author: PITTMAN, Judge.

text:
    Lana T. BROWN v. Patsy PATTON d/b/a Korner Store.
    2070810.
    Court of Civil Appeals of Alabama.
    April 17, 2009.
    Stan Brobston of Brobston & Brobston, P.C., Bessemer, for appellant.
    Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

In August 2006, Lana T. Brown (“the employee”) sued, along with several fictitiously named defendants, Patsy Patton, an individual doing business under the name “Korner Store” (“the employer”), in the Bibb Circuit Court. The employee alleged in her complaint that on or about August 3, 2004, she tripped and fell while in the line and scope of her employment, suffering a disabling left-wrist injury for which, she said, the employer should be responsible for providing compensation and medical benefits under the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”). The employer denied the material allegations of the complaint in her answer and asserted several affirmative defenses.

In January 2008, the employee filed a motion for a partial summary judgment as to the issue of the employer’s liability; that motion was supported by the employee’s affidavit, her responses to the employer’s interrogatories, and various medical records. The employer filed a cross-motion for a summary judgment in her favor, supported by excerpts from the transcript of the employee’s deposition; the employee filed a response in opposition to the employer’s summary-judgment motion. A videographic recording of the fall, obtained from the employer’s closed-circuit-television system, was also submitted into evidence. After a hearing, the trial court entered a summary judgment in favor of the employer on the authority of Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741 (Ala.Civ.App.2002), an opinion pertaining to causation under the Act that the trial court deemed itself compelled to follow despite the existence of seemingly contrary caselaw from this court (see Phenix Med. Park Hosp. v. Kozub, 575 So.2d 1162 (Ala.Civ.App.1991)). The employee timely appealed from the summary judgment.

“ ‘[An appellate court] reviews a summary judgment de novo. We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. In reviewing a summary judgment, [an appellate court] review[s] the evidence in the light most favorable to the nonmovant. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce “substantial evidence” creating a genuine issue of material fact. “Substantial evidence” is “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.” ’ ”

Sartin v. Madden, 955 So.2d 1024, 1026-27 (Ala.Civ.App.2006) (citations omitted; quoting Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala.2005)).

The record reflects the following undisputed facts. The employee, who was approximately 60 years old at the time of her injury, worked for the employer as a store cashier, a job that occasionally entailed performing duties such as stocking coolers on the store premises. The employee was required to work a full eight-hour shift without rest breaks, but she was allowed to drink cups of coffee while working at the cash register in the store. On August 3, 2004, the employee had left the area of the cash register to obtain some coffee when she noticed that a customer nearby was moving towards the cash register, intending to make a purchase. The video-graphic record of the event shows that the employee, after noticing that customer, turned around, took several quick steps toward the cash register, tripped, and fell to the floor; the impact caused her to break her left wrist. The employee had noticed no hazardous material on the floor of the store where she fell at the time of her fall, nor is any such material apparent from the videographic recording of the fall, and she testified that she did not know why she fell. The employee’s injured wrist was later placed in a cast, and she returned to work the following day; she continued to work normally for the employer until leaving her employment in January 2005 to care for her grandchild, and the employee admitted that she did not believe that she was disabled from working should she choose to do so.

Under §§ 25-5-51 and 25-5-77(a), Ala.Code 1975, taken together, an employer must pay compensation for, and provide medical benefits as to, its employee’s injury that is caused by “an accident arising out of and in the course of [his or her] employment” without regard to the negligence of the employer or the employee. There is no dispute that the employee’s accident occurred “in the course of’ her employment, i.e., within the' period of employment at a place where the employee would reasonably be and while she was reasonably fulfilling employment duties or engaged in doing something incident to it. See Pittsburg & Midway Coal Mining Co. v. Rubley, 882 So.2d 335, 340 (Ala.Civ.App. 2002). Rather, the issue presented is whether the employee’s accident arose out of her employment, i.e., whether there was “a causal relationship between the injury and the employment.” Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313, 314 (Ala.Civ.App.1993).

The principal “fault line” that has been revealed by the application of the “arising out of’ requirement by Alabama courts is the distinction between accidents that are at least partially attributable to an affirmative employment contribution and those that are attributable solely to what are called “idiopathic” factors, a term that “refers to an employee’s preexisting physical weakness or disease” that is “ ‘peculiar to the individual’ ” employee. Ex parte Patterson, 561 So.2d 236, 238 n. 2 (Ala.1990). Thus, a fall may, under the appropriate circumstances, properly be deemed an accident arising out of employment. See Kozub, 575 So.2d at 1163 (even though nursing assistant had preexisting arthritic condition in her right ankle, fall sustained because assistant hurriedly left a patient’s room was “tracefable] ... to a proximate cause set in motion by the employment, rather than some other agency”). In contrast, a fall may, under the appropriate circumstances tending to show an idiopathic factor, not be an accident arising out of employment. See Rubley, 882 So.2d at 342 (holding that a coal miner’s fall after completing ascent of potentially slippery mine stairs lacked an “affirmative employer contribution” and necessarily would have been the product of medical factors personal to the miner such as his low blood sugar).

In Morgan, this court reversed a judgment that had been entered in favor of a retail cashier seeking benefits under the Act under factual circumstances similar to those present in this case. After citing various cases in which this court had considered the “arising out of’ element of compensability, we concluded in Morgan that because the cashier did not know what had caused her to lose her balance and had admitted that the workplace probably had nothing to do with the accident in which she was injured, no substantial evidence supported the proposition that the cashier’s injury arose out of her employment. 830 So.2d at 746. Not surprisingly, the employer has relied heavily upon Morgan in seeking affirmance, while the employee has intimated that this court should overrule Morgan.

We need not address whether Morgan is due to be overruled by this court, however. Just over two years after Morgan was decided, the Alabama Supreme Court issued its decision in Ex parte Byrom, 895 So.2d 942 (Ala.2004). In Byrom, the Alabama Supreme Court concluded that an automotive-service manager who had been injured while using a telephone during an electrical storm by an electrical surge stemming from a bolt of lightning had suffered an “accidental” injury. Most pertinently, Byrom deemed controlling language contained in a footnote in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996), to the effect that an employee who claims to have been injured by “a sudden and traumatic external event” that would constitute “an ‘accident’ in the colloquial sense” need only, in order to demonstrate legal causation, “produce substantial evidence tending to show that the alleged ‘accident’ occurred” (680 So.2d at 266 n. 3). In the words of Byrom, Trinity “does not require proof beyond the fact of the accident itself that the accident arose out of the employee’s employment.” 895 So.2d at 947 (emphasis added).

