United States District Court, N.D. Alabama, Eastern Division
DAVID C. BARRY and VANESSIA B. BARRY, Plaintiffs,
BIG M TRANSPORTATION, INC., et al., Defendants.
E. Ott Chief United States Magistrate Judge.
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). 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.
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.
Big M's Hiring of Shaffer
is a transportation company that employs commercial truck
drivers. (Deposition of Benton Elliott (“Elliott
Dep.”) at 29). On March 15, 2015, Big M hired Shaffer as
a trainee driver. (Deposition of Joshua Shaffer
(“Shaffer Dep.”) at 23). 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,
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).
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).
The Barrys' First Collision
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
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).
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. (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).
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).
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).
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).
The Subject Accident
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. (Shaffer Dep. 147, 168).
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).
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).
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).
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.
(Id.at 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. (Spruill Depo. at 56).
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).
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).
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.”
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).
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).
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).
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).
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).
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).
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).
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.
Shaffer's Motion to Strike
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.
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.
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 ...