Released for Publication September 15, 2015.
Appeal from Baldwin Circuit Court. (CV-12-900646). Robert E. Wilters, Trial Judge.
For Appellants: Danny L. Kepner, Louis A. " Trip" Maygarden III, Shell, Fleming, Davis & Menge, Pensacola.
For Appellee: Craig Goolsby, Faith A. Nixon, Jonathan R. Maples, Carr Allison, Daphne.
WISE, Justice. Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents.
MOORE, Chief Justice
At the heart of this case is an issue of first impression: Does Act No. 2011-627, Ala. Acts 2011 (" the Act" ), which amended § 6-5-521, Ala. Code 1975, apply retroactively? Because I believe, based on settled precedent, that the answer is " no," I respectfully dissent from affirming the summary judgment entered for defendant Better Living, Inc., d/b/a A Better Way.
Rayna Reyes, an insurance seller, visited Don and JoAnn Phillips at their home in Lillian in June 2010. Responding to a request from Reyes for a glass of water, JoAnn removed a container from the freezer section of her refrigerator, poured a portion of the contents into a glass, and gave the glass to Reyes, who drank it. The Phillipses typically kept water in their freezer in plastic bottles. Unknown to JoAnn, the bottle she selected contained Oxy-Tech, a 35% solution of hydrogen peroxide, which in its undiluted form is a hazardous substance. Don Phillips had purchased the product for health reasons and typically consumed it by mixing a few drops into a glass of water, thus diluting it to a 3% solution.
Reyes suffered permanent scarring of her mouth, throat, esophagus, and vocal cords and an impairment of her ability to speak and to swallow. She also alleged economic loss and pain and suffering.
On May 18, 2012, Reyes and her husband Richard sued the Phillipses, the manufacturer, and Better Living, the retail store where Don Phillips purchased the product. After the Reyeses settled with the Phillipses and the manufacturer of Oxy-Tech, the only remaining claims in the case were those against Better Living alleging negligence and liability under the ...