
    WAL-MART STORES, INC. v. Hugh LANGHAM.
    2991020.
    Court of Civil Appeals of Alabama.
    March 16, 2001.
    
      C. William Daniels, Jr., David P. York, and Gabrielle Elaine Reeves of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for appellant.
    J. David Greene and Tommy W. Patterson of Greene & Phillips, L.L.C., Mobile, for appellee.
   THOMPSON, Judge.

Hugh Langham sued Wal-Mart Stores, Inc., alleging that Wal-Mart had negligently constructed a drainage system; that the negligent construction had caused his property to flood; and that the flooding had damaged his residence and real property. The circuit court denied Wal-Mart’s motion for a summary judgment, and the case was tried to a jury. At the close of Langham’s evidence, Wal-Mart moved for a judgment as a matter of law; at the conclusion of the presentation of all of the evidence, Wal-Mart renewed its motion. The jury returned a verdict in favor of Langham for $10,000, and the trial court entered a judgment on that verdict. Following the entry of the judgment, Wal-Mart again moved for a judgment as a matter of law, or, in the alternative, a new trial. The trial court denied the motion; this appeal followed.

Because we conclude that the trial court erred in denying Wal-Mart’s motion for a judgment as a matter of law at the conclusion of the presentation of Langham’s evidence, we reverse and remand.

In April 1998, Langham’s property flooded on two separate occasions; each flood followed a torrential rainstorm. Langham’s residence was located on the parcel of land with the lowest elevation in the area. At the time of the flooding, a new Wal-Mart store was being constructed approximately one-quarter mile from Langham’s property. In January 1999, Langham sued Wal-Mart in the district court, alleging that Wal-Mart had negligently and/or wantonly constructed its facility and had done so in such a way as to cause run-off water to flood his property. The district court entered a judgment in favor of Wal-Mart; Langham appealed to the circuit court.

On appeal to the circuit court, the case was tried to a jury, on April 11, 2000. Langham testified that he had lived in his home for 40 years and had never experienced a flooding problem before these incidents. Langham testified that the two rainstorms that caused his home to flood had produced rain of 9 and 11 inches, respectively. He explained that a drainage ditch, located behind his property, had overflowed during these two rainfalls, causing water to flood his home. Lang-ham testified that he had seen water overflowing from the “catch pond” at the Wal-Mart construction site. Langham stated that he had been financially unable to make the necessary repairs to his water-damaged residence, and that he had sold his property, in its damaged condition, for $25,000.

Richard Crist, the assistant superintendent of public works for Mobile County, testified as Langham’s expert. Crist testified that all of the construction plans for the new Wal-Mart facility had been approved by the county engineers. Neither Langham nor Crist testified that Wal-Mart’s retention pond was inadequate— they stated only that they had seen it overflow. Crist testified that it was Wal-Mart’s failure to install a culvert pipe to divert water away from the construction site to the ditch behind Langham’s property that had caused Langham’s property to flood. However, Crist also testified that, had the culvert pipe he recommended been installed, he could not say it would have prevented the flooding and resulting damage.

Upon review of a trial court’s denial of a motion for a judgment as a matter of law (“JML”), the reviewing court applies the same standard “used by the trial court in granting or denying the motion[ ] initially.” Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988). Stated differently, a defendant’s motion for a JML is properly denied only when, viewing the evidence in a light most favorable to the nonmovant, the court concludes that the plaintiff has presented substantial evidence to support each element of the plaintiffs claim. Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998).

Langham sought to recover from Wal-Mart based on theories of negligence and wantonness. In order to recover under either of these theories, one must present substantial evidence tending to show that the conduct complained of, whether negligent or wanton, produced the harm in question. See, e.g., Brushwitz v. Ezell, 757 So.2d 423 (Ala.2000), and Ellis v. Alabama Power Co., 431 So.2d 1242 (Ala.1983). The dissent considers, as sufficient evidence to submit the negligence and wantonness claims to the jury, Langham’s testimony that his residence had not flooded in 40 years and his expert’s testimony that Wal-Mart’s initial failure to install the culvert pipe had caused the flooding. We disagree. No evidence in the record indicates that Wal-Mart negligently or wantonly constructed its drainage system. Crist, the expert who testified on Lang-ham’s behalf, stated that he could not say whether Langham’s property would have flooded had there been no construction, and he did not know whether the installation of the culvert pipe he recommended would have prevented the flooding. The evidence does not indicate that such torrential rainfalls had occurred in this area before. Absent a showing of proximate causation, Langham failed to establish a prima facie case of negligence or wantonness. Ellis, 431 So.2d at 1246.

Upon hearing Wal-Mart’s motion for a judgment as a matter of law, the trial court denied the motion, commenting, “Well, there has been no direct testimony that, but for the new construction, the house would not have flooded .... But I think that’s a reasonable inference, given the testimony, that the house had never flooded before the increase of the surface water drainage .... ” We disagree. The testimony presented on the issue of causation affords nothing more than mere speculation, and our supreme court has held that speculation is insufficient to warrant submitting a claim to a jury. Peoples v. Town of Ragland, 583 So.2d 221 (Ala.1991).

