United States District Court, N.D. Alabama, Eastern Division
AUDREY M. LEVESQUE, Plaintiff,
OKTAN TRANSPORT, INC. Defendant.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
a civil action filed by the Plaintiff, Audrey Levesque,
against the Defendant, Oktan Transport, Inc.
(“Oktan”). (Doc. 1). The Complaint sets out
counts for: negligence (Count One); wantonness (Count Two);
negligent and wanton entrustment (Count Three); and negligent
hiring, training & supervision (Count Four). All counts
arise out of an automobile accident between the Plaintiff and
Ramunas Blazys, who was driving on behalf of
case comes before the Court on the Plaintiff's Motion for
Summary Judgment against Oktan. (Doc. 35). As stated in the
Motion, the Plaintiff moves for judgment on the negligence
claim alone, and “[s]pecifically . . . requests this
Court enter summary judgment in her favor as to the elements
of duty, breach, causation, and the existence of damages (not
the amount of damages).”) (Doc. 35 at 1). The Plaintiff
“also requests summary judgment in her favor as to the
affirmative defense of contributory negligence.” (Doc.
35 at 1).
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, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 2265 (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 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, 106 S.Ct. at 2553. Once the moving party has met
its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at
324, 106 S.Ct. at 2553. 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, 106 S.Ct. 2505, 2510, 91
L.Ed.2d. 202 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the
non-movant. Chapman v. AI Transport, 229 F.3d 1012,
1023 (11th Cir. 2000). 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, 106 S.Ct. at 2510. 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, 106 S.Ct.
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. (citing United States
v. Four Parcels of Real Property, 941 F.2d 1428, 1438
(11th Cir. 1991)). 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. (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, 116 S.Ct. 2174, 2183, 135
L.Ed.2d 606 (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. Id.
March 4, 2014, Levesque was the driver/operator of a
Greyhound bus and was returning to Birmingham, Alabama after
driving to Atlanta. She was driving her bus along Interstate
20 when she was involved in an accident with an eighteen
wheeler driven by Blazys, on behalf of Oktan. The Plaintiff
testified in her deposition as follows:
Q. This truck that was involved in the accident with you, do
you ever recall seeing that truck on the road prior to the
Q. Tell me about that, please.
A. He was behind me driving [erratically]. And I felt -- I
came around and I passed him and went on down the road. He
was crossing the line like in and out.
(Doc. 36-2 at 19(72)). The Plaintiff also testified that the
bus she was driving had a speed governor on it which
prevented the bus from exceeding 70 miles per hour. (Doc.
36-2 at 12(41)). The testimony continues:
Q. You were traveling faster than he was when you passed him?
A. Yes, sir. I had to pass him.
Q. But you couldn't have gone more than seventy to pass
A. That's right.
Q. Why did you pass him?
A. Because he was going in and out of the lane, crossing the
line, coming -- I felt unsafe.
Q. After you passed him, do you recall ...