PER CURIAM.
This Court's opinion of June 30, 2010, in case no. 1070066, is withdrawn, and the following is substituted therefor.
In case no. 1070066, Jones Express, Inc., a defendant below, appeals from a judgment entered on a jury verdict in favor of the plaintiffs, Edward E. Jackson, Sr., and Jacqueline F. Jackson ("Jackie"),
During the early morning hours of March 30, 2004, Joshua L. Jackson, a minor, was driving a motor vehicle on County Road 35 in Morgan County. Edward, his father, was a passenger in the vehicle. Quada, an employee of Jones Express, was driving on Highway 67 in a tractor-trailer truck owned by Jones Express. The intersection of Highway 67 and County Road 35 is controlled by a traffic light. At the intersection, Quada's truck and Joshua's vehicle collided.
Both Joshua and Edward were injured in the accident. On April 7, 2004, Edward and Jackie, both individually and as custodial parents of Joshua, filed a complaint seeking damages from Quada and Jones Express stemming from the collision. Joshua died on May 15, 2004, of injuries he sustained in the collision.
The Jacksons amended their complaint several times. The last amended complaint alleged that Quada, who at the time of the accident "was on the job and acting as an agent for Jones Express," failed to stop at a red traffic light before entering the intersection of Highway 67 and County Road 35 and colliding with Joshua's vehicle. The complaint sought damages from Quada for negligence and wantonness and sought damages from Jones Express, under a theory of respondeat superior, for negligent entrustment and for negligent hiring, retention, and supervision. Additionally, the Jacksons sought damages against Quada and Jones Express for wrongful death. Finally, the Jacksons alleged a claim against their insurer, Alfa Mutual Insurance Company ("Alfa"), for uninsured- and/or underinsured-motorist benefits.
After discovery, the case proceeded to trial. The defendants moved for a judgment as a matter of law ("JML") at the close of the Jacksons' case and again at the
The trial court instructed the jury on three claims: (1) negligence by Quada; (2) negligent hiring, retention, and supervision on the part of Jones Express; and (3) negligent entrustment by Jones Express. As to the negligent hiring, retention, and supervision claim, the jury was instructed as follows:
As to causation for all three claims, the trial court instructed, in pertinent part:
The trial court also submitted two verdict forms to the jury: one to be completed if the jury found for the Jacksons, and one to be completed if it found for Quada and Jones Express. The first form, titled "Plaintiff's Verdict," stated:
(Capitalization in original.) The trial court further instructed the jury that, as to each claim, if it was satisfied of the truthfulness of the claim, or if the verdict form represented its verdict, the foreperson should sign his or her name under the applicable claim. The verdict form also provided a space for the jury to designate an award of damages.
As to the second form, titled "Defendants' Verdict," the trial court instructed:
Unlike the plaintiff's verdict form, this form did not provide the jury the opportunity to render a verdict in favor of the defendants on each individual claim or in favor of an individual defendant.
After deliberations, the jury returned the "Plaintiff's Verdict" form with the foreperson's signature under the negligent hiring, retention, and supervision claim, as well as an award of $600,000 in compensatory damages and $100,000 in punitive damages. On April 25, 2007, the trial court entered a judgment in favor of the Jacksons and against Jones Express based on that verdict:
Jones Express filed a renewed motion for a JML; a motion to alter, amend, or vacate the judgment entered on the jury's verdict; and a motion for a new trial. The trial court denied those motions, and Jones Express appealed (case no. 1070066).
On June 26, 2008, this Court, noting that the trial court's April 25, 2007, order did not indicate that a judgment had been entered with respect to the claims against Quada or Alfa and, thus, that the judgment appealed from appeared to be nonfinal, remanded the case for the trial court (1) to certify the judgment in favor of the Jacksons against Jones Express as a final judgment pursuant Rule 54(b), Ala. R. Civ. P.; (2) to adjudicate the remaining claims, thus making the judgment final and appealable; or (3) to do nothing, in which case the appeal would be dismissed as being from a nonfinal judgment.
According to the record in case no. 1090663, on August 1, 2008, the Jacksons filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the trial court's July 2 order. They argued, among other things, that the jury had not rendered a verdict in favor of Quada and that the trial court's July 2 ruling in favor of Quada was "in conflict" with the jury's finding against Jones Express. On August 4, 2008, Jones Express filed in this Court a motion to stay the appeal in case no. 1070066 pending resolution of the Jacksons' motion, contending that a cross-appeal by the Jacksons may result or that the issues raised by Jones Express on appeal may be impacted. This Court granted the motion to stay.
