Phillip Duke v. Walmart, Inc., and Qeon Gray

• Court: Supreme Court of Alabama
• Decided: March 20, 2026
• Docket: SC-2026-0074
• Status: Published

Opinion

Rel: March 20, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA OCTOBER TERM, 2025-2026

_________________________

SC-2026-0074 _________________________

Phillip Duke

v.

Walmart, Inc., and Qeon Gray

Appeal from Pike Circuit Court (CV-24-900152)

SELLERS, Justice.1

1This case was originally assigned to another Justice on this Court;

it was reassigned to Justice Sellers on February 23, 2026. SC-2026-0074

Phillip Duke appeals from a summary judgment entered by the

Pike Circuit Court ("the trial court") in favor of Walmart, Inc., and its

employee, Qeon Gray, on Duke's tort claims against Walmart and Gray.

We affirm.

I. Facts and Procedural History

On October 2, 2024, at or around 9:46 p.m., Duke, who claims that

he was "off duty" and jogging in the parking lot of the Walmart

distribution center, was struck by a tractor-trailer truck being driven by

Gray. It is undisputed that, at the time of the accident, both Duke and

Gray were employed by Walmart and that Gray was performing a job-

related duty. On December 12, 2024, Duke commenced an action against

Walmart and Gray, seeking damages for the injuries he incurred as a

result of the accident. In his complaint, Duke asserted certain tort claims

against Walmart and Gray.2 Walmart answered the complaint, asserting

as an affirmative defense that Duke's tort claims were barred by § 25-5-

52 and § 25-5-53, Ala. Code 1975, which are commonly referred to as the

2Duke asserted claims of negligence; wantonness; negligent hiring,

training, supervision, and retention; he asserted theories of liability premised on the doctrine of respondeat superior, agency, and co-employee liability under § 25-5-11, Ala. Code 1975. 2 SC-2026-0074

exclusive-remedy provisions of the Workers' Compensation Act ("the

Act"), § 25-5-1, et seq., Ala. Code 1975. Walmart and Gray thereafter

moved for a summary judgment pursuant to Rule 56(c), Ala. R. Civ. P.,

based on the exclusive-remedy provisions of the Act. Following a hearing,

the trial court entered a summary judgment in favor of Walmart and

Gray. In its judgment, the trial court noted that it was undisputed that

Duke had accepted workers' compensation and medical benefits from

Walmart, that he had accepted those benefits while represented by

counsel, and that he had taken no action to reserve any right to pursue

any other remedy before accepting those benefits. Thus, the trial court

held that Duke's acceptance of the workers' compensation benefits while

represented by counsel estopped him from pursuing other remedies

against Walmart. The trial court further noted that Duke's claims

against Gray were insufficient because, it said, there was no evidence of

willful conduct. This appeal followed.

II. Standard of Review

"This Court reviews a summary judgment de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Rule 56(c), Ala. R. Civ. P.; Nettles v. Pettway, 306 So. 3d 873 (Ala. 2020). The movant for a summary judgment has the initial burden of producing 3 SC-2026-0074

evidence indicating that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Once the movant produces evidence establishing a right to a summary judgment, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. We consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Id."

Sykes v. Majestic Mississippi, LLC, 402 So. 3d 203, 207-08 (Ala. 2024).

III. Discussion

A. Walmart

The substantive issue on appeal is whether the trial court erred in

entering a summary judgment in favor of Walmart based on the

exclusive-remedy provisions of the Act, specifically because Duke was

paid workers' compensation benefits under the Act.

Section 25-5-52 provides, in relevant part:

"Except as provided in [the Act], no employee of any employer subject to [the Act] ... shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof."

Section 25-5-53 provides, in relevant part:

4 SC-2026-0074

"The rights and remedies granted in [the Act] to an employee shall exclude all other rights and remedies of the employee ... at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in [the Act], no employer shall be held civilly liable for personal injury to or death of the employer's employee, for purposes of [the Act], whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment."

