Alabama Litigation Lawyer & Attorney : Lightfoot Franklin & White : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

The plaintiff’s decedent was killed while repairing a forklift. The plaintiff sued the owner of the property where the repairs were made, in premises liability, and the forklift manufacturer, in products liability. The circuit court granted summary judgment for the defendants, and the plaintiff appealed.

The Supreme Court of Alabama first refused an invitation to dismiss the appeal outright. The defendants argued that the plaintiff’s brief violated appellate Rules 28(a)(7) and 28(a)(10) for failing to provide, respectively, an adequate statement of the relevant facts, and a full and supported argument. The state’s high court sketched the basic law under Rule 28(a)(10) on sufficient briefing, and found that the plaintiff had met the minimal requirements. Although the plaintiff’s brief did not “cite an abundance of legal authority,” it did “contain sufficient citations to . . . adequately frame the issues” presented.

Nevertheless, the plaintiff’s appeal was undone by spare citation. If “sufficient . . . [to] frame the issues,” the plaintiff’s brief still failed on critical points to cite law or evidence adequate to gain reversal.

On the premises claim, for example, the parties had disagreed over whether the dangerous condition of the forklift — from which various safety devices had been removed — was open and obvious. (If the danger was obvious, the plaintiff could not recover.) On this issue, the plaintiff’s brief was “devoid of any citations to portions of the record that would substantiate her claims.” She did point to the affidavit of an engineer, but this document “appear[ed] only as an exhibit to [her] appellate brief and not part of the record on appeal.” “[A]ttachments to briefs are not considered part of the record and therefore cannot be considered on appeal.” The affidavit thus provided no ground on which to reverse the trial court.

The products claim was disposed of similarly. Here, the plaintiff made the preliminary mistake of reversing the burden of proof. The defendant, she argued, had not shown that its forklift was not defective. The court quickly dismissed this. It was the plaintiff’s burden to marshal substantial proof of a defect. The defendants’ task, in seeking summary judgment, was only to “indicate where the nonmoving party’s case suffers an evidentiary failure.” The court further observed that the plaintiff’s brief “contain[ed] no citation to any relevant legal authority to support her [erroneous] contention” that the defendant must prove its product not defective. Finally, as proof of defect, the plaintiff had again cited the engineer’s affidavit attached to her brief. That document, the court repeated, was not part of the record.

The court thus affirmed the grant of summary judgment.