On Application for Rehearing

MURDOCK, Justice.

This Court's opinion of June 3, 2011, is withdrawn, and the following is substituted therefor.

We granted Capstone Building Corporation's petition for a writ of certiorari to review the decision of the Court of Civil Appeals in Walker v. Capstone Building Corp., [Ms. 2081153, March 26, 2010] 96 So.3d 71 (Ala.Civ.App.2010), in which the Court of Civil Appeals, relying upon this Court's decision in McKenzie v. Killian, 887 So.2d 861 (Ala.2004), applied a six-year statute of limitations to a claim of wantonness. In McKenzie, this Court held that a tort claim based on allegations of wanton misconduct was subject to the six-year statute of limitations found in Ala.Code 1975, § 6-2-34(1), rather than the two-year statute of limitations found in Ala. Code 1975, § 6-2-38(l). We hereby overrule McKenzie and confirm that claims of wantonness are subject to the two-year statute of limitations found in Ala.Code 1975, § 6-2-38(l). Consistent with this holding and as further explained below, we reverse the judgment of the Court of Civil Appeals.

I. Facts and Procedural History

The pertinent facts as stated in Walker are as follows:

96 So.3d at 72.

Walker appealed to the Court of Civil Appeals, arguing that the six-year statute of limitations found in § 6-2-34(1) applied to his claim alleging wantonness:1

96 So.3d at 72-73 (footnote omitted).

After discussing the decisions in McKenzie and Carr v. International Refining & Manufacturing Co., 13 So.3d 947 (Ala. 2009), the Court of Civil Appeals continued:

96 So.3d at 76-77.

Capstone petitioned this Court for a writ of certiorari, arguing that we should overrule McKenzie and reverse the judgment of the Court of Civil Appeals. The question presented is a pure question of law subject to de novo review by this Court. Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001).

II. Analysis

A. Statute of Limitations

Specifically, the question presented is whether the six-year limitations period provided in § 6-2-34(1) is applicable to Walker's claim that he was injured as a result of wanton conduct by Capstone. Section 6-2-34(1) provides:

If Walker's claim does not fall within the six-year limitations period provided in § 6-2-34(1), then, by default, it falls within the two-year period provided by the catchall provision of § 6-2-38(l), which states:

In applying the six-year statute of limitations of § 6-2-34(1) to Walker's claim alleging that Capstone acted wantonly, there are only two decisions of this Court upon which the Court of Civil Appeals might have, and did, rely: McKenzie v. Killian, 887 So.2d 861 (Ala.2004), and Carr v. International Refining & Manufacturing Co., 13 So.3d 947 (Ala.2009) (plurality opinion). The main opinion in only one of those decisions, McKenzie, was joined by a majority of the Court so as to constitute a precedential decision of the Court. See, e.g., State ex rel. James v. ACLU of Alabama, 711 So.2d 952, 964 (Ala.1998) ("[N]o appellate pronouncement becomes binding on inferior courts unless it has the concurrence of a majority of the Judges or Justices qualified to decide the cause."). As indicated, the main opinion in the other case, Carr, was a plurality opinion.

In McKenzie, this Court concluded that "wanton conduct is the equivalent in law to intentional conduct. Such an allegation of intent renders the six-year statutory period of limitations [i.e., § 6-2-34] applicable." 887 So.2d at 870. Although the main opinion in Carr relied upon McKenzie, only four Justices joined the main opinion. Carr, 13 So.3d at 956. Four other Justices concurred in the result; the author of this opinion dissented. Id.

In a special writing concurring in the result in Carr, Justice See offered the view that "application [of McKenzie] in this case is troubling." 13 So.3d at 956 (See, J., concurring in the result). Justice See ultimately concluded, however, that he would concur in the result of the main opinion "because we have not been asked to overrule McKenzie." 13 So.3d at 956-58. In the present case, we have been asked to overrule McKenzie, and we do so for the reasons hereinafter discussed.

