MURDOCK, Justice.
The opinion of October 19, 2012, is withdrawn, and the following is substituted therefor.
Myrtis Hill
At the time of the events at issue, Hill was an 85-year-old resident of Fairfield Nursing Home, a 190-bed skilled-nursing facility owned and operated by Fairfield. In the late 1970s, Hill had a stroke that resulted in paralysis in her left side. She was admitted to Fairfield Nursing Home in 1992 after suffering a broken ankle in a fall at her daughter's house.
On May 10, 2006, Hill was being helped out of her bed at the nursing home by LaShaka Smith, a certified nursing assistant, when she lost strength in her legs and either fell or was lowered to the ground by Smith. During that event, her
Hill subsequently initiated this action, seeking compensatory and punitive damages for her injury. The gravamen of her claims is that her broken leg was caused by the failure of Fairfield employees to use proper safety measures when transferring her from her bed. The claims against Fairfield were based on this alleged negligence. The claims against the other defendants were based, among other things, upon Hill's claim that Fairfield served as the alter ego of those other defendants and that the "corporate veil" between those defendants and Fairfield should be "pierced." A more complete discussion of facts pertinent to this latter claim is set out in Part III.C., below.
In response to a motion for a summary judgment filed by the defendants, Hill made an extensive evidentiary submission to the trial court. After conducting a hearing, the trial court denied the defendants' summary-judgment motion. Subsequently, the defendants moved the trial court to reconsider its denial of their summary-judgment motion. Hill again opposed the motion; however, this time the trial court granted the summary-judgment motion in part, entering a summary judgment in favor of all the defendants except Fairfield. The trial court did not explain the rationale for its ruling.
The case against Fairfield proceeded to trial. Over the course of a week, the jury heard testimony from Hill; Hill's son, Fred Hill; Janie Dawson, director of nursing at Fairfield Nursing Home; Dr. David Volgas, who treated Hill's leg after the accident; and Toya Nelson, a registered nurse who testified as an expert regarding the applicable standard of care. After Hill concluded her case, Fairfield moved for a judgment as a matter of law, arguing, among other things, that Hill had failed to establish by way of expert testimony from a similarly situated health-care provider that the applicable standard of care had been breached. Fairfield also argued that Hill had failed to establish that the transfer from her bed probably caused her injury. The trial court orally granted the motion and entered a judgment as a matter of law in favor of Fairfield that same day. Hill subsequently moved the trial court to alter, amend, or vacate its judgment. The trial court denied that motion, and Hill appealed.
Hill argues that the trial court erred both by entering a summary judgment in favor of all the defendants except Fairfield on November 13, 2009, and by entering a judgment as a matter of law in favor of Fairfield at the conclusion of Hill's case-in-chief on November 23, 2009.
Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).
Black v. Comer, 38 So.3d 16, 22 (Ala.2009).
"The plaintiff in a medical-malpractice action is required to present substantial evidence indicating both that the defendant health-care provider `failed to comply with the standard of care and that such failure probably caused the injury or death in question.'" Mobile OB-GYN, P.C. v. Baggett, 25 So.3d 1129, 1133 (Ala.2009) (quoting § 6-5-549, Ala.Code 1975). On appeal, Hill argues that, during the presentation of her case-in-chief, she adduced substantial evidence indicating that Smith breached the standard of care applicable to Hill's treatment and that her breach proximately caused Hill's injury. The defendants counter that Hill established neither a breach of the standard of care nor causation. These issues are discussed in Parts III.A. and III.B., below.
Hill also challenges on appeal the trial court's summary judgment as to the defendants other than Fairfield, which requires us to examine the evidence submitted by Hill in support of her claim that the "corporate veil" between Fairfield and the other defendants should be "pierced." This issue is addressed in Part III.C., below.
We turn first to the question whether Hill established a breach of the standard of care.
In cases brought under the AMLA, the plaintiff generally must establish through expert testimony that there has been a breach of the standard of care; "such expert testimony is allowed only from a `similarly situated health care provider.'" Holcomb v. Carraway, 945 So.2d 1009,
At trial, Hill sought to establish a breach of the standard of care through testimony from her expert witness Nelson, a registered nurse since 1997, who had worked in skilled-nursing facilities and who had supervised both certified nursing assistants and licensed practical nurses. In her brief to this Court, Hill summarizes Nelson's testimony as follows:
Hill's brief, pp. 46-47.