Duke argues that the Act does not apply in this case because, he

says, the injuries he suffered were not job related because, at the time of

the accident, he was off duty and not performing any job duties for

Walmart. Thus, he claims that, because the Act does not apply, his sole

remedy against Walmart was a civil-tort action. See ITT Specialty Risk

Servs, Inc. v. Barr, 842 So. 2d 638, 646 (Ala. 2002) ("When an employee

suffers injuries that do not result from an accident 'arising out of and in

the course of' his or her employment, that employee is not precluded by

the exclusivity provisions of the Act from bringing an intentional-tort

claim against an employer or against an agent of the employer.").

Walmart, on the other hand, claims that, under the exclusive-remedy

provisions, it is entitled to immunity on Duke's tort claims because, it

says, Duke accepted workers' compensation benefits under the Act. That

5 SC-2026-0074

is, Walmart argues that the benefits provided under the Act are Duke's

exclusive remedy against Walmart. This Court has consistently held that

"the acceptance of compensation payments under the Workmen's

Compensation Act constitutes an election that estops the employee from

resorting to any other remedy." Davis v. M.C. Dixon Lumber Co., 551 So.

2d 305, 306 (1989).

Our initial inquiry, therefore, is whether Walmart presented

sufficient evidence to demonstrate that Duke's injuries were covered by

the Act, which would foreclose his tort action against Walmart. In

support of its motion for a summary judgment, Walmart submitted the

affidavit of Myranda Holloway, a director of "Non-Custodial eDiscovery"

with Walmart, who stated that, in the regular course of business,

Walmart maintains records of workers' compensation claims filed by

employees and any workers' compensation benefits paid pursuant to

those claims, including medical and indemnity benefits. Holloway

attached "true and correct" copies of the records maintained by Walmart

pertaining to Duke, which, she averred, indicated that he was paid

workers' compensation benefits, including medical benefits, temporary-

total-disability benefits, and other benefits, for his injuries allegedly

6 SC-2026-0074

sustained on October 2, 2024, while he was an employee of Walmart.

Walmart also submitted copies of the checks issued by "Walmart Claims

Services, Inc.," each of which identifies Duke as the claimant and

includes a corresponding claim number. Walmart made a prima facie

showing that Duke received workers' compensation benefits under the

Act. Thus, the burden shifted to Duke to present substantial evidence

demonstrating that he was not covered under the Act. In his response in

opposition to Walmart's summary-judgment motion, Duke asserted that

it was undisputed that the Act did not apply because, he said, at the time

of the accident, he was off duty and not performing any job duties. Duke

relies on certain documents maintained by Walmart indicating that, at

the time of the accident, Duke was not "doing normal activities," that he

was "walking/running in yard," and that he was not "logged into" his

"[t]ablet." Regardless of whether Duke was off duty at the time of the

accident, the evidence presented by Walmart establishes that he received

benefits under the Act, and he cannot accept those benefits and at the

same time claim that he was off duty in attempt to recover damages from

7 SC-2026-0074

Walmart by different means.3 See Brown v. Hixon, 686 So. 2d 1220, 1222

(Ala. Civ. App. 1996) ("When a party, with knowledge of facts, makes an

election between two inconsistent theories of recovery, the election is

binding upon him. Kelley v. Dupree, 376 So. 2d 1371 (Ala. 1979).

Therefore, Brown cannot accept workers' compensation benefits as an

employee of Hixon and at the same time claim that he is not an employee

but an independent contractor, in an attempt to recover from Hixon

under theories of negligence and wantonness."). Based on the foregoing,

Duke failed to meet his burden of demonstrating by substantial evidence

that his tort claims were not barred by the exclusive-remedy provisions

3Duke states that trial court "couched" its judgment in terms of

"election of remedies" and "estoppel." Thus, he argues that, because Walmart did not raise those affirmative defenses in its answer, they are deemed waived. Regardless of how the trial court stated its holding, it is clear that the trial court based its summary judgment in favor of Walmart on the exclusive-remedy provisions of the Act and that Walmart asserted that defense in its answer. Duke cites no authority to indicate that a defendant asserting the affirmative defense of immunity under § 25-5-52 and § 25-5-53 must also assert the separate defenses of estoppel and election of remedy. As noted by Walmart, the exclusive-remedy provisions of the Act provide an employer with the defense where, as here, the plaintiff accepts payments under the Act. See Baptist Mem'l Hosp. v. Gosa, 686 So. 2d 1147, 1148-49 (Ala. 1996) (allowing hospital to amend its answer to add an affirmative defense of immunity under the exclusive-remedy provisions when it was undisputed that employee had accepted workers' compensation payments from the hospital).