We first observe that McKenzie stands alone as an exception to the long line of cases that addressed the question of what statute of limitations was applicable to a claim of wantonness and that repeatedly answered that question by deciding that the two-year limitations period of § 6-2-38(1) was applicable. Examples of such cases decided during the two decades immediately before McKenzie was decided include the following: Jim Walter Homes, Inc. v. Nicholas, 843 So.2d 133, 135-36 (Ala.2002) (holding that a claim of wantonness was barred under § 6-2-38(1)); Sanders v. Peoples Bank & Trust Co., 817 So.2d 683, 686 (Ala.2001) (claim of wantonness governed by two-year statute of limitations); Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So.2d 800, 805 (Ala.1999) ("[A]n action alleging ... wantonness must be brought within two years of the accrual of the cause of action."); Life Ins. Co. of Georgia v. Smith, 719 So.2d 797, 802-03 (Ala.1998) (claim of wantonness governed by two-year statute of limitations); Booker v. United Am. Ins. Co., 700 So.2d 1333, 1340 (Ala.1997) ("Because the [plaintiffs] filed their complaint in August 1993 — over two years after their claims accrued — their negligence and wantonness claims are time-barred."); Rumford v. Valley Pest Control, Inc., 629 So.2d 623, 627 (Ala.1993) (claim of wantonness "governed by the two-year statute" of limitations at § 6-2-38(1)); Henson v. Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala. 1993) ("The statutory period of limitations for ... wantonness actions, found at ... § 6-2-38, is two years...."); Smith v. Medtronic, Inc., 607 So.2d 156, 159 (Ala. 1992) ("An action alleging ... wantonness... must be brought within two years after the cause of action accrued."). See also Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101, 125 (Ala.2003) ("`An action alleging ... wantonness ... must be brought within two years after the cause of action accrued.'" (Johnstone, J., concurring in part, concurring specially in part, and dissenting in part) (quoting Smith v. Medtronic, Inc., 607 So.2d 156, 159 (Ala.1992))).

Indeed, even in cases decided after McKenzie, this Court has applied a two-year statute of limitations to wantonness claims. See Boyce v. Cassese, 941 So.2d 932, 945-46 (Ala.2006), and Gilmore v. M & B Realty Co., 895 So.2d 200, 207-09 (Ala.2004). See also Malsch v. Bell Helicopter Textron, Inc., 916 So.2d 600, 601 (Ala.2005) (claim of wantonness subject to "unambiguous two-year statute[] of limitations").

On June 3, 2011, when this Court originally issued an opinion in this case, then Chief Justice Cobb authored a dissenting opinion. That dissenting opinion is attached as an appendix to this opinion on rehearing. See 96 So.3d at 99-101.2 In her dissent, Chief Justice Cobb referred to "years of ongoing confusion regarding the proper limitations period governing willful and wanton torts" that, according to her dissent, preceded this Court's decision in McKenzie. Appendix, 96 So.3d at 100. The reality, however, is that, until McKenzie, no decision of this Court ever applied the six-year statute of limitations of § 6-2-34(1) to a claim of wantonness, as that term is now understood. Most of the cases reviewed in McKenzie and in the law-review article referenced in McKenzie (Linda Suzanne Webb, Limitation of Tort Actions under Alabama Law: Distinguishing between the Two-Year and the Six-Year Statutes of Limitations, 49 Ala. L.Rev. 1049 (Spring 1998)), and to which then Chief Justice Cobb's dissenting opinion apparently alluded, addressed the distinction between trespass and trespass on the case, and they did so for purposes other than ascertaining the applicable limitations period (e.g., determining the sufficiency of pleadings or of proof of a given claim). To the extent the issue of wantonness was addressed at all in such cases, it was not in the context of the applicable statute of limitations.3

Thus, the decisions of this Court before McKenzie and, with the exception of Carr, since McKenzie, that have addressed the specific question whether the two-year limitations period prescribed by § 6-2-38(l) is applicable to claims of wantonness have uniformly answered that question in the affirmative. That answer was compelled in those cases, as it is in this one, by the text of that and other statutes. As noted, § 6-2-38(l) plainly provides that "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years." Walker's claims alleging wanton conduct do not arise out of contract and do not implicate another enumerated action within § 6-2-38. As explained below, neither do they fall within the category of actions for "trespass" to which § 6-2-34(1) makes a six-year limitations period applicable.

In McKenzie, this Court quoted from Justice Jones's dissenting opinion in Strozier v. Marchich, 380 So.2d 804, 809 (Ala. 1980), in concluding that the issue presented in McKenzie turned on "`the degree of culpability of the alleged wrongful conduct.'" McKenzie, 887 So.2d at 870. Insofar as it goes, we reaffirm this fundamental conclusion as sound. As both McKenzie and Strozier document, courts as a general rule have indeed moved from a causality-based distinction between actions labeled as trespass and trespass on the case to a culpability-based distinction, i.e., between intentional torts and those based in negligence. Acceptance of this conclusion, however, does not answer, but only begs, the separate question whether a claim of wantonness is a trespass claim for purposes of s 6-2-34(1).

