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IMG_3255-scaled-1-200x300by HWC Partner Carter Clay

For any attorney who has pursued product liability cases on behalf of injured victims, you know that the attorney(s) for the manufacturer will often claim that the plaintiff “misused” the product and that it was the plaintiff who caused the incident. Oftentimes, attorneys representing the plaintiff will not push back on such a statement and will allow the statement or contention to go unchallenged prior to trial. This is a mistake.

To have a viable affirmative defense of product “misuse,” a defendant must present evidence “showing that the plaintiff used the product in some manner different from that intended by the manufacturer. “Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185 (Ala. 1992). This sounds simple enough, but it isn’t. One might conclude from such a legal declaration that “foreseeable” uses could also be considered “misuse,” but that is not correct. For purposes of the AEMLD,” use is intended if it is one that is reasonably foreseeable by the manufacturer.” Id. at 1192.

IMG_3363-200x300by HWC Attorney Allwin E. Horn, IV

One of the benefits of the Alabama Workers’ Compensation Act is that as long as an employee is injured during the line, scope and course of their employment, payment for “reasonable” and “necessary” medical treatment for life will remain the responsibility of the employer and/or the employer’s insurance company. This general rule applies even if the accident is the fault of the injured worker. Accidents happen! Employees who have suffered on-the-job injuries can attest to how frustrating the process can be in terms of getting medical treatment approved by the workers’ compensation carrier.

Unfortunately, the Alabama Workers’ Compensation Act, as a general rule, gives the employer/insurance carrier the right to select who the “authorized treating physicians” will be. There are, however, some exceptions to this rule. The primary exception to the rule is that the employee is entitled to a panel of four physicians to select a new doctor if they become dissatisfied with their present authorized treating physician. However, the employer/insurance carrier gets to select the four physicians who are listed on the panel. These rules and regulations can get complex and truly require the help of an attorney who knows the nuances of Alabama Workers’ Compensation Laws, as well as how insurance carriers operate.

craig-blog-214x300by HWC Attorney Craig Shirley

Unfortunately, there are times when people are falsely arrested, whether intentionally or simply by a mistake in identity. When that does happen, there is a potential for a personal injury claim for false arrest and false imprisonment to be made arising out of that false arrest. In Alabama, false arrest and false imprisonment, while seemingly very similar, are slightly distinguishable. For instance, false imprisonment in Alabama is statutorily defined, as “the unlawful detention of the person of another for any length of time…” Ala. Code § 6-5-170. Conversely, Alabama courts have long held that to constitute an arrest, as person must be taken into custody under real or assumed authority. Davis & Allcott Co. vs. Boozer, 110 So. 28, 29 (Ala. 1926). Accordingly, if a person has been subject to a false arrest, that false arrest will also support a claim for false imprisonment. In that instance, the first question that must be answered is whether the arrest that was made was in fact “false,” and if the answer is no, i.e. the arrest was made pursuant to a valid warrant, then there can be no subsequent action for a false arrest or false imprisonment. Assuming that the arrest was in fact “false,” that leads to a more difficult question to answer: “is the police officer ultimately immune from liability for the false arrest?”

In Alabama, law enforcement officers are granted State-agent immunity under Alabama Code section 6-5-338(a). This statute states that law enforcement officers “shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function…” Ala. Code § 6-5-338(a). After the legislature enacted the State-agent immunity statute, there were circumstances arising that raised the question of what qualified as a “discretionary function.” The Supreme Court of Alabama addressed that particular issue in Ex parte Cranman when it set out the restatement of the State-agent immunity and provided the test in determining whether a law enforcement officer would be entitled to State-agent immunity under section 6-5-338(a). The Cranman Court Stated:

1josh-approved-1-212x300by HWC Managing Partner Josh Wright

The Alabama Dram Shop Act has been around since 1909, and in pertinent part, has been in place to protect “every wife, child, parent, or other person who was injured in person, property or means of support by any intoxicated person.” Many bars, restaurants, and convenience stores do things the right way, and follow the rules with no liability; those that don’t have answered to Ala. Code Sec. 6-5-71 and well-established Alabama case law for more than 100 years.

In the name of reduced insurance costs for bars, restaurants, and convenience stores, and to increase insurance competition in Alabama, the retailers lobby pushed to change the Alabama Dram Shop Act in the 2023 Legislative Session. But, to what end? The new law changes the proof that is necessary for Alabama victims to pursue alcohol-related dram shop claims against offending bars, restaurants, and convenience stores that break the rules. So, drunk drivers, and those that serve them just got a small win over Alabama’s drunk driving victims.

1josh-approved-1-212x300by HWC Managing Partner Josh Wright

Managing Partner Josh Wright has developed a specialty over the last 25 years in the litigation of toxicology admissibility. Long a regionally-recognized drunk driving victim’s lawyer, the issue of biologic sample admissibility has developed in the law, and Josh has been on the forefront of the topic–litigating alcohol and drug-related cases in State and Federal courts in multiple states, and constantly writing and lecturing on the topic. In fact, part of the current Alabama Beverage Control regulations were written by Josh in 2011-2012.

