Admission By Party Opponent – Imputed Contributory Negligence – Combined and Concurring Causes

Haddan v. Norfolk Southern Railway Co., et al., [Ms. 1190976, Feb. 4, 2022] __ So. 3d __ (Ala. 2022). In a plurality opinion, the Court (Stewart, J.; Bryan, Mendheim, and Mitchell, JJ., concur; Shaw and Sellers, JJ., concur in part and dissent in part; Bolin, J., concurs in the result; Parker, C.J., dissents; Wise, J., recuses) reverses the Lee Circuit Court’s summary judgment in favor of Norfolk Southern on a negligence claim asserted by Yulanda Haddan, a passenger in a pickup truck struck by a train at a rail crossing. The circuit court concluded that Haddan could not recover against Norfolk Southern because the driver of the truck “failed to stop, look, and listen before entering the crossing and that failure was the sole proximate cause of Haddan’s injury.” Ms. *2.

The opinion first addresses Haddan’s argument that the circuit court erred in striking a portion of her deposition testimony as hearsay. The opinion reiterates “‘[i]n reviewing a ruling on the admissibility of evidence, ... the standard is whether the trial court exceeded its discretion in excluding the evidence.’ Woven Treasures, Inc. v. Hudson Cap., L.L.C., 46 So. 3d 905, 911 (Ala. 2009).” Ms. *7.

The circuit court struck from the summary judgment record “that portion of Haddan’s deposition testimony in which she recounted statements that Cox [the driver of the truck] purportedly made to her after the collision concerning whether he had heard the train’s horn before the collision.” Ms. *7. Haddan named Cox a defendant but the circuit court ruled that he had never been served or appeared in the action. Accordingly, the circuit court ruled that admission by party opponent, Rule 801(d)(2), Ala. R. Evid., did not apply to the statements Cox made to Haddan. In a portion of the opinion joined by six Justices, the Court affirms the evidentiary ruling and explains “Haddan fails to demonstrate that the circuit court erred in ruling that she had not established proper service on Cox. Our Court of Civil Appeals has held that an unserved defendant is not a party to the action. Harris v. Preskitt, 911 So. 2d 8, 14 (Ala. Civ. App. 2005).” Ms. *8.

The plurality opinion reverses the summary judgment for Norfolk Southern with the following rationale joined by four Justices:

[A] genuine issue of material fact exists as to the question of the proximate cause of Haddan’s injuries. Norfolk Southern presented evidence attributing the cause of the collision to the contributory negligence of Cox, the driver of the pickup truck in which Haddan was a passenger, but negligence cannot be imputed to a passenger like Haddan absent a showing that the passenger “had some authority or control over the car’s movement, such as some right to a voice in the management or direction of the automobile.” Adams [v. Coffee Cnty., 596 So. 2d 892, 895 (Ala. 1992)]. Although, …, a driver’s failure to stop, look, and listen before crossing a railroad track amounts to negligence that, generally, will be treated as a superseding, intervening cause of injuries to a driver resulting from a collision of the driver’s vehicle with a train, this Court has not addressed a situation in which a driver’s negligence in failing to stop, look, and listen before crossing a railroad track constituted a superseding, intervening cause of injuries to a passenger resulting from such a collision ….

Haddan presented substantial evidence – e.g., the evidence concerning the characteristics of the crossing and the evidence indicating that Rogers did not sound the train’s horn when approaching the crossing – from which a reasonable person could conclude that Norfolk Southern contributed to cause the collision resulting in Haddan’s injuries, calling into question whether Cox’s contributory negligence rose to the level of a superseding, intervening cause and creating a jury question as to whether Cox’s conduct was that of a concurrent tortfeasor. The evidence of Norfolk Southern’s failure to install lights and a gate at the crossing further raises doubt as to whether Cox’s failure to stop, look, and listen was truly unforeseeable. Haddan has raised enough of a factual issue to preclude the entry of a summary judgment in favor of Norfolk Southern.

Ultimately, “the jury must decide whose actions are the proximate cause of the injury, or whether both [parties’] actions concurred and combined to proximately cause the injury.” [Western Railway of Alabama v.] Still, 352 So. 2d 1092, 1095 [(Ala. 1977)].

Ms. **22-24.

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