That Byrom has significantly altered the post-Morgan legal landscape is a fact that has not been lost upon at least one judge of this court, whose special opinion in Goodyear Tire & Rubber Co. v. Muilenburg, 990 So.2d 434 (Ala.Civ.App. 2008), illustrates the effect of Byrom:

“In this case, as in Byrom, the employee is claiming that he was injured in an ‘accident.’ The record contains various versions of how this ‘accident’ happened, but it is undisputed that while working the employee unexpectedly fell, immediately and severely injuring his left leg. Having proven that he had sustained an ‘accident’ while working, the employee, according to Byrom, did not need to prove any additional facts in order to satisfy the ‘arising-out-of-the-employment’ requirement.
“I fully recognize that Byrom did not involve an injury caused by a fall. However, the holding of Byrom is phrased so broadly that I can conclude only that the supreme court intended that it would apply to all ‘accidental’ injuries. I am also fully aware that a line of decisions from this court that were issued before Byrom rejected a legal test similar to the one adopted in Byrom when determining whether an injury suffered as the result of a fall is compensable. See Casteel ex rel. Johnson v. Wal-Mart Stores, Inc., 860 So.2d 348 (Ala.Civ.App. 2003); Pittsburg & Midway Coal Mining Co. v. Rubley, 882 So.2d 335 (Ala.Civ.App.2002) (accord); Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741 (Ala.Civ.App.2002); and Slimfold Mfg. Co. v. Martin, 417 So.2d 199 (Ala.Civ.App.1981), writ quashed, Ex parte Martin, 417 So.2d 203 (Ala.1982) (declining to use ‘but-for’ test to determine com-pensability of fall at work). Although I agree totally with the reasoning in those cases, and although I disagree totally with the analysis used in Byrom, unless and until our supreme court overrules it, this court must follow Byrom. See Ala. Code 1975, § 12-3-16.”

990 So.2d at 440 (Moore, J., concurring in the result). Thus, as Judge Moore has intimated, Byrom eliminates any requirement that might have been applied in Morgan to require an employee who falls at work, such as the employee in this case, to show legal causation beyond the fall itself.

After viewing the evidentiary record in a light most favorable to the nonmovant employee, as Sartin requires, we conclude that the employee adduced substantial evidence indicating that after having proceeded slowly from her assigned station at the cash-register counter of the store to another part of the store to obtain coffee, she then turned and more quickly moved back across the floor of the store in order to return to the cash register and to assist a customer who apparently was ready to present items for purchase before falling on the floor of the store. We therefore conclude that substantial evidence was presented tending to show that the employee’s accident was one that arose out of her employment. It follows, then, that the trial court’s summary judgment in favor of the employer, which was based upon that court’s determination that the employee had not adduced substantial evidence of the “arising out of’ prong of legal causation under the Act, was erroneous and warrants reversal. We remand the cause for further proceedings.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BRYAN, THOMAS, and MOORE, JJ., concur.

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


source: Caselaw Access Project

author: SHAW, Justice. MURDOCK, Justice

license: Public Domain

text:
    Ex parte Patsy PATTON d/b/a Korner Store. (In re Lana T. Brown v. Patsy Patton d/b/a Korner Store).
    1080960.
    Supreme Court of Alabama.
    April 22, 2011.
    Rehearing Denied Aug. 19, 2011.
    Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    Stan Brobston of Brobston & Brobston, P.C., Bessemer, for respondent.
   SHAW, Justice.

Lana T. Brown, the plaintiff below, sued Patsy Patton d/b/a Korner Store (“Korner Store”) seeking worker’s compensation benefits. The trial court entered a summary judgment in favor of Korner Store, and Brown appealed to the Court of Civil Appeals. That court reversed the decision of the trial court and remanded the case for further proceedings. Brown v. Patton, 77 So.3d 587 (Ala.Civ.App.2009). Korner Store petitioned this Court for a writ of certiorari to review the decision of the Court of Civil Appeals. We reverse the judgment of the Court of Civil Appeals and render a judgment in favor of Korner Store.

Facts and Procedural History

Korner Store operated a gas station/convenience store where Brown worked as a cashier. One day, while on duty, Brown walked to the store’s deli counter to refill her coffee cup. When Brown began walking back to the front of the store, she inexplicably fell, breaking her wrist. Brown subsequently filed a claim for worker’s compensation benefits, which Korner Store denied because, it contended, Brown’s fall was either attributable to an idiopathic characteristic or was due to some unexplained, but not work-related, cause.

Brown filed an action seeking worker’s compensation benefits; Korner Store moved for a summary judgment. Relying on the Court of Civil Appeals’ decision in Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741, 746 (Ala.Civ.App.2002), which held, on markedly similar facts, that, because the employee was unable to identify a work-related cause for her fall, “the evidence in the record [did] not support a conclusion that [the employee’s] injury arose out of her employment” and did not, therefore, entitle her to worker’s compensation benefits, the trial court granted Korner Store’s summary-judgment motion.

The Court of Civil Appeals reversed the trial court’s judgment, concluding that this Court’s decision in Ex parte Byrom, 895 So.2d 942 (Ala.2004),

“deemed controlling language contained in a footnote in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996), to the effect that an employee who claims to have been injured by ‘a sudden and traumatic external event’ that would constitute ‘an “accident” in the colloquial sense’ need only, in order to demonstrate legal causation, ‘produce substantial evidence tending to show that the alleged “accident” occurred’ (680 So.2d at 266 n. 3).”

Brown, 77 So.3d at 589-90. Based upon the foregoing rationale, the Court of Civil Appeals “conclude[d] that substantial evidence was presented tending to show that [Brown’s] accident was one that arose out of her employment.” 77 So.3d at 590. Korner Store petitioned this Court for cer-tiorari review, which this Court granted.

Standard of Review
“ ‘In reviewing a decision of the Court of Civil Appeals on a petition for a writ of certiorari, this Court “accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.” Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996).’
“Ex parte Exxon Mobil Corp., 926 So.2d 303, 308 (Ala.2005).”

Ex parte Nathan Rodgers Constr., Inc., 1 So.3d 46, 49 (Ala.2008).

Discussion

In its opinion in Broum, the Court of Civil Appeals correctly noted that causation under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), was at issue in this case:

“Under §§ 25-5-51 and 25-5-77(a), Ala.Code 1975, taken together, an employer must pay compensation for, and provide medical benefits as to, its employee’s injury that is caused by ‘an accident arising out of and in the course of [his or her] employment’ without regard to the negligence of the employer or the employee. There is no dispute that the employee’s accident occurred ‘in the course of her employment, i.e., within the period of employment at a place where the employee would reasonably be and while she was reasonably fulfilling employment duties or engaged in doing something incident to it. Rather, the issue presented is whether the employee’s accident arose out of her employment, i.e., whether there was ‘a causal relationship between the injury and the employment.’ Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313, 314 (Ala.Civ.App.1993).
“The principal ‘fault line’ that has been revealed by the application of the ‘arising out of requirement by Alabama courts is the distinction between accidents that are at least partially attributable to an affirmative employment contribution and those that are attributable solely to what are called ‘idiopathic’ factors, a term that ‘refers to an employee’s preexisting physical weakness or disease’ that is ‘ “peculiar to the individual” ’ employee. Ex parte Patterson, 561 So.2d 236, 238 n. 2 (Ala.1990). Thus, a fall may, under the appropriate circumstances, properly be deemed an accident arising out of employment.... In contrast, a fall may, under the appropriate circumstances tending to show an idiopathic factor, not be an accident arising out of employment....
“In [Wal-Mart Stores, Inc. v.] Morgan, [830 So.2d 741 (Ala.Civ.App.2002),] this court reversed a judgment that had been entered in favor of a retail cashier seeking benefits under the Act under factual circumstances similar to those present in this case. After citing various cases in which this court had considered the ‘arising out of element of com-pensability, we concluded in Morgan that because the cashier did not know what had caused her to lose her balance and had admitted that the workplace probably had nothing to do with the accident in which she was injured, no substantial evidence supported the proposition that the cashier’s injury arose out of her employment....”

