Londell Marina, Jr. v. Bama Reinforcing, LLC (Appeal from Madison Circuit Court: CV-22-901025).

Rel: November 8, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

_________________________

SC-2024-0106
_________________________

Londell Marina, Jr.

v.

Bama Reinforcing, LLC

Appeal from Madison Circuit Court
(CV-22-901025)

PER CURIAM.

Londell Marina, Jr., appeals from a judgment as a matter of law

entered by the Madison Circuit Court in favor of Bama Reinforcing, LLC,

in this negligence action commenced by Marina against Bama
SC-2024-0106

Reinforcing, which arises from a workplace accident in which Marina was

injured. We reverse and remand.

I. Facts

At the time of trial, Marina had been a concrete finisher for 22 years

and he lived in Marietta, Georgia. A concrete finisher levels out, smooths,

finishes, and cures concrete that has been poured at locations on a

construction site. To do that job, Marina uses tools such as bull floats,

trowel machines, screed board, chipping hammers, and cure paper.

To strengthen concrete and to keep it from cracking under weight

and pressure, reinforced steel rods or wire mesh is placed inside the form

where concrete is to be poured. Such reinforced steel is called rebar, and

the placement of rebar is performed by rodbusters. When concrete is

poured for a foundation, rodbusters often use concrete blocks to support

the placement of rebar in the form. For elevated areas where concrete is

poured, rodbusters use metal bar "chairs" to hold the rebar or wire mesh

in place.

At the time of the accident, Marina was a concrete finisher for

Fessler & Bowman, a general contractor that had been hired to perform

all the concrete work involved in the construction of a new Federal

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Bureau of Investigation ("FBI") building at Red Stone Arsenal in

Huntsville, Alabama. Fessler & Bowman, in turn, had hired Bama

Reinforcing as a subcontractor to perform the rebar installation for the

project. Rodney Pate is the vice president of operations for Bama

Reinforcing, and his younger brother, Daniel Pate, was Bama

Reinforcing's foreman at the FBI building job site.

Bama Reinforcing's contract with Fessler & Bowman contained a

specific provision that required Bama Reinforcing to clean up its work

area after it had performed its duties.

"8. Cleanup and Removal. [Bama Reinforcing] shall
maintain the area in which it performs the Work in a clean,
neat and safe condition and shall comply promptly with
instructions from [Fessler & Bowman] with respect thereto,
upon completion of each stage, or when requested by [Fessler
& Bowman]. [Bama Reinforcing] shall remove from the areas
in which it performs the Work, to the satisfaction of [Fessler
& Bowman], all of [Bama Reinforcing's] rubbish, debris,
materials, tools and equipment; and if [Bama Reinforcing]
fails to do so promptly, [Fessler & Bowman] may, after
twenty-four (24) hours' notice to [Bama Reinforcing], remove
the same to any place of storage or dumping ground at [Bama
Reinforcing's] risk and expense and without responsibility for
loss, damage or theft. All storage or removal costs incurred by
[Fessler & Bowman] shall be deductible from any payment or
balance due [Bama Reinforcing] hereunder."

(Bold typeface in original; other emphasis added.)

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On November 9, 2021, Marina was working on a concrete slab that

had been poured on ground level in a form. Initially, Marina was

operating the water truck used to moisten the concrete slab. Marina's

supervisor relieved him of that duty and told him to roll out the cure

paper that would be placed on top of the concrete. Marina proceeded to

walk from the water truck over to the location where the cure-paper rolls

were located. 1 However, when he got there, Marina realized that he

needed a knife to pull out the cure paper. Marina asked if anyone had a

knife, and one of his coworkers, who was over by the water truck,

responded that he had a safety knife. Marina walked back over to the

truck and retrieved the knife from his coworker. Marina testified:

"A. Once I got the knife, I turned around and went back,
and I was probably not -- maybe a quarter of the way back to
the UltraCure [the cure paper], and that's when I felt
something in my foot. Immediately, I screamed and jumped
up, and that's what happened."

Marina sat down and discovered that he had stepped on a piece of metal

"chair." The metal piece of chair had penetrated Marina's work boot and

1Marina testified that the cure-paper rolls were "maybe six or seven

[feet] long and maybe two [feet] wide. It's almost like a long piece of
carpet."