“Admissibility of biologic samples, including urine and blood results, has become a complicated legal issue over the last 20 years in Alabama and our surrounding states,” Josh stated. “It’s not as simple as saying ‘because that driver had alcohol in his system, the jury gets to hear that evidence against him,’ or ‘because that industrial worker had drugs in his system when he caused the injury, the jury will hear that evidence.'” “If you don’t know and understand the ever-changing science of toxicology admissibility, critical evidence may never be heard by your jury in your case.”

1josh-approved-1-212x300by HWC Managing Partner Josh Wright

Post-COVID verdict averages in personal injury claims are up close to 50% from that of pre-COVID verdicts, according to recent statistics.¹ Verdicts in 2022 alone for Alabama injury victims have topped $97,000,000 in cases involving a wide array of wrongful conduct, including contract disputes, auto, medical malpractice, co-employee, fraud, discrimination, and uninsured motorists. See some of those recent verdicts below (based on lawyer-disclosed data):

Juries appear to listen carefully, consider all the evidence and thoroughly asses josh-graphic-1-copy-192x300fundamental fairness in cases post-COVID. Insurance companies are also getting the message that juries are ready and willing to put aside politics and division in a courtroom, and award fair results in legitimate and real injury cases. Our firm alone has resolved (both at trial and pre-trial), a substantial number of lawsuits for unprecedented money in the last 12 months, which in no small part is because insurance companies have heard the message and listened to recent jury verdicts across the Country.

IMG_3255-200x300by HWC Partner Carter Clay

Although not terribly common, there are occasions where an individual or company may go to a fabricator or a product manufacturer and ask them to manufacture a product or part based upon an exemplar or design specifications created by the customer. If the manufacturer agrees to make the product or part, what are the manufacturer’s responsibilities? Can they blindly follow the design specifications provided by the customer? Under Alabama law, the answer is no, the manufacturer cannot blindly follow the design specifications and escape liability if the product or part that it makes is defective and injures someone.

“[I]t is well established… that an ultimate consumer can recover in negligence against a manufacturer even in the absence of privity of contract.” Ex parte Grand Manor, Inc., 778 So. 2d 173, 178 (Ala. 2000). Where injury is foreseeable, the contracting party owes the duty to those who could be injured:

IMG_4871-200x300by HWC Managing Partner Josh Wright

Over the last 20 years HWC Managing Partner Josh Wright has invested a lot of litigation time and firm resources toward co-employee “removal of safety guard” cases and has had great success in that practice area. Over just the last four years, Josh has successfully resolved seven separate cases under a (c)(2) safety device theory.

Josh stated, “lawyers in our state often believe the exclusivity provision of the Workers’ Compensation Act is an absolute bar to cases against co-employees, or believe (c)(2) cases are often not covered by liability insurance. Fortunately, both those beliefs are incorrect. In fact, these cases are almost always covered by insurance. And, the Alabama Supreme Court has not restricted the legislature’s intent—when it carved out from the exclusivity provision co-employee claims many years ago—to protect injured employees who are harmed by the removal of a safety device, or something tantamount to that removal. Co-employee litigation under 25-5-11(c)(2) is alive and well in our State legislatively and under Alabama caselaw.”

IMG_3251-200x300by HWC Partner John Spade

The weather is more pleasant, and lately, any chance to get outside and enjoy some fresh air has been a big relief to Alabamians. Whether you are going out to hunt, fish, camp, hike, bike, swim, or climb, it is good to be in the great outdoors. As a part of an effort to encourage Alabamians to go out and enjoy nature, Alabama Legislators passed Ala. Code §§35-15-1 and 35-15-20, also known as the Recreational Use Statutes, in 1981.

The purpose of these statutes is to protect landowners, both private individuals and public entities, from liability if someone gets injured on their land while it is being used for noncommercial, recreational use. By doing this, landowners are more likely to open their properties for recreational use, municipalities are more likely to invest in their parks, and the public has easier access to healthy and enriching activities.

IMG_3255-200x300by HWC Partner Carter Clay


Any attorney representing injured and wrongful death victims in complex litigation matters has likely encountered a Rule 26 expert disclosure in which the corporate defendant discloses an in-house employee to give expert opinions related to the case. Perhaps, the corporate defendant disclosed an in-house engineer, an architect, or maybe a medical expert. Oftentimes, we just assume that a corporate defendant, under all circumstances, has the unconditional right to have privileged attorney-client communications with these in-house employees. However, when a corporate defendant uses an in-house employee to serve as an expert witness in litigation, does the corporate defendant run the risk of waiving the attorney-client privilege? Yes, it seems so.

Don’t make the mistake of simply concluding that the disclosing corporation can maintain the attorney-client privilege. The disclosing corporation should not be allowed to use the in-house employee as an expert witness sword while at the same time protecting (shield) that in-house employee from full and complete disclosure of all materials “considered” by them in forming the opinions. Initially, a privilege log should be insisted upon pursuant to Rule 26(b)(6) of the Alabama Rules of Civil Procedure.

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