Lead Opinion
On Application for Rehearing
This Cоurt’s opinion of November 14, 2008, is withdrawn, and the following is substituted therefor.
The appellants in this action (“the former employees”) are several hundred former employees of Arvin Industries d/b/a Arvin-Meritor, Inc. (“Arvin”). The former employees sued Arvin and several of their co-employees, alleging that they had suffered injuries as a result of exposure to toxic chemicals while employed by Arvin. Through an amended complaint, the former employees added 64 other named defendants (“the new defendants”), who they alleged manufactured or sold Arvin the chemicals and equipment that injured the former employees. The former employees appeal from the Fayette Circuit Court’s dismissal of their claims against the new defendants. We reverse and remand.
This is the second time this case has come before this Court. See Ex parte International Refining & Mfg. Co.,
“On November 13, 2003, Bell Carr, Jr., and approximately 320 other former employees at a manufacturing plant operated by Arvin Industries d/b/a Arvin-Meritor, Inc. (hereinafter ‘the [former employees]’), sued Arvin-Meritor and six individual defendants, also former employees at the plant, where automotive mufflers were manufactured. The complaint alleged that up until the closing of the plant in May 2002, the [former employees] suffered harm from ‘exposure to toxic and dangerous chemicals’ that were flushed from the manufacturing machines and eventually circulated into a large pit, which the [former employees] were responsible for draining and cleaning. In addition to these seven defendants, the original complaint fictitiously named 40 other defendants in the caption and in the body of the complaint.
“On May 6, 2005, approximately three years after their last exposure to the chemicals, the [former employees] filed their first amended complaint, seeking to add 64 new named defendants, including the petitioners, in place of the fictitiously named defendants (hereinafter ‘the new defendants’), 113 new plaintiffs, as well as additional fictitiously named defendants. The [first] amended complaint reasserted the five claims asserted in the original complaint, but only against the seven original defendants. The first amended complaint also alleged claims of negligence, wantonness, liability under the Alabama Extended Manufacturer’s Liability Doctrine, civilconspiracy, and the tort of outrage, but only against the new defendants.”
Regarding wantonness, the former employees alleged in count 6 of the first amended complaint that the new defendants had “wantonly engineered, designed, developed, configured, manufactured, assembled, distributed, and/or sold the chemicals” and other products that the former employees were exposed to through their work at Arvin. The former employees also alleged in count 13 that 5 of the new defendants had “wantonly engineered, designed, ... manufactured, ... sold, inspected or consulted regarding the design, engineering, manufacturing, production, distribution and/or warnings associated with” the equipment used in Arvin’s manufacturing process.
“On June 14, 2005, the new defendants removed the case to the United States District Court for the Northern District of Alabama pursuant to the Class Action Fairness Act (‘CAFA’), 28 U.S.C. § 1453. The district court remanded the five original claims against the seven original defendants to the Fayette Circuit Court because they did not fall within the CAFA. The district court also determined that the claims in the amended complaint against the new defendants did not relate back under Alabama law and did not constitute what it referred to as an ‘interstate case of national importance.’ Accordingly, the new claims asserted and the parties added in the amended complaint fell within the exception to federal jurisdiction under CAFA in 28 U.S.C. § 1332(d)(ll)(B)(ii)(I), and the district court also remanded the remaining claims to the Fayette Circuit Court.
“Upon remand, the new defendants filed motions to dismiss, or, in the alternative, for a summary judgment, on the ground that the clаims asserted against them in the amended complaint did not relate back to the date of the filing of the original complaint and are thus barred by the two-year statute of limitations. See § 6-2-38(Z), Ala.Code 1975. The trial court conducted a hearing and denied the motions. The new defendants sought a certification to file a permissive appeal under Rule 5, Ala. R.App. P., but the trial court denied the request for the certification. The [new defendants] then filed [a] petition for a writ of mandamus.”