With respect to this separate question, the author of this opinion observed as follows in his dissenting opinion in Carr:

Carr, 13 So.3d at 962-63 (Murdock, J., dissenting) (footnotes omitted; some emphasis added).

In Alfa Mutual Insurance Co. v. Roush, 723 So.2d 1250 (Ala.1998), cited in the above-quoted passage, this Court explained that wantonness involved recklessness and that intent to injure another was not an element of a claim alleging wantonness:

723 So.2d at 1256 (emphasis added). See also Ex parte Thicklin, 824 So.2d 723 (Ala. 2002) (citing Alfa v. Roush); Porterfield v. Life & Cas. Co. of Tennessee, 242 Ala. 102, 105, 5 So.2d 71, 73 (1941) (quoting Central of Georgia Ry. v. Corbitt, 218 Ala. 410, 411, 118 So. 755, 756 (1928), for the following proposition: "`To constitute willful or intentional injury there must be a knowledge of the danger accompanied with a design or purpose to inflict injury, whether the act be one of commission or omission, while in wantonness this design or purpose may be absent, and the act done or omitted with knowledge of the probable consequence, and with reckless disregard of such consequence. Alabama G.S.R. Co. v. Moorer, 116 Ala. 642, 22 So. 900 [(1897)]; Birmingham R. & E. Co. v. Bowers, 110 Ala. 328, 20 So. 345 [(1896)]; Louisville & N.R. Co. v. Anchors, Adm'r, 114 Ala. 492, 22 So. 279, 62 Am.St.Rep. 116 [(1897)].'" (emphasis added)).

Consistent with the foregoing, we note that the legislature employs the term "trespass" in § 6-2-34(1) in concert with the concepts of false imprisonment and assault and battery. We note the aforementioned historical derivation of the latter causes — requiring an intent to cause the actionable injury — as forms of trespass. We likewise find pertinent the doctrine of "noscitur a sociis," which holds that "where general and specific words which are capable of an analogous meaning are associated one with the other, they take color from each other, so that the general words are restricted to a sense analogous to that of the less general." Winner v. Marion Cnty. Comm'n, 415 So.2d 1061, 1064 (Ala.1982) (citing State v. Western Union Tel. Co., 196 Ala. 570, 72 So. 99 (1916), and C. Sands, Sutherland Statutory Construction § 47.16 (4th ed.1973)).

It is true that this Court has stated that "[w]antonness is not merely a higher degree of culpability than negligence" and that negligence and wantonness "are qualitatively different tort concepts." Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145 (Ala.1987).4 If we are to accept the difference in these concepts as qualitative in nature, however, then we certainly may accept the difference between wantonness and intent as qualitative in nature, and for that matter more distinctive.

That said, as Justice See observed in his special writing in Carr, questioning the conclusion reached in McKenzie that claims of reckless and wanton conduct ought to be treated the same as intentional-tort claims for statute-of-limitations purposes "does not require that wanton conduct be considered more closely akin to negligence than to an intentional tort; this Court has repeatedly held that wantonness is neither an intentional tort nor some form of `super-negligence.'" 13 So.3d at 958 n. 6 (See, J., concurring in the result). In other words, all that is required is that we be able to conclude that reckless or wanton conduct is not an intentional tort.5

We are clear to the conclusion that recklessness and wantonness are fundamentally different concepts than intent, and that claims alleging reckless or wanton conduct are distinctively different types of claims than those alleging intentional harm to a plaintiff. We therefore cannot place claims of wantonness within the governance of § 6-2-34(1), which we interpret as imposing a six-year statute of limitations on the intentional torts described therein, i.e., "trespass to person or liberty, such as false imprisonment or assault and battery." Concomitantly, we conclude that claims alleging reckless and wanton conduct fall within the governance of the catchall provision in § 6-2-38(1) providing a two-year limitations period for "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section."

Then Chief Justice Cobb's dissenting opinion stated that "[t]he majority opinion simply puts forward the opposing arguments this Court rejected in McKenzie v. Killian, 887 So.2d 861 (Ala.2004)." Appendix to this opinion, 96 So.3d at 99-100. Such a view is simply incorrect. The basis for our decision in this case is a recognition that there is a difference between a claim of wantonness and an intentional tort. As Chief Justice Cobb conceded, McKenzie "detailed the law of trespass and trespass on the case." Id. After concluding that the difference between trespass on the case and trespass is one of culpability rather than causation (again, a notion that we reaffirm today), McKenzie gave very little attention to — and no analysis of — the meaning of wantonness or the difference between a claim of wantonness and an intentional tort. The following conclusory declaration is the extent of the Court's treatment of this issue in McKenzie: "As the Court recognized in [Louisville & Nashville R.R. v.] Johns [, 267 Ala. 261, 101 So.2d 265 (1958)], wanton conduct is the equivalent in law to intentional conduct." 887 So.2d at 870.6

