Rel: May 24, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other 

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0151

_________________________

Veronica Edwards, individually and as the personal 

representative of the Estate of Corey Demills Hatcher, Jr., 

deceased, and Corey D. Hatcher, Sr. 

v. 

Kimberly Johnson Crowder; David Lyons; Carole A. Phillipsen; 

Southern Sportsman Hunting Lodge, Inc.; Edward S. McCurdy, 

Jr.; Jim Mason; and McCurdy Plantation Horse Association

Appeal from Lowndes Circuit Court

(CV-22-900016)
SC-2023-0151

2

MENDHEIM, Justice.1

Corey Demills Hatcher, Jr. ("Corey"), died as a result of injuries he 

incurred when a vehicle he was driving collided with horses that were on 

the road he was traversing, U.S. Highway 80. Veronica Edwards, 

individually and as the personal representative of Corey's estate, and 

Corey D. Hatcher, Sr. ("the plaintiffs"), commenced in the Lowndes 

Circuit Court ("the circuit court") a wrongful-death action2 against 

Southern Sportsman Hunting Lodge, Inc. ("Southern Sportsman"); Jim 

Mason; David Lyons; McCurdy Plantation Horse Association ("the 

Association"); Edward S. McCurdy, Jr.; Kimberly Johnson Crowder; and

Carole A. Phillipsen ("the defendants"). The circuit court entered a 

summary judgment in favor of the defendants, and the plaintiffs 

appealed. We affirm the circuit court's judgment.

Facts and Procedural History

1This case was originally assigned to another Justice on this Court; 

it was reassigned to Justice Mendheim on February 28, 2024.

2A wrongful-death action may be commenced by the personal 

representative of a decedent's estate. See § 6-5-410, Ala. Code 1975. It 

appears that Veronica Edwards and Corey D. Hatcher, Sr., in their 

individual capacities, lacked the capacity to bring this wrongful-death 

action; however, based on our resolution of this appeal, it is not necessary 

to address that issue.
SC-2023-0151

3

Most of the material facts appear to be undisputed. Southern 

Sportsman is owned by Lyons and Mason. Southern Sportsman owns 

property in Lowndes County, at which, according to the affidavit of 

Mason, it "offers outdoor recreational activities and lodging ...." On 

October 30, 2021, Southern Sportsman allowed the Association to host a 

trail ride on Southern Sportsman's property. McCurdy is the director of 

the Association.

Crowder and Phillipsen participated in the trail ride that occurred 

on October 30, 2021. On October 29, 2021, the day before the trail ride,

Crowder and Phillipsen trailered horses they owned to Southern 

Sportsman's property; Crowder brought two horses, and Phillipsen 

brought one horse. Crowder and Phillipsen set up an electric fence in 

which to corral their horses while they were not being used for the trail 

ride. Crowder's affidavit indicates that "[t]he fence ... contained 4 hot 

and/or electrically charged wires that were fastened to posts. The fenced 

area was approximately 30 to 40 feet long and approximately 25 feet 

wide." Crowder's affidavit further indicates that the electric fence was 

working properly after it was set up and that the horses "remained in the 

fencing and there were no problems with the horses or fencing on the 
SC-2023-0151

4

night of October 29, 2021." Additionally, Crowder's affidavit indicates

that she had "been using this same fence and charging unit for 

approximately 4 years" before October 30, 2021, and that "[a]t no time 

prior ... [had her] horses ever gotten out of this fencing." It is undisputed 

that no other party in this action had anything to do with the electric 

fence.

On October 30, 2021, Crowder and Phillipsen took their horses on 

the trail ride hosted by the Association. Crowder's and Phillipsen's 

affidavits indicate that, after the trail ride was complete, they placed 

their horses back in the electric fence at approximately 8:30 p.m., that 

the electric fence was working properly at that time, and that Crowder 

and Phillipsen went to bed. At approximately 10:00 p.m. that evening, 

according to her affidavit, Crowder received a telephone call from the 

Lowndes County Fire Marshal "advising [her] that [her] horses were on 

U.S. Highway 80," which bordered Southern Sportsman's property. 

Crowder's affidavit indicates that, upon receiving the call from the fire 

marshal, she "immediately went to U.S. Highway 80 and saw that two 

horses had been hit by vehicles. One of those horses was a white horse 

owned by [Crowder]." Crowder's affidavit further indicates that, "[p]rior 
SC-2023-0151

5

to receiving [the] telephone call, [she] did not have any knowledge that 

[her] horse or horses had gotten out of the fencing" and that "[a]t no time 

... did [she] knowingly or willfully put or place [her] horse or horses upon 

or in U.S. Highway 80 ...." The other horse that had been hit by a vehicle 

was owned by Phillipsen. Phillipsen's affidavit indicates that she "did 

not have any knowledge or reason to believe that [her] horse had gotten 

out of the electric fence" and that she "did not knowingly or willfully put 

or place [her] horse ... upon or in the roadway of U.S. Highway 80 ...."

According to the complaint filed by the plaintiffs, on October 30, 

2021, Corey was driving his vehicle on U.S. Highway 80 when his vehicle 

collided with Crowder's horse and Phillipsen's horse. Corey died as a 

result of the injuries he incurred in the collision.

On March 21, 2022, the plaintiffs commenced a wrongful-death 

action against the defendants. The plaintiffs alleged that the defendants 

had not used the kind of fencing allegedly required by § 3-4-1, Ala. Code 

1975, to corral the horses and, based on that alleged failure by the 

defendants, asserted that the defendants were liable premised on 

theories of negligence per se, nuisance, and wantonness. The plaintiffs 
SC-2023-0151

6

also attached to their complaint documentary evidence in support of their 

allegations.

