United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the plaintiff's motion for
partial summary judgment and the defendants' motion for
summary judgment. (Docs. 166, 167). The parties have
submitted briefs and evidentiary materials in support of
their respective positions, (Docs. 166, 168-69, 171-75), and
the motions are ripe for resolution. After careful
consideration, the Court concludes that both motions are due
to be denied.
to the amended complaint, (Doc. 56), the plaintiff's
decedent (“Weaver”), while executing a left-hand
turn from Highway 98 to First Street in Wilmer, Alabama, was
struck by an 18-wheeler that was traveling the opposite way
on Highway 98. The 18-wheeler was driven by the individual
defendant (“Tran”), who was acting in the line
and scope of his employment by the corporate defendant
(“Enterprises”). Weaver experienced significant
injuries, from which he expired.
amended complaint alleges three claims against both
defendants: negligence, recklessness/wantonness, and wrongful
death. The amended complaint alleges two additional claims
against Enterprises: negligent/wanton entrustment and
negligent/wanton hiring, training, retention and supervision.
The defendants seek summary judgment as to all claims. The
plaintiff seeks partial summary judgment only with respect to
whether Tran was negligent.
judgment should be granted only if “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
party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The moving party may meet its burden in either of
two ways: (1) by “negating an element of the non-moving
party's claim”; or (2) by “point[ing] to
materials on file that demonstrate that the party bearing the
burden of proof at trial will not be able to meet that
burden.” Id. “Even after
Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.”
Id.; accord Mullins v. Crowell, 228 F.3d
1305, 1313 (11th Cir. 2000); Sammons v.
Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
the moving party has the burden of proof at trial,
that party must show affirmatively the absence of a
genuine issue of material fact: it must support its motion
with credible evidence ... that would entitle it to a
directed verdict if not controverted at trial. [citation
omitted] In other words, the moving party must show that, on
all the essential elements of its case on which it bears the
burden of proof, no reasonable jury could find for the
nonmoving party.” United States v. Four Parcels of
Real Property, 941 F.2d 1428, 1438 (11th Cir.
1991) (en banc) (emphasis in original); accord
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
the party moving for summary judgment fails to discharge the
initial burden, then the motion must be denied and the court
need not consider what, if any, showing the non-movant has
made.” Fitzpatrick, 2 F.3d at 1116;
accord Imaging Business Machines, LLC v.
BancTec, Inc., 459 F.3d 1186, 1190 (11th Cir.
2006); Mullins, 228 F.3d at 1313; Clark,
929 F.2d at 608.
however, the movant carries the initial summary judgment
burden ..., the responsibility then devolves upon the
non-movant to show the existence of a genuine issue of
material fact.” Fitzpatrick, 2 F.3d at 1116.
“If the nonmoving party fails to make ‘a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof, ' the
moving party is entitled to summary judgment.”
Clark, 929 F.2d at 608 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may … consider the
fact undisputed for purposes of the motion ….”).
deciding a motion for summary judgment, “[t]he
evidence, and all reasonable inferences, must be viewed in
the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003).
is no burden on the Court to identify unreferenced evidence
supporting a party's position. Accordingly, the Court
limits its review to the exhibits, and to the specific
portions of the exhibits, to which the parties have expressly
cited. Likewise, “[t]here is no burden upon the
district court to distill every potential argument that could
be made based upon the materials before it on summary
judgment, ” Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995), and
the Court accordingly limits its review to those arguments
the parties have expressly advanced.
subject accident occurred at approximately 5:48 p.m., or
thirteen minutes after sunset. The plaintiff argues that Tran
was both negligent and negligent per se because his
vehicle's headlights were not turned on at the time of
Negligence Per Se.
doctrine of negligence per se or negligence as a matter of
law arises from the premise that the legislature may enact a
statute that replaces the common-law standard of the
reasonably prudent person with an absolute, required standard
of care.” Parker Building Services Co. v. Lightsey
ex rel. Lightsey, 925 So.2d 927, 930-31 (Ala. 2005).
There is no Alabama statute that directly requires a motorist
to use headlights thirteen minutes after sunset. Instead,
“[e]very vehicle upon a highway within this state
… shall display lighted lamps and illuminating devices
… [f]rom a half hour after sunset to a half hour
before sunrise.” Ala. Code § 32-5-240(a)(1)a. Tran
was not in violation of this provision, and the plaintiff
does not rely on it.
the plaintiff points to a provision that “no person may
operate a commercial motor vehicle in this state … in
violation of the federal motor carrier safety regulations as
prescribed by the U.S. Department of Transportation, 49
C.F.R. Part 107, Parts 171-180, Parts 382-384, and Parts
390-399 and as they may be amended in the future.” Ala.
Code § 32-9A-2(a)(1). The Court assumes without deciding
that, if any of the cited regulations require commercial
vehicles to employ headlights thirteen minutes after sunset,
Tran “violated the statute [Section 32-9A-2(a)(1)],
” Parker Building Services, 925 So.2d at 931,
for purposes of negligence per se analysis. The
plaintiff, however, identifies no such requirement in any of
the cited regulations; the sole regulation she cites stands
only for the unremarkable proposition that, if a regulation
imposes a higher standard of care than does state law, the
regulation must be complied with. 49 C.F.R. § 392.2.
than cite a federal regulation the violation of which would
violate Section 32-9A-2(a)(1), the plaintiff relies on the
Alabama Commercial Driver's ...