text:
    Joey FRAZIER, as executor of the estate of Florine Bryant v. Frank GILLIS, M.D.
    2100202.
    Court of Civil Appeals of Alabama.
    Aug. 5, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1101356.

      James B. Douglas, Jr., of McNeal & Douglas, Attorneys at Law, LLC, Auburn, for appellant.
    Randal H. Sellers and L. Ben Morris of Starnes Davis Florie LLP, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Joey Frazier, the executor of the estate of his mother, Florine Bryant, appeals from a judgment as a matter of law entered in favor of Frank Gillis, M.D., in this medical-malpractice case.

The record, viewed in the light most favorable to Frazier, see Leonard v. Cunningham, 4 So.3d 1181, 1184 (Ala.Civ.App.2008), indicates the following:

Dr. Gillis is a family practitioner who began treating Bryant in May 1999. In 2000, Carol Davis, a certified nurse practitioner, began working with Dr. Gillis at Lister Healthcare in Florence. Dr. Gillis was Davis’s “primary supervising collaborating physician.” In that role, Dr. Gillis supervised the treatment Davis provided to patients, but, Davis testified, Dr. Gillis was not required to be physically present when she rendered that treatment. Bryant’s medical records indicate that Davis treated Bryant numerous times over the years.

On August 29, 2005, Dr. Gillis diagnosed Bryant with atrial fibrillation, a heart condition that can result in the formation of a blood clot, which, in turn, can travel to the brain and cause a stroke. To treat Bryant, Dr. Gillis placed her on Coumadin, a blood thinner that lessens the chances of the formation of a blood clot. However, blood thinners like Coumadin also pose a risk for patients. Dr. Gillis testified that he typically advises his patients that Coumadin can be “a very dangerous drug unless taken appropriately.” Coumadin is a “highly individualized” drug and the proper dosage cannot be established without carefully monitoring the patient. Dr. Gillis said that patients taking Coumadin “need[ ] to be checked frequently initially, usually every two to three days, and at most once a week until it is stabilized. After which they — that time may be extended to a month, but in no way should they be checked less than — should be checked less than once a month.” The frequent testing is intended to ensure that the patient remains within what is called the “therapeutic range.” To ensure the patients remain within that range, their International Normalized Ratio (“INR”) is monitored. Dr. Gillis testified that the therapeutic range for patients with atrial fibrillation who are being treated with Coumadin is between 2.0 and 3.0. An INR of 1.0 is considered normal.

Dr. Gillis stated that he gave Bryant the instructions regarding the dangers of Coumadin and the need for initial frequent monitoring; however, Bryant’s records do not indicate that the instructions were given to her. Dr. Gillis said his practice is to make a notation in the patient’s records regarding the instructions he provides to them, and he acknowledged that a notation regarding those instructions should be in Bryant’s record. Dr. Gillis also acknowledged that he had no independent recollection of instructing Bryant on the use of Coumadin; he based his testimony on his usual practice. Davis also testified that she had no recollection of Dr. Gillis’s instructing Bryant on the use of Coumadin. She stated that she provided the instructions to Bryant, but she, too, failed to include a notation regarding the instructions in Bryant’s medical records. Like Dr. Gillis, Davis testified that a notation regarding the instructions should have been included in Bryant’s records.

When Bryant was prescribed Coumadin on August 29, 2005, she was instructed to return to the lab at Lister Healthcare on August 31 to have her INR checked and to begin the process of establishing the proper dosage of Coumadin for her to take. Bryant came to the lab as ordered. Her INR on that date was 1.9. She was ordered to take five milligrams of Coumadin every day and to return to the lab in one week, on September 7, 2005, to have her INR rechecked, pursuant to Davis’s orders. A notation in Bryant’s medical records indicates, “pt. notified, sb,” which signifies that Sherry Bates, a nurse at the lab, gave Bryant the instructions. Bates testified that the notation is not made in the records until the patient is notified of the instructions.

Bryant returned to the Lister Healthcare lab as instructed on September 7, 2005, and employees of the lab drew her blood. However, the INR test was not performed on the drawn blood. On that same day, Dr. Gillis saw Bryant for a stress test; however, he did not follow up on why the INR test had not been done. He stated that, at that time, Davis was monitoring Bryant’s Coumadin dosage. However, Dr. Gillis testified that the failure to do the INR test on the blood drawn on September 7, 2005, was an error and that the proper dosage of Coumadin for Bryant could not be determined based only on the INR test done on August 29, 2005.

Dr. Gillis testified that his office records indicate that the next INR test was performed on November 14, 2005, which, he acknowledged, was “way too long between INRs.” Bryant’s November 14, 2005, INR was 34.2. Dr. Gillis agreed that an INR of 34.2 is an extremely dangerous level for the patient. Bryant had a colonoscopy on September 13, 2005, and the physician performing that examination temporarily withheld Coumadin from Bryant to prevent possible bleeding from the colonosco-py. Dr. Gillis stated that he would expect Coumadin to be withheld before such a procedure and that the Coumadin would have to be restarted. He said that he received Bryant’s colonoscopy report on October 4, 2005. No one in Dr. Gillis’s office reviewed Bryant’s medical chart when the report was received, and, at that time, Bryant was not scheduled for another check on her INR.

On October 6, 2005, Bryant was seen by a cardiologist pursuant to a referral by Dr. Gillis. The cardiologist’s report indicated that Bryant was taking Coumadin as directed by Dr. Gillis. The report indicated that a copy was forwarded to Dr. Gillis; however, Dr. Gillis testified that he was not provided with a copy of the report and that he did not see the report until litigation in this case began.

The evidence is undisputed that Dr. Gil-lis’s office had no further contact with Bryant until November 9,-2005. According to Bates’s testimony, on that date, she received a telephone call from Bryant during which Bryant complained that she had 12 blue spots on the inside of her left thigh and three blue spots on her right shoulder. Bryant also complained of having no energy. Davis received Bryant’s message, wrote “RTO” on the message slip, and returned the slip to the nurses’ box. Davis testified that “RTO” means that the patient is to return to the office immediately. Whether Bryant was actually notified to come into the office was disputed at trial. A notation, “called,” appears on the message slip. However, both Davis and Bates testified that they did not call Bryant to tell her to return to the office. Dr. Gillis testified that he did not see the November 9, 2005, telephone message from Bryant. There is no indication that Bryant returned to the office for treatment at that time. Bryant’s medical records were not reviewed on November 9, 2005. Dr. Gillis acknowledged that, if they had been reviewed, he or Davis would have seen that Bryant had not had an INR test performed since her one and only INR test check on August 31, 2005.

On November 13, 2005, Dr. Gillis went out of town. On Monday, November 14, 2005, Bryant came to Dr. Gillis’s office and Davis treated her. At that time, an INR test was performed. The results indicated that Bryant had an INR of 34.2. Davis instructed Bryant to discontinue the Coumadin and to have her INR checked on Friday, November 18, 2005. She then sent Bryant home. Davis testified that Dr. Gillis had never instructed her that if a patient’s INR was as high as Bryant’s was on that day, the patient was to go to the hospital immediately.

Bryant returned to Dr. Gillis’s office on November 15, 2005, complaining that she was still bleeding from the site where blood had been drawn for her INR test the day before. She also complained of nausea and a headache. Davis ordered another INR test, and the results were faxed to her from the hospital. The results indicated that Bryant had an INR of 44.77; however, there was a note attached to the results indicating that a “mixing study” had been done and that Bryant’s INR was actually .89.

