Timothy Leon Blakley and Angela Machelle Blakley v. Terrence Maurice Johnson and M & M Trucking, Inc.

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REL: 10/29/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2090507 Timothy Leon B l a k l e y and Angela Machelle B l a k l e y v. Terrence Maurice Johnson and M & M T r u c k i n g , Inc. Appeal from C h i l t o n C i r c u i t Court (CV-08-900131) MOORE, Judge. Timothy Blakley, Leon appeal Blakley and h i s wife, from a judgment e n t e r e d Angela on a j u r y Machelle verdict i n f a v o r o f Terrence Maurice Johnson andM & M Trucking, I n c . affirm. We 2090507 Procedural On September 26, 2008, Johnson's employer, negligence and wantonness. on injuries vehicle truck, M sustained accident Background & by the M Blakleys Trucking, The 1 was Timothy i n a May trial. Johnson denying a l l affirmative and M claims close close for M the of a l l the evidence, a judgment denied the Trucking relief t h e c a s e was Blakleys' as truck, as to the and 1 claim to the Angela asserted sought demanded a the asserting negligence various negligence. t r i e d before and and M & M jury complaint, a jury. again at Trucking The trial claim, subsequently i n d i c a t e d that i t would not submit the wantonness a "green The B l a k l e y s case-in-chief Johnson based logging answered and were driving a a m a t t e r of law ("JML"). motion of motor- defenses, including contributory of claims 2007, damages; they a l s o for On A u g u s t 2 6 , 2 0 0 9 , the & 11, was d r i v i n g a tanker and p u n i t i v e and asserting c a r " t h a t l e f t the scene of the a c c i d e n t . compensatory Johnson B l a k l e y s ' claims i n v o l v i n g T i m o t h y , who J o h n s o n , who sued At the moved court but i t Blakleys' jury. a d e r i v a t i v e c l a i m of l o s s of consortium. 2 2090507 At a the close JML i n t h e i r written of a l l the evidence, favor. motion for a Blakleys' motion. certain They r e l i e d JML. on t h e i r The trial A t t h a t same t i m e , of the t r i a l court's the Blakleys Johnson trial 23, court 2009, Ala. and M & M entered the Blakleys court denied P. denied the objected to a verdict i n favor a n d , on t h a t same a j u d g m e n t on t h a t v e r d i c t . m o v e d f o r a new trial. date, On postjudgment motion the September See R u l e A f t e r a November 1 3 , 2009, h e a r i n g , the Blakleys' filed jury instructions. Trucking, the Blakleys R. C i v . previously court On A u g u s t 2 7 , 2 0 0 9 , t h e j u r y r e t u r n e d of moved f o r 59, the t r i a l on t h a t same date. The Blakleys timely court appealed Court. That transferred pursuant t o A l a . Code 1975, § accident Trooper Dewayne i n question. t h e Alabama the appeal Supreme to this court, eyewitness to the 12-2-7(6). Evidentiary State to Background Allums He t e s t i f i e d was an that, on May 1 1 , 2 0 0 7 , h e was d r i v i n g s o u t h o n I n t e r s t a t e H i g h w a y 65 ( " I - 6 5 " ) i n C h i l t o n County when highway. he saw Another a stranded vehicle d r i v e r had p u l l e d over 3 on the side of the to a s s i s t the first 2090507 driver. patrol Allums unit on turned the training behind the as a his shoulder f e e t b e h i n d t h e two his on of state motorist a buffer between traffic. Allums testified that the s i d e - v i e w m i r r o r on the white while into the and and roadway testified had that, parked close was the parked to so the motorists 70 on vehicle roadway to oncoming parked on the c l o s e to the road door extended his driver's roadway. based his s t r a n d e d m o t o r i s t and positioned his approximately t h a t h i s v e h i c l e was of the car road but the shoulder and lights t r o o p e r , he provide patrol the v e h i c l e s ; Allums stranded line blue over Allums attended waited to the in his disabled vehicle. While in his patrol car, Allums conditions. According surrounding light t o medium. commercial of He observed to Allums r e a r - v i e w m i r r o r was testified that approaching h i s parked patrol Allums first he the 4 the was and lane in his one-half mile. observed car i n the observed i n the r i g h t t h a t the v i s i o n f o r at least Allums traffic c a r s , p i c k u p t r u c k s , "SUVs," also testified clear t r a f f i c and Allums, vehicles passing his patrol unit the highway. When observed a tanker right tanker truck lane of I-65. truck, i t was 2090507 approximately one-half mile away. Allums tanker truck slowed t o 5 t o 10 m i l e s driver would "stop, roll during that signal on." time, approximately the tanker forward, testified p e r hour stop, roll [the driver] eventually Allums estimated that that the and t h a t t h e forward. And put h i s l e f t the tanker turn truck was 20 f e e t b e h i n d h i s p a t r o l c a r w h e n t h e d r i v e r o f truck activated the l e f t - t u r n unknown t o A l l u m s a t t h a t t i m e , signal. Although J o h n s o n was d r i v i n g t h e t a n k e r truck. Allums Allums testified described that he also as an o l i v e - g r e e n saw a green Cadillac, slowly i n the left-hand lane; Allums estimated car was traveling at a rate of 5 to 10 c a r , which traveling very that the green miles per hour. 2 A l l u m s a l s o saw a l o g g i n g t r u c k , d r i v e n b y T i m o t h y , b e h i n d t h e green car but "further that the logging miles truck o n down t h e r o a d . " was m o v i n g Allums estimated at approximately 30 t o 35 p e r hour. A l l u m s r e c a l l e d s e e i n g an o l i v e - g r e e n C a d i l l a c i n f r o n t of the logging truck being d r i v e n by Timothy. Timothy r e c a l l e d t h e c a r i n f r o n t o f him as a green C a d i l l a c E s c a l a d e , w h i l e Johnson r e c a l l e d t h e c a r as a green C h e v r o l e t C a v a l i e r . B e c a u s e t h i s f a c t u a l d i s p u t e i s n o t r e l e v a n t t o t h e c a s e , we s i m p l y r e f e r t o t h e c a r i n f r o n t o f T i m o t h y ' s v e h i c l e as a "green c a r . " 2 5 2090507 According from to Allums, the right lane truck the tanker to the l e f t the tanker but that i t d i dcross the center the tanker very slow s p e e d , so t h e d r i v e r truck " s l a m on i t s b r a k e s " lanes. truck Allums also attempted approximately lane. d i d not completely both testified that the l e f t lane Allums t e s t i f i e d that cross into c a r had been moving a t a o f the green c a r had not had t o when t h e t a n k e r testified change Allums line. and t h e green to t r u c k a t t e m p t e d t o change t r u c k a t t e m p t e d t o change t h a t , a t the time lanes, 100 t o 200 f e e t the behind t r a v e l i n g l e s s t h a n 30 m i l e s p e r h o u r . the logging the green tanker truck was c a r a n d was Allums then testified: " I c o u l d see t h e l o g t r u c k coming. The l o g t r u c k , i n my o p i n i o n , was g o i n g t o run over the [green c a r ] . S o t h a t d r i v e r , h e made a n e v a s i v e m a n e u v e r . He w e n t o f f i n t o t h e m e d i a n t o t h e l e f t . A s he w e n t o f f i n t o t h e m e d i a n t o t h e l e f t , i t a p p e a r e d h e was going t o come b a c k o n s m o o t h l y . But a l l of a sudden, the l o g truck just overturned. I t overturned on the driver's side. Logs were everywhere." Allums also reducing to testified that green he could the speed of t h e l o g g i n g the point the that i n time that tell that Timothy t r u c k , presumably the logging truck was not t e l l i f Timothy 6 was b r a k i n g referring approaching car or approaching Allums's parked p a t r o l he c o u l d was car, but o r i f h e was 2090507 simply his no l o n g e r opinion, the tanker safely without of accelerating. Allums also t e s t i f i e d that, i n t r u c k c o u l d have p a s s e d h i s p a t r o l c a r changing from the r i g h t lane to the l e f t lane t h e highway. Timothy pulling testified a load of logs i n the r i g h t lane was t r a v e l i n g i n f r o n t radio that side of him. a state trooper of the highway patrol t h a t , on t h e d a y i n q u e s t i o n , ahead c a r came i n t o v i e w the l e f t of I-65. Timothy heard he was A green c a r over t h e "CB" a n d a d i s a b l e d v e h i c l e were on t h e of him. When t h e s t a t e trooper's i n t h e d i s t a n c e , T i m o t h y moved h i s truck into testified that, at that time, he was t r a v e l i n g a p p r o x i m a t e l y 6 5 m i l e s p e r hour. He also r e c a l l e d seeing lane. According sitting lane. a tanker the ahead o f him i n t h e r i g h t truck was virtually still. t h a t he b e g a n s l o w i n g the speed of the t r u c k when t h e g r e e n c a r a h e a d o f h i m m e r g e d o v e r r i g h t lane estimated into the l e f t lane i n front that, at that point, his logging "maybe f i f t y [ m i l e s truck truck t o Timothy, the tanker Timothy t e s t i f i e d logging Timothy lengths per hour]." behind the Timothy t r u c k was t r a v e l i n g Timothy r e c a l l e d being green 7 of him. from a few c a r , b u t , according to 2090507 Timothy's testimony on c r o s s - e x a m i n a t i o n , of than that s p e e d was f a s t e r testified the green car's of h i s logging truck. rate Timothy 3 t h a t , a s h i s l o g g i n g t r u c k a n d t h e g r e e n c a r came up to the tanker t r u c k , the tanker us"; he a l s o t e s t i f i e d the rear tandem of Timothy, the tanker that t r u c k "come o v e r t h e g r e e n c a r was " r e a l the tanker's truck came trailer." over i m m e d i a t e l y went back i n t o t h e r i g h t Johnson never signaled Timothy testified that before he i n front of into moving realized the l e f t going to lane He t e s t i f i e d into he was According 4 the l e f t lane. close to and that lane. to h i t the g r e e n c a r s o he d r o v e t h e l o g g i n g t r u c k i n t o t h e m e d i a n , w h e r e it overturned. Timothy refused walked away from t o go t o t h e e m e r g e n c y the accident room. and According initially to r e c o r d s , h o w e v e r , he s u b s e q u e n t l y b e g a n e x p e r i e n c i n g went t o t h e e m e r g e n c y room a p p r o x i m a t e l y accident. Timothy u l t i m a t e l y underwent medical p a i n and seven hours a f t e r t h e surgery on h i s n e c k The testimony at this point i s confusing contradictory as t o speeds and p o i n t s i n time at d i f f e r e n t events occurred. 3 and which Despite Timothy's testimony regarding speeds and p o s i t i o n i n g , t h e tanker t r u c k d i dnot s t r i k e t h e green c a r and the green c a r never stopped. 4 8 2090507 and h i s shoulder. Timothy's injuries and medical treatment were c o v e r e d under t h e Alabama Workers' Compensation A c t , A l a . Code 1975, § 25-5-1 et seq. At the trial, Timothy a c k n o w l e d g e d t h a t h i s memory h a d b e e n a f f e c t e d a s a r e s u l t o f the accident. Marissa she on was L e e , who w i t n e s s e d the accident, following the logging t h e day of t h e a c c i d e n t . truck o f I-65 and were a p p r o a c h i n g car, which She observed testified the that, truck shoulder in the as she and t h e l o g g i n g p a t r o l c a r , she n o t i c e d t h a t t h e tanker the left-hand lane log truck and flipped." truck seeing any v e h i c l e of t h e highway. right truck patrol lane. Lee approached the t r u c k "swung o v e r i n t o and then veered o f f the road n o t i c i n g r a t e s of speed, whether t h e signaled before however, Timothy The n e x t t h i n g I n o t i c e d was t h e h a d p u t on h i s b r a k e s tanker opinion, abruptly. Lee denied by the state trooper's on t h e r i g h t tanker driven that She and Timothy were i n t h e l e f t lane was p a r k e d being testified i n front moving toward t h e l e f t of the logging the tanker truck s u d d e n movement i n t o t h e l e f t lane. 9 lane, truck. had attempted or I n her t o make a 2090507 Johnson, he the driver had been traveling posted speed l i m i t patrol c