United States District Court, N.D. Alabama, Western Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
October 25, 2016, Defendant Guy Enterprises, LLC (incorrectly
identified in the complaint as Guy's Logging Company)
(“Guy Enterprises”) removed this action from the
Circuit Court of Sumter County, Alabama pursuant to 28 U.S.C.
§§ 1332, 1441(a)-(b), and 1446. (Doc. 1). Plaintiff
Theodore Pickens (“Pickens”) alleges he was
injured when he was struck by equipment being hauled on a Guy
Enterprises' commercial 18-wheeler while he was a
pedestrian standing on the shoulder of County Road 34 in
Sumter County, Alabama. (See doc. 1-1). He asserts
the following state law claims: (1) negligence, (2)
recklessness/wantonness, (3) negligent and wanton
entrustment, (4) negligent training, retention, and
supervision, (5) respondent superior, and (6)
fictitious defendants. (Id.). Guy Enterprises denies
it's employee truck driver caused an accident or
Pickens' injuries. (Doc. 10 at 1).
Enterprises moves for summary judgment as to all of
Pickens' claims pursuant to Federal Rule of Civil
Procedure 56. (Doc. 24). The motion is fully briefed and
ripe for review. (Docs. 25, 27, and 28). As explained below,
having considered the motion, briefs, and accompanying
evidence, Guy Enterprises' motion for summary judgment
(doc. 24) is GRANTED IN PART AND DENIED IN
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Rule 56
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.”
Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in Plaintiff's favor when sufficient competent
evidence supports Plaintiff's version of the disputed
facts. See Pace v. Capobianco, 283 F.3d 1275,
1276-78 (11th Cir. 2002) (a court is not required to resolve
disputes in the non- moving party's favor when that
party's version of the events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836
F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Summary Judgment Facts
contends that on October 16, 2015, he was a pedestrian on the
shoulder of County Road 34 in Sumter County and his left
elbow was struck by a piece of oversized equipment on a
tractor trailer owned and operated by Guy Enterprises. (Doc.
1-1 at ¶ 8; doc. 25-2 at 20-21 (72:8-74:2)).
in 2007, Pickens and his wife, Sernaylia Pickens,
(“Mrs. Pickens”) would make an annual trip from
Birmingham to Panola, Alabama to operate Mrs. Pickens'
food catering business for the Panola Day parade. (Doc. 25-2
at 13 (42:2-43:12); doc. 25-3 at 5 (11:3-16)). On October 16,
2015, Pickens, Mrs. Pickens, and Randy Clegg
(“Clegg”) traveled to Panola, Alabama to set up
for the parade that would take place the following day. (Doc.
25-2 at 13-14 (45:2-47:17)).
arrival in Panola, the Pickens parked their van and the
trailer adjacent to the road on the shoulder. (Doc. 52-2 at
16, 23 (57:2-8, 83:21-23); doc. 25-3 at 11 (37:2-19)). A
photograph depicting the approximate location of the area
where the Pickens parked their vehicles and trailer is
provided at document 25-4 at 2. Although Pickens brought
lights with him to set up at the location, he did not have
any lights operating at the time of the accident. (Doc. 25-2
at 18 (63:17-23)).
approximately 7:15 p.m., Pickens and Clegg began unloading
equipment off the trailer. (Doc. 25-2 at 18-19 (65:2-7,
67:18-20)). After the equipment had been unloaded, Pickens
and Clegg intended to close the trailer gate. (Id.
at 19 (69:3-21)). Pickens was standing on the side of the
trailer closest to the roadway, with his back to oncoming
traffic, and he bent down to lift the trailer gate.
Id. Pickens was on the shoulder of the road, but he
does not know the distance he was standing away from the
road. (Id. at 18 (63:7-11)). Pickens was then struck
on the left elbow/arm by an object being hauled on a tractor
trailer. (Id. at 19-20 (69:3-14, 73:20-21)).
did not see or hear any vehicles approaching before the
accident. (Doc. 52-2 at 20 (70:18-71:3)). Pickens first
observed the tractor trailer after the accident.
