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Barry v. Big M Transportation, Inc.

United States District Court, N.D. Alabama, Eastern Division

September 11, 2017

BIG M TRANSPORTATION, INC., et al., Defendants.


          John E. Ott Chief United States Magistrate Judge.

         This action, which was filed in Alabama state court and then removed to federal court, arises out of a motor vehicle accident that occurred on Interstate 20 in Cleburne County, Alabama. Plaintiffs David and Vanessia Barry were injured when a tractor-trailer driven by defendant Joshua Shaffer, an employee of defendant Big M Transportation, Inc. (“Big M”), struck their vehicle, which was stopped in the right lane of traffic along with two other vehicles. The Barrys seek to recover compensatory and punitive damages for their injuries and have asserted the following claims against Big M and Shaffer (collectively, “Defendants”): a claim against both Defendants for wanton or reckless operation of the tractor-trailer (Count I of the Barrys' complaint); a claim against both Defendants for negligent operation of the tractor-trailer (Count II); a clam against Big M for wanton or negligent entrustment of the tractor-trailer to Shaffer (Count III); a “respondeat superior” claim against Big M (Count IV); a negligent training claim against Big M (Count V); a negligent hiring claim against Big M (Count VI); a claim against Big M for negligent maintenance or repair of the tractor-trailer (Count VII); and a claim against Big M for negligent or wanton supervision (Count XI).[1] The Defendants have denied the Barrys' claims and have asserted a number of affirmative defenses, including contributory negligence, assumption of the risk, and intervening cause.

         The case is now before the Court on four related motions. Big M and Shaffer have each filed a motion for summary judgment on the Barrys' claims. (Docs. 46 & 47). The Barrys have filed a motion for partial summary judgment on the Defendants' affirmative defenses of contributory negligence, assumption of the risk, and intervening cause, and for a “spoliation sanction” in the form of either a default judgment on the Defendants' negligence liability or an order judicially establishing certain facts against the Defendants. (Doc. 50). Shaffer has also filed a motion to strike Exhibit 16 to the Barrys' motion for partial summary judgment (doc. 50-16), a sketch he drew of the accident 24 to 48 hours after it occurred. (Doc. 60). All of the motions have been briefed and are ripe for decision.


         A. Big M's Hiring of Shaffer

         Big M is a transportation company that employs commercial truck drivers. (Deposition of Benton Elliott (“Elliott Dep.”) at 29).[2] On March 15, 2015, Big M hired Shaffer as a trainee driver. (Deposition of Joshua Shaffer (“Shaffer Dep.”) at 23).[3] At that time, Shaffer had a valid commercial driver's license (“CDL”), but his only prior commercial driving experience was approximately 20 to 30 days as a trainee driver for Covenant Transport in 2012. (Shaffer Dep. at 18-21; Elliott Dep. at 55). Shaffer had gone to work for Covenant Transport after completing at least 160 hours of driver training at the Tennessee Truck Driving School and obtaining his CDL. (Shaffer Dep. at 20). Shaffer left his employment at Covenant Transport while still a trainee driver. (Id. at 19). When he decided to resume commercial driving in 2015, he took a refresher driving course at Peak Technical Institute shortly before being hired by Big M. (Id. at 22, 25-26).

         In 2013, two years before Shaffer was hired by Big M, his CDL and driver's license were suspended for failure to pay child support. (Shaffer Dep. at 11-12, 16). In addition, Shaffer's motor vehicle record reflects a citation for following too closely to another vehicle in November 2012, an accident related to the same event, and two occasions when he failed to appear in court in 2010. (Id. at 13-15).

         Shaffer completed two days of classroom training at Big M after he was hired. (Shaffer Dep. at 28). As a trainee driver, he was then required to complete an on-the-road training program with a more experienced driver (his trainer). (Elliott Dep. at 72-73). Big M's on-the-road training program typically lasts six weeks. (Id. at 73). Big M assigned Joshua Spruill to be Shaffer's trainer. (Shaffer Dep. at 28-29).