Brown, 77 So.3d at 589. As noted above, the trial court determined that Morgan controlled in this case and that it mandates a judgment in favor of Korner Store. However, the Court of Civil Appeals held that, after Morgan was decided, the law regarding causation changed:

“Just over two years after Morgan was decided, the Alabama Supreme Court issued its decision in Ex parte Byrom, 895 So.2d 942 (Ala.2004). In Byrom, the Alabama Supreme Court concluded that an automotive-service manager who had been injured while using a telephone during an electrical storm by an electrical surge stemming from a bolt of lightning had suffered an ‘accidental’ injury. Most pertinently, Byrom deemed controlling language contained in a footnote in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996), to the effect that an employee who claims to have been injured by ‘a sudden and traumatic external event’ that would constitute ‘an “accident” ’ in the colloquial sense need only, in order to demonstrate legal causation, ‘produce substantial evidence tending to show that the alleged “accident” occurred’ (680 So.2d at 266 n. 3). In the words of Byrom, Trinity ‘does not require proof beyond the fact of the accident itself that the accident arose out of the employee’s employment.’ 895 So.2d at 947 (emphasis added).
“That Byrom has significantly altered the post-Morgan legal landscape is a fact that has not been lost upon at least one judge of this court, whose special opinion in Goodyear Tire & Rubber Co. v. Muilenburg, 990 So.2d 434 (Ala.Civ.App.2008), illustrates the effect of Byrom:
“ ‘In this case, as in Byrom, the employee is claiming that he was injured in an “accident.” The record contains various versions of how this “accident” happened, but it is undisputed that while working the employee unexpectedly fell, immediately and severely injuring his left leg. Having proven that he had sustained an “accident” while working, the employee, according to Byrom, did not need to prove any additional facts in order to satisfy the “arising-out-of-the-employment” requirement.
“ T fully recognize that Byrom did not involve an injury caused by a fall. However, the holding of Byrom is phrased so broadly that I can conclude only that the supreme court intended that it would apply to all “accidental” injuries. I am also fully aware that a line of decisions from this court that were issued before By-rom rejected a legal test similar to the one adopted in Byrom when determining whether an injury suffered as the result of a fall is compensable. See Casteel ex rel. Johnson v. Wal-Mart Stores, Inc., 860 So.2d 348 (Ala.Civ.App.2003); Pittsburg & Midway Coal Mining Co. v. Rubley, 882 So.2d 335 (Ala.Civ.App.2002) (accord); Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741 (Ala.Civ.App.2002); and Slimfold Mfg. Co. v. Martin, 417 So.2d 199 (Ala.Civ.App.1981), writ quashed, Ex parte Martin, 417 So.2d 203 (Ala.1982) (declining to use “but-for” test to determine compensability of fall at work). Although I agree totally with the reasoning in those cases, and although I disagree totally with the analysis used in Byrom, unless and until our supreme court overrules it, this court must follow Byrom. See Ala.Code 1975, § 12-3-16.’
990 So.2d at 440 (Moore, J., concurring ' in the result). Thus, as Judge Moore has intimated, Byrom eliminates any requirement that might have been applied in Morgan to require an employee who falls at work, such as the employee in this case, to show legal causation beyond the fall itself.”

Brown, 77 So.3d at 589-90. Under this interpretation of Byrom, the Court of Civil Appeals held that Brown had produced substantial evidence indicating that her accident was one that “arose out of her employment” and that the summary judgment for Korner Store was thus improper.

As the Court of Civil Appeals noted in Brown, it is well established that our courts have historically rejected a “but-for” test in workers’ compensation cases in favor of a “causal-connection” test. See, e.g. Slimfold Mfg. Co. v. Martin, 417 So.2d 199, 202 (Ala.Civ.App.1981) (“The but-for test is clearly not the test for causation under Alabama’s Workmen’s Compensation Act. Instead, the burden is on the claimant to establish a definite causal connection between the work and the injury.”). The rationale underlying the decision to apply the “causal-connection” test is based on the language of the Act, which requires that, in order for an employee’s injury or death to be compensable, it must occur both in the course of the employee’s employment and arise out of that employment. 417 So.2d at 200. See also Wooten v. Roden, 260 Ala. 606, 611, 71 So.2d 802, 806 (1954) (“To justify recovery under the Workmen’s Compensation Act, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.”).

In Morgan, supra, the Court of Civil Appeals provided a succinct explanation of the requirements of the Act:

“Wal-Mart argues on appeal that the trial court erred in finding that Morgan’s injury arose out of her employment. In order for Morgan’s injury to be compensable under the Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq., it must be ‘caused by “an accident arising out of and in the course of’ ’ her employment. Meeks v. Thompson Tractor Co., 686 So.2d 1213, 1215 (Ala.Civ.App.1996) (quoting § 25-5-51, Ala.Code 1975). Wal-Mart argues that Morgan’s injury was not compensable under the Act because, it argues, she did not establish a causal connection between the injury and her employment. The parties do not dispute that Morgan’s fall occurred in the course of her employment, but Wal-Mart argues that Morgan’s injuries were not caused by an accident that arose out of her employment. In order for Morgan’s injuries to ‘arise out of her employment, there must be ‘a causal relationship between the injury and the employment.’ Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313, 314 (Ala.Civ.App.1993). Morgan has ‘the burden of proving that [her] injury arose out of [her] employment.’ Ex parte Patterson, 561 So.2d 236, 238 (Ala.1990) (citing Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159 (1957)).”

830 So.2d at 743-44.

This Court’s decision in Trinity Industries, Inc., 680 So.2d 262 (Ala.1996), a case decided before Morgan, did include language in a footnote that appears to directly conflict with the Act and the well established rule of causation in accidental-injury workers’ compensation cases. Specifically, in Trinity Industries, which concerned the causal connection between an employee’s stroke and his employment, this Court, in an effort to illustrate the problems attendant to “[djetermining whether a causal relationship has been established between the performance of the claimant’s duties as an employee and the complained-of injury” in situations where “the complained-of injury was not produced by some sudden and traumatic external event,” 680 So.2d at 266, included the following language in note 3:

“An employee claiming to have been injured by a sudden and traumatic external event (an ‘accident’ in the colloquial sense, e.g., being struck by a falling hammer on a construction site or slipping off a ladder) need only produce substantial evidence tending to show that the alleged ‘accident’ occurred and tending to establish ‘medical causation,’ by demonstrating that the ‘accident’ was a contributing cause of the complained-of injuries and complications.”

