Wantonness – Speeding – Cell-Phone Distraction

Tutor v. Frazier, [Ms. 1210037, Feb. 17, 2023] __ So. 3d __ (Ala. 2023). The Court (Mitchell, J.; Parker, C.J., and Shaw, Wise, Bryan, Stewart, and Cook, JJ., concur; Sellers and Mendheim, JJ., concur in the result) affirms the Russell Circuit Court’s judgment entered on a jury verdict in favor of the plaintiff/passengers who sued their host driver, Jessica Tutor, for wantonness.

Tutor was driving over the speed limit on a two-lane road and had ignored requests by her passengers to slow down. While speeding “Tutor took her eyes off the road and began to use her mobile phone, which was controlling the music.” Ms. **2-3. When Tutor looked up, she was about to rear-end a vehicle; she then swerved into the southbound lane and collided head-on with an oncoming vehicle. Ms. *3.

The Court first explains

" ' " 'Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability.' " ' " Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (citations omitted). Wantonness is "[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others." § 6-11-20(b)(3), Ala. Code 1975. It requires " ' 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.' " Lands v. Ward, 349 So. 3d 219, 229 (Ala. 2021) (quoting Essary, 992 So. 2d at 9).

"Absent some evidence of impaired judgment, such as from the consumption of alcohol, we do not expect an individual to engage in self-destructive behavior." Essary, 992 So. 2d at 12. But some acts are "so inherently reckless that we might otherwise impute to [the defendant] a depravity consistent with disregard of instincts of safety and self-preservation." Id. That is, when a defendant's allegedly wanton conduct toward others would also endanger the defendant, the evidence must support finding that the defendant's wantonness extended to her own safety. Id.

Ms. **5-6.

The Court cited testimony from a number of witnesses that Tutor was traveling as much as 10-15 miles per hour over the speed limit and rejected Tutor’s characterization of that testimony as “insubstantial.” The Court holds “Tutor confuses the roles of judge and jury – at a jury trial, the witness's credibility is precisely the kind of question the jury must resolve.” Ms. *10.

The Court also rejects Tutor’s argument that her conduct while speeding was merely distracted driving which does not constitute wantonness. The Court holds:

[A]ctive phone use like texting, browsing the Internet, or engaging with a music app is qualitatively different from distractions that are not the result of a conscious act or that arise from an inadvertent reaction to some external event or stimulus. Here, Tutor testified that she "made the decision" to pick up and engage with her phone to change the song. She, Caulder, and Frazier all testified that she was still using her phone at the time of impact. It is thus reasonable to conclude that her active phone use was not a mere distraction resulting from inadvertence, but the result of a conscious choice.

Ms. *12.

Finally, on the issue of knowledge of dangerous circumstances, the Court cited evidence that “Tutor's passengers had twice admonished her for her speed, but that she did not slow down,” and that Tutor knew she was about to crest a hill just prior to the collision. Ms. **13-14.

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