On April 21, 2022, Southern Sportsman, Mason, and Lyons filed a 

motion to dismiss or, in the alternative, for a summary judgment. 

Southern Sportsman, Mason, and Lyons argued that the plaintiffs' 

claims against them were due to be dismissed because, they argued, 

"under Alabama law, all claims for damages for injury or harm directly 

caused by a collision with livestock on a road are limited to only the 

remedy allowed under Ala. Code 1975, § 3-5-3(a)." Section 3-5-3(a), Ala. 

Code 1975, provides:

"(a) The owner of such livestock or animal being or 

running at large upon the premises of another or upon the 

public lands, roads, highways or streets in the State of 

Alabama shall be liable for all damages done to crops, shade 

or fruit trees or ornamental shrubs and flowers of any person, 

to be recovered before any court of competent jurisdiction; 

provided, that the owner of any stock or animal shall not be 

liable for any damages to any motor vehicle or any occupant 

thereof suffered, caused by or resulting from a collision with 

such stock or other animal, unless it be proven that such 

owner knowingly or wilfully put or placed such stock upon 

such public highway, road or street where such damages were 

occasioned."

(Emphasis added.) Southern Sportsman, Mason, and Lyons made 

extensive arguments relying upon precedent interpreting and applying § 
SC-2023-0151

7

3-5-3(a), which will be discussed in greater detail below. In summary, 

Southern Sportsman, Mason, and Lyons argued that § 3-5-3(a) provides 

the exclusive remedy to the plaintiffs and that that section provides a 

remedy against only the owners of the livestock. Because Southern 

Sportsman, Mason, and Lyons are undisputedly not the owners of the 

horses that were involved in the collision, they argued, the plaintiffs' 

"complaint fails to state a claim upon which relief can be granted and is 

due to be dismissed pursuant to Ala. R. Civ. P., Rule 12(b)(6)." 

Alternatively, Southern Sportsman, Mason, and Lyons argued that, if the 

circuit court "considers matters outside of the pleadings, [they] are 

entitled to [a] summary judgment ...." In support of their motion, 

Southern Sportsman, Mason, and Lyons included the affidavits of Mason 

and Lyons.

On May 17, 2022, the plaintiffs filed a response. Among other 

things, the plaintiffs argued that § 3-5-3 applies only to the owners of the 

horses, Crowder and Phillipsen, and that it has no application to their

claims against Southern Sportsman, Mason, and Lyons. The plaintiffs 

argued that § 3-5-3 does not provide an exclusive remedy and that they 

are permitted to proceed against Southern Sportsman, Mason, and Lyons 
SC-2023-0151

8

on their theories of negligence per se, nuisance, and wantonness. The 

plaintiffs also argued that, even if § 3-5-3 does apply to Southern 

Sportsman, Mason, and Lyons, they had alleged sufficient facts to 

survive the motion to dismiss.

On May 27, 2022, the Association and McCurdy also filed a motion 

to dismiss or, in the alternative, for a summary judgment, asserting 

essentially the same arguments as those asserted by Southern 

Sportsman, Mason, and Lyons. Additionally, the Association and 

McCurdy argued that the plaintiffs' wrongful-death claim was the only 

claim that could be asserted because Corey died in the collision. The 

Association and McCurdy stated that, "if the court considers matters 

outside of the pleadings, the [Association and McCurdy] are entitled to 

summary judgment as a matter of law ...." They also supported their 

motion with the affidavit of McCurdy. On June 30, 2022, the plaintiffs 

filed a response.

On June 29, 2022, Crowder filed a motion to dismiss or, in the 

alternative, for a summary judgment. Crowder argued, as Southern 

Sportsman, Mason, Lyons, the Association, and McCurdy had, that the 

only cause of action available to the plaintiffs is a wrongful-death claim
SC-2023-0151

9

based on § 3-5-3. Accordingly, Crowder argued that the plaintiffs' claims 

of negligence per se, nuisance, and wantonness must be dismissed. 

Concerning the plaintiffs' wrongful-death claim, Crowder stated that it 

is undisputed that she had owned one of the horses involved in the 

collision, but she argued that "there is absolutely no evidence before the 

[circuit c]ourt that Crowder at any time and specifically on the day in 

question ever knowingly or willfully put or placed her horse or horses 

upon Highway 80." As a result, Crowder argued that the plaintiffs' 

wrongful-death claim is "due to be dismissed." Alternatively, Crowder 

argued that, if the circuit court "considers matters outside of the 

pleadings, [Crowder] is entitled to summary judgment as a matter of law 

as Plaintiffs' claims are due to be [disposed of] pursuant to Rule 56 of the 

Alabama Rules of Civil Procedure." Crowder supported her motion with 

her own affidavit.

On July 13, 2022, Phillipsen filed a motion to dismiss or, in the 

alternative, for a summary judgment. Like Crowder, Phillipsen argued 

that the plaintiffs' 

"claims against [Phillipsen] fail because [the p]laintiffs have 

failed to plead facts which would entitle them to relief under 

Alabama Code [1975,] § 3-5-3(a). Because the defect is obvious 

on the face of the complaint, dismissal under [Ala. R. Civ. P.]
SC-2023-0151

10

Rule 12(b)(6) is appropriate. Alternately, if the court considers 

materials outside of the pleadings, [Phillipsen] is entitled to 

summary judgment because it is undisputed that [Phillipsen]

did not knowingly or willfully place her horse upon or in U.S. 

