[Copyrighted Material Omitted]
from Jefferson Circuit Court (CV-16-900854).
E. Wiggins III of Wiggins Law Firm, LLC, Birmingham, for
W. Bergquist of Parsons, Lee & Juliano, P.C., Birmingham,
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").
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. 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.
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. 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
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
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
"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)."
further argued that Simmons had breached his duty of care by
"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[,
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
its shoulder facing traffic which may approach from the
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
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.
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.
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.
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). 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 ...