As did the Court in McKenzie, then Chief Justice Cobb relied in her dissenting opinion upon the views expressed by Justice Jones in a dissenting opinion in the 1980 case of Strozier v. Marchich, 380 So.2d 804, 806 (Ala.1980):

Appendix, 96 So.3d at 100 (quoting McKenzie, 887 So.2d at 870, quoting in turn Strozier, 380 So.2d at 809-10 (Jones, J., dissenting) (emphasis omitted; emphasis added)).

The fundamental difficulty with the quoted passage is that it collapses the concept of wantonness into the concept of an intentional tort. It does so in part by ignoring the difference between intended acts and intended consequences, stating, for example, that "[o]ne who injures another... as a result of conduct intentionally committed should be held to a higher degree of accountability than one who injures another through a simple lack of due care" and by its reference to "conduct intentionally committed" as an "intentional wrong." 887 So.2d at 870. Subsequently, the passage refers to "intentionally doing ... an act" that results in only a "reasonably foreseeable injury to another" as a "trespass," notwithstanding the fact that reasonable foreseeability clearly is a negligence standard. Id.

As already noted, this Court agrees, insofar as it goes, with the fundamental notion expressed at the end of the above-quoted passage, i.e., that "the only defensible basis" for applying a two-year statute of limitations to some conduct and a six-year statute of limitations to other conduct is "the degree of culpability" of the wrongdoer. We do so, however, not because we, like Justice Jones, have searched for, but been unable to find, "policy considerations" that would support a different conclusion, but because the legislature has made the policy choice for us by statute. Moreover, unlike Justice Jones, we cannot conclude that it is appropriate to conflate the concepts of wantonness and intent for purposes of assessing "the degree of culpability."

B. Stare Decisis

As in this case, this Court was asked in Foremost Insurance Co. v. Parham, 693 So.2d 409 (Ala.1997), to overrule a decision of this Court made only a few years earlier and thereby reaffirm a rule that had been recognized as the law of Alabama for many years before that recent decision.7 In deciding to overrule the earlier decision, the Court in Foremost declared:

693 So.2d at 421.

Consistent with the foregoing, we overrule McKenzie to the extent that it holds that a claim of wantonness falls within the six-year statute of limitations now found in § 6-2-34(1). We once again reaffirm the proposition that wantonness claims are governed by the two-year statute of limitations now embodied in § 6-2-38(l).

In her dissenting opinion on original submission, then Chief Justice Cobb characterized as "particularly distressing" what she described as this Court's "willingness to disregard the critical judicial policy of stare decisis" and to act as "some sort of `other legislature'" in the wake of composition changes in the Court. Appendix to this opinion, 96 So.3d at 101. On original submission we rejected, and we again reject, both these characterizations and their premise.

The stated premise for the Chief Justice's "distress" was the notion that "the law in Alabama concerning the proper legal analysis of wantonness was not settled and was in fact based on confusing and inconsistent discussions of causality rather than culpability," appendix, 96 So.3d at 101, prior to this Court's decision in McKenzie and that "McKenzie represented a thorough and persuasive discussion of the proper legal policy to be applied." Appendix, 96 So.3d at 101. As we have noted, McKenzie did provide "a thorough and persuasive discussion" of the propriety of distinguishing between "trespass" and "trespass on the case" based upon culpability rather than causality. It did not, however, present "a thorough and persuasive discussion" of the respective meanings of the terms wantonness and intent, or how the concepts represented by those terms relate to the language in § 6-2-34(1) and § 6-2-38(l). Moreover, as also has been noted, for many years before McKenzie was decided, our cases consistently and expressly applied a two-year statute of limitations to claims of wantonness, just as they did after McKenzie was decided, with one exception. Even in that exception, a majority of this Court suggested with their vote that they had some concern regarding the analysis in McKenzie. See Carr, 13 So.3d at 956 (See, Stuart, Smith, and Bolin, JJ., concurring in the result); Carr, 13 So.3d at 959 (Murdock, J., dissenting). In the only opinion written by any of the four Justices who concurred in the result only, Justice See opined that if and when this Court were to be asked to revisit McKenzie, it would be appropriate to do so.

