Katerial v. Mobile Greyhound Park, LLP

          Appeal from Mobile Circuit Court (CV-16-900306)

          BRYAN, JUSTICE.

         Katerial Wiggins, individually and as the administrator of the estate of Dominic G. Turner, deceased, and as the next friend of Dominic Turner, Jr. ("D.T."), appeals from a summary judgment entered by the Mobile Circuit Court ("the circuit court") in favor of Mobile Greyhound Park, LLP ("MGP"), and Mobile Greyhound Racing, LLP ("MGR"). We affirm in part and reverse in part the circuit court's judgment and remand the cause for further proceedings.

         Facts and Procedural History

         On June 6, 2015, a vehicle being driven by Willie McMillian struck from behind a vehicle being driven by Wiggins on Interstate 10 in Mobile County. Wiggins's fiancé, Turner, and their child, D.T., were riding in the backseat of the vehicle being driven by Wiggins when the collision occurred. As a result of the collision, Turner died and Wiggins and D.T. were injured. After obtaining evidence indicating that McMillian was under the influence of alcohol, law-enforcement officers arrested McMillian. He later pleaded guilty to reckless murder and was sentenced to imprisonment for 15 years.

         In February 2016, Wiggins, in her individual capacity, on behalf of D.T., and on behalf of Turner's estate, sued McMillian. In relevant part, the complaint also named MGP and MGR as defendants.^[1] Wiggins alleged that MGR and MGP operated a dog-racing track and that, on the day of the collision, MGR and MGP sold alcohol to McMillian at the dog-racing track while he was visibly intoxicated; she requested compensatory damages and punitive damages, pursuant to § 6-5-71, Ala. Code 1975 ("the Dram Shop Act"), for Turner's death and the injuries she and D.T. had sustained.^[2] (This action is hereinafter referred to as "the dram-shop action.") Wiggins later filed a report of special damages in the dram-shop action that, in relevant part, included a request for damages under the Wrongful Death Act, § 6-5-410, Ala. Code 1975.

         Wiggins also sought to consolidate the dram-shop action with an interpleader action that had been initiated in 2015 by Alfa Mutual Insurance Company ("Alfa"), McMillian, and Lutenia Campbell, McMillian's longtime partner and the owner of the vehicle he was driving at the time of the collision ("the interpleader action"). In relevant part, the complaint filed in the interpleader action named as defendants Wiggins; D.T.; Turner's estate; Sarah Hinkle, McMillian's mother and a passenger in the vehicle he was driving at the time of the collision; and Michael and Dana Davis, who were occupants in a vehicle that was struck by the vehicle being driven by Wiggins at the time of the collision. Pursuant to the limits of Campbell's vehicular-insurance policy, Alfa interpleaded $100, 000 to the circuit court clerk. The record does not contain an order consolidating the dram-shop action and the interpleader action. The parties to the interpleader action later reached a settlement. The circuit court dismissed McMillian from the dram-shop action, leaving as defendants only MGP and MGR.

         In April 2018, MGR moved for a summary judgment in the dram-shop action and submitted evidence in support of its motion. Among other things, MGR argued that Wiggins had failed to present sufficient evidence indicating that McMillian had appeared "visibly intoxicated" while purchasing alcohol at the dog-racing track operated by MGR. MGR also argued that the issue whether McMillian had appeared "visibly intoxicated" during the relevant times had already been litigated in the interpleader action and that Wiggins was, therefore, precluded by the doctrine of res judicata from relitigating that issue in the dram-shop action. MGR also filed a motion to strike Wiggins's "claims for damages other than damages allowed under § 6-5-71, Ala. Code 1975." In relevant part, MGR argued that any claim of "wrongful death" asserted by Wiggins should be struck because, MGR argued, such claims "are not allowed under the Dram Shop Act."

         Wiggins filed a brief in response to MGR's summary-judgment motion and submitted evidence in support of her response. Wiggins also filed a response to MGR's motion to strike portions of her complaint, in which she argued, in relevant part, that "claims for wrongful death are proper under the Dram Shop Act."

         In May 2018, MGP also moved for a summary judgment. In relevant part, MGP asserted that it was a limited partnership that owned a minority interest in MGR. MGP asserted that it was not responsible for the operation of the dog-racing track and that none of its employees was working at the dog-racing track on the day of the collision. Thus, MGP asserted, it was not liable under the Dram Shop Act. Wiggins did not file a response to MGP's summary-judgment motion.