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punctured Marina's right foot. Marina testified that the reason he had

not seen the piece of chair when he was walking was that "[i]t was almost

like it was camouflaged. … [T]he dirt kind of camouflaged this small

piece."

Because Marina was experiencing intense pain from the accident,

he was taken to Huntsville Hospital where the piece of chair was removed

from his foot, the wound was treated, and Marina was given medication.

Marina was placed on light duty and had to use a wheel crutch to

ambulate until around June 2022. Marina testified that he still

experiences pain from the injury, that he is not able to perform the

kicking and stomping his job requires as well as he could before the

accident, and that he tires more easily on jobs because of the pain.

On September 14, 2022, Marina commenced this action against

Bama Reinforcing, asserting claims of negligence and wantonness. On

September 23, 2022, Bama Reinforcing answered Marina's complaint,

and it asserted, among other defenses, contributory negligence.

On November 7, 2023, Bama Reinforcing filed a summary-

judgment motion and a brief in support thereof in which it argued that

Marina had not presented sufficient evidence to establish that Bama

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Reinforcing "was responsible for cutting a chair or leaving the subject

piece of chair on the ground." In the alternative, Bama Reinforcing

contended that Marina "was guilty of contributory negligence as a matter

of law for failing to watch where he was walking."

On January 2, 2024, Marina filed a response in opposition to Bama

Reinforcing's summary-judgment motion. In his response, Marina

asserted that rodbusters for Bama Reinforcing were the only workers on

the job site who used chairs. He also noted that Bama Reinforcing had a

contractual obligation to clean up its work area after the completion of

its work.

On January 26, 2024, the trial court denied Bama Reinforcing's

summary-judgment motion. The order did not provide a specific reason

for the denial, but it stated that the decision had been reached after

"[h]aving considered the arguments and representations of counsel, and

after careful review of all relevant and applicable law."

On February 6, 2024, the case proceeded to trial.2 During Marina's

case-in-chief, the jury heard testimony from Marina, Rodney Pate, Daniel

Pate, and the doctor who had treated Marina at Huntsville Hospital.

2Before trial, Marina abandoned his wantonness claim.

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Marina rested his case late on the first day of trial, and Bama Reinforcing

filed a written motion for a judgment as a matter of law. The trial court

heard extensive arguments from counsel for both parties concerning that

motion on that day and on the following morning. On February 7, 2024,

the trial court orally granted Bama Reinforcing's motion for a judgment

as a matter of law; the trial court also signed and stamped "Motion

Granted" on Bama Reinforcing's written motion.

On February 16, 2024, Marina appealed.

II. Standard of Review

"When reviewing a ruling on a motion for a [judgment
as a matter of law ('JML')], this Court uses the same standard
the trial court used initially in deciding whether to grant or
deny the motion for a JML. Palm Harbor Homes, Inc. v.
Crawford, 689 So. 2d 3 (Ala. 1997). Regarding questions of
fact, the ultimate question is whether the nonmovant has
presented sufficient evidence to allow the case to be submitted
to the jury for a factual resolution. Carter v. Henderson, 598
So. 2d 1350 (Ala. 1992). The nonmovant must have presented
substantial evidence in order to withstand a motion for a
JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). A
reviewing court must determine whether the party who bears
the burden of proof has produced substantial evidence
creating a factual dispute requiring resolution by the jury.
Carter, 598 So. 2d at 1353. In reviewing a ruling on a motion
for a JML, this Court views the evidence in the light most
favorable to the nonmovant and entertains such reasonable
inferences as the jury would have been free to draw. Id.
Regarding a question of law, however, this Court indulges no
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presumption of correctness as to the trial court's ruling.
Ricwil, Inc. v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala. 1992)."

Waddell & Reed, Inc. v. United Invs. Life Ins. Co., 875 So. 2d 1143, 1152

(Ala. 2003).

III. Analysis

Marina disputes both of the potential bases Bama Reinforcing

articulated in its motion for a judgment as a matter of law. Specifically,

Bama Reinforcing contended, as it does on appeal, that attributing to

Bama Reinforcing's conduct the fact that the piece of chair was on the

ground would be "pure speculation, at best." Bama Reinforcing's brief, p.