Highway 80 on the night of October 30, 2021. Thus, there is 

no genuine issue of material fact and summary judgment is 

due to be granted."

Phillipsen supported her motion with her own affidavit.

On October 18, 2022, the plaintiffs filed a response to Crowder's and 

Phillipsen's motions, arguing, among other things, that they had 

"sufficiently alleged" that Crowder and Phillipsen had knowingly placed 

their horses on the roadway where the accident occurred.

On November 21, 2022, the circuit court set the defendants' motions 

for a hearing to occur on February 2, 2023. On February 2, 2023, the 

circuit court held a hearing on the defendants' various motions to dismiss 

or, in the alternative, for a summary judgment. At the hearing, the 

plaintiffs' trial attorney made extensive arguments under the summaryjudgment standard, arguing that the defendants had not demonstrated 

that the plaintiffs had not presented substantial evidence creating a 

genuine issue of material fact.3

3The plaintiffs' trial attorney, who was admitted pro hac vice from 

California, actually presented argument under the old scintilla-ofevidence standard, rather than the substantial-evidence standard. Of 
SC-2023-0151

11

On February 8, 2023, the circuit court entered the following 

judgment, which states, in pertinent part:

"In filing their motions for summary judgment, the 

defendants cite [§] 3-5-3(a)[, Ala. Code 1975),] which states, 

'... [p]rovided, that the owner of any stock or animal shall not 

be liable for any damages to any motor vehicle or any occupant

thereof suffered, caused by or resulting from a collision with 

such stock or other animal, unless it ... be proven that such 

owner knowingly or [wilfully] put or place[d] such sto[c]k upon 

such public highway, road or street where such damages were 

occasioned.' The defendants cite Brewer v Atkinson, 262 So. 

3d 663 [(Ala. Civ. App. 2018),] to support their contentions.

"The plaintiffs argue that the fence used failed to meet 

the fencing standards cited in [§] 3-4-1 et [s]eq[., Ala. Code 

1975,] that [Crowder and Phillipsen] were negligent or 

wanton in failing to properly fence the horses, that [Southern 

Sportsman] had an obligation that [it] breached in corralling 

the horses, as did [the Association and] McCurdy. The 

plaintiff[s] further argue[] that the Brewer case and [§] 3-5-

3(a) only appl[y] to the owners of the livestock[, Crowder and 

Phillipsen,] and shouldn't apply to [the Association,] 

McCurdy[,] or [Southern Sportsman].

"The Brewer case is the most recent case involving [§] 3-

5-3 and is closely related in the fact situations covered in this 

case. Based on the Brewer case, it is clear that [§] 3-5-3 would 

apply to all of the named defendants in this case and would 

course, the scintilla rule was abolished long ago. See Furrow v. Helton, 

13 So. 3d 350, 359 n.6 (Ala. 2008)("Effective June 11, 1987, the scintilla 

rule was abolished in favor of the substantial-evidence rule. See § 12-21-

12, Ala. Code 1975."). Regardless, the plaintiffs' trial attorney 

understood the defendants' motions to be ones requesting a summary 

judgment.
SC-2023-0151

12

absolve them from liability absent a showing of intentionality, 

which is absent in this case.

"The motions for summary judgment are hereby 

GRANTED on all counts of the complaint, and this case is 

therefore DISMISSED."

(Capitalization in original.) The plaintiffs appealed.

Standard of Review

The circuit court made clear in its judgment that it was entering a 

summary judgment in favor of the defendants; the circuit court did not 

dismiss the plaintiffs' complaint under Rule 12(b)(6), Ala. R. Civ. P. This 

Court set forth the following applicable standard of review in Nesbitt v. 

Frederick, 941 So. 2d 950, 955 (Ala. 2006):

"The standard of review for the grant or denial of a 

summary-judgment motion is as follows:

" '"We review this case de novo, applying the 

oft-stated principles governing appellate review of 

a trial court's grant or denial of a summary 

judgment motion:

"'"'We apply the same standard of 

review the trial court used in 

determining whether the evidence 

presented to the trial court created a 

genuine issue of material fact. Once a 

party moving for a summary judgment 

establishes that no genuine issue of 

material facts exists, the burden shifts 

to the nonmovant to present 
SC-2023-0151

13

substantial evidence creating a 

genuine issue of material fact. 

"Substantial evidence" is "evidence of 

such weight and quality that fairminded persons in the exercise of 

impartial judgment can reasonably 

infer the existence of the fact sought to 

be proved." In reviewing a summary 

judgment, we view the evidence in the 

light most favorable to the nonmovant 

and entertain such reasonable 

inferences as the jury would have been 

free to draw.'"

"'American Liberty Ins. Co. v. AmSouth Bank, 825 

So. 2d 786, 790 (Ala. 2002) (quoting Nationwide 

Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 

So. 2d 369, 372 (Ala. 2000) (citations omitted)).'

"General Motors Corp. v. Kilgore, 853 So. 2d 171, 173 (Ala.

2002)."

Discussion

The plaintiffs' first argue that the circuit court committed various 

procedural errors related to its decision to treat the defendants' motions 

as motions requesting a summary judgment, instead of as motions to 

dismiss. None of the plaintiffs' procedural arguments, however, were 

presented to the circuit court. "This Court cannot consider arguments 

advanced for the purpose of reversing the judgment of a trial court when 

those arguments were never presented to the trial court ...." State Farm 
SC-2023-0151

14

Mut. Auto. Ins. Co. v. Motley, 909 So. 2d 806, 821 (Ala. 2005). When a 

postjudgment motion is the only mechanism for bringing an alleged error 

to the circuit court's attention, which is the case here, the alleged error 

must be raised in a postjudgment motion. Lay v. Destafino, [Ms. 