International Refining,
This Court granted the new defendants’ petition and issued the writ of mandamus. We concluded in International Refining that the claims the former employees stated against the new defendants in the first amended complaint did not relate back to the claims they stated against the fictitiously named defendants identified in their original complaint.
We noted in International Refining that the former employees argued “that some of their claims nonetheless survive, because, they say, those claims fall within a six-year statute of limitations.”
“That issue ... is not before us; our mandamus review extends to reviewing the denial of motions for a dismissal or for a summary judgment that asserted a statute-of-limitations defense only as to fictitious-party practice. See [Ex parte] Stover, 663 So.2d [948,] 951-52 [(Ala.1995) ]. The extent to which the amended complaint, filed within six years of the events made the basis of the action but not within two years thereof, states claims not barred by the two-year statute of limitations is a question not before us.”
On remand, the new defendants filed motions to dismiss or, in the alternative, for a summary judgment, on the ground that all the claims asserted against them were subject to the two-year limitations period stated in § 6-2-38(Z), Ala.Code 1975, and were due to be dismissed pursuant to this Court’s decision in International Refining. The former employees responded, arguing that their wantonness claims involved trespass to the person and, under McKenzie v. Killian,
On August 16, 2007, the former employees amended their complaint а second time. The second amended complaint stated that it was “intended to clarify the allegations contained in the Complaint and the First Amended Complaint in the wake of [International Refining ].” It also stated that “no new plaintiffs or defendants [were] added by way of [the] amendment” and that “all claims stated [therein arose] out of the conduct, transaction, or occurrences set forth in the First Amended Complaint [and] no new causes of action [were] stated by way of [the] amendment.” The second amended complaint asserted only a workers’ compensation claim against Arvin, a wantonness claim against the new defendants, and a separate wantonness claim against five of the new defendants who the former employees alleged had provided the equipment Arvin used in its manufacturing process.
The wantonness claim asserted against the new defendants in the second amended complaint stated, in relevant part:
“[The new defendants] acted willfully and/or wаntonly, and committed trespass to the persons of the former employees, in that the said defendants consciously acted or omitted to act, and in that they willfully and wantonly engineered, designed, developed, configured, manufactured, assembled, distributed and/or sold [the chemicals and other products] that resulted in physical impact to the persons of the former employees and injured the former employees, and in that the defendants acted or omitted a duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury would likely or probably result to the former employees, in recklessor conscious disregard of the rights or safety of the former employees.”
The wantonness claim asserted against the five new defendants who the former employees alleged had provided equipment to Arvin stated similar allegations.
The new defendants moved to strike the second amended complaint. However, the trial court did not rule on the motion to strike. Instead, the trial court concluded in its eventual ruling on the new defendants’ motions to dismiss that, because the second amended complaint purported to state no new cause of action and to arise out of the same conduct and occurrences stated in the first amended complaint, the claims stated in the second amended complaint were subject to the same analysis as those in the first amended complaint. The new defendants argued that the wantonness claims in the first and second amended complaints were subject to a two-year limitations period because, they said, the claims were based on a products-liability theory. The new defendants relied on Malsch v. Bell Helicopter Textron, Inc.,
The standard of review of an order granting a motion to dismiss was set out in Nance v. Matthews,
“On appeal, a dismissal is not entitled to a presumption of correctness. ... The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief. ... In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [the plaintiff] may possibly prevail. ... We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”
The former employees argue on appeal that their wantonness claims against the new defendants are based in trespass to the person and are subject to the six-year limitations period stated in § 6-2-34(1), Ala.Code 1975. Section 6-2-34(1) provides, in relevant part, that actions “for any trespass to person or liberty, such as false imprisonment or assault and battery” must be commenced within six years. The former employees argue, therefore, that the trial court erred in dismissing their wantonness claims. The former employees rely, as they did before the trial court, on McKenzie v. Killian,
