United States District Court, S.D. Alabama, Southern Division
WILLIE J. FIGGERS, Plaintiff,
CARROLL FULMER LOGISTICS CORP., d/b/a/ CARROLL FULMER TRUCKING, et al., Defendants.
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
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 and Count Four claiming wantonness, and
Count Three claiming negligent entrustment.
Court finds that genuine issues of material fact exist
regarding negligence as claimed in Count Two and Count Four.
Therefore, summary judgment is DENIED as to
Factual and procedural background
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).
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).
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.
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.
Conclusions of Law
Standard of Review
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).
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