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Lohr v. Zehner

United States District Court, M.D. Alabama, Northern Division

June 24, 2014

RICHARD I. LOHR, II, as Administrator of the Estate of Charles David Fancher, Deceased, Plaintiff,
v.
JOSEPH EARL ZEHNER, III, et al., Defendants.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

Plaintiff Richard I. Lohr, II, as administrator of the estate of Charles David Fancher, filed this wrongful-death lawsuit against defendants Joseph Earl Zehner, III, Zehner's employer United Parcel Service, Inc. (UPS), Ricky Briggs, and Briggs's employer Kevin G. Transportation (KGT). The lawsuit arises out of a series of highway collisions among Zehner, Briggs, and Fancher that resulted in Fancher's death. The cause is before the court on Zehner and UPS's motion for partial summary judgment and Briggs and KGT's motion for summary judgment. The motions will be granted in part and denied in part.

I. LEGAL STANDARD

"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).

II. BACKGROUND

At approximately 4:44 on a summer morning, Briggs was driving on I-65 in rural Autauga County, Alabama, returning a trailer for KGT. He was driving at approximately 60 miles an hour. Zehner was driving at approximately 72 miles an hour, when he struck Briggs from behind. Zehner's truck veered to the left and tipped onto its side, with the truck blocking both northbound lanes of the highway and with the cab blocking part of the grass median to the left. Briggs stopped and parked his truck so that it was blocking the emergency lane and shoulder to the right side of the highway.

Zehner and Briggs disagree as to what caused the collision. In the immediate aftermath, Zehner told Briggs, as well as a state highway trooper and a UPS investigator, that he "must have fallen asleep" and that he could not remember anything from the previous two miles of driving. See Zehner Dep., Pl.'s Ex. E (Doc. No. 130-5) at 110:7-14; Briggs Dep., Pl.'s Ex. D (Doc. No. 130-4) at 83:9-10; Vaughn Dep., Pl.'s Ex. I (Doc. No. 130-9) at 59:12-22. According to Zehner, this was a statement of uncertainty, and his memory loss may have been caused by a head injury during the collision. He now recalls that the taillights of Briggs's truck suddenly appeared before the collision, as if they had been turned off or malfunctioning. Briggs maintains that his taillights were illuminated before the collision.

Immediately following the collision, all of the northbound lanes were blocked and several cars were stopped in front of the trucks. After a few minutes, someone whom Briggs perceived to be in a position of authority instructed him to move his truck forward so that traffic could pass. Briggs did so, and the cars proceeded single-file around Zehner's overturned truck. At this time, neither Briggs nor Zehner put out reflective triangles in front of Zehner's overturned trailer.

After the traffic had cleared, Kelli Littlejohn drove toward the collision site in the right lane. The roadway was still dark, and she saw no lights or reflective materials until she was close enough to the overturned trailer that her headlights reached the underside of trailer. At that point she swerved right into the emergency lane. She then saw Briggs's truck ahead and swerved to the left, hitting the back left side of his truck.

Approximately ten minutes after Littlejohn drove to the right, Fancher collided with the underside of Zehner's trailer. No one saw Fancher drive up, but administrator Lohr's accident-reconstruction expert opines that he was likely traveling at approximately 70 miles an hour, the speed limit; that he braked and swerved to the left to avoid the trailer; and that his car was still moving at approximately 50 miles an hour when it hit the overturned trailer. Lohr's expert on human factors and visibility opines that, with low-beam headlights, Fancher was unable to see the trailer until he was within 230 feet of it and that he could not have stopped within that distance.

In the two years before the collisions, Zehner had been involved in three accidents. In June 2010, he swerved to avoid a deer and his trailer tipped over. In February 2010, a tire blew on his private vehicle, causing the tread to hit another vehicle. In March 2009, while driving a UPS truck, Zehner "had become distracted and jerked the wheel to the left, which caused his right rear... tire to hit the concrete guard rail." Zehner Dep. at 44:6-11 (reading UPS internal accident report). Zehner's driving record also shows several speeding violations and four other collisions in the previous ten years.

Administrator Lohr brought this lawsuit against Zehner, Briggs, Zehner's employer UPS, and Briggs's employer KGT.[1] Lohr asserts essentially four claims against Zehner: two negligence claims (one for conduct before the initial collision between Zehner and Briggs and one for conduct after the initial collision) and two wantonness claims (one for conduct before the initial collision and one for conduct after it). Zehner seeks summary judgment in his favor on only the two wantonness claims.

Lohr asserts essentially ten claims against UPS. Relying on vicarious liability, he asserts against UPS the same four claims he asserts against Zehner. As does Zehner, UPS seeks summary judgment in its favor on only the two wantonness claims. The remaining six claims Lohr asserts against UPS are three direct negligence claims (for entrustment, supervision, and retention) and three direct wantonness claims (for entrustment, supervision, and retention). UPS seeks summary judgment in its favor on only two of the direct wantonness claims (for entrustment and supervision) and on none of the direct negligence claims.[2]

Lohr asserts essentially four claims against Briggs: two negligence claims (one for conduct before the initial collision and one for conduct after it) and two wantonness claims (one for conduct before the initial collision and one for conduct after it). Briggs seeks summary judgment in his favor on all four claims.

Finally, Lohr asserts essentially four claims against KGT. Relying on vicarious liability, he asserts against KGT the same four claims he asserts against Briggs. KGT seeks summary judgment in its favor on all four claims.

III. DISCUSSION

At first glance, it may seem confusing for the court to devote significant attention in this Alabama wrongful-death case to disagreements about whether the defendants' conduct was negligent or wanton. Generally, the major difference between an action for negligence and wantonness is the availability of punitive damages if wantonness is proven by clear and convincing evidence. See 1975 Ala. Code § 6-11-27(a). However, for "wrongful-death cases... all damages are punitive damages." Cain v. Mortgage Realty Co., Inc. , 723 So.2d 631, 633 (Ala. 1998); see 1975 Ala. Code § 6-5-410(a). In fact, plaintiffs are not permitted to present evidence about the particular value of the deceased individual based on the "concept ...


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