The new defendants argue in response that the former employees’ wantonness claims are based on a products-liability theory and are therefore subject to the two-year limitations period found in § 6-2-38(i), Ala.Code 1975. That section provides: “All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.” The new defendants base their argument on Malsch v. Bell Helicop
In McKenzie v. Killian, the plaintiff asserted a wantonness claim against a mоtorist whose vehicle collided with hers. In response to the defendant’s summary-judgment motion on statute-of-limitations grounds, the plaintiff argued that her wantonness claim was grounded in trespass and was thus subject to the six-year limitations period of § 6-2-34(1). The trial court entered a summary judgment for the defendant. Relying on Lowery v. Densmore,
On appeal, the plaintiff argued that her wantonness claim was an action in trespass, not trespass on the case; that intent should be irrelevant to determining whether the action was subject to the six-year statute of limitations; and that she had presented substantial evidence showing “direct force.” To determine whether the wantonness claim was subject to the six-yеar limitations period of § 6-2-34(1), this Court stated: “[I]t is not possible to explain our rejection of Lowery v. Densmore, [
“ ‘Whatever vestige of the outmoded direct/indirect distinction between trespass and trespass on the case still exists in Alabama, I would now abandon and adopt instead the more modern tort concept of measuring the cause of action in terms of the degree of culpability of the alleged wrongful conduct. Wanton conduct, as that term is traditionally used and understood in the jurisprudence of our State, signifies the intentional doing of, or failing to do, an act, or discharge a duty, with the likelihood of injury to the person or property of another as a reasonably foreseeable consequence. Such conduct, resulting in injury, is actionable in trespass and governed by the six-year statute of limitations, in my opinion.’ ”
McKenzie,
This Court thus abandoned any determination of whether the six-year statute of limitations applies based on the presence of direct force to cause the injury in a claim alleging wantonness. In so holding, “[w]e overrule[d] Sasser [v. Dixon,
In this case, the former employees alleged that the new defendants engaged in wanton conduct in manufacturing and selling toxic chemical products and the equipment Arvin used in its manufacturing process. That wanton conduct, the former employees alleged, proximately resulted in their physical injuries. We stated in McKenzie: “[W]anton conduct is the equivalent in law to intentional conduct. Such an allegation of intent renders the six-year statutory period of limitations applicable.”
The new defendants argue that our decision in McKenzie to adopt an intent-based analysis is dicta. However, our opinion necessarily addressed the arguments the plaintiff in McKenzie raised on appeal. Furthermore, we expressly stated that the determination regarding an intent-based analysis was necessary because of the trial court’s reliance upon Lowery v. Densmore, supra, which had used a direct-force analysis. Accordingly, our discussion of the caselaw regarding intent versus direct force and our ultimate adoption of an intent-based analysis was necessary to our opinion in McKenzie. Furthermore, we cannot reasonably characterize our decision to overrule Sasser v. Dixon,
The new defendants next argue that, even if the McKenzie analysis is not dicta, the analysis should not apply in produets-liability cases. First, they argue that Smith v. Medtronic, Inc., supra, established a rule that all wantonness claims in produets-liability cases are subject to the two-year limitations period of § 6-2-38(i). This Court’s opinion in Medtronic stated: “An action alleging negligence, wantonness, or liability under the [Alabama Extended Manufacturer’s Liability Doctrine] must be brought within two years after the cause of action accrued. See Ala.Code 1975, § 6-2-38(0.”
The new defendants also rely on gratis dictum
In Boyce, an action arising from a dispute regarding the use of the plaintiffs’ real property by a golf club, this Court stated: “Like fraud claims, negligence and wantonness claims are governed by a two-year statute of limitations. See § 6-2-38(2), Ala.Code 1975.”
Finally, in Gilmore, a case in which the plaintiffs alleged that a realtor had sold them the wrong house, we noted that the plaintiffs “concede[d] that § 6 — 2—38(2), Ala.Code 1975, prescribes a two-year statute of limitations for their negligence and wantonness claims, measured upon the date of injury.”
