REL: 06/30/2003 SPAIN v. BROWN
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2002-2003
_________________________
_________________________
Paul L. Spain, as administrator for the estate of
Carolyn Watts Spain, deceased
v.
Brown & Williamson Tobacco Corporation et al.
Certified Questions from the United States Court of Appeals for the Eleventh Circuit
(No. 99-15921)
Carolyn Watts Spain ("Carolyn") was a cigarette smoker during most of her lifetime. After her death, her husband, Paul L. Spain ("Spain"), as administrator for Carolyn's estate, filed a wrongful-death action in the Jefferson Circuit Court against Brown & Williamson Tobacco Corporation; Philip Morris, Inc. (now Philip Morris USA Inc.); (1) and R.J. Reynolds Tobacco Corporation (hereinafter referred to collectively as "the manufacturers"), alleging negligence, wantonness, breach of warranty, conspiracy, and liability under the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"). Following the removal of the case to the United States District Court for the Northern District of Alabama, the manufacturers moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The federal district court granted the motion, and Spain appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit certified to us the following questions of state law pursuant to Rule 18, Ala. R. App. P.: (2)
"1. When does the Alabama statute of limitations for claims brought under the AEMLD, and claims premised on negligence, wantonness, breach of warranty and conspiracy begin to run in a smoking products liability case?
"2. Does the Alabama rule of repose apply in a smoking products liability case?
"3. If so, when does the Alabama rule of repose begin to run in a smoking products liability case?
"4. Before the appearance of federally mandated warning labels on cigarettes packages, were cigarettes 'unreasonably dangerous' under the AEMLD?
"5. Since the appearance of federally mandated warning labels on cigarettes packages, have cigarettes been 'unreasonably dangerous' under the AEMLD?
"In addition to certifying the preceding questions to the Alabama Supreme Court, we also invite that Court to tell us if the conclusions we have reached about the following state law issues are incorrect:
"a. that the negligence and wantonness claims merge into an AEMLD claim;
"b. that the sale of cigarettes does not violate the implied warranty of merchantability under Code of Alabama 1975, § 7-2-314;
"c. that the fraudulent suppression claim, which is a basis for Spain's conspiracy claim, is not viable under Alabama law; and
"d. that, if cigarettes are not unreasonably dangerous as a matter of Alabama law, the fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not viable under Alabama law."
Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1312 (11th Cir. 2000).
We begin with a few observations about this Court's response to a certified question from federal courts. This Court's promulgation of the rule that enables a federal court to seek assistance in ascertaining answers to unsettled questions of state law stands as a salutary example of cooperation between federal and state governments. But the practice is not without its limitations. When this Court, as is the case with any appellate court, decides questions presented on an appeal in which numerous issues are argued, the resolution of one or more of the questions presented quite often pretermits the necessity for considering the remaining issues. Sound considerations of judicial policy dictate resolution of only those questions necessary to a decision, without the inclusion of dicta. However, when a federal court certifies questions to us, quite understandably, it often tenders a variety of questions so that it will have ready answers to all questions before it in the event its further analysis of the record renders answers to some of the questions not useful, while the answer to one or more of the remaining questions might dispose of the appeal. Consequently, certified questions can present tension between the legitimate, yet competing, interests of this Court in avoiding answering questions not necessary to a decision and the interests of a federal court needing assistance in dealing with uncharted areas of state law.
A second consideration relates to the maxim often attributed to Albert J. Farrah, a
former dean of the University of Alabama School of Law, who reportedly drilled into
his students, "Out of facts the law arises." (3)
This Court permits a state trial court to
certify to it controlling questions of law as to which there is substantial basis for
difference of opinion. See Rule 5, Ala. R. App. P. We routinely decline to accept a
Rule 5 petition when it appears that as yet undeveloped factual issues are essential to a
determination of an abstractly presented question of law. However, quite often when
asked to respond to a certified question from a federal court, in the interest of comity we
put aside concerns as to unknown or uncertain facts that might affect our answer so as to
assist the federal court in answering a question of state law. If the same questions were
certified to us by a state trial court pursuant to Rule 5, we would decline to answer them
based upon the presence of significant and unresolved factual issues. Against this background, we will endeavor to assist the Eleventh Circuit to the extent
practicable, focusing our attention primarily on the issue of when the statute of
limitations in a "smoking products-liability case" begins to run. The Eleventh Circuit
recited the following facts: "Because the case is before us on a Rule 12(b)(6)[, Fed. R Civ. P.,] dismissal, we take
the facts from the allegations in the complaint, assuming those allegations to be true.
See Brown v. Crawford County, Georgia, 960 F.2d 1002, 1010 (11th Cir. 1992). "Carolyn Spain started smoking cigarettes in 1962, when she was 'approximately 15
years of age and was a multi-pack per day smoker.' She became addicted to the nicotine
in cigarettes early on and was unaware at the time that she was becoming addicted. She
primarily smoked cigarettes manufactured by Philip Morris, Inc., R.J. Reynolds
Tobacco Company, and Brown & Williamson Tobacco Corporation. Carolyn's smoking
was the proximate cause of her lung cancer, which was diagnosed on August 15, 1998.
Unable to stop, she, continued smoking until 1999. She has since died.1 "_______________ "1The complaint does not indicate whether Carolyn Spain continued to smoke until she
died or the date of her death. About the date of her death, we know only that she died
sometime between the diagnosis of lung cancer on August 15, 1998 and the filing of the
complaint in this case on August 5, 1999." 230 F.3d at 1303. The foregoing bare-bones facts are before us. Carolyn became a heavy smoker after
beginning to smoke in 1962 when she was approximately 15 years old. We know that
she became addicted to the nicotine in cigarettes. We know that she was unaware of her
addiction at the outset. She alleges in her complaint that she was unable to stop
smoking. She was diagnosed with lung cancer on August 15, 1998, and died within one
year. Facts not before us are legion. Spain points out that the federal district court dismissed
his complaint before any discovery began. Presumably, as common sense suggests,
Carolyn at some point became aware that she was addicted to cigarettes, but we do not
know that for sure. We do not know whether Carolyn experienced any physical
consequences of smoking before she was diagnosed with lung cancer in 1998.
Reference was made at oral argument before this Court to Carolyn's experiencing
shortness of breath, but nothing in the record thus far suggests that fact. Perhaps
members of the Court could draw upon personal experience and surmise that Carolyn,
as a multi-pack per day addicted smoker, experienced shortness of breath, periodic
episodes of coughing, throat irritation, and reduction in gustatory and olfactory
capacities, but we cannot so conclude with certainty. We do not know whether
symptoms of cancer or cancer cells were present at any time before the diagnosis in
August 1998. We know from matters generally regarded as public knowledge that the
surgeon general of the United States has mandated the inclusion of warnings on
packages of cigarettes since sometime in the 1960s. We further know that the text of
the warning has been adjusted over the years. However, the parties have not furnished
us with information regarding the various formulations in the text and the dates of the
changes. I. The Claims Alleged in the Complaint Before responding to the question dealing with when the statutory limitations period
begins to run, we must first assess the viability of causes of action alleged in the
complaint sounding in tort and in breach of warranty. A. Tort Claims With respect to tort claims, the complaint alleges negligence, wantonness, and claims
under the AEMLD. In a secondary question, the Eleventh Circuit asks us to validate its
assumption that the AEMLD subsumes preexisting remedies at common law. We noted
in Keck v. Dryvit Systems, Inc., 830 So. 2d 1 (Ala. 2002), that the AEMLD, announced
in Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala. 1976), is "a judicially created
accommodation of Alabama law to the doctrine of strict liability for damage or injuries
caused by allegedly defective products." 830 So. 2d at 5. We cannot deduce from this
Court's announcement of the AEMLD in Casrell that the common law was thereby
abrogated by negative inference. As we said in Keck, "Judicial decision-making should
not be seen as the opportunity to legislate and, to the extent Casrell stands as an example
of judicial legislation, it is time for this Court to defer to the Legislature for further
expansion of the sweep of its holding." 830 So. 2d at 8. Spain's negligence and
wantonness claims are, at this stage of the proceedings, viable alternatives to his
AEMLD claim. B. Implied-Warranty Claims Spain abandoned his express-warranty claims during oral argument at the Eleventh
Circuit. As to the implied-warranty claim, the Eleventh Circuit stated: "Unless the
Alabama Supreme Court tells us differently, we are convinced that the complaint does
not state a claim for breach of an implied warranty of merchantability." Spain, 230 F.3d
at 1310-11. In light of Shell v. Union Oil Co., 489 So. 2d 569 (Ala. 1986), and
Yarbrough v. Sears, Roebuck & Co., 628 So. 2d 478 (Ala. 1993), in which this Court
declined to permit claims arising out of the use of allegedly unreasonably dangerous
products to be redressed under the Uniform Commercial Code ("the UCC"), instead
remitting the parties to remedies under the AEMLD, we cannot so limit the scope of the
remedy for breach of an implied warranty. In Shell v. Union Oil Co., Shell alleged "breach of warranty of merchantability" because
a naphtha product, purchased by his employer and then provided to him, contained
benzene, a cancer-causing agent. He alleged that the benzene was not "'fit for the
ordinary purposes for which such goods are used.'" 489 So. 2d at 571 (quoting § 7-2-314(2)(c), Ala. Code 1975). He further alleged that, because benzene was a cancer-causing substance, benzene was unreasonably dangerous and was not merchantable. The defendants, the suppliers of the naphtha product, moved for a summary judgment.