680 So.2d at 266 n. 3. Nonetheless, we then proceeded to perform the requisite causation analysis, reiterating the rule from Slimfold that “ ‘[i]n Alabama the employment must be the source and cause of the accident,’ ” 680 So.2d at 268, and determining that, pursuant to the two-part causation test for nonaccidental injuries established by City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975), the employee had demonstrated both legal and medical causation. Because the language included in note 3 was, therefore, not essential to this Court’s ultimate holding in Trinity Industries (indeed, it was not applicable)', it was, as correctly observed by Judge Moore’s concurring opinion in Goodyear Tire & Rubber Co. v. Muilenburg, 990 So.2d 434, 439 (Ala.Civ.App.2008), nothing more than dicta and was not binding in subsequent cases. See Ex parte Williams, 838 So.2d 1028, 1031 (Ala.2002) (“Because obiter dictum is, by definition, not essential to the judgment of the court which states the dictum, it is not the law of the case established by that judgment.”). See also Carr v. International Refining & Mfg. Co., 13 So.3d 947, 957 n. 3 (Ala.2009) (“Black’s Law Dictionary 409 (8th. ed.2004) defines obiter dictum as: ‘A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case....’”).

In Byrom, this Court subsequently reiterated, but did not apply, the “but-for” reasoning expressed in Trinity Industries:

“While Ex parte Trinity Industries does not require proof beyond the fact of the accident itself that the accident arose out of the employee’s employment, the evidence in Byrom’s case meets the requirements of [American Fuel & Clay Products Co. v.] Gilbert [, 221 Ala. 44, 46, 127 So. 540, 541 (1930) (concluding that compensation is due when ‘the hazard of the accident “was peculiar to the employment as a contributing cause,” and flowed from that source as a rational consequence’) ], for proof that the accident did in fact arise out of the employment, to whatever extent such requirements survived or accompanied the opinion issued in Gilbert on rehearing.”

895 So.2d at 947-48. Therefore, while once again appearing to endorse a “but-for” test, this Court actually applied the “arising-out-of ’ analysis necessary to meet the statutory causation requirements under the Act. Thus, as it was in Trinity Industries, the “but-for” language in By-rom was dicta. See Ex parte Williams, supra.

Regardless, based upon the foregoing analysis, it appears that the “but-for” language espoused in the body of this Court’s opinion in Byrom conflicts with prior caselaw dealing with causation and is creating confusion in the arena of workers’ compensation law. That confusion is evident in the present case, in which the Court of Civil Appeals, applying Byrom, completely dispensed with the element of legal causation: “Byrom eliminates any requirement that might have been applied in [Wal-Mart Stores, Inc. v.] Morgan [, 830 So.2d 741 (Ala.Civ.App.2002),] to require an employee who falls at work, such as the employee in this case, to show legal causation beyond the fall itself.” Brown, 77 So.3d at 590. Such an interpretation clearly contravenes both the plain language of the Act, which prescribes a causal-connection element in order for an injury to be deemed compensable, and the rationale of authority in which this Court explicitly rejected a “but-for” test for causation in workers’ compensation cases. The utilization of a “but-for” test negates the statutory requirement that, to be com-pensable, an injury or death “arise” out of employment and instead requires only one part of the statutory test — that the injury occur “in the course of employment.” See Slimfold, 417 So.2d at 202 (noting that, in affirming an award based on a finding of causation despite the trial court’s implicit finding that “the claimant had not met her burden of establishing causation,” the appellate court would effectively “abrogate by judicial fiat an essential element of proof under [the] Act”). Slimfold and its progeny correctly apply the plain language of the Act; to the extent that Byrom conflicts with those previous decisions, it is due to be, and is hereby, overruled.

In Ex parte Mitchell, 989 So.2d 1083 (Ala.2008), we noted that “ ‘ “[cjourts must liberally construe the workers’ compensation law ‘to effectuate its beneficent purposes’ ” ’ however, “ 1 “such a construction must be one that the language of the statute ‘fairly and reasonably’ supports.” ’ ” 989 So.2d at 1090 (quoting Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003), quoting other cases). Thus, although this Court has liberally construed the Act in order to achieve its “beneficent purposes,” it cannot change the plain language of the Act in order to accomplish that goal. The Act clearly provides that workers’ compensation benefits are due only in “ease[s] of personal injury or death ... caused by an accident arising out of and in the course of [the employee’s] employment. ...” § 25-5-51, Ala.Code 1975 (emphasis added). Section 25-5-51 is not ambiguous. It clearly states that workers’ compensation benefits are to be paid to an employee who suffers injury “arising out of’ his or her employment. To dispense with the “arising-out-of’ requirement would clearly — and impermissibly — be to rewrite the Act.

In consideration of the foregoing, we conclude that the rule applied by the Court of Civil Appeals in Brown is drawn from dicta and contravenes the clear language of the Act. Accordingly, the judgment of the Court of Civil Appeals is hereby reversed and a judgment rendered in favor of Korner Store.

REVERSED AND JUDGMENT RENDERED.

COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, MAIN, and AVISE, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I fully agree with the main opinion’s rejection of the so-called “but-for” test of causation under Alabama’s workers’ compensation law and, as a corollary, that opinion’s embrace of the requirement for a showing of “ ‘a definite causal connection between the work and the injury.’ ” 77 So.3d at 594 (quoting Slimfold Mfg. Co. v. Martin, 417 So.2d 199, 202 (Ala.Civ.App.1981)). I write separately because I believe a full understanding of what is meant by the term “causal connection” necessitates some discussion of two other tests that have been expressed in our cases and how these two other tests relate to one another in determining whether any “accident” is one that “arises out of’ employment for purposes of § 25-5-1(9), Ala. Code 1975.

The first of these other tests is what may be referred to as the “set-in-motion” test: “To justify recovery under the Workmen’s Compensation Act, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.” Wooten v. Roden, 260 Ala. 606, 611, 71 So.2d 802, 806 (1954) (quoted with approval in the main opinion, 77 So.3d at 595). See also Ex parte Trinity Indus., Inc., 680 So.2d 262, 265 n. 2 (Ala.1996) (reiterating that injuries “ ‘must be traceable to a proximate cause set in motion by the employment, not by some other agency1 ” (quoting Alabama Textile Prods. Corp. v. Grantham, 263 Ala. 179, 183, 82 So.2d 204, 207 (1955))).

I also take note of what is referred to in our cases as the “increased-risk” test. The increased-risk test requires that the employee prove that his or her employment “exposed [the employee] to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., Inc., 680 So.2d at 267; City of Tuscaloosa v. Howard, 55 Ala.App. 701, 705, 318 So.2d 729, 732 (Ala.Civ.App.1975).

