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Recent Civil Law Decisions

From the Alabama Supreme Court:

Product Liability

Reyes v. Better Living, Inc., No. 1130716 (Ala. Feb. 2015)

Affirming that the 2011 Amendment to Ala. Code § 6-5-521, which precluded liability findings against product distributors and others who do not alter or produce products, applies retroactively.


Ex parte Baker, No. 1130810 (Ala. Feb. 13, 2015)

Holding that the circuit court lacked jurisdiction over the estate removal for the parties’ failure to follow DuBose v. Weaver, 68 So.3d 814, 821 (Ala. 2011), because "no administrator with the will annexed of Higgins’s estate was appointed, nor were letters of general administration C.T.A. issued by the probate court, before the estate was removed to the circuit court."

Accident Reports

Crusoe v. Davis, No. 1130798 (Ala. Feb. 20, 2015)

The supreme court affirmed the trial court’s exclusion of a police accident report, holding: (1) although the portions of the report that reflect the officer’s firsthand knowledge may be admissible, in this case the officer had no first-hand knowledge and did not have an independent recollection of recorded conversations, and thus the officer’s report was not admissible under past recollection recorded (and because he had no memory of the conversations or the accident, his testimony could not be buttressed by the report under present recollection revived); and (2) the report did not contain actual statements purportedly made by the defendant, and thus statements in the report could not be admitted as non-hearsay as a party-opponent admissions.

Recent Civil Decisions:

Alabama Supreme Court-

Inverse Condemnation

Ex parte ALDOT, No. 1101439 (Ala. Dec. 6, 2013)

Complaint sufficiently alleged a physical intrusion onto plaintiff's property, thus satisfying the standard of Willis v. University of North Alabama, 826 So.2d 118 (Ala. 2001). Justice Bolin, Shaw and Bryan concurred specially, noting their view that Willis should be overruled in that it wrongly requires a physical invasion of property, whereas injuries to property through government action should be compensable as takings.

Lost Profits; Mental Anguish; Punitive Damages

Pensacola Motor Sales, Inc. d/b/a Bob Tyler Toyota v. Daphne Automotive, LLC d/b/a Eastern Shore Toyota, No. 1110840 (Ala. Dec 6, 2013)

Eastern Shore Toyota is owned by Shawn Esfahani, born in Iran but a US citizen. Eastern Shore Toyota and Bob Tyler Toyota are Toyota dealers and competitors. Eastern Shore Toyota and Esfahani sued Bob Tyler Toyota and Keener (a Bob Tyler employee) for slander, based on statements made by Bob Tyler's employees calling Eastern Shore Toyota "Taliban Toyota" and "Middle Eastern Shore Toyota." At trial, witnesses who were customers testified that BTT's employees told customers that EST was Iraqi and was funneling money to terrorists. Eastern Shore Toyota presented a lost-profits expert who testified that Eastern Shore Toyota had lost $7.1 million in profits from these defamatory statements. The jury returned a verdict for Esfahani on slander per se for $1.25 million compensatory and $2 million punitive damages, and for Eastern Shore Toyota for $1.25 million compensatory and $3 million punitive damages. The Supreme Court of Alabama unanimously affirmed, holding:

  1. Bob Tyler Toyota failed to properly preserve for appeal the trial court's exclusion of evidence concerning parties' prior cybersquatting litigation in federal court;
  2. alleged hearsay evidence, even if inadmissible, was harmless because it was cumulative as to similar admissible evidence of defamatory statements;
  3. expert testimony was properly admitted, and could properly be attached for credibility on cross-examination;
  4. mental anguish and reputational damages of $1.25 million to Esfahani was not excessive in light of nature of the harm and injury;
  5. punitive damages of two times compensatory damages were reasonable and appropriate under the Gore and Hammond factors.