The evidence showed that the naphtha product "was purchased by [Shell's employer] on
a bid basis, in compliance with its specifications, which limited the amount of benzene
any shipment could contain." Shell, 489 So. 2d at 570. "Upon delivery [of the naphtha
product, the employer] tested a random sampling of the shipments to assure that they
conformed to its specifications." Id. The trial court entered a summary judgment in
favor of the defendants. On appeal, Shell raised three issues: "(1) Was there a duty owed, i.e., was there an implied promise? "(2) If so, was that duty breached, i.e., was the promise unperformed? and "(3) Did that duty extend to [Shell], i.e., was the obligation of performance intended for
Shell's protection ...?" 489 So. 2d at 570. Shell argued that the defendants had breached the implied warranty
of merchantability "because the [naphtha product] supplied by Defendants caused
cancer, it could not be 'fit for the ordinary purposes for which such goods are used'; that
is, because this is a cancer-causing substance, it is unreasonably dangerous, and,
therefore, cannot be merchantable." 489 So. 2d at 571. As to that argument, this Court stated: "Such an argument ignores the clear distinction between causes of action arising under
tort law and those under the U.C.C. as adopted in Alabama. A Texas court recognized
that distinction in Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc.,
553 S.W.2d 935 (Tex. Civ. App. 1977): "'[U.C.C.] law, whose statutory language makes no reference to tort law in connection
with products liability, concerns itself with the quality of the product by establishing
standards of merchantability for a particular purpose ... [while the tort law] concerns
itself with safety standards by imposing strict liability upon one who sells an
unreasonably dangerous product which causes physical harm. The considerations
supporting either of the principles are not affected by the considerations underlying the
other, and the standards of quality of a product, with the attendant risk of the bargain,
are entirely distinct from its standards of safety, with a possible unreasonable risk of
harm. It follows that a violation of the standards of safety which results in physical
harm to the unreasonably dangerous product itself subjects the seller to the tort rule of
strict liability.' 553 S.W.2d at 940. "See, generally, Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala. 1976); and
Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976). "Whether this product was unreasonably dangerous, therefore, is not a question properly
addressed in an action brought under the provisions of the U.C.C. That question could
properly be raised in an action brought under Alabama's Extended Manufacturer's
Liability Doctrine (A.E.M.L.D.), but not in this U.C.C. action for breach of warranty. "To cover the initial bare bones question (Was there a duty owed?) with flesh, we
should reask the question: Did the sale of the subject product give rise to an implied
warranty of merchantability in the sense that these two manufacturers promised the
employee that he would not be injured by his use of or contact with their product? The
answer must be made in the context of § 7-2-314: '[Whether this product was] fit for the
ordinary purposes for which such goods are used.' In this instance, the product--made to
[the employer's] specifications--performed the job it was intended to do; and the
manufacturers' warnings and precautions, accompanying the products, were in keeping
with their knowledge of its inherent dangers. Thus, any duty arising under this section
of the Code was not breached. Indeed, more precisely, these undisputed facts do not
give rise to a warranty of merchantability, as contended by Shell. "The implied warranty mandated by this section of the U.C.C. is one of commercial
fitness and suitability, and a private right of action is afforded only where the user or
consumer is injured by the breach of that warranty. That is to say, the U.C.C. does not
impose upon the seller the broader obligation to warrant against health hazards inherent
in the use of the product when the warranty of commercial fitness has been complied
with. Those injured by the use of or contact with such a product, under these
circumstances, must find their remedy outside the warranty remedies afforded by the
U.C.C. For an excellent discussion of this subject, see J. White & R. Summers,
Handbook of the Law Under the Uniform Commercial Code, § 9-7, pp. 350-353 (2d ed.
1980)." Shell, 489 So. 2d at 571-72 (emphasis in final paragraph original; other emphasis
added). Thus, Shell turns on the fact that the naphtha product was "fit for the ordinary
purposes for which such goods are used." 489 So. 2d at 571. Shell does not stand for
the proposition that a product "unfit for the ordinary purposes for which such goods are
used" cannot be unmerchantable. In Yarbrough v. Sears, Roebuck & Co., supra, the Yarbroughs had purchased a kerosene
heater from Sears. A decal on the heater warned against using gasoline in the kerosene
heater. The manufacturer included instructions and warnings with the heater, including
several warnings against using gasoline in the kerosene heater. About one year after purchasing the heater, Mr. Yarbrough purchased fuel "from a
gasoline-type fuel pump labeled 'kerosene'" and filled the heater with the fuel. 628 So.
2d at 480. Some time after the Yarbroughs lit the heater, which was in the kitchen, they
"heard a 'poof' noise from the kitchen." Id. The heater had caught fire. The fire
destroyed the Yarbroughs' home and their personal belongings. The experts for the
plaintiffs and for the defendants agreed that the fire resulted from using gasoline rather
than kerosene as the fuel in the kerosene heater. The Yarbroughs sued Sears and the manufacturer of the kerosene heater, alleging a
violation of the AEMLD and breach of implied and express warranties. This Court
summarized the Yarbroughs' claim as being to the effect that the defendants breached
the implied warranty of merchantability because "the kerosene heater was unreasonably
dangerous and therefore could not be merchantable." Yarbrough, 628 So. 2d at 483. The defendants moved for a summary judgment. The Yarbroughs did not present any
evidence indicating that the heater was "[un]fit for the ordinary purposes for which
such goods are used." Shell, 489 So. 2d at 571. In fact, the Yarbroughs' own expert
admitted that the destruction of the Yarbroughs' house and personal belongings "was the
result of using gasoline, as opposed to kerosene, in the kerosene heater." Yarbrough,
628 So. 2d at 480. The trial court entered a summary judgment in favor of the
defendants. The Yarbroughs appealed. On the issue of breach of the implied warranty
of merchantability, this Court held: "'Such an argument ignores the clear distinction between causes of action arising under
tort law and those arising under the U.C.C. as adopted in Alabama.' Shell v. Union Oil
Co., 489 So. 2d 569, 571 (Ala. 1986). Whether the kerosene heater was unreasonably
dangerous is not a question properly addressed in a claim alleging breach of warranty
under the U.C.C., but it could be, and was, properly raised in a claim under the
AEMLD." Yarbrough, 628 So. 2d at 483. In each case alleging a breach of the implied-warranty of merchantability, the
determination whether there was a breach requires a fact-intensive analysis. In
paragraph 21 of his complaint, Spain alleged that the cigarettes designed, manufactured,
and sold by the manufacturers "were not fit for the ordinary purposes for which they are
used." Thus, he alleged a breach of the implied warranty of merchantability. Because
this case is before the Eleventh Circuit on a motion to dismiss, the record before us does
not contain any evidence indicating that the cigarettes smoked by Carolyn were "fit for
the ordinary purposes for which they are used." Therefore, this case is factually
distinguishable from Shell and Yarbrough. Allen v. Delchamps, Inc., 624 So. 2d 1065 (Ala. 1993), was decided seven days after
the decision in Yarbrough was released. In Allen, Beverly Allen bought two bags of
celery hearts from a Delchamps grocery store, which had inspected sample bags of
celery at its warehouse for freshness and quality. After Allen washed and ate a piece of
raw celery, she had an anaphylactic-shock reaction. Three days later, her husband took
the two bags of celery to a laboratory for testing. The laboratory found that the
unopened bag of celery contained 1.2 parts per million of sodium bisulfite and that the
opened bag contained .5 parts per million of sodium bisulfite. One of Allen's treating
doctors determined that Allen, an asthmatic, was sensitive to metabisulfites. "There was
evidence presented that 1.2 percent of the world population are asthmatics, that
approximately 8 percent of asthmatics are sensitive to sulfites, and that approximately
.096 percent of the world population are asthmatics who are sensitive to sulfites."
Allen, 624 So. 2d at 1066. The Allens sued Delchamps, alleging negligence, wantonness, violations of the
AEMLD, and breach of the implied warranty of merchantability under § 7-2-314, Ala.
Code 1975. Delchamps moved for a summary judgment on all claims. The trial court
granted the motion and "certified the summary judgment as final pursuant to Rule 54(b),
Ala. R. Civ. P." 624 So. 2d at 1067. The Allens appealed. We held, in pertinent part: "In regard to their AEMLD claim, the plaintiffs must prove that Mrs. Allen 'suffered
injury or damages to [herself] or [her] property by one who sold a product in a defective
condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.'
Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala. 1976). Similarly, the
plaintiffs' implied warranty of merchantability claim requires that the plaintiffs show
that the goods were unmerchantable or unfit for the ordinary purposes for which they
are used. Ala. Code 1975, § 7-2-314. These two standards 'go hand-in-hand,' at least as
applied to food products, 'for it is apparent that a food product is defective or
unreasonably dangerous if it is unmerchantable or unfit for human consumption.' Cain
v. Sheraton Perimeter Park S. Hotel, 592 So. 2d 218, 220 (Ala. 1991) (quoting Ex parte
Morrison's Cafeteria of Montgomery, Inc., 431 So. 2d 975, 977 (Ala. 1983))." Allen, 624 So. 2d at 1068 (emphasis added). This Court held that "[w]hether sulfite
preservatives on fresh produce are within the reasonable expectations of a consumer is a
question for a jury." Id. In Ex parte General Motors Corp., 769 So. 2d 903 (Ala. 1999), the plaintiff Aaron
Tucker bought a new Chevrolet Camaro automobile from the dealer. Shortly after he
bought the automobile, it began stalling while Tucker was driving. He testified by
deposition that it stalled about three times per week. Tucker returned the automobile to
the dealer several times, but the stalling problem persisted. Thereafter, while Tucker
was driving the automobile, the automobile stalled, and Tucker lost the power steering
and the power brakes. The automobile left the roadway and collided with a utility pole.
Tucker was injured. The automobile was repaired, but the stalling problem continued.
On another occasion, about one year later, the automobile stalled and would not restart.
