author: LYONS, Justice.

text:
    Teresa PRITCHETT v. ICN MEDICAL ALLIANCE, INC.
    1041702.
    Supreme Court of Alabama.
    March 10, 2006.

      W. Lee Pittman and Elisabeth French of Pittman, Hooks, Dutton, Kirby & Hel-iums, P.C., Birmingham, for appellant.
    H. Thomas Wells, Jr., and Katie Log-gins Vreeland of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.
   LYONS, Justice.

Teresa Pritchett appeals from a summary judgment in favor of ICN Medical Alliance, Inc. We affirm the judgment in part, reverse it in part, and remand.

I. Facts and Procedural History

On January 5, 2001, Dr. Thomas Rumley leased from ICN an “Nlite” laser device, which is a “Class IV” laser used in cosmetic surgery and designed to reduce the appearance of wrinkles on a patient’s skin. Dr. Rumley had never used an Nlite laser before he leased the laser from ICN. ICN sent one of its employees, Jeff Tisue, to provide technical advice to Dr. Rumley while he used the laser initially. ICN sent with the Nlite laser device two alternative forms of eye protection — goggles and a corneal shield — to be worn by patients during the laser procedure. Dr. Rumley performed the laser procedure on Pritch-ett using the Nlite laser device; Tisue was present during the procedure, which was intended to reduce the appearance of wrinkles around Pritchett’s eyes.

During the course of the procedure, Dr. Rumley determined that the goggles being worn by Pritchett as eye protection were, in his opinion, either not providing sufficient protection or were obstructing his performance of the procedure. Tisue recommended to Dr. Rumley that he could use wet gauze instead of the protective devices ICN had provided with the laser device. Dr. Rumley agreed and used wet gauze, along with either his finger or a tongue depressor, to shield Pritchett’s eyes from the laser beam. After the procedure, Pritchett discovered that her right eye had been damaged. Pritchett’s expert witness testified in deposition that Pritchett’s injury was consistent with the penetration of her eye by a laser beam.

Pritchett sued ICN and Dr. Rumley. As to ICN, Pritchett alleged, among other things, that ICN was vicariously liable for Tisue’s negligence in recommending the use of wet gauze instead of the eye protection provided with the Nlite laser device and that ICN had negligently and wantonly failed to properly train and supervise Tisue. As to Dr. Rumley, Pritchett alleged medical malpractice.

Dr. Rumley moved for a summary judgment on Pritchett’s medical-malpractice claim, and ICN moved for a summary judgment on Pritchett’s claims that it was vicariously liable for Tisue’s actions and that it had negligently and wantonly failed to properly train and supervise Tisue. Pritchett informed the trial court that she would not contest Dr. Rumley’s motion, but she did contest ICN’s. Based on briefs and oral arguments, the trial court granted ICN’s motion. Subsequently, the trial court granted Dr. Rumley’s motion, stating: “Plaintiff having conceded [the] same.” The trial court certified its summary judgment for ICN as final under Rule 54(b), Ala. R. Civ. P. Pritchett appealed.

II. Standard of Revieio

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala.R.Civ.P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

III. Analysis

A. Respondeat Superior

i.

ICN does not dispute that when Tisue suggested using wet gauze instead of the goggles or corneal shield provided by ICN with the Nlite laser device, Tisue was acting within the line and scope of his employment with ICN. Therefore, Pritch-ett contends, if she presented substantial evidence indicating that Tisue committed tortious acts that proximately caused her injury, ICN can be held liable. See generally Ex parte Wild Wild West Soc. Club, Inc., 806 So.2d 1235, 1241 (Ala.2001) (“Under a theory of respondeat superior, a principal can be held liable for a tort committed by his agent only if the agent commits the tort while working within the line and scope of his employment.”).

In support of the summary judgment in its favor, ICN relies on the fact that Pritchett failed to contest Dr. Rum-ley’s summary-judgment motion. ICN points out that Dr. Rumley submitted with his motion an affidavit in which he stated (a) that he did not breach the standard of care applicable to plastic surgeons in the local and national community and (b) that his actions did not cause Pritchett’s injury. ICN contends that, because Pritchett did not contest Dr. Rumley’s summary-judgment motion, all of the allegations of Dr. Rumley’s affidavit must be taken as uncon-troverted. ICN cites Harold Brown Builders, Inc. v. Jordan Co., 401 So.2d 36, 38 (Ala.1981), in which this Court stated:

“Although an adverse party is not required to respond to a motion for summary judgment, this court has noted failure to do so may be perilous for the adverse party. Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). By defendant’s failure to respond to the motion, the trial court had no alternative but to consider the evidence presented by the moving party as uncontroverted.”

In Harold Brown Builders, this Court held that, because the nonmoving party failed to contest the summary-judgment motion, the trial court had to consider as uncontroverted the evidence presented by the summary-judgment movant. But the Court in Harold Brown Builders was speaking in the context of the trial court’s consideration of a single summary-judgment motion that was before it. The Court there was not considering the effect of the nonmovant’s failure to contest one defendant’s summary-judgment motion on the separate motion for a summary judgment filed by a codefendant, and we have found no Alabama cases addressing that particular issue.

Assuming that the failure to contest one defendant’s summary-judgment motion can ever be considered in determining whether a plaintiff conceded an element of a claim against another defendant, we must determine what Pritchett actually conceded. In response to Dr. Rumley’s motion, Pritchett sent the trial court a letter stating only: “Dr. Rumley has recently filed a Motion for Summary Judgment. The plaintiff has no opposition. Thank you for your attention in this matter.” Taken alone, this relatively broad statement might be considered a concession that Dr. Rumley did not breach the standard of care and that his use of wet gauze as eye protection, instead of the goggles or corneal shield provided with the laser device, did not cause Pritchett’s injury. A logical progression from the foregoing supposition would lead to the conclusion that, if using wet gauze instead of the provided eye protection was not a breach of the standard of care because wet gauze is appropriate eye protection when a laser beam is being used, then Tisue cannot be said to have breached the standard of care by suggesting that form of eye protection be used. It is also logical to conclude that, if Dr. Rumley’s use of wet gauze was not the actual cause of Pritchett’s injury, then neither was Tisue’s suggestion that Dr. Rumley use wet gauze to protect Pritch-ett’s eyes during the procedure.

However, in response to ICN’s motion for a summary judgment, Pritchett argued that she had presented evidence indicating that wet gauze was not proper eye protection when a laser beam is being used. She also argued that she had presented sufficient evidence indicating that the use of wet gauze instead of goggles or a corneal shield caused her injury. Indeed, Pritch-ett’s concession of Dr. Rumley’s motion is consistent with another supposition: that Dr. Rumley’s acquiescence in Tisue’s recommendation that he could use wet gauze instead of the protective devices provided with the laser device did not breach the standard of care applicable to Dr. Rumley, who was not an expert on the operation of the Nlite laser device, as was Tisue. Consistent with the foregoing interpretation of her concession, Pritchett states in her reply brief: “Pritchett’s decision not to secure a qualified medical standard-of-care expert to challenge Dr. Rumley’s self-assessment of his compliance with the applicable standard of care for a board-certified plastic surgeon provided no benefit to Jeff Tisue or ICN.” In light of Pritchett’s arguments below in opposition to ICN’s motion for a summary judgment and the ambiguity of the scope of the concession as to Dr. Rumley’s motion, we find it unreasonable to conclude that Pritchett by indicating she was not opposed to Dr. Rumley’s summary-judgment motion conceded that Ti-sue’s recommendation of the use of wet gauze was appropriate or that Dr. Rum-ley’s actions pursuant to that recommendation did not cause her injury.

ii.

Unless Tisue owed a duty to Pritchett to provide accurate information to Dr. Rumley regarding the proper eye protection to be used during the cosmetic procedure involving the Nlite laser device, ICN cannot be held liable for Tisue’s conduct.

