The Supreme Court of Alabama has recently decided several cases affecting the burden and the manner of proof of wantonness. In the most recent case as of this writing, Lance, Inc. v. Ramanauskas, (Ms. 1970952, Mar. 5, 1999) __So 2d ___ (Ala 1999), the Supreme Court conducted a detailed analysis of the evidence and held that the plaintiffs had presented substantial evidence of wantonness. In another recent case, Alfa Mutual Ins. Co. v. Roush, 723 So. 2d 1250 (Ala 1998), the Supreme Court overruled an earlier case that had suggested that a specific design or intent to injure the plaintiff was an element of a claim for wantonness. Other recent cases further indicate what the Supreme Court will consider to be sufficient evidence of wantonness and how the statutory requirement of clear and convincing evidence to recover punitive damages in wantonness will be applied. This article discusses these recent developments in the law.

Lance, Inc. v. Ramanauskas, supra, was a wrongful death action against a vending machine distributor whose machine had electrocuted the plaintiffs' ten-year-old son. The plaintiffs alleged, and proved to the satisfaction of the jury and the trial judge, that Lance had, in its contract with the motel on whose premises the vending machine was located, assumed a duty to "maintain and keep [the vending machine] in good working order," Ms. p. 7. In its discussion of the negligence count, the Supreme Court held that the parents had "submitted substantial evidence that it was foreseeable that injury could occur if the vending machine was not properly installed and maintained, and that, therefore, the question of foreseeability was properly submitted to the jury." Ms. pp. 6-7. The Supreme Court held that the parents had presented a question of fact on their allegation that Lance had breached that duty by failing to test the electrical outlet to determine whether it was properly grounded. The plaintiffs had presented evidence that the danger of electrocution from ungrounded outlets was well known and that the Lance employees could have used a simple $5.00 tester to determine whether the outlet was grounded. The Supreme Court further held that a fact question was presented on the issue of causation.

On the wantonness count the Supreme Court discussed further the extent of Lance's knowledge or notice of the hazards of ungrounded outlets and its conduct in light of that knowledge. Two aspects of this discussion are significant: The Court applied an objective, general standard of knowledge, rather than the limited, fact-specific test for which Lance argued, and the Court considered evidence of Lance's conduct after the accident in addition to evidence of its pre-accident conduct.

On the first question the Court said:

"Lance, in effect, argues ... that unless Lance knew that the outlet into which its vending machine was plugged was not grounded, it could not be liable. We view the question of Lance's knowledge differently. We find the critical question to be whether it knew the necessity for testing electrical receptacles to which its vending machines are connected for adequate grounding at facilities such as the motel where the death occurred. As previously noted, the evidence of Lance's practices before the child's death, when coupled with the contents of Lance's safety manual and the expert opinion testimony concerning foreseeability, was sufficient to show circumstances from which one could reasonably infer such knowledge. See Hamme v. CSX Trans., Inc., 621 So. 2d 281, 283 (Ala 1993) (stating that to show wantonness '[t]he actor's knowledge may be proved by showing circumstances from which the fact of knowledge is a reasonable inference')."

Ms. pp. 14-15.

Thus, the Court held both that an actor's general knowledge of the circumstances is the relevant question, not a narrow question limited to the specific case, and that a plaintiff may prove such knowledge by circumstantial evidence and reasonable inferences.

On the question of post-accident conduct, the Court said:

"Although much of the evidence marshaled by the parents relates to Lance's conduct after the child's death, the evidence they presented relating to Lance's conduct before the child's death was sufficient for the trial court to submit the wantonness claim to the jury. In addition, we note that Lance has not challenged the evidence of its conduct after the accident on grounds of relevancy. Because evidence of duration of the conduct is relevant to the issue of punitive damages Green Oil Co. v. Hornsby, 539 So. 2d 218, 223 (Ala 1989), and BMW of North America, Inc. v. Gore, 517 U.S. 559, 1996, we include the evidence of Lance's conduct both before and after the child's death in the following summary."

Ms. p. 12.

The evidence recited at pages 12 -14 shows that although Lance's routeman checked the machine weekly he had received no training on grounding either before or after the child's death. The evidence showed that Lance had a safety manual which required that a vending machine "must be grounded." Nevertheless Lance's routemen were not aware of the contents of the safety manual, nor had Lance provided them with $5.00 electrical outlet testers. Other evidence from a supervisor and from Lance's human resource manager confirmed that Lance had not taken any steps at any time to implement safety procedures regarding grounding of its vending machines.