Accordingly, the cases the new defendants cite do not show that this Court has created an exception to McKenzie for products-liability actions, and we have found no authority providing a basis for such an exception. The former employees in this case have alleged that the new defendants engaged in wanton conduct that resulted in injury to them. Accordingly, under the analysis announced in McKenzie, supra, the six-year limitations period of § 6-2-34(1) applies. We find no rational basis upon which to distinguish McKenzie so as to render its holding inapplicable. The former employees can prove a set of circumstances that would entitle them to relief, see Nance,
APPLICATION OVERRULED; OPINION OF NOVEMBER 14, 2008,
Notes
. It is unclear from the record on appeal whether the former employees’ claims against their co-employees have been resolved.
. " 'An opinion given in Court ..., if not necessary to the judgment given of record, but that it might have been as well given, if no such, or a contrary opinion had been broached, is no judicial opinion, no more than a gratis dictum.' ” Planters’ & Merchants’ Bank v. Walker,
Dissenting Opinion
dissents.
SEE, Justice (concurring in overruling the application for rehearing and concurring in the result as to the opinion).
I concur in overruling the application for a rehearing. I concur in the result reached by the main opinion for the following reasons.
I concurred in McKenzie v. Killian,
This Court concluded in McKenzie that “wanton conduct is the equivalent in law to intentional conduct” and that the “allegation of intent renders the six-year statutory period of limitations applicable.”
In the present case, the new defendants first argue that McKenzie is distinguishable because this case, unlike McKenzie, which involved a simple automobile accident, is a toxic-substance-exposure case. Castrol Industrial North America’s brief at 35. If, however, this Court were to determine the applicable statute of limitations here on the basis of the alleged harm, namely, an injury arising out of a motor-vehicle wreck versus a toxic tort, we would be abandoning our conclusion in McKenzie that it is the “allegation of intent [that] renders the six-year statutory period of limitations applicable.” See McKenzie,
The new defendants also argue that “[t]he relevant discussion in McKenzie is dicta that does not control this case.” Joint brief of appellees at 14. In support of this argument, the new defendants quote the following language from McKenzie:
“[T]he record supports the affirmance [of the summary judgment entered against McKenzie] on the ground that the evidence was insufficient to support McKenzie’s wantonness claim, notwithstanding Killian’s failure to assert that ground in his summary-judgment motion, because McKenzie failed to challenge below the trial court’s reliance upon that ground.”
On appeal, this Court addressed as a threshold matter whether McKenzie’s claim was time-barred and determined that the correct “mechanism for distinguishing between actions for trespass and for trespass on the case” is not the causality — that is, whether there was a direct or an indirect application of force — but the intent giving rise to the act or harm. The Court then concluded that “wanton conduct is the equivalent in law to intentional conduct. Such an allegation of intent renders the six-year statutory period of limitations applicable.”
Were we asked to review our decision in McKenzie to address whether all wantonness claims are subject to a six-year statute of limitations, I would expect a developed analysis that addressеs the applicable statute of limitations in light of our statu
Although I am troubled by the application of McKenzie in this case, I do not
. Black’s Law Dictionary 409 (8th. ed.2004) defines obiter dictum as: "A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case .... ” It is true that in McKenzie, as in many other cases addressed by this and other appellate courts, it turned out that one of the two issues addressed by this Court could have been avoided by addressing the other issue first. In fact, in McKenzie, a priori, either of the two issues— the statute-of-limitations issue or the sufficiency-of-the-evidence issue — could have been dispositive, depending on the outcome of the analysis of the respective issues. However, in light of the trial court's order in McKenzie, this Court chose to analyze first the statute-of-limitations issue and then, only after the analysis of that issue turned out not to be disposi-tive, to address the sufficiency of the evidence of wantonness. The issue with which this Court begins its analysis is a matter that lies within the discretion of this Court. The proper question is not whether with perfect hindsight this Court could have reached the same result by another route; rather, the proper question is whether, having chosen the route we chose, the analysis was reasonably related to arriving at the result.