1210383, Feb. 17, 2023] ___ So. 3d ___, ___ (Ala. 2023) ("While it is true 

that postjudgment motions under Rule 59(e)[, Ala. R. Civ. P.,] are usually 

elective rather than mandatory, such a motion is necessary to preserve 

an objection for appellate review when -- as here -- that motion is the only 

possible mechanism for bringing the alleged error to the trial court's 

attention."). The plaintiffs did not file a postjudgment motion, thereby 

failing to preserve their procedural arguments for appellate review. 

Accordingly, we need not consider those arguments any further.

Having determined that the plaintiffs' procedural arguments have

not been preserved for appellate review, we now turn to the plaintiffs' 

substantive arguments on appeal. As set forth above, the circuit court 

determined that § 3-5-3 applies "to all of the named defendants in this 

case and ... absolve[s] them from liability absent a showing of 

intentionality, which is absent in this case." It appears that the circuit 

court's judgment is premised upon a determination that the plaintiffs 
SC-2023-0151

15

were able to assert a wrongful-death claim based on § 3-5-3 against all 

the defendants, but that the plaintiffs failed to produce substantial 

evidence creating a genuine issue of material fact as to whether the 

defendants "knowingly or wilfully put or placed [the horses involved in 

the collision] upon [U.S. Highway 80] where such damages were 

occasioned." § 3-5-3(a). Based on the fact that the circuit court provided 

no analysis of the plaintiffs' other theories of liability (negligence per se, 

nuisance, or wantonness), it appears that the circuit court determined 

that the plaintiffs' wrongful-death claim based on § 3-5-3(a) was the 

exclusive remedy available to the plaintiffs and that the plaintiffs failed 

to provide substantial evidence to support that claim.4

4It is worth noting at this point that the plaintiffs' complaint does 

not assert a claim under § 3-5-3(a). The plaintiffs' complaint does assert 

a wrongful-death claim that is premised upon the plaintiffs' allegation 

that the defendants "negligently, carelessly, recklessly, wantonly, and 

unlawfully operated and supervised the horses so as to directly and 

proximately cause death to [the] decedent." That claim does not, 

however, assert that the defendants "knowingly or wilfully put or placed 

[the horses involved in the collision] upon [U.S. Highway 80] where such 

damages were occasioned." § 3-5-3(a). Further, the plaintiffs' complaint 

does not allege facts indicating that the defendants "knowingly or wilfully 

put or placed [the horses involved in the collision] upon [U.S. Highway 

80] where such damages were occasioned." § 3-5-3(a). In fact, Southern 

Sportsman's trial attorney noted that deficiency in the plaintiffs' 

complaint at the February 8, 2023, hearing before the circuit court, 

arguing that § 3-5-3(a)
SC-2023-0151

16

On appeal, the plaintiffs do not dispute that § 3-5-3(a) creates a 

cause of action as to Crowder and Phillipsen as the owners of the horses 

involved in the collision, but the plaintiffs argue that the circuit court 

erred in determining that § 3-5-3(a) applies to Southern Sportsman, 

Mason, Lyons, the Association, and McCurdy, who, undisputedly, did not 

own the horses involved in the collision. It is clear that the plaintiffs 

interpret § 3-5-3(a) as a statute passed by the legislature to shield 

livestock owners from liability, not as a statute that creates a cause of 

action that did not previously exist. With that understanding of § 3-5-

"requires knowing or willful conduct on the part of a livestock 

owner or keeper. That requires proof that the owner or keeper 

had a design and purpose to inflict an injury. That's what's 

required. So not only are the pleadings deficient, negligence, 

wantonness, nuisance, none of that pleads knowing or willful 

conduct on the part of any of these Defendants. So the 

pleadings themselves are deficient."

Regardless, it appears that the complaint was amended by consent, given 

that the parties presented extensive arguments concerning § 3-5-3(a) 

before the circuit court, both in writing and orally at the hearing. See 

Rule 15(b), Ala. R. Civ. P. ("When issues not raised by the pleadings are 

tried by express or implied consent of the parties, they shall be treated in 

all respects as if they had been raised in the pleadings."). Moreover, the 

defendants have not raised any objection to the circuit court's apparent 

implied conclusion that the plaintiffs based their wrongful-death claim 

upon § 3-5-3(a).
SC-2023-0151

17

3(a), the plaintiffs make extensive arguments to demonstrate that 

Southern Sportsman, Mason, Lyons, the Association, and McCurdy are 

not entitled to the "protections" of § 3-5-3(a). Under the plaintiffs' theory, 

if they can demonstrate that Southern Sportsman, Mason, Lyons, the 

Association, and McCurdy are not entitled to the "protections" of § 3-5-

3(a), then they can pursue a wrongful-death cause of action based on 

different theories of liability (i.e., negligence per se, nuisance, and 

wantonness) against Southern Sportsman, Mason, Lyons, the 

Association, and McCurdy. See the plaintiffs' brief at 40-44. In other 

words, the plaintiffs believe that § 3-5-3(a) operates to shield the owners 

of livestock involved in a collision with an automobile from liability that 

would otherwise exist under the common law, instead of creating a cause 

of action that otherwise did not exist under the common law. The 

plaintiffs are incorrect in their fundamental understanding of § 3-5-3(a).