“In Alabama, the existence of a duty is a strictly legal question to be determined by the court. Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833 (Ala.2003); Ex parte Farmers Exch. Bank, 783 So.2d 24, 27 (Ala.2000). See also State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834 (Ala.1998). The existence of a duty is determined by a number of factors, including ‘(1) the nature of the defendant’s activity; (2) the relationship between the parties; and (3) the type of injury or harm threatened.’ Morgan v. South Cent. Bell Tel. Co., 466 So.2d 107, 114 (Ala.1985). ‘ “ ‘The key factor is whether the injury was foreseeable by the defendant.’ ” ’ Key v. Compass Bank, Inc., 826 So.2d 159, 170 (Ala.Civ. App.2001) (quoting Patrick v. Union State Bank, 681 So.2d 1364, 1368 (Ala.1996)) (emphasis added).”

Taylor v. Smith, 892 So.2d 887, 891-92 (Ala.2004). But see Garner v. Covington County, 624 So.2d 1346, 1350 (Ala.1993) (“Although the existence vel non of a duty is ordinarily a question of law for the court, it is not error to submit the question to the jury if the factual basis for the question is in sufficient dispute: to allow the trial court to determine such questions would undermine the traditional factfind-ing function of the jury.”). Pritchett points out that Tisue testified in deposition that ICN was responsible for his safety training regarding the Nlite laser device and that ICN trained Tisue to be in charge of safety during procedures involving the laser device. Dr. Rumley testified in deposition that he thought Tisue was “a safety person with the laser.” ICN’s literature states that “[providing eyeshields are being used, [there is] no issue of treating close to the eye” (emphasis added), that “[t]he single most important issue for both patient and medical personnel during a laser procedure is eye protection,” that “[a] Class TV laser ... should never be viewed directly or as a spectral or diffuse (scattered) reflection by the unprotected eye,” and that “Class IV lasers will do permanent and immediate damage.” Because “[t]he key factor [in establishing a duty] is whether the injury was foreseeable by the defendant,” we conclude that Tisue owed a duty to Pritchett to provide adequate information to Dr. Rumley regarding eye protection during the procedure. Smitherman v. McCafferty, 622 So.2d 322, 324 (Ala.1993).

“[Questions regarding breach of that duty ... and proximate cause are ordinarily questions of fact for the jury.” Sungas, Inc. v. Perry, 450 So.2d 1085, 1089 (Ala.1984), overruled on other grounds by Garner v. Covington County, 624 So.2d 1346 (Ala.1993). In support of its contention that Tisue had breached no duty to Pritch-ett, ICN appears to contend that Pritchett conceded as much by failing to contest Dr. Rumley’s summary-judgment motion, a contention with which we have already dealt. ICN also appears to argue in the alternative that the allegation in Dr. Rum-ley’s affidavit that he breached no duty is sufficient to shift the burden to Pritchett as the nonmovant, a burden ICN contends she has not met.

Pritchett points out that, although Tisue testified in deposition that he “knew” that gauze blocks out a laser beam in the same manner as do goggles or a corneal shield, he could not cite any ICN literature or other authority specifically so providing. He claimed that he got the idea that gauze would work as well as goggles or a corneal shield from the American National Standards Institute (“ANSI”), but again he could not cite a specific ANSI standard indicating that gauze could be used as effective eye protection with a Class IV laser like the Nlite laser device. Dr. Matthew Goren, Pritchett’s expert witness, testified in deposition that he could not “imagine a circumstance where wet gauze would be appropriate eye protection from a class [IV] laser.” Considering the record in the light most favorable to Pritchett, which we must do in deciding ICN’s summary-judgment motion, we conclude that Pritchett has presented substantial evidence indicating that, by suggesting that Dr. Rumley use wet gauze instead of the goggles or corneal shield provided with the Nlite laser device, Tisue breached the duty he owed Pritchett to properly advise Dr. Rumley as to appropriate eye protection during the procedure.

As to causation, ICN again relies mainly on Pritchett’s failure to contest Dr. Rumley’s summary-judgment motion, a reliance we have rejected. In addition, ICN appears to imply throughout its brief that Dr. Rumley’s acceptance of Tisue’s advice constituted a superseding intervening act that broke the chain of causation between Tisue’s suggestion and Pritchett’s injury.

“ ‘ “The proximate cause of an injury is that cause which, in the natural and 'probable sequence of events, and without the intervention or coming in of some new or independent cause, produces the injury, and without which the injury would not have occurred.” ’ Hicks v. Vulcan Eng’g Co., 749 So.2d 417, 424 (Ala.1999)(quoting trial court’s jury charge). ‘[I]f a new, independent act breaks the chain of causation, it supersedes the original act, which thus is no longer the proximate cause of the injury.’ Riojas v. Grant County Pub. Util. Dist., 117 Wash.App. 694, 697, 72 P.3d 1093, 1095 (2003). ‘[A]n [act] is superseding only if it is unforeseeable. A foreseeable intervening [act] does not break the causal relationship betiveen the defendants’ actions and the plaintiffs’ injuries.’ Kelly v. M. Trigg Enters., Inc., 605 So.2d 1185, 1190 (Ala.1992).”

Alabama Power Co. v. Moore, 899 So.2d 975, 979 (Ala.2004) (some emphasis added).

Dr. Rumley testified in deposition that he thought of Tisue as “a safety person.” He also testified that Tisue “suggested that [wet gauze] would be adequate eye protection” during the procedure he was performing on Pritchett and that he understood Tisue’s suggestion to be an indication that the use of wet gauze was an adequate method of protecting a patient’s eyes during a procedure in which a laser beam is used. Pritchett testified that, after she expressed concern over the adequacy of wet gauze, Tisue responded that “it would be fine, that [Pritchett] would be protected.” Pritchett testified that she asked Tisue if he was sure that she did not need the goggles and that Tisue responded, “No, you’ll be fine.”

Pritchett testified in deposition that, during the procedure, after the goggles were removed, she could see “a bright light.” Dr. Goren stated in his affidavit that, “more likely than not, the laser damaged Ms. Pritchett’s right eye, and probably caused her vision problems, including damage to her macula.” He testified in deposition that the retinal pigment epithelium in Pritchett’s eye was probably caused by a laser beam penetrating her eye. Other than Dr. Rumley’s affidavit, ICN presented no expert testimony to the effect that Pritchett’s injury was caused by something other than a laser beam.

Considering the entire record in the light most favorable to Pritchett, we conclude that she presented substantial evidence indicating that Tisue’s breach of his duty proximately caused her injury and that Dr. Rumley’s acceptance of Tisue’s advice that he use wet gauze — a foreseeable event in light of Tisue’s duties and Dr. Rumley’s relative inexperience with the Nlite laser device — did not constitute an intervening cause. Accordingly, we hold that the trial court erred in entering a summary judgment for ICN on Pritchett’s claim against ICN based on Tisue’s negligence.

B. Negligent Training and/or Supervision

The parties agree that the following principles apply to Pritchett’s claims of negligent training and/or supervision:

“In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care.”

Thompson v. Havard, 285 Ala. 718, 723, 235 So.2d 853, 858 (1970). See generally, Zielke v. AmSouth Bank, N.A., 703 So.2d 354, 357-58 n. 1 (Ala.Civ.App.1996) (“After reviewing Alabama caselaw, we see no distinction between claims of wrongful supervision and claims of wrongful training.”). Pritchett contends that Tisue had a “history of recommending the use of wet gauze as appropriate patient eye-protection.” (Pritchett’s brief at 37.) In her statement of facts, Pritchett points out that, in deposition, Dr. Rumley testified:

“And I told Teresa [Pritchett] that— well, Jeff Tisue suggested that we use a wet gauze, which is a medical — white medical gauze. I can’t describe it any better. It was moistened in saline. And he suggested this would work and that they used it frequently around the eye because commonly these hard goggles didn’t fit that well, particularly when you are working close to the eye.”

(Emphasis added.) The following occurred during Tisue’s deposition:

“Q. [By Pritchett’s attorney:] Wet gauze, is that something that you typically suggested that physicians utilize for the patient’s eye safety when the doctor is working around the patient’s eye?
“A. [By Tisue:] It’s frequently used.
“Q. [By ICN’s attorney:] Was the January 5, 2001 procedure involving [Pritch-ett], was that the first time that you had used the Nlite with a physician in their office?
“A. No.
“Q. How many times had you done that prior to that time?
“A. Oh, 30, 10.
“Q. Had you used wet gauze in any of those previous procedures—
“A. Sure.
“Q. As an eye protectant? Are you aware of any complaints of eye damage involving any of those procedures?
“A. I know of none.”