The trial court erred in denying Wal-Mart’s motion, made at the conclusion of Langham’s presentation of evidence, for a judgment as a matter of law. We therefore reverse the judgment based on the jury’s verdict and remand the case for the court to enter a judgment as a matter of law in favor of Wal-Mart on Langham’s claims alleging negligence or wantonness.

REVERSED AND REMANDED.

CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

YATES, P.J., dissents.

MURDOCK, Judge,

concurring in the result.

The flooding in this case occurred after torrential rainfalls of 9 inches and 11 inches. The evidence in the record is insufficient to support the conclusion that the drainage system constructed by Wal-Mart was constructed or maintained without reasonable care.

Langham’s own expert, Crist, testified that he was not aware of any engineering or design standard that Wal-Mart had violated. He further testified that he was not aware of any building codes or county codes that were violated. Further, he specifically testified that he could not state whether the retention ponds were adequate. Crist did testify that the design of the drainage system should have included a pipe to the ditch that ran south of Lang-ham’s house. This is the same ditch from which water overflowed into Langham’s house, however, and Crist could not say whether the inclusion of such a pipe in the design and construction of the drainage system would have prevented the flooding in question. The record does not contain substantial competent evidence indicating that the drainage system constructed by Wal-Mart was not reasonably designed, constructed, or maintained. I therefore concur in the result.

YATES, Presiding Judge,

dissenting.

I respectfully dissent. Judge Thompson’s opinion states that the “testimony presented on the issue of causation affords nothing more than mere speculation.” 794 So.2d at 1172. I disagree. Langham testified that he had lived at his residence since 1958, over 40 years, and that it had never flooded before Wal-Mart began its construction. He stated that following two heavy rainfalls (rainfalls of 9 inches and 11 inches), he sustained severe water damage to his property. He explained that a drainage ditch was located behind his property and that it overflowed, allowing at least six inches of water to enter his residence, and that he had seen the water coming from the Wal-Mart “catch pond.” Crist, Langham’s expert, stated, in part:

“Wal-Mart had a retention pond, and I can’t state whether it was adequate or not, but it did overflow. It was not capable of handling the rainfall in that occurrence, and they came back at a later date and instead of releasing the water to the east into a drainage area, they came to the County and requested that they be allowed to put the drain pipe down Noble Lane to the ditch behind Mr. Langham’s house as a retrofit for the discharge from their retention pond.”

Crist stated that although he was not aware of any engineering or design standards that had been violated, he believed “Wal-Mart’s failure to initially install a culvert pipe that would divert water away from the property to the ditch behind 5251 Noble Lane caused the flooding.” Based on this testimony, the trial court correctly advised the jury that once Wal-Mart undertook to construct a drainage system, it had a duty to maintain that system with reasonable care. Further, our supreme court, in Peters v. Calhoun County Commission, 669 So.2d 847 (Ala.1995), stated:

“ ‘But the fact that an ultimate jury verdict in the plaintiffs favor might involve some speculation or conjecture as to what caused [plaintiffs] fall is not dispositive of this case. There is nothing wrong with a case built around sufficient circumstantial evidence, provided the circumstances are proved and not merely presumed. Any judgment in such a case must necessarily involve some amount of speculation or inference by the jury. There is conjecture only where there are two or more plausible explanations of causation, and the evidence does not logically point to one any. more than the other. Where the evidence does logically point in one direction more than another, then a jury can reasonably infer that things occurred in that way.’ ”

Id. at 851-852 (quoting Folmar v. Montgomery Fair Co., 293 Ala. 686, 690, 309 So.2d 818, 821 (1975)).

It is not the province of this court to reweigh the evidence presented at trial. “Further, ‘A strong presumption of correctness attaches to a jury verdict in Alabama, if the verdict passes the “sufficiency test” presented by motions for directed verdict and JNOY. This presumption of correctness is further strengthened by a trial court’s denial of a motion for new trial.’ ” Wal-Mart Stores, Inc. v. Tuck, 671 So.2d 101, 105 (Ala.Civ.App.1995), quoting City of Gulf Shores v. Harbert Int’l, 608 So.2d 348, 356 (Ala.1992) (citations omitted). “Because the jury returned a verdict for [the plaintiff], any disputed questions of fact must be resolved in [his] favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict.” Crown Life Ins. Co. v. Smith, 657 So.2d at 821, 822 (Ala.1994). In reviewing a judgment based on a jury verdict, this court must review the record in a light most favorable to the appellee. Id. In this case, the evidence included Langham’s testimony that for over 40 years his residence had not flooded; expert testimony that Wal-Mart’s initial failure to install a culvert pipe had caused the flooding; and evidence that Wal-Mart undertook to build the drainage system. “Mere speculation”? I think not. I would affirm the judgment based on the jury verdict. See Water Works & Sewer Bd. of Ardmore v. Wales, 533 So.2d 212 (Ala.1988); Carson v. City of Prichard, 709 So.2d 1199 (Ala.1998). 
      
      . The trial court did not instruct the jury on the doctrine of res ipsa loquitur, and Lang-ham does not contend that that doctrine applies in the present case. Therefore, we do not address the question whether that doctrine would apply to create liability on the part of Wal-Mart for the damage to Lang-ham’s property.
     