As a judge on the Court of Civil Appeals, I noted in a special writing in Ceasco, Inc. v. Byrom, 895 So.2d 932 (Ala.Civ.App.2002) (Murdock, J., concurring in the result), that the Supreme Court’s use of the terms “accident” and “nonaccidental injuries” in a “colloquial” sense and “for the sake of simplicity” in note 3 and the accompanying text of Trinity Industries was in conflict with the statutory definition of “accident” in the Alabama Workers’ Compensation Act. 895 So.2d at 940. I observed that the term “accident” in § 25-5-1(7) applied simply to an “unexpected or unforeseen event, happening suddenly and violently” and “therefore is not restricted to events caused by the traumatic application of external force to the human body.” 895 So.2d at 940-41 n. 6 and accompanying text (Murdock, J., concurring in the result)(emphasis omitted). Accordingly, I disagreed with the suggestion in the main opinion of the Court of Civil Appeals in Byrom “that legal causation is never at issue in a case involving what the Supreme Court colloquially referred] to as an ‘accident’ ” in Trinity Industries. 895 So.2d at 941 (Murdock, J., concurring in the result). As the Court in Trinity Industries, itself, explained, it was not the legislature’s intent to allow an employee “to recover under our workers’ compensation statute merely because he or she was lucky enough to have a disabling event resulting from [a] natural cause occur at the place of employment.... ” 680 So.2d at 267.

In other words, as to any “accident” as defined in § 25-5-1(7) — whether involving an “accident” or a “nonaccidental injury” in the colloquial sense referenced in what the Court recognizes today as dicta in Trinity Industries — it is necessary for the recovery of compensation that “ ‘the employment ... have been the cause and source of the accident and the resultant injuries must be traceable to a proximate cause set in motion by the employment, not by some other agency.’ ” 680 So.2d at 265 n. 2 (quoting Grantham, 263 Ala. at 183, 82 So.2d at 207). When an “act of God” or some other force not normally considered as having been set in motion by the employment is the “proximate cause” of the employee’s injuries, however, operation of that force upon the employee nonetheless can be considered to have been “set in motion by the employment” where the employment increases the employee’s exposure to, or risk of exposure to, that force in excess of that to which people are normally exposed in their everyday lives, i.e., when the increased-risk test is satisfied. It is for this reason, for example, that this Court, in the only reported Alabama case other than Byrom involving a lightning strike, required proof of an “increased risk” to the employee of suffering a lightning strike:

“ ‘[I]f the position which the workman must necessarily occupy in connection with his work results in excessive exposure to the common risk ... or if the continuity or exceptional amount of exposure aggravates the common risk ... then it is open to conclude that the accident did not arise out of the common risk, but out of the employment.’ ”

American Fuel & Clay Prods. Co. v. Gilbert, 221 Ala. 44, 46, 127 So. 540, 541 (1930) (quoting Cudahy Packing Co. v. Parramore, 263 U.S. 418, 425, 44 S.Ct. 153, 68 L.Ed. 366 (1923) (a case in which the United States Supreme Court consistently referred to the employee’s being hit by lightning as an “accident”)). Likewise, in the early case of Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938), the Alabama Supreme Court explained the use of the increased-risk test in a case in which a death from pneumonia resulting from an employee’s being required to work outside in wet conditions was considered an “accident” arising out of the employment.

The proof offered by the employee as to the “accident” in the present case satisfies neither the “set-in-motion” test nor the “increased-risk” test. I therefore agree that the requisite “causal connection” between the employment and the employee’s injuries has not been shown.

      . "We use the word 'idiopathic' ... to mean 'peculiar to the individual' and not ‘arising from an unknown cause.’ Idiopathic refers to an employee's preexisting physical weakness or disease. 1 Larson, Workmen’s Compensation Law § 12.00.” Ex parte Patterson, 561 So.2d 236, 238 n. 2 (Ala.1990).

      . It does not appear that this Court has yet cited Byrom as authority on this point, nor, until the present case, has it had the opportunity to address whether Byrom improperly relied on dicta.

      . With the exception of Judge Moore's special concurrence in Muilenburg, supra, the Court of Civil Appeals' opinion in Brown appears to be the only published decision explicitly interpreting Byrom in this manner.

      . On certiorari review, this Court agreed that the terms “accident” and "nonaccidental injury” as used in note 3 and the accompanying of text of Trinity Industries conflicted with the statutory definition of the term "accident” in § 25-5-1(7), at least to the extent that it held that Byrom’s injury had been improperly viewed by the Court of Civil Appeals as a "nonaccidental” injury. See Ex parte Byrom, 895 So.2d 942, 947 (Ala.2004). This Court went on to analyze the claim before it under the "increased-risk” test. Id. at 948-49. (I question the manner in which this Court reasoned that the record in Ex parte Byrom supported the conclusion that the "increased-risk” test had been satisfied and whether that reasoning improperly relieved the plaintiff of his burden of proof in this regard, an issue not presented here.)

      . If all that was necessary to satisfy the legal-causation requirement was proof that an accident occurred as a result of some external force operating upon the employee while the employee was at work, then employees suffering while at work, but in common with others in their communities, as a result of a natural disaster, e.g., a flood or a hailstorm, would always be able to recover compensation under the Workers' Compensation Act for any personal injury caused by such disaster.

      . It is also based on this reasoning that the leading national treatise on workers’ compensation law indicates that the increased-risk test should be applied to cases involving injury or death by lightning, 1 Arthur Larson and Lex K. Larson, Larson’s Workers' Compensation Law § 5.01[1] (2001), as does a treatise on Alabama workers’ compensation law, 1 Terry A. Moore, Alabama Workers’ Compensation § 10:10-11, pp. 329-31 (1998).


author: THOMAS, Judge.

text:
    Natalie ROCKETT v. Craig L. ROCKETT.
    2100420.
    Court of Civil Appeals of Alabama.
    Aug. 5, 2011.

      Andrew Laplante, Bessemer, for appellant.

      Charles H. Dunn of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellee.
   THOMAS, Judge.

Natalie Rockett (“the wife”) appeals from a judgment of the Bessemer Division of the Jefferson Circuit Court divorcing her from Craig L. Rockett (“the husband”) insofar as it failed to award her periodic alimony or to reserve the issue of alimony for future consideration.

The parties were married in February 1992. The parties separated in July 2008, and, on March 12, 2009, the husband filed a complaint in the trial court, seeking a divorce from the wife based on incompatibility. The wife answered the husband’s complaint and counterclaimed for a divorce, alleging adultery, abandonment, and incompatibility.

The wife also moved the trial court for pendente lite relief, stating that the parties had reached an agreement on several issues and requesting that the trial court enter a pendente lite award based on the parties’ agreement. The trial court entered a pendente lite order on May 20, 2009. The pendente lite order restrained the parties from harassing, stalking, or threatening each other, and it restrained the parties from contacting or otherwise communicating, directly or indirectly, with each other. The pendente lite order further provided that the wife would have exclusive possession of the marital residence.

On June 5, 2009, the husband moved the trial court for pendente lite relief. In his motion, the husband stated that the parties had been unable to agree on disposition of the marital residence, that neither party desired to possess the marital residence, and that it was in the best interests of the parties to place the marital residence for sale, using the proceeds from the sale to satisfy the outstanding mortgage and dividing any remaining proceeds between the parties. The husband requested that the trial court enter an order requiring the parties to place the marital residence on the market for sale and requiring each party to pay one-half of the monthly mortgage-payment obligation.

