Exploring Wantonness

JurisdictionAlabama,United States
CitationVol. 74 No. 1 Pg. 0048
Publication year2013
Exploring Wantonness

Vol. 74 No. 1 Pg. 48

The Alabama Lawyer

By William E. Shreve Jr.

Claims of wantonness are common in civil litigation, but it seems that few articles on this tort have appeared in Alabama publications. A Westlaw search for titles that include "wanton" or "wantonness" discloses only one article, dealing with the statute of limitations.1 This article will attempt to fill the gap by covering the main substantive and procedural issues involved in wantonness. You may find some of this law surprising. Did you know there is a rebuttable presumption against wantonness when the defendant's conduct endangered the defendant as well as the plaintiff? That a court or jury cannot properly find that a defendant's act was both negligent and wanton? That a defendant who did not act negligently may still be found to have acted wantonly? That it is possible for a plaintiff to prove wantonness but not be entitled to punitive damages? This article addresses these and other aspects of wantonness.

Elements of wantonness

Wantonness is a common-law tort for which a plaintiff can recover compensatory damages, and potentially, punitive damages. See Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 35 (Ala. 2003); Hamme v. CSI Transp., Inc., 621 So. 2d 281, 282-84 (Ala. 1993). It shares four elements with negligence: (1) the existence of a duty; (2) a breach of that duty; (3) damage to the plaintiff; and (4) proximate cause. See Edmonson v. Cooper Cameron Corp., 374 F. Supp. 2d 1103, 1106 (M.D. Ala. 2005); Carter v. Chrysler Corp., 743 So. 2d 456, 463 (Ala. Civ. App. 1998).

What distinguishes wantonness from negligence is the defendant's state of mind at the time of the breach. See Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007). Negligence does not require any particular mental state but is "usually characterized as an inattention, thoughtlessness,...heedlessness," or "inadverten[ce]." Id. (internal quotation marks omitted). Wantonness, on the other hand, requires "[1] the conscious doing of some act or the conscious omission of some duty [2] with knowledge of the existing conditions and [3] while conscious that from the doing of that act or by the omission of that duty injury will likely or probably result." Senn v. Alabama Gas Corp., 619 So. 2d 1320, 1324 (Ala. 1993) (emphasis and numerals added).

A. Conscious act or omission

"Conscious" means "perceiving, apprehending, or noticing with a degree of controlled thought or observation: capable of or marked by thought, will, design, or perception." Berry v. Fife, 590 So. 2d 884, 885 (Ala. 1991) (quoting Webster's New Collegiate Dictionary 239 (1981)). Thus, the defendant must have realized and intended what he did or did not do. This is not to say the defendant must have intended to injure anyone, only that the act or omission itself "must be done consciously and intentionally." Joseph v. Staggs, 519 So. 2d 952, 954 (Ala. 1988) (internal quotation marks omitted). See also Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 96 (Ala. 2012) (Murdock, J., concurring) ("[w]antonness entails the intent to do an act, but not the intent to produce the consequence or injury") (emphasis in original).

In the case of an omission, the defendant "must have been conscious...that [he was] omitting to use the means at hand which the circumstances reasonably required to avert the injury." Alabama G.S.R. Co. v. Burgess, 114 Ala. 587, 22 So. 169, 171 (1897). An omission that "resulted from [a] want of skill, or other unintentional causes," may be negligent but does not constitute wantonness. Id. For example, in Copeland ex rel. Copeland v. Pike Liberal Arts School, 553 So. 2d 100 (Ala. 1989), a school headmaster failed to attend and supervise a club-initiation ceremony during which a student was injured. Id. at 101, 104. The court held that the school's headmaster committed no conscious, wanton omission, because the ceremony "was on Saturday night and he [the headmaster] forgot about it." Id. at 104 (emphasis added).

Furthermore, if the defendant "in good faith...did what he thought was best," then he did not act wantonly, no matter "how far he may have failed in skill, or erred in judgment, or what mere inadvertence or negligence may have caused him to do." Highland Ave. & B.R. Co. v. Swope, 115 Ala. 287, 22 So. 174, 180 (1897). Hence, in a case where a traffic light changed from green to red as a driver approached an intersection, and the driver "tried to put her foot on the brake pedal" but "missed and hit the clutch pedal," causing an accident, the court stated the facts showed "inadvertence on the part of the driver," not wantonness. George v. Champion Ins. Co., 591 So. 2d 852, 854 (Ala. 1991) (emphasis added).