Because it was the Fourth of July weekend, Tucker could not have the automobile
towed until the next day. Tucker left the automobile by the side of the road overnight,
and it was vandalized. The dealer refused to repair the automobile. Tucker sued, alleging breach of express warranties and breach of the implied warranties
of merchantability and fitness for a particular purpose. The defendants, the automobile
manufacturer and the automobile dealer, moved for a summary judgment. The trial
court entered a summary judgment in favor of the defendants. Tucker appealed. The
Court of Civil Appeals affirmed in part, reversed in part, and remanded. The Court of
Civil Appeals affirmed the summary judgment on the breach of the implied warranties
of merchantability and of fitness for a particular purpose. We granted Tucker's petition
for a writ of certiorari. On the breach of the implied warranty of merchantability, this Court held: "As the Court of Civil Appeals held, '[t]o establish his claim of breach of the implied
warranty of merchantability, Tucker must "'prove the existence of the implied warranty,
a breach of that warranty, and damages proximately resulting from that breach.'"'
[Tucker v. General Motors Corp.,] 769 So. 2d [895,] 901 [(Ala. Civ. App. 1998)]
(quoting Barrington Corp. v. Patrick Lumber Co., 447 So. 2d 785, 787 (Ala. Civ. App.
1984), quoting, in turn, Storey v. Day Heating and Air Conditioning Co., 56 Ala. App.
81, 83, 319 So. 2d 279, 280 (1975)). Because this case is before this Court on appeal
from a summary judgment in favor of GM and Bishop, we are concerned only with
whether Tucker presented substantial evidence of each of these three factors so as to
create a jury question. "As we have mentioned above, the only evidence in the record is Tucker's deposition
and his affidavit. They contain uncontroverted evidence that Tucker purchased the car
in question from Bishop [the automobile dealer]. It appears undisputed that Bishop is a
'seller' of automobiles, as that term is defined in § 7-2-103, Ala. Code 1975. Thus, §
7-2-314's requirement that the seller be a 'merchant with respect to goods of that kind' is
met, and the record shows that Tucker has presented substantial evidence of the
existence of the implied warranty. The record also contains evidence tending to
establish a breach of the implied warranty of merchantability, because there was
undisputed evidence tending to show that the car stalled repeatedly while Tucker was
driving it and that Bishop failed to correct the problem when he took the car to Bishop
for repair. "Bishop does not dispute that evidence indicating that the car had a stalling problem was
presented; it contends that this evidence is insufficient to create a genuine issue of
material fact on the question whether it breached an implied warranty of
merchantability. Bishop argues that to create a genuine issue of material fact, Tucker
was required to present expert testimony as to why the car stalled. "Bishop relies on Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328 (Ala.
1991), and Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.
1981), as support for its argument that expert testimony was necessary in this case.
Bishop argues that Tucker was required to present expert testimony identifying the
specific cause of his car's stalling problem in order to avoid the entry of a summary
judgment. [Bishop] argues: "'In [Haven Hills Farm], a fittingly [analogous] case, a buyer brought a products liability
claim for a defective car tire. The Supreme Court in [Haven Hills Farm] equated the
legal burden in a products liability case to that of the Plaintiff's burden in a breach of
warranty case. [395 So. 2d] at 995. In both types of cases, the Plaintiff must prove a
defect, "which rendered the product not fit for its anticipated use--and the defect links to
the defendant."' "Bishop's Brief at 11. Bishop also cites Brooks as support for its argument. "Bishop's reliance on Brooks and Haven Hills Farm is, however, misplaced. Those
cases involved claims brought under the Alabama Extended Manufacturer's Liability
Doctrine ('AEMLD'). The AEMLD doctrine is based in tort law, having evolved from
negligence law and having been influenced by Restatement (Second) of Torts. Haven
Hills Farm, 395 So. 2d at 993-94. Under the AEMLD, a plaintiff is required to prove,
among other things, that a product is unreasonably dangerous as a result of a defect and
that the plaintiff suffered injury as a result of the defect. Id. at 994. "We are aware, of course, that in defining 'defect,' this Court incorporated into AEMLD
law some of the analysis applicable in cases arising, as does this one, under the UCC
doctrine of the implied warranty of merchantability. Id. Specifically, this Court has
combined the doctrine of 'fitness for the ordinary purpose intended' of UCC law and the
tort concept of 'unreasonably dangerous' in defining 'defect.' See Haven Hills Farm,
supra, for further discussion of AEMLD law. "We do not believe the fact that this Court borrowed some principles from UCC law in
developing a definition of 'defect,' as that term is used in AEMLD cases, forces the
conclusion that principles of AEMLD law are always applicable in cases involving the
implied warranty of merchantability. In fact, this Court has continued to recognize the
clear distinction between AEMLD law and UCC law. See Yarbrough v. Sears, Roebuck
& Co., 628 So. 2d 478 (Ala. 1993), and Shell v. Union Oil Co., 489 So. 2d 569 (Ala.
1986). "Finally, we note that this Court has previously affirmed judgments entered against
defendants in breach-of-warranty cases where the plaintiffs did not present the kind of
expert testimony Bishop argues is required here. See Volkswagen of America, Inc. v.
Dillard, 579 So. 2d 1301 (Ala. 1991), and Ford Motor Co., Inc. v. Phillips, 551 So. 2d
992 (Ala. 1989). "Alabama law does not require that an expert witness testify in every case involving an
alleged malfunction of a product where the plaintiff has sued alleging a breach of the
implied warranty of merchantability. Given the uncontradicted evidence in this case,
we conclude that Tucker presented substantial evidence of a breach of the implied
warranty of merchantability and of damage and thereby created a genuine issue of
material fact." Ex parte General Motors Corp., 769 So. 2d at 912-13 (emphasis on "expert testimony"
in second full paragraph of quoted material original; other emphasis added). Thus, a
claim alleging breach of an implied warranty of merchantability is separate and distinct
from an AEMLD claim and is viable to redress an injury caused by an unreasonably
dangerous product. II. The Statute of Limitations The first certified question deals with the pivotal threshold issue of when the statutory
limitations period begins to run on tort as well as warranty claims in a "smoking
products liability case." A. Tort Claims The Eleventh Circuit notes that Spain contends that Carolyn did not have an actual
injury, and thus the cause of action did not accrue, until August 15, 1998, when Carolyn
was diagnosed with lung cancer. Accordingly, Spain argues that the complaint, which
was filed on August 5, 1999, was filed before the statutory limitations period expired.
Alabama's Wrongful Death Act, § 6-5-410, Ala. Code 1975, requires that an action be
filed within two years of the date of the death. Furthermore, for the death to be
actionable, the decedent must have been able to bring an action without the bar of
limitations as a defense had he or she lived. Hall v. Chi, 782 So. 2d 218, 221 (Ala.
2000). This action was filed within two years of Carolyn's death. The relevant inquiry turns upon whether Carolyn could have filed an action at the time
of her death against the manufacturers alleging negligence or claims under the AEMLD
that would not have been barred by the two-year statute of limitations applicable to all
of the tort claims set forth in the complaint. See § 6-2-38, Ala. Code 1975. The Eleventh Circuit observes: "The defendants argue that, taking the complaint as
true, a 'completed wrong' occurred, and thus Spain's cause of action arose, when
Carolyn became addicted to cigarettes shortly after she began smoking in 1962." 230
F.3d at 1306. Before us, the manufacturers' position as to addiction is not as neatly
presented. An answer to the first question in the context of addiction as a starting point
of the running of our two-year statutory limitations period requires an analysis of
whether that issue is available to this Court based upon the briefs submitted to us. While an amicus brief filed in this case by the plaintiff in the Tillman (4) case rejects
addiction as a compensable physical injury, Spain makes no such concession. To the
contrary, Spain states in his brief to this Court that "[t]he issue of whether Mrs. Spain's
addiction, standing alone, was a legal injury, or that her addiction proximately caused or
contributed to her death, depends on medical opinions and/or historical facts which
should not be addressed in the context of a Rule 12(b)(6) motion to dismiss." The manufacturers contend that addiction to cigarettes is not a compensable tort; they
cite five cases in support of that contention. The manufacturers first cite Castano v.
American Tobacco Co., 84 F.3d 734 (5th Cir. 1996), for its reference to the novelty of
the theory. However, the court in Castano was reviewing, and reversed, a trial court's
class-certification order. In so doing, the United States Court of Appeals for the Fifth
Circuit observed that the addiction-as-injury claims were "permeated with individual
issues, such as proximate causation, comparative negligence, reliance, and
compensatory damages." 84 F.3d at 750. That court noted: "State courts are more than
capable of providing definitive statements regarding the validity of addiction-as-injury
claims." 84 F.3d at 750 n.29. Castano simply does not stand for the proposition for
which the manufacturers cite it. The manufacturers next cite an unpublished opinion of
an Illinois trial court, noting that that court found no authority on which to base a
holding that addiction was a compensable injury. Clearly, this opinion is not binding,
and its persuasive value is questionable. The manufacturers next cite an unpublished
opinion of the United States District Court for the Southern District of Alabama, which
holds that an inmate's addiction claim did not satisfy the physical-injury requirement of
42 U.S.C. § 1997e(e). The federal district court's decision was reversed in Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309 (11th Cir. 2002), on the ground
that 42 U.S.C. § 1997e(e) did not apply. The Eleventh Circuit stated that it would not
reach the question whether the inmate's complaint stated a claim under state law
because the district court had not yet addressed the issue. The manufacturers next cite
Emig v. American Tobacco Co., 184 F.R.D. 379 (D. Kan. 1998), a case declining to
certify a class action. Finally, the manufacturers cite an unpublished opinion in Lyons
v. American Tobacco Co. (No. Civ. A 96-0881-BH-S, September 30, 1997) (S.D. Ala.