Davis took the INR report to Dr. George Evans, who was handling Dr. Gil-lis’s patients while Dr. Gillis was out of town. Dr. Evans told Davis to refer Bryant to a hematologist. Davis did as instructed, and she also told Bryant that if she had any problems she was to go to the hospital. On November 16, 2005, Bryant was brought into Shoals Hospital, and, at that time, she was nonresponsive. Diagnostic testing indicated that she had suffered a subdural hematoma, or bleeding in the brain. Efforts to save her life were unsuccessful, and Bryant died on November 17, 2005. Dr. Richard Hays, who testified on behalf of Frazier, and Dr. Gillis agreed that, had Bryant received appropriate treatment on either November 14 or November 15, she would most likely have survived.

Dr. Hays is a family practitioner who prescribes Coumadin for his patients diagnosed with atrial fibrillation, like Bryant. He testified that, because of the wide variance in effective doses of Coumadin in individuals, and because the drug is so dangerous, “it is extremely important to monitor the patient at the start so that you know that they are on the proper dose and make sure they get stabilized because they may even — it may change within the first several weeks.” Dr. Hays testified that the standard of care for monitoring a patient on Coumadin is

“that sufficient testing needs to be done to determine that the patient is on the therapeutic dose, as we mentioned, and that their dose stabilizes and maintains stable. So the standard of care does not say you have to necessarily do it on a day one versus day two or day two versus day three. It is not a function of telling exactly how to do it, but it dictates that to meet the standard of care you need to be sure that the patient is within that safety range. Part of the reason for that range is, and reported in studies, to prevent the strokes, but it also is a safe enough range for people to take that they did not have other problems. It would not do us any good to prevent strokes and put people in danger so that is how that range was determined.”

Dr. Hays testified that the standard of care requires that laboratory tests be performed to assure that the patient is taking the proper dosage and that the patient’s INRs fall -within the therapeutic range. He also said that the standard of care cannot be met without physician involvement and that the standard is breached when the physician has no role in the monitoring of the patient’s INRs. He further testified as to his opinion that, for all of the people working under a physician’s supervision, “it is the physician’s responsibility to make sure that they are performing [their] functions correctly.” Dr. Hays further explained the standard of care as follows:

“[Y]ou can farm out the responsibility within your staff in many different ways and many people do, but it is all — to meet the standard of care in caring for a patient with this problem a physician has to ensure that that is being done correctly.”

In other words, Dr. Hays said, the physician has the ultimate responsibility.

Dr. Hays also testified that, although physicians are not required to use a specific method to ensure that patients on Coumadin are having INR tests performed regularly, physicians must keep track of those patients to ensure that they are actually being monitored. He stated that numerous factors can change during a person’s treatment, so the INR numbers can change “so you have to have some sort of process to keep track of people.” For example, Dr. Hays testified, a physician cannot stop at simply making an appointment for a patient each month. He opined that, if a patient on Coumadin does not come in for his or her monthly appointment, the physician’s office should follow up with that patient to stress the importance of the need for further monitoring and tell the patient that, if he or she does not come in, the treatment will be discontinued. Dr. Hays said that, in his opinion, a physician cannot turn over the responsibility of monitoring a Coumadin patient to someone in his or her office and then walk away from any further responsibility. As Dr. Hays said:

“[Everybody [working in a physician’s office] has different training, different skills, but they are still — you are the physician, you are still the doctor in practice and it is still your patient whether it is the person changing the bandage or how they draw blood or whatever function they do in your office, you are still the one that the standard [of care] requires ultimately you need to make sure that what is being done to them and for them is done appropriately and within the standard of care.”

Dr. Hays then testified that, after reviewing Bryant’s medical records, in his opinion Dr. Gillis failed to meet the standard of care in several ways. He stated that Dr. Gillis never created a plan to ensure that Bryant was placed on the correct dose of Coumadin; that Dr. Gillis never adjusted Bryant’s dosage, confirmed the correct dosage, or confirmed that her dosage was stabilized; and that there is no indication in Bryant’s medical records that it was ever explained to Bryant that Coumadin is likely a “life-time drug,” and a very serious and dangerous drug that must be monitored in a certain fashion to make sure that it stays therapeutic and does not eause any dangerous problems.

Further, when asked whether Bryant’s proper dose of Coumadin was ever determined, Dr. Hays replied that “[t]here is not one single reading on an INR that was within the therapeutic range so I cannot tell you between August 29 when she was started and November 15 [sic] when she passed that there was ever a therapeutic dose established.” Such a failure, Dr. Hays testified, falls beneath the standard of care, and, he stated, it was Dr. Gillis’s responsibility, not Davis’s, to ensure that the therapeutic dose was established. Dr. Hays also testified that the failure to ensure that Bryant’s INRs were being tested in a timely manner was also a breach of the standard of care.

When asked about whether Dr. Gillis could have ■ properly turned over his responsibility for monitoring Bryant’s Coum-adin dosage to the physician who performed the colonoscopy, Dr. Hays said that a gastroenterologist is not the proper physician to monitor a patient’s Coumadin dosage. He also stated that the physician who handles the Coumadin before a procedure such as a colonoscopy should be the physician who reinitiates the Coumadin treatment, with input from the gastroen-terologist if necessary. Dr. Hays testified that, again, Dr. Gillis failed to meet the standard of care because there were no INR tests done on Bryant after the colo-noscopy on September 13, 2005, and no tests done on her in October 2005.

Similarly, Dr. Hays noted that, when Bryant saw the cardiologist on October 6, 2005, after being referred by Dr. Gillis, the cardiologist was concerned that her heart rate was too fast and began treating her with Digoxin. However, Dr. Hays said, Digoxin can affect the level of Coumadin in one’s blood. He stated that, anytime a patient is placed on a new medication that can change how the body deals with Coum-adin, the physician monitoring the Couma-din should recheck the patient’s INR to ensure that it has not changed. He testified: “So, to meet the standard of care you need to re-determine that they are on a stable dose and therapeutic.” Dr. Hays further testified that, even though Dr. Gil-lis claimed he did not receive the cardiologist’s report, Dr. Gillis was not relieved of his obligation to ensure that Bryant’s Coumadin dosage was proper and stabilized.

Dr. Hays also testified that Dr. Gillis breached the standard of care by not ensuring that Bryant was either seen at his office or sent to the emergency room on November 9, 2005, when she called his office to complain about the possible bruising on her thigh and shoulder and her lack of energy. When Bryant came to Dr. Gillis’s office on November 14, 2005, Dr. Hays said, Davis, as someone who deals with patients being treated with Couma-din, should have recognized that Bryant’s INR constituted an “absolute critical emergency.” He said: “[The fact that she did not respond in that fashion calls into question whether she was truly capable to be handling those patients.” Dr. Hays then testified that

“within the physician’s office you can delegate any — different responsibilities to people based on their training and their abilities, but it is still the physician’s ultimate responsibility. It is your patient. You are the one that is responsible for what everybody that treats the patient under your care does for that patient. So, this is still solely Dr. Gil-lis’s responsibility whether or not he was present or not.”

Dr. Hays also said that, given the lack of monitoring of Bryant after Dr. Gillis placed her on Coumadin, Dr. Gillis breached the standard of care required to properly supervise Davis.

Dr. Hays said that, in his opinion, to a reasonable degree of medical certainty, Dr. Gillis’s breaches of the standard of care caused Bryant’s death. He testified that her death was “absolutely” avoidable and that her condition was not irreversible as late as November 14 and 15, 2005, when Bryant’s INRs were extremely high.