As set forth above, § 3-5-3(a) provides:

"The owner of such livestock or animal being or running at 

large upon the premises of another or upon the public lands, 

roads, highways or streets in the State of Alabama shall be 

liable for all damages done to crops, shade or fruit trees or 

ornamental shrubs and flowers of any person, to be recovered 

before any court of competent jurisdiction; provided, that the 

owner of any stock or animal shall not be liable for any 

damages to any motor vehicle or any occupant thereof 
SC-2023-0151

18

suffered, caused by or resulting from a collision with such 

stock or other animal, unless it be proven that such owner 

knowingly or wilfully put or placed such stock upon such 

public highway, road or street where such damages were 

occasioned."

In Scott v. Dunn, 419 So. 2d 1340, 1341 (Ala. 1982), this Court stated 

that, in adopting § 3-5-3(a), "[t]he Alabama Legislature has, in fact, given 

persons who suffer damages on the public roads and highways as a result 

of livestock thereon a new cause of action that did not exist at common 

law." (Emphasis added.) In explaining that determination, this Court 

provided the following history of Alabama's common law and the 

adoption and purpose of § 3-5-3:

"When the Mississippi Territory was settled, the law 

adopted was that the land would be open territory; that is, a 

landowner was required to fence livestock out to protect his 

private land. Livestock were permitted to run at large on open 

land and on the public roads and highways. When Alabama 

became a state in 1819, it retained, as part of its common law, 

this same rule adopted in the Mississippi Territory. Nashville 

& Chattanooga Railroad Co. v. Peacock, 25 Ala. 229 (1854).

"In the case of Smith v. Causey, 22 Ala. 568 (1853), this 

Court stated the law as it stood in Alabama:

"'At [Alabama] common law, where an injury 

to another arises from carelessness in keeping 

domestic animals, which are not necessarily 

inclined to do mischief, such as dogs, horses, &c., 

no recovery can be had against the owner, for an 

injury done by them, unless it is averred and 
SC-2023-0151

19

proved that he knew their vicious propensities, 

and so carelessly kept them, that injury resulted 

to the plaintiff therefrom. Burk v. Dyson, 4 Camp. 

198; Smith v. Pelah, 2 Strange 1293; Durden v. 

Barnett & Harris, 7 Ala. 169 [(1844)].'

"22 Ala. at 571. Several years later, Chief Justice Brickell, 

writing for this Court, said in Mobile & Ohio Railroad Co. v. 

Williams, 53 Ala. 595 (1875):

"'The doctrine of the [English] common law 

in relation to trespasses by and upon cattle 

running at large has never been of force in this 

State. It was never applicable to our situation, and 

is inconsistent with our estray laws and statutes 

in reference to trespasses by cattle. These laws 

treat unenclosed lands as common of pasture, and 

permit an owner to suffer his cattle to run at large. 

N. & C. R.R. v. Peacock, 25 Ala. 229 [(1854)]. The 

character of inclosures & fences is carefully 

defined. R.C. § 1282. If an animal suffered to go at 

large trespasses or should do damage on lands not 

inclosed as required, the owner is exempt from 

liability therefor; and if the animal is injured, the 

person inflicting the injury is liable for five fold 

damages. R.C. § 1283.... This legislation is all 

founded on the theory of the right of an owner to 

permit his stock to run at large. In the exercise of 

this right he cannot be molested, and if injury is 

wantonly or negligently inflicted on his stock, the 

law entitles him to redress. He has a perfect right 

to suffer his animals to run at large, and those who 

would guard themselves from damages in 

consequence of it must inclose against them....'

"53 Ala. at 596-97. This law was reiterated by the Court of 

Appeals in Means v. Morgan, 2 Ala. App. 547, 56 So. 759 

(1911):
SC-2023-0151

20

"'The [English] common-law rule that 

animals must be kept on one's premises does not 

obtain in this state. The rule is, rather, reversed, 

and animals are permitted to run at large unless 

prohibited by statute. M. & O. R.R. Co. v. 

Williams, 53 Ala. 595 [(1875)]; Hurd v. Lacy, 93 

Ala. 427, 9 South. 378, 30 Am. St. Rep. 61 [(1891)].

"'The maxim that one who suffers his 

animals to run at large takes upon himself the risk 

incidental thereto applies only where the animals 

are trespassing on the lands of another, and not to 

animals running at large in the highway. Colvin v. 

Sutherland, 32 Mo. App. 77 [(1888)].'

"2 Ala. App. at 550, 56 So. at 759-60. See also, Rowe v. Baber, 

93 Ala. 422, 8 So. 865 (1890); Wilhite v. Speakman, 79 Ala. 

400 (1885); Alabama Great Southern Railroad Co. v. Jones, 71 

Ala. 487 (1882). These cases make it clear that the common 

law of Alabama, as adopted from the Mississippi Territory, 

did not allow an action for damages on public roads and 

highways caused by an animal of normal propensities.

"When the Legislature adopted the present 'closed state'

stock law in 1939 (now found at § 3-5-3(a)), it also altered the 

liability of a livestock owner with respect to the public roads 

and highways. While under Alabama common law a livestock 

owner had the right to turn livestock out onto the public way, 

upon passage of Title 3, § 79 (now § 3-5-3(a)) in 1939, a 

livestock owner could be liable when he knowingly or willfully 

put or placed such stock upon the public roads or highways. 

Therefore, for the first time in Alabama, a person who 

sustained damages on a public highway could recover against 

a livestock owner under certain limited conditions. This act 

created a new right of action, limited though it may be, and 

did not abolish any common law rights, for before the 1939 

enactment, persons suffering injury or property damage 
SC-2023-0151

21

because of an animal on a public road or highways had no 

remedy unless the animal was known to have dangerous 

propensities.

