United States District Court, N.D. Alabama, Southern Division
MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE
action is before the court on the motion for summary judgment
filed on March 14, 2019, by defendants Celadon Group, Inc.,
(“CGI”) and Kevin Sellers. (Doc. 42). The matter
has been fully briefed, and the parties have consented to the
jurisdiction of the undersigned magistrate judge pursuant to
28 U.S.C. 636(c).
Federal Rule of Civil Procedure 56(a), summary judgment is
proper only “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). The party asking for 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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)). The movant can meet this
burden by presenting evidence showing there is no dispute of
material fact, or by showing that the nonmoving party has
failed to present evidence in support of some element of its
case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. There is no
requirement, however, “that the moving party support
its motion with affidavits or other similar materials
negating the opponent's claim.”
Id. at 323.
the moving party has met his burden, Rule 56 “requires
the nonmoving party to go beyond the pleadings and by her own
affidavits, or by the ‘depositions, answers to
interrogatories, and admissions of file,' designate
‘specific facts showing that there is a genuine issue
for trial.'” Id. at 324 (quoting former
Fed.R.Civ.P. 56(e)). The nonmoving party need not present
evidence in a form necessary for admission at trial; however,
he may not merely rest on his pleadings. Celotex,
477 U.S. at 324. “[T]he plain language of Rule 56(c)
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.”
Id. at 322.
the plaintiff has properly responded to a proper motion for
summary judgment, the court must grant the motion if there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The substantive law will identify which facts are material
and which are irrelevant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
at 248. “[T]he judge's function is not himself to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for
trial.” Id. at 249. His guide is the same
standard necessary to direct a verdict: “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at
251-52; see also Bill Johnson's Restaurants, Inc. v.
N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the
nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted. Anderson, 477 U.S. at 249
(citations omitted); accord Spence v. Zimmerman, 873
F.2d 256 (11th Cir. 1989). Furthermore, the court must
“view the evidence presented through the prism of the
substantive evidentiary burden, ” so there must be
sufficient evidence on which the jury could reasonably find
for the plaintiff. Anderson, 477 U.S. at 254;
Cottle v. Storer Communication, Inc., 849 F.2d 570,
575 (11th Cir. 1988). Nevertheless, credibility
determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury, and
therefore the evidence of the non-movant is to be believed
and all justifiable inferences are to be drawn in his favor.
Anderson, 477 U.S. at 255. The non-movant need not
be given the benefit of every inference but only of every
reasonable inference. Brown v. City of Clewiston,
848 F.2d 1534, 1540 n.12 (11th Cir. 1988).
the evidence in the light most favorable to the nonmoving
party, as this court must for purposes of summary judgment,
the facts pertinent to the defendants' motion for summary
judgment are as follows.
plaintiff, Maria Miles, was injured in a traffic accident
when the bus in which she was a passenger collided with a
tractor-trailer driven by defendant Kevin Sellers. At about
10:20 a.m. on May 7, 2015, Miles was riding in a bus driven
by Yolanda McKinney. Miles, who had driven the bus route in
the past, was showing McKinney the route. Miles and McKinney
were both employed by the City of Birmingham Department of
Public Works. Miles worked as a “crew leader.”
Defendant Sellers was a commercial truck driver, operating a
tractor-trailer for A&S Services Group, LLC, which is not
a party to this action. Sellers was driving westbound on U.S.
Highway 78. McKinney entered Highway 78 from Daniel Payne
Drive, turning right onto the highway and heading in the same
direction as Sellers. Highway 78 is a four-lane highway, with
two lanes traveling in the same direction on each side of a
median separating the northbound and southbound traffic.
Sellers was in the left lane of the two southbound lanes when
McKinney entered the highway ahead of him, turning from
Daniel Payne Drive into the right southbound lane. McKinney,
intending eventually to turn left, moved into the left
southbound lane, ahead of Sellers. The front of Seller's
truck struck the driver's side of the bus. The bus
overturned and skidded on its side. Plaintiff Miles alleges
that Sellers was driving in excess of the 50-mile-per-hour
speed limit. Sellers has testified that he was driving 50 to
55 miles per hour. McKinney has testified that she saw the
truck coming in the left lane, but she thought the truck was
a safe distance behind her. The plaintiff has testified that
after McKinney turned the bus off Daniel Payne Drive onto
Highway 78, she (McKinney) pulled over to the right shoulder
of the highway to look for something. The bus remained there
several minutes and then was struck by Sellers' truck.
(Doc. 44-14, Trial Transcript, pp. 18-25).
lawsuit was filed in the Jefferson County Circuit Court by
Sellers and the passenger in Sellers' truck, Christina
Gordon, against defendants McKinney and the City of
Birmingham. Plaintiff Miles as not a party in that
action. Sellers settled his action against the City and
McKinney before trial. Gordon's negligence claim
proceeded to trial, and a jury found McKinney negligent.
Plaintiff Maria Miles filed the instant action against
Sellers and CGI in the Circuit Court of Jefferson County,
alleging negligence, wantonness, respondeat
superior, negligent entrustment, and negligent hiring,
supervision, and training. The case was removed to this court
on the basis of diversity jurisdiction.
responding to the instant motion for summary judgment,
plaintiff conceded that defendant CGI is entitled to summary
judgment on all claims, and that Sellers is entitled to
summary adjudication of the wantonness claim against him.
Consequently, the motion for summary judgment in favor of CGI
on all claims against it is due to be granted, and the motion
is also due to be granted on the claim that Sellers acted
wantonly. The court is left to evaluate plaintiff's sole
remaining claim of negligence against Sellers.
Sellers asserts that the negligence claim against him is due
to be dismissed because: (1) the plaintiff is barred from
recovery because she was contributorily negligent, and (2)
the plaintiff is barred from recovery by the doctrine of
res judicata because a jury determined that the
driver of the bus, McKinney, was negligent and that finding
is binding on the plaintiff in this action. In response, the
plaintiff asserts that no negligence on the part of the bus
driver can be imputed to the plaintiff, and that the elements
of res judicata under Alabama law are not met where
the other lawsuit involved different parties.
Sellers seeks summary adjudication of plaintiff's
negligence claim on the ground that the plaintiff was
contributorily negligent. Defendant bases his assertion on
the Alabama Supreme Court's holding in Serio v.
Merrell, 941 So.2d 960 (Ala. 2006). As the court in
“Contributory negligence is an affirmative and complete
defense to a claim based on negligence. In order to establish
contributory negligence, the defendant bears the burden of
proving that the plaintiff 1) had knowledge of the dangerous
condition; 2) had an appreciation of the danger under the
surrounding circumstances; and 3) failed to exercise
reasonable care, by placing ...