On August 22, 2008, the trial court issued an order vacating its July 2, 2008, order. The court, referencing the Jacksons' postjudgment motion and its failure to hold a hearing or to give the parties an opportunity to address this Court's remand order, held that it "should have allowed the appeal to be dismissed as from a non-final judgment and then addressed the remaining issues and claims after receiving input from all parties." The trial court therefore vacated the July 2 order.
This Court again remanded the case, holding that it was unclear how the trial court's November 12 order disposed of the claim against Quada. In an order dated January 26, 2010, the trial court entered the following judgment:
Subsequent to this order, the Jacksons filed a separate appeal that was assigned case no. 1090663. We will consider the Jacksons' appeal in case no. 1090663 as a cross-appeal and consolidate it with case no. 1070066 for purposes of issuing one opinion.
On appeal, Jones Express contends that the jury's verdict was inconsistent because it found Jones Express liable for negligently hiring, retaining, and supervising Quada, despite the fact that it also entered a verdict "exonerating" Quada of any wrongdoing. The Jacksons, on the other hand, argue that the trial court erred in entering a judgment in favor of Quada on the negligence count. In the alternative, they argue that, if the trial court did not err in entering the judgment for Quada on the negligence count, the verdict is inconsistent and a new trial is warranted.
A verdict has been described as "inconsistent" when the jury "inconsistently resolved the same issue in two separate counts," State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 319 (Ala.1999), when the verdict appears to be "the result of confusion," City of Bessemer v. Foreman, 678 So.2d 759, 760 (Ala.1996), or when the record in a case does not reveal a situation in which the jury's decisions can coexist, Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala.2001). See also Smith v. Richardson, 277 Ala. 389, 391, 171 So.2d 96, 97 (1965) (stating that differing verdicts on separate but identical claims filed by separate parties were "clearly inconsistent, having been rendered at the same time by the same jury, on identical facts, [and having] render[ed] speculative what the jury intended by its verdicts. Patently, the verdicts indicate confusion on the part of the jury."). When a jury verdict is inconsistent,
It has been stated generally that, in order for an employer to be liable for the negligent hiring, training, retention, and supervision of its employee, the plaintiff must also prove "wrongful conduct" on the part of the employee. University Fed. Credit Union v. Grayson, 878 So.2d 280, 291 (Ala.2003) ("[A] party alleging negligent supervision and hiring must prove the underlying wrongful conduct of the defendant's agents."); Voyager Ins. Cos. v. Whitson, 867 So.2d 1065, 1073 (Ala.2003) ("A party alleging negligent or wanton supervision and hiring must also prove the underlying wrongful conduct of employees."); see also Stevenson v. Precision Standard, Inc., 762 So.2d 820 (Ala.1999) (holding that a jury verdict against an employer based on negligent training and supervision of a supervisor who allegedly sexually harassed a fellow employee could not stand where the jury also exonerated the supervisor); Smith v. Boyd Bros. Transp., Inc., 406 F.Supp.2d 1238, 1248 (M.D.Ala.2005) ("Under Alabama law, the finding of underlying tortious conduct is a precondition to invoking successfully liability for the negligent or wanton training and supervision of an employee."); and Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D.Ala.2002) ("In order to establish a claim against an employer for negligent supervision, training, and/or retention, the plaintiff must establish that the allegedly incompetent employee committed ... [a] tort.").
Jones Express, citing Stevenson v. Precision Standard, Inc., supra, alleges that the jury's failure to find Quada liable for negligence conflicts with the verdict in favor of the Jacksons on their negligent hiring, retention, and supervision count against Jones Express. In Stevenson, the plaintiff, Stevenson, brought an action against her employer, Pemco, and her former supervisor at Pemco, Windsor, alleging invasion of privacy and negligence and/or wantonness based upon Windsor's alleged sexual harassment. The jury returned a verdict against Pemco but exonerated Windsor from any liability.
On appeal, Pemco contended that the verdict was inconsistent and due to be set aside. Stevenson countered that a verdict for an employee and against an employer is inconsistent only when the employer's liability is based solely on the theory of respondeat superior. In her case, Stevenson argued that she asserted "independent claims" against Pemco alleging negligence and wantonness, specifically, that Pemco had acted negligently or wantonly in supervising or training its employees, a cause of action that was recognized in Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala. 1993). This Court distinguished Big B, however, noting that the cause of action in that case "was predicated on the underlying tortious conduct of an employee ... who at trial admitted wrongdoing." 762 So.2d at 824. This Court further noted the holding in Potts v. BE & K Construction Co., 604 So.2d 398 (Ala. 1992), that an employer could be liable for the intentional torts of its agent if the employer participated in, authorized, or ratified the wrongful acts, but that to prove such liability one
Stevenson, 762 So.2d at 824-25.
