United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
SCOTT COOGLER, UNITED STATES DISTRICT JUDGE
a personal injury lawsuit arising out of a motor vehicle
accident involving two 18-wheelers and a pickup truck.
Plaintiff Percy Jones (“Jones”) brings claims of
negligence; wantonness; negligent and/or wanton entrustment;
and negligent and/or wanton hiring, supervision, training,
and/or retention against Defendant NES Express, LLC
(“NES”). NES has moved for summary judgment on
all of Jones's claims except for his negligence claim.
(See Doc. 14.) The motion has been fully briefed and
is ripe for review. Jones concedes that NES is entitled to
summary judgment on Count Two, Negligent and/or Wanton
Entrustment, and Count Three, Negligent and/or Wanton Hiring,
Supervision, Training, and/or Retention. (See Doc.
18 at 2.) Therefore, NES's motion for summary judgment on
these claims is due to be granted. For the reasons stated
below, NES's motion for summary judgment on Jones's
wantonness claim is due to be denied.
accident that gives rise to this suit occurred at
approximately 10:28 AM on May 4, 2017, on Interstate 59. The
accident involved Christopher Gilbertson
(“Gilbertson”), a licensed commercial driver who
was driving a tractor-trailer for NES, and Jones, who was
driving a pickup truck in front of Gilbertson's vehicle.
Another 18-wheeler was driving in front of Jones's truck.
Gilbertson rear-ended Jones, which according to Gilbertson,
caused Jones's vehicle to be “pinched”
between the two tractor-trailers. Gilbertson reported to
NES's founder, Sinisa Nedic (“Nedic”), that
prior to the collision he had been “cut off” by
Jones's vehicle. (See Doc. 14 at 51.)
accident occurred near a construction zone where construction
barrels placed in the left-hand lane required all traffic to
merge right. According to Trooper Johnny B. Clark
(“Trooper Clark”), who responded to the accident,
there were no sight obstructions on this stretch of road and
clearly marked work zone signs were in place. Trooper Clark
also testified that the roadway was wet with a mist of rain.
This is consistent with the road conditions Gilbertson
described to Nedic. Nedic testified that Gilbertson told him
that when the wreck occurred it was rainy, there was “a
lot of construction, ” and “a lot of
traffic.” (See id.) According to Jones's
expert, based on his review of Gilbertson's
tractor-trailer's Electronic Control Module
(“ECM”) data, just prior to the accident the
driver's cruise control was on and set at 65 mph. The ECM
data also indicated that Gilbertson did not begin braking
until just over one second before his tractor-trailer
rear-ended Jones's truck.
judgment is appropriate “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). A dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the
nonmoving party.” Hickson Corp. v. N. Crossarm Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine
dispute as to a material fact exists “if the nonmoving
party has produced evidence such that a reasonable factfinder
could return a verdict in its favor.” Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (quoting Waddell v. Valley Forge Dental
Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The
trial judge should not weigh the evidence, but determine
whether there are any genuine issues of fact that should be
resolved at trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
considering a motion for summary judgment, trial courts must
give deference to the non-moving party by “view[ing]
the materials presented and all factual inferences in the
light most favorable to the nonmoving party.”
Animal Legal Def. Fund v. U.S. Dep't of Agric.,
789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529
(11th Cir. 1987). Conclusory allegations and “mere
scintilla of evidence in support of the nonmoving party will
not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir.
2016) (per curiam) (quoting Young v. City of Palm Bay,
Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a
motion for summary judgment, “the moving party has the
burden of either negating an essential element of the
nonmoving party's case or showing that there is no
evidence to prove a fact necessary to the nonmoving
party's case.” McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013).
Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules
as a whole.” Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
Alabama law, wantonness is “the conscious doing of some
act or the omission of some duty while knowing of the
existing conditions and being conscious that, from
doing or omitting to do an act, injury will likely or
probably result.” Ex parte Essary, 992 So.2d
5, 9 (Ala. 2007) (emphasis in original) (citing Bozeman
v. Cent. Bank of the S., 646 So.2d 601 (Ala. 1994)).
Wantonness is not simply a more severe version of negligence,
but is an entirely different tort concept. Id. While
negligence is characterized as “the inadvertent
omission of duty, ” wanton misconduct is characterized
by the state of mind of consciously taking an action with
knowledge that “the doing or not doing of [the act]
will likely result in injury . . . .” Id.
(quoting Tolbert v. Tolbert, 903 So.2d 103, 114-15
(Ala. 2004)). Wantonness is typically a question of fact for
the finder of fact. See Cash v. Caldwell, 603 So.2d
1001, 1003 (Ala. 1992).
Court concludes that there is a genuine dispute of material
fact as to whether Gilbertson acted wantonly. While driving
at a high rate of speed does not demonstrate inherently
reckless behavior on its own, excess speed coupled with other
circumstances can establish that an individual's behavior
was inherently reckless and thus constituted wantonness.
See Knowles By & Through Harrison v. Poppell,
545 So.2d 40, 42 (Ala. 1989); Smith v. Cullen, 116
So.2d 582, 586 (Ala. 1959). Here, Gilbertson reported to his
boss that at the time of the accident it was rainy, there was
“a lot of construction, ” and “a lot of
traffic.” (Doc. 14 at 51.) This is consistent with
Trooper Clark's testimony that “the roadway was wet
with a mist of rain, ” the wreck occurred near a
construction zone, and “[b]arrels had been placed in
the left-hand lane requiring all traffic to merge to the
right.” (Doc. 18 at 22.) Despite his knowledge of these
road conditions, there is evidence that Gilbertson had his
cruise control set to 65 mph and did not start braking until
one second before his tractor-trailer collided with
similar circumstances, the Alabama Supreme Court has held
that a driver's actions could constitute wantonness. For
example, in Hornady Truck Line, Inc. v. Meadows, 847
So.2d 908, 916 (Ala. 2002), the court found evidence of
wantonness where a truck driver failed to check his mirrors
and drifted into the left lane while traveling at an unsafe
speed during a heavy storm. In that case, the court noted
that there was sufficient evidence to submit the wantonness
claim to a jury because the driver “knew the weather
conditions, ” “knew the road conditions, ”
and “knew the speed at which [the] vehicles were
traveling” but continued to travel at an unsafe speed.
See Id. at 915. Like the road conditions in
Hornady, the road conditions present in this case
arguably called for drivers to use greater caution than
normal. These road conditions, coupled with evidence of
Gilbertson's inattention and high rate of speed, could
support an inference of wantonness. This is true even if, as
NES contends, Jones's vehicle abruptly “cut
Gilbertson off” because it could be inferred that
Gilbertson deliberately failed to adjust his driving to the
adverse road conditions that he faced. Accordingly, NES's
motion for summary judgment on Jones's wantonness claim
is due to be denied.