B. Knowledge of existing conditions

The defendant must have acted or failed to act while having knowledge of the conditions that created a danger and that called for the exercise of care to avoid injury. See Hornady Truck Line, Inc. v. Meadows, 847 So. 2d 908, 912-16 (Ala. 2002); Sellers v. Sexton, 576 So. 2d 172, 173, 175 (Ala. 1991). Such knowledge can be shown by direct evidence or by "circumstances from which the fact of knowledge is a reasonable inference." Hamme, 621 So. 2d at 283.

The specific conditions of which the defendant must have had knowledge of course vary from case to case. In premises liability cases, these conditions usually include the defect in the premises and the expected presence of persons who would encounter the defect. See, e.g., Kmart Corp. v. Peak, 757 So. 2d 1138, 1140-41, 1144-45 (Ala. 1999); Price v. Macon County Greyhound Park, Inc., 87 So. 3d 553, 558 (Ala. Civ. App. 2011). In a car-accident case, they may include road and weather conditions and the positions and speeds of the defendant's vehicle and other vehicles. See, e.g., Hornady Truck Line, 847 So. 2d at 912-16; Dickey v. Russell, 268 Ala. 267, 105 So. 2d 649, 651 (1958). In products liability cases, they can include the product defect and the manner or environment in which the seller expected that consumers would use the product. See Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1032 (Ala. 1993); Caterpillar, Inc. v. Hightower, 605 So. 2d 1193, 1195-96 (Ala. 1992), overruled on other grounds, Life Ins. Co. of Ga. v. Smith, 719 So. 2d 797 (Ala. 1998); Ray v. Ford Motor Co., 792 F. Supp. 2d 1274, 1284-85 (M.D. Ala. 2011).

To demonstrate wantonness, it is not necessary that the defendant know "that a person is within the zone made dangerous by his conduct; it is enough that he knows a strong possibility exists that others may rightfully come within the zone." Joseph, 519 So. 2d at 954. It is also not always necessary that the defendant have actual knowledge of the injury-causing condition. See Galaxy Cable, Inc. v. Davis, 58 So. 3d 93, 101 (Ala. 2010). A defendant who fails to discover and remedy a dangerous condition may have other knowledge such that this failure itself constitutes or is the result of wantonness. See Lance, Inc. v. Ramanauskas, 731 So. 2d 1204, 1209-1210, 1212 (Ala. 1999).

In Lance, a child was "electrocuted while attempting to purchase a snack from an ungrounded electric vending machine owned and maintained by Lance, Inc., a distributor of vending machines." Id., 731 So. 2d at 1207. The vending machine was located at a motel. Id. Lance was unaware of the defect in the motel's electrical receptacle that caused the machine to be ungrounded. Lance argued that its lack of "knowledge of existing conditions" precluded liability for wantonness. Id. at 1212.

The court "view[ed] the question of Lance's knowledge differently," and stated "the critical question [was] whether [Lance] knew the necessity for testing electrical receptacles to which its vending machines are connected for adequate grounding at facilities such as the motel." Id. There was evidence that Lance "was aware, as early as 1979, of the significance of the shocking hazard of its vending machines," that Lance's safety manual "require[d] that the installer verify that the electrical receptacle into which the machine is plugged is properly grounded," that "the possibility of injuries from ungrounded equipment was 'well known,'" that "anyone in the business of installing electrical equipment would know to ensure that its equipment is properly grounded," and that it would be "unsafe" to "assume that electric receptacles in older buildings such as the [motel] were properly grounded." Id. at 1209-10. The court decided this evidence was sufficient to infer that Lance knew the necessity for testing, making wantonness a jury question. Id. at 1212. See also Yamaha Motor Co. v. Thornton, 579 So. 2d 619, 623-24 (Ala. 1991) (finding sufficient evidence of wantonness where motorcycle manufacturer "never performed any system safety engineering" on a particular model of motorcycle and as a result "did not identify the hazard" that caused the subject accident and "took no action to eliminate [the hazard] from the design or to protect against it").

On the other hand, "mere negligence in the failure to have...knowledge" of existing conditions will not support wantonness. Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448, 452 (1965) (internal quotation marks omitted). In Graves, the defendant-driver was unaware that a motorcyclist was following behind her car. Id., 177 So. 2d at 451. Without giving any turn signal or looking in her rearview mirror, the defendant "veered her automobile several feet to the left near the center line and then turned to the right" onto another road. Id. The motorcyclist had to slam on his brakes, the motorcycle skidded, and the motorcyclist was injured. Id. The court held that since the defendant did not know the motorcyclist was behind her, and since there was nothing to show "the frequency of the use of the road at the point of collision and at the hour of the day that it occurred" (i.e., nothing showing that someone was likely to be in the zone of danger), there was no...

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