In revisiting and overruling McKenzie today, we find applicable not only the above-quoted admonition of Justice Shores repeated in Foremost, but also the admonitions of the United States Supreme Court in cases such as Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010):

___ U.S. at ___, 130 S.Ct. at 921.

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231-33, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (emphasis added) (considering the operation of stare decisis as to an issue of constitutional interpretation).8

For the reasons explained, McKenzie altered the law in a manner that, under well established principles concerning the operation of the doctrine of stare decisis, we are now impelled to overrule. If we did not follow these principles and overrule McKenzie, we would be enshrining in our law an erroneous decision. A failure by this Court to admit its error and to adhere to the policy choice that has been made by our legislature would be the course that would "undermine[] its judicial authority and equate[] th[is] Court with some sort of `other legislature' to the detriment of all the courts in this State," Appendix to this opinion, 96 So.3d at 101, and to the detriment of the doctrine of separation of powers.9

C. Prospective Application

We now turn to the manner in which the rule we announced on June 3, 2011, and reaffirm today should be applied with respect to litigants as to whom the six-year limitations period previously announced by this Court in McKenzie has begun to run but has not yet expired. In this regard, we note that Walker's claim was timely filed under the rule of law announced in McKenzie, but untimely if we were to apply retroactively to him the rule of law announced today.

Although the retroactive application of judgments is the usual practice,10 "circumstances occasionally dictate that judicial decisions be applied prospectively." Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 352 (Ala.1997). In this context, "[t]he determination of the retroactive or prospective application of a decision overruling a prior decision is a matter of judicial discretion that must be exercised on a case-by-case basis." Ex parte Coker, 575 So.2d 43, 51 (Ala.1990) (opinion on rehearing).

In First Tennessee Bank, N.A. v. Snell, 718 So.2d 20 (Ala.1998), this Court discussed

718 So.2d at 24. Consistent with the aforesaid "Chevron factors," "[a] decision overruling a judicial precedent may be limited to prospective application where required by equity or in the interest of justice." 20 Am.Jur.2d Courts § 151 (2005). Compare Foremost, 693 So.2d at 421 (finding it "appropriate" to apply prospectively a decision overruling prior precedent and reinstating earlier rules as to the elements as to certain types of fraud claims and the standard for determining the date of accrual of such claims for statute-of-limitations purposes).

The above-discussed principles require that we not apply our ruling generally so as to immediately cut off the claims of persons who have been wantonly injured within the last six years and who therefore could have relied upon the rule this Court announced in McKenzie. Thus, for a person as to whom the six-year limitations period announced in McKenzie will, under the rule announced in the present case, expire on a date less than two years from June 3, 2011 (the date of the original issuance of the Court's opinion in this case), we conclude that it is just and equitable that the limitations period not be affected by our holding in this case. For a person whose limitations period would expire more than two years from June 3, 2011, however, equity does not require that that person have more time to bring his or her action than would a party whose cause of action accrued on that date. In other words, as a result of our holding, litigants whose causes of action accrued on or before June 3, 2011, the date of the original issuance by this Court of its opinion in this case, shall have two years from that date to bring their action, unless and to the extent that the time for filing their action under the six-year limitations period announced in McKenzie would expire sooner.

On rehearing, Capstone and two amici curiae seek to frame our holding in Part A of this opinion as "premised on a constitutional error in the [McKenzie] Court's interpretation of a purely legislative issue." The argument of the amici curiae notes our citation to Foremost, but suggests that we should be guided instead by cases like Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432 (Ala.2001), and Jefferson County Commission v. Edwards, 32 So.3d 572 (Ala.2009):

Brief of Amici Curiae Business Council of Alabama and Alabama Defense Lawyers Association in Support of Application for Rehearing, at 6-7.

By asserting that "conclusive guidance" comes from cases such as Lyles and Edwards, the amici curiae appear to argue that the fact that an appellate decision is based upon constitutional principles allows for no other consideration in regard to whether that decision will be applied retroactively or prospectively. We note that neither case explicitly so holds. For its part, Lyles, upon which Edwards relied, stated that prospective application of such a decision is "disfavored." It is not necessary for us to further address this issue, however, because, as discussed below, the predicate for the argument advanced by the amici curiae is faulty.11

This Court's decision today is not based on the constitution, either state or federal, nor does it recognize any "constitutional error" in any prior decision. Our decision today is simply a matter of statutory construction. We recognize today that the statutory interpretation advanced in McKenzie was incorrect, and we supply today in its place a correct statutory interpretation. Contrary to the suggestion made by the invocation of the quoted passage from Justice Scalia's special concurrence in American Trucking Ass'n v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990), this Court did not in McKenzie, nor do we in the present case, engage in some "interpretation of the Constitution"; rather, the analysis provided in both McKenzie and in the present case reflects merely an effort to discern correctly the legislative intent reflected in the language of §§ 6-2-34(1) and 6-2-38(l).12

