United States District Court, N.D. Alabama, Eastern Division
ADRIAN Y. SMITH, Plaintiff,
RONALD S. MCGHEE; GRIFFIS MOTOR LINES, INC., Defendants.
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE.
civil action was originally filed on May 13, 2016, in the
Circuit Court of Talladega County, Alabama, by Adrian Y.
Smith and Darnell Smith. (Doc. 1-1 at 5). The Plaintiff named
as Defendants Ronald S. McGhee (“McGhee”) and
Griffis Motor Lines, Inc. (“Griffis”). (Doc. 1-1
at 5). The Complaint contains two counts. Count
One alleges that McGhee, as an agent of Griffis,
“negligently, recklessly and/or wantonly operated a
tractor-trailer in such a manner as to cause his vehicle to
cross into the Plaintiff's lane of travel and cause a
collision with the Plaintiff's vehicle, ” resulting
in physical injuries and damages to Adrian Smith. (Count
One). Count Two alleges that, as a result of the conduct
described in Count One, Darnell Smith also suffered physical
injuries and damages. (Count Two). The case was removed to this
Court on July 29, 2016. (Doc. 1). On December 13, 2016, this
Court dismissed Darnell Smith's claims for failure to
prosecute. (Doc. 17).
case comes before the Court on the Defendants' Motion for
Summary Judgment (the “Motion”). (Doc. 28). On
August 7, 2017, this Court entered a “Notice and
Scheduling Order, ” which, pursuant to the requirements
of McBride v. Sharpe, 981 F.2d 1234, 1236 (11th Cir.
1993), “[gave the pro se Plaintiff] express,
ten-day notice of the summary judgment rules, of [her] right
to file affidavits or other materials in opposition to the
motion, and of the consequences of default.” (Doc. 30
at 1). That Order specifically informed the Plaintiff that
her response to the motion was due no later than August 25,
2017. (Doc. 30 at 2). The Plaintiff filed nothing until
October 5, 2017. (Doc. 33). Although it is late, the Court
will consider that document to be the Plaintiff's
response to the Motion for Summary Judgment. No reply brief
has been filed by the Defendants.
reasons stated herein, the Motion will be
GRANTED and this case will be
DISMISSED with prejudice.
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary
judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings in answering the movant. Id.
at 324. By its own affidavits - or by the depositions,
answers to interrogatories, and admissions on file - it must
designate specific facts showing that there is a genuine
issue for trial. Id.
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. Chapman, 229
F.3d at 1023. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson,
477 U.S. at 248. A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. If the evidence
presented by the non-movant to rebut the moving party's
evidence is merely colorable, or is not significantly
probative, summary judgment may still be granted.
Id. at 249.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact - that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once
the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating
the existence of a triable issue of fact.” Id.
(citation omitted) (emphasis added).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996). The second method a
movant in this position may use to discharge its burden is to
provide affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated.
UNDISPUTED AND ADMITTED FACTS
following facts, which have been proffered by the Defendants,
have not been disputed by the Plaintiff and are therefore
deemed to be admitted:
1. On May 17, 2014, Plaintiff Adrian Smith was involved in a
motor vehicle accident when the 1996 Ford Mustang that she
occupied came in contact with a 2009 International
tractor-trailer owned by Defendant Griffis Motor Line Inc.
and operated by its employee Ronald S. McGhee while both
vehicles were traveling eastbound on Interstate 20 in
Talladega County, Alabama. (See Ex. A, ¶ 6). The two (2)
vehicle accident occurred at approximately 3:45 AM. (See Ex.
2. The Accident was investigated by Alabama State Trooper
Barry E. McBurnett. While at the accident scene Trooper
McBurnett inquired of the Plaintiff, Adrian Smith, as to
whether or not she suffered any injuries and she indicated
that she was not injured in the accident. (See Ex. C, No. 2
and 3, and Ex. D Alabama Uniform Traffic Crash Report, DPS
Case No. 4647350).
