ON REHEARING EX MERO MOTU1
Ricky Williams was a cabinetmaker and woodworker at Madix Cabinet Shop in Goodwater, Alabama. Williams's job was to push boards across a table saw to cut grooves for drawers. On the day of his injury, Williams was pushing a board across an expandable dado blade2 on a table saw, when the board suddenly "kicked back" and Williams's left hand went into the table saw blade. Williams lost his little finger and much of his thumb and suffered other cuts on his hand. The Powermatic division of DeVlieg-Bullard, Inc. (hereinafter "Powermatic"), manufactured the table saw, and Delta International Machinery Corporation ("Delta") manufactured the expandable dado blade.
Williams sued Powermatic and Delta (and other defendants who are not parties to this appeal and whose absence here in no way affects this appeal), alleging, among other things, negligence and liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). Powermatic and Delta's answers included general denials and the affirmative defenses of contributory negligence and assumption of the risk. The case went to a jury on the negligence and AEMLD claims, after the trial court had denied Powermatic and Delta's motions for directed verdicts.
Williams had not moved for a directed verdict as to the affirmative defenses of contributory negligence and assumption of the risk. However, he had requested a charge on comparative negligence in lieu of a charge on contributory negligence; the trial court refused to give it, stating: "I have considered that charge and I am consciously electing to reject it and it has been properly raised. . . . I'm going to [charge the jury on] plain Alabama contributory negligence as a complete defense."
The jury returned a general verdict in favor of Powermatic and Delta, and the court entered a judgment on that verdict. Williams appealed, raising what he called "two issues of pure law": (1) Whether the rule of Dennis v. American Honda MotorCo., 585 So.2d 1336 (Ala. 1991), applies to this case; and (2) if not, whether the doctrine
of contributory negligence should be abandoned in favor of the doctrine of comparative negligence and the comparative negligence doctrine applied in this case.
I.
Powermatic contends that Williams's first issue is not properly before this Court, because Williams did not object to the giving of the contributory negligence charge on the ground that contributory negligence was not a defense to an AEMLD claim. Powermatic is correct. Williams requested that the trial court adopt the comparative negligence standard in lieu of the contributory negligence standard, as some Justices of this Court have urged this Court to do. See
Campbell v. AlabamaPower Co.,
567 So.2d 1222 (Ala. 1990) (Hornsby, C.J., dissenting). At the conclusion of the trial court's charge, in response to the question "Exceptions for plaintiff?" the attorney for Williams stated to the trial court: "I know you have relieved me of the burden of objecting to the [charge on contributory negligence] and the failure of the Court to give [a charge on comparative negligence, but] just [out of] an abundance of caution . . . [sic]." The trial court stated: "Just for the record, we'll consider that you have again requested those charges and objected to my not giving them." Williams's objection was not specific enough with respect to the charge on contributory negligence for us to review the first issue. Rule 51, Ala.R.Civ.P.;
Crigler v. Salac,
438 So.2d 1375 (Ala. 1983).
However, because there appears to be some confusion as to the proper interpretation of Dennis v. American Honda Motor Co., supra, we direct the attention of the bench and bar to the specific holding in Dennis, which involved an AEMLD claim against American Honda Motor Company ("Honda") with respect to an allegedly defective motorcycle helmet. The plaintiff was injured when the motorcycle he was driving collided with a log truck. Honda contended that the accident was caused by contributory negligence on the part of the plaintiff — speeding and in running into the back of the log truck. The trial court instructed the jury, in essence, that if it found that the plaintiff had negligently operated the motorcycle and that his negligence had contributed to cause the accident, then it should return a verdict in Honda's favor.
On the appeal in Dennis, the majority of this Court stated the issue as follows: "[W]hether the trial court erred in charging the jury on contributory negligence as it related to the cause of the accident." If the contributory negligence instruction had been limited to the plaintiff's failure to exercise reasonable care in his wearing of the helmet (i.e., if it had related to an alleged product misuse), then such an instruction would have been proper under this Court's previous interpretations of the AEMLD. See Harley-Davidson, Inc. v.Toomey, 521 So.2d 971 (Ala. 1988). Justice Kennedy, for a majority of this Court, wrote in Dennis: "It would be wholly inconsistent to allow the manufacturer of a safety device such as a motorcycle helmet to design a defective product and then allow that manufacturer to escape liability when the product is used for an intended use, i.e., the very purpose of the helmet." 585 So.2d at 1340. The trial error in Dennis was in not limiting the contributory negligence charge to the plaintiff's use of the helmet as opposed to the plaintiff's allegedly negligent operation of his motorcycle. Although contributory negligence has been recognized generally as a defense to AEMLD actions, in Atkins v. American Motors Corp.,335 So.2d 134 (Ala. 1976), this Court seemed to indicate that the defense is available only under certain defensive theories, e.g., "plaintiff's misuse of the product." 335 So.2d at 143.