15. Second, Bama Reinforcing argued that Marina was contributorily

negligent as a matter of law because, it asserted, he "was well aware of

and appreciated the fact that there was construction debris on the ground

at the site which could cause him injury if he stepped on it." Id., p. 20.

Bama Reinforcing insists that "[t]his accident occurred[] because Marina

was not watching where he was walking, contrary to repeated

instructions that he had received from his employer." Id. We will deal

with the two issues in reverse order.

A. Contributory Negligence

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We deal with contributory negligence first because it is easily

dispatched. To begin with, although the trial court stamped "Motion

Granted" on Bama Reinforcing's written motion for a judgment as a

matter of law, and although that motion included an argument that

Marina was contributorily negligent as a matter of law, the trial court's

oral explanation for granting the motion indicates that it did not rule in

Bama Reinforcing's favor on that basis. During the arguments on the

motion, Marina's counsel stated:

"And the other thing, on [contributory negligence], we
talked about it in the response to summary judgment.

"To directed verdict, which is what he's made, for
judgment as a matter of law, it's the same standard as
summary judgment, you know, the same thing. Well, the case
law for [contributory negligence] on summary judgment
and -- and a directed verdict for judgment as a matter of law
is that the movant has to show two things: That the plaintiff
had put himself in a dangerous way. And two, that the
plaintiff had a conscious appreciation of the danger at the
moment the incident occurred. That's not for it to go to the
jury and for the jury to be charged, but for you to take it away
from the jury, you have to say Londell --

"THE COURT: Well, I'm not going to take [contributory
negligence], that would be -- that will hang out there. I'm
really more stuck on the other.

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"[Marina's counsel:] Okay. Well, then I'll quit talking
about [contributory negligence].

"THE COURT: Yeah.

"[Marina's counsel:] Okay.

"THE COURT: You can swim in another river for that
one."

Moreover, just before ruling in Bama Reinforcing's favor, the trial court

discussed whether the presence of the piece of chair as debris could be

attributed to Bama Reinforcing; it did not discuss contributory

negligence.

"THE COURT: Discuss the fact that the incident
occurred at 4 p.m. on the day that it occurred and people had
been there all day, and the defendant had not even been there
that day, nor by -- by using testimony more most favorable to
your client, the day before, and that everybody is under a duty
to clean the site.

"[Marina's counsel]: I mean, I don't think it's
disputed -- I agree with you. I think it's undisputed that on a
job site any contractor -- they're all under a duty to try to keep
the site clean.

"THE COURT: Keep the site clean.

"[Marina's counsel]: But you also --

"THE COURT: It's a control issue. Do you see what I'm
saying?
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"[Marina's counsel]: Yes, sir.

"THE COURT: It's a control issue because you have at
least a full working day and the better part of another
working day where the defendant was not even present. And
there is rubbish, I -- I think you-all are categorizing it
appropriately, that has been left on the site. I don't see where
the control goes to that particular defendant simply because
they, at one point in time, may have handled the larger piece
[of chair].

"Because they testified they never cut them and nobody
every changed that -- now -- on that. But it's the control issue,
the control issue of a site that by everyone's testimony so far
is everybody is under a general -- not only the contractors, but
the subs, to clean, everybody is to clean. And I believe the
testimony was that even the -- the owner -- or property owner
for lack of a better term had -- had said to everyone. Make
sure you clean. I mean, had -- I don't want to say had gotten
on them about it, maybe had reminded them for whatever the
occasion may be.

"I'm going to grant the motion for directed verdict."

(Emphasis added.)

In addition to the fact that the trial court did not orally rule in

Bama Reinforcing's favor on the basis of contributory negligence, this

Court has repeatedly stated that "questions of negligence incorporate

factual evaluations that are almost always within the province of the

jury. … It follows that a summary judgment based on the doctrine of

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contributory negligence is seldom proper." Gulledge v. Brown & Root,

Inc., 598 So. 2d 1325, 1330 (Ala. 1992).