         On May 30, 2018, the circuit court entered an order granting MGP's summary-judgment motion. That same day, the circuit court also entered an order granting MGR's "motion to strike [Wiggins]'s claim for damages for wrongful death." Finally, the circuit court entered an order granting MGR's summary-judgment motion; in so doing, the circuit court concluded that Wiggins had failed to present sufficient evidence demonstrating the existence of a genuine issue of material fact regarding whether "McMillian appeared to be intoxicated when he was served at the dog track."

         Wiggins appealed from the circuit court's judgment, naming both MGR and MGP as appellees. In her principal appellate brief, Wiggins challenges the summary judgment in favor of MGR and its decision to grant MGR's motion to strike her wrongful-death claim. For the first time in her reply brief, Wiggins asserts that MGP is not a separate entity from MGR and that "Mobile Greyhound Park" is merely a trade name used by MGR. We address each argument in turn.

         Standard of Review

"'A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact -- "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." Ala. Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).'

"Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004)."

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala. 2006).

         Analysis

         I. Summary Judgment in Favor of MGR

         A.

         We first address Wiggins's challenge to the summary judgment in favor of MGR. The Dram Shop Act provides, in relevant part:

"(a) Every wife, child, parent, or other person who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages."

§ 6-5-71 (emphasis added). "In order to show a violation of the Dram Shop Act the plaintiff must prove three elements: The sale must have 1) been contrary to the provisions of law; 2) been the cause of the intoxication; and 3) resulted in the plaintiff's injury." Attalla Golf & Country Club, Inc. v. Harris, 601 So.2d 965, 967 (Ala. 1992).

         "It is well settled in Alabama that a sale to a visibly intoxicated person is 'contrary to the provisions of law.' Ala. Code 1975, § 28-3-49; ABC [Alcoholic Beverage Control] Board Regulations 20-x-6.02(4)." 601 So.2d at 968. Alabama Administrative Code (ABC Board), Regulation 20-X-6-.02(4), provides: "No ABC Board on-premises licensee, employee or agent thereof shall serve any person alcoholic beverages if such person appears, considering the totality of the circumstances, to be intoxicated." The question presented in this appeal is whether sufficient evidence was produced demonstrating the existence of a genuine issue of fact regarding whether MGR sold beverages to McMillian "contrary to the provisions of law," specifically, those set out in Reg. 20-X-6-.02(4).

         As a preliminary matter, however, we note that Wiggins's principal appellate brief includes some discussion regarding whether the "totality of the circumstances," as mentioned in Reg. 20-X-6-.02(4), should be evaluated in considering her dram-shop claim. She contends that it should. Although neither the circuit court's summary judgment nor MGR's appellate arguments explicitly conflict with Wiggins's assertion, we find it necessary to address the question in light of its potential impact on the manner in which the evidence should be viewed.

         Wiggins begins her discussion of the issue by pointing out that the version of Reg. 20-X-6-.02(4) existing in 1987 did not specifically require Alcoholic Beverage Control Board ("ABC Board") on-premises licensees to consider "the totality of the circumstances" in evaluating whether a potential customer appeared to be intoxicated. She cites Ward v. Rhodes, Hammonds & Beck, Inc., 511 So.2d 159, 164 (Ala. 1987), in which this Court stated:

"[I]n September of 1982, the Alcoholic Beverage Control Board promulgated Regulation 20-X-6-.02, which reads, in part, as follows:

"'(4) No on premise licensee may serve a person any alcoholic beverage if such person is acting in such a manner as to appear to be intoxicated.'"

         In 1991, this Court decided Espey v. Convenience Marketers, Inc., 578 So.2d 1221, 1221 (Ala. 1991), a case involving James Espey's claim under the Civil Damages Act, codified at § 6-5-70, Ala. Code 1975.^[3] Espey also asserted a claim, individually and on behalf of his son, Jimmy, who was a minor during the relevant times, under the Dram Shop Act. The defendant at issue in that case, Convenience Marketers, Inc. ("Convenience"), had sold beer to Jimmy one evening while Jimmy was with a companion, Connie, who was also a minor. Later that evening, Jimmy was riding in a vehicle being driven by Connie when Connie lost control of the vehicle, causing it to collide with an electric pole. Jimmy was injured and Connie died. Connie had been intoxicated. This Court affirmed the circuit court's summary judgment in favor of Convenience on Espey's claim under the Dram Shop Act.