1997) (not published in F.Supp.), stating that it applies Castano. This statement is
accurate. But Lyons is another class-action case applying Castano on unrelated issues
concerning class certification. The manufacturers' resistance to the viability of addiction as a claim for relief does not
justify the conclusion that they have therefore waived any defense of limitations should
the claim be deemed viable. In their brief to this Court, the manufacturers argue: "If,
on the other hand, this Court were to find that addiction to cigarettes is a sufficient
injury to create a cause of action, then application of the 'first-injury' rule would require
that Spain's entire complaint be dismissed on statute of limitations grounds." Even
assuming that Spain may disavow any damages from addiction, such a litigation posture
should not control our analysis of the date of the first injury in determining when the
applicable limitations period begins to run. Regardless of the posturing by the parties,
addiction to nicotine is a critical consideration in an analysis of the difficult issue of
applying the statute of limitations to claims by smokers in smoking products-liability
cases. The United States Court of Appeals for the Ninth Circuit found addiction to nicotine to
be the event starting the running of the limitations period in Soliman v. Philip Morris
Inc., 311 F.3d 966 (9th Cir. 2002), where the Court applied California law to a claim for
damages based on nicotine addiction and found the action barred by the statute of
limitations. The Ninth Circuit quoted California authority as follows: "'[W]here an injury, although slight, is sustained in consequence of the wrongful act of
another, and the law affords a remedy therefor, the statute of limitations attaches at
once. It is not material that all the damages resulting from the act shall have been
sustained at that time, and the running of the statute is not postponed by the fact that the
actual or substantial damages do not occur until a later date.'" 311 F.3d at 972 (quoting Nodine v. Shiley Inc., 240 F.3d 1149, 1153 (9th Cir. 2001),
quoting in turn Spellis v. Lawn, 200 Cal. App. 3d 1075, 1080-81, 246 Cal. Rptr. 385
(1988)) (emphasis added). That holding is comparable to the holding in Garrett v.
Raytheon Co., 368 So. 2d 516 (Ala. 1979), superseded by statute on other grounds, as
noted in Johnson v. Garlock, Inc., 682 So. 2d 25 (Ala. 1996). In Soliman, the Ninth
Circuit held that a smoker's action against cigarette manufacturers alleging that he
suffered from nicotine addiction and other injuries accrued, for limitations purposes, on
the date that the smoker knew or should have known that he was addicted, and that even
if the cigarette manufacturers attempted to conceal the risks of addiction, the smoker
was charged with common knowledge that smoking causes addiction. The Court held:
"Soliman alleges that he suffered a number of significant injuries from the cigarettes he
smoked. The injury he should have known about first [i.e., addiction] is the one that
starts the statute of limitations." 311 F.3d at 972 (footnote omitted). The date Carolyn
became addicted to nicotine is the date the statutory limitations period began to run as to
Spain's tort claims. Paragraph 25 of Spain's complaint states: "The [manufacturers'] cigarette products,
when used as intended[,] were highly likely to induce in foreseeable users a state of
habituation, habit formation and/or dependence, characterized by users' great difficulty
in terminating or restricting their chronic use." Such an allegation is not atypical, given
that addiction to nicotine has been recognized as an essential part of a smoker's claims.
See, e.g., Barnes v. American Tobacco Co., 161 F.3d 127, 144 (3d Cir. 1998)
("Addiction remains an essential part of plaintiffs' claim. In order to prevail on their
medical monitoring claim--under any of their three theories of liability (negligence,
strict products liability, and intentional exposure to a hazardous substance)--plaintiffs
must demonstrate that defendants caused their exposure to tobacco."). Addiction to nicotine is a compensable injury, at a minimum, in terms of the costs of
supporting an addiction. Assuming no other physical injury has previously manifested
itself, the economic loss attributable to supporting an addiction is the first injury a
smoker addicted to cigarettes sustains, regardless of whether a plaintiff frames the
complaint to seek damages for that economic loss. That other damages might follow,
including, but not limited to, injury to the person, such as shortness of breath, loss of the
sense of taste and/or smell, coughing, and throat irritation, as well as medical expenses,
should not defeat the commencement of the running of the applicable statutory
limitations period. See Garrett v. Raytheon Co., 368 So. 2d at 519 ("The cause of action
'accrues' as soon as the party in whose favor it arises is entitled to maintain an action
thereon. 'We have held that the statute begins to run whether or not the full amount of
damages is apparent at the time of the first legal injury.'" (Quoting Home Ins. Co. v.
Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So. 2d 468, 473 (1973) (emphasis
added))). Artful pleading such as is presented here, where Spain disavows seeking a
recovery for all pre-cancer injuries, should not defeat the operation of the first-injury
rule. Where multiple acts are involved, subsequent damages have been recognized as flowing
from subsequent acts, and the fact that a limitations period may have expired as to an
earlier act does not bar an action for the subsequent injury. See Employers Ins. Co. of
Alabama v. Rives, 264 Ala. 310, 87 So. 2d 653 (1955) (repetitive acts); Howell v. City
of Dothan, 234 Ala. 158, 174 So. 624 (1937) (ongoing discharge of sewage); Alabama
Fuel & Iron Co. v. Vaughn, 203 Ala. 461, 83 So. 323 (1919) (damage resulting from the
ongoing operations of a coal mine). However, the ongoing acts of the manufacturers are
the repeated sales to a consumer who at some point might recognize that an addiction
makes the consumer/smoker a participant in the additional acts and an enabler of their
continued occurrence. Under these circumstances, while a new period of limitations for
subsequent sales to an admitted addict of additional packs of cigarettes containing
warnings may produce additional injuries giving rise to new causes of action with new
limitations periods, significant problems of proof of causation stand between a smoker
and recovery. See Nicolo v. Philip Morris, Inc., 201 F.3d 29, 39 (1st Cir. 2000), in
which the United States Court of Appeals for the First Circuit rejected a continuing-tort
argument, noting: "Leaving aside the absence of precedent in Rhode Island, the
dispositive answer is that, given plaintiff's knowledge that she had been 'hooked' since
at least the early 1980s, any subsequent dissimulation or misrepresentation by
defendants as to their intent and knowledge bore no causal relation to plaintiffs' [sic]
condition." Spain contends that whether Carolyn's addiction proximately caused or contributed to
her death depends on medical opinions and/or historical facts, thus precluding a
dismissal on the manufacturers' motion made pursuant to Rule 12, Fed. R. Civ. P. First,
this contention impermissibly restricts the analysis of the first injury to events causing
Carolyn's death. As previously noted, the relevant inquiry is whether Carolyn could
maintain an action against the manufacturers at the time of her death. Second, whether
the contention contradicts Spain's complaint, as the manufacturers contend, is not a
matter before us. Assuming that argument is available to Spain, the procedure for
applying the facts to the applicable law involves the Federal Rules of Civil Procedure --
not Alabama law. It is not the province of this Court to supply answers to questions
governed by federal law in response to a certified question. See Spain v. Brown &
Williamson Tobacco Corp., 230 F.3d at 1312 n.16. We therefore answer the first question as to the tort claims by stating that the statutory
limitations period begins to run at the moment a smoker recognizes that he or she has
become addicted. B. Implied-Warranty Claims The applicable statute of limitations for a claim for breach of implied warranty is set
forth in § 7-2-725, Ala. Code 1975, which provides that "[a]n action for breach of any
contract for sale must be commenced within four years after the cause of action has
accrued," § 7-2-725(1), and that "a cause of action for damages for injury to the person
in the case of consumer goods shall accrue when the injury occurs," § 7-2-725(2).
