Luther, Collier, Hodges & Cash, LLP – Attorneys at Law

Alabama Legal Updates – March 2015

Divided Alabama Supreme Court Resolves Unusual Case Without Opinion

March 27, 2015: In Yamaha Motor Corporation, U.S.A., et al., v. Jacklyn McMahon, on appeal from the Montgomery Circuit Court (1121542; CV-08-00360), Justice Parker delivered the 5-4 decision of the Alabama Supreme Court: “AFFIRMED. NO OPINION.”

Justice Bolin’s dissent was instructive. In McMahon v. Yamaha Motor Corp., U.S.A., 95 So. 3d 769 (Ala. 2012) (“McMahon I”), Alabama’s high court reversed the trial court’s entry of judgment as a matter of law (“JML”) on Jacklyn and Donald McMahon’s wantonness claim. The Supreme Court’s March 27, 2015 decision without opinion (“McMahon II”) affirmed the trial court’s judgment based on the jury verdict in favor of Jacklyn McMahon on her wantonness claim. The back story is unusual.

Obviously, in the first trial that resulted in JML, the trial judge believed the wantonness claim to be deficient, as a matter of law. After the high court disagreed in McMahon I, and after hearing the evidence in the jury trial for a second time, the trial judge again failed to see a question of fact that justified submitting the wantonness claim to the jury. The trial judge expressed her disagreement with the Supreme Court, even as she followed the remand instructions:

Okay. And, again, everyone knows we are back here because the Supreme Court has instructed us that they believe that there was a question on the wantonness which this court completely disagrees with.”I’ve sat through both trials. And, again, if this was the first trial, I would be making the exact same ruling. We wouldn’t be going to the jury on that.”However, that is not my job. I’m going to follow the instructions of the Supreme Court which is they want it to go to the jury on the wantonness. So it’s going.”And I say that because I’m going to note that I think the [McMahons] this time have done a much better job trying this case this time, a lot better job than the first time. And even with that, I still would not be sending this to the jury on wantonness. …”

In other words, though the McMahons presented a better case to the second jury, the trial judge was convinced that the plaintiffs failed to present sufficient evidence of wantonness. Insufficient evidence notwithstanding, the trial judge followed the Supreme Court’s instructions, submitted the wantonness claim to the jury, and entered judgment on the jury verdict in favor of Jacklyn McMahon against the Yamaha defendants.

Justice Bolin reasserted his position from McMahon I: the evidence was insufficient as a matter of law, and the wantonness claim should not have been submitted to the jury. Justices Bryan, Murrdock and Shaw likewise dissented. For a copy of the decision, click here.

For more context, in McMahon I, the trial judge granted JML on the negligence and wantonness claims, submitting the AEMLD claim (Alabama’s products liability cause of action) to the jury in this personal injury case involving a Yamaha Rhino rollover. The jury found for Yamaha on the AEMLD claim. The Supreme Court in McMahon I reasoned that the negligence claim, even if submitted to the jury, would have required a verdict for Yamaha since the verdict for Yamaha meant (1) the evidence failed to establish an unsafe product or (2) Yamaha proved Jacklyn McMahon’s contributory negligence.

Contributory negligence being no bar to wantonness, substantial evidence of that greater tort, according to the McMahon I Court, included the following:

[T]he Yamaha defendants made various conscious decisions throughout the development and testing process of the Yamaha Rhino, as well as after initial reports of injuries involving the Rhino were received, knowing that injuries, especially injuries to arms and/or legs similar to those suffered by Jacklyn, would likely result from those decisions. For example, Dr. Michael Kleinberger, a professor of biomedical engineering with experience working in and managing crash-test facilities, testified regarding a 2001 internal Yamaha e-mail in which an employee of one of the Yamaha defendants stated that accidents involving the Yamaha Rhino that resulted in injuries would likely be of the rollover variety and further identified the specific risk of arm/wrist and leg/ankle injuries resulting from contact of those appendages with the ground and/or the vehicle as a result of the attempts of the belted occupants to support themselves and/or the vehicle during rollovers. When questioned by the McMahons’ attorney at trial, Dr. Kleinberger further testified:

“Q. Is there something that Yamaha could have done, in your opinion, to prevent these injuries, a different design?”A. I think they should have had a door on the vehicle. You know, what I mentioned before, that the work that was done by John Zellner, the simulations and the testing really didn’t start until 2006 and finished in the middle of 2007. Following his work and his final report, Yamaha did decide at that point in time to put the doors on the vehicle. There is no reason why those test simulations could not have been done back in 2001 after this memo was sent or after this email was sent.”

95 So. 3d at 773. That evidence justified a second trial on the wantonness claim. That evidence, ostensibly, justified a jury verdict against Yamaha on the wantonness claim. Or, so we must conclude based on McMahon II: “AFFIRMED. NO OPINION.”

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