         The Court noted that Espey's claim under the Dram Shop Act was predicated on Connie's intoxication, not Jimmy's. Because Convenience had sold the beer to Jimmy, not Connie, the Court declined to hold that the sale was "contrary to the provisions of law," within the meaning of the Dram Shop Act. In a footnote, the Court noted its decision in Laymon v. Braddock, 544 So.2d 900, 904 (Ala. 1989), which held that a "totality of the circumstances" test should be used when evaluating claims brought under specific language used in the Civil Damages Act. Espey, 578 So.2d at 1233 n.4. In so doing, the Court stated: "[W]e have not yet applied a 'totality of the circumstances' test to Dram Shop actions." Id.

         Two years later, in Moreland v. Jitney Jungle, Inc., 621 So.2d 285 (Ala. 1993), the Court considered the language of the footnote in Espey. The Moreland Court summarized the facts in that case as follows:

"At approximately 4:40 p.m. on October 25, 1991, Michael Quillan and Amanda Hamner, who were 19 and 21 years of age, respectively, visited the Jitney Jungle supermarket in Florence, Alabama, operated by the defendant Jitney Jungle, Inc., to purchase beer. Quillan, accompanied by Hamner, carried a carton containing 24 cans of the beverage to the front of the store and placed it on the conveyor belt at the checkout counter. The checkout clerk asked: 'Which one is of age?' Miss Hamner replied: 'I have an ID.' She then paid for the beer and carried it from the store.

"At approximately midnight, Quillan was driving his vehicle on Lauderdale County Road 38 and, while attempting to negotiate a curve in the road, collided with Michael Moreland, who was riding a motorcycle. Moreland subsequently sued Jitney Jungle; he alleged that Jitney Jungle had violated the Dram Shop Statute and that its violation had caused the injuries he suffered in the collision. On October 30, 1992, the trial court entered a summary judgment for Jitney Jungle. On appeal, the plaintiff, Moreland, contends that Jitney Jungle 'sold' beer to Quillan in violation of Ala. Code 1975, § 28-3A-25(a)(3), and thus, he argues, he has a cause of action pursuant to the Dram Shop Statute, Ala. Code 1975, § 6-5-71. Section 28-3A-25(a)(3) provides:

"'(a) It shall be unlawful:

"'(3) For any licensee or the board either directly or by the servants, agents or employees of the same, or for any servant, agent, or employee of the same, to sell, deliver, furnish or give away alcoholic beverages to any minor, or to permit any minor to drink or consume any alcoholic beverages on licensee's premises.'

"It is undisputed that Jitney Jungle was legally entitled to sell beer to Miss Hamner. The plaintiff contends, however, that the transaction was, in effect, a 'second-sale subterfuge,' that is, that the checkout clerk knew or should have known from the 'totality of the circumstances' surrounding the sale that the beer was purchased by Miss Hamner for consumption by Quillan 'contrary to the provisions of law,' within the meaning of the Dram Shop Statute, considering the provisions of § 28-3A-25(a)(3)."

621 So.2d at 286. After considering the relevant language from Espey, the Court concluded: "The plaintiff in this case has presented no compelling reason for extending the application of the 'totality of the circumstances test' to Dram Shop Statute claims." 621 So.2d at 288. The Court reasoned that, because the Dram Shop Act

"authorizes an action by any 'person who shall be injured in person [or] property,' § 6-5-71(a), [it] would, in conjunction with the totality of the circumstances test, subject a large number of Alabama citizens to liability that is not only strict, McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala. 1991), but nearly absolute."

Moreland, 621 So.2d at 288. In Jones v. BP Oil Co., 632 So.2d 435 (1993), the Court applied the reasoning of Espey and Moreland under similar circumstances, i.e., in an action involving an injury, in that case, death, caused by an intoxicated minor who had not obtained the alcohol at issue directly from the defendant.

         Wiggins argues that the ABC Board disagreed with this Court's reasoning in Espey and Moreland and, in 1998, changed Reg. 20-X-6-.02(4) to include the "totality of the circumstances" language. We express no opinion regarding whether the changes reflected in Reg. 20-X-6-.02(4) were a response by the ABC Board to this Court's decisions in Espey and Moreland. We note, however, that Reg. 20-X-6-.02(4) was not at issue in either Espey or Moreland. As noted above, Reg. 20-X-6-.02(4) prohibits ABC Board on-premises licensees from serving alcoholic beverages to someone who is visibly intoxicated. In relevant part, Espey and Moreland addressed the defendants' potential liability under the Dram Shop Act for injuries caused by minors who had consumed alcoholic beverages obtained indirectly from the defendants, not potential liability for injuries caused by visibly intoxicated persons who had purchased alcoholic beverages directly from the defendants.