(Emphasis added.)

In a case dealing with the alleged negligent entrustment of an automobile, in which the issue was whether the entrusted driver was incompetent, this Court said: “Negligence is not synonymous with incompetency. The most competent may be negligent. Alabama City, G. & A. Ry. Co. v. Bessiere, 190 Ala. 59, 66 So. 805 [(1914)]; McGowin v. Howard, 246 Ala. 553, 21 So.2d 683 [(1945)]. But one who is habitually negligent may on that account be incompetent.” McGowin v. Howard, 251 Ala. 204, 208, 36 So.2d 323, 325 (1948) (emphasis added). In light of the evidence indicating Tisue’s role as a “safety person,” ICN’s awareness of the safety issues involved with the use of the Nlite laser device, and the absence of any literature from ICN condoning the use of wet gauze as a protective device for the eyes during a procedure using the Nlite laser device, we conclude that Pritchett has presented substantial evidence indicating that, had ICN exercised due and proper diligence in either training or supervising Tisue, it would have learned of Tisue’s practice on possibly 30 or 40 occasions of suggesting the use of wet gauze in lieu of the goggles or corneal shield provided by ICN with the laser device, contrary to ICN’s instructions. “Fair-minded persons in the exercise of impartial judgment [could] reasonably infer” as much. West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Accordingly, we hold that the trial court erred in entering a summary judgment for ICN on Pritchett’s negligent-training and/or supervision claim.

C. Wanton Training and/or Supervision

“ ‘Wantonness’ is statutorily defined as ‘[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.’ Ala.Code 1975, § 6-ll-20(b)(3). ‘Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.”

Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998). Pritchett has not met her burden of presenting substantial evidence indicating that ICN recklessly or consciously disregarded the safety of others in that ICN knew that the use of wet gauze during the procedure using the Nlite laser device, in lieu of the goggles or corneal shield it provided, would probably result in injury to patients. She has not presented any evidence indicating that other patients had been injured by the use of wet gauze during a similar procedure or otherwise indicating that ICN was aware that such an injury would probably occur. Therefore, the trial court’s summary judgment for ICN on Pritchett’s wanton-training and/or supervision claim was proper and is affirmed.

IV. Conclusion

The summary judgment for ICN is affirmed as to Pritchett’s claim that ICN wantonly trained and/or supervised Tisue. As to Pritchett’s claim alleging that ICN negligently trained and/or supervised Ti-sue and her claim alleging that ICN is vicariously liable for Tisue’s acts, the summary judgment for ICN is reversed. The case is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WOODALL, SMITH, and PARKER, JJ., concur.

NABERS, C.J., concurs in the result.

      . ICN points out that, in his deposition, Dr. Goren made multiple references to the procedure in question being performed on a patient’s eyelids. According to ICN, because the procedure was performed not on her eyelids, but around Pritchett’s eyes, Dr. Goren's deposition testimony evidences a fundamental misunderstanding of the procedure Dr. Rumley was performing. However, we fail to see how this contention negates Dr. Goren’s opinion that he could not imagine any circumstance in which wet gauze would be appropriate eye protection from a Class IV laser.

      . However, we note that, at one point in its brief, ICN states that "there was no prior negligence or subsequent medical negligence.’’ In any event, we conclude that the evidence at this point does not support a summary judgment based on intervening cause.

      . ICN contends that Pritchett claimed to have seen the bright light only when Dr. Rumley was operating on her left eye, while her right eye is the eye that was injured. While that contention may affect the weight a jury might assign to the evidence, it does not negate the question of fact created by the evidence.

      . Again, we note that ICN contends that Dr. Goren did not understand the specifics of the procedure that Dr. Rumley actually performed, but we fail to see how ICN’s contention negates Dr. Goren’s conclusion that Pritchett’s eye injury was probably caused by a laser beam penetrating it.

      . ICN implies throughout its brief that Dr. Rumley’s modification of Tisue's advice — using either his finger or a tongue depressor to hold the wet gauze in place — has legal significance, although ICN does not explain precisely what that significance is. We conclude that there exists a question of fact as to whether Dr. Rumley’s so-called modification of Tisue's advice was the actual cause of Pritchett’s injury.

      .Throughout her brief, Pritchett refers to Ti-sue's “misconduct” as "wrongful” and "tor-tious.” She does not specify whether she makes a negligence claim only, or a wantonness one as well, although she refers to the elements of a negligence claim.
      “ 'Wantonness' is statutorily defined as '[cjonduct which is carried on with a reckless or conscious disregard of the rights or safety of others.' Ala.Code 1975, § 6 — 11— 20(b)(3). 'Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.”

        Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998). In her reply brief, Pritchett states that she "must acknowledge that Jeff Tisue believed, and apparently continues to believe, that wet gauze is a 'safe and adequate means of protecting [a patient’s] eyes during the Nlite treatment.' " Accordingly, we conclude that Pritchett has conceded that she has not presented substantial evidence indicating wantonness on the part of Tisue.


source: Caselaw Access Project

author: SEE, Justice. HARWOOD, Justice

license: Public Domain

text:
    ALABAMA STATE BAR v. Sherryl Snodgrass CAFFEY Sherryl Snodgrass Caffey v. Alabama State Bar.
    1040527 and 1040637.
    Supreme Court of Alabama.
    March 10, 2006.

      J. Anthony McLain, gen. counsel, and Robert E. Lusk, Jr., asst. gen. counsel, Alabama State Bar, for appellant/cross-appellee Alabama State Bar.
    Sherryl Snodgrass Caffey, pro se.
   SEE, Justice.

The Alabama State Bar appeals from an order of the Board of Disciplinary Appeals of the Alabama State Bar (“the Board of Appeals”) reversing a summary judgment entered by the Disciplinary Board of the Alabama State Bar against Sherryl Snod-grass Caffey, finding that she had violated the Alabama Rules of Professional Conduct and remanding the case for further proceedings before the Disciplinary Board; Caffey cross-appeals. We affirm.

Facts and Procedural History

Caffey was admitted to the Alabama State Bar (“State Bar”) in September 1989. On March 24, 2000, the Limestone Circuit Court declared a mistrial in a criminal case in which Caffey represented the defendant. After the trial court declared a mistrial, the judge found Caffey to be in contempt of court. The contempt order reads, in part:

The trial court sentenced Caffey to five days in the Limestone County jail and imposed a fine of $100. Caffey appealed the contempt order to the Court of Criminal Appeals; that court affirmed the trial court’s order without an opinion. Caffey v. State (No. CR-99-1304), 814 So.2d 1017 (Ala.Crim.App.2000) (table). Caffey petitioned this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals. This Court denied her petition. Ex parte Caffey (No. 1990573), 787 So.2d 724 (Ala.2000) (table).

“It is the Order of this Court that the defense attorney in the above-styled matter, ... Caffey, has continued to conduct herself in such a manner before this Court that her actions constitute a clear contempt of this Court. It is the findings of the undersigned that ... Caffey has been disrespectful and contemptuous in her manner toward the Court and before a duly impaneled jury in such a way as to diminish and impair the respect due to judicial tribunals and further to interrupt the due course of this trial. The actions of ... Caffey have been committed in open court, in the presence of the Judge, and were observed in the court setting and transcribed by the Official Court Reporter.”

In April 2000, Brian Jones, the prosecuting attorney in the criminal case resulting in Caffey’s contempt charge, filed a grievance with the State Bar, reporting Caffey’s alleged professional misconduct during the trial. The State Bar assigned the grievance to the local grievance committee, the Huntsville-Madison County Bar Association grievance committee, for investigation pursuant to Rule 12(b), Ala. R. Disc. P. (“[a] local grievance committee ... shall have the right to investigate an allegation or complaint of misconduct”). In June 2002, after more than two years had passed and the local grievance committee had not completed its investigation, the General Counsel for the State Bar asked the local grievance committee to return Caffey’s file to the State Bar, pursuant to Rule 7(b), Ala. R. Disc. P. (“A local grievance committee shall make available any file of a complaint or investigation to the General Counsel [of the State Bar] within fourteen (14) days of receipt of a written request for such information by the General Counsel.”). On June 30, 2002, the local grievance committee returned Caffey’s file to the State Bar.