At the close of Frazier’s case, Dr. Gillis moved for a judgment as a matter of law on the ground that his alleged negligence was not the proximate cause of Bryant’s death. Specifically, he argued that the deficient medical treatment Bryant received at the hands of other health-care providers on November 14 and 15, 2005, was the proximate cause of her death, and that, but for that intervening cause, Bryant would have survived. The trial court agreed, saying:

“If this was a borderline [case], I would let it go to the jury. That is just because that is my philosophy. I kept expecting your expert to say that even if Dr. Evans had sent her to the hospital that because of the things that had happened before, because her level never had been stabilized that she might not have lived. Or I expected him to say that Dr. Evans might not have known to send her to the hospital because she was not his patient, and he did not know how her levels fluctuated. I expected those things and that is the only way it could have gone to the jury.
“MR. DOUGLAS [Frazier’s attorney]: May I be heard briefly?
“THE COURT: I have heard it, I have looked at it, I have mulled over it, and those things were not there. And because they were not there, as much as I hate it — I believe that Bryant should not have died, and I think that is a crying shame, and my sympathy is completely and totally with Mr. Frazier. My heart breaks for him. I am so sorry for his loss. I have- lost both of my parents and if I thought their deaths should have been prevented, I don’t know how you live with it, but she should not have died, but it was not Dr. Gillis’s fault. You could not prove — did not prove your case so I am going to enter a judgment as a matter of law in favor of Dr. Gillis.
“MR. DOUGLAS: May I be heard, Your Honor?
“THE COURT: That is it, no.”

On October 21, 2010, the trial court entered a written judgment in favor of Dr. Gillis. Frazier appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Frazier contends that the trial court erred in granting Dr. Gillis’s motion for a judgment as a matter of law. As an initial matter, we note that Dr. Gillis contends that Frazier waived his right to challenge the trial court’s judgment because, he says, Frazier failed to preserve the issue he raises on appeal. Specifically, Dr. Gillis contends that, in opposing Dr. Gillis’s motion for a judgment as a matter of law, Frazier failed to argue that negligent subsequent medical care is foreseeable and, therefore, that he cannot now raise that argument on appeal.

We disagree with Dr. Gillis’s assertion. This court “will not place a trial court ‘ “in error on matters which the record reveals it neither ruled upon nor was presented the opportunity to rule upon.” ’ J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995) (quoting Wilson v. State Dep’t of Human Res., 527 So.2d 1322, 1324 (Ala.Civ.App.1988)) (emphasis added).” Hamm v. Norfolk S. Ry. Co., 52 So.3d 484, 491 (Ala.2010). However, in asserting that he was entitled to a judgment as a matter of law, Dr. Gillis argued that the alleged deficient medical care Bryant received from other healthcare providers on November 14 and 15, 2005, was an intervening cause that absolved Dr. Gillis of any liability. The trial court agreed with him and entered the judgment on the ground argued by Dr. Gillis. Because the trial court considered and ruled upon the very issue now before us, this court will review the propriety of that ruling and the subsequent entry of a judgment based on that ruling.

Our standard of review of a trial court’s entry of a judgment as a matter of law is well settled.

“In Delchamps, Inc. v. Bryant, 738 So.2d 824 (Ala.1999), our supreme court explained the standard of review applicable to a trial court’s ruling on a motion for a judgment as a matter of law:
“ ‘When reviewing a ruling on a motion for a [judgment as a matter of law (“JML”) ], this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present “substantial evidence” in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’
738 So.2d at 830-31.”

Leonard v. Cunningham, 4 So.3d at 1184.

Frazier asserts that he presented substantial evidence of each of the elements required to sustain a claim of medical malpractice against Dr. Gillis pursuant to the Alabama Medical Liability Act (“the AMLA”), § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975.

Medical-malpractice actions are generally governed by the AMLA. See Mock v. Allen, 783 So.2d 828, 832 (Ala.2000) (noting that the AMLA “applies ‘[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care.’ ” (quoting § 6-5-548(a), Ala.Code 1975)).

‘“To prevail on a medical-malpractice claim, a plaintiff must prove “ ‘1) the appropriate standard of care, 2) the [health-care provider’s] deviation from that standard, and 3) a proximate causal connection between the [health-care provider’s] act or omission constituting the breach and the injury sustained by the plaintiff.’ ” ’ Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 549 (Ala.2008) (quoting Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991), quoting in turn Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988)).”

Mosley v. Brookwood Health Servs., Inc., 24 So.3d 430, 433 (Ala.2009).

In moving for a judgment as a matter of law at the close of Frazier’s case, Dr. Gillis did not assert that Frazier had failed to present substantial evidence of the appropriate standards of care or evidence that Dr. Gillis had breached those standards of care. At the close of Frazier’s case-in-chief, Dr. Gillis asked the court to determine whether, as a matter of law, the subsequent intervening alleged negligence of Dr. Evans and Davis in failing to have Bryant admitted to the hospital on November 14 or 15, 2005, when her INR was dangerously elevated, relieved Dr. Gillis of any liability for her death. If it did, Dr. Gillis argued, there was no question of fact for the jury to decide, and he was entitled to a judgment as a matter of law. The trial court agreed with Dr. Gillis, and it entered the judgment accordingly.

On appeal, the issue this court is called upon to determine is whether, at this stage in the litigation, the trial court erred in finding that, as a matter of law, the alleged intervening negligence absolved Dr. Gillis of liability. In asserting that the trial court erred in entering the judgment, Frazier relies on Looney v. Davis, 721 So.2d 152 (Ala.1998). In that case, Dr. Looney was a dentist who extracted a tooth of his patient, Eva Winn Davis (“Eva”). Afterwards, Eva continued to bleed from the site and sought treatment at two hospitals in the days after the extraction. Looney, 721 So.2d at 154-55. Health-care providers in the emergency rooms at both hospitals advised Eva to apply pressure to the extraction site and to visit her dentist; they then released her. Id. On the fourth day after the extraction, Eva was again taken to a hospital emergency room. The doctor on call recognized that Eva was in critical condition and ordered a transfusion. Eva was then transported to a larger hospital, where she was diagnosed with coagulopathy, an inability of her blood to clot, because of sepsis, liver disease, and anemia. Id. at 156. Eva did not respond to treatment and died that night. Id.

Eva’s husband, on behalf of Eva’s estate, sued Dr. Looney and the hospitals who had provided care to her after the extraction, alleging that each had provided substandard medical care to Eva and that their combined and concurring negligence had resulted in Eva’s death. Id. Several of the named defendants reached settlement agreements with Eva’s estate or were dismissed from the action. Three defendants, including Dr. Looney, went to trial. A jury returned a verdict against all three in the amount of $8 million. Two of the defendants reached pro tanto settlement agreements with Eva’s estate. Dr. Looney appealed, arguing, among other things, that the trial court had erred in denying his motion for a judgment notwithstanding the verdict because, he said, there was no evidence indicating that his alleged negligence had been the proximate cause of Eva’s death. Id. at 158. Instead, he argued, the negligent care provided by her subsequent health-care providers was a superseding intervening cause of her death. He also argued that proximate cause could not be established in his case because, he said, it was “simply unforeseeable that [Eva] would die as the result of an improper tooth extraction.” Id. at 159.

In rejecting Dr. Looney’s assertions, our supreme court stated that “a particular defendant’s negligence need not be the sole cause of injury in order for an action to he against the defendant; it is sufficient that the negligence concurred with the other causes to produce injury.” Id. at 158. The court went on to explain:

‘“In Alabama, the issue of proximate causation hinges on foreseeability and is intertwined, analytically, with the concept of intervening cause.’ Springer v. Jefferson County, 595 So.2d 1381, 1384 (Ala.1992). Indeed, this Court has stated:
‘“[Fjoreseeability is the cornerstone of proximate cause, Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975). As a result, one is held legally responsible for all consequences which a prudent and experienced person, fully acquainted with all the circumstances, at the time of his negligent act, would have thought reasonably possible to follow that act, Prescott v. Martin, 331 So.2d 240 (Ala.1976), including the negligence of others, Williams v. Woodman, 424 So.2d 611 (Ala.1982).’
“General Motors Corp. v. Edwards, 482 So.2d 1176, 1194 (Ala.1985). This Court has further explained,
“ ‘It is an accepted principle that a defendant is liable for all the foreseeable injuries caused by his negligence. Williams [v. Woodman, 424 So.2d 611 (Ala.1982) ]; McClendon v. City of Boaz, 395 So.2d 21 (Ala.1981); O’Quinn v. Alston, 213 Ala. 346, 104 So. 653 (1925). That an injured party will receive negligent medical care is always foreseeable. This Court has accepted this presumption, holding:
“ ‘ “[WJhere one is injured by the negligent or wrongful act of another, and uses ordinary care in endeavoring to be healed, and in the selection of medical and surgical help, but his injury is aggravated by the negligence or unskillfulness of the latter, the party causing the original injury will be responsible for the resulting damages to its full extent.”
‘Williams v. Woodman, supra, at 613, citing O’Quinn v. Alston, supra.
“Ex parte Rudolph, 515 So.2d 704, 707-08 (Ala.1987) (emphasis on ‘all’ in original).”