"To establish contributory negligence as a matter of law,
a defendant seeking a summary judgment must show that the
plaintiff put himself in danger's way and that the plaintiff had
a conscious appreciation of the danger at the moment the
incident occurred. See H.R.H. Metals, Inc. v. Miller, 833 So.
2d 18 (Ala. 2002); see also Hicks v. Commercial Union Ins.
Co., 652 So. 2d 211, 219 (Ala. 1994). The proof required for
establishing contributory negligence as a matter of law should
be distinguished from an instruction given to a jury when
determining whether a plaintiff has been guilty of
contributory negligence. A jury determining whether a
plaintiff has been guilty of contributory negligence must
decide only whether the plaintiff failed to exercise reasonable
care. We protect against the inappropriate use of a summary
judgment to establish contributory negligence as a matter of
law by requiring the defendant on such a motion to establish
by undisputed evidence a plaintiff's conscious appreciation of
danger. See H.R.H. Metals, supra."

Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 860-61 (Ala. 2002)

(emphasis added).

It is true that Marina testified that he generally knew that he had

to be alert and watch where he was stepping at a construction site.

"Q. [Bama Reinforcing's counsel:] Okay. All right. The
reason y'all are discussing where you're walking is this is a
construction site, correct?

"A. Yes.

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"Q. And there's a lot of hazards on the ground in a
construction site that just occur naturally during the course
of construction, correct?

"A. Correct.

"….

"Q. It is common to have materials left on the ground in
a construction site, correct?

"A. Yes.

"Q. And that's not just true for this particular job site,
that's true for virtually every job site that you've been on,
correct?

"A. Correct.

"Q. And you knew and appreciated, based on your
experience both as a supervisor and as a worker, that there
were things that if you weren't watching where you're walking
and stepped on them, that might hurt you?

"A. That's correct."

However, Marina also testified that there are several things a

worker must be aware of while traversing a construction site.

"Q. [Marina's counsel:] Okay. And in the construction
industry when you're out there on the job site, can you walk
around looking at your feet?

"A. No.

"Q. Why not?

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"A. You've got to -- You have to have your head on a
swivel.

"Q. And what -- Why is that?

"A. Because you have so many things going on, you have
-- you have cranes, you have overhead -- people working over
your head, you have machinery moving everywhere, so you
have to be aware at all times.

"Q. And I think didn't you -- did you see that [the chair
piece]?

"A. No.

"Q. And tell us again why you couldn't see that?

"A. It was in the dirt. It was camouflaged.

"Q. You can't really avoid something you can't see?

"A. Correct. Truthfully, if I saw that I wouldn't have
stepped on it."

Thus, although Marina generally knew he had to be aware of his

surroundings at the job site, there was not undisputed evidence

demonstrating that Marina consciously appreciated the danger at issue

here. In fact, as we will see in Part B of this analysis, Marina testified

that, before this accident, he had never seen a piece of a chair -- as

opposed to a full chair -- loose on the ground at a job site. Indeed, one of

the pictures entered into evidence showed a full chair on the ground along

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with three fenceposts. Marina plainly had no difficulty spotting and

avoiding those obstacles in walking back and forth between the water

truck and the rolls of cure paper. The small piece of chair was another

matter. In short, whether Marina was contributorily negligent was

clearly an issue for the jury to determine, and it therefore was not a

proper basis for entering a judgment as a matter of law.

B. Fault for the Presence of the Piece of Chair

The actual basis upon which the trial court ruled in Bama

Reinforcing's favor involved a mixture of duty and causation. In its

colloquy with counsel concerning Bama Reinforcing's motion for a

judgment as a matter of law, the trial court emphasized three facts

testified to at trial: (1) Bama Reinforcing did not cut chairs; (2) Bama

Reinforcing had completed its work on the concrete slab Marina was

working on at least the day before the accident; and (3) all of the

contractors, including Fessler & Bowman, had a duty to clean up the job

site. In combination, the trial court believed that those facts meant that

Marina had not demonstrated that Bama Reinforcing was the party

responsible for leaving the piece of chair on the ground where Marina

stepped on it.

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Regarding the first fact, Rodney Pate testified that Bama

Reinforcing never cut chairs when doing its rodbusting work and that

Fessler & Bowman supplied the chairs.

"Q. [Bama Reinforcing's counsel:] Would Bama cut a
chair for any reason?

