Rebecca M. Fazzingo
v.
Carl D. Orange and Keim TS, Inc.
Appeal
from Madison Circuit Court (CV-15-902019)
EDWARDS, JUDGE.
On
November 21, 2013, Rebecca M. Fazzingo was involved in an
automobile accident with a vehicle driven by Carl D. Orange;
the vehicle was owned by Orange's employer, Keim TS, Inc.
("KTSI"). Fazzingo sued Orange, KTSI, and a number
of fictitiously named defendants in the Madison Circuit Court
("the trial court"), seeking damages for
negligence, wantonness, and KTSI's negligent entrustment
of the vehicle to Orange.[1] A jury trial commenced on May 14, 2018.
After Fazzingo rested her case, which consisted of her
testimony and the deposition testimony of her chiropractor,
Dr. Adam Shafran, Orange and KTSI orally moved for a judgment
as a matter of law on all the claims against them. The trial
court granted a judgment as a matter of law in favor of both
Orange and KTSI, stating on the record that,
"[a]fter listening to the testimony -- specifically
listening to the cross-examination of [Fazzingo] --I do not
believe that [Fazzingo] has established credible evidence of
causation between whatever contact these two vehicles had and
the injuries she complained of. I don't find that there
is credible evidence to establish specific injuries or
damages which related specifically to this accident."
After
her timely postjudgment motion was denied, Fazzingo appealed
to the Alabama Supreme Court, which transferred the appeal to
this court, pursuant to Ala. Code 1975, § 12-2-7(6).
On
appeal, Fazzingo argues that the trial court erred in
granting KTSI and Orange's motion for a judgment as a
matter of law on the negligence claim against
them.[2] Fazzingo contends that the trial court
erroneously resolved issues regarding the credibility of the
testimony presented at trial in making its decision to enter
the judgment as a matter of law. She further argues that she
presented substantial evidence, through both her testimony
and that of Dr. Shafran, indicating that the accident caused
her injuries.
"When reviewing a ruling on a motion for a [judgment as
a matter of law], this Court uses the same standard the trial
court used initially in deciding whether to grant or deny the
motion .... Palm Harbor Homes, Inc. v. Crawford, 689
So.2d 3 (Ala. 1997). Regarding questions of fact, the
ultimate question is whether the nonmovant has presented
sufficient evidence to allow the case to be submitted to the
jury for a factual resolution. Carter v. Henderson,
598 So.2d 1350 (Ala. 1992). The nonmovant must have presented
substantial evidence in order to withstand a motion for a
[judgment as a matter of law]. See § 12-21-12, Ala. Code
1975; West v. Founders Life Assurance Co. of
Florida, 547 So.2d 870, 871 (Ala. 1989). A reviewing
court must determine whether the party who bears the burden
of proof has produced substantial evidence creating a factual
dispute requiring resolution by the jury. Carter,
598 So.2d at 1353. In reviewing a ruling on a motion for a
[judgment as a matter of law], this Court views the evidence
in the light most favorable to the nonmovant and entertains
such reasonable inferences as the jury would have been free
to draw. Id."
Waddell & Reed, Inc. v. United Investors Life Ins.
Co., 875 So.2d 1143, 1152 (Ala. 2003). Substantial
evidence is "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
also Ala. Code 1975, § 12-21-12(d).
Fazzingo
testified that she was driving her son to school on the
morning of November 21, 2013, when she slowed down as she
approached a yield sign so that she could be certain that she
could merge into oncoming traffic. She said that she heard
squealing tires and that the vehicle driven by Orange struck
the rear of her vehicle. According to Fazzingo, she felt no
pain initially, but, she testified, she began to feel pain
radiating from her back to her chest and in her lower back
approximately 10 to 15 minutes after the police officer who
responded to the accident had left the scene. Fazzingo said
that she drove herself to the hospital, where she was
evaluated in the emergency room.
Fazzingo
admitted that she had been involved in an automobile accident
in 2011 and that one of her lumbar vertebra had been
fractured in that accident. She said that she had recovered
from the effects of the 2011 accident and that she was
"not 100% but fine." She further admitted that she
had suffered from neck problems before the 2013 accident.
Fazzingo explained that her neck had "bothered [her] a
lot, but it could [have been] arthritis," that her neck
pain before the 2013 accident "was nothing ... like it
is," and that her neck pain after the 2013 accident was
different and worse than it had been before the 2013
accident. Overall, Fazzingo said, the pain in her back was
also worse than before the 2013 accident, and, she testified,
it affected her ability to take care of her grandchildren.
However, Fazzingo said that Dr. Shafran's treatment had
improved her condition. She explained that he had given her
exercises to do and that they had "helped a lot."
On
cross-examination, Fazzingo admitted that she had not told
the emergency-room personnel that she had suffered from back
or neck pain before the accident. However, she explained that
she had not done so "[p]robably because -- the reason I
was talking about the past -- he was asking me about
then." Fazzingo also admitted that she had gone to the
hospital on May 9, 2013, complaining of back and neck pain,
after which the hospital performed magnetic resonance imaging
("MRI") scans on her cervical, thoracic, and lumbar
spine. Upon further questioning, Fazzingo admitted that she
had been receiving Social Security disability benefits for
over 12 years, which, she said, was based primarily on an
injury to her knee; however, she admitted that she had
indicated on her disability application that she also
suffered from chronic neck pain.
Dr.
Shafran's deposition was read into the record. He
testified that he had reviewed the records from
Fazzingo's examination at the emergency room after the
2013 accident and that he had also reviewed other medical
records. Dr. Shafran first examined Fazzingo in February
2014, and he performed flexion and extension views of her
neck. He said that those tests revealed ligament instability
in her cervical spine, which, he explained, likely had
resulted from the 2013 accident because her neck was turned
in rotation at the time of the impact. Dr. Shafran admitted,
however, that the instability could have been present before
the 2013 accident.
In
addition, Dr. Shafran testified regarding the differences in
Fazzingo's May 9, 2013, MRI results and the results of
her December 2013 MRI scan, taken after the November 2013
accident. Dr. Shafran noted that the reports from both MRI
scans showed the existence of the fractured lumbar vertebra
and that it had remained "stable." He also noted
that both scans showed that Fazzingo suffered from
degenerative changes in her spine. However, Dr. Shafran
testified that the December 2013 MRI scan revealed a new
bulging disk in Fazzingo's thoracic spine. He also
testified that Fazzingo had a "Schmorl's node"
at T12/L1, which, he opined, was likely due to trauma caused
by the 2013 rear-end collision. Dr. Shafran explained that
Fazzingo's age, degenerative changes, the position of her
body at the time of the impact, and her gender affected her
susceptibility to an injury. According to Dr. Shafran, his
treatment of Fazzingo was related to the 2013 accident and
was reasonable. He also opined that the 2013 accident had
exacerbated Fazzingo's underlying degenerative disk
disease and had caused her further injury and continued pain.
Specifically, he stated:
"[M]y opinion is the fact that she was involved in a
past accident, a past collision, and was not --was not
involved in any ongoing treatment prior to seeing me or prior
to [the 2013] accident tells me that her condition was
stable. And then the collision that occurred, I believe the
date of injury on 11/21 ...