The defendants argue that Nelson was not qualified to give this testimony regarding the standard of care because, they contend, the level of assistance that must be given to residents of Fairfield Nursing Home when they are moved is determined by the physical-therapy department at the nursing home, not the nursing department. (The evidence in the record indicates that the physical-therapy department, in its April 2006 assessments of Hill, had not mandated that Hill required a mechanical lift, a gait belt, or multiple staff members for transfers.) Accordingly, the defendants argue, because Nelson was not licensed, trained, or experienced in the field of physical therapy, she was not a similarly situated health-care provider qualified to testify as to the standard of care applicable
Nelson acknowledged that she was not a physical therapist and that she could not testify regarding the standard of care that applies to physical therapists. During Nelson's trial testimony, Fairfield's counsel told Nelson that the physical-therapy department was the entity at Fairfield Nursing Home responsible for assessing whether residents needed transfer assistance. He then asked Nelson whether she would have to "defer to [physical therapists] with respect to whether it was a proper choice" not to use a lift to transfer Hill. Nelson responded:
This Court has stated:
HealthTrust, Inc. v. Cantrell, 689 So.2d 822, 826 (Ala.1997) (quoting Medlin v. Crosby, 583 So.2d 1290, 1293 (Ala.1991)).
As to the first of these questions, Hill contends that the standard of care alleged to have been breached is the standard of care for nurses. The defendants contend it is the standard of care for physical therapists.
Barton v. American Red Cross, 829 F.Supp. 1290, 1301 (M.D.Ala.1993), cited with approval in Husby v. South Alabama Nursing Home, Inc., 712 So.2d 750 (Ala. 1998). Smith, a certified nursing assistant, was providing nursing services to Hill at the time Hill suffered her injury. Smith was not acting as a physical therapist or providing physical-therapy services to Hill (a circumstance that arguably would disqualify, not qualify, a physical therapist from testifying as to the standard of care applicable to a provider of nursing care to a patient). Furthermore, one of the ways Fairfield allegedly breached its duty in this case was through the preparation of an allegedly inadequate care plan and daily
Nonetheless, at least insofar as Fairfield's own liability as an institutional medical provider is concerned, the defendants seek to rely upon the fact that Fairfield had delegated to its physical-therapy department responsibility for making patient-transfer assessments. Such reliance is misplaced. Ultimately, the defendants' position would allow any institutional medical provider to control the standard of care for which it will be held responsible simply by having some department within its corporate structure, rather than the law, select the standard of care applicable to various activities undertaken by its individual medical-provider employees.
In a case with both factual and legal similarities to the present case, Husby v. South Alabama Nursing Home, Inc., supra, this Court addressed the sufficiency of evidence relating to claims against a nursing home and two of its administrators by a resident who was injured in a fall from her bed allegedly resulting from the failure of nurses to use proper physical restraints. This Court held that a plaintiff seeking to hold those parties liable based upon the alleged negligence of the nurses could not use a hospital administrator or an anesthesiologist as a proper expert witness relating to the standard for "hands on" nursing care:
712 So.2d at 753 (emphasis added).
Based on the foregoing, we must conclude that Nelson was a proper expert witness to testify as to the standard of care applicable to Smith as a certified nursing assistant in effecting a transfer of a patient such as Hill and as to whether Smith met that standard in this case. Therefore, the trial court's judgment as a matter of law in favor of Fairfield cannot be sustained on the basis of the defendants' argument to the contrary on this issue.
As we indicated above, Hill not only had to present substantial evidence of a breach of the applicable standard of care, but also had to present substantial evidence
Specifically, in response to the defendants' contention that Hill's broken leg could have been caused by her osteoporosis, Dr. Volgas testified as follows:
(Emphasis added.) Additionally, Dr. Volgas testified as follows with regard to Hill's injury:
(Emphasis added.)