Looney, 721 So.2d at 159 (some emphasis added).

Based on the holding in Looney, even if Dr. Evans and Davis acted negligently in their treatment of Bryant on November 14 and 15, their negligence would not relieve Dr. Gillis of responsibility for Bryant’s death if a jury were to find that he acted negligently in treating Bryant and that that negligence caused her to have a dangerously elevated INR in the first place.

In attempting to distinguish Looney from the present case, Dr. Gillis argues that the negligent care rendered by Dr. Evans and Davis was so egregious that it was unforeseeable. However, our research has revealed no Alabama authority for the proposition that there are different degrees of negligent medical care so as to make some negligent care foreseeable and other negligent care unforeseeable. Our supreme court stated in Looney, supra, that the possibility that “an injured party will receive negligent medical care is always foreseeable.” In reaching that conclusion, the supreme court did not indicate that the extent of the intervening medical negligence is a consideration. It stated:

“ ““ “As regards proximate cause ... it is not necessary to a defendant’s liability, after his negligence has been established, to show, in addition thereto, that the particular consequences of his negligence could have been foreseen by him; it is sufficient that the injuries are the natural, although not the necessary and inevitable, result of the negligent fault — such injuries as are likely, in ordinary circumstances, to ensue from the act or omission in question.” 38 AmJur., § 62, p. 714.’ ” ’
“Lawson v. General Tel. Co. of Alabama, 289 Ala. 283, 289, 267 So.2d 132, 138 (1972), quoting Sullivan v. Alabama Power Co., 246 Ala. 262, 268, 20 So.2d 224, 228 (1944). It has also been similarly said that ‘it is not necessary that every detail of damage which is the ordinary and natural result [of one’s negligence] be contemplated.’ Sloss-Sheffield Steel & Iron Co. v. Wilkes, 236 Ala. 173, 178, 181 So. 276, 279 (1938).
“Thus, generally a defendant may be found liable if some physical injury of the general type the plaintiff sustained was a foreseeable consequence of the defendant’s negligent conduct, even though the extent of the physical injuries may have been quite unforeseeable. Indeed, it has been noted, ‘There is almost universal agreement upon liability beyond the risk, for quite unforeseeable consequences, when they follow an impact upon the person of the plaintiff.’ W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 43, at 291 (5th ed.1984) (footnote omitted). See also 65 C.J.S. Negligence § 109 (1966). For example, in Armstrong v. Montgomery Street Ry. Co., 123 Ala. 233, 26 So. 349 (1899), the Court held that negligence that caused an injury to one’s finger, which injury produced blood poisoning that caused death, was the proximate cause of the death:
“ ‘The fall produced the injuries; the injuries produced blood poisoning, and the blood poisoning produced death. There was no break in the chain of causation from the alleged negligent act to the death of [the] intestate. The blood poisoning was not an independent cause. It was not a superseding cause. It was itself a result, or, perhaps more accurately, a mere development of the injuries. It is not an important consideration, even if it be a fact, that blood poisoning is not a usual and ordinary result or ‘development of wounds of the character inflicted upon the intestate.’
“Id., at 249, 26 So. at 353.”

Looney, 721 So.2d at 162.

Here, if a jury finds that Dr. Gillis was negligent in his treatment of Bryant, causing her INR to become dangerously elevated, then it can also find that his negligence began the chain of events that ultimately resulted in Bryant’s death. As a matter of law, the alleged superseding intervening negligence of Dr. Evans and Davis does not absolve Dr. Gillis of liability if the jury finds that he, too, was negligent in treating Bryant and that his negligence created the condition that put her health at such extreme risk.

For the reasons set forth above, we conclude that the trial court erred in entering a judgment as a matter of law in favor of Dr. Gillis based on its determination that the superseding intervening negligence of Dr. Evans and Davis in treating Bryant absolved Dr. Gillis of liability. In reaching this holding, we express no opinion as to whether Dr. Gillis was in fact negligent in the care he rendered to Bryant. Accordingly, we reverse the judgment of the trial court, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

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

      . There is nothing in the record that elaborates on the term "mixing study.”

      . A motion for a judgment notwithstanding the verdict is now known as a motion for a judgment as a matter of law. See Rule 50, Ala. R. Civ. P., and Robertson v. Gaddy Elec. & Plumbing, LLC, 53 So.3d 75, 79 (Ala.2010).


source: Caselaw Access Project

author:
BRYAN, Judge.
      MOORE, Judge,

license: Public Domain

text:
    Joel GUNN and Donna Gunn v. KFC U.S. PROPERTIES, INC., et al.
    2090980.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1101450.
    Barry C. Leavell of Leavell & Associates, Attorneys at Law, L.L.C., Montgomery, for appellants.
    Jack B. Hinton, Jr., and Matthew R. Griffith of Hinton & Herndon, Montgomery, for appellee KFC U.S. Properties, Inc.
   On Application for Rehearing

BRYAN, Judge.

The opinion of April 8, 2011, is withdrawn, and the following is substituted therefor.

Joel Gunn (“Joel”) and his wife Donna Gunn (“Donna”) appeal from a summary judgment entered in favor of KFC U.S. Properties, Inc.; KFC Corporation; Yum! Brands, Inc.; and Frank Schilleci, the owner of a KFC restaurant located in Montgomery (collectively “KFC”). We affirm.

Viewing the facts in the light most favorable to the Gunns, the nonmovants, as we are required to do on an appeal from a summary judgment, Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990), we note the following facts. On May 6, 2007, Donna purchased some chicken at a KFC restaurant located in Montgomery, and she took the chicken home. Donna and Joel ate some of the chicken that night. Afterwards, Donna placed the remainder of the chicken in a plastic bag and placed it in a refrigerator. The next day, Joel took the chicken to work with him to eat as a snack. While at work, Joel removed a piece of chicken from the bag and discovered what he described as a human tooth embedded in the crust of the chicken. He did not take a bite of the piece of chicken that had a tooth in it. Shortly afterwards, Joel became dizzy, became “sick to his stomach,” and vomited. He stated that, after vomiting, he “did not feel good” and felt “a little lightheaded.” Joel informed his employer that he was sick, and he went home. At home, Donna, a nurse, gave Joel medication for an upset stomach and dizziness. Joel vomited again that night.

The following day, Joel was treated by a doctor. The medical record from that visit states that Joel complained of nausea, vomiting, achiness, and dizziness or vertigo. The doctor prescribed Joel some medication, which he began taking. Joel testified that he vomited once more, but he could not remember which day he vomited. Joel testified that he missed three full days of work following the incident with the chicken. After returning to work, he continued to feel “a little weak to [his] stomach” for a few days. Joel testified that he suffered mental distress for several weeks due to the incident.

