United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Abigail Hagen sustained severe injuries after being partially
ejected and pinned under the Ford 150 truck in which she was
a passenger. The driver of the truck, Cameron Pelletier, lost
control of the vehicle, causing it to veer off the road and
hit a bank of bushes before flipping multiple times. Hagen
filed this lawsuit, alleging one count for negligence,
recklessness, and wantonness, and a second for negligence and
wantonness per se. Doc. 1. Pelletier filed a motion for
summary judgment, doc. 27, on all of Hagen's claims, and
Hagen filed a cross motion for partial summary judgment, doc.
29, on Pelletier's sixth, fourteenth, and fifteenth
affirmative defenses. Both motions are fully briefed, docs.
30; 33, and ripe for consideration. After carefully reviewing
the briefs, evidence, and relevant law, Pelletier's
motion, doc. 27, is due to be denied as to Hagen's
negligence and wantonness claims pleaded in Count I, and
granted as to the negligence per se and wantonness per se
claims in Count II. Hagen's motion, doc. 29, is due to be
granted fully as to Pelletier's sixth defense and on the
wantonness claim as to the fourteenth and fifteenth defenses.
The matter of Hagen's claims pleaded in Count I is
SET for a pretrial conference at 2:15 p.m.
on October 9, 2019 and for a trial at 9:00 a.m. on November
25, 2019, both at the Hugo L. Black U.S. Courthouse in
Birmingham, Alabama. The court directs the parties to the
Standard Pretrial Procedures governing all pretrial
deadlines, which is attached as Exhibit A.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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. “Rule 56 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.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (alteration in original). The moving party
bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324
(citation and quotation marks omitted). A dispute about a
material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
summary judgment motions, the court must construe the
evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v.
S. H. Kress & Co., 398 U.S. 144, 157 (1970); see
also Anderson, 477 U.S. at 255. Any factual disputes
will be resolved in the non-moving party's favor when
sufficient competent evidence supports the non-moving
party's version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002)
(a court is not required to resolve disputes in the
non-moving party's favor when that party's version of
events is supported by insufficient evidence). 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) (citing Bald Mountain Park,
Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[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) (citing
Anderson, 477 U.S. at 252)).
case arises out of an automobile crash that occurred in the
early morning of May 20, 2017. Doc. 30-1 at 14. Hagen and
Pelletier both attended Birmingham Southern College at the
time of the incident, and had started dating sometime before
the accident. Docs. 30-1 at 4-5, 13; 30-2 at 4-5. During an
earlier trip before the accident to Gatlinburg, Tennessee,
Pelletier engaged in dangerous driving maneuvers including
“peeling out, ” “burning out, ” and
“drifting” over Hagen's objections, prompting
Hagen to tell him “to not do that with [her] in the car
ever again.” Doc. 30-1 at 6-12. Pelletier admits to
engaging in similar maneuvers when he was sixteen, including
“doing donuts in a field, ” while driving
off-road, leading to his passengers sustaining minor
injuries. Doc. 30-2 at 7-8. Pelletier further admits he is
aware that injuries could result from “speeding and
spinning around, ” id. at 8, and
“gunning a vehicle and fishtailing or spinning out,
” id. at 9, and that intentionally
fishtailing a vehicle is reckless driving,
id. at 10.
night at issue here, Hagen finished an exam that ended at 9
p.m. and went to her friends' apartment to get ready for
a party at Pelletier's fraternity. Doc. 30-1 at 14. Hagen
drank “a beer or two” before arriving at the
party and drank two vodka and Sprite mixed drinks at the
party. Doc. 33-1 at 11-12. At around 2:30 a.m., a friend
asked Hagen to come to her campus apartment. Doc. 30-1 at 15.
When Hagen told her friend she did not want to walk to the
apartment, Pelletier offered to drive her there and Hagen
accepted. Doc. 30-1 at 15. Hagen did not compensate Pelletier
for the ride. Doc. 27-1 at 11. The two walked to
Pelletier's Ford 150 truck. Docs. 30-1 at 16; 30-3 at 3.
Neither party used a seatbelt, and by Pelletier's
estimation, neither Hagen's mental or physical state
merited concern when she entered his truck. Docs. 30-2 at 18;
27-1 at 12.
drove the truck around the fraternity house, gaining speeds
of approximately 30 miles per hour (twice the campus limit)
before “peel[ing] out” as he took a sharp right
across the parking lot, causing his truck to skid to the
right and fishtail before continuing straight. Docs. 30-1 at
17-28; 30-7 at 2-3; 30-2 at 12-15. Pelletier then accelerated
to a faster speed before taking a sharp left turn, running a
stop sign and ignoring Hagen's appeals for him to stop.
Doc. 30-1 at 17-28. With Pelletier unable to correct the
left-hand turn, the truck jumped the curb onto the grass
alongside the road, hit several bushes, and flipped multiple
times before coming to rest on its side near a tree on the
far side of the bushes from the road. Id. Hagen was
partially ejected from the truck and pinned underneath it
when it came to rest. Doc. 33-4 at 3. Hagen sustained several
injuries from the crash, fracturing her back, sacrum, and
pelvis. Docs. 30-1 at 31; 30-8 at 4. Despite surgery and
physical therapy, Hagen has not fully recovered. Doc. 30-1 at
claims he lost control of the truck after suddenly applying
the brakes to avoid an animal that had purportedly run into
the road. Doc. 30-2 at 20. Hagen did not see an animal, and
she claims Pelletier later agreed with her that there was no
animal when he visited her in the hospital. Doc. 30-1 at
29-30. One of Pelletier's fraternity brothers who had a
full view of the scene from his vantage point on the side
deck of the fraternity house heard Pelletier's tires
screeching in the parking lot and described Pelletier's
maneuvers as peeling out before losing control of the truck
and hitting the bushes. Doc. 30-5 at 3-7. The eyewitness did
not see an animal, doc. 30-5 at 7, and he does not believe
the peeling out he witnessed was prompted by an animal, doc.
30-5 at 8-9. A video of the crash scene taken a few days
after the incident by Hagen's grandfather shows
continuous tire marks from the fraternity parking lot onto
the street where the truck left the roadway. Doc. 30-6.
engaged an expert witness, Gary Johnson, who is qualified to
perform accident reconstruction. Doc. 30-7 at 2. Johnson
surmises the tire marks in the parking lot indicated
Pelletier heavily applied the brakes while turning right and
the marks onto Ninth Alley South were the result of heavy
acceleration while turning left. Id. at 3. Johnson
believes that the truck was traveling between 23 and 35 miles
per hour when it left the roadway, and that Pelletier lost
control of the truck because he entered the left turn at too
high a rate of speed and accelerated when he should have
braked. Id. at 2-3. Johnson concludes that if the
truck had followed the posted 15 miles per hour traffic
limit, Pelletier should have been able to stop before hitting
the bushes. Id. at 3.
alleges Pelletier was negligent, wanton, and reckless in his
operation of the truck, resulting in her severe and permanent
injuries, and that his behavior rose to the level of
negligence and wantonness per se. Doc. 1-1 at 3-6. Presently
before the court are Pelletier's motion for summary
judgment on all claims, doc. 27, and Hagen's partial
motion for summary judgment, doc. 29, on Pelletier's
affirmative defenses that Hagen did not fasten her seatbelt,
was contributorily negligent, and assumed the risk for her
injuries, doc. 3. The court considers each claim in turn,
and, because this action is based on diversity jurisdiction,
the court applies Alabama's substantive law in doing so.
Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Plaintiff's Count I: Recklessness, ...