The defendants argued to the trial court and reiterate on appeal that "Dr. Volgas' testimony to the effect that this injury was `consistent with' certain facts or probably occurred from some incident `like' a fall, is insufficient." Defendants' brief, pp. 57-58. They note that this Court has stated that "[t]here must be more than the mere possibility that the negligence complained of caused the injury." Parker v. Collins, 605 So.2d 824, 826 (Ala.1992). More specifically, the defendants fault Hill for failing to ask Dr. Volgas if "this fracture probably resulted from this fall." Defendants' brief, p. 58.
The defendants' position ignores the context in which Dr. Volgas testified. There is no evidence or indication in the record in this case that Hill had suffered any "acute incident" or "fall" other than the fall at issue. During the trial, Fairfield did not suggest that a different "fall" could have caused the injury; instead, Fairfield suggested that Hill's "weak bones" resulting from osteoporosis caused the injury, a suggestion Dr. Volgas expressly refuted in his testimony. Moreover, Hill herself testified, and it was undisputed, that she suffered the fall in question, that she immediately felt pain in her leg, and that she was then promptly transported to the hospital, whereupon she was diagnosed with and treated for a broken leg. Against this backdrop, Dr. Volgas's testimony was more than sufficient to allow reasonable jurors to infer that the fall probably caused the break to Hill's leg.
The standard for proving causation in a medical-malpractice action is not proof that the complained-of act or omission was the certain cause of the plaintiff's injury. Instead, as this Court has frequently reiterated, the standard is one of the "probable" cause: "`"`There must be more than the mere possibility that the negligence complained of caused the injury; rather, there must be evidence that the negligence complained of probably caused the injury.'"'" Lyons v. Vaughan Reg'l Med. Ctr., LLC, 23 So.3d 23, 27-28 (Ala.2009) (quoting Sorrell v. King, 946 So.2d 854, 862 (Ala.2006), quoting in turn DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala.2003), quoting in turn Parker v. Collins, 605 So.2d 824, 826 (Ala.1992) (emphasis omitted)). That test is met here. See also Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 550 (Ala. 2008) ("`We are to view the [expert] testimony as a whole, and, so viewing it, determine if the testimony is sufficient to create a reasonable inference of the fact the plaintiff seeks to prove.'" (quoting Hines v. Armbrester, 477 So.2d 302, 304 (Ala. 1985))).
Based on the foregoing, the trial court's judgment as a matter of law in favor of Fairfield based on an insufficiency of evidence from which reasonable jurors could find causation was inappropriate.
Hill argues on appeal that a summary judgment in favor of Denz, Bennett, DTD, D & N, Aurora Healthcare, and Tara Cares was inappropriate. She contends that the evidentiary submissions to the trial court in response to the defendants' motion for a summary judgment were, at the least, sufficient to create a
Cohen v. Williams, 294 Ala. 417, 420, 318 So.2d 279, 280-81 (1975) (quoting 18 Am. Jur.2d Corporations § 14, p. 559). Although limiting the liability of the owner or operator of a business is a recognized and acceptable purpose for forming a separate legal entity, that separate entity "`will [be] disregard[ed] when it is used solely to avoid personal liability of the owner while reserving to the owner the benefits gained through use of the corporate name.'" Bon Secour Fisheries, Inc. v. Barrentine, 408 So.2d 490, 491 (Ala.1981) (quoting Woods v. Commercial Contractors, Inc., 384 So.2d 1076, 1079 (Ala.1980)).
Cohen, 294 Ala. at 420-21, 318 So.2d at 281.
More specifically, this Court has observed that
Ex parte AmSouth Bank of Alabama, 669 So.2d 154, 156 (Ala.1995).
Likewise, in Duff v. Southern Ry., 496 So.2d 760, 762 (Ala. 1986), the Court stated:
The Duff Court recognized the following indicia of control:
496 So.2d at 762-63. The Court further explained that "no one of these factors is dispositive; nor does the list exhaust the relevant factors." 496 So.2d at 763. The Court noted that only 4 or 5 of the listed factors were present in Duff, combined with other evidence of control, while also taking note of a case in which only 2 of the 11 listed indicia were present. Id. (citing Garrett v. Southern Ry., 173 F.Supp. 915 (E.D.Tenn.1959)).
