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BROWN v. WHITAKER CONTRACTING CORP.5/3/1996
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We note that while Barrett testified that Whitaker placed signs warning of "low shoulder" and did not remove those signs prior to the May 1, 1992, accident, Brown does not recall seeing any sign warning of "low shoulder." Additionally, Spraggins admitted that the inspection reports completed by county employees did not note the existence of a sign warning of "low shoulder" and that he did not know if a "low shoulder" sign was in place on the date of the accident. Dr. Richards, the plaintiffs' expert, testified that, assuming a sign warning of "low shoulder" was in place at the beginning of the construction
area — three and one-half miles from the accident scene — he would recommend that a sign warning of "low shoulder" be placed every mile to remind the motorists of the danger.
In light of the above, we find that the plaintiffs presented sufficient evidence to create a genuine issue of a material fact as to whether Whitaker's failure to adequately warn of the hazard created by the extremely low shoulder proximately caused the accident and resulting injuries and damages. We note that there may well be other issues of fact.
Additionally, we would note that a summary judgment is rarely appropriate in negligence and personal injury cases. Cabaniss v. Wilson, 501 So.2d 1177 (Ala. 1986).
Consequently, we reverse the judgment of the trial court and remand this case to the trial court for proceedings consistent with this opinion.
As indicated earlier, this appeal is before this court pursuant to Rule 54(b), Ala.R.Civ.P.
This court requested that each party address the propriety of the trial court's granting a Rule 54(b) motion. Both parties concluded that the trial court's action was appropriate.
This court, in this instance, is not disposed to reverse the trial court's judgment in granting the Rule 54(b) motion. However, this court does take this opportunity to voice its concern pertaining to trial courts' possible "over use" of certifying judgments as final, pursuant to Rule 54(b).
Appellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect. 10 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2659, at 99. Consequently, a party who seeks immediate appellate review of a judgment which does not adjudicate all of the claims and/or all of the parties must make a showing as to why it is necessary that appellate review of that particular judgment be conducted prior to adjudication of the entire case. 10 C. Wright et al., Federal Practice and Procedure: Civil 2d § 2659, at 100.
In addition, the trial court, in its order, should list the factors which it considered in reaching its decision regarding whether to certify the judgment, pursuant to Rule 54(b), in order that the appellate court is better equipped to review the trial court's action. 10 C. Wright et al., Federal Practice and Procedure: Civil 2d § 2659, at 114.
Stated another way, in making the determination as to whether a judgment should be certified under Rule 54(b), the trial court should consider any factor that is relevant to that particular case and should list the factors considered in making its determination. The trial court should consider all factors, in addition to the fact that multiple parties and/or multiple claims were involved, that there has been a final decision as to one of the claims and/or the rights and responsibilities of one of the parties, and that there is "no just reason for delay." The trial court should indicate why it
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