blood clot. Hope's estate sued AUC and the OBGYN's practice and doctor - the latter groups settled. The trial court entered a judgment on jury verdict (as remitted) of $6.5 million. The supreme court affirmed in a per curiam opinion of four justices, with Chief Justice Parker concurring almost entirely but separately. The holdings: (1) Plaintiff could not be deemed as a matter of law to have been aware that Willis treated Hope in the second visit, based on the medical records available before filing the complaint. Even though the prescription for the inhaler listed Willis as the prescribing physician, other records indicated that Bednarski treated her that day (which was incorrect). (2) Plaintiff exercised reasonable diligence in attempting to ascertain Willis's status and identity as a potential defendant by seeking information concerning him before expiration of the limitations period, especially given defendants' concession that defendants themselves did not determine who treated Hope on the second visit until after expiration of the limitations period. (3) Amendment to complaint for negligent and wanton hiring and supervision regarding the conduct of Dr. Willis against AUC related back to filing of original complaint against AUC, as it was transactional^ related and sought liability against the same defendants as those originally sued based on the same events, though under a different theory of recovery. (4) Statements made during closing and evidence adduced at trial did not improperly inject an unpleaded negligent hiring claim into the case. (5) Defendant waived any challenge to qualification of plaintiff's expert witness. (6) Trial court's remittitur of damages to $6.5 million was supported under the Gore guideposts - the trial court's conclusion that the conduct was reprehensible and was the result of a health-care model which maximized profit was supported by the record, and comparable cases did not render the award of damages disproportionate to the conduct.

Rule 54(b)

Builder Systems, LLC v. Klamer, No. 1200433 (Ala. Sept. 30,2021)

Claims and counterclaims were too intertwined to support Rule 54(b) certification of order disposing of the Klamers'claims.

Mandamus; Recreational Use

Exparte City of Gulf Shores, No. 1200366 (Ala. Sept. 30,2021)

Plaintiff sued city after being injured while walking on a city-owned boardwalk. City sought summary judgment based on recreational use statute, Ala. Code § 35-15-1 et seq, which circuit court denied. City petitioned for mandamus. The supreme court denied the writ not on the merits, but on the failure of the city to respond at summary judgment to plaintiff's argument relying on a number of cases under which plaintiff contended the boardwalk in this case was a "public way," like a sidewalk, that the city has a duty to maintain regardless of the recreational-use statutes.

Jury Trial Waiver

Exparte Taylor, No. 1200537 (Ala. Sept. 30,2021)

Plurality decision; jury waiver in employee's confidentiality agreement with employer covered claims alleging sexual and other harassment.

Appellate Jurisdiction; Post-Arbitral Proceedings

Wynlake Residential Assn v. Husley, No. 1200242 (Ala. Oct. 22,2021)

In the context of Rule 71B (for post-arbitral actions seeking to vacate an arbitration award upon which confirmation is sought), when a Rule 59 motion is filed before the clerk's entry of the award as the judgment of the circuit court, the Rule 59 motion quickens upon the entry of the judgment. The quickening of the Rule 59 motion thus began the triggering of the 90-day period for the trial court to rule on the Rule 59 motion, pursuant to Rule 59.1. On day 91, however, the motion was denied by operation of law, which triggered the 42-day time for appeal. The appeal in this case was filed after the 42-day deadline, and thus there was no appellate jurisdiction.

Rule 54(b)

Alabama Ins. Una". Assn. v. Skinner, No. 1200132 (Ala. Oct. 22,2021)

Rule 54(b) certification was improper under the intertwining doctrine in action by insurer for a declaration of no coverage against co-insureds, where the trial court granted summary judgment as to one insured but left pending the claim as to the other insured.


Hiltz v. Bedwell, No. 1200217 (Ala. Oct. 29,2021)

Contestee in election contest is not required to file its own contest to offer evidence of provisional ballots which should have been counted for contestee.

Compulsory Counterclaims; Separate Trials

Ex parte McQueen, No. 1200594 (Ala. Oct. 29,2021)

Trial court abused its discretion in ordering separate trial under Rule 42(b) of compulsory counterclaims. Trial court made no finding that a consolidated trial would be prejudicial, or that judicial economy would be served, or that convenience of the parties would be served, with a separate trial...

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