The brief of the amici curiae in support of rehearing also seeks to diminish this Court's concern with any potential unfairness of a fully retroactive application of our holding today by citing authority for the proposition that a legislature's alteration of a limitations period does not as a general rule alter the plaintiff's substantive rights, but only the plaintiff's "remedy." See brief of amici curiae, at 8-9. Of course, we are not concerned here with legislative action that, by its nature, makes "a new rule."13 Even a legislature, however, cannot shorten a limitations period to the point that it does not permit a reasonable time for the commencement of actions to vindicate already accrued claims. See Thomas v. Niemann, 397 So.2d 90, 93 (Ala.1981) ("[T]he legislature may create or shorten periods of limitation provided a reasonable time is allowed for existing causes of action to be brought."); Cronheim v. Loveman, 225 Ala. 199, 201, 142 So. 550, 550 (1932); and Coleman v. Holmes, 44 Ala. 124, 125 (1870). See generally Pickett v. Matthews, 238 Ala. 542, 545, 192 So. 261, 264 (1939) ("[T]he right to the remedy must remain and cannot be curtailed after the injury has occurred and right of action vested, regardless of the source of the duty which was breached, provided it remained in existence when the breach occurred.").

Based on the foregoing, we adhere to our conclusion that it would be unjust to announce a decision that applied retroactively so as to immediately cut off the right to bring suit upon any claim that had accrued more than two years prior to our original decision and that would not provide a reasonable transition to the rule announced then and reaffirmed today. The application for rehearing filed by Capstone and the brief in support thereof filed by the amici curiae provide us with no compelling reason to alter this conclusion.

Notwithstanding our rejection of the arguments made on rehearing as to why we should revisit our conclusion that our decision in this case should, as a general rule, have a prospective application, we are persuaded by the alternative argument of Capstone and the amici curiae that an exception should be made for Capstone itself. As Capstone argues:

Capstone's application for rehearing, at 2.

The amici curiae make a similar argument:

Brief of amici curiae Business Council of Alabama and Alabama Defense Lawyers Association, at 13.

Authorities cited by both Capstone and the amici curiae are reflected in the discussion of the issue of prospective application of an opinion adopted by this Court in Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008);

990 So.2d at 312-13 (adopting the reasoning of Justice Harwood's special writing in Cline v. Ashland, Inc., 970 So.2d 755, 761 (Ala.2007)).

After discussing the factors outlined in Chevron Oil, Justice Harwood in his special writing in Cline, adopted by this Court in Griffin, continued:

Griffin, 990 So.2d at 313-14 (first emphasis in original; second emphasis added).

We see no reason to hesitate in following the same approach in the present case. As noted, Walker filed a complaint on July 10, 2007, alleging claims both of negligence and wantonness based on events that occurred on July 12, 2005, a date less than two years before the filing of the complaint (although it was later shown that the events in question occurred on June 6, 2005, and therefore more than two years before the filing of the complaint). There is no indication that Walker placed any particular reliance on the six-year limitations period announced in McKenzie in deciding when to file his complaint. Accordingly, we conclude that today's decision should apply to Walker's wantonness claim.

III. Conclusion

Based on the foregoing, the judgment of the Court of Civil Appeals reversing the summary judgment entered against Walker is reversed; the case is remanded for the entry of a judgment by the Court of Civil Appeals affirming the judgment of the trial court.

APPLICATION GRANTED; OPINION OF JUNE 3, 2011, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

STUART, BOLIN, PARKER, SHAW, and WISE, JJ., concur.

MURDOCK and MAIN, JJ., concur specially.

WOODALL, J., dissents.

(Note from the reporter of decisions: When this rehearing opinion was released on March 16, 2012, Chief Justice Malone's recusal was inadvertently omitted from the vote line.)

MURDOCK, Justice (concurring specially).

In addition to its reliance upon Justice Jones's dissenting opinion in Strozier v. Marchich, 380 So.2d 804 (Ala.1980) (a reliance that is discussed in the main opinion), the dissenting opinion issued by then Chief Justice Cobb on June 3, 2011, and attached as an appendix to the opinion issued today, would perpetuate the confusion and/or conflation of the concepts of intent and wantonness by the manner in which it described and then analyzed various hypothetical situations involving the discharge of a firearm into a crowd. Before addressing these hypotheticals and other statements in then Chief Justice Cobb's dissenting opinion that would have the same effect, I will first address the difference between intent and wantonness.

