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Brown v. K & M Tree Services, Inc.

Alabama Court of Civil Appeals

February 9, 2018

Dexter Brown and Kira Dodds
K & M Tree Services, Inc.

         Appeal from Jefferson Circuit Court (CV-16-900670)

          THOMAS, Judge.

         Dexter Brown and Kira Dodds appeal a judgment as a matter of law ("JML") entered by the Jefferson Circuit Court ("the trial court") in favor of K & M Tree Services, Inc. ("K & M"). We reverse the trial court's judgment and remand the cause for further proceedings.


         On February 23, 2016, Brown and Dodds filed a complaint in the trial court against K & M, Michael Phillips, Access Insurance Company, and fictitiously named defendants. In relevant part, Brown and Dodds alleged that, while driving a vehicle owned by K & M, Phillips had negligently and wantonly struck their vehicle, thereby causing them serious injury, and that K & M was consequently liable based on the theories of respondeat superior and negligent entrustment. On March 28, 2016, K & M answered the complaint, generally denying the allegations and asserting various defenses.

         On July 13, 2016, Brown and Dodds moved for a default judgment against Phillips. The trial court entered an order granting the motion on August 10, 2016, and indicated in its order that damages would be determined at a later date. Upon a motion of Brown and Dodds, the trial court dismissed Access Insurance Company from the action on July 22, 2016. The trial court conducted a jury trial on May 2, 2017, at which Phillips did not appear. The relevant evidence presented to the jury at trial revealed the following.

         The vehicle accident in question occurred on August 7, 2014, at around 9:00 p.m. It is undisputed that, at that time, Phillips was employed by K & M and was driving a truck owned by K & M when it struck from behind the vehicle transporting Brown and Dodds. The collision caused damage to both vehicles but did not render either inoperable. The events following the accident are disputed.

         According to Dodds, she, Brown, and Phillips exited the vehicles to verify that no one had been seriously injured. She testified that Brown and Phillips had a conversation, during which Phillips reportedly said that he had been "on his way to get his boss." She stated that Phillips then began telling Brown "his life story, " specifically informing Brown, she said, that he had struggled with "a drug problem ... and that he was just going to be in trouble." At some point, Dodds said, Phillips also made a telephone call and told her afterward that he had been speaking with his wife during the call. Dodds said that the police arrived approximately 10 to 15 minutes after the accident occurred and completed a report.

          Dodds testified that, approximately 15 to 20 minutes after the police had arrived at the scene, the owner of K & M, Kenneth Malone, also arrived, while the police were still present. According to Dodds, after exiting his vehicle, Malone reportedly addressed Phillips and stated: "You need to learn how to F'ing drive." She testified that Malone later asked if she had been injured and that Malone and "another guy" inspected the damage to her vehicle and to the vehicle owned by K & M.

         Dodds stated that the police waited for Malone to arrive and then left the scene of the accident. After the police left, Dodds said, Phillips and Malone got into the vehicle owned by K & M and Malone began to drive the vehicle away from the scene of the accident. She said that Malone appeared to be upset with Phillips. Dodds testified that, as he was leaving, Malone stopped the vehicle and Phillips got out of the vehicle and began walking toward a fuel station. Brown and Dodds then left the scene of the accident and went to an emergency room.

         Brown also testified and corroborated much of the testimony elicited from Dodds. Brown agreed that Phillips had told him "his life story, " explaining, Brown said, that he "had been on drugs before" but was presently "clean." Brown also agreed that the police were still present when Malone arrived. He agreed that Malone appeared to be mad at Phillips upon his arrival and that he had observed Malone and Phillips speaking with the police.

         Brown also described Malone's departure from the scene in a similar fashion as Dodds, although he admitted to testifying during his deposition that Phillips had left the scene "with the other guy, " as opposed to Malone. Brown clarified: "[Phillips] got in the truck with one of them, and they pulled off, and they dropped him off at the end of the street. It was both of them there. He got in the truck with one of them, so." He agreed, however, that Phillips had exited the vehicle owned by K & M as the vehicle was leaving the scene of the accident and that the driver had left Phillips on foot near a fuel station. Brown did not testify about the comment that Dodds said she had heard Phillips make regarding the reason he had been driving K & M's vehicle, i.e., that he had been "on his way to get his boss."

          Malone also testified, and his testimony differed from that of Brown and Dodds in several respects. Malone explained that K & M provided tree-removal services and that he had owned the company for 16 years at the time of trial. At the time of the accident, Malone testified, K & M employed five workers and owned five trucks. He described the daily activities of K & M's employees, explaining that they would all meet each morning at a storage facility, prepare for their daily projects, travel to and perform projects, and then return the trucks, equipment, and keys needed to operate the trucks and equipment to the storage facility at the end of each workday.

