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Campbell v. Kennedy

Supreme Court of Alabama

October 26, 2018

Stuart McQuaid Campbell, Jr., and Tomlin Construction, LLC
Eduard David Evans Kennedy

          Appeal from Greene Circuit Court (CV-10-900041)


         Eduard David Evans Kennedy sued Tomlin Construction, LLC, and its employee, Stuart McQuaid Campbell, Jr., seeking damages for personal injuries Kennedy suffered when the Plymouth Grand Voyager passenger van he was driving collided with a 2007 Caterpillar motor grader belonging to Tomlin Construction and being operated by Campbell; the accident occurred in a construction zone. The jury returned a verdict in favor of Kennedy, awarding him compensatory damages in the amount of $3, 000, 000. Campbell and Tomlin Construction filed a postjudgment motion for a judgment as a matter of law ("JML"), a new trial, or a remittitur of damages; the trial court denied that motion. Campbell and Tomlin Construction appeal. We affirm.

         I. Facts and Procedural History

         On September 1, 2009, the Alabama Department of Transportation ("ALDOT") contracted with Tomlin Construction, a road-construction and excavation company, for work on a "0.945 mile bridge replacement and approaches" on U.S. Highway 43 in Greene County. Pursuant to the terms of the contract, ALDOT prepared the project specifications, including the traffic-control plans, and had supervisors on site to ensure compliance with those specifications and plans.

         On June 17, 2010, at approximately 2:30 p.m., Kennedy, accompanied by four passengers, was traveling in his van on Highway 43 in the northbound lane[1] where, in connection with the above-described construction project, Campbell was operating a Caterpillar motor grader in the same lane of travel. As Kennedy's van attempted to proceed around the motor grader by crossing the double-yellow line into the southbound lane, the motor grader undertook a lefthand turn, causing the front left wheel housing and steer axle (hereinafter "the front axle") of the motor grader and the van to collide. Immediately following the accident, Kennedy was transported to Druid City Hospital in Tuscaloosa where he was treated for fractures to both sides of his jaw, a broken femur, and a pulmonary contusion.

         In August 2010, Kennedy sued Campbell and Tomlin Construction, alleging that Campbell, while working in the line and scope of his employment with Tomlin Construction, had been negligent in operating the motor grader and that Campbell's negligence was the proximate cause of the accident.[2] Campbell and Tomlin Construction moved for a summary judgment, asserting, among other things, that Kennedy had been contributorily negligent as a matter of law in causing the accident. In opposition, Kennedy moved for a summary judgment or, alternatively, for sanctions, arguing that Larry Tomlin, the owner of Tomlin Construction, had engaged in spoliation of evidence. Specifically, Kennedy asserted that, one week after the accident, counsel for Kennedy sent Tomlin a letter indicating that the motor grader was vital to their investigation of the accident, that they expected to be able to inspect the motor grader, and that they were requesting that the motor grader be retained in its immediate post-accident state until they could perform their inspection. Tomlin sent Kennedy's counsel a reply letter informing counsel that the motor grader remained at Tomlin Construction's worksite but was scheduled for repairs beginning July 15, 2010. Tomlin and his insurance carrier agreed to halt all repairs to the motor grader until Kennedy's counsel could inspect the motor grader on July 19, 2010. However, when Kennedy's counsel arrived at the worksite for the inspection, the motor grader was present, but the front axle had already been removed. The trial court denied Kennedy's motion for sanctions and/or a summary judgment based on the alleged spoliation of evidence; the trial court ruled, however, that Kennedy could present his spoliation-of-evidence claim to the jury. The case proceeded to trial. At the close of Kennedy's evidence and at the close of all the evidence, Campbell and Tomlin Construction moved for a JML, arguing that there was no evidence indicating that they had breached any duty of care owed Kennedy based on Tomlin Construction's compliance with all ALDOT specifications with regard to the construction project. They also argued that Kennedy had been contributorily negligent as a matter of law in causing the accident.

         As indicated, the jury returned a verdict in favor of Kennedy in the amount of $3, 000, 000; the trial court entered a judgment on the verdict. Following the denial of their postjudgment motion, Campbell and Tomlin Construction appealed.

         II. Discussion

         A. JML--Negligence

         Campbell and Tomlin Construction contend that the trial court erred in denying their motion for a JML because, they argue, Kennedy's alleged violation of Alabama's Rules of the Road constituted negligence per se and, thus, Kennedy was contributorily negligent as a matter of law. It is well settled that,

"[w]hen reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. 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 substantial evidence to allow the factual issue to be submitted to the jury for resolution. Carter v. Henderson, 598 So.2d 1350 (Ala. 1992). See, also, § 12-21-12, Ala. Code 1975, and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). A motion for JML 'is properly denied where there exists any conflict in the evidence for consideration by the jury.' Cloverleaf Plaza, Inc. v. Cooper & Co., 565 So.2d 1147, 1149 (Ala. 1990). In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences from that evidence as the jury would have been free to draw."

Daniels v. East Alabama Paving, Inc., 740 So.2d 1033, 1037 (Ala. 1999).

         In Norfolk Southern Ry. v. Johnson, 75 So.3d 624, 639 (Ala. 2011), this Court stated, concerning contributory negligence:

"'Contributory negligence is an affirmative and complete defense to a claim based on negligence. In order to establish contributory negligence, the defendant bears the burden of proving that the plaintiff 1) had knowledge of the dangerous condition; 2) had an appreciation of the danger under the surrounding circumstances; and 3) failed to exercise reasonable care, by placing himself in the way of danger.'
"Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala. 1998). The issue of contributory negligence is generally one for a jury to resolve. Id. See also Savage Indus., Inc. v. Duke, 598 So.2d 856, 859 (Ala. 1992) ('The issue of contributory negligence cannot be determined as a matter of law where different inferences and conclusions may reasonably be drawn from the evidence.')."

         Campbell and Tomlin Construction specifically argue that Kennedy, in crossing the double-yellow line in an attempt to pass the motor grader, violated § 32-5A-86, Ala. Code 1975, which provides, in pertinent part:

"(b) Where signs or markings are in place to define a no-passing zone ... no driver shall at any time drive on the left side of the roadway within such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.
"(c) This section does not apply under the conditions described in Section 32-5A-80(a)(2), nor to the driver of a vehicle turning left into or from an alley, private road, or driveway."

(Emphasis added.) Section 32-5A-80(a)(2), Ala. Code 1975, provides that "a vehicle shall be driven upon the right half of the roadway," except

"[w]hen an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person doing so shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within ...

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