Spain must avoid the manufacturers' defense to the wrongful-death action that Carolyn
could not have maintained a claim had she lived. See § 6-5-410, Ala. Code 1975, and
Hall v. Chi, supra. Under § 7-2-725, any injury occurring from the breach of an implied
warranty within the four-year period before Carolyn's death on August 5, 1999, would
be actionable. But, if the evidence reflects continued consumption with knowledge of
the risk of cancer in the late 1990s and if the explicit warnings on each package of
cigarettes are deemed sufficient, significant problems of proof of a causal connection
are presented. See Official Comment to § 7-2-314, at paragraph 13 ("Action by the
buyer following an examination of the goods which ought to have indicated the defect
complained of can be shown as matter bearing on whether the breach [of the implied
warranty of merchantability] itself was the cause of the injury.") (emphasis added). See
also Official Comment to § 7-2-316, at paragraph 8 ("Of course if the buyer discovers
the defect and uses the goods anyway, or if he unreasonably fails to examine the goods
before he uses them, resulting injuries may be found to result from his own action rather
than proximately from a breach of warranty.") (emphasis added). See also Official
Comment to § 7-2-715, at paragraph 5 ("Where the injury involved follows the use of
goods without discovery of the defect causing the damage, the question of 'proximate'
cause turns on whether it was reasonable for the buyer to use the goods without such
inspection as would have revealed the defects. If it was not reasonable for him to do so,
or if he did in fact discover the defect prior to his use, the injury would not proximately
result from the breach of warranty.") (emphasis added). See also Green v. American
Tobacco Co., 154 So. 2d 169, 172 (Fla. 1963) ("If the defect is discoverable by simple
observation then the law will imply no warranty against its existence."). III. Remaining Questions We respectfully decline to answer the remaining questions. After the federal litigation
has produced a final determination of the merits of the manufacturers' defense of
limitations and causation under the principles set forth in this opinion, whether on
motion practice pursuant to either Rule 12, Fed. R. Civ. P., or Rule 56, Fed. R. Civ. P.;
on a judgment as a matter of law; or on a judgment after a trial on the merits, as the
Eleventh Circuit might deem appropriate, any remaining questions can again be
submitted to this Court pursuant to Rule 18, Ala. R. App. P. CERTIFIED QUESTION 1 AND CERTIFIED QUESTIONS a. AND b. ANSWERED;
OTHER REMAINING QUESTIONS DECLINED. PART I.A.: Moore, C.J., and Houston, Lyons, Brown, Harwood, and Woodall, JJ.,
concur. Johnstone, J., concurs specially. Stuart, J., expresses no opinion. PART I.B.: Moore, C.J., and Lyons and Harwood, JJ., concur. Johnstone and Woodall, JJ., concur specially. Houston and Brown, JJ., concur in the result. Stuart, J., expresses no opinion. PART II.A.: Houston and Lyons, JJ., and Maddox, Special Justice,* concur. Stuart, J., concurs in part. Brown, J., concurs in the result. Johnstone, J., concurs in part and dissents in part. Moore, C.J., and Harwood and Woodall, JJ., dissent. *Retired Justice Hugh Maddox was sitting as a Justice of this Court in this case pursuant
to § 12-18-10(e), Ala. Code 1975. Although he did not attend oral argument, he has
reviewed the videotapes of that oral argument. PART II.B.: Moore, C.J., and Houston, Lyons, and Harwood, JJ., concur. Woodall, J., concurs in the result. Johnstone, J., concurs in part and dissents in part. Brown and Stuart, JJ., express no opinion. PART III.: Moore, C.J., and Lyons, Brown, Harwood, and Woodall, JJ., concur. Houston, J., concurs in part and dissents in part. Johnstone, J., dissents. Stuart, J., expresses no opinion. MOORE, Chief Justice (concurring in Parts I.A., I.B., II.B., and III., and dissenting in
Part II.A.). I concur with the per curiam opinion as to Parts I.A., I.B., II.B., and III. I dissent from Part II.A. of the per curiam opinion because I do not believe that
"[a]ddiction to nicotine is a compensable injury," ___ So. 2d at ___, or that, if it is a
compensable injury, "the statutory limitations period begins to run at the moment a
smoker recognizes that he or she has become addicted." ___ So. 2d at ___. Justice
Johnstone in his special writing adequately addresses the foreseeable problems that arise
from the designation of nicotine addiction as a compensable injury and in determining
the point at which a cause of action for such an injury accrues. The amorphous and
manipulable "standard" created by the per curiam opinion's holding--that the limitations
period begins to run when a smoker "recognizes" that he or she is addicted--will likely
wreak much legal havoc and provide no real standard at all. Furthermore, the
recognition of addiction to cigarettes as a compensable injury will likely spark frivolous
claims of compensable addiction as to numerous other products. HOUSTON, Justice (concurring in Parts I.A., II.A., and II.B., concurring in the result
in Part I.B, and concurring in part and dissenting in part in Part III.). I concur as to Parts I.A., "Tort Claims," and II, "The Statute of Limitations," in the per
curiam opinion. I concur in the result as to I.B., "Implied-Warranty Claims." As to Part III, I concur except as follows. I would answer certified question 2 in the
affirmative. See Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758, 763-65 (Ala.
2002). I would answer certified question 3 as follows: The 20-year period of the rule of repose begins to run against a plaintiff's claims the first
time those claims could have been asserted, regardless of the plaintiff's notice of the
claims. Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d at 763-65. BROWN, Justice (concurring in Part I.A. and Part III., concurring in the result in Parts
I.B. and II.A., and expressing no opinion as to Part II.B.). I concur in Part I.A. and Part III. of the per curiam opinion. I concur in the result in Part
I.B. of the per curiam opinion. I concur only in the result in Part II.A. of the per curiam
opinion that holds that the statutory period of limitations began to run when Carolyn
Spain became addicted to cigarettes. JOHNSTONE, Justice (concurring in part, concurring specially in part, and dissenting
in part). I concur in seven of the holdings in the main opinion. I will simply recite them in the
order of their appearance: 1. "Spain's negligence and wantonness claims are, at this stage of the proceedings,
viable alternatives to his AEMLD claim," ___ So. 2d at ___; 2. "[A] claim alleging breach of an implied warranty of merchantability is separate and
distinct from an AEMLD claim and is viable to redress an injury caused by an
unreasonably dangerous product," ___ So. 2d at ___; 3. "Alabama's Wrongful Death Act, § 6-5-410, Ala. Code 1975, requires that an action
be filed within two years of the date of the death. Furthermore, for the death to be
actionable, the decedent must have been able to bring an action without the bar of
limitations as a defense had he or she lived. Hall v. Chi, 782 So. 2d 218, 221 (Ala.
2000)," ___ So. 2d at ___; 4. "Where multiple acts are involved, subsequent damages have been recognized as
flowing from subsequent acts, and the fact that a limitations period may have expired as
to an earlier act does not bar an action for the subsequent injury," ___ So. 2d at ___; 5. "[A] new period of limitations for subsequent sales to an admitted addict of
additional packs of cigarettes containing warnings may produce additional injuries
giving rise to new causes of action with new limitations periods ...," ___ So. 2d at ___; 6. "The applicable statute of limitations for a claim for breach of implied warranty is set
forth in § 7-2-725, Ala. Code 1975, which provides that '[a]n action for breach of any
contract for sale must be commenced within four years after the cause of action has
accrued,' § 7-2-725(1), and that 'a cause of action for damages for injury to the person in
the case of consumer goods shall accrue when the injury occurs,' § 7-2-725(2)," ___ So.
2d at ___; and 7. "Under § 7-2-725, any injury occurring from the breach of an implied warranty
within the four-year period before Carolyn's death on August 5, 1999, would be
actionable," ___ So. 2d at ___, (note that the time limit, "within the four-year period,"
applies to "injury occurring" rather than to "breach of an implied warranty," as the
breach may have occurred earlier without starting the running of the four-year period of
limitation). I concur in the seven foregoing holdings. I respectfully dissent, however, from a different set of interrelated holdings: 1. "[A]ddiction to nicotine is a critical consideration in an analysis of the difficult issue
of applying the statute of limitations to claims by smokers in smoking products-liability
cases," ___ So. 2d at ___; 2. "The date Carolyn became addicted to nicotine is the date the statutory limitations
period began to run as to Spain's tort claims," ___ So. 2d at ___; 3. "Addiction to nicotine is a compensable injury, at a minimum, in terms of the costs
of supporting an addiction. Assuming no other physical injury has previously
manifested itself, the economic loss attributable to supporting an addiction is the first
injury a smoker addicted to cigarettes sustains," ___ So. 2d at ___; and 4. "[T]he statutory limitations period begins to run at the moment a smoker recognizes
that he or she has become addicted," ___ So. 2d at ___. This set of holdings suffers a number of frailties. First, it is confused. Is the addiction the first injury, or are the "costs of supporting an
addiction," ostensibly the costs of cigarettes, the first injury? If the cigarette costs are
the first injury, the addiction must be the cause or a cause rather than an injury. Indeed,
Barnes v. American Tobacco Co., 161 F.3d 127, 144 (3d Cir. 1998), one of the cases the
main opinion cites for this set of holdings, holds "that addiction is the linchpin of
causation in this case." (Emphasis added.) If the cigarette costs are the first injury, how
do they differ from the pre-addiction cigarette costs? The plaintiff's complaint does not
allege that the cigarette costs during addiction differed from the cigarette costs before
addiction. For aught that appears in the complaint, Carolyn's cigarette costs were
constant and the same before addiction and during addiction. How, then, can the
cigarette costs be, as a matter of law, the proximate result of the addiction? How could
a court, at this stage of the proceedings, conclude as a matter of law that the cigarette
costs are damages at all, as distinguished from ordinary non-essential living costs such
as for lipstick and soda pop? Spain's not claiming addiction as an injury is legally
significant, notwithstanding the statements in the main opinion to the contrary. Second, if the main opinion means to hold that the addiction itself is the first injury, this
holding is unsupported by authority, and is, indeed, contradicted by one of the cases the
main opinion cites, as already mentioned. The main opinion relies principally on
Soliman v. Philip Morris, Inc., 311 F.3d 966 (9th Cir. 2002), and secondarily on
Barnes, supra. The Soliman court expressly declined to hold that addiction is an injury. Instead, the
Soliman court held that the plaintiff's specifically claiming "addiction as one of his
distinct injuries," 311 F.3d at 972 (emphasis added), estopped him to deny that it was an
injury for the purpose of starting the running of the statutory period of limitation as soon
as he "had actual or constructive knowledge of his injury." 311 F.3d at 973. The words
of the Soliman court are: "We need not decide the matter [whether addiction is an injury] here, however, because
Soliman can't claim that his addiction is an appreciable injury and, at the same time, ask
us to ignore it in determining when his claim accrued. If Soliman had actual or
constructive knowledge of his addiction before he was diagnosed with respiratory
illness, the date of actual or constructive knowledge of addiction would govern." 973 F.3d at 973. Soliman is distinguishable from the case now before us, because Spain
does not claim "addiction as one of [Carolyn's] distinct injuries." 311 F.3d at 972.
Therefore he is not estopped to deny that addiction was an injury for the purpose of
starting the running of any statute of limitations. Because the Soliman court expressly
declined to hold that addiction is an injury, Soliman is hardly authority for the
proposition that addiction is. The Barnes case was a class action by cigarette smokers for medical monitoring. The
issue was whether the putative class should be certified. The Barnes court did not hold
that addiction was an injury. Rather, the Barnes court held "that addiction is the
linchpin of causation in this case." 161 F.3d at 144 (emphasis added). Only as the
"linchpin of causation" was addiction "an essential part of plaintiffs' medical monitoring
claim." 161 F.3d at 144-46. The significance of addiction in the Barnes case was only
that it required individualized proof and therefore foreclosed class certification. The
Barnes holding that "addiction is the linchpin of causation" hardly supports, and instead
contradicts, the holding of today's main opinion that addiction is an injury. 161 F.3d at
144. Third, even if addiction be a legally cognizable injury, Spain's complaint still
encompasses claims based on distinct acts of negligence or wantonness in the
defendants' manufacture of cigarettes committed after the onset of the addiction, and
still encompasses AEMLD and breach of warranty claims based on sales made after the
onset of the addiction; and such preexisting addiction cannot constitute injury
proximately caused by such subsequent breaches of duty and therefore cannot begin the
running of any limitation period to bar such claims. That is, the effect could not have
preceded the cause. "Defendants manufactured hundreds of different types of cigarettes over the years and
have even made changes within each brand...." Barnes, 161 F.3d at 135 (quoting Barnes v. American Tobacco Co., 176 F.R.D. 479, 489
(E.D. Pa. 1997)) (internal quotation marks omitted). Thus the plaintiff before us may,
within the ambit of his pleadings, prove that one or more of the defendants, after the
onset of Carolyn's addiction, manufactured and marketed cigarettes containing one or
more newly concocted combinations of additives that would cause diseases in smokers
-- combinations with different and worse disease-causing properties than unadulterated
tobacco. The plaintiff could prove that such manufacture was negligent, wanton, or
both and that such cigarettes were unreasonably dangerous, unmerchantable, or both.