a r , he approximately seeing i n the right slowed miles lane h i s speed, p e r hour. the state trooper's of t h e highway, truck, testified of t r a f f i c a n d t h a t , when he saw t h e s t a t e had five of the tanker patrol He car parked he a c t i v a t e d h i s l e f t - t u r n at the trooper's eventually testified reaching that, on t h e signal that upon shoulder because he did n o t b e l i e v e t h a t he c o u l d p a s s t h e t r o o p e r ' s p a t r o l c a r i n the right mirror, lane. that he distance behind into the l e f t Johnson, Johnson claimed saw a green car i n the l e f t h i m , a n d t h a t he h a d c l e a r a n c e lane the driver i n f r o n t of the green of the green lights a t him, i n d i c a t i n g front of i t . t h a t he c h e c k e d h i s r e a r v i e w Johnson lane a small to cross car. over According c a r had f l a s h e d the to car's t o J o h n s o n t h a t he c o u l d p r o c e e d i n testified that he crossed over the c e n t e r l i n e and i n t o t h e l e f t l a n e o n l y enough t o d r i v e around the patrol Johnson then had c a r and then moved back into the right saw i n h i s r e a r v i e w m i r r o r t h a t t h e l o g g i n g d r i v e n i n t o t h e median of t h e highway and had 10 lane. truck overturned. 2090507 Whether t h e T r i a l Court E r r e d t o R e v e r s a l i n D e n y i n g t h e B l a k l e y s ' M o t i o n f o r a JML The their Blakleys motion argue that the t r i a l court erred i n denying f o r a JML. "In D e l c h a m p s , I n c . v . B r y a n t , 738 S o . 2 d 824 ( A l a . 1999), o u r supreme c o u r t e x p l a i n e d t h e s t a n d a r d o f review applicable t o a t r i a l c o u r t ' s r u l i n g on a motion f o r a judgment as a m a t t e r o f l a w : "'When r e v i e w i n g a r u l i n g o n a m o t i o n for a [judgment as a matter of law ( " J M L " ) ] , t h i s C o u r t u s e s t h e same s t a n d a r d the t r i a l court used i n i t i a l l y i n g r a n t i n g o r d e n y i n g a J M L . P a l m H a r b o r Homes, I n c . v. C r a w f o r d , 689 S o . 2 d 3 ( A l a . 1 9 9 7 ) . Regarding questions of fact, the ultimate question i s whether t h e nonmovant has presented s u f f i c i e n t evidence t o allow the c a s e o r t h e i s s u e t o be s u b m i t t e d t o t h e jury f o r a factual resolution. C a r t e r v. H e n d e r s o n , 598 S o . 2 d 1 3 5 0 ( A l a . 1 9 9 2 ) . F o r a c t i o n s f i l e d a f t e r June 11, 1987, t h e nonmovant must present "substantial evidence" i n order t o w i t h s t a n d a motion f o r a JML. See § 1 2 - 2 1 - 1 2 , A l a . Code 1 9 7 5 ; West v. Founders L i f e Assurance Co. o f F l o r i d a , 547 S o . 2 d 8 7 0 , 8 7 1 ( A l a . 1 9 8 9 ) . A r e v i e w i n g c o u r t must d e t e r m i n e whether t h e p a r t y who b e a r s t h e b u r d e n o f p r o o f h a s produced substantial evidence creating a f a c t u a l d i s p u t e r e q u i r i n g r e s o l u t i o n by the jury. C a r t e r , 598 S o . 2 d a t 1 3 5 3 . In r e v i e w i n g a r u l i n g on a m o t i o n f o r a JML, t h i s Court views the evidence i n the l i g h t most favorable to t h e nonmovant and e n t e r t a i n s such r e a s o n a b l e i n f e r e n c e s as t h e j u r y would have been f r e e t o draw. M o t i o n I n d u s t r i e s , I n c . v . P a t e , 678 S o . 2 d 724 ( A l a . 1996). Regarding a question of 11 2090507 law, however, this Court indulges no p r e s u m p t i o n o f c o r r e c t n e s s as t o t h e t r i a l court's ruling. Ricwil, I n c . v. S.L. P a p p a s & C o . , 599 S o . 2 d 1126 ( A l a . 1 9 9 2 ) . ' "738 Leonard 2008). So. v. Using this jury v. 4 So. 3d 1184 s t a n d a r d o f r e v i e w , we elements i f i t was (Ala. Civ. review the Blakleys' c a u s a t i o n , and damage." Bank, the 817 So. Blakleys Armstrong 2d argue are a duty, 665, that a Bus. 679 breach Servs., (Ala. they 2001). presented " r e l i a b l e / u n c o n t r o v e r t e d / m a t e r i a l " evidence to the t r i a l in support of t h e i r negligence claim, that the evidence duty and c a u s a t i o n was For example, as t o whether h i s subsequent the conditions Timothy that, was presented the to the record elements court establishes of breach of disputed. presented decision attempt present as as the p a r t i e s Johnson's and testified App. properly submitted to of a n e g l i g e n c e c l a i m AmSouth Although 1181, resolution. that duty, Inc. 830-31." claim to determine for "The of at Cunningham, negligence the 2d on t o do the a result day conflicting t o merge i n t o so were of the of Johnson's the evidence left lane reasonable based accident. abrupt lane on Timothy change, f o r c e d t o d r i v e h i s l o g g i n g t r u c k i n t o the median, 12 2090507 where i to v e r t u r n e d . he took t o a s c e r t a i n t h a t he c o u l d s a f e l y merging been Johnson, however, t e s t i f i e d t o t h e steps into safe the l e f t t o merge avoid the patrol shoulder lane into change l a n e s before and t h a t , i n h i s o p i n i o n , i t had the l e f t lane a n d t h a t he d i d s o t o c a r and t h e s t r a n d e d m o t o r i s t s parked on t h e of the highway. The t r i a l whether court a l s o heard the affirmative c o n f l i c t i n g evidence defense of regarding contributory negligence b a r r e d any r e c o v e r y by Timothy, even i f Johnson had, i n f a c t , acted negligently i n executing from which the lane reasonable change. presented evidence persons concluded that, given the conditions present accident, Timothy had operated testified appropriately abrupt lane that and s a f e l y change, he he t h e l o g g i n g t r u c k a t an had operated but that, had could been unsafe Conversely, h i s logging as a r e s u l t forced have on t h e d a y o f t h e speed or had f o l l o w e d the green c a r t o o c l o s e l y . Timothy Johnson to of choose Johnson's between c o l l i d i n g with the green c a r or d r i v i n g h i s logging t r u c k the median Thus, evidence truck into of the highway. the trial court was presented with as t o whether Johnson b r e a c h e d a d u t y 13 conflicting owed t o T i m o t h y 2090507 and whether Timothy's negligence. where claim, which regarding or some (2) w h e r e reasonable P."'" has element there persons Robertson 9, failed could v. Gaddy Spence v. S o u t h e r n P i n e 837 submitted that The claim be single upon 50(a), A l a . R. LLC, [Ms. ( A l a . 