As Stevenson and Big B demonstrate, and as the additional authorities cited above indicate generally, implicit in the tort of negligent hiring, retention, training, and supervision is the concept that, as a consequence of the employee's incompetence, the employee committed some sort of act, wrongdoing, or tort that caused the plaintiff's injury. Humana Med. Corp. of Alabama v. Traffanstedt, 597 So.2d 667, 669 (Ala.1992) (holding that it was "inherently inconsistent from a proximate cause standpoint" for a jury to hold that a physician was not negligent in performing surgery but to also hold the hospital liable based on its "independent negligence" in failing to supervise and monitor that physician). Cf. Bonds v. Busler, 449 So.2d 244, 245 (Ala.Civ.App. 1984) ("We find it settled law in this state that though an entrustor may be guilty of negligent entrustment of a vehicle to an incompetent driver, he may not be held liable for such negligence unless the injury is proximately caused by the incompetence of the entrustee."); Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala.1983) (noting that, in a cause of action against a master based upon the incompetence of the servant, the plaintiff must show, among other things, that he has been damaged by the acts of the servant and that the damage occurred because of incompetency on the servant's part); and First Nat'l Bank of Montgomery v. Chandler, 144 Ala. 286, 307, 39 So. 822, 828 (1905) ("`It is understood, of course, that the incompetency of the servant in all cases, in order to charge the master, was the proximate cause of the injury.'" (quoting Bailey on Master's Liability for Injuries to Servants, 47, 54, 70)).
The Jacksons argue that their negligent hiring, retention, and supervision claim is an "independent" tort that did not depend on a finding of negligence in the underlying tort claim against Quada. Further, the Jacksons correctly note that the jury was presented with substantial evidence for each element of the negligent hiring, retention, and supervision claim as instructed by the trial court: (1) that Quada was an incompetent driver, (2) that Jones Express knew or reasonably should have known that Quada was an incompetent driver, (3) that Jones Express failed to exercise reasonable care in hiring, retaining, or supervising Quada after being placed on notice that he was an incompetent driver, and (4) that Jones Express's negligence was the legal or proximate cause of injuries suffered by Edward and Joshua.
However, the issue presented on appeal is not whether there was a failure to prove the elements of the negligent hiring, retention, and supervision claim as instructed by the trial court; instead, the issue is whether the jury's verdict against Jones Express is inconsistent with its failure to
The dispositive question presented to the jury in this case, according to the parties and the trial court, was who ran the red light at the intersection—Quada or Joshua. As the trial court noted in its order denying Jones Express's postjudgment motions, "the [Jacksons] and Jones Express recognize that liability in this case centered on the jury's factual determination as to whether Quada or Joshua ran the red light."
Thus the inconsistency in this case arises because of the jury's apparently unreconcilable resolution of the dispositive issue: whether Quada ran the red light. This was the sole act of negligence alleged against Quada and the sole act of incompetency or wrongdoing on Quada's part as an employee of Jones Express that allegedly caused the Jacksons' injury under their negligent hiring, retention, and supervision claim. It is inconsistent for the jury to conclude, on the one hand, that Quada ran the red light for purposes of the negligent hiring, retention, and supervision claim against Jones Express, but then not to render a verdict in favor of the Jacksons on their negligence claim against Quada.
Both sides attempt to address this inconsistency. Jones Express argues that the jury's failure to find that Quada was negligent indicates that it did not find that he ran the light (Jones Express's brief, at 28); the Jacksons, on the other hand, argue that Quada "was necessarily found guilty of running the red light in this case because the jury rejected contributory negligence." Although both theories are reasonable theories by which to address the inconsistency in the jury's decision, both theories engage in speculation as to the jury's intent.