"A. So this is going to sound bad for us, but, no. We
wouldn't cut any chair for many reasons. And this is what is
going to sound bad for us is because it takes more time. And
when I say this, a rodbusting company is paid by ton. The
quicker we put the tons in, the more money we make. We ain't
equipped to cut those; one, it's not our material to cut. The --
the customer who brought the material would have to get it
approved or they would have to order a certain size of chair.
But what our guys carry on their sides -- what rodbusters
carry on their sides is a reel with tie wire on it and two pair of
pliers; a pair of tying pliers and cutting pliers. You can't cut
those with either one of those, you've got to have a saw or a
pair of bolt cutters. So what I said is going to look bad on us,
the rodbusters too -- I don't want to say too lazy, but they --
they going too fast. They drill in, they head to hurry up and
get done. They ain't going to take the time to go get something
to cut it, it's just not in our DNA.

"Q. The -- the chairs, the bricks, the blocks, the rebar,
the wire mesh, who supplies all of that material?

"A. So in this case it was Fessler & Bowman. Sometimes
-- We was a lower tier sub. That means Fessler & Bowman
was a contractor for the prime contractor, which [it] states
many times in the contracting paperwork, prime contractor.
So Fessler & Bowman had -- and we was a lower tier sub
under Fessler & Bowman."
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On a related note, Marina testified that he had never seen a piece

of cut chair at the job site before his accident.

"Q. [Bama Reinforcing's counsel:] You had never seen a
piece of a chair or a chair left on the ground before this
accident happened, had you?

"A. No.

"Q. And you had never seen a chair cut -- a piece of it cut
off on this job site?

"A. No.

"Q. And if somebody did deliberately cut a chair, you
have no idea why somebody would do that, do you?

"A. Yes.

"Q. Well, do you remember I asked you about that in
deposition?

"And I may have asked the wrong question, I apologize
to you, sir.

"You don't have any idea if this -- if this piece of chair
that we're talking about today, if it was cut off of a bigger
piece, this thing, you don't have any idea who cut it, do you?

"A. Specifically who cut it?

"Q. Right.

"A. I don't know specifically who did it, no."
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As to the second fact, Marina testified that he believed "the last day

the rodbusters had been on site" was "the day before" his accident.

Rodney Pate testified that he "believe[d] it was three days. We -- So we're

going to say in between two to three days, no less than two days" between

when Bama Reinforcing finished its "work area on the slab where Mr.

Marina was injured to the point they [were] pouring concrete."

Additionally, Marina testified that the accident occurred around 4:00

p.m. in the workday on November 9, 2021.

With respect to the third fact, Marina, Rodney Pate, and Daniel

Pate each testified in a general fashion that all the workers engaged in

the construction of the FBI building had a responsibility to clean up the

job site. Specifically, Marina testified that it was "everyone's job" to

"[m]ake sure the job site is organized and safe." Rodney Pate testified

that he "received maybe one or two phone calls throughout the whole job

saying, Hey, talk to your people, make sure they [are] getting a good clean

up because the FBI is coming down on us a little bit, maybe one or two

emails saying the same thing." Daniel Pate testified that "[e]verybody's

told to clean" the job site because "people get hurt" if that does not

happen.
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In essence, the trial court reasoned that because Bama Reinforcing

did not cut chairs, because Bama Reinforcing was not present or working

at the job site on the day of the accident, because all workers had a duty

to clean up the job site, and because the accident did not happen until

near the end of the day after Bama Reinforcing had last been at the job

site, Marina had not presented substantial evidence indicating that

Bama Reinforcing was responsible for the presence of the piece of chair

on the ground at the time Marina stepped on it.

The problem with the foregoing reasoning is that it fails to view the

facts in the light most favorable to Marina. Marina unequivocally

testified that Bama Reinforcing was the only contractor that used chairs

in its work at the job site. "Rodbusting, you have tie wire, you have steel,

you have chairs. And they [Bama Reinforcing] were the only one to do

that discipline on the job." Marina also testified in the negative -- that

other professions at the job site did not use chairs.

"Q. [Marina's counsel:] What -- what's next to you, that
piece of chair, that wire thing sticking up, do you ever have
any reason to handle that when you're finishing concrete?

"A. Never.

"….

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"Q. [Marina's counsel:] So you -- Had you seen
carpenters work [on site]?

"A. Yes.

"Q. Do carpenters ever handle that?

"A. No.

"Q. You ever see -- who did you see handle that kind of
stuff?

"A. Rodbusters."