The plaintiff's theories of negligence, wantonness, AEMLD, and breach of implied
warranty would accommodate these breaches of duty by the defendants. Axiomatically,
the first injury caused by these breaches of duty could not be the preexisting addiction.
Only some distinct injury accruing at some subsequent time not apparent from the
plaintiff's pleadings could constitute the first injury and therefore could start the running
of any statutory period of limitations on such claims. Therefore, the set of addiction-as-injury holdings in the main opinion, with all of the frailties of the set, will resolve only a
fraction of this case. Fourth, the holding that "[a]ddiction to nicotine is a compensable injury," ___ So. 2d at
___, will cause profound mischief. If addiction is real, it is equally unverifiable. An
unaddicted smoker can claim and fake addiction and nobody else can know the truth.
Promptly after the main opinion is published, the lawyer advertisements will tell the
members of the smoking public they may have claims for addiction. After speedy
consultations countless smokers will realize they just recently became addicted, well
within the shortest of the statutory periods of limitations, maybe just yesterday. Our
recognizing a cause of action for smoking addiction will create a disincentive for
willpower and self-control in a society already wracked with blame-shifting. Present
law does not support this holding, and Alabama does not need such new law. My final dissenting observations address dicta rather than holdings in the main opinion.
In several places, the main opinion anticipates that Spain may encounter problems of
proof of causation. "No-causal-relation," however, is an affirmative defense to be
pleaded and proved by these defendants when the time for such pleading and proof
comes. Casrell v. Altec Indus., Inc., 335 So. 2d 128, 134 (Ala. 1976); Atkins v.
American Motors Corp., 335 So. 2d 134, 143 (Ala. 1976); Caudle v. Partridge, 566 So.
2d 244, 248 (Ala. 1990). The potential availability of this affirmative defense or of any
other for pleading and proof in the future, and Spain's potential proof problems in
rebutting potential affirmative defenses or even in proving the essential elements of his
various claims, are immaterial to the issue of the sufficiency of Spain's complaint itself
as it must be judged now on the defendants' Rule 12(b)(6), Fed. R. Civ. P., motions to
dismiss. I dissent from this dicta in the main opinion about such proof problems
because the dicta may be confused with or mistaken for holding. I was the first of the Justices on this Court to undertake to answer the questions in this
case certified to us by the Eleventh Circuit Court of Appeals. I respectfully submit that
my version of the answers, which follows, is correct and comprehensive. The United States Court of Appeals for the Eleventh Circuit certified the following
questions to this Court: "1. When does the Alabama statute of limitations for claims brought under the
AEMLD, and claims premised on negligence, wantonness, breach of warranty, and
conspiracy begin to run in a smoking products liability case? "2. Does the Alabama rule of repose apply in a smoking products liability case? "3. If so, when does the Alabama rule of repose begin to run in a smoking products
liability case? "4. Before the appearance of federally mandated warning labels on cigarette packages,
were cigarettes 'unreasonably dangerous' under the AEMLD? "5. Since the appearance of federally mandated warning labels on cigarette packages,
have cigarettes been 'unreasonably dangerous' under the AEMLD?" Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1312 (11th Cir. 2000).
The Eleventh Circuit invited this Court to "tell [them] if the conclusions [the Eleventh Circuit Judges] have reached about the
following state law issues are incorrect: "a. that the negligence and wantonness claims merge into an AEMLD claim; "b. that the sale of cigarettes does not violate the implied warranty of merchantability
under Code of Alabama 1975, § 7-2-314; "c. that the fraudulent suppression claim, which is a basis for Spain's conspiracy claim,
is not viable under Alabama law; and "d. that, if cigarettes are not unreasonably dangerous as a matter of Alabama law, the
fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not
viable under Alabama law." Id. The Eleventh Circuit recited the following facts: "This is a cigarette product liability case initially brought in the Alabama state courts by
Paul Spain, as administrator of the estate of Carolyn Spain, against Phillip Morris, Inc.,
R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation,
seeking recovery under the Alabama wrongful death statute. After removing the case
to federal court on diversity grounds, the defendants filed a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Stating only that the motion was 'well-taken,'
the district court granted it and dismissed all of Spain's claims with prejudice. Spain has
appealed. For reasons we will explain, we have concluded that certain issues of state
law should be certified to the Alabama Supreme Court. "I. BACKGROUND "A. FACTS "Because the case is before us on a Rule 12(b)(6) dismissal, we take the facts from the
allegations in the complaint, assuming those allegations to be true. See Brown v.
Crawford County, Georgia, 960 F.2d 1002, 1010 (11th Cir. 1992). "Carolyn Spain started smoking cigarettes in 1962, when she was 'approximately 15
years of age and was a multi-pack per day smoker.' She became addicted to the
nicotine in cigarettes early on and was unaware at the time that she was becoming
addicted. She primarily smoked cigarettes manufactured by Phillip Morris, Inc., R.J.
Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation.
Carolyn's smoking was the proximate cause of her lung cancer, which was diagnosed on
August 15, 1998. Unable to stop, she continued smoking until 1999. She has since
died. "B. PROCEDURAL HISTORY "On August 5, 1999, Paul Spain, as administrator of the estate of Carolyn Watts Spain,
filed suit against the defendants in state court, seeking recovery under the Alabama
wrongful death statute based on the defendants' alleged wrongful acts and omissions in
connection with the manufacture, design and sale of cigarettes. The complaint asserted
five causes of action: (1) liability under the Alabama Extended Manufacturers Liability
Doctrine ('AEMLD'); (2) negligence; (3) wantonness; (4) breach of warranty; and (5)
conspiracy. "The defendants removed the case to federal court, and after removal filed a motion to
dismiss all of Spain's claims under Federal Rule of Civil Procedure 12(b)(6). They
argued, among other things, that the claims were barred by Alabama's rule of repose and
the applicable statutes of limitations; that as a matter of Alabama law cigarettes are not
unreasonably dangerous; and that some of Spain's claims were preempted by federal
law. Stating only that the motion was 'well-taken,' the district court granted it and
dismissed all of Spain's claims with prejudice. This is Spain's appeal of that dismissal." Spain, 230 F.3d at 1303-04 (footnotes omitted). The Eleventh Circuit made the
following conclusions regarding Spain's state-law claims: "a. Negligence and Wantonness "The defendants contend that Spain's negligence and wantonness claims are merged into
his AEMLD claim as a matter of Alabama law because those claims are based on the
same underlying allegations and theory, which is that cigarettes are unreasonably
dangerous. In Veal v. Teleflex, Inc., 586 So. 2d 188 (Ala. 1991), the Court held that the
trial court did not err when it instructed the jury only on the plaintiff's AEMLD claim
and refused to instruct the jury on negligence and wantonness. The court stated that the
substance of plaintiff's complaint 'was that it placed into the stream of commerce a
product that was unreasonably dangerous for its intended use' and that constituted an
AEMLD claim. See id. at 190-91; accord Wakeland [v. Brown & Williamson Tobacco
Corp.], 996 F. Supp. [1213] at 1217-18 [(1998)]. "In light of Veal, and because the only allegation in the complaint's counts for
negligence and wantonness that are not in the AEMLD count is that the '[d]efendants
negligently designed, manufactured, sold, marketed and/or failed to warn about
cigarettes that were unreasonably dangerous ...,' we are convinced that the negligence
and wantonness claims in this case merge into the AEMLD claim. "b. Breach of Warranty "The defendants contend that Spain's implied warranty of merchantability claim must
fail because Spain alleges only that cigarettes are unreasonably dangerous and
defectively designed, manufactured and marketed, and not that they were commercially
unfit or unsuitable for smoking. The defendants argue that Spain's allegations constitute
a products liability claim, instead of a breach of implied warranty of merchantability
claim. "Ala. Code § 7-2-314, which governs the implied warranty of merchantability, provides
as follows: "'Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with
respect to goods of that kind.' "Ala. Code § 7-2-314(1). In order to be merchantable, goods must be fit 'for the ordinary
purposes for which such goods are used.' See Allen[v. Delchamps, Inc.], 624 So. 2d
[1065, 1068 (Ala. 1993)]. "As we read Spain's complaint, his theory is that the cigarettes were unfit for the
ordinary purpose for which they are used because they caused cancer, making them
unreasonably dangerous and not merchantable. The Alabama Supreme Court rejected a
similar claim and stated that '[s]uch an argument ignores the clear distinction between
causes of action arising under tort law and those arising under the [Uniform Commercial
Code] as adopted in Alabama.' Shell v. Union Oil Co., 489 So. 2d 569, 571 (Ala. 1986)
(no claim for breach of warranty regarding product containing benzene, a carcinogen
known to cause leukemia, when product was in conformance with specifications; such a
claim is instead an AEMLD action). Unless the Alabama Supreme Court tells us
differently, we are convinced that the complaint does not state a claim for breach of an
implied warranty of merchantability. "c. Conspiracy "The defendants contend that Spain's conspiracy count cannot stand, because it is based
on claims of alleged fraudulent suppression and fraudulent misrepresentation of
information about smoking risks that are themselves not viable. They argue that those
claims are not viable, because Alabama imposes no duty to disclose facts that are
already known and the risks of smoking were common knowledge. "'[A] conspiracy itself furnishes no cause of action. The gist of the action is not the
conspiracy but the underlying wrong that was allegedly committed. If the underlying
cause of action is not viable, the conspiracy claim must also fail.' Allied Supply Co.,