. Compare Crown Cent. Petroleum Corp. v. Williams,
. Although it may be suggested that the new defendants engaged in the intentional act of engineering, designing, developing, configuring, manufacturing, assembling, distributing, and/or selling the chemicals or equipment used at the muffler-assembly plant, there does not appear to be any allegation of an intent to do harm. It is for this reason that I am concerned with a six-year statute of limitations in this case. However, I understand that under a wantonness standard, the former employees will have to prove not only that the new defendants intended to engineer, design, develop, configure, manufacture, assemble, distribute, and/or sell the chemicals or equipment used at the muffler-assembly plant, but also that the new defendants performed those tasks "with reckless indifference to the consequences” that proximately caused the former employees' injuries.
. This does not require that wanton conduct be considered more closely akin to negligence than to an intentional tort; this Court has repeatedly held that wantonness is neither an intentional tort nor some form of "super-negligence.” See Phillips ex rel. Phillips v. United Seivices Auto. Ass’n,
Dissenting Opinion
(dissenting).
I agree with the new defendants that the pronouncement in McKenzie v. Killian,
Even aside from the foregoing, however, I have no qualm with this Court’s taking up in the present case the issue of the proper understanding of §§ 6-2-34(1) and 6 — 2—38(¿). I agree with the main opinion that the new defendants argue in their briefs to this Court that any application of a six-year statute of limitations to wantonness claims should not be extended to toxic-substance or other products-liability cases. I can agree with the main opinion, at least for purposes of this case, that any difference between wantonness claims generally and products-liability cases does not provide a sufficiently principled basis for not applying the six-year limitations period to this case, if it is to be applied to claims of wаntonness generally. I do not agree, however, that the arguments of the new defendants and the cases they cite are not sufficient to raise the issue whether the six-year statute of limitations applies to wantonness claims generally.
The brief filed by new defendant Castrol Industrial North America, Inc. (“Castrol”), begins with extensive statutory-construction arguments, including an argument that § 6-2-34(1) should be limited to inju
“The Court’s own recent decisions demonstrate that claims of wantonness are subject to § 6-2-38(I). ‘[I]n at least two cases postdating McKenzie v. Killian, the Alabama Supreme Court has applied a two-year statute of limitations to wantonness claims.’ Ratcliff v. Heavy Machines, Inc., [No. 06-0861-WS-M] (S.D.Ala. July 17, 2007) [not reported in F.Supp.2d] (citing Boyce v. Cassese,941 So.2d 932 , 946 (Ala.2006); Gilmore v. M & B Realty Co., L.L.C.,895 So.2d 200 , 207-08 (Ala.2004)); see also Malsch v. Bell Helicopter Textron, Inc.,916 So.2d 600 , 601 (Ala.2005) (wantonness claim subject to ‘unambiguous statute of limitations’).”
Castrol brief at 35.
Similarly, before moving to a more specific argument that this Court should not apply the six-year limitations period to “products-liability” cases, the “Joint Brief of the Appellees” refers to, and cites some of, “decades” of Alabama cases, most not involving toxic-tort or other products-liability issues, which have consistently “placed wantonness claims under the two-year bar of Ala. Code § 6-2-38(1)”:
“This Court has confirmed the application of the two-year bar to claims of wantonness in three cases post-dating McKenzie: Boyce v. Cassese,941 So.2d 932 , 945-46 (Ala.2006); Malsch v. Bell Helicopter Textron Inc.,916 So.2d 600 , 601 (Ala.2005); and Gilmore v. M & B Realty Co.,895 So.2d 200 , 207-09 (Ala.2004). The Southern Federal District of Alabama rejected an argument similar to the Plaintiffs’ in Ratcliff v. Heavy Machines Inc., [No. 06-0861-WS-M, July 17, 2007] (S.D.Ala.) [not reported in F.Supp.2d], This was in accord with decades of Alabama law that placed wantonness claims under the two-year bar of Ala.Code § 6 — 2—38(i ).3
Similarly, before turning to the narrower question of whether products-liability cases in particular should be governed by a two-year statute of limitations, Spartan Chemical Company, Inc., argues more generally as follows:
“First and foremost, the plain language of Ala.Code §§ 6-2-34(1) and 6-2-38(Z )(1975) warrants dismissal of the Bell Carr Plaintiffs’ allegations of ‘wanton’ conduct. Section 6-2-38(Z) clearly requires that ‘[a]ll actions for any injury to the person or rights of'another, not arising from contract and not specifically enumerated in this section must be brought within two years.’ The Plaintiffs allegations do not arise out of contract and do not implicate another enumerated action within that statutory section. Thus, a plain reading of that statute requires application of the two-year limitation period to the Plaintiffs’ claims. This conclusion is supported by years of settled Alabama law.”