(Id. at 17, 20 (58:5-22, 72:1-14)). Pickens does not
know the speed of the tractor trailer before the accident.
(Id. at 21 (77:13-21)). After the accident, Pickens
recalled the tractor trailer “not going that
fast.” (Id.). Mrs. Pickens testifies she heard
the tractor trailer approaching before the accident, but she
did not observe the tractor trailer until after the accident.
(Doc. 25-3 at 11 (34:4-5)).
same day, Ronnie Gray was hauling equipment from a job site
in his capacity as an employee for Guy Enterprises on County
Road 34 in Panola, Alabama. (Doc. 25-5 at 14-15, 17
(52:16-54:7, 63:5-7)). Gray reduced his speed and activated
his flashers while traveling through Panola, due to the
people setting up on the side of the road in preparation for
the parade. (Id. at 14-15 (52:16-53:3)). Gray
testified he has no knowledge of making contact with any
pedestrian that day. (Id. at 18 (66:21-67:6)).
the accident. Mrs. Pickens identified the Guy Enterprises
logo on the side of the tractor trailer as it continued down
County Road 34. (Doc. 25-3 at 11, 16 (34:8-19; 54:1-4)).
Shortly thereafter, Mrs. Pickens observed the same tractor
trailer that was involved in the accident come traveling back
through Panola and was able to obtain the license plate
number of the escort vehicle accompanying the tractor
trailer. (Id. at 16 (54:1-4)).
date in question. Gray held a valid commercial driver's
license (“CDL”). (Doc. 25-5 at 7 (21:9-22)). Gray
obtained his CDL in 1993 and it has never been revoked or
suspended. (Id.). Notwithstanding the events at
issue in this case, Gray has never been involved in a vehicle
accident while driving a commercial vehicle. (Id. at
8 (26:7-14)). Brad Guy (“Guy”), the owner of Guy
Enterprises, had observed Gray drive before he was hired, and
Guy obtained a reference from Gray's former employer when
he was investigating Gray's driving history. (Doc. 25-6
at 7, 10-11 (22:2-16; 35:12-36:5; 38:9-39:20)).
Pickens asserts that “Gray testified at his deposition
that [Guy Enterprises] never offered any type of training
regarding the operation of tractor-trailers and handling of
large loads during his employment at [Guy Enterprises],
” (doc. 27 at 2 (citing doc. 27-7 at 14, 17 (52, 63)),
Gray's testimony indicates he had already received
training at a truck driving school in Vernon, Alabama and
from prior employers where he drove commercial trucks and
that Guy Enterprises hired him because he already had
experience driving trucks, (doc. 25-5 at 8-9 (28:1-30:23)).
Pickens also attempts to highlight Guy's testimony that
Guy Enterprises did not provide any type of orientation or
training to any of its employees, including Gray. (Doc. 27 at
2 (citing doc. 27-5 at 4-5 (11-12)). The cited deposition
testimony does not support Pickens' assertion. However,
Guy does later testify that, at the relevant time, Guy
Enterprises “didn't per se back then have a safety
program” (doc. 25-6 at 5 (16:12-14)), and explained
that Guy Enterprises hires experienced drivers, like Gray,
that have already been trained and who have a good driving
record. (Doc. 25-6 at 7 (21:22-22:16)).
citation, Pickens also asserts that “Gray testified
that he was completely unfamiliar with Federal Motor Carrier
Safety Regulations that governed his conduct while operating
a tractor- trailer.” (Doc. 27 at 2). Gray testified
that he had read the Federal Motor Carrier Safety
Regulations, but did not remember all of the regulations at
the time of his deposition. (Doc. 25-5 at 8 (27:3-28:13)).
Gray also testified that he received training on the Federal