Appeal Dismissed Because Rule 54(b) Certification Was Improper

In Hammock v. Wal-Mart Store, Inc., [Ms. 1070939] (Ala. Nov. 7, 2008),  the Alabama Supreme Court dismissed the appeal because it determined that a Rule 54(b) certification was improper.

In Hammock, the plaintiff filed a wrongful death suit against Wal-Mart and one of its employees after the plaintiff’s decedent was killed by the Wal-Mart employee when the employee struck the decedent with his car while returning from lunch.  The plaintiff asserted claims against Wal-Mart based on respondeat superior and also alleged that Wal-Mart was negligent in maintaining the parking lot and training its employees.  The trial court granted summary judgment to Wal-Mart on the respondeat superior claims on  the basis that the accident did not occur in the course and scope of his duties for Wal-Mart.  The other claims against Wal-Mart remained pending, as did the claims against the employee.  The trial court certified the order granting summary judgment to Wal-Mart on the respondeat superior claims as final pursuant to Rule 54(b).

On appeal the Supreme Court, on its own, examined whether it had jurisdiction over the appeal.  Quoting extensively from North Alabama Elec. Coop. v. New Hop Tel, Coop., [Ms. 1051800] (Ala. Oct. 17, 2008), the Court stated the rule that Rule 54(b) certifications are not favored, and are inappropriate where the claims are intertwined.

The Court found that the respondeat superior claim and the remaining claim for negligenet training and supervion were intertwined because they share common elements.  "Like a claim of respondeat superior, liability under a theory of negligent supervision is based in the employment relationship.  The trial court ruled on Hammock’s respondeat superior claim, determining that [employee] was not acting within the line and scope of her employment when she struck and killed [decedent].  As a result, a separate adjudication by the trial court on negligent supervision and training leaves open the possibility of ‘inconsistent results.’"

Because the claims were intertwined, the Rule 54(b) certification was improper, and the appeal was dismissed.