On May 1, 2003, the State Bar filed formal charges against Caffey with the Disciplinary Board of the State Bar alleging that Caffey had violated Rules 3.1(a), 3.2, 3.5(c), 8.4(a), 8.4(d), and 8.4(g) of the Alabama Rules of Professional Conduct. Caffey answered the formal charges, and the Disciplinary Board set the matter for a hearing.

The State Bar moved the Disciplinary Board for a summary judgment, pursuant to Rule 56, Ala. R. Civ. P. Caffey opposed the summary-judgment motion and, in support of her opposition, submitted affidavits and the entire trial transcript from the criminal trial in which she had been found guilty of contempt. The disciplinary hearing officer ordered Caffey “to specifically address whether a finding of criminal contempt affirmed by the Court of Criminal Appeals establishes a violation of the Rules of Professional Conduct alleged by the State Bar.” Caffey responded to the hearing officer’s order by filing a supplemental brief and a motion to dismiss the charges against her. Caffey argued in her supplemental brief that a finding of criminal contempt does not per se constitute a violation of the Alabama Rules of Professional Conduct.

On November 21, 2003, the parties orally argued their motions. On December 3, 2003, the hearing officer issued an order finding Caffey guilty of all charges and granting the State Bar’s summary-judgment motion. The hearing officer concluded that “there is no dispute as to any material fact that Caffey’s conduct violated the [Rjules of [Professional [Cjonduct relied upon by the State Bar and therefore the State Bar is entitled to a judgment as a matter of law.”

The Disciplinary Board held a hearing for the sole purpose of determining Caf-fey’s punishment. At that hearing, Caffey and the State Bar presented evidence of aggravating circumstances and mitigating circumstances. After the hearing, the Disciplinary Board entered a report and order suspending Caffey’s Alabama license to practice law for 45 days; the 45-day suspension was to convert to a 2-year period of probation after Caffey had served a 7-day suspension. As a condition of her probation, Caffey was also required to furnish an unconditional written apology to the Limestone Circuit Court judge who had presided over the criminal trial and, within six months, to participate in a course on professionalism approved by the State Bar.

Caffey appealed the Disciplinary Board’s decision to the Board of Appeals. The Board of Appeals reversed the Disciplinary Board’s summary judgment in favor of the State Bar and remanded the case for the Disciplinary Board to conduct a hearing to adjudicate the formal charges against Caffey and, if necessary, to assess punishment. The Board of Appeals stated that “[tjhe finality of the contempt order does not, however, per se equate to a violation of the Rules of Professional Responsibility made the basis of the formal charges.” The Board of Appeals further stated that “while Caffey can offer a defense regarding the elements of the formal charges, she is bound by, and cannot challenge, the final order finding her in contempt.” The State Bar appeals; Caffey cross-appeals.

Standard of Review

“[Ajll ... legal conclusions in the final order of the Board of Appeals present questions of law to us. This Court reviews questions of law de novo.” Tipler v. Alabama State Bar, 866 So.2d 1126, 1137 (Ala.2003).

Analysis

The Board of Appeals remanded Caffey’s case to the Disciplinary Board for a “full hearing.” Because we affirm the Board of Appeals’ decision, we pretermit discussion of Caffey’s arguments that the Disciplinary Board violated her due-process rights in the first proceeding. We address Caffey’s arguments that the Board of Appeals acted improperly in remanding her case to the Disciplinary Board and that the charges against her should be dismissed because the formal charges against her were filed more than three years after the initial grievance was filed. We also address the State Bar’s arguments (1) that in reversing the summary judgment that the Disciplinary Board had entered the Board of Appeals did not apply the correct standard of review and (2) that the Board of Appeals erred in holding that the judgment of contempt entered by the circuit court — a final judgment that is not subject to challenge before the Disciplinary Board — does not establish a per se violation of the Disciplinary Rules.

I.

The Board of Appeals remanded Caffey’s ease for a “full hearing” before the Disciplinary Board. It ordered that, “at the full hearing of [Caffey’s] formal charges before the [Disciplinary Board], Caffey will not be entitled to offer evidence, as the same would not be relevant to any issue, attempting to attack or challenge the contempt order.” Caffey argues that precluding her from relitigating the contempt finding on remand violates her due-process rights. We do not agree.

As noted earlier, Caffey appealed the contempt order issued against her by the Limestone Circuit Court, and the Court of Criminal Appeals affirmed that order. She received her due-process right to litigate the validity of the finding of contempt when she litigated that matter in court. The contempt order is binding, and Caffey is precluded from relitigating it. See Alabama State Bar v. Tifler, 904 So.2d 1237, 1241-42 (Ala.2004) (holding that when a lawyer was allowed to establish the circumstances under which his guilty plea was entered and the general nature of the events surrounding the charge against him, he was afforded a meaningful opportunity to be heard). The purpose of the “full hearing” before the Disciplinary Board on remand will not be to conduct a trial on the merits of the underlying contempt charge against Caf-fey; that has already occurred. Caffey will not be entitled to relitigate her contempt conviction.

II.

Caffey argues that the delay of the State Bar in formally charging her was excessive and without good cause and, therefore, that the charges against her should be dismissed. The pertinent facts indicate that Caffey was convicted of contempt in March 2000. In April 2000, Brian Jones, the prosecutor in the criminal case in which she was found in contempt, filed a grievance against Caffey with the State Bar. Pursuant to Rule 12(b), Ala. R. Disc. P., the State Bar assigned the grievance to the local grievance committee. When after two years the local grievance committee had not completed its investigation, the State Bar requested the return of Caffey’s file pursuant to Rule 7(b), Ala. R. Disc. P. Rule 7(b) provides:

“(b) Failure to Investigate. The failure of a local grievance committee to investigate a complaint or to recommend action against a lawyer shall in no event constitute a bar to the investigation of the complaint, to the recommendation of punishment, or to the prosecution of charges by the General Counsel of the Alabama State Bar against the lawyer for, or arising out of, the same facts. A local grievance committee shall make available any file of a complaint or investigation to the General Counsel within fourteen (14) days of receipt of a written request for such information by the General Counsel.”

In June 2002, the State Bar received the investigative file in Caffey’s case from the Huntsville-Madison County Bar Association grievance committee. In May 2003, the State Bar filed formal charges against Caffey. “Formal disciplinary proceedings before the Disciplinary Board must be instituted by the filing of formal charges within six (6) years from the accrual of the offense .... ” Rule 31, Ala. R. Disc. P. See also Asam v. Alabama State Bar, 675 So.2d 866, 877 (Ala.1996) (quoting Rule 31, Ala. R. Disc. P., and holding without merit Asam’s argument that the State Bar’s prosecution of her case was untimely because it had formally filed the charge four years and three months after the lawsuit upon which the charge was based). Because the State Bar filed formal charges against Caffey within the six-year limitation period specified in Rule 31, Ala. R. Disc. P., Caffey’s argument is unpersuasive.

III.

The State Bar argues that the Board of Appeals applied the wrong standard of review in reversing the Disciplinary Board’s summary judgment. The Board of Appeals concluded:

“The review is de novo, and this Board will apply the same standard as the disciplinary hearing officer in determining whether the evidence submitted in support of and in opposition to the motion created a genuine issue of material fact and whether the Bar was entitled to a judgment as a matter of law. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to present substantial evidence creating such an issue. Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ See Wright v. Wright, 654 So.2d 542 (Ala.1995).”