The Gunns sued KFC, alleging four claims. The first claim alleged that KFC had “warranted the merchantability of the food,” that KFC had “warranted [that the food] was fit for human consumption and free from foreign items,” and that KFC had breached that warranty. The first claim appears to be a claim of breach of implied warranty of merchantability. The second claim alleged breach of contract. The third claim alleged that KFC had “warranted that its items for public sale were fit for human consumption” and that KFC had breached that warranty. The third claim appears to be a claim of breach of warranty of fitness for a particular purpose. The fourth claim is Donna’s loss-of-consortium claim. The complaint does not allege a negligence claim. The Gunns sought compensatory and punitive damages.

KFC moved for a summary judgment, asserting (1) that KFC U.S. Properties, Inc., one of the named defendants, is the only proper defendant in this case; (2) that the alleged emotional distress suffered by Joel was trivial and that the Gunns had not provided sufficient evidence to sustain a negligence claim; and (3) that, with respect to the purported negligence claim, KFC is entitled to a summary judgment on the ground that the tooth in the piece of chicken did not cause any physical injury to Joel and that Joel was never in a “zone of danger.” See AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141 (Ala.1998) (articulating the “zone-of-danger” test to determine whether emotional-disturbance damages are recoverable in a negligence case). The summary-judgment motion stated that KFC was seeking a summary judgment on the Gunns’ action “in its entirety.” The Gunns filed a response to the summary-judgment motion, presenting arguments answering each of the three assertions made by KFC in its motion. Following a hearing, the trial court granted KFC’s summary-judgment motion, without specifying a reason. Following the trial court’s denial of the Gunns’ postjudgment motion, the Gunns appealed to this court. This court determined that it did not have appellate jurisdiction and, therefore, transferred the appeal to the supreme court. The supreme court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98, (Ala.1989). 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.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Procedurally, this is a peculiar case. The Gunns’ complaint appears to have alleged claims of breach of implied warranty of merchantability, breach of contract, breach of warranty of fitness for a particular purpose, and loss of consortium. Although KFC’s summary-judgment motion sought a summary judgment on the Gunns’ action in its entirety, that motion focused on what KFC perceived to be a negligence claim alleged by the Gunns. However, the complaint does not appear to have alleged a negligence claim. Nevertheless, on appeal, the Gunns first argue that trial court erred in entering a summary judgment because, they say, “sufficient evidence existed as to the claim of negligence.” Gunns’ brief at 1 (emphasis and bold typeface omitted). In making that argument, the Gunns argue that they have submitted substantial evidence satisfying the current standard, first clearly articulated in AALAR, supra, concerning the recovery of damages for emotional distress on negligence claims. In AALAR, our supreme court stated that, in negligence cases, recovery for emotional distress is limited “to those plaintiffs who sustain a physical injury as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.” 716 So.2d at 1147. This test is known as the “zone-of-danger” test. Id. In making arguments concerning the zone-of-danger test applied in negligence cases, the Gunns address a claim that their complaint does not appear to have actually alleged. Thus, their arguments concerning negligence do not appear to be relevant. Essentially, the Gunns ask us to reverse the trial court’s judgment on the basis that they have established that they can successfully recover emotional-distress damages on a claim never actually alleged. ‘“[I]t is not the duty of the courts to create a claim which the plaintiff has not spelled out in the pleadings.’ McCullough v. Alabama By-Prods. Corp., 343 So.2d 508, 510 (Ala.1977).” Ex parte Burr & Forman, LLP, 5 So.3d 557, 566 (Ala.2008) (declining to read a tort claim into a complaint when the language of the complaint concerned only an alleged breach of contract). Accordingly, we may not reverse on the basis of the Gunns’ first argument.

The Gunns do not address any potential applicability of the zone-of-danger test regarding their actual claims. The zone-of-danger test does not control whether emotional-distress damages are recoverable in breach-of-contract and breach-of-warranty cases. See Morris Concrete, Inc. v. Warrick, 868 So.2d 429, 438-40 (Ala.Civ.App.2003) (stating that emotional-distress damages are generally not recoverable on a breach-of-contract claim and listing specific exceptions to that general rule); and Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 69, 70 (Ala.2001) (stating that “it would violate the purpose for which the zone-of-danger rule [there specifically referring to the second part of the test articulated in AALAR ] was created to apply that rule in a breach-of-contract case” and also stating that the rule does not apply to breach-of-warranty cases).

Next, the Gunns argue that the trial court erred because, they say, the trial court dismissed their “breach of standard of care” claim ex mero motu. Gunns’ brief at 8. This argument is somewhat unclear. In attempting to win a reversal, the Gunns appear to have latched onto a statement made by KFC’s attorney at the hearing on the summary-judgment motion. At the hearing, KFC’s attorney noted that KFC was not moving for a summary judgment on the issue of “breach of standard of care”; it appears that the attorney was simply referring to an element of the Gunns’ supposed negligence claim. Significantly, the complaint does not purport to allege a “breach of standard of care” claim. In their brief, the Gunns argue that they alleged the “breach of standard of care” claim in paragraphs 12, 13, 17, 18, 21, 22, and 25 of the complaint. That is, the Gunns contend that they alleged the “breach of standard of care” claim in their claims of breach of implied warranty of merchantability, breach of contract, breach of warranty of fitness for a particular purpose, and loss of consortium. Their argument is somewhat confusing. At any rate, the Gunns’ stated argument that the trial court ex mero motu entered a summary judgment on the “breach of standard of care” claim fails on its own terms because KFC moved the trial court to enter a summary judgment on the Gunns’ action “in its entirety.” Thus, the Gunns’ second argument for reversal is unpersuasive.

In their reply brief, the Gunns attempt to argue issues that were not discussed in their principal brief. For instance, the Gunns discuss a purported claim brought under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). The complaint did not allege an AEMLD claim. “We do not permit new matters to be raised for the first time in a reply brief.” Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592, 594 (Ala.2003).

In their two arguments properly presented to this court, the Gunns have failed to establish that the trial court erred. Of course, we consider only those arguments actually made by the Gunns. “An argument not made on appeal is abandoned or waived.” Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003). See also Galaxy Cable, Inc. v. Davis, 58 So.3d 93, 99 (Ala.2010) (“Failure by an appellant to argue an issue in its brief waives that issue and precludes it from consideration on appeal.”). Considering the arguments actually presented, we affirm the trial court’s summary judgment.

APPLICATION OVERRULED; OPINION OF APRIL 8, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

PITTMAN, J., concurs.

THOMPSON, P.J., concurs in the result, without writing.

MOORE, J., dissents, with writing, in which THOMAS, J., joins.

MOORE, Judge,

dissenting.

Because I conclude that the main opinion fails to address the claims the parties agreed were to be considered by the trial court and because I believe the trial court erred in entering a summary judgment against Joel Gunn and Donna Gunn and in favor of KFC U.S. Properties, Inc.; KFC Corporation; Yum! Brands, Inc.; and Frank Schilleci (hereinafter referred to collectively as “the KFC defendants”), I respectfully dissent.

The main opinion correctly notes that, in their motion for a summary judgment, the KFC defendants asserted:

“(1) that KFC U.S. Properties, Inc., one of the named defendants, is the only proper defendant in this case; (2) that the alleged emotional distress suffered by Joel was trivial and that the Gunns had not provided sufficient evidence to sustain a negligence claim; and (8) that, with respect to the purported negligence claim, [the KFC defendants are] entitled to a summary judgment on the ground that the tooth in the piece of chicken did not cause any physical injury to Joel and that Joel was never in a ‘zone of danger.’ ”

85 So.3d at 455 (citing AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141 (Ala.1998)). The Gunns filed a brief in opposition to the KFC defendants’ summary-judgment motion; in that brief, the Gunns responded only to the arguments presented by the KFC defendants; i.e., they asserted that their complaint stated genuine issues of material fact as to their negligence claim and that Joel had been within the “zone of danger” sufficient to recover damages for negligent infliction of emotional distress.