Daniel Pate likewise testified that he did not know of any reason that a

concrete finisher would handle a chair. Although Rodney Pate testified

that plumbers and electricians often use chairs to "slide it under the

uprights and … tie the uprights straight down to the chair to the bottom

of the rebar to keep it all in place," he also admitted that he did not know

if there were any plumbers or electricians working at the job site after

Bama Reinforcing had finished its work the day before Marina's accident.

Daniel Pate -- who was present at the job site every day that Bama

Reinforcing performed work -- likewise testified that he could not

remember if any plumbers or electricians were at the job site at that time.

More importantly, it was undisputed that Bama Reinforcing had a

duty to clean up its work area after it had completed its assigned tasks.
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Bama Reinforcing's contract with Fessler & Bowman required Bama

Reinforcing to "remove from the areas in which it performs the Work, to

the satisfaction of [Fessler & Bowman], all of [Bama Reinforcing's]

rubbish, debris, materials, tools and equipment." Rodney Pate conceded

that the piece of chair Marina had stepped on was "debris or rubbish,"

but he attempted to downplay that portion of Bama Reinforcing's

contract with Fessler & Bowman by asserting that the piece of chair was

"not Bama Reinforcing's debris or rubbish" because Fessler & Bowman

supplied the chairs that Bama Reinforcing used in its rodbusting work.

However, he also conceded that Bama Reinforcing had to clean up "[t]he

mess that we make."

The trial court assumed that because Bama Reinforcing had not

been at the job site on the day of Marina's accident, and because other

workers also had a responsibility to clean up the job site, Bama

Reinforcing could not be liable for the piece of chair left on the ground

that caused Marina's injury. However, most cleanup work occurs at the

completion of a particular crew's workday. As Marina testified:

"[E]verybody['s] discipline will say -- if -- if we have an issue
we're going to work, like, if we see a bunch of lumber, I'll go to
my supervisor, which is a concrete foreman or supervisor, I
will go to him -- or we'll go to them and say, Look, we can't go
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in because it's a lot of debris. And then they would go and get
their supervisor and say, Okay. We need to do a clean up job.
So that -- that discipline would go and clean up their mess so
that we can come in and do what I have to do."

Thus, the fact that Fessler & Bowman's concrete finishers may not have

cleaned up their work area at the time of Marina's accident is

unsurprising given that they had not finished their workday. But,

according to Marina, just the day before his accident, Bama Reinforcing

had completed its portion of the work in the area of the concrete slab that

Marina and his coworkers were performing concrete finishing.

Consequently, Bama Reinforcing had a duty to clean up its debris and

rubbish at the end of its workday, and, according to Marina, Bama

Reinforcing was the only contractor that used the chairs.

" ' "Proof which goes no further than to show
an injury could have occurred in an alleged way,
does not warrant the conclusion that it did so
occur, where from the same proof the injury can
with equal probability be attributed to some other
cause." [Southworth v. Shea, 131 Ala. 419, 421, 30
So. 774, 775 (1901).]

" 'But a nice discrimination must be exercised in the
application of this principle. As a theory of causation, a
conjecture is simply an explanation consistent with known
facts or conditions, but not deducible from them as a
reasonable inference. There may be two or more plausible
explanations as to how an event happened or what produced
it; yet, if the evidence is without selective application to any
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one of them, they remain conjectures only. On the other hand,
if there is evidence which points to any one theory of
causation, indicating a logical sequence of cause and effect,
then there is a juridical basis for such a determination,
notwithstanding the existence of other plausible theories with
or without support in the evidence.' "

Ex parte Diversey Corp., 742 So. 2d 1250, 1254 (Ala. 1999) (quoting

Southern Ry. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924))

(emphasis added).

There is a logical sequence in the evidence indicating that only

Bama Reinforcing used chairs, that its employees had worked in the

same area the day before Marina's accident, and that it had a clear duty

to clean up that area upon the completion of its work. Thus, the evidence

points to Bama Reinforcing's negligent cleanup being the reason the piece

of chair was left on the ground in the work area for Marina to step on.

That Fessler & Bowman's employees also could be included in the causal

chain because the job site had not been cleared of all debris and rubbish

throughout the workday before Marina's accident does not exonerate

Bama Reinforcing.