The State Bar argues that in reviewing the summary judgment entered by the Disciplinary Board the Board of Appeals should have applied the “clearly erroneous” standard provided in Rule 5.1(d), Ala. R. Disc. P. Rule 5.1(d) reads:

“(d) Scope and Standard of Review. All proceedings filed with the Board of Disciplinary Appeals shall be conducted as herein provided. When proceedings before the Board of Disciplinary Appeals are conducted, the Board of Disciplinary Appeals shall affirm the decision under review unless it determines that, based on the record as a whole, the findings of fact are clearly erroneous or that the form or extent of the discipline imposed, when considered under the Alabama Standards for Imposing Lawyer Discipline, (1) bears no relation to the conduct, (2) is manifestly excessive or insufficient in relation to the needs and protection of the public, the profession, or the administration of justice, or (3) is arbitrary and capricious.... ”

The State Bar asserts that Rule 5.1 limits the power of the Board of Appeals and does not allow it to conduct a de novo review. This argument, however, is misplaced. “ ‘ “[T]he construction of rules of court are for the court which promulgated them.” ... “We start with the basic premise that words used in court rules must be given their plain meaning.” ’ ” Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 692 (Ala.2005) (quoting Southeastern Meats of Pelham, Inc. v. City of Birmingham, 895 So.2d 909, 913 (Ala.2004)). The plain language of Rule 5.1(d), Ala. R. Disc. P., provides that the “clearly erroneous” standard applies to findings of fact. Here, the Board of Appeals did not dispute the Disciplinary Board’s findings of fact; it disputed the Disciplinary Board’s conclusions of law. Therefore, the Board of Appeals did not err when it did not apply the “clearly erroneous” standard to a question of law.

IV.

The State Bar argues that “the trial court’s judgment finding Caffey guilty of direct contempt of court is conclusive evidence that establishes a per se violation of Rules 3.1(a), 3.2, 3.5(c), 4.4,[] 8.4(a), 8.4(d), and 8.4(g), [Ala. R. Prof. Cond.]” State Bar’s brief, p. 25. The Limestone Circuit Court had found Caffey guilty of contempt of court for being “disrespectful and contemptuous ... toward the Court ... in such a way as to diminish and impair the respect due to judicial tribunals and further to interrupt the due course of this trial.”

Pursuant to the Alabama Rules of Disciplinary Procedure, prior adjudications establish a lawyer’s misconduct for purposes of a disciplinary proceeding when a lawyer commits a serious crime. Caffey, however, was found guilty of contempt of court, which is not a crime. See Alabama State Bar v. Tipler, 904 So.2d at 1241 (“court’s imposition of civil or criminal contempt is not the equivalent of a conviction for a crime under Alabama law”). Thus, we do not find support for the State Bar’s argument that a trial court’s judgment of criminal contempt is conclusive evidence that establishes a per se violation of the Alabama Rules of Professional Conduct.

Conclusion

We reject Caffey’s argument that the charges against her should be dismissed because the State Bar did not formally charge her until more than three years after the initial grievance was filed against her. We hold that the Board of Appeals applied the correct standard of review and that the Board of Appeals correctly determined that a conviction for contempt does not constitute a per se violation of the Alabama Rules of Professional Conduct. We affirm the decision of the Board of Appeals reversing the Disciplinary Board’s summary judgment in favor of the State Bar and remanding of the case to the Disciplinary Board for a full hearing. We note that the Board of Appeals was correct in ordering that at the “full hearing” Caf-fey will not be entitled to relitigate the circuit court’s finding of contempt.

1040527 — AFFIRMED.

1040637 — AFFIRMED.

NABERS, C.J., and LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

HARWOOD, J., concurs in part and concurs in the result.

WOODALL, J., concurs in the result.

HARWOOD, Justice

(concurring in part and concurring in the result).

I concur in all portions of the opinion except Part IV under the heading “Analysis.” As to it, I concur in the result.

      . In the same letter, the State Bar asked the local grievance committee to return files for complaints that had been filed against three other local attorneys and had also been assigned to the local grievance committee for investigation more than two years earlier.

      . Rule 4(a)(1), Ala. R. Disc. P., provides:
      "The Board of Commissioners of the Alabama State Bar shall appoint six panels of six members each, each panel to be known as 'The Disciplinary Board of the Alabama State Bar.’ ... Each panel shall be composed of four persons who are Bar commissioners, one layperson, and the Disciplinary Hearing Officer appointed pursuant to Rule 4.2 ..."

      . The formal charges filed by the State Bar also asserted that Caffey had violated Rules 4.4 and 8.2. The State Bar later dismissed those charges.

      . Rule 3(b), Ala. R. Disc. P., provides that "[e]xcept as otherwise provided in these Rules, the Alabama Rules of Civil Procedure and the Alabama Rules of Appellate Procedure shall apply."

      . Caffey submitted her own affidavit and affidavits from Barbara Miller and Zelletta Wright. Miller, a member of the Huntsville-Madison County Bar Association, was a member of the local grievance committee that investigated the grievance against Caffey. The record indicates that Wright assisted Caffey in some capacity during the trial.

      . Caffey argues that the Disciplinary Board violated her due-process rights and the Alabama Rules of Disciplinary Procedure because it entered a summary judgment without holding a hearing.

      .Caffey also asserts that the State Bar's prosecution violated her constitutional rights to equal protection of the law and freedom of speech. Rule 28(a)(10), Ala. R.App. P., requires that argument in an appellant’s brief contain “the contentions of the appellan1/peti-tioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” The effect of a failure to comply with Rule 28(a)(10) is well established: " ' “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research. Rule 28(a)( [10]); Spradlin v. Birmingham Airport Authority, 613 So.2d 347 (Ala.1993).” ’ " FabArc Steel Supply, Inc, v. Composite Constr. Sys., Inc., 914 So.2d 344, 354 (Ala.2005) (quoting Ex parte Showers, 812 So.2d 277, 281 (Ala.2001) (quoting in turn City of Binningham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998))). Caffey fails to present any argument or authority in support of her claim that the State Bar violated her right to freedom of speech. In her equal-protection argument, which appears in her brief to this Court in part under the heading “Caffey Was Denied Freedom of Speech,” Caffey recites cases in which, she asserts, the attorneys were treated differently from the way she was treated in her contempt proceeding. However, Caffey fails to demonstrate how those cases are, similar to hers; moreover, her contempt proceeding and its appeal, not her appeal from the Disciplinary Board’s action, were the proper place for her to assert that claim. Accordingly, we decline to address Caffey’s arguments that the State Bar violated her equal-protection and freedom-of-speech rights.

      . In addition to the foregoing issues, Caffey argues on appeal that certain items critical to her defense to the State Bar's charges are not included in the record and that the absence of these items violates her right to due process. The items not in the record include page 417 from the transcript of the criminal trial (which is apparently missing), an audible copy of the recorded transcript, and a copy of an interview tape. She also challenges the Disciplinary Board's summary judgment in favor of the State Bar because, according to Caffey, the Disciplinary Board’s decision was “arbitrary, capricious, clearly erroneous, contrary to State and Federal Law, contrary to [the State Bar’s] rules and contrary to the weight of the evidence.” Caffey’s brief, p. 32. However, because she will have another hearing before the Disciplinary Board, we need not address these arguments. Because the State Bar will have another opportunity to argue for a more severe discipline, we likewise pretermit discussion of its assertion that this Court should increase Caffey’s discipline.

      . Caffey argues that by remanding the case the Board of Appeals exceeded its statutory authority. Specifically, Caffey argues that Rule 5.1(d), Ala. R. Disc. P., limits the Board of Appeals to affirming, reversing, or modifying rulings of the Disciplinary Board. Rule 5.1(d), however, does not limit the grant of plenary power to the Board of Appeals found in Rule 5.1(b). Rule 5.1(d) serves merely as instruction for the Board of Appeals to state specifically the reasons for its conclusions and the legal basis for affirming, reversing, or modifying an order of the Disciplinary Board. Accordingly, we cannot agree with Caffey that the Board of Appeals does not have the authority to remand a case to the Disciplinary Board for further proceedings.

      . Caffey also argues that the State Bar’s removal of her case from the local grievance committee was improper because, she says, the local grievance committee had not "failed to investigate” her case. However, Rule 7(b), Ala. R. Disc. P., does not limit the authority of the State Bar to request the return of a file of a lawyer referred to a local grievance committee for investigation only to those files the grievance committee has failed to investigate.

      . There was no pending litigation in this case, and the State Bar never deferred or abated its action against Caffey. Therefore, Rule 14, Ala. R. Disc. P., does not apply. Rule 14, Ala. R. Disc. P., provides: "Disciplinary proceedings shall not be deferred or abated because of substantial similarity to the material allegations of pending criminal or civil litigation involving the respondent, unless authorized by the Disciplinary Board, in its discretion, for good cause shown.”