The main opinion concludes that the summary judgment should not be reversed because the Gunns did not allege a negligence claim in their complaint. 85 So.3d at 457. The Gunns specifically alleged that the KFC defendants had sold them food in an unmerchantable condition because it contained a foreign substance. Under Alabama law, a restaurant owes a duty to its customers to exercise reasonable care in the preparation and packaging of food, “i.e., ... a duty to sell [the customer] merchantable food or food that was not unreasonably dangerous.” Flagstar Enters., Inc. v. Davis, 709 So.2d 1132, 1139 (Ala.1997). The assertion that the KFC defendants sold “unmerchantable” food could be construed as encompassing a negligence claim.

More importantly, after completing discovery, the KFC defendants did, in fact, understand that the Gunns were asserting a negligence claim. “Under [Rule 8, Ala. R. Civ. P.,] the prime purpose of pleadings is to give notice.” Rule 8, Ala. R. Civ. P., Committee Comments on 1973 Adoption. Under notice pleading, if a defendant, upon reviewing the wording of a complaint, deciphers it to incorporate a claim of negligence, which the plaintiff intended, then the complaint sufficiently states a negligence claim regardless of the exact terminology used. By responding to the summary-judgment motion as they did, the Gunns acknowledged their agreement with the KFC defendants’ premise that they had alleged a negligence claim. Thus, the complaint cannot now be construed differently on appeal.

In the summary-judgment motion, the KFC defendants asserted only that the Gunns’ negligence claim failed because Joel had not suffered a physical injury and because he was not sufficiently within the “zone of danger” to sustain damages for negligent infliction of emotional distress. However, the evidence, when viewed in a light most favorable to the Gunns, see Flagstar, 709 So.2d at 1184, proves otherwise. The record shows that the Gunns had purchased and partially consumed a batch of chicken from the KFC defendants. Joel packed the remainder for consumption the next day at lunch. As he was about to eat, he noticed what appeared to be a human tooth in one of the pieces of chicken. Joel did not actually bite into that piece before becoming physically ill and emotionally upset.

I conclude that the facts of this case are sufficiently similar to those of Flagstar Enterprises, Inc. v. Davis, supra, to survive the KFC defendants’ summary-judgment motion. In Flagstar, supra, the plaintiff ordered a biscuit and gravy from a Hardee’s restaurant; Hardee’s served the biscuit and gravy in a lidded styrofoam container. Id. at 1135. While distracted, the plaintiff began eating the biscuit and gravy without opening the container fully. Id. After taking a few bites, she opened the lidded container fully and saw blood on the top of the container. Id. at 1135-36. The plaintiff, who became distraught at eating contaminated food, was subsequently tested for hepatitis and other infectious diseases; her tests were negative. Id. at 1136.

The plaintiff sued Flagstar, the owner of Hardee’s, seeking damages under theories of negligence and under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). Id. at 1133-34. The trial court submitted the plaintiffs claims to the jury, and the jury awarded the plaintiff damages. Id. at 1133-34. Flagstar moved for a judgment as a matter of law on the plaintiffs negligence claim, asserting that the plaintiff had failed to present evidence indicating that it had breached a duty owed to the plaintiff in preparing and serving her food. The trial court denied that motion, and Flagstar appealed. Id. at 1139-40.

Our supreme court affirmed, recognizing that, from the evidence presented, the jury reasonably could have concluded that Flagstar had breached its duty by serving contaminated food and that the plaintiff had suffered emotional distress as a result. Id. at 1140. Addressing the issue of negligent infliction of emotional distress, the court recognized that

“[djamages for emotional distress may be awarded in a negligence case, even in the absence of physical injury. Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (Ala.1981). See also, Reserve National Ins. Co. v. Crowell, 614 So.2d 1005, 1011 (Ala.1993), cert. denied, 510 U.S. 824, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993), wherein this Court recognized the difference between a claim alleging negligent infliction of emotional distress and a claim not based on infliction of emotional distress, but pursuant to which damages for emotional distress may nonetheless be awarded.”

Flagstar, 709 So.2d at 1141 n. 5. See also AALAR, 716 So.2d at 1147 (discussing Flagstar, supra, and recognizing that it was reasonably foreseeable that the plaintiff in Flagstar would be placed at risk of physical injury as a result of Flagstar’s serving her contaminated food and, thus, that she had been within the “zone of danger” and was entitled to recover for emotional distress on her negligence claim).

The similarities between Flagstar, supra, and the instant case are compelling. The Gunns allege that the KFC defendants served contaminated chicken for Joel’s consumption, that Joel ate a portion of the chicken served to him, that, upon observing the contamination in the chicken, he became upset and vomited, and that he required medical treatment to deal with his symptoms. As recognized in AALAR, supra, Joel was within the zone of danger created by the KFC defendants’ purported service of contaminated food.

For the above-stated reasons, I would reverse the summary judgment entered in favor of the KFC defendants and remand the cause for further proceedings. I, therefore, respectfully dissent.

THOMAS, J., concurs.

      . To the extent that the complaint could be construed as alleging breach-of-warranty and breach-of-contract claims, the Gunns do not assert that the trial court committed any error in entering the summary judgment on those claims; therefore, those claims are considered waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its [initial] brief, that issue is waived.”). The Gunns do belatedly assert in their reply brief that the trial court erred in entering a summary judgment on any claim based on the Alabama Extended Manufacturer's Liability Doctrine, but we cannot consider that argument. See McGough v. G & A, Inc., 999 So.2d 898, 905 n. 3 (Ala.Civ.App.2007) (''Ordinarily, we do not consider issues raised for the first time in a reply brief.”).


author:
THOMPSON, Presiding Judge.
      BRYAN, Judge, MOORE, Judge,

text:
    C.O. v. S.O., N.O., and Etowah County Department of Human Resources.
    2100770.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2011.

      Randy Phillips of Stover, Stewart & Phillips, LLC, Gadsden, for appellant.
    Shannon L. Millican, Gadsden, for appel-lees S.O. and N.O.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. atty. gen. and asst, gen. counsel, Department of Human Resources, for appellees.
   THOMPSON, Presiding Judge.

On May 16, 2011, the Etowah Juvenile Court entered an order that, among other things, awarded custody of A.B. (“the child”) to S.O. and N.O. (“the maternal grandparents”) and suspended the visitation rights of the mother, C.O. (“the mother”). The mother timely appealed.

The record indicates that the mother was a foster child; when she was approximately eight years old, she was adopted by the maternal grandparents. S.O., the maternal grandfather, testified that the mother had been diagnosed with an attachment disorder and that, as a result, she had experienced behavioral and emotional issues as a teenager. The maternal grandfather testified that the mother’s behavior had often been violent. From the time she was 13 years old until she was 18, the mother lived in a series of group and therapeutic homes.

The mother and the child’s father, K.B. (“the father”), never married. The mother was 19 years old when the child was born. In September 2008, the Etowah County Department of Human Resources (“DHR”) initiated a dependency proceeding, seeking an award of custody of the child, who was then only two months old, because of an incident of domestic violence between the mother and the father. The juvenile court declared the child dependent and awarded custody of her to DHR. DHR placed the child with the maternal grandparents. Pursuant to a number of dependency review orders, the child has remained in the legal custody of DHR and in the maternal grandparents’ home since September 2008.

On January 5, 2011, the mother filed a petition seeking the return of custody of the child. Neither DHR nor the maternal grandparents responded to that petition. However, at the May 9, 2011, hearing on the mother’s custody petition, the maternal grandparents asserted a claim seeking an award of custody of the child. The mother did not object to the juvenile court’s consideration of the maternal grandparents’ custody claim, and we conclude that that claim was tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P.

On May 16, 2011, the juvenile court entered a judgment awarding custody of the child to the maternal grandparents, denying the mother’s request for visitation “at this time,” and terminating DHR’s continued participation in the action. In reaching its judgment, the juvenile court found, among other things, that the mother was unfit. The mother timely appealed that part of the judgment suspending her visitation with the child.