2010) 643 S o . 2 d 9 7 0 , disputed 638 issues 2d of fact the of negligence, motion So. trial for a JML and f o r the jury's r e s o l u t i o n . argue that Johnson's o f A l a . Code Section driven lane of f a c t , Blakleys' negligence per se. shall a the her Teague v . Adams, claim (1) substantial & Plumbing, 3d Because also constituted vehicle contributory [ h i s or] issue E l e c . Coop., i n turn to a violation negligence until denied Blakleys amounted within quoting as t o t h e B l a k l e y s ' properly thus, So. ( A l a . 1994)). remained court 2010] to Rule Elec. (quoting ( A l a . 1994), essential differ. April 836, to to present i s no d i s p u t e d 1081351, 971 amounted [judgment as a m a t t e r o f law] i s p r o p e r the nonmoving p a r t y evidence Civ. "'"A actions and t h e d r i v e r has f i r s t as as shall a matter as n o t be ascertained 14 change 1975, § 32-5A-88, 32-5A-88(1) nearly lane of law, i . e . , provides practicable moved that and, from that "[a] entirely such lane s u c h movement c a n 2090507 be made w i t h safety." Because, 5 the Blakleys argue, v i o l a t e d a t r a f f i c statute, h i s improper-lane-change amounted t o n e g l i g e n c e in denying their negligence The the motion se and, for a Blakleys, court however, failed the to as trial court liability to specifically a l l the evidence at the close of in their favor evidence established negligence a for entitled JML entered be motion thus, violation erred on the argue to claim. trial should per Johnson to a a postverdict JML]. the verdict] the proper per directed verdict judgment A without time w i l l the se. [now 6 "A basis party in notwithstanding the verdict having moved denied." a judgment for a the order to be [now a [notwithstanding directed verdict C o m m i t t e e C o m m e n t s on S e c t i o n 32-5A-88 i s p a r t of t h e "Alabama Road A c t , " A l a . Code 1975, § 32-5A-1 e t seq. 5 JML m u s t make JML] for a that a motion be on that Rules of at 1973 the On appeal, the B l a k l e y s have not c h a l l e n g e d the trial court's failure to i n s t r u c t the j u r y on t h e i r theory of negligence per se. Any s u c h c h a l l e n g e w o u l d h a v e b e e n w a i v e d for a p p e l l a t e review because the B l a k l e y s f a i l e d to o b j e c t to the t r i a l c o u r t ' s r e f u s a l to give t h e i r requested i n s t r u c t i o n s on t h a t t h e o r y . See B e i e r s d o e r f e r v . H i l b , R o g a l & H a m i l t o n Co., 953 So. 2 d 1 1 9 6 , 1207 ( A l a . 2 0 0 6 ) ("By n o t o b j e c t i n g t o the t r i a l c o u r t ' s f a i l u r e to charge the j u r y r e g a r d i n g his promissory-fraud claim, Beiersdoerfer waived his promissoryfraud claim "). 6 15 2090507 Adoption of Rule C i v . P. for appellate has been waived 5 0 , A l a . R. review. caution, however, conclude that Blakleys' motion we the trial f o r a JML In C o n s o l i d a t e d S o . 2 d 346 brought consider Consolidated action and the of negligence per se. the executrix for damages of her husband's against an driving Rules lane. specifically, Evidence which the husband been i n the proper and § 32-5A-88, by of accident on t h e w r o n g s i d e o f t h e Road A c t , A l a . Code 1975, 524 estate employee F r e i g h t w a y s as a r e s u l t o f an a u t o m o b i l e s e q . , more improper of t h i s The e x e c u t r i x a l l e g e d t h a t t h e e m p l o y e e h a d the Alabama et claim e r r i n denying d i d not on t h e b a s i s c a u s e d w h e n t h e e m p l o y e e was highway. therefore, Out o f an a b u n d a n c e o f 7 the merits court issue, F r e i g h t w a y s , I n c . v. P a c h e c o - R i v e r a , ( A l a . 1988), an That of the violated § 32-5A-1 driving i n the indicated that the automobile in the executrix had been traveling had lane at the e x e c u t r i x argued that the t r i a l time of the accident. The c o u r t h a d e r r e d when i t f a i l e d The B l a k l e y s a s s e r t e d t h a t argument i n t h e i r written m o t i o n f o r a JML, w h i c h i s f o u n d i n t h e r e c o r d . That w r i t t e n m o t i o n was u n d a t e d a n d u n s i g n e d . They d i d n o t , however, argue that issue i n support of t h e i r motion at the close of a l l the evidence. 7 16 2090507 to charge the the jury that Road A c t e s t a b l i s h On a p p e a l , j u r y charges. a violation negligence o u r supreme the a p p l i c a b l e Rule a violation statute 'until can 2d In "[W]here this trial that in deciding case, a driver should ascertained that Consolidated applies per se. n o t move from a The lane s u c h movement Freightways, we h a v e a l r e a d y c o n c l u d e d was d i s p u t e d as t o whether t o change lanes c a r and t h e stranded the evidence reasonably man s t a n d a r d 524 S o . ( q u o t i n g A l a . Code 1975, § 3 2 - 5 A - 8 8 ( 1 ) ) . at that court's the reasonable b e made w i t h s a f e t y . ' " patrol affirmed the t r i a l [he o r s h e ] h a s f i r s t a t 350 perse. of the statute i s not negligence provides of o f t h e R o a d r e q u i r e s a j u d g m e n t t o b e made on t h e p a r t o f t h e d r i v e r , and Rules The supreme c o u r t s t a t e d : I d . a t 350. court o f t h e Alabama Johnson to avoid that the evidence acted reasonably the state trooper's m o t o r i s t s ; we h a v e a l s o concluded was d i s p u t e d as t o whether i n t h e manner i n w h i c h he e x e c u t e d Johnson the lane acted change. T h u s , J o h n s o n w a s r e q u i r e d t o make a s u b j e c t i v e j u d g m e n t a s t