      . As we noted in footnote 3, the State Bar dismissed the charge relating to Rule 4.4. The reference to Rule 4.4 in its brief is apparently inadvertent.

      . The State Bar also asserts that the summary judgment entered by the Disciplinary Board "was not clearly erroneous where there was no genuine dispute as to any material fact and the undisputed evidence established that Caffey [had violated the Alabama Rules of Professional Conduct].” State Bar's brief, p. 23. However, in its brief in support of this proposition, the State Bar argues that
      "the conduct and state of mind elements necessary to prove the violations of the Alabama Rules of Professional Conduct as found by the Disciplinary Board are subsumed in the judgment of direct criminal contempt, because by its very definition, it requires proof of purposeful, deliberate, or intentional conduct. In other words, the mental state necessary to prove a violation of Rules 3.1(a), 3.2, 3.5(c), 4.4[sic], 8.4(a), 8.4(d), and 8.4(g), [Ala. R. Prof. Cond.], is no greater than that required to sustain a judgment of direct criminal contempt. Therefore, the judgment finding Caffey guilty of direct criminal contempt supplied both the conduct and mental state elements necessary to support the Disciplinary Board’s summary judgment.”
      State Bar's brief, pp. 24-25. Thus, it appears that the State Bar is essentially relying on the judgment of contempt as sufficient to establish conclusively a violation of Rules 3.1(a), 3.2, 3.5(c), 8.4(a), 8.4(d), and 8.4(g).
      Even if we were to assume that the State Bar is not essentially relying on the judgment finding Caffey guilty of contempt, it has not met its burden to demonstrate the absence of a genuine issue of material fact as to state of mind (Rules 3.1(a) and 3.5(c)) and justification (Rule 3.2), which in this case are relevant to determining prejudice to the administration of justice (Rule 8.4(d)) and fitness to practice law (Rule 8.4(g)). Dennis v. Northcutt, 923 So.2d 275, 279-80 (Ala.2005) (" 'The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law.’ " (quoting McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992))).

      .Rule 22(a), Ala. R. Disc. P., provides, in relevant part:
      “(a) The Disciplinary Commission shall disbar or suspend a lawyer:

      "(2) If the lawyer's conviction for a 'serious crime,' as defined in Rule 8 of these Rules, has become final .... ”


author:
PER CURIAM.
      MURDOCK, Judge, PITTMAN, Judge,

text:
    Shamalita FRANKLIN et al. v. CITY OF ATHENS and CSX Transportation, Inc.
    2030606.
    Court of Civil Appeals of Alabama.
    June 30, 2005.
    Rehearing Denied Sept. 16, 2005.

      William D. Davis III of Davis & Associates, Huntsville, for appellants.
    Benjamin R. Rice of Spurrier, Rice & Hall, Huntsville, for appellee the City of Athens.
    Morris Wade Richardson and David W. Spurlock of Adams & Reese/Lange Simpson, LLP, Birmingham, for appellee CSX Transportation, Inc.
   PER CURIAM.

Shamalita Franklin, Daphne J. Johnson, Genny Ervin, and Florence Hanserd-Yar-borough (“the plaintiffs”) appeal from a summary judgment of the Limestone Circuit Court in favor of the City of Athens (“the City”) and CSX Transportation, Inc. (“CSX”).

On June 13, 2002, the plaintiffs filed a complaint in the trial court naming as defendants the City and CSX. The complaint asserted claims of negligence and wantonness based upon an alleged breach of duties to provide proper warning to the plaintiffs of a “dangerous condition,” ie., a “ditch” dug across Pryor Street in the City in front of a railroad crossing where the plaintiffs were involved in an incident while occupying a moving automobile that resulted in injury to them. The complaint also asserted claims of negligence and wantonness against CSX and the City based upon alleged breaches of a duty to maintain the roadway. The City and CSX filed answers asserting that the complaint failed to state a claim upon which relief could be granted, denying the pertinent allegations of the complaint, and asserting various affirmative defenses. In September and October 2003, the City and CSX filed summary-judgment motions; the plaintiffs then filed a response to both motions. On March 2, 2004, the trial court entered a summary judgment in favor of both the City and CSX. On April 1, 2004, the plaintiffs filed a notice of appeal. The Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The record reveals that during the first week of June 2000, CSX began upgrading crossings and replacing rails at certain railroad crossings located within the City, including a crossing located on Pryor Street. CSX coordinated street closings with the City and borrowed certain traffic-control devices from the City to block motorized progress across the streets that were to be affected by the railroad crossing maintenance. As repair work began at the Pryor Street crossing, CSX employees placed a row of orange and white traffic “barrels” and an “A-frame” or “sawhorse” painted barricade with an attached “ROAD CLOSED” sign at the intersection of Pryor Street and Marion Street; that intersection was located one block west of the railroad crossing. CSX also posted a second row of orange and white traffic “barrels” immediately in front of the actual crossing.

On the night of June 13, 2000, Franklin was operating an automobile and conveying Ervin to her home after they had visited one of Franklin’s relatives in a Huntsville hospital; Johnson and Han-serd-Yarborough were also passengers in Franklin’s automobile. Franklin, who was unfamiliar with the area, became lost while driving to Ervin’s home. Franklin subsequently turned the automobile onto Pryor Street, proceeding eastbound, and attempted to cross the railroad tracks while slowing down to approximately 10 to 15 miles per hour. As she did so, Franklin drove her vehicle off the asphalt and onto the ballast of the railroad bed. Franklin and her three passengers suffered injuries in the incident and were subsequently taken to a hospital emergency room; they were treated for soreness and bruising and were released.

Although the plaintiffs raise five issues on appeal, those issues focus upon two core questions: whether the trial court erred (1) in entering a summary judgment in favor of the City and (2) in entering a summary judgment in favor of CSX.

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. In determining, on a summary judgment motion, whether there is a genuine issue of material fact, the court must view the evidence in the light most favorable to the nonmoving party, resolving all reasonable doubts against the moving party. The burden is initially on the moving party to make a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. If it makes that showing, then the burden shifts to the nonmoving party to present evidence creating a material factual issue for resolution by a jury, so as to avoid the entry of a judgment. Hilliard, v. City of Huntsville Electric Utility Board, 599 So.2d 1108 (Ala.1992).”

Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 601 (Ala.1998).

We first address whether the trial court erred in granting the City’s summary-judgment motion. The plaintiffs contend that the City’s failure to maintain the area of roadway adjacent to the railroad crossing and the City’s failure to warn the plaintiffs that the roadway was closed at the time of the June 13, 2000, incident caused the plaintiffs to suffer physical injuries and to incur damages. In order to prevail on a negligence claim, a plaintiff must demonstrate the following elements: (1) that the defendant owes the plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach proximately caused the plaintiff to be injured. Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994). “The absence of any one of these [elements] renders a complaint bad or the evidence insufficient.” Calvert Fire Ins. Co. v. Green, 278 Ala. 673, 677, 180 So.2d 269, 273 (1965). The existence of a duty is a question of law to be decided by the court. Rose v. Miller & Co., 432 So.2d 1237, 1238 (Ala.1983).

The plaintiffs argue that the City had a duty to maintain the area of the roadway adjacent to the Pryor Street crossing because, they say, “governmental entities” have a common-law duty to keep their streets in a reasonably safe condition. See Elmore County Comm’n v. Rogona, 540 So.2d 720, 724 (Ala.1989). We agree.

In its motion for a summary judgment and its submissions in support thereof, the City essentially argues that it owed no duty to the plaintiffs and, therefore, that it was entitled to a judgment as a matter of law. The City asserts that it owed no duty because § 11^49-3, Ala.Code 1975, places a duty on CSX to maintain the railroad crossing. The City also argued that if it owed a duty it did not breach that duty because it was not involved in the repair of the intersection.