A detailed history of the entire action is not contained in the record. However, court review orders from 2009 indicate that the mother and the father failed to visit the child regularly and that their lives were generally unstable. The mother’s testimony indicated that domestic violence was a continuing issue between the mother and the father even after the child was placed with the maternal grandparents. The mother and the father have separated and reconciled several times.

The mother had another child, a son (“the son”), with the father. In February 2010, the father escaped incarceration and, according to the mother, held her hostage in her home over a weekend. At that time, the son was with other family members. The record indicates that the father was captured and again incarcerated; the father was in prison at the time of the May 9, 2011, hearing. The mother testified during the hearing that she had recently decided not to attempt to reconcile again with the father.

The record also indicates that the mother lived briefly with the maternal grandparents, apparently in 2009, and that they had sometimes assisted her financially during the pendency of this action. The maternal grandfather testified that a DHR social worker had asked the maternal grandparents to stop assisting the mother so that the mother could learn to rely on herself and prove that she could properly provide and care for the child.

Diane Stewart, the DHR social worker assigned to the case since January 2011, testified that DHR had recommended in September 2010 that custody of the child be transferred to the maternal grandparents. However, the juvenile court did not accept that recommendation at that time, apparently based on a determination that the mother had made progress toward stability.

The mother testified that she has been in the same home for the last year and a half and that she had maintained employment. The testimony at the hearing, however, established that the mother had changed jobs relatively frequently. The mother was unemployed at the time of the hearing. However, she testified that she had left one job for another and that her orientation at the new job had been interrupted by the April 27, 2011, tornadoes.

The mother testified that, for approximately six weeks in January and February 2011, she had had visitation with the child from Wednesday through Sunday each week. The mother testified that the visitations had gone well and that she believed she was capable of providing for and caring for both the child and the son. That level of visitation stopped after a March 2011 court review hearing. Stewart testified that the mother’s visitation had been reduced because of confrontations between the mother and the maternal grandparents that occurred during visitation exchanges.

The confrontations between the mother and the maternal grandparents continued after the March 2011 hearing. In early April 2011, N.O., the maternal grandmother, and the mother fought about the clothes for the child that each was sending or returning during the mother’s visitation with the child. Stewart, who witnessed that visitation exchange, stated that she believed that the argument was “overdrawn,” and that she lacked sympathy for all the parties involved.

Stewart also witnessed the subsequent visitation exchange, which occurred on April 16, 2011, and she characterized that visitation exchange as having gone well. Stewart testified that, after the mother left with the child at that exchange, she spoke with the maternal grandparents for approximately 30 minutes. Stewart and the maternal grandfather each testified that during that 30-minute conversation they discussed that Stewart had attempted to visit the mother at her home on four or five occasions and had not found the mother at home on any of those occasions. The maternal grandfather testified that the maternal grandparents were concerned about where the mother was staying and whether the child was safe, so they traveled to the mother’s home to check on the child. The maternal grandfather testified that the mother was not at home but that they passed her vehicle on the road, turned around, and returned to the mother’s home, arriving there as the mother arrived in a vehicle with the child, the son, the mother’s best friend, and the husband of the best friend. We note that the mother alleged that the maternal grandparents were following her and that she believed the maternal grandparents were attempting to instigate a confrontation to prevent her from being able to regain custody of the child. Regardless, when the maternal grandparents arrived at the mother’s home, it is undisputed that the mother and the best friend’s husband, C.S., approached the maternal grandparents’ vehicle and began shouting at them. The maternal grandfather testified that when C.S. realized the maternal grandfather was using his mobile telephone to record the encounter, C.S. attempted to punch the maternal grandfather. It is undisputed that C.S. then grabbed the maternal grandfather’s mobile telephone and threw it at the maternal grandparents’ vehicle, breaking the rear-view window on a door of the vehicle. C.S. then fled the scene with the maternal grandfather’s mobile telephone. The maternal grandfather testified that when he later retrieved the telephone the video recording of the confrontation had been erased.

The police were called to the scene, and Stewart later arrived as well. Stewart testified that, given the level of conflict and her concerns about whether the child would be safe if C.S. returned to the mother’s home, she elected to end the visitation and return the child to the maternal grandparents. Stewart testified that the mother was upset at the termination of the visitation and that the mother objected and threw up her arms. At that point, the mother was arrested for disorderly conduct. Stewart testified that she believed that the mother was understandably upset because of the termination of the visitation, and Stewart stated that she had not felt threatened by the mother’s conduct. However, she also acknowledged that she had not witnessed the mother’s conduct before she arrived on the scene, including some conduct that was described in the police report of the incident, which was admitted into evidence at the custody hearing.

Stewart testified that the son appeared frightened during the confrontation. The mother had not taken the child inside or asked her friend to do so during the incident, and, according to Stewart, the child watched the entire incident but did not seem concerned about it. Stewart speculated that, given the child’s lack of reaction to the incident, the child had witnessed a number of such incidents between the mother and the maternal grandparents.

We note that, following the mother’s arrest for disorderly conduct, the son was placed with his paternal relatives as part of a safety plan instituted by DHR. The son was still living with those relatives at the time of the May 9, 2011, hearing in this matter. The mother acknowledged that this was the second time the son had been removed from her care; the first time occurred after the February 2010 incident in which the father held her hostage over a weekend.

When asked why C.S. was present during the April 16, 2011, incident, the mother explained that she had just returned from visiting C.S. and L.S., her best friend. The mother acknowledged that DHR has an open investigation on L.S. and her family, but the mother stated that she understood that the investigation was to end soon. The mother testified that C.S. is not the father of L.S.’s children, and she acknowledged that the father of L.S.’s children had committed domestic violence against L.S. The father of L.S.’s children had been questioned about the death of L.S.’s infant child, which occurred approximately two months before the hearing in this matter; according to the mother, however, that death had been ruled accidental. The mother also stated that she had never exposed the child to the father of L.S.’s children. The mother testified that L.S. married C.S. approximately five weeks before the hearing and that she did not know that C.S. would act in the manner he did during the April 16, 2011, incident. However, the mother acknowledged that she and the son often stayed overnight at the home of L.S. and C.S.; she explained that when she did so, she and the son slept on a bed in the same room as C.S. and L.S. The mother and the son had spent the night in the home of L.S. and C.S. on the night before the incident that resulted in the mother’s being arrested for disorderly conduct.

The maternal grandfather testified that the mother’s conduct during the April 16, 2011, incident was similar to the conduct she had exhibited when she was a teenager. He stated that he did not believe that the mother had made any significant improvement since her adolescence. Stewart testified that she does not believe that the mother and the maternal grandparents can meet for visitation exchanges without conflict. Stewart recommended that, if the juvenile court decided to award custody of the child to the maternal grandparents, there should be no further contact between the mother and the child.

In its May 16, 2011, judgment, the juvenile court found:

“The child was removed from the mother in September 2008 and placed in the legal custody of DHR. The child has been living with the maternal grandparents since that time while efforts to reunify the mother with the child have been ongoing. The maternal grandparents and [DHR] have continually tried to work with the mother and offer support for her. However, the mother’s situation seems to have deteriorated over the last two and a half years and efforts at reunification have failed.
“The mother continues to demonstrate flagrant and consistent emotional disturbances in the presence of her children and apparently lacks either the insight to recognize the negative impact her behavior has on her children or the ability to control her actions. The mother has also associated herself and her children with persons of questionable character who also have ongoing issues with DHR and law enforcement. Recently, the mother was arrested for disorderly conduct as a result of her behavior, and her other minor child, a son, has been removed from her care for a second time and placed with relatives pursuant to a safety plan instituted by DHR. The mother has failed to demonstrate stability in her own life and responsible decision making, and the Court does not feel that she can adequately provide for her own children at this time.
“The Court is clearly convinced that the mother is not a fit and suitable custodian for the minor child. The child has now lived with the maternal grandparents primarily throughout her entire life. They have provided for her physical, emotional, and financial needs. The child has bonded with them, and the Court finds it is in the best interests of the child that the maternal grandparents be awarded her legal custody. The Court is further convinced that any contact between the mother and the minor child at this time would be detrimental to the minor child.”