On June 19, 2009, the wife moved the trial court for pendente lite alimony. In her motion, the wife alleged that she had been employed until March 2009, when the clothing store where she had worked closed, and that she had been unable to find employment since that time despite her diligent efforts. The wife alleged that she needed financial assistance from the husband and that her only source of income was $250 per week in unemployment-insurance benefits. The wife further alleged that she was unable to pay the mortgage payment or utility bills for the marital residence. On August 13, 2009, the trial court entered a second pendente lite order, requiring the parties to list the marital residence for sale, ordering that any proceeds from the sale of the marital residence be paid to the circuit clerk pending further orders of the trial court, and ordering the husband to make the mortgage payments on the marital residence.

The trial court held a hearing on August 4, 2010, at which the husband and the wife testified. On September 7, 2010, the trial court entered a judgment divorcing the parties. In its judgment, the trial court awarded each party the automobile, clothes, and personal property currently in his or her possession and ordered each party to be responsible for the outstanding debt on the automobile that he or she was awarded. The trial court ordered that the marital residence be sold, with the net proceeds of the sale to be divided between the parties; however, if one of the parties desired to keep the marital residence, the party could notify the other party within 60 days and then assume the mortgage. The wife was ordered to vacate the marital residence within 60 days of the entry of the judgment if the husband elected to assume the outstanding mortgage. The trial court further ordered that each party was responsible for any bills in his or her name. The trial court also ordered the husband to pay the wife $6,000 as alimony in gross, payable in 12 monthly payments at $500 per month, awarded the wife $323 as her half interest in the husband’s retirement account, and ordered each party to pay his or her own attorney’s fees.

The wife filed a postjudgment motion on October 7, 2010, in which she argued, among other things, that the trial court should convert its $6,000 alimony-in-gross award to a $500-per-month periodic-alimony award and that the trial court should order the husband to pay the wife’s attorney’s fees. The trial court denied the wife’s postjudgment motion, and the wife subsequently appealed to this court.

The wife argues on appeal that the trial court erred by failing to award her periodic alimony and by not reserving the right to order periodic alimony in the future. We will first address the wife’s argument that the trial court erred in not awarding her periodic alimony.

“The well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed correct. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Id. at 733. On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O'Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).”

Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003). When reviewing the trial court’s determination regarding alimony, we must also consider its division of the marital estate.

“An award of alimony and the division of marital property are considered together and are matters within the discretion of the trial court. Carter v. Carter, 934 So.2d 406 (Ala.Civ.App.2005) (citing Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001)). Because those matters are interrelated, the entire judgment must be considered in determining whether the trial court exceeded its discretion as to either issue. See [Harmon v.] Harmon, [928 So.2d 295 (Ala.Civ.App.2005) ]. Furthermore, a property division does not have to be equal, but it must be equitable, J.H.F. v. P.S.F., 835 So.2d 1024 (Ala.Civ.App.2002), and it must be ‘supported by the particular facts of the ease,’ Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000). The determination of what is equitable is a matter of discretion for the trial court. See Carter, supra.

Clements v. Clements, 990 So.2d 383, 390 (Ala.Civ.App.2007). The trial court should consider several factors when determining a party’s need for alimony and when dividing marital property, including “ ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.’ ” Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)).

The husband was 89 years old at the time of trial. He was employed by Alabama Aviation, where he had worked for over 19 years, and he earned approximately $45,000 per year. After the parties separated in July 2008, the husband lived with his parents for approximately one year. The husband then moved in with his girlfriend, with whom he claimed to have begun a relationship only after the parties had separated. The husband testified that his monthly take-home income was $2,692 and that his monthly living expenses totaled $2,548, including the mortgage payment on the marital residence in which the wife was residing, for which he was responsible. The husband also testified that he earned some income from playing in a rock band part-time; however, the husband testified that that income barely covered the expenses associated with the band’s activities.

The wife was 53 years old at the time of trial. The wife had worked in retail, specifically specialty-clothing stores, “off and on” for over 40 years. The wife has a bachelor’s degree in merchandising with a minor in marketing. Her last employer was a specialty-clothing store in Mountain Brook, where she had worked for 18 years; she managed the store and earned an annual salary of $45,000. The store closed in March 2009, leaving the wife unemployed. The wife received unemployment-insurance payments in the amount of $250 per week after she lost her job; her unemployment-insurance payments ended in March 2010. The wife testified that she began looking for work as soon as she found out the store would be closing — around Christmas of 2008. The wife did not find new employment until after she stopped receiving unemployment-insurance payments— in May 2010 — when the wife began working at another specialty-clothing store; at the time of trial, the wife worked there 29 hours per week at a rate of $10 per hour, earning a total of $290 per week. The wife testified that she had looked for additional, part-time work that would not interfere with the hours she was working at her new job; however, she testified that her efforts had been unsuccessful. When asked on cross-examination whether she had attempted to find employment that would afford her more hours per week than the 29 she was currently working, the wife responded that her first obligation was to her current employer because she hoped that her employment there “would turn into something better.” The wife testified that her monthly expenses totaled $1,061; however, the wife also testified that she would need an additional $750 or $800 in order to pay rent once she moved out of the marital residence; at the time of trial, the wife was still living in the marital residence. The wife further testified that she estimated that she would need an additional $1,500 to $2,000 per month on which to live.

The wife testified that she suffered from health problems. Specifically, the wife testified that she had type II diabetes and a mitral-valve issue. The wife testified that stress aggravates her mitral-valve issue and that, when she is under a large amount of stress, her chance of having a stroke or heart attack increases. The wife also testified that she was not taking all the medications that she should have been taking because she could not afford them.

The testimony shows that, until the wife lost her job in March 2009, the parties had similar incomes. The wife has a college degree and a large number of years of experience in the retail-clothing sales industry. Although it is clear from the evidence that the wife cannot presently meet all of her expenses with her current income, the trial court could have considered the wife’s earning ability, and not just her current income, when deciding whether to award periodic alimony. See Miller v. Miller, 47 So.3d 262, 265 (Ala.Civ.App. 2009) (quoting Ebert v. Ebert, 469 So.2d 615, 618 (Ala.Civ.App.1985)) (“This court has held that the ‘ability to earn, as opposed to actual earnings, is a proper factor to consider’ in deciding an award of periodic alimony.”). See also Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009) (“In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties.... ”).

Moreover, as we noted above, the trial court’s decision whether to award periodic alimony must be considered in light of its division of the marital property. See Clements, 990 So.2d at 390. In this case, the marital residence constituted the parties’ main asset. Both parties testified that they did not want, and could not afford to keep, the marital residence. Thus, the marital residence was ordered sold, with the proceeds of the sale to be split equally between the parties. The husband and the wife each received an automobile titled in his or her name, along with the responsibility to pay the debt associated with the automobile, and whatever' personal property was in that party’s possession. There was little testimony regarding the value of the parties’ personal property, and based on the testimony it does not appear that the parties had any significant savings. The wife was awarded a mutual-fund account that was in her name, which had a balance of $3,500, and was awarded one-half of the present value of the husband’s retirement account. Additionally, the husband was ordered to pay to the wife $6,000 as alimony in gross. From the items for which the trial court had values, it appears that the wife was awarded at least half of the marital estate and, in addition, $6,000 in alimony in gross. Thus, considering the wife’s education, experience, and earning capacity, together with the division of the marital property, including the award of alimony in gross, the trial court could have concluded that it did not need to award the wife periodic alimony. We therefore affirm the trial court’s determination not to award periodic alimony to the wife.