         In other words, the "provisions of law," see § 6-5-71(a), at issue in Espey and Moreland are not the same provisions of law at issue in this case. As noted in Moreland, 621 So.2d at 286, ABC Board licensees are prohibited from selling alcohol to minors by § 28-3A-25(a)(3), Ala. Code 1975. In this case, it is undisputed that McMillian was an adult on the night of the collision and, as is explained in more detail infra, that he purchased alcohol directly from MGR. Therefore, we are not concerned with the question whether the totality of the circumstances should be considered when evaluating whether a defendant acted contrary to the provisions of law by indirectly furnishing alcohol to minors, as this Court was in Espey and Moreland.

         In this case, we are concerned with whether the totality of the circumstances should be considered when evaluating whether MGR sold alcoholic beverages directly to McMillian when he was visibly intoxicated. Regulation 20-X-6-.02(4) indicates that ABC Board on-premises licensees should consider the totality of the circumstances when evaluating whether a potential customer appears intoxicated. As Wiggins points out, this Court has previously noted that Reg. 20-X-6-.02 "has 'the full force and effect of law.'" Krupp Oil Co. v. Yeargan, 665 So.2d 920, 924 (Ala. 1992)(quoting Evans v. Sunshine-Jr. Stores, Inc., 587 So.2d 312, 316 (Ala. 1991)); see also § 28-3-49(a). Therefore, we hold that, in accordance with the requirements imposed on ABC Board on-premises licensees by Reg. 20-X-6-.02(4), the totality of the circumstances should be considered when evaluating a claim that an ABC Board on-premises licensee, its employee, or agent has unlawfully sold alcohol directly to someone appearing visibly intoxicated.

         We will now consider the evidence presented regarding whether McMillian appeared visibly intoxicated when he was purchasing alcohol from MGR. In his deposition, McMillian testified that, sometime around 3:00 p.m. or 5:00 p.m. on June 6, 2015, he and his mother, Hinkle, arrived at the dog-racing track operated by MGR. Before that time, McMillian said, he had not consumed any alcoholic beverages that day.

         McMillian said that he went to the track to win money and not to drink or party. At the track, McMillian placed bets on horse races that were being broadcast on a television. He testified that, although his cousin and a few other people were sitting at a table, he mostly stayed "[r]ight by the TV" by himself while watching the races. At some point, McMillian won two "trifectas," worth about $400 or $500 each. He testified that he was excited, but "[n]ot too excited," and that he "[k]eep[s his] money quiet." McMillian testified that he "didn't drink the beer until after [he] hit the race," but, McMillian said, after winning the trifectas, he purchased two 12-ounce cans of Budweiser brand beer from a person working at the counter on the bottom floor of the track.

         After drinking the beers, McMillian drove himself and Hinkle from the track in Campbell's vehicle. McMillian testified that he did not drink any alcoholic beverages after leaving the track. Approximately 15 to 20 minutes after leaving the track, McMillian estimated, the accident occurred. McMillian testified that traffic had slowed down as a result of an accident farther down the road, and, he said, the vehicle being driven by Wiggins swerved "right in front" of him. McMillian testified that he drove "off to the right into woods" to avoid running into the slowed traffic, and he said that the vehicle he was driving did not collide with the car being driven by Wiggins before leaving the road.

         In her deposition, Wiggins testified that traffic on Interstate 10 had slowed as a result of a "wreck up ahead" and that "all the traffic was braking." Wiggins estimated that she was driving at a speed of approximately 30 miles per hour, and she denied changing lanes in traffic. She testified that the vehicle she was driving was then struck from behind by another vehicle, causing Turner's death and injuries to her and D.T.

         Jeff Robinson, who was a traffic-homicide investigator with the Mobile Police Department on the night in question, testified in his deposition regarding his investigation of the incident. During his investigation, Robinson spoke with Hinkle. Hinkle said that she and McMillian had arrived at the dog-racing track around 5:00 p.m. and had left shortly after 8:00 p.m. Robinson said that a call had come in at 8:30 p.m. regarding a collision on Interstate 10. Robinson estimated that traveling from the dog-racing track to the scene of the collision takes approximately 10 minutes if traffic laws are obeyed.

         During his investigation, Robinson spoke with witnesses to the collision. He said that one witness said the vehicle being driven by McMillian had passed her vehicle at a high rate of speed, struck the vehicle being driven by Wiggins, and had then gone off into the woods. The witness and her husband pulled their vehicle over to help. She said that McMillian was stumbling when he got out of the vehicle he had been driving and was complaining of a knee injury. The witness said she could smell an odor of alcoholic beverage or beer on McMillian's breath. According to Robinson, one witness also said that McMillian could not recall what day it was after the collision. Officers responded within three minutes of the call because they were already in the area responding to another traffic incident.

