Pollock v Girl Scouts of So. Alabama Inc (2015) H&FLR 2015-25

Dana Louise Pollock v Girl Scouts of Southern Alabama Inc (2015) H&FLR 2015-25

Court of Civil Appeals (Alabama)

27 February 2015

Coram: Thompson PJ, Donaldson, Pittman, Thomas and Moore JJ

Appearing for the Plaintiff: Not identified
Appearing for the Defendant: Not identified

Catchwords: Alabama – workers compensation – arising out of employment – in the course of employment – horse riding

Facts: The plaintiff was employed by the defendant as a facility named Camp Scoutshire Woods.  She was  employed as its business manager and assistant to the camp director.  It was customary for the camp’s horse director to arrange a hose ride for staff of the camp at the end of the six week summer camp program.  It was not part of the plaintiff’s duties to take part in this ride, nor was it part of her remuneration, and the defendant did not derive a benefit from it.

When the ride took place on 29 June 2011, the plaintiff’s horse bolted and she fell, sustaining a back injury.  The plaintiff claimed compensation under Alabama’s Workers’ Compensation Act.  The Act requires that, for an injury to be compensable, it must arise out of and in the course of employment: Ala. Code 1975, §25-5-1(8).  The defendant sought and was granted summary dismissal of the claim on the basis that the injury did not so arise: Pollock v Girl Scouts of Southern Alabama Inc (Mobile Cir. Ct, unknown judge,  18 February 2014, unreported).  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. The phrases “arising out of” and “in the course of” in §25-5-1(8) denote two distinct concepts and both must be met to bring a case within the Act.

Ex parte Shelby County Health Care Authority, 850 So. 2d 332 (Ala. 2002), followed.

2. The criteria for determining whether an injury has arisen out of and in the course of employment are not closed.  However, the Court took particular note that –
(a) The ride was voluntary and recreational and unrelated to the plaintiff’s duties as business manager and assistant to the camp director.  Further, it was not naturally related to or incidental to her work.
(b) The defendant derived no benefit from the holding of the ride.
(c) While the defendant permitted the plaintiff to take part in the ride, it did not encourage her to do so.

Young v Mutual Savings Life Insurance Co, 541 So.2d 24 (Ala. Civ. App. 1989); Ex parte Shelby County Health Care Authority, 850 So. 2d 332 (Ala. 2002); Moore’s Case, 330 Mass. 1, 110 NE.2d 764 (1953); Wooten v Roden, 260 Ala. 606, 71 So.2d 802 (1954), followed.

Board of Managers of City of Birmingham Retirement and Relief System v Elliott, 532 So.2d 1019 (Ala. Civ. App. 1998); Ex parte Holton, 886 So.2d 83 (Ala. 2003); Kennedy v.Cochran, 475 So.2d 872 (Ala. Civ. App. 1985), distinguished.

Judgment

The Court’s judgment is available here.

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Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

James Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

United States District Court (Northern Dist. of Alabama)

23 May 2013

Coram: Acker J.

Appearing for the Plaintiffs: Steven Nichols and Shay Samples (both of Hare Wynn, Newell & Newton)
Appearing for the Defendant: Hobart Arnold and James Porter (both of Porter, Porter and Hassinger), Jeffrey Malsch and Anthony Pisciotti (both of Pisciotti, Malsch & Buckley) and David Welborn.

Catchwords: Alabama – tort – firearms – personal injury – product liability – merchantability

Facts: The plaintiff (James Avery) was the owner of a Cobra Model C32 derringer handgun (made by the defendant), which he had been given in around 2004.  He was experienced in using and handling firearms and routinely carried the gun in anticipation of using it for self defence.  In order to be able to use it for this purpose without delay, he customarily carried it without engaging the safety catches.

On 10 February 2010 the plaintiff was carrying the gun in his hands along with a number of other items including soft drink bottles.  As he attempted to throw the empty bottles in a rubbish bin, he dropped the gun, which discharged and shot him in the abdomen.

The plaintiff brought proceedings against the defendant, seeking damages for (as relevant here) breach of an implied warranty of merchantability.  The defendant sought summary dismissal of the claim.

Held: Denying the defendant’s application, that –

1. A claim based on breach of an implied warranty of merchantability can be brought to seek compensation for injury caused by an unreasonable dangerous product.  It is not dependent on (in particular) also having a connected claim under the Alabama Extended Manufacturer’s Liability Doctrine.

Spain v Brown & Williamson Tobacco Corp., 872 So.2d 101 (Ala. 2003), followed.

2. In order to claim for breach of an implied warranty a plaintiff must show that there was such a warranty, that it was breached, and that the breach proximately caused harm.

Storey v Day Heating and Air Conditioning Co., 319 So.2d 279 (Ala. Civ. App. 1975) and Barrington Corp. v Patrick Lumbar Co. Inc., 447 So.2d 785 (Ala. Civ. App. 1984), followed.

2(a). Alabama Code §7-2-314(1) implies a warranty of merchantability of goods into a contract for their sale if the vendor is a merchant with respect to goods of that sort.  A manufacturer can be considered to be such a merchant, despite not having a direct contractual relationship with an injured person, if that person was injured and it was reasonable to expect that they would use the goods in question (1).

Bishop v Sales, 336 So.2d 1340 (Ala. 1976), followed
Ex Parte General Motors Corp., 769 So.2d 903 (Ala. 1999), distinguished.

2(b). Alabama Code §7-2-314 lists a number of conditions for goods to be considered merchantable, including that the goods are fit for the ordinary purposes for which goods of that type are used.  It is a jury question whether (a) self-defence is an ordinary use of a derringer-type handgun, and (b) whether it would therefore be normal to carry it with the safety features unused, such that (c) for the gun to be merchantable it should not fire when dropped with the safety off.

2(c). It is a question for a jury whether any particular event is a proximate cause of a plaintiff’s injury.

Judgment

The Court’s judgment is available here.

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(1) This type of relationship seems indistinguishable from the test for manufacturer’s liability established in the classic case of Donoghue v Stevenson [1932] A.C. 562 (U.K. 1932)

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