Inc. v. Brown, 585 So. 2d 33, 36 (Ala. 1991) (internal citations omitted). Therefore, to
the extent Spain's conspiracy claim is premised on claims of fraudulent suppression and
fraudulent misrepresentation, those claims must be viable for his conspiracy claim to be. "Under Alabama law, a fraudulent suppression claim requires a plaintiff to show: "'(1) that the defendant had a duty to disclose an existing material fact; (2) that the
defendant suppressed that existing material fact; (3) that the defendant had actual
knowledge of the fact; (4) that the defendant's suppression of the fact induced the
plaintiff to act or to refrain from acting; and (5) that the plaintiff suffered actual damage
as a proximate result of acting or not acting.' "Ex Parte Household Retail Services, 744 So. 2d 871, 879 (Ala. 1999). Under Cantley[
v. Lorillard Tobacco Co., 681 So. 2d 1057, 1061 (Ala. 1996)], there is no state law duty
to disclose facts other than through advertising or promotion. See Cantley, 681 So.2d at
1061-62. Consequently, unless the Alabama Supreme Court tells us differently, we are
convinced that the fraudulent suppression claim fails and the conspiracy claim should be
dismissed to the extent it relies on the fraudulent suppression claim. "A fraudulent misrepresentation claim requires a plaintiff to show: "'(a) that the defendant made a false misrepresentation concerning a material fact; (b)
which (1) the defendant either knew was false when made, or (2) was made recklessly
and without regard to its truth or falsity, or (3) was made by telling the plaintiff that the
defendant had knowledge that the representation was true while not having such
knowledge; (c) which the plaintiff justifiably relied upon; and (d) damage to the plaintiff
proximately resulting from his reliance.' "Ex Parte Household Retail Services, 744 So. 2d at 877 (internal marks and citations
omitted). The Alabama Supreme Court's answer to the question we are certifying it
about whether cigarettes are unreasonably dangerous under the AEMLD may resolve
the issue of whether Spain has a valid fraudulent misrepresentation claim. If that Court
concludes cigarettes are not unreasonably dangerous as a matter of Alabama law, we are
convinced that Spain will be unable to establish Carolyn's justifiable reliance and as a
result, his fraudulent misrepresentation claim will fail and his conspiracy claim should
be dismissed to the extent it relies on the fraudulent misrepresentation claim. That
conclusion is, of course, subject to revision if the Alabama Supreme Court tells us that
the state law premises for it are mistaken." Spain, 230 F.3d at 1310-12 (footnotes omitted; emphasis added). The federal standard of review of a Rule 12(b)(6), Fed. R. Civ. P., motion is that: "'The motion must be denied unless it is clear the plaintiff can prove no set of facts in
support of the claims in the complaint.' [South Florida Water Management Dist. v.
Montalvo, 84 F.3d 402, 406 (11th Cir. 1996)] (citation omitted). ".... "The sufficiency of a complaint is measured by Fed. R. Civ. P. 8(a), which requires only
'a short and plain statement of the claim showing that the pleader is entitled to relief.'
The Supreme Court has emphasized that the Federal Rules 'do not require a claimant to
set out in detail the facts upon which he bases his claim.' Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163,
122 L.Ed. 2d 517 (1993) (quotations and citations omitted). Our Circuit, interpreting
the Federal Rules, has repeatedly stated that 'a motion to dismiss for failure to state a
claim should not be granted unless it appears to a certainty that the plaintiff would be
entitled to no relief under any state of facts which could be proved in support of his
claim.' Banco Continental v. Curtiss Nat'l Bank of Miami Springs, 406 F.2d 510, 514
(5th Cir. 1969) (quotations, citations, and footnote omitted); see also Quality Foods de
Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989,
998 (11th Cir. 1983) (collecting cases). In fact, '[t]his mandate is particularly true
where, as here, issues of negligence are involved.' Banco, 406 F.2d at 514." Canadyne-Georgia Corp. v. Nationsbank, N.A., 183 F.3d 1269, 1275-76 (11th Cir.
1999). "Federal Rule of Civil Procedure 9(b) requires that fraud be pleaded with
specificity. The plaintiff's complaint must allege the details of the defendants allegedly
fraudulent acts, when they occurred, and who engaged in them." Cooper v. Blue Cross
& Blue Shield of Florida, Inc., 19 F.3d 562, 568 (11th Cir. 1994). "[C]onclusory
allegations, unwarranted factual deductions or legal conclusions masquerading as facts
will not prevent dismissal." Next Century Communications Corp. v. Ellis, 318 F.3d
1023, 1025 (11th Cir. 2003). I first address when the statute of limitations began to run on Spain's negligence,
wantonness, AEMLD, breach of warranty, and conspiracy claims. "The plain language
of the wrongful death statute states that the personal representative may commence a
wrongful death action, 'provided the testator or intestate could have commenced an
action for such wrongful act, omission, or negligence if it had not caused death.'" Curtis
v. Quality Floors, Inc., 653 So. 2d 963, 964 (Ala. 1995). If the statute of limitations
applicable to an action for personal injury before a person's death has not expired before
that person's death, then the wrongful death statute allows two years after the death for
the filing of a wrongful death action claiming that the death resulted from the same act
or omission that caused the personal injury. Hall v. Chi, 782 So. 2d 218, 220 (Ala.
2000); § 6-5-410, Ala. Code 1975. "An action alleging negligence, wantonness, or liability under the AEMLD must be
brought within two years after the cause of action accrued. See Ala. Code 1975, §
6-2-38(l). A cause of action based on warranty claims must be brought within four
years after the cause of action accrued. See § 7-2-725(1), (2). A cause of action
'accrues' as soon as the party in whose favor it arises is entitled to maintain an action
thereon. See Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979), for an in-depth
discussion of when a cause of action accrues for purposes of the statute of limitations.
A party has a cause of action, and the statute of limitations begins to run, on the date the
first legal injury occurs, but not necessarily from the date of the act causing the injury.
See Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 140
So. 2d 832 (1962). That is, where the act complained of does not itself constitute a
legal injury at the time, but the plaintiff's injury comes only as a result of, and in
furtherance and subsequent development of, the act of the defendant, the cause of action
'accrues,' and the statutory period of limitations begins to run, '"when, and only when,
the damages are sustained."' Garrett v. Raytheon Co., supra, at 519, quoting Kelly v.
Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917). At the time of the first legal
injury, the period of limitations begins to run, whether or not the full amount of
damages is apparent. Id.; see Stephens v. Creel, 429 So. 2d 278 (Ala. 1983); 51 Am.Jur.
2d. § 135 (1970); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976)." Smith v. Medtronic, Inc., 607 So. 2d 156, 158 (Ala. 1992). Thus, the two-year limitation period for a claim for injury caused by a negligent or
wanton act or omission would begin to run at the date of the first legally recognizable
injury resulting proximately from the particular negligent or wanton act or omission
alleged and proven. Because one of the essential elements of an AEMLD action is the
sale of the product, Beam v. Tramco, Inc., 655 So. 2d 979, 981 (Ala. 1995), the two-year limitation period for an AEMLD action does not begin until the date of the first
legally recognizable injury caused by the specific product alleged and proven to have
been the subject of an alleged and proven sale by the particular defendant. "[A] cause of action for damages for injury to the person in the case of consumer goods
shall accrue when the injury occurs." § 7-2-725(2), Ala. Code 1975. Consumer goods
are "goods that are used or bought for use primarily for personal, family, or household
purposes." § 7-9A-102(23), Ala. Code 1975. See § 7-2-103, Ala. Code 1975, and
Wright v. Cutler-Hammer, Inc., 358 So. 2d 444 (Ala. 1978). Because the very source of
an implied warranty of merchantability is the sale of the goods, § 7-2-314(1), Ala. Code
1975, the four-year limitation period for a personal injury action based on an implied
warranty of merchantability does not begin to run until the date of the first legally
recognizable injury caused by breach of the implied warranty on the specific goods
alleged and proven to have been the subject of an alleged and proven sale by the
particular defendant. In their briefs to this Court, the parties concede that addiction to nicotine is not a
compensable injury. "This Court will not decide questions that are moot or that have
become purely academic." Smith v. Cook, 578 So. 2d 1055, 1057 (Ala. 1991). Because
of the parties' concession, whether nicotine addiction is a compensable injury, which
causes the statute of limitations to begin to run, has become a purely academic question,
which we should not address. The tobacco defendants admit that "the statute of
limitations began to run when [Carolyn] suffered her first tobacco-related injury" and
that "that date cannot be determined based on the record." Appellees' brief, p. 9.
Therefore, no statute of limitation is a valid ground for a Rule 12(b)(6) dismissal of any
of Spain's negligence, wantonness, AEMLD, or breach of warranty claims. "Liability for civil conspiracy rests upon the existence of an underlying wrong, and if
the action alleged to constitute the underlying wrong provides no cause of action, then
neither does the conspiracy itself." Barber v. Business Prods. Ctr., Inc., 677 So. 2d 223,
228 (Ala. 1996), and Jones v. BP Oil Co., 632 So. 2d 435, 439 (Ala. 1993). See Callens
v. Jefferson County Nursing Home, 769 So. 2d 273, 280 (Ala. 2000) ("A plaintiff
alleging a conspiracy must have a valid underlying cause of action."); Triple J Cattle,
Inc. v. Chambers, 621 So. 2d 1221, 1225 (Ala. 1993) ("[A] conspiracy claim must fail if
the underlying act itself would not support an action."); Allied Supply Co. v. Brown,
585 So. 2d 33, 36 (Ala. 1991) ("[A] conspiracy itself furnishes no cause of action. The
gist of the action is not the conspiracy but the underlying wrong that was allegedly
committed. If the underlying cause of action is not viable, the conspiracy must also
fail." (citations omitted)); contra Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297,
305-06 (Ala. 1986); Purcell Co. v. Spriggs Enters., Inc., 431 So. 2d 515, 522 (Ala.