Merely because CSX owed a duty with respect to the safety of the motoring public does not mean that the City was relieved of its similar, coexisting duty. The negligence of two or more tort-feasors may combine to result in a single, indivisible injury for which both tortfea-sors are liable. See Springer v. Jefferson County, 595 So.2d 1381 (Ala.1992) The City failed to explain why the fact that CSX owed a duty operated to relieve the City of its duty. In this case, if there is substantial evidence indicating that CSX left a hazard in a public roadway overnight without adequate barriers or other warning devices, and that the City knew or should have known that that hazard was left in place by CSX without adequate barriers or other warning devices, the City owed a duty to warn the motoring public of that hazard. This duty is no different from that which the City would have had under § 11-47-190 to warn the public upon learning of a hazard created by any private citizen or other party in a public right-of-way after the hazard became known or should have became known to the City. See, e.g., Hale v. City of Tuscaloosa, 449 So.2d 1243 (Ala.1984); Isbell v. City of Huntsville, 295 Ala. 380, 330 So.2d 607 (1976) (explaining in the context of an action brought against both a railroad company and a city that, among other things, the predecessor of § 11-47-190 made the city liable for culpable neglect to remedy a dangerous condition in a city street negligently created or allowed to exist by a person or corporation not “related to” the city); Louisville & N.R. Co. v. Stanley, 232 Ala. 273, 274, 167 So. 745, 746 (1936) (stating, arguably in dictum, that the city has a primary duty to keep its streets in safe condition and that “the city cannot relieve itself of liability by a delegation of the authority to another”); City of Bessemer v. Brantley, 258 Ala. 675, 679, 65 So.2d 160, 163 (1953) (“It is the duty of the city to use reasonable care that no such danger shall remain in a public street where people have the right to travel, although it was caused by another.”); City of Mobile v. Reeves, 249 Ala. 488, 31 So.2d 688 (1947); City of Montgomery v. Moon, 208 Ala. 472, 473, 94 So. 337, 338 (1922) (recognizing, in the context of an action against both a railroad company and a city, that “ ‘[i]t is the duty of the municipality to guard and protect excavations made in the streets and sidewalks, or in such close proximity thereto as to endanger persons traveling on the street’ ”); City of Montgomery v. Ferguson, 207 Ala. 430, 433, 93 So. 4, 6-7 (1922) (holding, in the context of an action against both a railroad company and a city, that a jury charge stating that “[mjunicipal corporations are due the traveler upon their public thoroughfare the duty of keeping those thoroughfares to the full width thereof in a reasonably safe condition for travel by night as well as by day stated the general rule”); and Brobston v. Burgess, 290 Pa. 331, 337, 138 A. 849, 850 (1927) (“A similar duty to keep in proper repair rests on a municipality as to its streets, and the fact that another may also be sued does not prevent an action against it.”). Cf. Southern Ry. Co. v. Quillen, 250 Ala. 536, 541, 35 So.2d 193, 197 (1948) (“the railroad company and the city council could not by their cooperation exonerate either from the consequences of maintaining a nuisance in a public street”). See also City of Mobile v. George, 253 Ala. 591, 45 So.2d 778 (1950).

The City’s motion for a summary judgment was based on its position that it did not owe a duty to warn the motoring public of any hazard created by CSX’s performance of repairs. That position does not reflect Alabama law. Therefore, the City’s motion for a summary judgment is due to be denied.

We next address whether the trial court erred in entering a summary judgment in favor of CSX as to the plaintiffs’ claims of negligence in the maintenance of the railroad crossing and wantonness in failing to warn the plaintiffs of a dangerous condition. In its motion for a summary judgment and its submissions in support thereof, CSX argued that it was not liable for negligence because a third party moved the traffic-control devices its employees had left in place. CSX asserts that it is not responsible for a third party’s criminal conduct. Additionally, CSX also argued that it was not under a duty to use heavier barriers or to employ a 24-hour security guard. Although CSX is correct in its assertions, it was not entitled to a judgment as a matter of law.

It was undisputed that when Franklin approached the railroad crossing there were no traffic-control devices, neither barrels nor sawhorses, warning that the road was closed. However, CSX submitted affidavits establishing that CSX employees had placed traffic-control devices at the crossing at the end of the workday. The record does not indicate who may have moved the traffic-control devices. It is undisputed that the traffic-control devices were found in a parking lot roughly a block away from the crossing. Franklin testified that she heard a conversation between a police officer and an unidentified person. She testified upon deposition as follows:

“Q. And did [the investigating City police officer] say anything to you about the barricades or these orange barrels being out?
“A. No sir. Him and [another] guy were talking about somebody had moved the barricades. And they said the barricades were in a parking lot a mile away.”

CSX argues that it is not responsible for the criminal acts of a third party. Although that assertion is legally correct, when reviewing a motion for a summary judgment, this court reviews the record in a light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Sessions v. Espy, 854 So.2d 515, 521 (Ala.2002). In their response to CSX’s motion for summary judgment, the plaintiffs argued:

“CSX Transportation, Inc. suggests that it is not legally responsible in this case because of intervening acts of third parties. While this theory may be valid, it is completely unsupported by any basis in fact. The only slim shred of evidence upon which CSX’s contention stands is hearsay/][] overheard by Sha-malita D. Franklin, of a conversation between a policeman and ‘the other guy.’ This unidentified individual allegedly stated ‘somebody had moved the barricades.’
“It is interesting to note that not only is the speaker unidentified, but also the perpetrator of the allege[d] crime. Of course, CSX’s offerings are proof of absolutely nothing, much less a conjectured crime. One could just as easily infer, if one were to indulge in such sport, that both the ‘other guy’ speaking and the ‘somebody’ who moved the barricades were both CSX employees.”

Reviewing the record in a light most favorable to the plaintiffs and resolving all reasonable doubts against the movant, CSX, we believe that the trial court improperly entered a summary judgment in favor of CSX because a genuine issue of material fact exists. The undisputed fact that the barricades were not in place at 10:00 p.m. gives rise to the reasonable inference that CSX did not place the barricades at all. There is also testimony indicating that the traffic-control devices were in place at the end of the workday and that the traffic control devices were later found a block away. That testimony gives rise to the reasonable inference that someone moved the traffic-control devices after CSX placed them. Viewing the evidence in a light most favorable to the plaintiffs and given the reasonable inferences that can be drawn from the evidence regarding whether the traffic-control devices were in place, there exists a genuine issue of material fact, and CSX was, therefore, not entitled to a judgment as a matter of law.

CSX argued that it owed no duty to use heavier barricades and that it owed no duty to hire a 24-hour security guard. That may be true. However, CSX did have a duty to warn the plaintiffs of the dangerous condition of the roadway.

In light of the foregoing discussion, we hold that the trial court erred in entering a summary judgment for both the City and CSX. Therefore, we reverse the trial court’s judgment and remand the cause to the trial court.

REVERSED and REMANDED.

CRAWLEY, P.J., and MURDOCK, J., concur specially.

BRYAN, J., concurs in the result, without writing.

PITTMAN, J., dissents, with writing, which THOMPSON, J., joins.

MURDOCK, Judge,

concurring specially.

I concur in the main opinion. I write separately, in part, to comment on the statement in the dissent that the plaintiffs “have failed to demonstrate that the City breached a legal duty to repair and maintain the Pryor Street railroad crossing.” 938 So.2d at 958 (Pittman, J., dissenting). I do not read the main opinion as taking the position that the City breached a duty to repair or maintain that crossing. Rather, I read the main opinion as merely stating that we cannot uphold a summary judgment that was entered solely on the basis of the notion that the City had no duty to warn its motoring public of hazards in public streets even if it knew or should have known of those hazards and knew or should have known that adequate warning was not being given by some other party with an obligation to do so. This obligation is not altered by the fact that the hazard may have come about as a result of maintenance or repair work by a private party within an easement that crosses the public street; the fact remains that the hazard is in a public street.

With respect to CSX’s liability, I also concur in the main opinion. I write separately to explain why I do not believe the view expressed in the main opinion is based on “pure conjecture” as implied by the dissent. It is true that an employee of CSX testified that the safety devices at issue were in place at the end of the day. What is undisputed, however, is that these devices were not in place just a few hours later. That fact arguably raises a reasonable inference, not conjecture, that the affidavit testimony of the CSX employee was incorrect. The safety devices included a sawhorse barricade, a number of orange traffic barrels, and a “ROAD CLOSED” sign. None of those devices were found lying in the roadway or off to the side of the road in the vicinity of where they were reportedly placed. Instead, there was evidence indicating that those devices were found the next morning situated in a parking lot a mile away from the site of the railroad crossing. These circumstances bolster the inference referenced in the main opinion that the devices may not have been put in place by CSX in the first place. On the other hand, there is no evidence of any criminal activity associated with the absence of the warning devices and barriers at the time of the incident at issue.