Wantonness entails the intent to do an act, but not the intent to produce the consequence or injury for which the actor is to be held responsible. As noted, "wantonness" has been defined by our cases 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.'" George v. Alabama Power Co., 13 So.3d 360, 368 (Ala.2008) (quoting Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala. 1998) (emphasis omitted; emphasis added)); Norfolk Southern Ry. v. Johnson, 75 So.3d 624 (Ala.2011) (to like effect). As noted in the main opinion, wantonness involves an "`"act done or omitted with knowledge of the probable consequence, and with reckless disregard of such consequence."'" 96 So.3d at 85 (quoting Porterfield v. Life & Cas. Co. of Tennessee, 242 Ala. 102, 105, 5 So.2d 71, 73 (1941), quoting in turn another case). Specific intent to injure the plaintiff is not an element of wantonness, which has been statutorily defined as "`[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.'" Alfa Mut. Ins. Co. v. Roush, 723 So.2d at 1256 (quoting Ala.Code 1975, § 6-11-20(b)(3)).14

In contrast, the concept of intent does not apply to conduct carried on by the actor merely with an awareness of the "probability" of a given consequence. Instead, the law reserves the term "intent" for circumstances where the actor desires or is substantially certain of the injury to result from his or her act. As § 8A of the Restatement (Second) of Torts (1965) explains, "[t]he word `intent' is used throughout the Restatement of this Subject to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." (Emphasis added.)15

The comments to § 8A of the Restatement (Second) of Torts further explain:

(Emphasis added.)

Comment f to Restatement (Second) of Torts § 500 (1965) discusses the difference between intentional misconduct and recklessness:

(Emphasis added.)

American Jurisprudence explains it this way:

57A Am.Jur.2d Negligence § 276 (2004) (emphasis added; footnotes omitted).

Perhaps the simplest explanations come from the hornbook authored by Professor Prosser:

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 8, p. 34 (4th ed.1984) (first two emphases in original; other emphasis added; footnotes omitted).16 We also are provided with this very helpful distinction by Professor Prosser:

Prosser, § 8, p. 36 (emphasis added).

At odds with the foregoing fundamental principles, then Chief Justice Cobb made reference in her dissenting opinion to wantonness as "generalized intentional conduct." Appendix to main opinion, 96 So.3d at 101. She then posited the following series of hypothetical circumstances and outcomes:

Appendix, 96 So.3d at 101 (some emphasis added). In so doing, the Chief Justice conflated the concepts of intent and wantonness.

The last sentence in the above-quoted excerpt from then Chief Justice Cobb's dissenting opinion — that "in both the wanton shooting and the assault and battery, there is intentional conduct" — is true, but only to the extent that one might consider the word "conduct" narrowly as a reference to the act, rather than to the consequences of the act. Furthermore, the next to last sentence of the excerpt — the statement that "in both wantonness and assault and battery, there is intent to cause injury" — is simply wrong. Wantonness does not contemplate that the actor intends the result achieved by their act. It is only necessary that the injury resulting from the act is "likely" or "probable." Again, the "existence of probability is different from substantial certainty," 57A Am.Jur.2d Negligence § 276 (2004), and "[t]he defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong." Prosser, § 8, p. 36.

The most specific concern expressed by then Chief Justice Cobb with respect to her series of hypotheticals is with reference to the situation where, as she put it, "[a] person intentionally discharges [a] firearm into a crowd and injures another." Appendix, 96 So.3d at 101. Chief Justice Cobb was concerned that a two-year statute of limitations would necessarily apply in this situation because, she concluded, "the actionable tort is wantonness." Id. Consistent with all the foregoing authorities, however, if the actor had as his or her purpose to injure someone in the crowd, then he or she is guilty of an intentional tort, not merely an act of wantonness. Likewise, the location of the crowd in relation to the actor and the density of the crowd might be such that the jury may infer that the actor knew that it was "substantially certain" that someone in the crowd would be injured, given the manner in which the actor discharged the firearm.17 Under all the foregoing authorities, the law would treat either circumstance as involving intentional conduct, and, therefore, the concern expressed by then Chief Justice Cobb in the dissenting opinion regarding the application of a two-year statute of limitations would be misplaced.

MAIN, Justice (concurring specially).

I concur in the main opinion. I write to note that the main opinion should not be interpreted as holding that trespass no longer has a field of operation in tort claims. Rather, the main opinion holds that trespass is not equivalent to wantonness.