1983); Snyder v. Paget, 295 Ala. 197, 201, 326 So. 2d 113, 116 (1976). Consequently,
the statutory period of limitation for a conspiracy claim begins to run when the statutory
period of limitation for the underlying tort begins to run. Barber, supra; BP Oil Co.,
supra; Callens, supra; Triple J Cattle, Inc., supra; Allied Supply Co., supra. Spain's
conspiracy claim is dependent on his fraudulent suppression and fraudulent
misrepresentation claims. "An action for fraudulent misrepresentation [or fraudulent
suppression] is subject to a two-year statute of limitations. Ala. Code 1975, § 6-2-38."
Fabré v. State Farm Mut. Auto. Ins. Co., 624 So. 2d 167, 168 (Ala. 1993). "Under § 6-2-3, a fraud claim accrues at the time of the discovery by the aggrieved
party of the fact constituting the fraud. [Lader v. Lowder Realty Better Homes &
Gardens, 512 So. 2d 1331 (Ala. 1987)]. The time of discovery of a fraud claim is the
time when the party actually discovered the fraud or had facts that, upon closer
examination, would have led to the discovery of the fraud. Lader. '[F]raud is
discovered as a matter of law ... when one receives documents that would put one on
such notice that the fraud reasonably should be discovered.' Hickox v. Stover, 551 So.
2d 259, 262 (Ala. 1989)." Gray v. Liberty Nat'l Life Ins. Co., 623 So. 2d 1156, 1159 (Ala. 1993) (emphasis
added). The record presented to this Court does not contain any information on when Carolyn
discovered or when she should have discovered the tobacco defendants' alleged
fraudulent suppressions or fraudulent misrepresentations concerning the dangerousness
of cigarettes made with tobacco contaminated or adulterated with additives during the
manufacturing process. Therefore, we cannot determine the date when the statutory
period of limitations began to run on these claims. Next I address whether "the Alabama rule of repose appl[ies] in a smoking products
liability case[.]" In this case, Spain's claims are grounded on the personal injuries that
caused Carolyn's death. Whether the Alabama rule of repose bars a plaintiff's claims for
personal injury is an issue of first impression. The principles which govern this issue,
however, are well settled. "Since McArthur v. Carrie's Admr., 32 Ala. 75 (1858), this State has followed a rule of
repose, or rule of prescription, of 20 years. This principle of repose or prescription is
similar to a statute of limitations, but not dependent upon one, and broader in scope.
Scott v. Scott, 202 Ala. 244, 80 So. 82 (1918); Patterson v. Weaver, 216 Ala. 686, 114
So. 301 (1927). It is a doctrine that operates in addition to laches. Unlike laches,
however, the only element of the rule of repose is time. It is not affected by the
circumstances of the situation, by personal disabilities, or by whether prejudice has
resulted or evidence obscured. Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820
(1935); 30A C.J.S., Equity § 113 (1965), at p. 33. It operates as an absolute bar to
claims that are unasserted for 20 years. Roach v. Cox, 160 Ala. 425, 49 So. 578 (1909).
The rationale for this absolute bar to such actions was set forth in Snodgrass v.
Snodgrass, 176 Ala. 276, 58 So. 201 (1912), as follows: "'As a matter of public policy, and for the repose of society, it has long been the settled
policy of this state, as of others, that antiquated demands will not be considered by the
courts, and that, without regard to any statute of limitations, there must be a time
beyond which human transactions will not be inquired into. It is settled that, after a
period of 20 years, without any payment, settlement, or other recognition of liability,
mortgages and liens will be presumed to have been paid, settlements will be presumed
to have been made by administrators, trustees, agents, and other persons occupying
fiduciary positions. It is necessary for the peace and security of society that there
should be an end of litigation, and it is inequitable to allow those who have slept upon
their rights for a period of 20 years, after they might have demanded an accounting, and
after, as is generally the case, the memory of transactions has faded and parties and
witnesses passed away, to demand an accounting. The consensus of opinion in the
present day is that such presumption is conclusive, and the period of 20 years, without
some distinct act in recognition of the trust, a complete bar; and, as said in an early
case, "the presumption rests not only on the want of diligence in asserting rights, but on
the higher ground that it is necessary to suppress frauds, to avoid long dormant claims,
which, it has been said, have often more of cruelty than of justice in them, that it
conduces to peace of society and the happiness of families, 'and relieves courts from the
necessity of adjudicating rights so obscured by the lapse of time and the accidents of life
that the attainment of truth and justice is next to impossible.'"--Harrison et al. v. Heflin,
Adm'r, et al., 54 Ala. 552, 563, 564 [(1875)]; Greenlees' Adm'r v. Greenlees et al., 62
Ala. 330 [(1878)]; Nettles v. Nettles, 67 Ala. 599, 602 [(1880)]; Garrett v. Garrett, 69
Ala. 429, 430 [(1881)]; Semple v. Glenn, 91 Ala. 245, 260, ... 9 South. 265, 24
Am.St.Rep. 929 [(1891)]; Roach v. Cox, 160 Ala. 425, 427, 49 South. 578, 135
Am.St.Rep. 107 [(1909)].' (Emphasis [not] supplied.) Snodgrass, at 176 Ala. 280, 281,
58 So. 201.' "The rule of repose or prescription is a defensive matter similar to, but broader than, a
statute of limitation. Wilkerson, supra; Patterson, supra; 30A C.J.S., Equity § 113, at p.
33. Thus, it is unlike adverse possession, which affirmatively establishes title. The rule
of repose has been described as '... a rule of property in this state, [and] tends to the
repose of society, and the quieting of litigation.' Spencer v. Hurd, 201 Ala. 269, 270, 77
So. 683, 684 (1918). "The only circumstance that will stay the running of the 20-year period of repose is a
recognition of the existence of the claimant's right by the party defending against the
claim. Eatman v. Goodson, 262 Ala. 242, 78 So. 2d 625 (1954); Hendley v. First
National Bank of Huntsville, 235 Ala. 664, 180 So. 667 (1937); 30A C.J.S., Equity §
113, at p. 33, and n. 24. "Recently, in Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996 (Ala. 1982), this
Court struck down, as unconstitutional, a statutorily imposed 10-year rule of repose.
Our holding today in no way conflicts with Lankford. The 20-year rule of repose
applied here differs materially from the stricken 10-year rule (Code 1975, § 6-5-502(c)).
For example, the 20-year common law rule is couched in terms of the 'running of the
period against claims,' 'absolute bar to unasserted claims,' 'lack of diligence in asserting
rights,' 'sleeping upon their rights,' etc. The voided statute, on the other hand, sought to
commence the running of the 10-year period from some arbitrary date unrelated in point
of time to the accrual of a cause of action or the prior existence of a viable and
cognizable claim. The fact that the common law rule is premised upon the pre-existing
right to assert a claim is demonstrated in Duncan v. Johnson, 338 So. 2d 1243 (Ala.
1976), in which the Court refused to apply the 20-year bar against remaindermen." Boshell v. Keith, 418 So. 2d 89, 91-92 (1982) (emphasis added). In Duncan v. Johnson, 338 So. 2d 1243 (Ala. 1976), this Court held: "Twenty-two years transpired between the sale of the land for division and the
institution of [the] instant case, and appellants-respondents rely heavily upon
prescription, a rule of repose, as a bar to the action. In Bass v. Bass, 88 Ala. 408, [412,]
7 So. 243[, 244] (1889) the court stated tersely through Stone, C.J.: "'It is certainly the general rule, that neither a statutory bar, nor prescription [rule of
repose] runs against a remainder-man, until the termination of the estate of the life-tenant. There must be a right to sue, before the bar begins to run.' "The general inapplicability of the doctrine of prescription [rule of repose] to estates in
reversion or remainder has been uniformly observed. Dallas Compress Co. v. Smith,
190 Ala. 423, 67 So. 289 (1914); Kidd v. Browne, 200 Ala. 299, 76 So. 65 (1917);
Kyser v. McGlinn, 207 Ala. 82, 92 So. 13 (1921). Cases such as Wilkerson v.
Wilkerson, 230 Ala. 567, 161 So. 820 (1935), not involving contests between
remaindermen and life tenants or tenants per autre vie are inapposite." 338 So. 2d at 1253 (emphasis added). E.g., Harkins & Co. v. Lewis, 535 So. 2d 104,
116 (Ala. 1988); McDurmont v. Crenshaw, 489 So. 2d 550, 553 (Ala. 1986); Scotch v.
Hurst, 437 So. 2d 497, 502 (Ala. 1983). For the purposes of the rule of repose, a
"claim," Boshell, 418 So. 2d at 92, is synonymous with "'a right to sue,'" Duncan, 338
So. 2d at 1253 (quoting Bass v. Bass, 88 Ala. 408, 412, 7 So. 243, 244 (1890)). A
person who sustains a personal injury has a right to sue "on the date the first legal injury
occurs, but not necessarily [on] the date of the act causing the injury." Medtronic, Inc.,
607 So. 2d at 159. Because a right to sue does not accrue and therefore the rule of
repose does not begin to run in a personal injury action until the plaintiff or the
plaintiff's decedent sustains an injury as a