The Appellate Corner, 0517 ALBJ, 78 The Alabama Lawyer 224 (2017)

Author:Wilson F. Green, J., Marc A. Starrett, J.
 
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THE APPELLATE CORNER

Vol. 78 No. 3 Pg. 224

Alabama Bar Lawyer

May, 2017

Wilson F. Green, J., Marc A. Starrett, J.

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

AUTO GUEST STATUTE

Hurst v. Sneed, no. 1151067 (ala. feb. 3, 2017)

Trial court erred in granting summary judgment to defendant driver’s estate, based on operation of auto guest statute (Ala. Code § 32-1-2) in tort action brought by rider. There was substantial evidence that rider’s presence was not for exclusive benefit of the driver, and that driver and rider enjoyed a mutual and reciprocal relationship over many years of running errands together to save on gas and vehicle wear and tear, thus creating genuine issue of fact as to each of the three components of the application of auto guest principles under Sullivan v. Davis, 83 So.2d 434, 436-37 (1955).

MEDICAL LIABILITY; APPARENT AUTHORITY

Bain v. Northwest Alabama Colbert County Healthcare Authority, no. 1150764 (ala. feb. 10, 2017)

Heath (decedent) died on July 8 from aortic aneurysm which went undiagnosed at an emergency room visit to Helen Keller Hospital on June 18. At the ER visit, it was alleged that the ER nurses failed to take a family history on Heath, but the undisputed evidence was that Heath discussed the family history (including Heath’s father’s death from an aneurysm) with the attending ER physician (Dr. Wigfall, who was under contract with Weatherly, a medical staffing company under contract with HKH). Bain (PR and spouse) sued HKH, nurses and Dr. Wigfall. The trial court granted summary judgment to defendants. The supreme court affirmed. As to the claims against the nurses, the court held that theory of liability had a break in the chain of causation: because there was undisputed evidence that Dr. Wigfall received from Heath the information the nurses allegedly should have obtained from Heath, Bain failed to present substantial evidence demonstrating that the nurses’ failure to obtain Heath’s family history probably caused or contributed to Heath’s death. As to the claims against HKH for the actions of Wigfall (under a theory of “apparent authority”), the court reasoned that (1) Alabama law does not recognize the notion “that a patient may presume that a doctor working in a hospital is an employee unless the patient is t old otherwise;” (2) Wigfall’s wearing an HKH badge and giving orders to HKH employees went only to Bain’s subjective belief of apparent authority, and was not an objective basis to conclude that HKH held out Wigfall as an agent. The court noted that Alabama’s rule of apparent authority of doctors in hospitals is more restrictive than Mississippi law and Restatement (Second) of Torts § 429.

RULE 54(B) CERTIFICATION IMPROPER

Equity Trust Co. v. Breland, No. 1150302 (Ala. Feb. 17, 2017) A trial court exceeds its discretion in entering a Rule 54(b) certification where “[r]epeated appellate review of the same underlying facts would be a probability.”

MOOTNESS

Hasting v. Roberts, No. 1150813 (Ala. Feb. 17, 2017)

Action by attorney against OIDS (Office of Indigent Defense Services) for injunctive relief relating to contract indigency work for attorney’s local circuit for the 2015-16 fiscal year became moot once 2016-17 fiscal year began.

MEDICAL LIABILITY; EXPERT TESTIMONY

Collins v. Herring Chiropractic Center, LLC, No. 1151173 (Ala. Feb. 17, 2017)

Medical malpractice case stemming from chiropractic staff’s use of unthawed cold press, which caused frostbite on plaintiff’s knee, fell within the class of cases where expert testimony was not required as to the applicable standard of care, because the conduct fell within those cases “‘where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it....’” Moreover, expert testimony was not needed on issue of causation, because the procuring and application of the cold pack was within the exclusive control of the defendants, and no evidence was presented indicating that Collins contributed to her injuries.

STATE-AGENT IMMUNITY

Ex parte Ingram & Wilkinson, No. 1131228 (Ala. Feb. 24, 2017)

Mother of special-needs student brought action against teacher (Ingram) and aide (Wilkinson) for injuries incurred when student was sexually assaulted by fellow special-needs student. Allegation was that assault occurred because (1) teacher deviated from policy requiring all teachers to accompany all students in transit without exceptions, and (2) aide deviated from policy requiring teacher to accompany students to and from lunch in front of line and requiring aide to accompany in back of line. As to the teacher, substantial evidence supported conclusion that teacher deviated from policy of accompanying students in transit–a policy as to which there were “no exceptions”–and thus rendered teacher’s conduct arguably beyond her authority. As to the aide, in this case the aide purportedly deviated from the policy because she faced exigent circumstances in being required to accompany a particular student to the restroom while in transit; the court concluded that the absence of a “no-exceptions” proviso within the policy, even while construing the facts in plaintiff’s favor, demonstrated that aide was using her professional judgment in recognizing exigent circumstances, triggering immunity.

Class Actions; Dismissal; Retention of Jurisdiction

Ex parte Caremark RX, Inc., No. 1151160 (Ala. Feb. 24, 2017)

Jurisdiction retained by trial court over class-action settlement after final approval is limited to interpreting or enforcing that final judgment; the trial court could not extend its jurisdiction over a matter arising 16 years later relating to collateral litigation.

LEGAL MALPRACTICE

Bond v. McLaughlin, No. 1151215 (Ala. FEB. 24, 2017)

Bond sued McLaughlin for legal services liability in failing to properly bring will contest. McLaughlin conceded breach of standard of care, but claimed lack of causation based on absence of proof that, but for McLaughlin’s negligence, she would have prevailed in the will contest. Held: Bond presented substantial evidence that probated will would have been deemed revoked and thus was not properly admitted as a lost will.

Workers’ Comp Exclusivity

Ex parte Austal USA, LLC, No. 1151138 (Ala. March 3, 2017)

Workers’ comp exclusivity under the Longshore & Harbor Workers’ Compensation Act (“the LHWCA”) recognizes an exception for intentional infliction of injury; complaint adequately alleged that employer intentionally placed saw into use knowing it would cause injury.

ARBITRATION; ASSENT

Bevel v. Marine Group, LLC, no. 1150941(Ala. March 3, 2017)

Agreement contemplated assent to arbitration by initialing the applicable paragraphs; no initials appeared in the contract offered into evidence, and thus no evidence of assent to arbitration was present.

QUALIFIED IMMUNITY; MIXED-MOTIVE FIRST AMENDMENT CASE

Ex parte Andrew Hugine, No. 1130428 (Ala. March...

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