"The appellants, however, allege that § 3-5-3(a) 

abolishes all common law causes of action against the owners 

of livestock by the owners or occupants of motor vehicles, 

except actions based upon proof that the owner knowingly or 

willfully put or placed such stock upon the public highway. As 

stated, the 1939 act did not abolish a remedy for a protected 

right, but, instead, created a right where none had previously 

existed.

"....

"... The 1939 statute actually created new rights that 

had not existed since the advent of statehood on December 14, 

1819. This was well recognized by Judge Harwood when he 

wrote Randle v. Payne, 39 Ala. App. 652, 107 So. 2d 907 

(1958), in which he stated:

"'Counsel for appellant asserts that Section 

79, supra [§ 3-5-3(a), Code 1975], is violative of 

Section 13 of the Alabama Constitution which 

provides "That every person, for an injury done 

him, in his lands, goods, person, or reputation, 

shall have a remedy by due process of law."

"'The injury mentioned in Section 13, supra, 

is damage resulting from breach of a legal duty. 

Whatever damage results from doing that which is 

lawful does not lay the foundation of an action. 

Pickett v. Matthews, 238 Ala. 542, 192 So. 261

[(1939)].

"'Prior to the 1939 Act, supra, it was lawful 

for one to suffer stock to run at large upon a public 
SC-2023-0151

22

highway. Crittenden v. Speake, 240 Ala. 133, 198 

So. 137 [(1940)].

"'It became unlawful so to do by the 1939 Act. 

At the same time that the legislature created this 

new legal duty it also provided a remedy imposing 

liability for its breach. This remedy, in case of 

injury to motor vehicles, was limited to those cases 

where the owner knowingly or wilfully placed 

stock on the highway. These limitations placed on 

the liability thus created became a part of the right 

created. See, 1 Am. Jur., Actions, Sec. 11. Having 

the power to create a new legal duty, necessarily 

the legislature had a right to limit the liability for 

breach of such duty.'

"39 Ala. App. at 656-57, 107 So. 2d 907. We believe Judge 

Harwood was correct. The statute in question did not limit or 

destroy rights, but created them."

Scott, 419 So. 2d at 1341-46 (some emphasis added).

It is clear from the above-quoted portion of Scott that the 

legislature, in passing § 3-5-3(a), created a cause of action that did not 

exist at common law and, in so doing, "restrict[ed] that newly created 

right." Scott, 419 So. 2d at 1346. In other words, in a situation such as 

the one presented in the present case, the exclusive remedy available to 

someone who has incurred injuries as a result of a car accident involving 

livestock is found in § 3-5-3(a); there is no common-law cause of action
SC-2023-0151

23

available. The purpose of § 3-5-3(a) is not to shield from liability, but to 

create a cause of action where one did not previously exist.

That is exactly the opposite of how the plaintiffs have interpreted § 

3-5-3(a). As stated above, the plaintiffs wrongly believe that § 3-5-3(a) is 

a statute designed to shield certain defendants from liability rather than 

to create a cause of action. The plaintiffs believe that if § 3-5-3(a) applies 

to Southern Sportsman, Mason, Lyons, the Association, and McCurdy, 

then those defendants will be shielded from liability; that is why the 

plaintiffs challenge on appeal the circuit court's conclusion that § 3-5-3(a) 

applies to Southern Sportsman, Mason, Lyons, the Association, and

McCurdy. In reality, however, the circuit court's conclusion that § 3-5-

3(a) applies to Southern Sportsman, Mason, Lyons, the Association, and

McCurdy was a determination in the plaintiffs' favor and allowed them 

to pursue their wrongful-death cause of action based on § 3-5-3(a) against 

those defendants. Had the circuit court determined otherwise, then the 

plaintiffs could not have pursued any cause of action against Southern 

Sportsman, Mason, Lyons, the Association, or McCurdy because one did

not exist at common law.
SC-2023-0151

24

Based on the plaintiffs' misunderstanding of the nature of § 3-5-

3(a), they make extensive arguments before this Court in an effort to 

convince us that the circuit court erred in determining that § 3-5-3(a) 

applies to Southern Sportsman, Mason, Lyons, the Association, and

McCurdy. In so arguing, the plaintiffs discuss some of this Court's 

precedent in which this Court has interpreted the term "owner" of 

livestock used in § 3-5-3(a) to include a "keeper" of livestock. See the 

plaintiffs' brief at 22-33 (discussing, among other things, the plaintiffs' 

desire for this Court to revisit Chandler v. Waugh, 290 Ala. 70, 274 So. 

2d 46 (1973), in which this Court interpreted § 3-5-3(a) to include 

"keepers" of livestock in addition to "owners" of livestock). However, even 

if there is some merit to the plaintiffs' argument that this Court has 

improperly expanded the term "owner" to include a "keeper" of livestock,

we need not delve into that issue because, assuming the plaintiffs are 

correct, their own argument demonstrates that the circuit court's 

judgment in favor of Southern Sportsman, Mason, Lyons, the 

Association, and McCurdy should be affirmed. If we agree with the 

plaintiffs that § 3-5-3(a) does not apply to Southern Sportsman, Mason, 

Lyons, the Association, or McCurdy, then we must conclude that the 
SC-2023-0151

25

plaintiffs cannot pursue a wrongful-death cause of action based on § 3-5-

3(a) against those defendants. As a result, the plaintiffs would have no 

other cause of action to pursue against Southern Sportsman, Mason, 

Lyons, the Association, or McCurdy because § 3-5-3(a) provides the 

exclusive remedy available to the plaintiffs in this case.5 Assuming the 

plaintiffs are correct, their argument does not demonstrate that the 

circuit court erred in entering a summary judgment in favor of Southern 

Sportsman, Mason, Lyons, the Association, and McCurdy; it, instead, 

demonstrates that the circuit court's judgment should be affirmed, even 

if for reasons other than those relied upon by the circuit court. See Smith 

v. Mark Dodge, Inc., 934 So. 2d 375, 380 (Ala. 2006)(plurality 

opinion)("[T]his Court will affirm a judgment for any reason supported 

by the record that satisfies the requirements of due process, Taylor v. 