o whether lane. he c o u l d safely As a r e s u l t , move h i s t a n k e r any n e g l i g e n c e c o u l d amount t o o n l y s i m p l e into the left by Johnson i n h i s d e c i s i o n negligence 17 truck and not negligence p e r 2090507 se. Consolidated Freightways, the trial court did for a JML as liability to not err 524 So. 2d i n denying on the basis the of Blakleys refusing to next submit their stated differently, s p o n t e a JML argue of in jury or, court erred i n entering sua Johnson and We negligence motion erred the wantonness B l a k l e y s ' wantonness c l a i m . Blakleys' se. that t h a t the t r i a l i n favor Therefore, per Whether the T r i a l Court E r r e d to Submit the Wantonness C l a i m The a t 350. in Failing to the Jury trial claim M court to the & M Trucking f i n d no m e r i t as i n the to the Blakleys' argument. First, trial 2d to that as sponte a judgment C i v . P.). See 333, 334-36 (Ala. sua affirmative defendant submitting the our sua R. entered to note court's referred Ala. we sponte defense in as of a 1994) court a matter Life favor of by of Blakleys the the verdict, (see a 656 So. as verdict to defendant because evidence to that the now 50, directed plaintiff a Rule jury's consideration). argue 18 law affirmed Ins. of Georgia, insufficient f o r the has directed (affirming asserted that defense the entry F o s t e r v. presented extent supreme trial an the warrant Thus, court 2090507 improperly granted r e l i e f merit i n that t h a t had n o t been sought, we f i n d n o argument. Additionally, "'[w]antonness i s a question of fact f o r a jury, u n l e s s t h e r e i s a t o t a l l a c k o f evidence from which the jury could reasonably infer wantonness. " W a n t o n n e s s " i s ... t h e c o n s c i o u s d o i n g o f some a c t o r t h e o m i s s i o n o f some d u t y w h i l e k n o w i n g o f t h e e x i s t i n g c o n d i t i o n s and being conscious t h a t , from d o i n g o r o m i t t i n g t o do an a c t , i n j u r y w i l l likely or p r o b a b l y r e s u l t . ' " Allen v. Hill, 758 So. v. 2d (quoting McDougle 1988)). 574, Shaddrix, See a l s o A l a . Code conscious 231 ( A l a . (defining sine qua non o f wantonness.'" 2d [of r i s k 149, Norfolk Southern quoting i n turn 878, 882 We (Ala. find 156 of injury] n.9 Ry., Henderson of the defendant N o r r i s v. C i t y So. 2d v. Alabama o f Montgomery, (quoting 1100, 1106 Power i s 'the Ricketts v. ( A l a . 1996), Co., 627 S o . 2 d 1993)). no e v i d e n c e t o support acted with the "conscious claim or safety of others"). ( A l a . 2001) 686 2d i s c a r r i e d on w i t h a r e c k l e s s disregard of the rights 'knowledge' So. So. 1999) 1975, § 6-11-20(b)(3) "The 821 534 ( A l a . C i v . App. 228, "wantonness" as " [ c ] o n d u c t w h i c h or 576 o f wantonness. an i n f e r e n c e t h a t culpability" required t o support See, e.g., Lynn 19 Johnson Strickland Sales a & 2090507 Serv., (Ala. to Inc. v. 1987) a claim established hour and or that less. b e l i e v e he could was disputed enter left the Johnson's opportunity green to lane left car left lane as lane, could claim there was he by or to evidence, we infer wantonness" of presented v. Hill, 20 p a t r o l car that was the evidence executed evidence the a merger to traffic that the to dispute for vehicle's agree with reasonably Allen he a clear driver lights of for lane. lack consideration. not dispute "total wantonness Johnson signaled his intent f l a s h i n g the left per did safely watched miles that Although no a of was highway. five because trooper's Johnson change l a n e s signaled speed to t o w h e t h e r he that Based upon t h a t there flashing into J o h n s o n t o merge i n t o the that trooper's established the required state the the 142 evidence also and 2d undisputed evidence of So. The truck's whether testimony to saw s a f e l y pass the as 510 tanker r i g h t shoulder i n t o the the merge Inc., "conscious c u l p a b i l i t y " wantonness). Johnson The to the of slowed the attempted on Fabricators, ( r e f e r r i n g to the support lights Aero-Lane evidence no 758 such trial from which that issue So. the the for 2d at the court jury Blakleys' the 576. jury's We, 2090507 therefore, a f f i r m the M as Trucking to the JML entered Blakleys' i n favor claim of of Blakleys denying their presumed plainly v. 935, 1313 657 v. (Ala. that new will 2d ( A l a . 2005) by the not not be "A (citing verdict is unless court i t Ins. is Co. "[T]hat has denied Donely, Alabama 925 Bank South judgment b a s e d upon a j u r y v e r d i c t and postjudgment unless Ins. Co. motion i t is plainly v. 619 So. 2d a America, of a So. of of in 1994). Bank v. Co. erred Crown L i f e trial First Ins. court jury's (Ala. SouthTrust reversed Sec. trial unjust." 822 & Denying Trial disturbed when t h e Life denial be National A the trial. 821, trial." Prudential will wrong. a i s strengthened 943 sustained Donaldson, for and 664 a new palpably So. 2d 871 1995). In motion was So. (Ala. 1993)). trial for and f o r a new Baldwin argue erroneous or m a n i f e s t l y presumption 2d motion correct Smith, motion also M wantonness. Whether the T r i a l Court E r r e d i n t h e B l a k l e y s ' M o t i o n f o r a New The J o h n s o n and arguing for against certain of a new that the trial, the great the trial trial the court erred in Blakleys argue that weight of court's the evidence, evidentiary 21 denying the they rulings their verdict challenge and jury 2090507 instructions, improper In supreme and they comments t o t h e court stated to grant that a new ground, except thereon are so a g a i n s t evidence 'manifestly when as we to reasonable inferences for the Broughton, 664 on a verdict made with no evidence' judgment entered and preponderance of wrong, i . e . , 574 2d So. the evidence party 900 our palpably' and t h a t t h e j u r y was 2d 897, i s left the weight and ( A l a . 1991), at 788. i n the l i g h t must most indulge a l l f r e e t o draw." ( A l a . 