Spartan Chemical brief at 13. The brief then continues with discussions of IMED Corp. v. Systems Engineering Associates Corp.,
In short, the new defendants briefs (1) argue the application of principles of statutory construction to the relevant statutes and (2) cite this Court to numerous eases decided both before and after McKenzie that are not limited to toxic-tort or other products-liability claims and argue that these cases stand for the proposition that a two-year limitations period now prescribed by § 6-2-38(Z) should apply to wantonness claims. Implicitly, and of necessity, they argue that McKenzie was incorrectly decided in this regard. Moreover, in “response,” both the initial brief and the reply brief of the plaintiffs fully argue the merits of the very issues joined by the new defendants. Indeed, if anything, the plaintiffs’ briefs on appeal parse the reasoning and analytically discuss the relative merits of the McKenzie decision and the conflicting pre- and post -McKenzie decisions issued by this Court more thoroughly than do the new defendants.
In the context of these arguments, it clearly is within the authority, indeed it is the responsibility, of this Court to decide this issue and to properly declare the state of the law in Alabama on this issue. If, in the course of doing so, we determine that the two-year statute of limitations is applicable, and that McKenzie was incorrectly decided on this issue, then it falls to us to so hold. Our doing so would not require us to overrule a long line of well-established precedents; to the contrary, it would require us to overrule only a single case that stands as an exception to a long line of cases that were decided both before and after McKenzie, and upon which the new defendants expressly rely. See, e.g., Ex parte Howell Eng’g & Surveying, Inc.,
I turn then to a consideration of the substantive issue presented. I begin by noting that I have no quarrel with the conclusion reached in McKenzie that the issue presented turns on “the degree of culpability of the alleged wrongful conduct.” McKenzie,
In discussing the transition from a jurisprudence that categorized causes of action based on the causal sequence of events to one that categorizes based on the culpability of the tortfeasor, one well known authority makes no mention of recklessness or wantonness, instead dividing actions merely between those involving intentional conduct and those involving negligence. See W. Page Keeton, Prosser and Keeton on the Law of Torts at 29-31 (5th ed.1984). Further, the discussion in Prosser explains that causes of action for trespass, assault and battery, and false imprisonment — in other words, causes of action of the very type addressed in § 6-2-34(1) — involve intentional conduct by the tortfeasor: “Terms such as battery, assault and false imprisonment, which were varieties of trespass, came to be associated with intent, and negligence emerged as a separate tort. ... There is still some occasional confusion, and some talk of a negligent ‘assault and battery,’ but in general these terms are restricted to cases of intent.” Id. at 30 (footnote omitted). “ ‘The intention to do harm, or an unlawful intent, is of the very essence of an assault, and without it there can be none.’ ” Id. at 30 n. 17 (quoting Raefeldt v. Koenig,
But to show that claims alleging recklessness or wantonness are more akin in either quality or degree to claims alleging negligence than they are to claims based on a tortfeasor’s actual, specific intent to harm would be to show more than is necessary. As Justice See notes in his special writing, questioning the conclusion reached in McKenzie that claims of reckless and wanton conduct ought to be treated the same as claims for intentional torts for purposes of the statute of limitations “does not require that wanton conduct be considered more closely akin to negligence than to an intentional tort; this Court has repeatedly held that wantonness is neither an intentional tort nor some form of ‘super-negligence.’ ”
I am clear to the conclusion that recklessness and wantonness are fundamentally, and definitively, different concepts than intent and that claims alleging reckless or wanton conduct are fundamentally, and definitively, different types of claims from those alleging intentional harm to the plaintiff. I therefore cannot place claims for such conduct within the governance of § 6-2-34(1), which I interpret as imposing a six-year statute of limitations on the intentional torts described therein, i.e., “trespass to person or liberty, such as false imprisonment or assault and battery.” Concomitantly, I must conclude that claims alleging reckless and wanton conduct, just like those alleging negligence and, for that matter, any number of nonin-tentional torts, fall within the governance of the general provision in § 6-2-38 (l) for a two-year limitations period for “[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section.”
