Katerial WIGGINS, individually and as administrator of the estate of Dominic G. Turner, deceased, and as next friend of Dominic Turner, Jr., a minor
MOBILE GREYHOUND PARK, LLP, and Mobile Greyhound Racing, LLP.
Denied August 23, 2019.
from Mobile Circuit Court (CV-16-900306)
[Copyrighted Material Omitted]
Cole Portis, Kendall C. Dunson, R. Graham Esdale, and
Stephanie S. Monplaisir of Beasley, Allen, Crow, Methvin,
Portis & Miles, P.C., Montgomery, for Appellant.
Charles A. Dauphin of Dauphin Paris LLC, Vestavia Hills, for
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
and Procedural History
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
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. 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. (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.
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.
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."
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."
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.
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
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).
Summary Judgment in Favor of MGR
first address Wiggins's challenge to the summary judgment
in favor of MGR. The Dram Shop Act provides, in relevant
"(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).
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.
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.
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.'"
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. 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.
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."
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
"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
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.
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.
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.
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.
1995)(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
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 ...