1995). Floyd "[N]o ground g r a n t i n g a new t r i a l w i l l b e m o r e c a r e f u l l y s c r u t i n i z e d o r more r i g i d l y l i m i t e d than that the v e r d i c t weight of the evidence." 1235, 1239 i s contrary Delchamps, I n c . v. L a r r y , i n denying negligence disputed to the 613 S o . 2 d ( A l a . 1992). We p r e v i o u s l y h a v e c o n c l u d e d t h a t t h e t r i a l err court 'weight of the Richardson, prevailing So. trial court and 'plainly must " r e v i e w favorable v. "the t r i a l the great t o be the 574 S o . 2 d 787 trial the unjust.'" Additionally, that jury. R i c h a r d s o n v. J o i n e s , discretion the assert the claim, issues Blakleys' i . e . , that of material motion the t r i a l fact 22 for a court d i d not JML court sufficient to their correctly found to as submit the 2090507 negligence claim reasonable the the consideration. court d i d not trial e r r i n denying the See, 2004) e.g., B l a k l e y s ' motion v. B r i t t o n , was sufficient jury's v e r d i c t f o r defendant i n negligence automobile on weight accident, the of trial ground t h a t the court Blakleys evidentiary justifying also a new to erred trial. The at traffic citation Blakleys purportedly lane level Johnson and excluding "improper that the limine, in So. to support against 2d from granting the change." 8 trial We the of trial new great first a l l evidence find challenge M & M Trucking's received no 576 That So. 2d 175 traffic (Ala. 1991), the citation was 23 court's reversible error, by the motion i n relating Johnson to for a an reversible error. I n B u s h v. A l a b a m a Farm B u r e a u M u t u a l C a s u a l t y 8 894 action arising j u r y ' s v e r d i c t was argue r u l i n g s rose c o u r t ' s r u l i n g on Co., great evidence). The trial and the for a a g a i n s t the Syx (evidence support M & M Trucking, on t h e g r o u n d t h a t t h e v e r d i c t was ( A l a . C i v . App. trial Because i n f e r e n c e s drawn from the d i s p u t e d e v i d e n c e weight of the evidence. 715 jury's j u r y ' s v e r d i c t i n f a v o r of J o h n s o n and trial new for trial subsequently Insurance court granted dismissed. Farm 2090507 Bureau's motion insureds, defenses a judgment Farm Bureau, the erred appeal, constituted trial at 177. evidentiary the evidence p e r t a i n i n g to previously Id. at 178. the Bushes, jury's in t h a t the Farm Bureau's m o t i o n certain asserted A f t e r the verdict arguing had the trial favor trial in limine. to court of court Farm had Id. the Bushes argued t h a t the p r o h i b i t e d evidence the court's prohibited Bureau Bushes appealed, in granting On on and any Bushes' counterclaim. entered Id. limine from p r e s e n t i n g affirmative the in basis order Our ruling had of claims at trial been a " p r o h i b i t i v e , supreme and their court affirmed and absolute the trial that order." court's stated: "We recognize t h a t t h e t r i a l c o u r t has broad d i s c r e t i o n i n evidentiary matters. The g e n e r a l r u l e was s t a t e d i n S t a t e v . A s k e w , 455 So. 2 d 36 (Ala. Civ. App. 1 9 8 4 ) , c i t i n g C. G a m b l e , The Motion i n L i m i n e : A P r e t r i a l P r o c e d u r e T h a t Has Come o f Age, 33 A l a . L. R e v . 1 ( 1 9 8 1 ) , a s f o l l o w s : "'In keeping with the v e s t i n g of broad d i s c r e t i o n i n the t r i a l court i n t h i s area, i t i s g e n e r a l l y h e l d t h a t the g r a n t i n g of a m o t i o n i n l i m i n e c a n n e v e r be r e v e r s i b l e error. The n o n - m o v i n g p a r t y may r e p e a t a t t r i a l , p r e f e r a b l y out of the h e a r i n g of the jury, h i s request for permission to prove the contested matter. This o f f e r of p r o o f i s r e q u i r e d i n order to i s o l a t e the e r r o r for appeal. I t i s t h i s r e f u s a l at t r i a l to accept that p r o f f e r e d evidence, not the 24 the 2090507 g r a n t i n g of the p r e t r i a l motion i n l i m i n e , t h a t s e r v e s as t h e b a s i s f o r r e v e r s i b l e error. Of c o u r s e , t h i s a b i l i t y t o b r i n g up the matter a second time would not be a v a i l a b l e i f c o u n s e l had r e q u e s t e d and t h e judge had g r a n t e d a p r o h i b i t i v e - a b s o l u t e motion i n l i m i n e . ' "455 So. 2 d a t 37 ( A l a . C i v . A p p . 1 9 8 4 ) . In Perry v . B r a k e f i e l d , 534 So. 2 d 6 0 2 , 607 ( A l a . 1 9 8 8 ) , t h i s C o u r t c i t e d P r o f e s s o r G a m b l e a n d s t a t e d : 'The clear h o l d i n g of these cases i s t h a t unless the trial c o u r t ' s r u l i n g on t h e m o t i o n i n l i m i n e i s a b s o l u t e or u n c o n d i t i o n a l , t h e r u l i n g does n o t p r e s e r v e t h e issue for appeal.' 534 So. 2 d a t 606." 576 So. that, the 2d because Bushes evidence limine The the from not an The supreme not an of offer concluded of proof by f o r a p p e l l a t e review. So. 2d granting 452 motion (Ala. in precluded proof because Bushes Bushes had Id. See was appear not from 25 the on the motion excluded Id. at to preserve preserved the court for not concerning a l s o Simmons v. trial in 178. record did trial failed (whether for of the at concluded counsel unconditional. the 1994) limine when i t d i d n o t or that, the i n Bush court's ruling absolute evidence, court c o u r t had the t r i a l been offer excluded review trial making court further error 636 177-78. at t r i a l , had reflect the at the Peacock, erred in appellate r e c o r d t h a t the trial 2090507 court's did ruling was a b s o l u t e not e s t a b l i s h that In limine this filed Blakleys' trial. that case, As supra, & M Trucking there evidence. Thus, The Blakleys sustaining also an o b j e c t i o n i n and d i r e c t e d the citation at or unconditional evidence. court's We find from Thus, i n evidentiary t o make a n o f f e r o f the Blakleys t h i s argument f o r a p p e l l a t e review a n d Simmons, that i n the t r i a l were r e q u i r e d the excluded