However, we reach a different conclusion with regard to the trial court’s failure to reserve the right to order periodic alimony in the future. “Where the trial court does not grant an award of periodic alimony in the divorce judgment and does not reserve the right to do so upon future consideration, its power to grant it is lost.” Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). Given the circumstances of the parties in this case, we cannot say that the wife would not be entitled to an award of periodic alimony in the future. Therefore, the trial court erred when it failed to reserve the right to order periodic alimony in the future. See Ex parte Yost, 775 So.2d 794, 797 (Ala.2000) (affirming a trial court’s denial of periodic alimony but holding it was error to not reserve the right to order periodic alimony in the future).

We reverse the trial court’s judgment insofar as it failed to reserve the issue of periodic alimony. We affirm the trial court’s judgment in all other respects.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

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

      . The wife testified that she estimated that the marital residence could sell "in the high $180s,” although the only offer the parties had had on the marital residence had been approximately $170,000. The outstanding balance on the mortgage equaled approximately $163,177.51. Both parties stated that if the marital residence did not sell, it would likely go into foreclosure.

      . The wife also argues that the husband's conduct warrants an award of periodic alimony. Although the trial court did not state the grounds on which it based the parties’ divorce, the trial court found that it was undisputed that "the [husband] had engaged in an adulterous affair after the breakup of the marriage and continued up though the day of trial." Although the conduct of the parties is a factor that the trial court may consider when considering an award of periodic alimony and the division of the marital property, see Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000) (quoting Myrick v. Myrick, 714 So.2d 311, 315 (Ala.Civ.App.1998)) (‘"[T]he conduct of the parties and fault with regard to the breakdown of the marriage are factors for the trial court to consider in fashioning its property division.' ”), a party's conduct does not mandate an award of periodic alimony in all cases.


text:
    S.D. v. SHELBY COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100456.
    Court of Civil Appeals of Alabama.
    Aug. 5, 2011.

      James V. Green, Jr., Alabaster, for appellant.
    Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appel-lee.
   THOMAS, Judge.

S.D. (“the mother”) appeals from a judgment of the Shelby Juvenile Court terminating her parental rights to L.A. (“the child”). We affirm.

On May 24, 2004, the mother pleaded guilty to allowing her children to be used in the production of pornographic material and to production of pornographic material involving a minor child. The first statute that the mother was convicted of violating was § 13A-12-196, Ala.Code 1975, which, at the time of the mother’s conviction, provided:

“Any parent or guardian who knowingly permits or allows their child, ward, or dependent under the age of 17 years to engage in the production of any obscene matter containing a visual reproduction of such child, ward, or dependent under the age of 17 years engaged in any act of sado-masochistic abuse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class A felony.”

The second statute that the mother was convicted of violating was § 13A-12-197, Ala.Code 1975, which, at the time of the mother’s conviction, provided:

“Any person who knowingly films, prints, records, photographs or otherwise produces any obscene matter that contains a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class A felony.”

The victims of the mother’s crime were her two older children, who are half sisters to the child; the child had not been born at the time of the mother’s convictions. The mother was sentenced to 10 years in prison for each offense, with the sentences running concurrently. The mother’s sentences were split; the mother was ordered to spend 2 years in prison with the remainder of the 10-year sentences suspended provided that the mother successfully completed 3 years of probation. The mother was also ordered to attend a sexual-health clinic at the University of Alabama at Birmingham upon her release from prison.

The mother’s convictions for the offenses listed in § 13A-12-196 and § 13A-12-197 subjected her to the Community Notification Act, codified at § 15-20-20 et seq., Ala.Code 1975 (“the CNA”). One of the requirements of the CNA is that the mother notify law enforcement of her residence. The mother failed to comply with this requirement and, in 2008, was convicted of violating the notice provisions of the CNA, a Class C felony. The mother was given a five-year suspended sentence and placed on probation for five years.

The CNA also bars the mother from residing with a child. Section 15-20-26(c), Ala.Code 1975, provides, in pertinent part:

“No adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, an adult criminal sex offender may reside with a minor if the adult criminal sex offender is the parent, grandparent, or stepparent of the minor, unless one of the following conditions applies:
“(2) The adult criminal sex offender has been convicted of any criminal sex offense in which any of the offender’s minor children, grandchildren, or stepchildren were the victim.”

In this case, the mother was an adult at the time of her crimes, classifying her as an adult criminal sex offender under the CNA, and her victims were her minor children. Thus, the CNA prohibits the mother from establishing a residence with a minor, including her own children. As a result of the mother’s convictions, the mother’s two older children, the half sisters of the child, were removed from the mother’s care; one child was placed in the custody of her father, and the other child was placed in the custody of the mother’s brother.

The child was born on May 27, 2008. In July 2008, the Shelby County Department of Human Resources (“DHR”) became aware that the child was living with the mother; it then removed the child from the mother’s care. The juvenile court adjudicated the child dependent in February 2009, ordered that the mother not have any contact with the child, and determined that DHR was not required to make reasonable efforts to reunite the mother and the child.

On October 20, 2009, DHR filed a petition to terminate the mother’s parental rights. In its petition, DHR alleged that the mother’s conduct and condition was such as to render her unable to care for the child. Specifically, DHR alleged that the mother had

“placed the child in clear and present danger of being tortured, abused, cruelly beaten or otherwise maltreated as evidenced by the treatment of a sibling or siblings, to wit[:] on or about May 24, 2004, [the mother] was convicted of violating § 13A-12-196, Code of Alabama (1975), Parents or guardians permitting children to engage in production of obscene matter, and § 13A-12-197, Code of Alabama (1975), Production of obscene matter containing visual depiction of a person under 17 years of age involved in obscene acts, where the victims of said crimes were the children of [the mother] and the siblings of [the child.] As such, [the mother] is a Registered Sex Offender and is prohibited from establishing a residence with [the child] pursuant to § 15-20-26(e)(2), Code of Alabama (1975). Furthermore, [the mother] has failed to provide stable housing and maintain stable employment, has a history of neglect and/or abuse of children and has further failed to provide for the material needs of said child.”

DHR also alleged that, because the mother was a registered sex offender and was prohibited by the CNA from establishing a residence with the child, it was not required to make reasonable efforts to reunite the mother and the child. DHR further alleged that no suitable relative resources were available for the placement of the child.