         B. The Barrys' First Collision

         The subject accident occurred on March 31, 2015. That day, the Barrys were traveling in their car from Anniston, Alabama, to Fairburn, Georgia, on Interstate 20. Mr. Barry was driving, and Mrs. Barry was a passenger in the front seat. Sometime around 6:00 p.m., the weather turned bad. There was hail, lightning, heavy winds, and heavy rain. Mr. Barry pulled off on the side of the road. When the rain and hail lightened up five to ten minutes later, Mr. Barry got back on the highway. (Deposition of David Barry (“D. Barry Dep.”) at 21, 25-29).[4]

         Shortly after the Barrys resumed travel, they entered a construction zone on I-20. (D. Barry Dep. at 29-30). The two lanes of travel in the construction zone were shifted to the right-the left lane was blocked off, the right lane was serving as the left lane, and the shoulder was serving as the right lane. (Deposition of Judith Taylor (“Taylor Dep.”) at 11-12; Deposition of Vanessia Barry (“V. Barry Dep.”) at 42; Shaffer Dep. at 98-99).[5]

         A few minutes after the Barrys entered the construction zone, they experienced a side-to-side collision with a tractor-trailer. The Barrys were traveling in the right lane of traffic and the tractor trailer was traveling in the left lane.[6] (D. Barry Dep. at 32-33). Mr. Barry testified that the weather was not a factor in the collision and he did not feel it was unsafe to be on the road at that time. (Id. at 29-30).

         As a result of the collision, the driver's side door of the Barrys' car was caved in, the driver's side mirror was knocked loose, the driver's side window was knocked out, and the front windshield was crushed on the driver's side. (Doc. 50-17 at 3). However, the vehicle was still operational. (D. Barry Dep. at 44). Mr. Barry continued briefly down the interstate and then brought his vehicle to a complete stop in the right lane of traffic (i.e., the shoulder of the road, which was still serving as the right lane), several hundred feet behind a tractor-trailer that was parked in that lane up ahead. (D. Barry Dep. at 34-36; V. Barry Dep. at 42, 73; Taylor Dep. at 64). He stopped the vehicle with all four wheels within the right lane, close to a guardrail running along the passenger side of the vehicle. (D. Barry Dep. at 36, 44; V. Barry Dep. at 43).

         After Mr. Barry stopped in the right lane of traffic, Judith Taylor, who had been driving behind him, brought her vehicle to a stop about four feet behind the Barrys' vehicle. (Taylor Dep. at 16). Danny Moore, who was driving behind Taylor, stopped his vehicle behind Taylor's. (Id. at 16-18). All three of the stopped vehicles had their lights on. (Id. at 36). The flashing hazard lights of the Barrys' vehicle were also on. (D. Barry Dep. at 45).

         After stopping his vehicle, Mr. Barry discovered that he could not get out of the car because the crush from the side-impact collision prevented him from opening his door. (D. Barry Dep. at 38-39; V. Barry Dep. at 41). Mrs. Barry told her husband that she would try to get him out. She then exited the vehicle through her side door. (V. Barry Dep. at 41-43, 79).

         C. The Subject Accident

         That same day, Shaffer and his trainer, Spruill, were also traveling east on Interstate 20, in a Big M tractor-trailer. Shaffer was driving and Spruill was in the sleeper berth. By that time, Shaffer had been training with Spruill for eleven days and Spruill was comfortable with Shaffer driving without his direct supervision from the front passenger seat.[7] (Shaffer Dep. 147, 168).

         When the weather turned bad, Shaffer asked Spruill to get out of the sleeper berth and move into the front passenger seat, which he did. It is unclear exactly when Spruill moved into the passenger seat. Spruill initially testified that he got down from the sleeper berth and into the passenger seat about five minutes before the subject accident. (Spruill Dep. at 23-24). He later testified that he got into the passenger seat earlier, about five to ten minutes before they entered the construction zone where the accident occurred. (Id. at 28-29).

         Spruill testified that when Shaffer asked him to move into the front passenger seat, it was “raining real hard and hailing.” (Spruill Dep. at 23). Shaffer was “nervous” and wanted Spruill in the front seat to “calm him down.” (Id.) Shaffer asked Spruill if he could pull off the road, but Spruill told him there was no place to pull off and that they just needed to keep on going. (Id. at 24). Spruill told Shaffer to stay calm, to keep his distance between the other vehicles on the road, and to keep his speed below the speed limit. (Id. at 25).