The Supreme Court held that Lance's failure after the accident to institute any safety procedures was relevant as to its culpability based on the duration of its wrongful conduct. Arguably the evidence was admissible on the question of liability also, because it was impossible to segregate the evidence as to Lance's failure to engage in training and otherwise provide for safety before and after the death of Shawn Ramanauskas. That is, if Lance had never provided electrical outlet testers for example it would have been misleading to have limited the testimony to the question of whether Lance had provided electrical outlet testers before Shawn's death. However, because Lance had not objected to the post-accident evidence on the ground of relevancy to the question of liability, the Supreme Court did not decide that question.

Alfa Mutual Insurance Company v. Roush, supra is a mixed blessing for the plaintiff's bar. On request of the plaintiffs and the Alabama Trial Lawyers' Association1 the Court overruled Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142, 145 (Ala 1987), to the extent that Lynn Strickland "suggested that a specific design or intent to injure the plaintiff was an element of a claim for wantonness." Alfa v. Roush, 723 So. 2d at 1256. The Roush Court set forth the following specification of the standards of proof for wantonness:

"'Wantonness' is statutorily defined as '[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.' Ala. Code 1975, § 6-11-20(b)(3). 'Wantonness' has been defined by this Court as the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So. 2d 601 (Ala. 1994). To prove wantonness, it is not essential to prove that the defendant entertained a specific design or intent to injure the plaintiff. Joseph v. Staggs, 519 So. 2d 952 (Ala 1988)."

Alfa v. Roush, 723 So. 2d at 1256.

On the other hand, the Court in Alfa v. Roush arguably applied a more restrictive sufficiency-of-the-evidence review than it did in Lance, Inc. v. Ramanauskas:

"We agree that the evidence would support a finding that Alfa was heedless in encouraging its agents to sell pool insurance coverage in order to procure more business for Alfa, without establishing any form of agency accountability for the premiums paid for the pool insurance coverage. However, the evidence is not sufficient in itself to establish that Alfa wantonly encouraged this practice. To prove that, the plaintiffs had to present evidence that Alfa knew that the practice would likely or probably result in the harm or loss that Patronas caused."

Alfa v. Roush, 723 So. 2d at 1256. (emphasis added).

Alfa's agent, Patronas, stole the premium that the plaintiffs paid for worker's compensation insurance to be issued by an insurer other than Alfa. The evidence showed that while Alfa had strict accounting practices for premiums received for its policies, it had no such accounting procedures in place for premiums received for policies to be issued by a company other than Alfa. The plaintiffs alleged that this failure to supervise its agents and to institute safety procedures regarding their acceptance of premiums that Alfa encouraged the agents to solicit constituted wantonness because of Alfa's consciousness that failure to guard premiums against theft would likely or probably result in theft. Alfa demonstrated that consciousness by instituting strict protections for its own premiums. As a reader can see from the above quotation and from other portions of the opinion, the Court viewed the question of wantonness narrowly, virtually holding that because Alfa had no prior indication that Patronas himself would abscond with unguarded premiums it was not wanton in this specific instance. This narrow view is arguably contrary to the Court's view of the evidence in a system-wide manner in Lance v. Ramanauskas, supra.

In Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651 (Ala 1998), the Court engaged in both the narrow, case-specific analysis of Alfa v. Roush, and the broader analysis of Lance v. Ramanauskas. A footlocker stored on an upper shelf had fallen on Mrs. Thompson's head, and she recovered a verdict and judgment against Wal-Mart for both negligence and wantonness. The Supreme Court reversed the judgment, holding: "Construing the evidence in the light most favorable to Mrs. Thompson, we cannot classify Wal-Mart's behavior as wanton." Wal-Mart, 726 at 655.

Much of the Court's language appears to require evidence of a likelihood of causing the specific injury alleged, rather than a likelihood of causing some injury such as the one alleged:

"On her wantonness claim, Mrs. Thompson had to present evidence indicating that Wal-Mart knew that a practice it was engaging in would likely or probably result in the injury allegedly suffered by Mrs. Thompson."

