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Respondeat Superior - JML - Expert Testimony

Hinkle Metals & Supply v. Feltman, [Ms. 1170512, Feb. 15, 2019] __ So. 3d __ (Ala. 2019). This decision (Sellers, J.; Parker, C.J., Wise and Stewart, JJ., concur; Bryan, J., concurs in the result) affirms a judgment entered on a $375,000 jury verdict in favor of Feltman for injuries she suffered when she was struck by a truck driven by Gabriel Butterfield, an employee of Hinkle Metals & Supply Company, Inc. (“Hinkle”).

Hinkle contended that at the time of the accident, Butterfield was not acting within the line and scope of his employment. Ms. *2. The Court first noted that “‘an employee’s tort is not attributable to his employer if it stems from personal motives and objectives of the employee. Plaisance v. Yelder, 408 So. 2d 136 (Ala. Civ. App. 1981). However, the fact that an employee is combining personal activities with the employer’s business does not necessarily signify an action outside the scope of employment.’” Ms. *12, quoting Hudson v. Muller, 653 So. 2d 942, 944 (Ala. 1995).

Hinkle contended that at the time of the accident, Butterfield was on a personal mission to file for his homestead exemption at the Jefferson County Courthouse. The Court rejected Hinkle’s argument for a JML on this basis, holding that

A fair-minded person could reasonably conclude that Butterfield traveled to Birmingham on the day of the accident for both a personal purpose (to file for the homestead exemption) and a business purpose (to pick up the air-handler unit from Hinkle’s Birmingham warehouse). In cases where an employee combines personal activities with the employer’s business, this Court has held that the question whether the employee is acting within the line and scope of his employment is a factual question for the jury. See Hudson v. Muller, 653 So. 2d 942, 944 (Ala. 1995). The trial court, therefore, did not err in denying Hinkle’s motion for JML.

Ms. *15.

The Court also rejected Hinkle’s argument that the circuit court erred in admitting the testimony of Feltman’s expert providing historical cell-site analysis of Butterfield’s call records on the date of the accident. Hinkle contended the testimony could not assist the trier of fact and should be excluded under Rule 702(a), Ala. R. Evid. Ms. *17. The Court noted that Feltman’s expert did not “overpromise” on the accuracy of historical cell-site analysis and openly acknowledged the limitations inherent in applying the technique. The Court held that in this setting it was “the jury’s responsibility to determine the weight to accord Draper’s testimony.” Ms. *20.

The Court also rejected Hinkle’s challenge to the expert testimony under Rule 703, Ala. R. Evid. because that argument was not presented to the circuit court. Ms. *21.

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