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Contributory Negligence Per Se - Subsequent Negligence - Wantonness

Pruitt v. Oliver, [Ms. 1190297, Jan. 29, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Mendheim, J.; Bolin, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur; Parker, C.J., concurs in part and concurs in the result; Shaw, J., concurs in the result) affirms the Jefferson Circuit Court’s summary judgment dismissing Pruitt’s wantonness claim and reverses the summary judgment on his negligence claim. Pruitt was injured when his motorized wheelchair was struck from the rear by Oliver’s vehicle as Pruitt was driving the wheelchair in the left lane of Palisades Boulevard.

Although the Court concludes that Pruitt’s motorized wheelchair was a “motor vehicle” as defined by § 32-1-1.1(33), Ala. Code 1975, and was not in compliance with a number of statutes, the Court reverses the summary judgment based on contributory negligence per se

As this Court has explained: “[N]ot every violation of a statute or an ordinance is negligence per se. This Court has stated that four elements are required for violation of a statute to constitute negligence per se: (1) The statute must have been enacted to protect a class of persons, of which the plaintiff is a member; (2) the injury must be of the type contemplated by the statute; (3) the defendant must have violated the statute; and (4) the defendant’s statutory violation must have proximately caused the injury.” Parker Bldg. Servs. Co. v. Lightsey, 925 So. 2d 927, 931 (Ala. 2005) (emphasis added). If Pruitt had been traveling in a car with a broken taillight or a faulty horn, instead of in a motorized wheelchair, it could not be concluded as a matter of law that those deficiencies were the proximate cause of the accident with Oliver. Likewise, it cannot be concluded as a matter of law that the accident would not have occurred if Pruitt’s wheelchair had been equipped with more reflective devices, brake lights, headlamps, brakes, or a horn.

Ms. **33-34.

The Court also reverses the circuit court’s conclusion that there was not a triable issue on Oliver’s subsequent negligence. The Court acknowledges that “‘[t]he doctrine of subsequent negligence on the part of the plaintiff or defendant is not to be applied in a case where the manifestation of peril and the defendant’s actual knowledge of the plaintiff’s peril catastrophe are so close in point of time as to leave no room for preventive effort.’” Ms. **35-36, quoting Owen v. McDonald, 291 Ala. 572, 575, 285 So. 2d 79, 81 (1973). However, the Court reiterates that “‘actual knowledge [of plaintiff’s peril] may be inferred from proof that the driver was looking in the direction of the victims and that her view was unobstructed.’” Ms. *37, quoting Dees v. Gilley, 339 So. 2d 1000, 1002 (Ala. 1976). And explains further that while “‘knowledge of the plaintiff’s peril in a subsequent negligence case may not be ‘imputed’ to a defendant; the defendant’s knowledge may, however, be ‘inferred,’ if such an inference would be reasonable under the totality of the circumstances.’ Zaharavich [v. Clingerman, 529 So. 2d 978, 980 (Ala. 1988)]. Ms. *38.

The Court affirms the summary judgment dismissing the wantonness claim. While reiterating that “speed, coupled with other circumstances, may amount to wantonness,” Ms. *40, the Court concludes

The additional circumstances Pruitt contends are evidence of wantonness really just amount to evidence of inadvertence: Oliver’s alleged failure to see Pruitt despite clear visibility because of the streetlight and the reflective devices on Pruitt’s wheelchair. There is no evidence indicating that Oliver committed a conscious act or had knowledge that an injury would probably result from his manner of driving.

Ms. **41-42.

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