In the present case, Hill provided to the trial court an extensive evidentiary submission in response to the defendants' motion for a summary judgment on the issue of piercing the corporate veil. When the evidence is viewed in the light most favorable to Hill, as it must be, there was evidence from which the trial court reasonably could have found all the following facts, most of which are in fact conceded by Fairfield:
Hill contends that nearly all 11 factors referenced in Duff were established by what Hill refers to as an "extensive and comprehensive summary judgment submission to the trial court":
Hill's brief, pp. 58-59.
Hill also introduced into evidence in the trial court the "administrative services agreement" between Tara Cares and Fairfield, which, according to Hill, demonstrates the degree of control Tara Cares actually exercised over Fairfield. The agreement indicates that Tara Cares: "propose[s] the standards, policies, and procedures" concerning the operation of Fairfield Nursing Home that are approved by the facility; performs the bookkeeping, ledgering, and accounting for Fairfield, including preparing all tax returns; performs "accounts receivable services and... otherwise assist[s] [Fairfield] in the issuance of bills and in the collection of accounts and monies owed for goods and services furnished by [Fairfield]"; proposes the annual operating budget for approval by Fairfield's executive director,
As noted, the question of piercing the corporate veil is "a question of fact ... to be determined on a case by case basis." Messick, 514 So.2d at 893. Based on the foregoing, we cannot help but conclude that there exists a genuine issue of material fact as to whether the defendants operated as a single business enterprise as to which Fairfield was an alter ego. The matter being one of equity, Heisz v. Galt Indus., Inc., 93 So.3d 918, 929 (Ala.2012), the courts should not "allow a corporate entity to successfully masquerade through [its corporate affiliates] so as to defeat the payment of its just obligations." Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 28, 29 So.2d 298, 302 (1947). Accordingly, the trial court erred in entering a summary judgment in favor of the defendants other than Fairfield with respect to Hill's claim that, based upon the theory of "piercing" the "corporate veil," they should be responsible for any "just obligations" for which Fairfield ultimately is found responsible.
Hill presented substantial evidence, including the testimony of registered nurse Toya Nelson and Dr. David Volgas, that she suffered a broken leg on May 10, 2006, and that this injury was caused by a breach of the applicable standard of care. Consequently, the trial court erred in entering a judgment as a matter of law in favor of Fairfield, and that judgment is due to be reversed. Hill also presented substantial evidence in support of piercing the "corporate veil" separating Fairfield and the other defendants; thus, the summary judgment in favor of those other defendants is also due to be reversed. The cause is remanded for further proceedings consistent with this opinion.
APPLICATION OVERRULED; OPINION OF OCTOBER 19, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
MOORE, C.J., and BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.
MURDOCK, J., concurs specially.
STUART, J., dissents.
MURDOCK, Justice (concurring specially).
We address today an area of corporate law governed by equity and, concomitantly, one in which outcomes are driven by the facts assessed on a case-by-case basis. In their brief on rehearing, amici curiae
It is important to recognize initially, however, that Blanton involved not a tort claim, but an attempt to collect a contract debt. Specifically, Blanton involved an attempt to collect a debt of approximately $19,000 based on an ordinary-course-of-business employment contract between a plaintiff physician and the corporation with which he had contracted to provide services. Commentators and courts alike have recognized that a higher standard should be met when a creditor voluntarily elects to enter into a contract with one corporation but then seeks to hold a different corporation or a shareholder responsible for the contractual debt. As this Court stated in Co-Ex Plastics, Inc. v. AlaPak, Inc., 536 So.2d 37 (Ala.1988): "`[A] party who has contracted with a financially weak corporation and is disappointed in obtaining satisfaction of its claim cannot look to the dominant stockholder or parent corporation in the absence of additional compelling facts.'" 536 So.2d at 39 (quoting East End Memorial Ass'n v. Egerman, 514 So.2d 38, 44 (Ala. 1987)).
536 So.2d at 39. See also Sandy J. Grisham, Commentary, Piercing the Corporate Veil in Alabama: In Search of a Standard, 35 Ala. L. Rev. 311, 313 (1984) (noting what it refers to as persuasive arguments that "the decision to disregard the corporate entity in the case of a contract creditor should be governed by considerations different from those in the case of an involuntary creditor," who is "most often a tort victim who is unable to collect a judgment from a corporation with which he has not chosen to deal").