3. Plaintiff Smith indicated to Trooper McBurnett during his
investigation that she had swerved the vehicle that she was
operating to avoid a large piece of tire debris in the
roadway. She also admitted to Trooper McBurnett that she had
lost control of her vehicle after swerving to avoid the
debris and then traveled partially underneath the
tractor-trailer being operated by Defendant McGhee. (See Ex.
C, No. 4 and 5).
4. Plaintiff Smith later went to Northeast [Alabama] Regional
Medical Center in Anniston, Alabama arriving at approximately
5:07 AM . While at the emergency room she told a physician
at the hospital at 5:39 AM that her vehicle was moving at an
unknown speed and that the vehicle was attempting to miss a
tire in the road and hit an 18-wheeler causing her vehicle to
run underneath the 18-wheeler. (See Ex. C, No. 7, 8, 9 and
Ex. A attached to the Request for Admissions).
5. After being [later] transported to Brookwood Medical
Center[, ] Plaintiff Smith later informed her physicians
[there] that she was driving on the freeway at around 4:00 AM
and that there was a semi-truck in the left lane. [She stated
that the] semi-truck's back-end was even with the front
of her car. She further indicated that the tractor-trailer
ran over a tire and that she swerved to avoid the tire and
ended up wedged under the back end of the semi-truck. (See
Ex. C, No. 10, 11 and Ex. B attached to the Request for
6. Plaintiff Smith has also offered no facts indicating that
Defendant McGhee was guilty of any wanton misconduct in
causing or contributing to cause the subject accident. (See
Ex. C, No. 6).
(Doc. 28 at 6-7, ¶¶1-6).
the Plaintiff is proceeding pro se, and because all
of the aforementioned facts are supported, for the most part,
on the lack of a response to Request for Admissions, the
Court has also examined the Requests for Admissions which, in
pertinent part, ask her to admit:
1. That you were involved in a two-vehicle accident occurring
on May 17, 2014 at approximately 3:45 a.m. with a vehicle
being operated by Ronald S. McGhee, Sr.
2. That the accident was investigated by Alabama State
Trooper Barry E. McBurnett.
3. That Trooper McBurnett inquired as to whether or not you
were injured and your response to the trooper was that you
were not injured in the accident.
4. That you advised Trooper McBurnett that you swerved the
vehicle you were operating in order to avoid [sic] and struck
a large piece of tire debris in the road.
5. That you advised Trooper McBurnett that you lost control
of your vehicle after swerving to avoid the debris and
traveled partially underneath the tractor trailer being
operated by Ronald S. McGhee, Sr.
6. That you know of no facts to indicate that Ronald S.
McGhee, Sr. was guilty of any wanton misconduct in causing or
contributing to cause the accident.
7. That you were seen at the Northeast [Alabama] Regional
Medical Center in Anniston, Alabama at approximately 5:07
a.m. on May 17, 2014.
8. That you told the emergency room physician at the
Northeast Alabama Regional Medical Center on May 17, 2017 at
5:39 a.m. that your vehicle was moving at an unknown speed,
and that “The vehicle was attempting to miss a tire in
the road and hit an 18-wheeler causing the vehicle to run
under the truck.”
9. That the attached record from Northeast Alabama Regional
Medical Center dated May 17, 2014 is a true and correct copy
of page 5 out of 5 pages of medical records kept by that
hospital in the normal and ordinary course of their business.
10. That page 4 of 12 of records from Brookwood Medical
Center dated May 17, 2014 at 12:38 a.m. contain the
following: “Patient reports accident she was driving on
the freeway at 0400 this morning. There was a semi-truck in
the lane to the left that's [sic] back end was even with
the front of her car. The truck ran over a tire and it shot
up toward her car, she swerved to avoid it and ended up
wedged under the back end of the semi.”
11. That the record referred to in the last Request for
Admission is attached hereto and as Exhibit B and is a copy
of a record kept in the normal and ordinary course of
Brookwood Medical Center and is admissible into evidence as a
12. That you have given inconsistent versions as to how the
accident made the basis of this suit occurred.
13. That you have not personally paid any medical expenses
you claimed to have incurred as a ...