In its order denying Jones Express's postjudgment motions, the trial court relied on Luker v. City of Brantley, 520 So.2d 517, 518 (Ala.1987), and held that the negligent hiring, retention, and supervision claim was an "independent" tort and that,
In Luker, the plaintiff, Luker, sued the City of Brantley ("the City") and two police officers employed by the City, Ennis and Armstrong, for releasing an automobile to an intoxicated driver, Patrick, who later caused an accident in which the plaintiff's decedent was killed. Luker sued Ennis and Armstrong on claims of negligence and negligent entrustment and sued the City, alleging that it "had negligently failed to instruct these officers as to the proper manner in which to enforce the laws regarding intoxicated individuals." Luker, 520 So.2d at 518. The jury returned a verdict against the City but in favor of the officers. The City moved for a judgment notwithstanding the verdict ("JNOV"),
On appeal, the City argued that the JNOV in its favor was proper because, it said, the jury's verdict was inconsistent. This Court reversed the JNOV in favor of the City, reasoning that a JNOV was not appropriate because the City was not entitled to a directed verdict at the conclusion of the evidence based on jury issues as to vicarious liability. Further, despite the jury's verdict in favor of the officers, this Court appeared to assume that the officers acted negligently:
520 So.2d at 520.
On rehearing, this Court attempted to clarify the scope of its order remanding the case for a determination as to whether a new trial was appropriate based on alleged inconsistent verdicts. The Court stated:
Luker, 520 So.2d at 523.
Luker appears to hold that a new trial based on the inconsistency of the verdict was warranted in that case only if the evidence did not support the impropertraining claim. If such evidence had been presented, then the trial court was required to enter a judgment against the City alone based on the jury verdict. Id.
This analysis differs from our subsequent holding in Stevenson, supra. There, we examined whether the evidence, under the employee's "independent" claims against the employer, Pemco, could support the judgment against Pemco "while simultaneously absolving" the supervisor, Windsor, "of any wrongdoing." Stevenson, 762 So.2d at 824. We held, as noted above, that Pemco could not be liable for conduct that, according to the jury, did not occur. Further, the evidence did "not support a judgment against Pemco on any theory other than respondeat superior." 762 So.2d at 827. However, the judgment entered on the jury's verdict in favor of Windsor was not appealed and became final; "therefore, the doctrine of res judicata bar[red] a new trial on the issue of Windsor's liability." Stevenson, 762 So.2d at 827. Because Windsor, as the employee, could no longer be held liable for the tort claims asserted against him, Pemco could not be held liable under the doctrine of respondeat superior
762 So.2d at 827 (footnote omitted).
The plaintiff in Luker did not appeal the judgment entered on the verdict in favor of the employees/officers; however, the Luker Court failed to recognize the significance of this omission. Had the Court done so it would have been obliged to affirm the trial court's order entering a JNOV in favor of the City/employer based on the alternative ground that the failure of proof on the essential element of negligence of the employees/officers had become res judicata on that issue. Instead,
Having determined that the jury's verdict here was inconsistent, we must decide the correct disposition of these appeals. Jones Express maintains that the judgment on the negligent hiring, retention, and supervision count is due to be reversed and that it is entitled to a judgment in its favor. Specifically, in its brief in case no. 1070066, which was filed before this Court remanded the case and before the trial court entered its January 26, 2010, final judgment, Jones Express argued that Quada had been "exonerated" by the jury on the negligence count. A new trial on this count, which is an essential element of the negligent hiring, retention, and supervision claim against Jones Express was not possible because the judgment in Quada's favor had not been appealed. Because the issue of Quada's liability could not be retried, Jones Express argued, it was entitled, under Stevenson, to a judgment rendered in its favor.
However, under the peculiar facts of this case, the Jacksons could not have maintained an appeal from the trial court's November 12, 2008, order because it was not final and because it did not actually evidence a judgment in Quada's favor. Instead, the trial court's January 26, 2010, judgment was the first final judgment in Quada's favor on the negligence count, and the Jacksons have appealed from that judgment. In their brief in case no. 1070066, the Jacksons maintain that, if the jury's verdict in this case is considered inconsistent, then the proper remedy is actually a new trial. We agree.
The judgment against Jones Express on the negligent hiring, retention, and supervision claim and the judgment in favor of Quada on the Jacksons' negligence claim are reversed, and the case is remanded for a new trial. Bessemer, 678 So.2d at 760; A.L. Williams & Assocs., Inc., 517 So.2d at 598.
1070066—ON REHEARING EX MERO MOTU: OPINION OF JUNE 30, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
1090663—REVERSED AND REMANDED.
COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.
Jones Express also contends that the trial court's actions in vacating its July 2 order and holding a hearing violated this Court's appellate mandate. However, this Court's order of June 28, 2008, gave the trial court the option of certifying a final judgment, adjudicating the remaining claims, or allowing its judgment to remain nonfinal. The trial court initially chose to adjudicate the remaining claims, but, in response to a timely postjudgment motion challenging the propriety of that selection, the trial court vacated its decision and chose the third option. This did not violate this Court's mandate; in fact, this Court stayed the appeal—at Jones Express's request—to allow the trial court to exercise its options in response to the postjudgment motion.