I also note that the Blanton Court did not hold that the control shown in that case did not rise to the level necessary for piercing the corporate veil. See Blanton, 585 So.2d at 1335. Further, the evidence in the present case suggests even more extensive control than in Blanton.
In any event, Blanton does not involve the splintering of operational control and assets among numerous different legal entities within a single business enterprise in a manner that allows the enterprise to avoid responsibility for a significant judgment against it. In this regard, although the subsidiary in Blanton did file for bankruptcy, there is no indication in Blanton that, as in the present case, the subsidiary was formed with no significant assets, real or personal, or that it maintained virtually no liability insurance. For all that appears,
585 So.2d at 1335 (emphasis added). In Messick, upon which Fairfield Nursing and Rehabilitation Center, LLC ("Fairfield"), and the amici curiae also rely, this Court stated that it is in cases where "excessive control" constitutes "the ground" for piercing that the additional elements of misuse and proximate causation must be shown: "[W]e announced, in Kwick Set Components, Inc. v. Davidson Ind., Inc., 411 So.2d 134 (Ala.1982), a standard to be applied in order to determine whether the corporate entity should be disregarded when excessive control is the ground." 514 So.2d at 894 (emphasis added).
Given the fundamental principle that "`a corporation is a distinct entity, to be considered separate and apart from the individuals who compose it,'" id. (quoting Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Ala. 206, 210, 6 So. 41, 43 (1889)), "[w]e have held that in the absence of fraud or inequity, the sole shareholder in a corporation will be protected from individual liability by the corporate entity, Washburn v. Rabun, 487 So.2d 1361 (Ala.1986)." Co-Ex Plastics, 536 So.2d at 39. That is, the theory of separate corporate existence can properly be discarded in the event of fraud or illegality or, "in the absence of fraud or illegality, to prevent injustice or inequitable consequences." Messick, 514 So.2d at 894 (citing Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975)). Where there is no fraud in the formation and maintenance of the separate corporate entity, however, and no inequity to a judgment debtor as the result of inadequate capitalization of that entity, on what ground can we say there has been an "injustice or inequitable consequence"? That is, if the separate entity has been formed and maintained using the proper corporate formalities and is adequately capitalized, and the shareholder or parent is not misrepresented to the public or a contracting party as the entity to which one can look for satisfaction of the contractual or other liabilities, there normally would be no basis for holding the shareholder or parent liable. It is under such circumstances — when the ground upon which the corporate veil is challenged is limited to excessive control — that Messick logically steps in to supply the missing inequity by requiring that we consider whether the control has been misused in a way that proximately caused the plaintiff's injury. "Such circumstances" are not the circumstances of the present case; more than "mere domination" or control is alleged and evidenced here.
Amici curiae also complain about this Court's recitation of the factors indicating "control" from our decision in Duff v. Southern R.R., 496 So.2d 760 (Ala.1986), suggesting that the recitation of these factors in Duff might have been superseded by our holding one year later in Messick. Nothing in Messick, however, overrules Duff or casts doubt on the continued viability of the factors described in Duff for the specific purpose of measuring the extent of a parent corporation's control of a subsidiary corporation. In Econ Marketing, Inc. v. Leisure American Resorts, Inc., 664 So.2d 869, 870 (Ala.1994), this
In regard to all the foregoing, I note that the question of piercing is before us in the context of a summary judgment. Consequently, the question is not whether, when viewed in the light most favorable to the defendants, the evidence demands a reversal of a final judgment as a matter of law, but instead whether, when viewed in the light most favorable to the plaintiff/summary-judgment nonmovant, the evidence creates a genuine issue of material fact.
The purpose of the equitable doctrine of piercing the corporate veil is to prevent an injustice associated with a misuse of the corporate form. Our decision today is entirely consistent with that purpose in regard to a business enterprise that operates a 190-bed skilled-nursing-care facility where financial and operational control have been divided among a variety of different legal entities within the enterprise, where ownership of essentially all real and personal property used in connection with the facility has been transferred to one or more legal entities other than those exercising operational control over the facility, and where the facility itself maintains only $25,000 in liability insurance.
STUART, Justice (dissenting).