On appeal, the mother does not challenge the award of custody to the maternal grandparents. The mother argues only that the juvenile court erred by suspending her visitation with the child. The mother argues that the juvenile court’s suspension of her visitation rights in this case was too restrictive.

The determination whether to grant visitation is a matter within the discretion of the juvenile court, and the juvenile court’s principle objective in determining visitation is the best interests of the child. § 12-15-314(a)(4), Ala.Code 1975; Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d 76 (Ala.Civ.App.2011); Pratt v. Pratt, 56 So.3d 638, 641 (Ala.Civ.App.2010); and Minchew v. Mobile Cnty. Dep’t of Human Res., 504 So.2d 310, 311 (Ala.Civ.App.1987). This court has explained:

“[T]he guiding principle in determining visitation with a dependent child, or with a child who is the subject of a visitation dispute between parents, is the child’s best interests. Alabama statutory law and caselaw precedent establish that a juvenile court may suspend a parent’s rights of visitation with his or her dependent child if visitation with the parent is demonstrated to be not in the child’s best interests.”

Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d at 83.

In this case, the evidence supports the juvenile court’s factual determinations, including that the mother has suffered from emotional disturbances that have had a negative impact on the child. The mother has engaged in consistent confrontations with the maternal grandparents during visitation exchanges, and she indicated during her testimony that she refuses to deal with the maternal grandparents in a manner that would expose the child to less conflict. The juvenile court also determined that the mother has associated with friends who have had problems with DHR and law enforcement, and the mother’s testimony indicates that she has exposed the child to those friends.

However, the record also indicates that the mother has consistently visited the child for a significant period, and that, in the early part of 2011, she enjoyed extended visitations from Wednesdays through Sundays. The record indicates that that visitation was decreased because of continued confrontations between the mother and the maternal grandparents during visitation exchanges. There is no indication in the record that, after the exchanges, the visitations did not go well or that they were detrimental to the child.

We recognize the difficult position in which the mother’s conduct has placed the juvenile court, and we commend the juvenile court for its efforts to protect the child from the mother’s emotional outbursts and inappropriate acquaintances. However, the juvenile court’s discretion in awarding visitation “should be exercised with a view towards the policy of preserving relationships between parents and children whenever possible.” M.R.D. v. T.D., 989 So.2d 1111, 1118 (Ala.Civ.App.2008) (concluding that, given the facts of that case, the suspension of visitation was “overly restrictive”). This court has held that “the trial court may not use an overbroad [visitation] restriction that does more than necessary to protect the child.” Pratt v. Pratt, 56 So.3d at 641. As always, the primary consideration in determining a noncustodial parent’s visitation rights is the best interests of the child; our supreme court has recently reiterated that “[a] trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.” Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010).

In this case, we conclude that the juvenile court erred in suspending the mother’s visitation entirely. The juvenile court has available to it a number of less restrictive options for fashioning a visitation award that could adequately protect the child while promoting the relationship between the mother and the child. Those less restrictive options were not explored before the mother’s visitation with the child was suspended. Accordingly, we reverse the juvenile court’s judgment insofar as it suspends the mother’s visitation with the child, and we remand this cause for the juvenile court to award the mother visitation under such circumstances and restrictions as it deems appropriate to protect the best interests of the child. See Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994) (“[T]he primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child.”); Ex parte Thompson, supra.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

BRYAN, J., concurs specially.

MOORE, J., concurs in the rationale in part and concurs in the result, with writing.

BRYAN, Judge,

concurring specially.

I agree with the main opinion insofar as it concludes that the juvenile court’s judgment suspending the mother’s visitation rights does not strike a balance between promoting the relationship between the mother and the child and adequately protecting the child from the harmful aspects of visitation with the mother. 85 So.3d at 466. However, that conclusion should not be interpreted as my approval of a visitation award similar to the visitation rights the mother enjoyed before the juvenile court entered the judgment suspending her visitation rights. In certain cases, this perhaps being one of those cases, supervised visitation can be a successful method of maintaining a relationship between a parent and a child without subjecting the child to the harmful aspects of visitation with his or her parent. Also, because of the animosity between the mother and the maternal grandparents, the juvenile court could consider ordering that visitation exchanges occur at a law-enforcement office or station.

MOORE, Judge,

concurring in the rationale in part and concurring in the result.

Although I agree that the main opinion reaches the correct result, I do not concur entirely with its reasoning. I disagree with the main opinion that Alabama law allows a juvenile court to “ ‘suspend a parent’s rights of visitation with his or her dependent child if visitation with the parent is demonstrated to be not in the child’s best interests.’ ” 85 So.3d at 465 (quoting Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d 76, 83 (Ala.Civ.App.2011)). Rather, as I explained thoroughly in my special writing in Y.N., 67 So.3d at 84-88 (Moore, J., concurring in the result), Alabama law allows a juvenile court to suspend a noncustodial parent’s right to visit with his or her child only when it is reasonably certain that no less drastic action will adequately protect the child from parental harm. Obviously, it is in the best interests of a child to suspend his or her noncustodial parent’s visitation rights when the child will be safe from harm only by completely, even if only temporarily, ending his or her contact with that parent; the Y.N. standard, however, erroneously allows juvenile courts to suspend visitation in less compelling situations.

Ultimately, I believe the main opinion correctly limits the Y.N. standard by holding that “ ‘the trial court may not use an overbroad [visitation] restriction that does more than necessary to protect the child.’ ” 85 So.3d at 466 (quoting Pratt v. Pratt, 56 So.3d 638, 641 (Ala.Civ.App.2010)). That language implicitly recognizes that the purpose of any visitation restriction is to protect the child from harm and that a juvenile court exceeds its discretion in suspending visitation when a more narrowly tailored restriction would safeguard the child. Therefore, I concur in the result.

      . The mother's petition for custody arose from the dependency proceedings initiated by DHR. Although the visitation issue raised by the mother on appeal primarily implicates the rights of the mother and the maternal grandparents, DHR was a party below, was named in the notice of appeal, and has filed a brief on appeal.

      . The record does not indicate the charges upon which the father was incarcerated or for what length of time he was incarcerated.

      . We take judicial notice that on April 27, 2011, a series of tornadoes occurred over a great portion of Alabama, causing the deaths of more than 240 people and extensive property damage. The mother lived in an area affected by those tornadoes.

      . The mother points out in her brief submitted to this court that the child "appeared unconcerned” during the April 2011 confrontation that resulted in the mother's being arrested for disorderly conduct. Stewart testified that she believed that the child was somewhat accustomed to conflict between the mother and the maternal grandparents. The juvenile court could have properly concluded that it was not in the child's best interests to witness such conflicts or to be accustomed to them.

      . We further note that the juvenile court's finding of unfitness, which the mother did not challenge on appeal, does not preclude an award of visitation to the mother. See, e.g., A.M.B. v. 4 So.3d 468 (Ala.Civ.App.2007) (affirming a custody judgment based on a finding of unfitness, but reversing that part of the judgment that failed to set forth a specific schedule of visitation for the mother).

      . I recognize that the juvenile court ordered the Etowah County Department of Human Resources (“DHR”) to close its case in this matter, but, on remand, the juvenile court could consider ordering DHR to remain involved in the case for purposes of administering supervised visitation. The juvenile court could also consider whether the child’s paternal relatives or a counselor could serve as an appropriate visitation supervisor.