Stevenson, 820 So. 2d 810, 814 (Ala. 2001), even where the ground upon 

5In their reply brief, the plaintiffs argue for the first time that, even 

if § 3-5-3(a) is construed as a statute that creates a cause of action, this 

Court should follow Justice Faulkner's dissent in Scott, supra, and 

conclude that a cause of action did exist at common law for a situation 

such as the one presented here. See the plaintiffs' reply brief at 12-14. 

However, we will not consider arguments raised for the first time in a 

reply brief. See Sverdrup Tech., Inc. v. Robinson, 36 So. 3d 34, 46-47 

(Ala. 2009). This argument is not properly before us and, thus, is not 

persuasive.
SC-2023-0151

26

which we affirm was not argued before the trial court or this Court. Ex 

parte CTB, Inc., 782 So. 2d 188, 191 (Ala. 2000).").

In summary, the circuit court determined that the plaintiffs were 

able to pursue a wrongful-death claim against Southern Sportsman, 

Mason, Lyons, the Association, and McCurdy based on § 3-5-3(a), but that 

the plaintiffs failed to produce substantial evidence to survive summary 

judgment. On appeal, the plaintiffs' argument as to the circuit court's 

judgment concerning Southern Sportsman, Mason, Lyons, the 

Association, and McCurdy is that § 3-5-3(a) does not apply to those 

defendants. Based on the history and purpose of § 3-5-3(a), which created 

a cause of action to allow plaintiffs, such as the plaintiffs in this case, to 

recover when the common law had provided no such remedy, and 

assuming that the plaintiffs are correct in arguing that § 3-5-3(a) does 

not apply to Southern Sportsman, Mason, Lyons, the Association, or 

McCurdy, the plaintiffs' argument demonstrates only that they may not 

pursue any cause of action against those defendants. Accordingly, the 

plaintiffs' argument does not demonstrate that the circuit court's 

judgment as to Southern Sportsman, Mason, Lyons, the Association, and 

McCurdy is due to be reversed.
SC-2023-0151

27

Next, the plaintiffs argue that they "had sufficiently set forth 

allegations that reasonably infer that [the defendants] had knowingly 

engaged in conduct such that they fully satisfied [§] 3-5-3(a)'s pleading 

requirement." The plaintiffs' brief at 38. In this portion of the plaintiffs' 

brief, the plaintiffs, citing Rule 12(b)(6), argue that they "set forth 

sufficient allegations that [the defendants'] conduct rose to the level of 

having 'knowingly plac[ed] horses upon the public highway.'" The 

plaintiffs' brief at 39. It is clear that, in this particular argument, the

plaintiffs are arguing that they alleged facts sufficient to survive a 

motion to dismiss. However, as explained above, the circuit court entered 

a summary judgment in favor of the defendants -- which the plaintiffs 

had acknowledged earlier in their brief before this Court, discussed infra;

the circuit court did not dismiss the plaintiffs' complaint under Rule 

12(b)(6). Therefore, the plaintiffs' argument that they alleged sufficient 

facts to survive a motion to dismiss is entirely irrelevant to the judgment

from which they appealed, and, thus, it does not demonstrate that the 

circuit court erred in entering a summary judgment in favor of the 

defendants.
SC-2023-0151

28

However, even if we were to interpret the plaintiffs' argument as 

an argument that they had presented substantial evidence establishing 

a genuine issue of material fact, the plaintiffs' argument fairs no better. 

Despite having earlier argued that § 3-5-3(a) does not apply to Southern 

Sportsman, Mason, Lyons, the Association, or McCurdy, this section of 

the plaintiffs' brief presents an argument that is premised on that 

statute's applying to those defendants. Accordingly, we will include those 

defendants in this discussion.

In Ex parte Jackson, 378 So. 2d 1112, 1114 (Ala. 1979), this Court 

provided the following explanation of the terms "knowingly or wilfully," 

as they are used in § 3-5-3(a):

"Our cases have consistently held that there is no cause 

of action under § 3-5-3 for a plaintiff-motorist who is injured 

because his car collided with livestock which had strayed onto 

a highway through the negligence, gross negligence or 

recklessness of its owner. In Randle v. Payne, 39 Ala. App. 

652, 107 So. 2d 907 (1958), where a bull owner was being sued 

under Code 1940, Tit. 3, § 79, (the predecessor of § 3-5-3) by 

the driver of a truck that collided with the bull on Highway 

11, the Court of Appeals held: 'There must be proof to the 

effect that the owner of the stock knowingly or wilfully placed 

the stock upon the public highway.' Randle, supra, 39 Ala.

App. at 656, 107 So. 2d at 910. In McGough v. Wilson, 273 Ala. 

179, 137 So. 2d 43 (1962), which case likewise involved the 

collision of a motor vehicle and a bull on a public highway, 

this court took note of the Randle decision and stated: '[I]ts 

majority opinion held, in effect, that an owner of livestock is 
SC-2023-0151

29

not liable in damages to a motorist involved in a collision with 

his livestock for negligence in permitting the stock to be on 

the highway in view of the statute.' McGough, supra, 273 Ala. 

at 182, 137 So. 2d at 45. In McGough this court added:

"'Knowingly and willfully doing an act is different 

from inadvertently doing the same act, OR 

PERMITTING IT TO BE DONE THROUGH 

INADVERTENCE OR NEGLIGENCE.'