         The Barrys' accident reconstruction expert, Chris Bloomberg, does not agree with Spruill that there was no place for Shaffer to pull off. According to Bloomberg, there were at least two exits that Shaffer could have taken to exit the highway between the time he told Spruill he was nervous and the time of the accident. (Doc. 65-4 at 4).

         How the accident happened is in dispute. Shaffer testified that he was driving between 30-35 miles per hour when he entered the construction zone and continued to drive at that speed after moving into the left lane of traffic. (Shaffer Dep. at 102-04, 164). He said it was still hailing and raining hard. (Id. at 94-95). According to Shaffer, another tractor-trailer was traveling in the right lane of traffic and blocked his view of the three vehicles that were stopped in the right lane up ahead (i.e., Danny Moore's vehicle, Judith Taylor's vehicle, and the Barrys' vehicle). (Id. at 137-38). The other tractor-trailer suddenly cut into the left lane in front of Shaffer's truck. Shaffer applied his brakes and swerved into the right lane of traffic to avoid hitting the other truck. (Id. at 108-09). As he moved into the right lane, Shaffer saw the three vehicles that were stopped in that lane. ( 148-50). His tractor-trailer collided with the guardrail and struck the three stopped vehicles. (Id. at 79-80, 156-59). Spruill's testimony was similar to Shaffer's, although Spruill testified that the hailing had stopped and the rain had lightened to a drizzle by the time of the accident.[8] (Spruill Depo. at 56).

         Judith Taylor testified that the accident happened in a different manner. According to Taylor, the rain had lightened to a light drizzle. (Taylor Dep. at 11). As she was sitting in her stopped vehicle in between the Barrys' vehicle and Danny Moore's vehicle, she saw two tractor-trailers approaching them, both in the right lane of traffic. The leading truck was the Big M truck. The trailing truck came out from behind the Big M truck and moved into the left lane, leaving the Big M truck with nowhere to go but to the right where the three stopped cars were sitting. The Big M truck sideswiped Taylor's and Moore's vehicles along their passenger sides before striking the Barrys' vehicle in the rear. (Id. at 22-29).

         At the time of the accident, Mrs. Barry was standing in front of the Barrys' vehicle. (V. Barry Dep. at 79-80). She remembers “flying through the air, ” losing her vision, and then blacking out. (Id. at 45). She does not know which of the vehicles involved in the collision struck her. (Id.) She was transported from the accident scene by ambulance. (D. Barry Dep. at 67-68).

         D. Post-Accident Events

         After the Big M tractor-trailer came to a stop, Shaffer called E911 on his cell phone. (Shafer Dep. at 170). He told the E911 operator: “Two cars collided and then we'[re] coming down the hill and I tried to get 'er downshifted enough and then all the other truckers in front of me slammed on their brakes and I tried to downshift it even harder and ... I pretty much hydroplaned.” (Doc. 50-1 at 4). Later in the call he told the operator: “I didn't even see the wreck until the other truck … pulled his trailer out. He basically saved himself just in time and … he pulled his trailer out and I tried to … swing around him and there was a wreck right here. I didn't even see it ….” (Id. at 6). He also told the operator that Mrs. Barry was “bleeding on the ground” and “barely breathing.” (Id.)

         After talking to E911, Shaffer called Big M's CFO, Wes Davis, and told him what had happened. Davis told him “to make sure [he took] plenty of pictures of ... the truck, trailer, scene, cars, everything.” (Shaffer Dep. at 196). Shaffer does not recall Davis instructing him to preserve the data on the tractor's electronic data recorder. (Id. at 207).

         Alabama State Trooper Gary Mitchell investigated the accident along with a trainee trooper, Brandon Maye. Trooper Maye interviewed the drivers and then prepared the accident report, which Trooper Mitchell approved and signed. The accident report identified Mr. Barry's “[i]mproper parking/stopped in road” as the primary circumstance contributing to the accident. (Doc. 58-3 at 2, 9). The report also included a diagram of the accident that showed the Big M tractor-trailer in the right lane of traffic during the entire sequence of events. (Id. at 5).

         A wrecker truck towed away the Big M truck to Ohatchee, Alabama. (Shaffer Dep. at 197; Elliott Dep. at 231-32). The truck was driven back to Big M's headquarters in Mississippi one or two days later. (Elliott Dep. at 232-33).

