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Hawkins v. Simmons

Court of Civil Appeals of Alabama

October 4, 2019

Princess HAWKINS
v.
Jimmy SIMMONS and Worry Free Comfort System, Inc., d/b/a Freedom Heating & Cooling.

Page 684

[Copyrighted Material Omitted]

Page 685

         Appeal from Jefferson Circuit Court (CV-16-900854).

         Samuel E. Wiggins III of Wiggins Law Firm, LLC, Birmingham, for appellant.

          John W. Bergquist of Parsons, Lee & Juliano, P.C., Birmingham, for appellees.

         EDWARDS, Judge.

         Princess Hawkins appeals from a judgment as a matter of law ("JML") entered by the Jefferson Circuit Court ("the trial court") against her and in favor of Jimmy Simmons and his employer, Worry Free Comfort System, Inc., an Alabama corporation doing business as Freedom Heating & Cooling ("FHC").

         On March 5, 2016, Hawkins filed a complaint against Simmons and FHC alleging that, on July 29, 2015, Simmons had negligently caused the Chevrolet Silverado pickup truck he was driving for FHC to strike her while she was walking in a tunnel along 5th Avenue North in Birmingham.[1] Hawkins sought damages in the amount of $50,000. Simmons and FHC filed an answer denying Hawkins's allegations and asserting the contributory negligence of Hawkins as an affirmative defense.

         Trial of Hawkins's action began on October 22, 2018. On October 23, 2018, Simmons and FHC made an oral motion for a JML at the close of Hawkins's case-in-chief. Simmons and FHC argued (1) that Hawkins's evidence would not support a finding that Simmons had been negligent, (2) that the evidence established that Hawkins had been contributorily negligent as a matter of law, and (3) that, assuming Hawkins had been contributorily negligent, the evidence would not support a determination that Simmons had been subsequently negligent. The trial court granted Simmons and FHC's motion for a JML regarding the issue of subsequent negligence by Simmons and denied their motion for a JML regarding Hawkins's purported failure to present substantial evidence that Simmons had been negligent. The trial court deferred its decision regarding whether to grant a JML as to Hawkins's alleged contributory negligence until after Simmons and FHC presented their case.[2] After the close of the evidence, Simmons and FHC renewed their motion for a JML, and the trial court granted the motion on the ground that the evidence purportedly

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established that Hawkins had been contributorily negligent and that her negligence was a proximate cause of the accident, as a matter of law. On October 24, 2018, the trial court entered a judgment in favor of Simmons and FHC and against Hawkins.

         Hawkins timely filed a motion for a new trial pursuant to Rule 59, Ala. R. Civ. P., making the same arguments that she had made in response to Simmons and FHC's arguments for a JML at the close of the evidence. Specifically, Hawkins argued that a question of fact existed regarding her alleged contributory negligence and that the trial court had erred by basing its decision that she had been contributorily negligent as a matter of law on the opinion of Birmingham Police Officer Anthony Fields, who had investigated the accident. Hawkins argued:

"Under Alabama law, opinion evidence is not conclusive on the trier of fact. Stewart v. Busby, [51 Ala.App. 242]284 So.2d 269, 272 (Ala.Civ.App. 1973). Specifically, Alabama courts have held that `an expert opinion, or expert testimony in some other form, is admitted to assist the trier of fact. What weight, if any, is given such testimony is for the trier of fact.' Breland v. Rich, 69 So.3d 803, 812 (footnote) (Ala. 2011). Further, `expert opinion testimony may not be binding on a trial court, even if it is uncontradicted. "[A]n expert opinion is not conclusive on the trier of fact even if the testimony was uncontroverted. Furthermore, the weight and credibility to be attributed to an expert witness is for the trier of fact.'" Musgrove v. State, 144 So.3d 410, 432 (Ala.Crim.App. 2012); (quoting Clark Lumber Co. v. Thornton, 360 So.2d 1019, 1021 (Ala.Civ.App. 1978).

"Because the weight and credibility attributed to Officer Fields's testimony is for the trier of fact, the jury may accept or reject any part of his testimony and accept only the testimony worthy of belief. See [Alabama Pattern Jury Instruction] 15.02. Further, Officer Fields was a lay witness and his testimony carries less weight than expert testimony. Box v. Box, [253 Ala. 297]45 So.2d 157, 160 (Ala. 1950)....

"A [JML] is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ. Baker v. Heims [Helms], 527 So.2d 1241, 1243 (Ala. 1988)."

         Hawkins further argued that Simmons had breached his duty of care by failing

"to anticipate her presence on the road, therefore a jury could have found him negligent. Violation of a statute by the Plaintiff will not in itself prevent recovery on the ground of contributory negligence, if the violation is not a contributing cause of the injury. Allman [v. Beam], [272 Ala. 110');">272 Ala. 110, 114,] 130 So.2d [194,] 197 [(1961)]. Whether [Hawkins's] conduct in violation of a statute contributed to her injuries so as to bar recovery is a question of fact for the jury. Allman[, supra]."

         Simmons and FHC responded to Hawkins's Rule 59 motion, making the same arguments that they had made in support of a JML. Regarding Hawkins's alleged contributory negligence, Simmons and FHC argued that Hawkins had violated ordinances from the Birmingham City Code, specifically § 10-3-1, which provides that "[i]t shall be unlawful for any person to do any act forbidden ... in this title," and § 10-3-8, which provides:

"(b) Where sidewalks are not provided any pedestrian walking along and upon a highway shall when practicable walk only on the left side of the roadway or

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its shoulder facing traffic which may approach from the opposite direction."

         Simmons and FHC also cited Ala. Code 1975, § 32-5A-215(c), which provides that "[w]here neither a sidewalk nor a shoulder is available any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway, and if on a two-way roadway, shall walk only on the left side of the roadway." Simmons and FHC argued:

"Hawkins conceded that she had training and knowledge of the applicable Rule of the Road and City Code section, and that she was in violation of the statutes. She testified that she was of the class of person that the statutes were designed to protect.... [T]here was no testimony to contradict in any manner the testimony of Officer Fields, which was received without any objection. He confirmed that ... Hawkins [was] part of the class of person the statutes are designed to protect and that taking into account his investigation, training and knowledge, ... Hawkins's actions caused or contributed to cause the accident."

         Simmons and FHC argued that Hawkins's violation of the foregoing ordinances and statute governing pedestrians amounted to negligence per se; that even if Hawkins's violations were not negligence per se, she had been contributorily negligent as a matter of law; and that no question of fact existed regarding whether Hawkins's own actions caused or contributed to the accident.

         On November 9, 2018, the trial court entered an order denying Hawkins's Rule 59 motion. On November 21, 2018, she filed a notice of appeal to this court.

         "[An appellate court] reviews de novo the grant or denial of a motion for a JML, determining whether there was substantial evidence, when viewed in the light most favorable to the nonmoving party, to produce a factual conflict warranting jury consideration." Edwards v. Allied Home Mortg. Capital Corp., 962 So.2d 194, 206 (Ala. 2007).

"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 JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)."

Waddell & Reed, Inc. v. United Inv'rs Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003); see also , Ala. Code 1975, § 12-21-12(a); Ex parte McInish, 47 So.3d 767, 774 (Ala. 2008). "[S]ubstantial 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).[3] In reviewing a ruling on a motion for a JML, an appellate court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would ...


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