The gravamen of Myrtis Hill's medical-malpractice claim is that Fairfield Nursing and Rehabilitation Center, LLC ("Fairfield"), breached the standard of care by not requiring the use of a mechanical lift, a gait belt, or multiple staff members when Hill was being transferred into or out of her bed at Fairfield's nursing-home facility. It is undisputed that the physical-therapy department at the nursing home was responsible for assessing residents
Under cross-examination by Fairfield's attorney, Janie Dawson, the director of nursing at the nursing-home facility, testified as follows regarding Fairfield's policy for determining what level of assistance is given residents when they are being transferred:
When Toya Nelson, Hill's expert witness, was subsequently asked about this issue on voir dire by counsel for Fairfield, she acknowledged that she was not a physical therapist and that she could not testify regarding the standard of care that applies to decisions made by physical therapists:
Nelson also testified that she could not dispute that it was the physical-therapy department at the nursing-home facility that made the decisions as to what transfer assistance should be given to its residents. Moreover, Nelson did not testify that the standard of care for nurses and
Thus, the undisputed evidence at trial indicated that the physical-therapy department at the nursing-home facility determined the specific guidelines for assisting individual residents with transfers. This lawsuit is premised on the allegation that Fairfield committed malpractice by not mandating that Hill be given additional assistance when being transferred, and, because it was the physical-therapy department at the nursing-home facility — not the nursing department — that made the decision that Hill did not need additional assistance, I believe the relevant standard of care is the standard applicable to physical therapists. In other words, the standard of care should not change if the individual assisting Hill at the time of her accident was a nurse, a certified nursing assistant, a physical therapist, a doctor, or an unskilled staff member; the physical-therapy department made the decision on what transfer assistance was needed for Hill, and others were expected to act in accordance with that decision. Nelson, a registered nurse, explicitly acknowledged that she is not qualified to render a professional opinion as to whether a physical therapist had breached a standard of care applicable to physical therapists. Her admission is consistent with § 6-5-548, Ala. Code 1975, which bars health-care providers licensed, trained, and experienced in one discipline from testifying that health-care providers practicing in a separate discipline breached a standard of care applicable to that separate discipline. Because the standard of care at issue in this case is the standard employed by physical therapists, Nelson was not authorized to testify as to whether that standard was breached.
Because all the defendants for whom a summary judgment had been previously entered would also have been entitled to judgment as a matter of law for this reason, it is unnecessary to consider Hill's argument that the trial court erred in entering that summary judgment. For these reasons, I respectfully dissent.
664 So.2d at 870 (quoting Backus v. Watson, 619 So.2d 1342, 1345 (Ala. 1993), quoting in turn Simmons v. Clark Equip. Credit Corp., 554 So.2d 398, 400-01 (Ala. 1989) (emphasis added)). The Court immediately follows this passage with a litany of conditions that we may take either as examples of circumstances in which control is not the sole ground ("mere domination") asserted for the piercing and therefore the additional elements of misuse and proximate causation are not essential, or as examples of circumstances (including fraud in use of the corporate form and depleting the subsidiary of financial resources needed to respond to a judgment) that satisfy these additional requirements:
664 So.2d at 870 (quoting Backus v. Watson, 619 So.2d at 1345, quoting in turn Simmons v. Clark Equip. Credit Corp., 554 So.2d at 400).
In Simmons, this Court stated that "[t]he only evidence before the trial court in this case that in any way tends to support a judgment piercing the corporate veil is Simmons's testimony that he owned from 70% to 80% of the stock of the Corporation." 554 So.2d at 400 (emphasis added). Emphasizing the fact that in Simmons the only factor under consideration was the 70-80% stock ownership and the resulting control by the majority shareholder is this additional explanation by the Court: "There was no evidence before the trial court ... that the Corporation was established as a subterfuge, that it did not comply with corporate laws, that it kept no corporate records, that it maintained no corporate bank account, that it had no employees, that the Corporation's money and Simmons's money were commingled, or that the Corporation was not held out to the public as a corporation." 554 So.2d at 401. The Court further explained that "[i]n the absence of undisputed evidence that some or all of these factors existed, the trial court could not conclude that... piercing the corporate veil was required as a matter of law." Id.