As I see it, the basic distinction between "negligence," "wantonness," and "trespass" is explained as follows: Essentially, "negligence" is akin to "careless." See Hornady Truck Line, Inc. v. Meadows, 847 So.2d 908, 915 (Ala.2002) ("`"Negligence" is defined as "refer[ring] only to that legal delinquency which results whenever a man fails to exhibit the care which he ought to exhibit, whether it be slight, ordinary, or great." Black's Law Dictionary 1032 (6th ed.1990)."' (quoting Clayton ex rel. Clayton v. Fargason, 730 So.2d 160, 163-64 (Ala.1999))). "Wanton" is akin to "reckless" with respect to the injury or outcome. See Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994) (wantonness is "`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.'" (quoting Stone v. Southland Nat'l Ins. Corp., 589 So.2d 1289, 1292 (Ala. 1991))); and Galaxy Cable, Inc. v. Davis, 58 So.3d 93, 101 (Ala.2010) ("`To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty.'" (quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994))). "Trespass" is akin to "intentional" with regard to the injury or outcome. See Carr v. International Refining & Mfg. Co., 13 So.3d 947, 959 (Ala.2009) (Murdock, J., dissenting) (containing a detailed analysis of the proposition that causes of action for trespass "involve intentional conduct by the tortfeasor" and the "intentional procurement of a harm to the plaintiff"). Finally, because each of these causes of action are distinguishable, I believe that the adequacy of pleadings in a complaint would govern the applicable statute of limitations.

WOODALL, Justice (dissenting).

I am not convinced that McKenzie v. Killian, 887 So.2d 861 (Ala.2004), was wrongly decided; therefore, I do not agree that the decision should be overruled. Consequently, I respectfully dissent.

APPENDIX TO OPINION OF THE COURT

The dissenting opinion of then Chief Justice Cobb that accompanied the release on June 3, 2011, of this Court's opinion on original submission in this case is set out below:

COBB, Chief Justice (dissenting [from original opinion of June 3, 2011]).

I respectfully dissent. The majority opinion simply puts forward the opposing arguments this Court rejected in McKenzie v. Killian 887 So.2d 861 (Ala.2004). In McKenzie, the Court detailed the law of trespass and trespass on the case and its application, which application had resulted in years of ongoing confusion regrading the proper limitations period governing willful and wanton torts. The Court stated:

887 So.2d at 870.

The essential rationale of McKenzie was the recognition that wantonness is injury caused another by one who intentionally engages in conduct that he or she knows is likely to result in that injury. Today, the majority simply contradicts that rationale by asserting that wantonness, as generalized intentional conduct, is as distinct from specific intentional conduct as it is from negligence, which involves no intentional conduct. I respectfully disagree, and I believe that the distinction should be apparent from any examination of the situations in which these concepts of tort law are applied. Thus, if one who is in a crowd accidently drops a loaded firearm that discharges and injures another, the actionable tort is negligence. If that person intentionally discharges the firearm into a crowd and injures another, the actionable tort is wantonness. And if that person intentionally fires the firearm at a particular person and injures that person the tort becomes assault and battery. Unlike the tort of negligence, in both wantonness and assault and battery, there is intent to cause injury. That is, in both the wanton shooting and the assault and battery, there is intentional conduct. Accordingly, the proper limitations period is the six-year period governed by the concept of "trespass" in § 6-2-34(1), Ala.Code 1975, in concert with the concept of assault and battery. This is why I believe that McKenzie was correctly decided and why the majority errs in its opinion today.

I note further the particularly distressing problem with the Court's willingness to disregard the critical judicial policy of stare decisis. As noted in McKenzie, the law in Alabama concerning the proper legal analysis of wantonness was not settled and was in fact based on confusing and inconsistent discussions of causality rather than culpability. McKenzie represented a thorough and persuasive discussion of the proper legal policy to be applied; now, seven years later, the Court states that the limitations period for wanton torts will henceforth be two years. With respect to the application of the doctrine of stare decisis, this Court has employed the following test from Ex parte First Alabama Bank, 883 So.2d 1236, 1245 (Ala.2003):

See also Prattville Mem'l Chapel v. Parker, 10 So.3d 546 (Ala.2008). So, would the judiciary and citizenry of this State approve this Court's decision to limit the period of determining the liability of one who fires blindly into a crowd to the same period as one whose discharge of the firearm is truly an accident? I think not. I believe that this Court's willingness to change its basic pronouncements of the law as its composition changes undermines its judicial authority and equates the Court with some sort of "other legislature" to the detriment of all the courts in this State. I therefore dissent.