As previously noted, a long line of decisions reaching back many years, including some that postdate McKenzie, has consis
I therefore respectfully dissent.
“3 Some such cases from the 16 years preceding McKenzie include: Spain v. Brown & Williamson Tobacco Corp.,
. I would, also note that my position does not require us to reach out to consider and overrule a case for purposes of reversing a lower court’s decision and, in so doing, to undertake a task that an appellant has not asked us to undertake. Rather, we would be responding to the arguments made by the appellees regarding the proper interpretation of § 6-2-34(1) and § 6-2-38(Z), and in the course of doing so we would affirm the judgment of the trial court. See generally General Motors Cotp. v. Stokes Chevrolet, Inc.,
. "At common law, trespass to the person was describеd as trespass v¿ et annis, ‘by
"[A] count which charges that Pleas [the defendant's slave] willfully burned the dwelling-house of plaintiff, and that said slave was instigated and persuaded thereto by the defendant, is, in form, a count in trespass, and charges the defendant with the commission of a felony.
"On the other hand, some of the counts, in both the original and amеnded complaints, charge on the defendant's intestate no actual or intentional procuration of the arson, but seek to base his liability on his negligently permitting Pleas, his slave, and of known bad character, to run at large, contrary to law. These counts, if they have any legal validity, are in case, and should not have been joined with a count in trespass.”
Bell’s Adm’r v. Troy,
“The distinction between an action on the case, and an action of trespass, is in effect, though not in terms preserved by the Code. For a tort committed with force and intentionally, the immediate consequence of which is injury, trespass is the appropriate remedy. If the injury proceeds from mere negligence, or is not the immediate consequence of the tort, case is the appropriate remedy.”
(Emphasis added.)
Despite the consistency of the Bell and Pruitt cases in focusing upon the intent of the actor, and thus making a good start at establishing not only internal consistency within Alabama cases, but also consistency with the transition then underway in English and American jurisprudеnce generally from a causality analysis to an intent-based analysis, see discussion supra of Prosser, cases decided in Alabama after Pruitt often resorted to an inconsistent and confusing mixture of references to both causality factors and intent. See discussion in McKenzie,
. In reaching its conclusion that wantonness ought to be treated for statute-of-limitations purposes the same as intentional conduct, the McKenzie Court quoted Justice Jones's reasoning in Strozier v. Marchich that " ‘[o]ne who knowingly sets into motion, by intentionally doing (or failing to do) an act, a sequence of events resulting in reasonably foreseeable injury to another, whether the resulting injury is immediate or consequential, in my opinion, has committed a trespass within the contemplation of the six-year statute of limitations.' " McKenzie,
. Prosser states that the terms ''willful,” “wanton,” and "reckless”
“have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care. ... They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. Thus it is held to justify an award of punitive damages, and may justify a broader duly, and more extended liability for consequences, and it will avoid the defense of ordinary contributory negligence on the part of the plaintiff.”
Prosser at 212-14 (footnotes omitted)(emphasis added).