Indemnity; Joint Tortfeasors

Parker Towing Company, Inc. v. Triangle Aggregates, Inc., No. 1100510 (Ala. Dec. 13, 2013)

In a complex fact pattern, the court held: (1) no indemnity is owed as between joint tortfeasors under Alabama law; (2) any payment deemed a "voluntary payment" would not form basis for claim of indemnity under the voluntary payment doctrine; (3) common-law indemnity for attorney's fees would not lie where there was no basis for imposing indemnity obligations because of joint tortfeasor bar; but (4) a portion of attorney's fees attributable to certain reclamation work claim was subject to contractual liability.

Personal Jurisdiction; Collateral Attack of Foreign Judgment

Afassco, Inc. v. Sanders, No. 1120801 (Ala. Nov. 22, 2013)

In a domestication of judgment proceeding, a potential judgment defendant claiming lack of personal jurisdiction in the primary action may either ignore the proceedings and attack the judgment collaterally in an enforcement or domestication proceeding, or may appear in the primary action and challenge jurisdiction directly. Since defendant litigated the personal jurisdiction question in the prior primary action, he could not re-litigate the question in Alabama, even if the foreign court decided the personal jurisdiction question on procedural rather than substantive grounds.

Jury Waivers

Ex parte First Exchange Bank, No. 1111353 (Ala. Dec. 6, 2013)

In a per curium no-opinion denial of a petition for mandamus, Chief Justice Moore concurred specially, reasoning in a lengthy (50-page) writing that pre-dispute contractual jury waivers are unconstitutional as violating the right to a jury trial.

"As Is" Clause in Real Estate Contracts

Teer v. Johnston, 60 So.3d 253 (Ala. 2010)

Overruling Boswell v. Coker, 519 So.2d 493 (Ala. 1987), and Cruse v. Coldwell Banker/Graben Real Estate, Inc., 667 So.2d 714 (Ala. 1995) to the extent they differ, the Alabama Supreme Court in Teer strongly reaffirmed the application of the doctrine of caveat emptor to the sale of residential real estate (other than new homes) and specifically held that an "as is" clause in the parties' contract negated any claim of fraudulent misrepresentation associated w ith the property because it eliminated the element of reliance. In Teer, a seller's disclosure statement signed for the real estate agent represented that the property had not flooded, when in fact it had. The seller knew that the real estate on which her house was located had flooding problems and that it had flooded on a routine basis before she decided to sell it. Despite that knowledge, she represented to the purchasers that there were no flooding problems with the real estate and that it had never flooded. The buyers claimed they relied on this statement in executing the contract, but the disclosure form was not an attachment to the contract, was not referenced in it, and the contract contained a clause stating that the property was being sold "as is." Therefore, the Court concluded that the buyers could not have reasonably relied on the disclosure statement to assume that property had no such flood potential. The "as is" clause in the agreement negated any reliance that the purchasers may have had on previous representations made by the seller in the disclosure statement and thus the purchasers could not establish their fraud claim.

Auto Accidents - Signaling Motorist

Pell v. Tidwell, No. 2120313 (Ala. Civ. App. 2013)

"Because a driver cannot delegate his or [her] responsibility for ensuring that it is safe to proceed across an intersection...we now hold that, as a matter of law, a signaling motorist cannot be held liable for negligence when the signaled driver proceeds across an intersection without independently ensuring that it is safe to do so. In other words, the signaling motorist's conduct constitutes a courtesy to the signaled motorist, but it does not relieve the signaled motorist of his or her own duty to ensure that it is safe to proceed." Defendant Tidwell gave a hand signal to the driver of the car in which Pell was a passenger, Pell's driver proceeded, and a collision ensued. The Court of Civil Appeals addresses the question as one of first impression, reviews authorities from other jurisdictions, and affirms a judgment for Tidwell.

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Orange Beach, AL 36561
Phone: 251-202-7580
Fax: 251-580-0655
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Orange Beach, AL 36561
Phone: 251-202-7580
Fax: 251-580-0655


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