"McGough, supra, 273 Ala. at 183, 137 So. 2d at 46 (emphasis[ 

in the form of capitalization] supplied).

"In reference to the two cases referred to above, the 

Court of Civil Appeals in Carter v. Alman, 46 Ala. App. 633, 

247 So. 2d 676 (1971), a factually similar case, stated:

"'THESE CASES PLAINLY STATE THAT 

FOR RECOVERY, A MOTORIST MUST SUBMIT 

PROOF THAT THE OWNER OF THE FEASANT 

BEAST PLACED OR PUT IT UPON THE 

HIGHWAY WITH A "DESIGNED SET 

PURPOSE, INTENTION, OR DELIBERATION."

EVIDENCE OF NEGLIGENCE OR GROSS 

CARELESSNESS IS NOT ENOUGH. There was 

no evidence introduced by appellant in the trial 

below with the slightest tendency to indicate acts 

of such nature by appellee.'

"Carter v. Alman, 46 Ala. App. at 635, 247 So. 2d at 677 

(emphasis[ in the form of capitalization] supplied)."6

6The plaintiffs include an argument that this Court's precedent has 

improperly conflated the terms "knowingly" and "wilfully," making it 

necessary for a plaintiff asserting a claim under § 3-5-3(a) to always prove 

intentional conduct. See the plaintiffs' brief at 33-38. The plaintiffs urge 

this Court to adopt the following definition of "knowingly":
SC-2023-0151

30

The plaintiffs argue that they presented evidence indicating that

Southern Sportsman, Mason, and Lyons, as the owners of the property, 

allowed the Association and McCurdy to conduct a trail ride on the 

property, which was not fenced. The plaintiffs further presented 

evidence indicating that Crowder and Phillipsen corralled their horses 

using a portable electric fence. It is undisputed that the horses escaped 

the fencing and wandered onto U.S. Highway 80. The plaintiffs allege 

that such facts are substantial evidence indicating that the defendants 

"knowingly ... put or placed such stock upon such public highway, road 

or street where such damages were occasioned." § 3-5-3(a).

"Under the Restatement [(Second) of Torts], 'knowingly' exists 

when 'a defendant knows that the consequences of his act are 

certain or substantially certain to result from his intentional 

conduct, and he still proceeds, it is considered that he in fact 

intended to produce the consequences which in fact occurred.'

Restatement [(Second) of Torts] § 8A(b) (1965). BLACK’S

LAW DICTIONARY (11th ed. 2019) defines 'knowingly' as 

when 'the actor engaged in prohibited conduct with the 

knowledge that the social harm that the law was designed to 

prevent was practically certain to result' ...."

The plaintiffs' brief at 35-36. The definition of "knowingly" urged by the 

plaintiffs is essentially the same as that set forth in the above-quoted 

portion of Ex parte Jackson. The plaintiffs' argument that this Court has 

rendered the term "knowingly," as it is used in § 3-5-3(a), obsolete is not 

well-taken.
SC-2023-0151

31

The plaintiffs' argument makes no mention of the affidavit 

testimony of Crowder or Phillipsen. As set forth above, Crowder's 

affidavit indicates that, "[she] did not have any knowledge that [her] 

horse or horses had gotten out of the fencing" and that "[a]t no time ... 

did [she] knowingly or willfully put or place [her] horse or horses upon or 

in U.S. Highway 80 ...." Phillipsen's affidavit indicates that she "did not 

have any knowledge or reason to believe that [her] horse had gotten out 

of the electric fence" and that she "did not knowingly or willfully put or 

place [her] horse ... upon or in the roadway of U.S. Highway 80 ...."

The plaintiffs have not presented substantial evidence to create a 

genuine issue of material fact as to whether the defendants knowingly 

"put or placed [the horses involved in the accident] upon [U.S. Highway 

80] where such damages were occasioned." § 3-5-3(a). Essentially, the 

plaintiffs have presented meager evidence indicating that Crowder and 

Phillipsen were, at most, negligent in the manner in which they corralled 

their horses. The above-quoted authority explaining what is required 

under § 3-5-3(a), however, makes clear that a plaintiff must present 

evidence of something more than negligent conduct. The plaintiffs have 

failed to do so. Crowder and Phillipsen explicitly stated that they did not 
SC-2023-0151

32

knowingly place their horses upon U.S. Highway 80 and that they had no 

knowledge that their horses had escaped the fencing. The plaintiffs have 

not demonstrated that the circuit court erred in entering a summary 

judgment in favor of the defendants.

Lastly, the plaintiffs urge this Court, as a matter of public policy, 

to reverse the circuit court's judgment. The plaintiffs argue that 

"[f]undamental tenets of risk allocation and public policy most 

unequivocally warrant that [the defendants] are legally responsible for 

remunerating [the plaintiffs] for the loss of [the deceased]." The 

plaintiffs' brief at 44. The plaintiffs did not raise this public-policy 

argument below and have not supported the argument with any binding 

precedent, and, thus, we will not consider it on appeal. Moore-Dennis v. 

Franklin, 201 So. 3d 1131, 1139 n.5 (Ala. 2016).

Conclusion

Based on the foregoing, we affirm the circuit court's judgment.

AFFIRMED.

Parker, C.J., and Shaw, Wise, Sellers, Stewart, Mitchell, and Cook, 

JJ., concur.

Bryan and Cook, JJ., recuse themselves.