In response to DHR’s petition, the mother filed a notice that she intended to challenge the constitutionality of the CNA as it applies to her; the mother served the attorney general with her notice. The mother alleged that the CNA was vague and ambiguous, that it deprived her of due process, that it denied her equal protection, and that it violated her constitutionally protected right to the care, custody, and control of her child. The mother further alleged that the CNA effected a statutory per se termination of her parental rights, in violation of the separation-of-powers doctrine. The mother also filed a “motion for directed verdict or, in the alternative, [a] motion to dismiss,” which was in essence a motion for a summary judgment, based on the same grounds. The attorney general filed a response in opposition to the mother’s motion, denying that the CNA was unconstitutional.

Before ruling on the mother’s motion, the juvenile court held a trial on DHR’s petition to terminate the mother’s parental rights on March 26, 2010. The only witness who testified at the trial was LaBrena Friend, the DHR caseworker assigned to the case. The mother was present at the trial; however, she did not testify. On April 22, 2010, the juvenile court held a hearing on the mother’s motion challenging the constitutionality of the CNA as it applies to her. On January 3, 2011, the juvenile court entered a judgment terminating the mother’s and the father’s parental rights. On the same date, it entered an order determining that the CNA is not unconstitutional as it applies to the mother and denying her motion for a summary judgment.

The mother filed a postjudgment motion on January 14, 2011. While her post-judgment motion was pending, the mother filed a supplemental postjudgment motion, arguing for the first time that placement of the child with the child’s half sister, T.C., was a viable alternative to the termination of the mother’s parental rights. The mother’s postjudgment motion was denied by operation of law, and the mother timely appealed to this court.

On appeal, the mother first argues that the CNA is unconstitutional as it applies to her because, the mother argues, it effects a per se statutory termination of her parental rights on a basis other than the grounds for termination of parental rights provided in § 12-15-319, Ala.Code 1975. However, reviewing the facts of this case, we determine that the juvenile court had sufficient bases to terminate the mother’s parental rights pursuant to the grounds listed in § 12-15-319; therefore, because the juvenile court could have terminated the mother’s parental rights absent the provisions of the CNA, we need not reach the constitutional issue raised by the mother. As the Alabama Supreme Court has held:

“ ‘ “A court has a duty to avoid constitutional questions unless essential to the proper disposition of the case.” ’ Lowe v. Fulford, 442 So.2d 29, 33 (Ala.1983) (quoting trial court’s order citing Doughty v. Tarwater, 261 Ala. 263, 73 So.2d 540 (1954); Moses v. Tarwater, 257 Ala. 361, 58 So.2d 757 (1952); and Lee v. Macon County Bd. of Educ., 231 F.Supp. 743 (M.D.Ala.1964)). ‘“Generally courts are reluctant to reach constitutional questions, and should not do so, if the merits of the case can be settled on non-constitutional grounds.” ’ Lowe, 442 So.2d at 33 (quoting trial court’s order citing White v. U.S. Pipe & Foundry Co., 646 F.2d 203 (5th Cir.1981)). ‘ “No matter how much the parties may desire adjudication of important questions of constitutional law, broad considerations of the appropriate exercise of judicial power prevent[ ] such determinations unless actually compelled by the litigation before the court.” ’ Lowe, 442 So.2d at 33 (quoting trial court’s order citing Troy State Univ. v. Dickey, 402 F.2d 515 (5th Cir.1968)).”

Chism v. Jefferson Cnty., 954 So.2d 1058, 1063 (Ala.2006).

Section 12-15-319 provides, in part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by the treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.”

Section 12-15-301(2), Ala.Code 1975, defines abuse as:

“Harm or the risk of harm to the emotional, physical health, or welfare of a child. Harm or the risk of harm to the emotional, physical health, or welfare of a child can occur through nonaccidental physical or mental injury, sexual abuse, or attempted sexual abuse or sexual exploitation or attempted sexual exploitation.”

In turn, § 12-15-301(12) defines sexual abuse:

“Sexual abuse includes the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or having a child assist any person to engage in, any sexually explicit conduct or any simulation of the conduct for the purpose of producing any visual depiction of the conduct. Sexual abuse also includes rape, molestation, prostitution, or other forms of sexual exploitation or abuse of children, or incest with children, as those acts are defined in this article or by Alabama law.”

Sexual exploitation is defined by § 12-15-301(13) thusly:

“Sexual exploitation includes allowing, permitting, or encouraging a child to engage in prostitution and allowing, permitting, encouraging, or engaging in the obscene or pornographic photographing, filming, or depicting of a child.”

The mother’s conviction for allowing her children to be used in the production of obscene, pornographic materials and her conviction for production of obscene, pornographic materials involving her children meet the definitions of sexual abuse and sexual exploitation under § 12-15-301; therefore, her convictions also fall under the definition of abuse as defined by that section. The evidence is also clear that the mother’s convictions were for felonies and that the mother was imprisoned as a result of her convictions. Thus, the juvenile court had before it clear and convincing evidence, i.e., evidence of the mother’s convictions, sufficient for it to determine that the mother had been convicted of and imprisoned for felonies and that the child was in danger of being abused, as evidenced by the mother’s treatment of the child’s half siblings. Because these determinations are sufficient to support a determination that grounds existed to terminate the mother’s parental rights to the child under § 12-15-319(a), we need not address whether the CNA provides further grounds to support termination or whether the CNA is unconstitutional as it applies to the mother.

The mother next argues that the juvenile court erred in terminating her parental rights because, she says, placement of the child with T.C. was a viable alternative to the termination of the mother’s parental rights. According to Friend, the mother provided DHR with the names of six relatives who possibly could serve as relative placements for the child. T.C. was not among the names provided to DHR by the mother. Additionally, the mother did not raise the possibility of T.C.’s serving as a relative placement at the trial on DHR’s termination petition. Instead, the mother raised this argument for the first time in her postjudgment motion. We have held that,

“ ‘[although DHR has a responsibility to investigate alternate relative placements for a child, that obligation does not entirely alleviate the responsibility of the parent who purports to oppose the termination of his or her parental rights of making DHR social workers aware of alternative placement possibilities.’ ”

J.F.S. III v. Mobile Cnty. Dep’t of Human Res., 38 So.3d 75, 78 (Ala.Civ.App.2009)(quoting B.S. v. Cullman Cnty. Dep’t of Human Res., 865 So.2d 1188, 1197 (Ala.Civ.App.2003)). Because the mother did not provide DHR with any information concerning T.C.’s possibly serving as a relative resource until after the juvenile court had entered its judgment terminating her parental rights, we cannot hold the juvenile court in error for determining that there were no viable alternative to the termination of the mother’s parental rights. See J.F.S. III, 38 So.3d at 78-79.

Because the mother has failed to show any error by the juvenile court in terminating her parental rights, we affirm the judgment of the juvenile court.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

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

      . DHR also petitioned the juvenile court to terminate the parental rights of B.T. ("the father”). The juvenile court terminated the father’s parental rights; the father has not appealed from the judgment.

      . T.C. was removed from the mother’s care after the mother’s convictions in 2004; T.C. was a victim of those crimes. T.C. turned 19 years old 2 weeks before the juvenile court held a trial on DHR's termination petition.