         One of the officers who responded to the call, Joshua Coleman, testified in his deposition that he came into contact with McMillian about five minutes after arriving at the scene. While he was speaking with McMillian, Coleman noticed an odor of alcoholic beverage coming from McMillian's person and signs of impairment. Specifically, Coleman said, he noticed that McMillian's speech was slurred and that his eyes were bloodshot. Another officer at the scene, Steven Chandler, testified in his deposition regarding his written report of the incident. He said that he had noted asking McMillian if he was injured. During that exchange, Chandler had noted, McMillian's speech was slurred, he was slightly unsteady on his feet, and Chandler could smell alcohol on McMillian's breath and coming from his clothing. Based on those observations, Chandler determined that McMillian "was probably too intoxicated to be standing out in the street." McMillian was secured in the back of Coleman's vehicle. Coleman testified that he later noticed that McMillian had urinated "all over himself and all over the seat."

         In his deposition, Robinson testified that he arrived at the scene later than other officers and that, upon arriving, he located the black Chevrolet Impala automobile driven by McMillian deep in a patch of woods to the side of the interstate. He testified that the vehicle driven by Wiggins was wedged under the vehicle the Davises had been in. Robinson asked another officer where the driver of the black Chevrolet Impala was. Robinson was informed that the driver, McMillian, was being detained because an odor of alcoholic beverage was coming from his person.

         Robinson testified that, at around 10:40 p.m., he went to speak with McMillian, who was still being detained in the backseat of a police car. Robinson testified that he could smell an odor of alcoholic beverage coming from McMillian's person, that McMillian's eyes were bloodshot, that McMillian was unsteady on his feet, and that he had trouble following instructions. McMillian said that he had been drinking earlier and that he was coming from the dog-racing track when the accident occurred. During the deposition, Wiggins's attorney asked: "Corporal Robinson, as I understand it, ... starting from the minute witnesses arrived on the scene within minutes after the accident occurring, anybody that came in contact with Mr. McMillian observed some sign of alcohol. Is that correct?" Robinson responded affirmatively. Robinson testified that the signs of McMillian's alcohol consumption would have been visible to anyone looking at him.

         Robinson said that he asked McMillian to perform a field-sobriety test. McMillian indicated that he would be unable to perform the test because he suffered from bad knees as a result of diabetes. However, McMillian volunteered to provide a blood sample. Two blood samples were ultimately taken. At 11:06 p.m. on June 6, 2015, McMillian had a blood-alcohol concentration ("BAC") level of 0.202. At 12:14 a.m. on June 7, 2015, McMillian had a BAC level of 0.183. No alcohol containers were found in the vehicle McMillian was driving.

         Robinson testified regarding certain information that had been downloaded from the electronic-control modules located in the vehicle driven by McMillian and the vehicle driven by Wiggins. According to the data taken from the vehicle driven by McMillian, five seconds before the collision, McMillian had engaged "[t]he accelerator pedal percentage to full." At that time, "[t]he engine throttle percentage" was 80% and the vehicle was traveling at a speed of 97 miles per hour. The brake pedal was not activated until the last half second before the collision. At the moment of impact, the vehicle being driven by McMillian was traveling at a speed of 95 miles per hour.

         The data downloaded from the vehicle driven by Wiggins showed that, during the five seconds before the collision, the speed of the vehicle slowed from 32 miles per hour to 25 miles per hour. Wiggins was not engaging the accelerator pedal, and she was engaging the brake pedal intermittently. The data indicated that Wiggins had turned the steering at some point.

         Dr. Jack Kalin, a former toxicology-laboratory supervisor at the Alabama Department of Forensic Sciences, testified in his deposition regarding "the general effects of ethanol and ... signs and symptoms you might expect to see [and] the symptoms the subject may expect or experience at different alcohol concentrations." Dr. Kalin said that he could not give an opinion regarding whether McMillian exhibited specific signs and symptoms on the night of the collision because he did not personally observe McMillian's behavior. Dr. Kalin did, however, perform certain calculations based on McMillian's BAC levels that were recorded on the night of the collision.

         Based on McMillian's recorded BAC levels, Dr. Kalin was able to determine the specific rate at which McMillian eliminated alcohol from his system, i.e., his elimination rate. Dr. Kalin was able to determine, based on McMillian's elimination rate, McMillian's approximate BAC level at 9:15 p.m. on the night of the collision, or about one hour after he left the dog-racing track, which, he said, was the approximate time at which McMillian's body would have ...