We note that in this case, Williams's negligence was predicated solely upon his misuse of products — the table saw and the dado blade — neither of which was a safety device being used as intended by the manufacturer to protect people from negligent acts. The rule of Dennis v. American Honda MotorCo. does not apply to this case, because the only contributory negligence
alleged in this case involved the use of the table saw and the dado blade.
II.
We next address the second issue of "pure law": Whether the doctrine of contributory negligence should be abandoned in favor of the doctrine of comparative negligence.
We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth this issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years. See Bethea v. Taylor, 3 Stew. 482 (Ala. 1831).
AFFIRMED.
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ON REHEARING EX MERO MOTU1
Ricky Williams was a cabinetmaker and woodworker at Madix Cabinet Shop in Goodwater, Alabama. Williams's job was to push boards across a table saw to cut grooves for drawers. On the day of his injury, Williams was pushing a board across an expandable dado blade2 on a table saw, when the board suddenly "kicked back" and Williams's left hand went into the table saw blade. Williams lost his little finger and much of his thumb and suffered other cuts on his hand. The Powermatic division of DeVlieg-Bullard, Inc. (hereinafter "Powermatic"), manufactured the table saw, and Delta International Machinery Corporation ("Delta") manufactured the expandable dado blade.
Williams sued Powermatic and Delta (and other defendants who are not parties to this appeal and whose absence here in no way affects this appeal), alleging, among other things, negligence and liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). Powermatic and Delta's answers included general denials and the affirmative defenses of contributory negligence and assumption of the risk. The case went to a jury on the negligence and AEMLD claims, after the trial court had denied Powermatic and Delta's motions for directed verdicts.
Williams had not moved for a directed verdict as to the affirmative defenses of contributory negligence and assumption of the risk. However, he had requested a charge on comparative negligence in lieu of a charge on contributory negligence; the trial court refused to give it, stating: "I have considered that charge and I am consciously electing to reject it and it has been properly raised. . . . I'm going to [charge the jury on] plain Alabama contributory negligence as a complete defense."
The jury returned a general verdict in favor of Powermatic and Delta, and the court entered a judgment on that verdict. Williams appealed, raising what he called "two issues of pure law": (1) Whether the rule of Dennis v. American Honda MotorCo., 585 So.2d 1336 (Ala. 1991), applies to this case; and (2) if not, whether the doctrine
of contributory negligence should be abandoned in favor of the doctrine of comparative negligence and the comparative negligence doctrine applied in this case.
I.
Powermatic contends that Williams's first issue is not properly before this Court, because Williams did not object to the giving of the contributory negligence charge on the ground that contributory negligence was not a defense to an AEMLD claim. Powermatic is correct. Williams requested that the trial court adopt the comparative negligence standard in lieu of the contributory negligence standard, as some Justices of this Court have urged this Court to do. See
Campbell v. AlabamaPower Co.,
567 So.2d 1222 (Ala. 1990) (Hornsby, C.J., dissenting). At the conclusion of the trial court's charge, in response to the question "Exceptions for plaintiff?" the attorney for Williams stated to the trial court: "I know you have relieved me of the burden of objecting to the [charge on contributory negligence] and the failure of the Court to give [a charge on comparative negligence, but] just [out of] an abundance of caution . . . [sic]." The trial court stated: "Just for the record, we'll consider that you have again requested those charges and objected to my not giving them." Williams's objection was not specific enough with respect to the charge on contributory negligence for us to review the first issue. Rule 51, Ala.R.Civ.P.;
Crigler v. Salac,
438 So.2d 1375 (Ala. 1983).
However, because there appears to be some confusion as to the proper interpretation of Dennis v. American Honda Motor Co., supra, we direct the attention of the bench and bar to the specific holding in Dennis, which involved an AEMLD claim against American Honda Motor Company ("Honda") with respect to an allegedly defective motorcycle helmet. The plaintiff was injured when the motorcycle he was driving collided with a log truck. Honda contended that the accident was caused by contributory negligence on the part of the plaintiff — speeding and in running into the back of the log truck. The trial court instructed the jury, in essence, that if it found that the plaintiff had negligently operated the motorcycle and that his negligence had contributed to cause the accident, then it should return a verdict in Honda's favor.