supra; the motion i s no e v i d e n c e i n d i c a t i n g regarding any e r r o r i n the record. Bush, granted made). court p r o h i b i t e d the Blakleys' counsel the Blakleys regarding had been o n t h a t m o t i o n was a b s o l u t e t o preserve proof and M an o f f e r o f p r o o f ruling, court and t h e record n o t t o i n q u i r e about t h e t r a f f i c or t h a t t h e t r i a l order the t r i a l i n Bush, the ruling making an o f f e r o f p r o o f by Johnson counsel or unconditional proof no such offer of have not preserved a n d we n e e d n o t a d d r e s s i t . supra. argue that the t r i a l t o questions court asked by t h e i r erred i n attorney of State T r o o p e r A l l u m s as t o w h e t h e r he b e l i e v e d J o h n s o n h a d violated t h e Alabama Rules accident. failed o f t h e R o a d A c t on t h e d a y o f t h e We n e e d n o t a d d r e s s t h i s t o make an offer of proof 26 issue because the B l a k l e y s as t o Allums's expected 2090507 r e s p o n s e a n d h i s a n s w e r was n o t a p p a r e n t the question. ruling was 103(a)(2), Thus, any e r r o r p r e s e n t e d not preserved Ala. R. E v i d . a substantial right of the party ruling I I Charles Alabama court excluding W. Evidence Gamble i t s face the duty and Robert review unless by o f f e r were J . Goodwin, upon t h i s a ( 6 t h e d . 2009) party, as an e r r o n e o u s asked); ("If the trial which does n o t i n order ruling, o r was McElroy's show w h a t i s t h e e x p e c t e d a n s w e r , i t t h e n of the questioning Rule i s a f f e c t e d and t h e substance s u s t a i n s a n o b j e c t i o n made t o a q u e s t i o n on court's See evidence w i t h i n which questions § 425.01(4) of e r r o r may n o t b e w a s made k n o w n t o t h e c o u r t apparent from t h e context and review. (recognizing that upon the evidence by the t r i a l f o r appellate predicated of from t h e context to becomes predicate t o make a n o f f e r o f proof."). The Blakleys next trial because t h e t r i a l jury that during i t was argue that they are entitled court e r r e d by f a i l i n g the "sole judge to instruct the of the facts" the t r i a l . "'"In a j u r y case, a p a r t y i s e n t i t l e d to have i t s case t r i e d t o a j u r y t h a t i s given the appropriate standard by which t o reach i t s d e c i s i o n , and a wrongful refusal 27 t o a new presented 2090507 of a requested j u r y charge c o n s t i t u t e s a ground f o r a new trial. See, C.I.T. F i n a n c i a l S e r v i c e s , I n c . v . B o w l e r , 537 S o . 2d 4 (Ala. 1988). An incorrect, misleading, erroneous, or prejudicial c h a r g e may f o r m t h e b a s i s f o r g r a n t i n g a new t r i a l . S e e , N u n n v . W h i t w o r t h , 545 S o . 2 d 766 ( A l a . 1 9 8 9 ) . However, t h e r e f u s a l of a requested, written instruction, although a c o r r e c t statement of the law, i s not cause f o r r e v e r s a l on a p p e a l i f i t appears that t h e same r u l e of law was s u b s t a n t i a l l y and f a i r l y g i v e n t o t h e j u r y in the t r i a l court's o r a l charge. See, R u l e 5 1 , A l a . R. C i v . P. When e x a m i n i n g a c h a r g e a s s e r t e d t o be e r r o n e o u s , t h i s C o u r t l o o k s t o the e n t i r e t y o f the charge t o see i f there i s reversible error. See, G r a y c o R e s o u r c e s , I n c . v . P o o l e , 500 S o . 2 d 1030 (Ala. 1986)."' " C a c k o w s k i v . W a l - M a r t S t o r e s , I n c . , 767 So. 2 d 3 1 9 , 327 ( A l a . 2000) (quoting Shoals Ford, Inc. v. Clardy, 588 So. 2d 879, 883 (Ala. 1991)). A d d i t i o n a l l y , ' [ a ] n y e r r o r o r d e f e c t w h i c h does not a f f e c t t h e s u b s t a n t i a l r i g h t s o f t h e p a r t i e s may b e disregarded.' B i s h o p v. S t a t e A u t o . Mut. I n s . Co., 600 S o . 2 d 2 6 2 , 265 ( A l a . C i v . App. 1991) (citing R u l e 6 1 , A l a . R. C i v . A p p . ) . As a r e s u l t , t h e j u r y instruction must be erroneous as well as prejudicial, and this Court cannot presume prejudice. B r a b n e r v . C a n t o n , 611 S o . 2 d 1 0 1 6 , 1018 (Ala. 1992). P r e f e r r e d R i s k M u t . I n s . Co. v . R y a n , 589 S o . 2 d 1 6 5 , 167 ( A l a . 1 9 9 1 ) . The a p p e l l a n t h a s the b u r d e n o f d e m o n s t r a t i n g t h a t an e r r o n e o u s j u r y i n s t r u c t i o n was p r e j u d i c i a l . S e e R y a n , 589 S o . 2 d at 167 ( c i t i n g D i n m a r k v . F a r r i e r , 510 S o . 2 d 819 (Ala. 1987))." Southeast Envtl. 32, 43-44 Infrastructures, ( A l a . 2008). 28 L.L.C. v. R i v e r s , 12 S o . 3d 2090507 We f i n d no m e r i t court erred "sole judge submitted by the such instructions, an repeatedly "province reject or a l l of amount o f J o h n s o n and court during at the their trial. issue The as the the jurors jury, court court's establish that that the trial court within i t was testimony. assessed liable r e f e r r e d to the we the never trial trial their i n the to the jurors' a whole, d i d not trial or court "sole judges" of event they found Blakleys. The trial ability to evaluate, testimony presented f a c t s and conclude to accept The j u r o r s t h a t they were the Thus, i t was Blakleys entirety, the d e l i b e r a t i o n s , the instructions, the to a witness's & M Trucking repeatedly to trial adequate. d a m a g e s t o be M the t o r e s o l v e d i s p u t e d e v i d e n c e and a l s o i n s t r u c t e d the the Although in their were i n s t r u c t e d the any jury that instruction instructions alone" the instruction, when v i e w e d its instruct jury i n s t r u c t i o n s given In to facts." proposed requesting the failing of a i n the B l a k l e y s ' argument t h a t the that the trial court's rise to reversible error the trial on asserted. Blakleys instructed the also j u r y on argue that the burden of proof 29 court improperly applicable in this 2090507 case by stating to the j u r y at the beginning of the t r i a l : w o u l d s u g g e s t t h a t you feet to the fire [the j u r o r s ] because i f they hold their failed and, is t o l o d g e an t h u s , any objection error deemed w a i v e d . as The So. 2d Further, a l t h o u g h we statement 1196, 1207 find be considered improper, trial the trial the trial and no c o u r t ' s subsequent reversible judge error note 6, supra. or p r e j u d i c i a l Blakleys have not to burden the of proof. instructions i s presented. could assigned charge the in jury, as in Thus, a r e deemed a d e q u a t e See Southeast Envtl. (when t h e j u r y c h a r g e , i n i t s e n t i r e t y , i n compliance with the law, no reversible i s presented). The judge the court addressed a p p r o p r i a t e and error statement, judge's statement c o u r t ' s subsequent Infrastructures, supra is however, the t r i a l and nothing improper statement, to the extent the t r i a l which by ( A l a . 2006), the the judge's they See B e i e r s d o e r f e r v. H i l b , R o g a l & H a m i l t o n Co. , 953 error you Blakleys, to the t r i a l to this [the lawyers'] [the lawyers] t e l l c a n p r o v e s o m e t h i n g , make t h e m d o i t . " "I Blakleys also assert i m p r o p e r l y commented that, upon 30 the at the trial, evidence and the trial that such 2090507 comments improperly influenced the jury's analysis of the evidence. " [ A ] t r i a l j u d g e may n o t e x p r e s s a n o p i n i o n o n t h e weight and e f f e c t of t h e evidence i n a j u r y t r i a l . ... N o t a l l s t a t e m e n t s b y t h e t r i a l c o u r t f a l l i n t o t h i s c a t e g o r y , however. When ... t h e s t a t e m e n t s b y t h e t r i a l c o u r t a r e made t o c o u n s e l a n d a r e made i n r u l i n g on a n o b j e c t i o n o r i n e x p l a i n i n g a r u l i n g on an o b j e c t i o n , t h e s t a t e m e n t s w i l l n o t be c o n s i d e r e d i m p r o p e r comments on t h e e v i d e n c e e x c e p t i n e x t r e m e cases." K e l l e r v . A m e r i c a n Med. I n t ' l , I n c . , 534 S o . 2 d 2 4 4 , 2 4 5 ( A l a . 1988). In 1998), Bryant v. t h e Alabama State, Court 727 So. 2d 870 (Ala. Crim. of Criminal Appeals App. stated: "'"The l a w d o e s n o t p r o h i b i t t h e t r i a l judge from g i v i n g t r i a l counsel h i s reasons i n making c e r t a i n r u l i n g s as t o t h e l a w a p p l i c a b l e t o t h e c a s e . . . . B e d i n g f i e l d v. S t a t e , [47 A l a . A p p . 6 7 7 , 6 8 1 , 2 6 0 S o . 2 d 4 0 8 , 412 ( 1 9 7 2 ) ] . "'"In 23 C . J . S . , C r i m i n a l L a w § 9 9 3 , p . 1 0 2 4 , i t i s s a i d , ' G e n e r a l l y , i t i s n o t i m p r o p e r comment o n t h e e v i d e n c e f o r t h e j u d g e t o e x p l a i n h i s r u l i n g on a m a t t e r o f l a w , a n d h e may r e f e r t o t e s t i m o n y a n d state i t s legal effect, i n deciding a point raised during t r i a l . ' " ' " 727 S o . 2 d a t 874 ( q u o t i n g Hampton v . S t a t e , 103 ( A l a .Crim. App. 1992), 340 S o . 2 d 8 0 , 83 620 S o . 2 d 9 9 , q u o t i n g i n t u r n McDonald v. S t a t e , ( A l a . Crim. App. 1 9 7 6 ) ) . 31 2090507 The B l a k l e y s ruling on sustain an objection: a statement stated: " I don't the objection." response t o t h e i r by complain that the t r i a l made "I didn't by hear remember The B l a k l e y s attorney's j u d g e commented, i n also i t that complain s t a t e m e n t t h a t h e was Johnson's anything counsel, about judge simply counsel the t r i a l court's and, p u r s u a n t supra, and Bryant, supra, we find "offended" judge [the Blakleys'] T h o s e comments b y t h e t r i a l I that, i n the t r i a l life." rulings, way. explained to sex to Keller, no r e v e r s i b l e e r r o r . AFFIRMED. Thompson, Bryan, with P . J . , and Pittman J . , concurs i n part writing. 32 a n d Thomas, and concurs JJ., concur. i n the result, 2090507 BRYAN, J u d g e , c o n c u r r i n g i n p a r t a n d c o n c u r r i n g i n t h e r e s u l t . Because trial law to I would court's explain the rationale sua sponte entry f o r affirming the o f a judgment as a m a t t e r o f ("JML")in favor of Johnson and M & M Trucking t h e B l a k l e y s ' wantonness with claim i n a different respect manner t h a n the main o p i n i o n , I concur i n the r e s u l t with holding. I would explain follows. "'Wantonness' has been d e f i n e d by [ t h e supreme as the conscious duty while conscious will 5, knowing that, likely 9 (Ala. evidence doing the doing or probably 2007). of fact aware, truck the l e f t into Johnson holding conditions or omitting now before Essary, as court] o f some and t o do an a c t , Ex p a r t e to that being injury 992 S o . 2 d us, although the c o n s c i o u s l y moved t h e t a n k e r l a n e , t h e r e was n o e v i d e n c e f r o m w h i c h t h e could conscious, existing I n t h e case f o r that a c t or the omission result." indicates that truck into the l e f t trier o f some of from the rationale respect reasonably or perceived lane infer that w o u l d make that h i s moving i t necessary Johnson the was tanker for either the green automobile or t h e l o g g i n g t r u c k t o leave the road i n order to avoid which the t r i e r a collision. of fact Thus, could 33 there reasonably was n o e v i d e n c e infer that from Johnson 2090507 was or conscious, probably into the Viewed thought left would, left in evidence aware, or p e r c e i v e d lane. the respect a JML to the from Ex most prove, could the trial in favor Essary, most, court respects, the tanker did Johnson I concur 34 not and likely tanker So. 2d to, truck at 12. Blakleys, the Johnson constitute B l a k l e y s ' wantonness In a l l other that the 992 to move t h e not of i n j u r y was moving favorable at does his parte safely that Consequently, entering to he lane; See light tends that result that erroneously truck into the wantonness. err M & M in sua Trucking Id. sponte with claim. i n the main opinion.

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