         Malone stated that, with the exception of Phillips, all of K & M's employees had driven trucks owned by K & M to travel to and from projects. Phillips, he said, had been working as a tree cutter for K & M for about eight months at the time of the accident and did not possess a valid driver's license because his had been suspended. For that reason, Malone said, Phillips had not been permitted to operate any of K & M's trucks and had been dropped off and picked up from work each day by his wife. Malone said that he had been aware that Phillips had struggled with drug use in the past but that Phillips had passed a drug screen before being employed.

         According to Malone, Phillips and the other workers had finished the workday around 6:00 p.m. on the night of the accident. Malone said that he received a telephone call sometime between 6:00 p.m. and 8:00 p.m. from his brother-in-law, Brad, who was also Phillips's supervisor. Malone said that Brad explained to Malone that Phillips was waiting for his wife to pick him up at the storage facility because she was running late. Malone testified that he agreed to let Phillips stay inside the storage facility until his wife arrived, but he denied giving Phillips permission to use one of K & M's trucks for any reason. Malone said that he went to bed early that evening, sometime before 9:00 p.m., because he was planning to go fishing the next day.

         Malone testified that he awoke around 9:00 p.m. that night to a telephone call from Phillips, who explained that he had wrecked one of K & M's trucks. According to Malone, Phillips said that his wife's vehicle had broken down and that he had taken one of K & M's trucks to go pick her up when he struck the vehicle transporting Brown and Dodds. Malone said that, upon hearing this news, he was mad and aggravated and that he fired Phillips during the telephone call and told him not to be present at the scene of the accident when Malone arrived. Phillips then handed his cellular telephone to a police officer, Malone testified, and Malone asked the police officer not to have K & M's truck towed. Malone testified that he either told the police officer that Phillips had stolen the truck or, at least, that he had taken it without permission.

         Malone said that he then called Brad, and they traveled to the scene of the accident together. According to Malone, it took them approximately 45 minutes to get there, and both the police and Phillips had already left by the time they arrived. He said that Brown and Dodds were still present when they arrived, however. Malone said that he checked to make sure that Brown and Dodds had not been seriously injured and then left the scene of the accident with K & M's truck. About a month later, Malone said, he filed a police report explaining that Phillips had used K & M's truck for personal reasons without authorization on the night of the accident.

          Malone denied that Phillips was using K & M's truck to meet him on the night of the accident, explaining that he had personally owned seven vehicles, including "a new truck at the time, " and would not have had "any reason for anybody to pick [him] up." He also said that, except in emergencies, K & M did not operate at night because using chainsaws at night is dangerous. Malone further testified that, in August 2014, Phillips and his wife lived in Trussville and that the accident occurred on the route between K & M's storage facility and Phillips's residence, which, Malone said, was not the route to his own residence.

         Brian Nalley also testified. Nalley said that, in August 2014, he was a police officer working for the Birmingham Police Department. In 2015, Nalley retired from the Birmingham Police Department and began working for the Tarrant Police Department. From 1998 until 2015, Nalley said, he had worked exclusively on vehicle accidents, specifically 6 to 12 accidents per 8-hour shift. Nalley testified that he remembered responding to the accident in question on August 7, 2014, at approximately 9:00 p.m. Nalley also remembered speaking on a cellular telephone with an individual who had identified himself as the owner of K & M and the truck being driven by Phillips, which Nalley described as "a company vehicle." Phillips said: "If I'm not mistaken, [Phillips] said that his truck had broke down[, ] and he had to leave it at the shop, and he took the company vehicle home." He also testified that, as far as knew at the time, Phillips had borrowed the truck with the permission of its owner.

         Nalley testified that the person with whom he had spoken on Phillips's cellular telephone regarding ownership of the truck did not tell him that Phillips had stolen the vehicle or had taken it without permission. When asked at trial how he was sure of that recollection, Nalley responded:

"Because if he had told me [that Phillips] had stolen the truck or had it without permission, I would have detained [Phillips] by state law, and I would have had to detain him until the owner got there. Then when the owner got there, he would have filed a report of a stolen[, ] recovered vehicle. And then I would have had to call a detective to charge the individual with receiving stolen property."

         Nalley said that he did not take any of the actions described above on the night of the accident. He further indicated that his failure to make such a report when required to do so would have resulted in the termination of his employment with the Birmingham Police Department. Nalley also testified that he would have at least made a notation of ...

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