On the appeal in Dennis, the majority of this Court stated the issue as follows: "[W]hether the trial court erred in charging the jury on contributory negligence as it related to the cause of the accident." If the contributory negligence instruction had been limited to the plaintiff's failure to exercise reasonable care in his wearing of the helmet (i.e., if it had related to an alleged product misuse), then such an instruction would have been proper under this Court's previous interpretations of the AEMLD. See Harley-Davidson, Inc. v.Toomey, 521 So.2d 971 (Ala. 1988). Justice Kennedy, for a majority of this Court, wrote in Dennis: "It would be wholly inconsistent to allow the manufacturer of a safety device such as a motorcycle helmet to design a defective product and then allow that manufacturer to escape liability when the product is used for an intended use, i.e., the very purpose of the helmet." 585 So.2d at 1340. The trial error in Dennis was in not limiting the contributory negligence charge to the plaintiff's use of the helmet as opposed to the plaintiff's allegedly negligent operation of his motorcycle. Although contributory negligence has been recognized generally as a defense to AEMLD actions, in Atkins v. American Motors Corp.,335 So.2d 134 (Ala. 1976), this Court seemed to indicate that the defense is available only under certain defensive theories, e.g., "plaintiff's misuse of the product." 335 So.2d at 143.
We note that in this case, Williams's negligence was predicated solely upon his misuse of products — the table saw and the dado blade — neither of which was a safety device being used as intended by the manufacturer to protect people from negligent acts. The rule of Dennis v. American Honda MotorCo. does not apply to this case, because the only contributory negligence
alleged in this case involved the use of the table saw and the dado blade.
II.
We next address the second issue of "pure law": Whether the doctrine of contributory negligence should be abandoned in favor of the doctrine of comparative negligence.
We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth this issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years. See Bethea v. Taylor, 3 Stew. 482 (Ala. 1831).
AFFIRMED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs specially.
KENNEDY, J., concurs in the result.
HORNSBY, C.J., and SHORES, J., concur as to Part I; dissent as to Part II.
INGRAM, J., recused (because his son had been the plaintiff's attorney at an earlier stage of the proceedings in this case).
HOUSTON, Justice (concurring specially to explain the majority opinion in this case released on December 13, 1991, and subsequently withdrawn on December 20, 1991).
"To every thing there is a season, and a time to every purpose under the heaven: A time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted; a time to kill, and a time to heal; a time to break down, and a time to build up; a time to weep, and a time to laugh; a time to mourn, and a time to dance; a time to cast away stones, and a time to gather stones together; a time to embrace, and a time to refrain from embracing; a time to get, and a time to lose; a time to keep, and a time to cast away; a time to rend, and a time to sew; a time to keep silence, and a time to speak; a time to love, and a time to hate; a time of war, and a time of peace[;]"3
a time for an opinion in this case to be released; and a time for the issue of judicially adopting comparative negligence to be laid to rest.
In footnote eight of Central Alabama Electric Co-op. v.Tapley, 546 So.2d 371, 381 (Ala. 1989), a majority of this Court as then constituted indicated:
"This Court might be willing to again entertain, in an appropriate case, the idea of adopting the doctrine of comparative negligence. See Golden v. McCurry, 392 So.2d 815 (Ala. 1981)."
In my dissent in Tapley (546 So.2d at 385), I wrote:
"I do not understand footnote eight of the per curiam opinion. Unless the majority of this Court is convinced that the ratio decidendi of the doctrine of contributory negligence would not ' "hypothetically be consented to today by the conscience and the feeling of justice of the majority of all those whose obedience is required by [that] rule of law," ' Southern States Ford, Inc. v. Proctor, 541 So.2d 1081 (Ala. 1989) (Houston, J., concurring specially), then I would assume that this Court would follow the doctrine of stare decisis."
The plaintiff in this case accepted the majority's invitation in Tapley to attempt to get the Court to judicially adopt the doctrine of comparative negligence. When the case was assigned to me, I would have affirmed the judgment as to this issue with no more than a citation to Golden v. McCurry, 392 So.2d 815
(Ala. 1981), if it had not been for footnote eight in the majority opinion in Tapley. However, because of that footnote, I approached the
issue of whether to adopt the doctrine of comparative negligence, which would have required this Court first to abandon the doctrine of contributory negligence, as I approach all issues in which the doctrine of stare decisis is challenged. This was in accordance with the above-quoted portion of my dissent in Tapley.
I convinced myself that in accordance with my judicial conscience, I could depart from the doctrine of stare decisis
on the issue of contributory negligence, if the majority of this Court determined that we should do so. Because the majority of this Court has determined that we should not abandon the doctrine of contributory negligence, and because the time has come for the Court to release an opinion in this case, I adhere to the doctrine of stare decisis.