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Figgers v. Carroll Fulmer Logistics Corp.

United States District Court, S.D. Alabama, Southern Division

February 14, 2019

WILLIE J. FIGGERS, Plaintiff,
v.
CARROLL FULMER LOGISTICS CORP., d/b/a/ CARROLL FULMER TRUCKING, et al., Defendants.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This action is before the Court on the motion for summary judgment and supporting documents filed by Defendant Carroll Fulmer Logistics Corp. d/b/a Carroll Fulmer Trucking, the response filed by Plaintiff Willie J. Figgers, and Fulmer Trucking's reply (docs. 21, 25, 26). Upon consideration, and for the reasons set forth herein, the motion for summary judgment is GRANTED in favor of Fulmer Trucking as to Count One[1] and Count Four claiming wantonness, and Count Three claiming negligent entrustment.

         The Court finds that genuine issues of material fact exist regarding negligence as claimed in Count Two[2] and Count Four. Therefore, summary judgment is DENIED as to these claims.[3]

         I. Factual and procedural background[4]

         Figgers alleges that on the night of July 20, 2015, he was a pedestrian on Highway 43 North in Thomasville, Alabama, when he was struck by a tractor trailer truck owned by Fulmer Trucking and driven by employee John Doe (now identified as Richard Freeman). Figgers testified that he was walking on the grass beside the road when,

I felt something hit me from the back. It threw me up in the air and I landed on my right side. I came down on this side and my left leg got thrown in the highway. And that's when the trailer ran over my leg. And then when the trailer hit my leg it popped me up like this here, (motioning) and I was able to kick my leg back out of the highway and roll back over further in the grass than I was.

(Doc. 21-3, p. 2-3).

         Figgers testified that he was struck on his left shoulder and fell on his right side which caused him to break his right thumb and right toes (Id., p. 4). Figgers explained that his right leg was on the grass and his left leg was on either the concrete or the asphalt when the truck ran over his leg. (Id., p. 8-9). Figgers testified that he did not “know exactly what hit” him, but after he was struck he saw the trailer pass. (Id., p. 4).

         Figgers could not say whether the truck drove up on the grass before he was struck because he was hit from the back. (Id., p. 9, “I can't tell what it did before it got to me. I know it hit me from the back. So, I'm not gonna sit here and say it did or didn't because it hit me from the back.”). Figgers stated that he did not know where the truck tires were but “tire marks weren't on the grass.” (Id.). Figgers testified that the driver did not stop.

         Figgers sustained bodily injury, primarily a broken tibia and fibula in his left leg, and experienced pain and suffering and mental anguish. He seeks damages for his injuries, out of pocket medical expenses, and future medical expenses. Figgers claims that Freeman/John Doe's conduct was wanton (Count One) and negligent (Count Two) (doc. 1-2, Exhibit B, amended complaint). He also alleges that Fulmer Trucking negligently entrusted its vehicle to Freeman/John Doe (Count Three) and that Freeman/John Doe acting as an agent, servant or employee of Fulmer Trucking, negligently and/or wantonly operated the tractor trailer and caused it to collide with Figgers (Count Four). (Id.) Fulmer Trucking moves for summary judgment as to all counts in the amended complaint.

         II. Conclusions of Law

         A. Standard of Review

         “The court shall grant summary judgment 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.” Fed.R.Civ.P. 56(a) (Dec. 2010). Defendant, as the party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (the party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.”) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986)). In deciding whether the Defendant has met its initial burden, the Court must review the record and draw all reasonable inferences therefrom in a light most favorable to Plaintiff, as the non-moving party. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999).

         Once Defendant meets this responsibility, the burden shifts to Plaintiff, as the non-movant, to show the existence of a genuine issue of material fact that would preclude summary judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,475 U.S. 574, 587 (1986). “In reviewing whether the [non-movant has met the] burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505 (1986) ((bracketed text added). However, Defendant would be entitled to summary judgment if Plaintiff fails “to make a sufficient showing on an essential element of [his] case with respect to which [he has] the burden of proof.'” In re Walker, 48 F.3d 1161, 1163 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552) (bracketed text added). Overall, the Court must “resolve all issues of material fact in favor of the ...


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