CRAWLEY, P.J., concurs.

PITTMAN, Judge,

dissenting.

Because I would affirm the trial court’s summary judgment in favor of the City of Athens (“the City”) and CSX Transportation, Inc., I respectfully dissent.

With respect to the plaintiffs’ claims against the City, I do not believe that the City owed a corresponding duty with CSX to maintain the area of the railroad crossing that was the site of the plaintiffs’ incident. Ala.Code 1975, § 11-49-3, provides, in pertinent part (emphasis added):

“Street and other railroad companies shall be required to keep their tracks in repair, using such rails as may be prescribed, and shall maintain and keep in repair the streets between their rails and for 18 inches on each side in such manner as the council or other governing body may prescribe.”

Under the plain language of the statute, CSX, not the City, had a duty to maintain the streets underlying the subject railroad crossing. Our Supreme Court has also stated that railroad companies are required to keep the approaches to their tracks in good repair as well. See Gulf, M. & N.R. Co. v. Havard, 217 Ala. 639, 642, 117 So. 223, 225 (1928).

“[T]he general rule is that the company must do whatever is reasonably necessary to be done for the safety and convenience of travelers using the crossing. Proper approaches and embankments necessary to enable the traveler to reach and leave the crossing are a part of the crossing, and the company is under duty to construct and maintain them.”

217 Ala. at 642, 117 So. at 225 (emphasis added; internal citations omitted); see also Western Ry. v. Still, 352 So.2d 1092, 1097 (Ala.1977) (concluding that a railroad is charged with an affirmative duty to put and to keep railroad approaches and crossings in proper repair for the use of the traveling public).

In Gulf, M. & N.R. Co. v. Pistole, 218 Ala. 695, 120 So. 159 (1928), our Supreme Court held that the nature of a railroad right-of-way is more than a mere easement:

“In Pratt Coal & Iron Co. v. Davis, 79 Ala. 308 (1885), the court, speaking through Chief Justice Stone, said:
“ ‘It cannot be denied, that railroad companies are required to keep the approaches to their track, and the track itself, at public crossings, in good repair.... With this exception, however, the track is as much the private property of the railroad company, as is the freehold of a mere private citizen. It is no more a public highway, than is the unenclosed domain of the private landholder.’
“The same writer in Tenn. & Coosa R.R. Co. v. East Ala. Ry. Co., 75 Ala. 516, 51 Am. Rep. 475 (1883), had previously pointed out that land claimed and condemned as a roadbed and right of way of a railroad ‘stand in a different category from that of ordinary easements.’ Many cases bearing upon this question are cited and quoted in Seaboard Air Line Ry. Co. v. Banks, 207
Ala. 194, 92 So. 117 (1921). And in the very recent case of Cent. of Ga. R. Co. v. Faulkner, 217 Ala. 82, 114 So. 686 (1927), this court used the following language:
“ ‘A railway right of way is declared more than mere easement. The important public use to which it is devoted requires that dominion extend to the limits of the right of way granted by law.... Ejectment may therefore be maintained, even against the owner of the fee for the entire right of way, without showing any present need for actual occupancy.’
“As illustrative of the character of such right of way, condemnation proceedings (in the absence of agreement) are required before one railroad may cross the right of way of another. It is the taking of property ‘requiring the payment of just compensation before taking.’ Mobile & B.R. Co. v. Louisville & N.R. Co., 192 Ala. 136, 68 So. 905 (1915).
“It is therefore clear, upon reason and authority, that the owner of the fee is without right to himself lay out and dedicate to the public use a street or highway across the railway right of way.”

218 Ala. at 699, 120 So. at 162.

In light of the fact that railroad rights-of-way have been determined by our Supreme Court to be, in effect, the private property of railroad companies such as CSX, the City owed no duty to warn of any condition at the Pryor Street railroad crossing. Similarly, if Franklin had driven her automobile into a pothole in the parking lot of a local department store, no one would dispute that the City would have owed no duty to warn of the offending pothole on the store’s private property.

“[Liability for negligence and wantonness is predicated upon the existence of a duty,” Colonial Bank of Alabama v. Ridley & Schweigert, 551 So.2d 390, 395 (Ala.1989), and a breach thereof. Because I believe that the plaintiffs have failed to demonstrate that the City breached a legal duty to repair and maintain the Pryor Street railroad crossing, I cannot conclude that the trial court erred in entering a summary judgment in favor of the City.

With respect to the issue of CSX’s liability, I do not believe that a genuine issue of material fact exists that would have prevented the trial court’s entry of a summary judgment. CSX adduced evidence indicating that the proper traffic-control devices had been placed at the Pryor Street railroad crossing and that they were in place at the end of the CSX work day. The affidavit of Danny Corbin, a CSX representative, stated that he had supervised the installation of the traffic-control devices at the Pryor Street crossing and that he had not learned of their subsequent removal until he returned to work on the morning after the incident. The plaintiffs’ response to CSX’s motion for a summary judgment failed to rebut that evidence. In fact, excerpts from Franklin’s deposition indicate that she had been prevented from driving onto other city streets by the placement of barricades before she drove onto Pryor Street.

Although the plaintiffs offer pure conjecture on appeal that a CSX employee may have removed the traffic-control devices after the work day had ended, such utter “ ‘speculation and conclusory allegations are insufficient to create a genuine issue of material fact.’ ” Tinsley v. Henderson, 613 So.2d 1268, 1271 (Ala.1993) (quoting Brooks v. Colonial Chevrolet-Buick, Inc., 579 So.2d 1328, 1330 (Ala.1991)). On a motion for a summary judgment, “[t]he non-movant need not be given the benefit of every inference but only of every reasonable inference.” Brown v. Astron Enters., Inc., 989 F.Supp. 1399, 1403 (N.D.Ala.1997) (emphasis added). Although the record indicates that no individual or individuals were ever charged with criminal mischief for having removed the safety devices from the Pryor Street railroad crossing, the record supports only one reasonable inference: the devices were removed by an unknown person or persons between the hours of 6:00 p.m. and 10:00 p.m. on the pertinent night. The record on appeal supports only the logical inference that that removal occurred as a result of actions of a third party, not CSX.

The pertinent question presented by this record is whether CSX had a duty to protect the plaintiffs from the criminal mischief of an unknown third party. “The duty to protect a second person from the criminal acts of a third person arises only when one’s negligence or wantonness creates a situation in which it is foreseeable that a third person will commit criminal conduct that endangers the second person.” E.H. v. Overlook Mountain Lodge, 638 So.2d 781, 783 (Ala.1994) (emphasis added; citing Moye v. A.G. Gaston Motels, Inc., 499 So.2d 1368 (Ala.1986)). “The number and frequency of prior criminal acts at the place where the injury occurred are used in determining whether a particular criminal act was reasonably foreseeable.” Moye, 499 So.2d at 1372. There is no evidence to indicate that CSX had knowledge of any prior criminal acts that had been committed at any of CSX’s railroad crossings within the City or within the State of Alabama. Therefore, I cannot conclude that CSX could have reasonably foreseen that the traffic-control devices that it had properly placed at the railroad crossing would have been removed by thievery.

Accordingly, because I believe that the plaintiffs have failed to present substantial evidence creating a gemine issue of material fact as to their claims of negligence and wantonness against the City and CSX, I would affirm the trial court’s summary judgment.

THOMPSON, J., concurs.

      . Of course, whether the City ultimately is proven to have breached its duty is another question. For example, if the evidence were to show that CSX had in fact put in place adequate warning barriers, but that those barriers subsequently were removed, a question of fact might exist as to whether sufficient time passed between the removal of the barriers and the incident wherein the plaintiffs were injured so as to allow the inference that the City should have discovered the resulting danger and acted upon that discovery. See generally, e.g., Hale, 449 So.2d at 1247.

      . The plaintiffs point out in their response to CSX’s motion for a summary judgment and again on appeal that CSX based its intervening-acts-of-third-parties argument on hearsay; however, there was no motion to strike the hearsay at trial or on appeal. Therefore, we do not discuss that issue.