United States District Court, M.D. Alabama, Northern Division
THE ESTATE OF ROBERT LEE BROWN, Norman Laister, Administrator ad Litem, Plaintiff,
SHERWOOD BRITT COX, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE.
case arises from a traffic accident in Chilton County,
Alabama, involving a tractor-trailer and a pick-up truck. The
driver of the pick-up, Robert Lee Brown
(“Brown”), filed a complaint against the driver
of the tractor-trailer, Sherwood Britt Cox
(“Cox”), and his employer, Daybreak Express, LLC
(“Daybreak”), invoking this court's diversity
jurisdiction. Complaint (Doc. 1) at ¶¶ 4-8. Mr.
Brown died on October 9, 2017, see (Doc. 16), and
the complaint was amended to add a wrongful death count and
substitute his estate as plaintiff. Amd. Compl. (Doc. 24) at
¶¶ 1, 40-43. Plaintiff's amended complaint
asserts a variety of negligence and wantonness claims against
Defendants Daybreak and Cox, as well as a wrongful death
count based upon these same claims. Id. at pp. 3-12.
have not moved for summary judgment on Count One, the
underlying claim alleging that Daybreak's driver Cox was
negligent/wanton in his operation of the tractor-trailer
while acting as an agent of Daybreak, or Count Five, a
separate count alleging agency. Mot. For Partial S.J. (Doc.
48) at 1-2; Pl's Resp. (Doc. # 50) at 11. Rather,
Defendants' motion is limited to Plaintiff's claims
for negligent and wanton maintenance, inspection, repair,
supervision, hiring and training (Counts Two, Three, Four,
Six, Seven, and Eight) as well as the wrongful death count
based upon these claims (Count Nine). Mot. For Partial S.J.
(Doc. 48). Plaintiff stipulates that summary judgment is
appropriate on his claims for negligent/wanton maintenance,
inspection, repair, supervision, and training (Counts Two,
Three, Four, Six, and Eight), and only opposes summary
judgment on his negligent/wanton hiring claim (Count Seven).
Pl's Resp. (Doc. # 50) at 11.
of the elements of Counts One and Seven shows that Count
Seven is redundant. In addition, Plaintiff lacks sufficient
probative evidence to satisfy his burden on the remaining
elements of a negligent/wanton hiring claim under Alabama
for the reasons stated below, undersigned RECOMMENDS that
Defendants' motion for partial summary judgment (Doc. 50)
be GRANTED and that Counts Two, Three, Four, Six, Seven,
Eight, and Nine as it relates to negligent/wanton
maintenance, inspection, repair, supervision, hiring, and
training be DISMISSED.
Cox and Daybreak move for partial summary judgment as to the
1. Count Two - Negligent/Wanton Maintenance
2. Count Three - Negligent/Wanton Inspection
3. Count Four - Negligent/Wanton Repair
4. Count Six - Negligent/Wanton Supervision
5. Count Seven - Negligent/Wanton Hiring
6. Count Eight - Negligent/Wanton Training
7. Count Nine - “Claim for wrongful death based on
wanton conduct and there claims stated in Sections A-H
related to negligent/wanton maintenance, inspection, repair,
supervision, hiring, training, and failure to properly follow
applicable regulations.” ..
do not move for summary judgment on Count
One-Negligent/Wanton operation of the 18-wheel truck by
Defendnt Cox while acting in his capacity as agent and/or
employee of Defendant Daybreak, or Count Five-Defendant Cox
was acting as an agent and employee of Defendant Daybreak
within the line and scope of his authority. Defs' Mot.
Partial. S.J. (Doc. 48) at 1-2; Amd. Compl. (Doc. 28) at 3-4,
after reviewing Defendants' arguments and evidence
related to their motion for partial summary judgment,
“stipulates that summary judgment is appropriate as to
the claims of Negligent/Wanton Maintenance, Negligent/Wanton
Inspection, Negligent/Wanton Repair, Negligent/Wanton
Supervision, Negligent/Wanton Training, as well as with
respect to the Wrongful Death aspects of those five
claims.” (Doc. 50) at 11. However, “Plaintiff
opposes Defendants' motion for partial summary judgment
only as to the claims of Negligent/Wanton Hiring and the
claim of Wrongful Death based on the theory of
Negligent/Wanton Hiring[.]” Id. Per
plaintiff's stipulation, the undersigned recommends that
Counts Two, Three, Four, Six, Eight, and Nine as it relates
to negligent/wanton maintenance, inspection, repair,
supervision, hiring, and training be dismissed. The remaining
discussion is limited to Count Seven, Plaintiff's
negligent/wanton hiring claim.
Rule 56(a) of the Federal Rules of Civil Procedure, a
reviewing court shall grant a motion for “summary
judgment if the movant shows 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.” Fed.R.Civ.P. 56(a).
The Supreme Court explains that ‘[o]ne of the principal
purposes of the summary judgment rule is to isolate and
dispose of factually unsupported claims. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-324 (1986). “Rule 56(c)
mandates the entry of summary judgment . . . 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. “ Id. at 322.
determining whether a genuine issue for trial exists, the
court must view all the evidence in the light most favorable
to the non-movant. McCormick v. City of Fort
Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
Likewise, the reviewing court must draw all justifiable
inferences from the evidence in the nonmoving party's
favor. Anderson v. Liberty Lobby, Inc, 477 U.S. 242,
255 (1986). 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).
Furthermore, “[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); see
also Anderson, 477 U.S. at 249-50 (“If the
evidence [on which the nonmoving party relies] is merely
colorable, or is not significantly probative, summary
judgment may be granted.”) (internal citations
THE SUMMARY ...