726 So. 2d at 654 (emphasis added).

"There was no evidence to indicate that any Wal-Mart employee 'wantonly' caused the footlocker to fall. Further, there was no evidence to indicate that Wal-Mart 'wantonly' failed to prevent Mrs. Thompson's injury."

Id.

However, the opinion also speaks in terms of general practices of Wal-Mart:

"Although Wal-Mart's Thomasville store had received two or three reports of falling merchandise before this accident, the manager of that store had no information from which they could have known that an accident of the kind which occurred in this case was likely to happen. The evidence was not sufficient to support a finding that Wal-Mart was reckless in storing footlockers on the risers. Wal-Mart had both corporate and local safety teams, safety manuals, and safety reinforcement mechanisms."

Id. (emphasis added). Further, "There was evidence indicating that Wal-Mart had enforced a plethora of safety measures in order to protect employees and customers." 726 So. 2d at 654-55.

It is not clear whether the Court considers there to be two different means of proving wantonness or simply has not focused on this question. The cases seem to present an opportunity to develop two lines of proof of wantonness. If the plaintiff has specific evidence of reckless or conscious disregard for safety in the specific circumstances of the plaintiff's injury, such evidence alone will support a claim of wantonness. If the evidence is weak or absent as to wanton conduct immediately preceding the plaintiff's injury, the plaintiff should focus on the system-wide practices of the defendant and cite Lance v. Ramanauskas for the argument that knowledge of a risk coupled with failure to take safety precautions can constitute wantonness regardless of the defendant's knowledge regarding the specific circumstances that led to the plaintiff's injury. Even if there is case-specific evidence, systemic evidence would support the proof of wantonness and increase the degree of culpability.

The Pattern Jury Instruction on wantonness allows for such a view that wantonness may be limited to the circumstances at hand or may be a generalized breach of a known duty:

"Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty an injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he either consciously and intentionally did some wrongful act or consciously omitted some known duty which produced the injury."

APJI 29.00, Alabama Pattern Jury Instructions--Civil (2d ed. 1993).

Another point that is noteworthy from Wal-Mart v. Thompson is the Court's statement regarding the burden of proving wantonness: "The standard required to support a wantonness claim is a high one and should remain such." 726 So. 2d at 653. Conceivably this statement applies only to the extent that the plaintiff seeks punitive damages based on wantonness, as discussed below. To the extent that the plaintiff is trying to defeat a contributory negligence defense or escape the rigors of the Guest Statute, there is no clear reason why proof of wantonness should require any "higher standard" than any other tort.

The "high standard" mentioned in Wal-Mart v. Thompson requires the plaintiff to present "clear and convincing evidence" to support an award of punitive damages. Ala. Code 1975, § 6-11-20. Two important cases speak to the question of how a trial court is to address an argument that the plaintiff has not submitted clear and convincing evidence: Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala 1994), overruled on other grounds, State Farm Fire and Casualty Company v. Owen, [Ms. 1961950, as modified on denial of rehearing, Mar. 12, 1999] ___ So. 2d ___ (Ala 1999); and Ex Parte Norwood Hodges Motor Company, 680 So. 2d 245 (Ala 1996). Both of these cases are fraud cases but they address generally the application of the clear and convincing evidence standard from Ala. Code 1975, § 6-11-20(a), which provides:

"Punitive damages may not be awarded in any civil action, except civil actions for wrongful death pursuant to § 6-5-391 and § 6-5-410, other than in a tort action where it proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff."

Hines was an appeal from a summary judgment for the defendants based, inter alia, on the circuit court's holding that the evidence was insufficient to support a "claim for punitive damages" because, the trial court held, the plaintiffs had not presented "clear and convincing" evidence. 655 So. 2d at 917. In discussing whether the trial court had properly entered a summary judgment on this basis, the Supreme Court contrasted Ala. Code 1975, § 12-21- 12 and § 6-11-20(a). The former section provides that "proof by substantial evidence shall be required to submit an issue of fact to the trier of facts." The latter section regards when punitive damages may be "awarded." The Court held:

"The question whether a plaintiff proved the requisite wrongfulness by a sufficient weight of the evidence to allow the jury to award punitive damages is but one issue of damages for a trier of fact when it is presented a claim on which the law authorizes the award of punitive as well as compensatory damages. For example, a claim of wantonness is not a 'claim of punitive damages'; rather, it is a claim on which, under our law, a trier of fact has the authority in its discretion to impose punitive damages. If sufficiently proved, a claim of wantonness can legally support either an award of compensatory damages or an award of both compensatory and punitive damages. Because punitive damages are awarded on a tort claim that ordinarily may otherwise be submitted to the jury on substantial evidence, the question of whether there is clear and convincing evidence of wrongful conduct that will support an award of punitive damages does not arise until the trial, when a defendant objects to the submission to the jury of the question of punitive damages on the ground that clear and convincing evidence of the requisite wrongful conduct has not been presented."

655 So. 2d at 925-26(e) (emphasis added).

The Court addressed a directed verdict motion in Norwood Hodges, supra:

"Thus, in this case, the trial court should have determined whether the evidence warranted submitting the issue of punitive damages to the jury, i.e., whether there was evidence of such quality and weight that a jury of reasonable and fair-minded persons could find by clear and convincing evidence that the defendant consciously or deliberately engaged in fraud; then the Court should have instructed the jury that, to award punitive damages, it must find that Rosa Iliff had proven by clear and convincing evidence that Hodges consciously or deliberately defrauded her."

680 So. 2d at 249 (emphasis added).

"After reviewing the evidence presented at trial, we conclude that there was sufficient evidence to support a finding, by clear and convincing evidence, that Hodges consciously and deliberately defrauded Rosa Iliff ... and that the jury could have believed the fraud was malicious, oppressive, or gross. Thus the trial court should have allowed the jury to consider the punitive damages claim."

680 So. 2d at 250 (emphasis added).

Significantly, the Court carefully avoided saying that the trial court is to determine whether the evidence is clear and convincing. Such a holding by the trial court would require weighing of evidence by the trial court, which is not a function traditionally exercised by trial courts in jury trials. Rather, the Supreme Court said the court was simply to determine whether "a jury of reasonable and fair-minded persons could find by clear and convincing evidence" the type of wrongful conduct that will support an award of punitive damages. Thus, unless no properly functioning jury could find the evidence of wrongful conduct to be clear and convincing, the court should submit the question of punitive damages to the jury under an instruction that to award punitive damages it must find that the plaintiff had proven by clear and convincing evidence that the defendant had engaged in the specified wrongful conduct.

In any event, § 6-11-20 does not affect whether a trial court should submit a claim for compensatory damages based on wantonness to a jury. As to the compensatory damages claim, Hines and Norwood Hodges, as well as the text of §§ 6-11-20 and 12-21-12, establish that a trial court should apply the "substantial evidence" standard to a directed verdict motion and then should instruct the jury that the plaintiff's burden is to prove wantonness by a preponderance of the evidence. In this context, the statement in Wal-Mart, supra, that "the standard required to support a wantonness claim is a high one and should remain such," may be subject to qualification and limitation to the question of an award of punitive damages.

In summary, the plaintiffs' bar should take note of the recent cases, especially Lance v. Ramanauskas, allowing proof of wantonness by evidence of the defendant's general knowledge of the circumstances rather than solely by evidence limited to the particular events surrounding the plaintiff's injury. Although the Court's cases are not entirely consistent on this question, effective advocacy can make the analytical distinction and succeed in proving wantonness in a proper case where a systemic failure to attend to known danger has resulted in injury. Furthermore, plaintiffs' counsel should be alert to the possibility of drawing the distinction between compensatory and punitive damages in wantonness, allowing a wantonness claim to go to a jury on substantial evidence even though an award of punitive damages would be subject to the higher "clear and convincing evidence" standard.

Note:

George M. Dent, III, became an associate with Cunningham, Bounds, Yance, Crowder, and Brown, L.L.C., in January 1999. He served as staff attorney for Associate Justice Reneau P. Almon from 1982-99 after serving as Faulkner Division Law Clerk in 1981-82. Mr. Dent graduated from Yale University in 1978 and from the University of Alabama School of Law in 1981. He was admitted to the Alabama State Bar in 1981.

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1 Special thanks go to ATLA member Michael Roberts of Cusimano, Keener, Roberts & Kimberly, P.C., for his excellent brief as amicus curiae.