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December 16, 1994


Appeal from Lauderdale Circuit Court. (CV-92-501). Larry M. Smith, TRIAL JUDGE.

Rehearing Denied February 10, 1995. Released for Publication May 27, 1995.

Houston, Maddox, J., concurs. Almon, Shores, and Cook, JJ., concur in the result. Ingram, J., Dissents.

The opinion of the court was delivered by: Houston


This action arose out of an accident that occurred in a store owned by the defendant Lowe's Home Centers, Inc ("Lowe's"). The evidence, viewed in the light most favorable to the defendants, suggests the following: The plaintiff, Richard Laxson, a customer at the Lowe's store, was injured when the defendant Tony Latham, an employee of Lowe's, dropped a box containing a "pedestal pump" on the back of Laxson's neck. Latham, who was assisting another customer at the time of the accident, was standing on a two-foot stepladder that had been provided to him by Lowe's and was attempting to retrieve the pump from the top of an eight-foot-high shelf; Laxson was struck while bending over beside Latham examining another pump. Latham had been instructed by his supervisor to use his "common sense" when handling merchandise; however, he had been working at Lowe's for only approximately three months before the accident and he had never handled a pedestal pump. Latham, who was approximately six feet and one inch tall, with an arm's reach of approximately two and one-half to three feet, testified that he was attempting to retrieve the box from "slightly above [his] eye level." He further testified that he did not know that one end of the pump was heavier than the other and that when he started to take the pump off the shelf it "slid" away and fell out of his hands in a "split second." According to Latham, he had no chance to catch the falling pump before it struck Laxson. It was customary for employees of Lowe's to use stepladders for retrieving merchandise for customers on the showroom floor. Other taller ladders were available at the store; however, they were used mainly for stocking purposes.

Laxson sued Latham, alleging negligence and battery; he also sought to recover damages from Lowe's based on the doctrine of respondeat superior. The defendants denied the allegations and raised the affirmative defense of contributory negligence. During the course of the trial, Laxson voluntarily dismissed his battery claim and the defendants withdrew their plea of contributory negligence. At the close of all the evidence the trial court directed a verdict in favor of Laxson on the liability aspect of his negligence claim and submitted the case to the jury on the issue of damages only. The jury returned a $65,000 verdict in favor of Laxson and the trial court entered a judgment on that verdict. The court denied the defendants' motion for a new trial, and they appealed. We reverse and remand.

The single issue is whether the trial court erred in directing a verdict for Laxson on the liability aspect of his negligence claim. Laxson contends that the undisputed evidence clearly established that Latham acted negligently and that Lowe's was liable as a matter of law for Latham's negligence. The defendants contend, however, that reasonable people could differ as to whether Latham acted reasonably under the circumstances. They argue that the directed verdict for Laxson violated their right to a trial by jury as guaranteed by Article I, § 11, of the Alabama Constitution of 1901. After carefully reviewing the record and the briefs, we must agree that the defendants' constitutional right to a jury trial was violated in this case.

This Court has written extensively in recent years on the right of trial by jury; see, e.g., Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993), and Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991). Therefore, there is no need to greatly elaborate here on this constitutionally protected right. It is enough to say that a defendant in a civil action has the right to have a jury determine the issue of his initial legal liability, when he has requested a trial by jury and if the evidence is such that reasonable people could differ as to the outcome, just as a plaintiff has the right in a proper case to a trial by jury on a defendant's plea of contributory negligence. This Court has consistently reaffirmed this principle when setting out its standard for reviewing judgments based on directed verdicts. For example, in Quillen v. Quillen, 388 So. 2d 985 at 987 (Ala. 1980), a case decided under the old "scintilla" rule but which otherwise states the proper standard for reviewing directed verdicts in cases involving allegations of negligence, this Court wrote:

"In cases involving questions of actionable negligence, [the] standard has often been translated to read as follows:

"'Where from the facts shown by the evidence, although undisputed, reasonable men might draw different Conclusions as to negligence or contributory negligence, such questions are for the jury, and it is only when the facts are such that all reasonable men must draw the same Conclusion that negligence or contributory negligence is ever a question of law for the Court. ... In other words, where not only the facts constituting the conduct of the parties, but also the standard of care which they should have exercised, are to be determined the case is entirely one of fact to be decided by the jury. When the proof discloses such a state of facts, whether controverted or not, that, in essaying to fix responsibility for the injury or damage, different minds may arrive reasonably at different Conclusions or may disagree reasonably as to the inferences to be drawn from the facts, the right of a party in a negligence action to have a jury pass upon the question of liability becomes absolute....'

" Patterson v. Seibenhener, 273 Ala. 204, 206-07, 137 So. 2d 758, 760 (1962). When a trial court in a negligence case is confronted with a motion for directed verdict it must apply this standard, and, in doing so, must view the evidence in a light most favorable to the party opposing the motion. If any reasonable inference drawn from the evidence proves to be adverse to the moving party, a motion for directed verdict is due to be denied."

(Citations omitted.) More recently, in Central Alabama Electric Co-op. v. Tapley, 546 So. 2d 371, 381 (Ala. 1989), this Court, rejecting the defendant's argument that the plaintiff's decedent was contributorily negligent as a matter of law, noted that "as with negligence generally, ... a finding of contributory negligence turns on the facts and circumstances unique to each case...." See, also, Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88 (Ala. 1989), wherein this Court held that there was an issue of fact for a jury to resolve as to whether the plaintiff was contributorily negligent in his operation of an industrial die press; and Smith v. U.S. Construction Co., 602 So. 2d 349 (Ala. 1992), wherein this Court held that the evidence raised a jury question as to whether the plaintiff was contributorily negligent when he attempted to refuel an occupied and operating heavy equipment vehicle. *fn1

Of course, for actions filed after June 11, 1987, such as this one, the standard of review applicable to a motion for a directed verdict is the "substantial evidence rule." See Ala. Code 1975, § 12-21-12. "Substantial evidence" has been defined as "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." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989); see Williams v. Ditto, 601 So. 2d 482 (Ala. 1992). Thus, the issue in this case could be rephrased as follows: Whether fair-minded persons, exercising impartial judgment, could reasonably infer from the evidence that Latham was acting reasonably when the accident occurred.

It is a well-established rule of law in this state that in order to prove a claim of negligence a plaintiff must establish that the defendant breached a duty owed by the defendant to the plaintiff and that the breach proximately caused injury or damage to the plaintiff. Proof of injury or damage alone is, therefore, generally insufficient to establish negligence. Gollotte v. Peterbilt of Mobile, Inc., 582 So. 2d 459 (Ala. 1991). Therefore, unless Laxson proved conclusively that his injury was proximately caused by a failure on Latham's part to exercise reasonable care in removing the box containing the pedestal pump, ...

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