" 'The general rule is that it is no defense, in actions for
injuries resulting from negligence, that the negligence of third
persons contributed to cause the injury to the plaintiff if the
negligence of the defendant was an efficient cause, without
which the injury would not have occurred. Stated differently,
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where a defendant is guilty of negligence which causes an
injury, and the plaintiff is free from negligence contributing
thereto, the fact that the negligence of a third person also
contributed does not relieve the defendant from liability for
his negligence.' "

Williams v. Woodman, 424 So. 2d 611, 613 (Ala. 1982) (quoting Watt v.

Combs, 244 Ala. 31, 37, 12 So. 2d 189, 195 (1943)). The evidence indicates

that Bama Reinforcing's negligent cleanup initially allowed the piece of

chair to be present in the work area. Therefore, it is possible for Bama

Reinforcing to be held liable for its alleged negligence. Accordingly, the

trial court erred in entering a judgment as a matter of law in Bama

Reinforcing's favor.

IV. Conclusion

Contributory negligence was not a basis for the trial court's

entering a judgment as a matter of law for Bama Reinforcing. Even if it

had been, whether Marina was contributorily negligent was clearly a jury

question. Moreover, because Marina presented evidence indicating that

Bama Reinforcing was the only contractor that used chairs and that it

had a duty to clean up the job site after completing its work, Marina

presented more than conjecture or speculation as a basis for Bama

Reinforcing's negligence being responsible for Marina's injury. Therefore,

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we reverse the judgment as a matter of law entered by the trial court and

remand the matter for a new trial.

REVERSED AND REMANDED.

Parker, C.J., and Shaw, Bryan, Mendheim, Stewart, and Cook, JJ.,

concur.

Mitchell, J., dissents, with opinion, which Wise and Sellers, JJ, join.

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MITCHELL, Justice (dissenting).

To prevail on a negligence claim, a plaintiff must show that a

defendant breached a duty owed to the plaintiff and that such breach

caused the plaintiff′s damages. See Mohr v. CSX Transp. Inc., 309 So. 3d

1204, 1209 (Ala. 2020). I agree with the majority opinion that Londell

Marina, Jr., provided substantial evidence from which a fact-finder could

find in his favor on three of the elements of his negligence claim: that

Bama Reinforcing, L.L.C., had a duty to clean up the worksite after each

day; that if Bama Reinforcing breached its duty by leaving a piece of cut

chair at the worksite, that breach in turn could have caused his injury;

and that Marina was damaged. But I do not believe that Marina offered

substantial evidence of a breach, specifically, that Bama Reinforcing was

responsible for the piece of cut chair that injured him.

The majority notes that there was evidence indicating "that only

Bama Reinforcing used chairs, that its employees had worked in the

same area the day before Marina's accident, and that it had a clear duty

to clean up that area upon the completion of its work." ___ So. 3d at ___.

It further reasons that this evidence creates "a logical sequence" that

points to "Bama Reinforcing's negligent cleanup being the reason the

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piece of chair was left on the ground in the work area for Marina to step

on." ___ So. 3d at ___. But a gap exists in this sequence because there is

no evidence indicating that Bama Reinforcing handled or failed to clean

up the cut chair piece.

Several pieces of uncontroverted evidence at trial demonstrate how

wide that gap is. First, Rodney Pate testified that Bama Reinforcing

never cut chairs for any reason. Second, Marina himself testified that he

never saw a chair being cut at the worksite, by Bama Reinforcing or

anyone else. Third, when Marina was asked if he knew who cut off the

piece of chair that injured him, he admitted: "I don't know specifically

who did it, no." Finally, Marina offered no evidence indicating that Bama

Reinforcing failed to clean up the worksite when it finished up. Thus, at

most, a jury could only speculate that Bama Reinforcing either cut a piece

of chair or handled and failed to pick up a cut chair piece. And " ' "[p]roof

which goes no further than to show an injury could have occurred in an

alleged way, does not warrant the conclusion that it did so occur, where

from the same proof the injury can with equal probability be attributed

to some other cause." ' " Ex parte Diversey Corp., 742 So. 2d 1250, 1254

(Ala. 1999) (citations omitted). Here, the presence of the piece of chair

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that caused Marina's injuries could "with equal probability be attributed"

to individuals on the worksite who were not employed by Bama

Reinforcing. For that reason, Marina failed to proffer substantial

evidence pointing to a breach by Bama Reinforcing, and the trial court's

judgment should therefore be affirmed.

Wise and Sellers, JJ., concur.

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