8 SC-2026-0074

of the Act.4 Accordingly, the summary judgment in favor of Walmart was

proper.

B. Gray

Section 25-5-11, Ala. Code 1975, provides that an employee who

receives benefits under the Act may bring a separate action against his

or her co-employee if the employee's injury is a result of "willful conduct"

on the part of a co-employee. See also § 25-5-14, Ala. Code 1975; Ex parte

Newton, 895 So. 2d 851, 854 (Ala. 2004) ("The Workers' Compensation

Act … provides immunity to co-employees 'from civil liability for all

causes of action except those based on willful conduct.' § 25-5-14

(emphasis added).") Section 25-5-11(c)(1) defines willful conduct, in

relevant part, as the "intent or design to injure another." Thus, a person

seeking to recover against a co-employee carries a heavy burden. In Reed

v. Brunson, 527 So. 2d 102 (Ala. 1988), this Court described the evidence

4Duke also asserts that the summary judgment in favor of Walmart

is improper because, he says, there are questions of fact as to whether he elected the remedy of receiving workers' compensation benefits and whether he understood that the checks he accepted were for workers' compensation payments. Duke, however, did not raise those arguments in the trial court; therefore, we will not consider them on appeal. See ITEC, Inc. v. Automated Precision, Inc., 623 So. 2d 1139, 1140 (Ala. 1993) ("Issues not raised before the trial court will not be considered for the first time on appeal."). 9 SC-2026-0074

an injured employee must present in order to submit a co-employee-

liability case to a jury. We required that the employee present evidence

tending to show either: "1) the reason why the co-employee defendant

would want to intentionally injure the plaintiff, or someone else, or 2)

that a reasonable man in the position of the defendant would have known

that a particular result (i.e., injury or death) was substantially certain to

follow from his actions." Reed, 527 So. 2d at 120 (emphasis omitted).

In Gray's motion for a summary judgment, he argued, in relevant

part, that Duke's claim against him could not survive because, he said,

Duke did not present any evidence indicating that, at the time of the

accident, Gray had engaged in willful conduct. In his response in

opposition to Gray's summary-judgment motion, Duke omitted any

discussion regarding Gray's conduct at the time of the accident. Rather,

for the first time on appeal, Duke argues that he was not required to

plead or to present any evidence of willful conduct on the part of Gray

because, he says, this is not a workers' compensation case. He further

asserts that, even if he was required plead willful conduct, he did so by

alleging in the complaint that, at the time of the accident, Gray was

under the influence of illegal drugs and that, under § 25-5-11(c)(3),

10 SC-2026-0074

intoxication of a co-employee is considered willful conduct. However, at

the summary-judgment stage of the proceedings, Duke was required to

present substantial evidence demonstrating that Gray had acted with an

intent or design to injure him.5 Because Duke presented no such

evidence, his claims against Gray premised on co-employee liability

under § 25-5-11 could not stand. Thus, the summary judgment in favor

of Gray was proper.

IV. Conclusion

Based on the foregoing, the summary judgment in favor of Walmart

and Gray is affirmed.

AFFIRMED.

Stewart, C.J., and Wise, Bryan, and Parker, JJ., concur.

Cook, J., recuses himself.

5Notably, in his complaint, Duke did not even allege that Gray's

conduct was willful. Rather, he alleged that, Gray "did not see" Duke and "ran [Duke] over." He also alleged that, upon information and belief, Gray was under the influence of illegal drugs at the time of the collision and that Gray, "while under the influence of illegal drugs, recklessly and wantonly" operated the tractor-trailer truck owned by Walmart. However, Duke did not provide the trial court with any evidence to demonstrate that the conduct described in the above allegations amounted to willful conduct. 11