         Within 24 to 48 hours of the accident, Shaffer was interviewed by Wes Davis and a liability insurance representative at Big M's headquarters in Mississippi. During the interview, Shaffer drew a sketch of the accident. (D.50-16). When Shaffer was deposed a year and a half later, he identified the sketch and confirmed that he had drawn it, but he was unable to recall what all of the markings on the sketch represented. (Shaffer Dep. at 187-95).

         On April 27, 2015, just less than a month after the accident, Big M received a “letter of preservation” from counsel for the Barrys, requesting Big M to preserve, among other evidence, the tractor-trailer and the “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box and its data” (the “ECM data”). (Doc. 64-2; Elliott Dep. at 178-79). By that date, however, the tractor had already undergone accident-related repairs. (Doc. 58-1; Elliott Dep. at 173). In addition, prior to the accident the tractor had been selected for sale to Mack as part of a vehicle swap program. (Doc. 58-1; Elliott Dep. at 174-76). Mack sent Big M a power-of-attorney on April 30, 2015, effectively completing the sale of the tractor, and then took possession of the vehicle. (Doc. 58-1).

         Big M did not download or otherwise preserve the tractor's ECM data prior to completing the sale of the tractor to Mack. (Elliott Dep. at 165-66). According to the Barrys' accident reconstruction expert, Chris Bloomberg, the ECM data would likely have provided information “relating to the Big M truck leading up to and at the time of the wreck, including the speed history of the tractor-trailer as it approached [the collision] area, when the brakes were applied, how much the vehicle slowed down, etc.” (Doc. 65-4 at 5).

         Big M's corporate representative, Benton Elliott, testified that it is Big M's normal practice to “get the ECM data” if they know a collision is severe. (Elliott Depo. at 170). He conceded that there “wasn't anything” preventing Big M from preserving the ECM data in this instance, but said that it “wouldn't have mattered” because it was his understanding from Mack that any accident-related data “would have been gone.” (Id. at 172-73). He said it was his understanding that “something as simple as moving the truck” can start the process of rewriting the module, so that the accident-related data would have been gone “as soon as the truck probably got to the tow yard.” (Id. at 166). Contrary to Elliott's understanding, Big M's motor carrier expert, Stephen Chewning, testified that “towing the truck with the engine off would not overwrite [ECM] data” in any truck engine, including a Mack engine. (Deposition of Stephen Chewning (“Chewning Dep.”) at 26).[9]


         As noted, there are four related motions before the Court. Big M and Shaffer have each moved for summary judgment on the Barrys' claims. (Docs. 46 & 47). The Barrys, in turn, have moved for partial summary judgment on the Defendants' affirmative defenses of contributory negligence, assumption of the risk, and intervening cause, and for imposition of a “spoliation sanction” against the Defendants for their failure to preserve the tractor-trailer's ECM data. (Doc. 50). Shaffer has moved to strike Exhibit 16 to the Barrys' motion, the sketch he drew of the accident. (Doc. 60). The Court will first address Shaffer's motion to strike and the Barrys' spoliation argument. The Court will then consider the parties' summary judgment arguments together.

         A. Shaffer's Motion to Strike

         In his one-paragraph motion to strike, Shaffer asks the Court to strike Exhibit 16 to the Barrys' motion for partial summary judgment, the sketch he drew of the accident when he was interviewed at Big M's headquarters 24 to 48 hours after the accident occurred. He argues that because he “testified in deposition that he could not recall what various markings on this purported collision [sketch] were, ” the sketch “does not accurately depict the accident scene and should not be considered” by the Court as evidence. (Doc. 60). That is the extent of his argument. He cites no rule of evidence or other legal authority in support of his argument.

         Shaffer's motion to strike is due to be denied. As the Barrys point out in their opposition to the motion to strike, Shaffer admitted in his deposition that he drew the sketch shortly after the accident occurred for the purpose of describing to Big M's CFO and its insurance carrier how the accident happened. He may not have been able to recall what all of the markings on the sketch depicted, but he did admit that he drew the sketch and was able to testify to what most of the markings represented. (Shaffer Dep. at 181-82, 187-95). Moreover, he never testified that the sketch was inaccurate; he simply was unable to recall what some of the markings on the sketch depicted.

         Having been affirmatively identified by Shaffer as the sketch he drew of the accident shortly after it happened, the sketch is certainly evidence relevant to the issues raised in the pending summary ...

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