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Claussen v. Powersecure, Inc.

United States District Court, M.D. Alabama, Eastern Division

October 7, 2019

TOM CLAUSSEN, Plaintiff,



         This is a wrongful death case arising from a truck wreck. The matter comes to the Court on a motion for partial summary judgment filed by Defendant PowerSecure, Inc. (“Defendant”). See Doc. 42. Defendant also filed a motion to exclude the expert opinions of Roland Brown, Doc. 43, and a motion to strike Plaintiff's request for a spoliation sanction and an objection to certain evidence, Doc. 53. Plaintiff Tom Claussen, as a Personal Representative of the Estate of Gwendolyn Campbell Claussen, deceased, (“Plaintiff”), opposed the motion for partial summary judgment, Doc. 48, the motion to exclude Brown's opinions, Doc. 48, and the motion to strike the request for spoliation and object to evidence, Doc. 65.

         Plaintiff filed a five-count Complaint against Defendant, alleging that its employee Harry Greathouse (“Greathouse”) caused the wreck that took Dr. Gwendolyn Claussen's life while driving a company truck. Count 1 alleges that Greathouse was wanton or reckless and seeks damages under the theory of respondeat superior. Count 2 alleges that Greathouse was negligent and seeks damages under the theory of respondeat superior. Count 3 alleges that Defendant was negligent in (a) hiring, (b) retaining, and/or (c) supervising Greathouse. Count 4 alleges Defendant negligently trained Greathouse. Count 5 alleges Defendant negligently entrusted Greathouse with the truck he was driving.

         Defendant moves for summary judgment on Counts 1, 3, 4, and 5. Upon consideration, the Court concludes that the motion for partial summary judgment is due to be GRANTED IN PART and DENIED IN PART. The motion to exclude the expert opinions of Roland Brown is also due to be GRANTED IN PART and DENIED IN PART. Based on the reasoning herein, the motion to strike is DENIED AS MOOT.


         Summary judgment is proper “if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also 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, ” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324. Both the party “asserting that a fact cannot be, ” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record, ” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56 (c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.”

         To avoid summary judgment, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).


         The submissions of the parties establish the following facts, construed in a light most favorable to the non-movant:

         In April 2018, Greathouse was driving one of Defendant's trucks on his way home from work when he struck Claussen's SUV. The accident happened at an intersection where a two-lane road intersects the four-lane Highway 280. Greathouse did not fully stop at the stop sign for the intersection, traveled across Highway 280's two eastbound lanes and through the median without slowing, and struck Claussen's SUV as she was traveling on Highway 280 going west.

         Claussen died as a result of her injuries.

         Greathouse was not under the influence of alcohol or drugs at the time of the accident. He was also not texting or talking on either of the two phones (a work phone and a personal phone) mounted in the vehicle. He was wearing the corrective lenses that he is required to wear to drive. He was driving at or under the speed limit.

         At the time of the accident and for many years before, Greathouse held a Commercial Driver's License (“CDL”) issued by the State of Alabama. From 1992 to 1996, Greathouse received ten citations for traffic violations. In December 1996, Alabama suspended Greathouse's CDL for these violations. While his Alabama license was suspended, Greathouse secured a license from Kentucky, which also suspended his license once the Kentucky authorities discovered the Alabama suspension. Alabama reinstated the license in 1997. Greathouse received additional tickets for speeding in 1999 and 2005.

         Defendant hired Greathouse in August 2016. When he applied to work for Defendant, Greathouse checked the “Yes” box on a form next to “Has any license, permit, or privilege ever been suspended or revoked.” But he did not provide additional details, and no one asked him to provide those details. Defendant ran a three-year check on Greathouse's driving history, which showed no accidents or traffic violations. Defendant also secured a verification from Greathouse's former employer that he had no safety performance issues over the previous 14 years. Defendant also made Greathouse successfully complete a road test.

         On December 31, 2016, Greathouse attended a New Year's Eve party in Oklahoma at the home of one of his supervisors. When driving home in a co-worker's personal vehicle, he was stopped by police, taken to jail, and charged with driving under the influence of alcohol and for failure to wear a seatbelt. Greathouse had a 0.14 blood alcohol level and was, in fact, intoxicated.

         The DUI charge set off a series of legal proceedings in Oklahoma. Greathouse received a notice that his driver's license would be revoked for 180 days because of the DUI. But his attorney appealed the revocation and Greathouse received a temporary license pending the outcome of an administrative hearing. In October of 2017, he pled nolo contendere to a lesser included offense of driving while intoxicated. Under an Oklahoma statute, the court deferred judgment on the DWI plea and required Greathouse to pay a fine, complete an alcohol and substance abuse course, and attend a victim impact panel. Judgment and sentencing were deferred until October 2019. Greathouse informed his supervisors of the arrest, the related legal proceedings, and that he believed the DWI charge would be expunged from his record due to the deferred judgment.

         After his arrest for DUI but before the final resolution of the Oklahoma legal proceedings, Defendant gave Greathouse the truck that killed Dr. Claussen.


         As noted, Defendant has moved for summary judgment on Counts 1, 3, 4, and 5. Plaintiff does not oppose summary judgment on the negligent training claim in Count 4. See Doc. 48 at 8. Accordingly, summary judgment is due to be granted on that Count. The other counts are discussed below.

         Count 1-Wantonness

         To hold a defendant liable for wanton conduct in Alabama, a plaintiff must establish a high degree of culpability. While negligent conduct is characterized by “inattention, thoughtlessness, or heedlessness” and “a lack of due care, ” Monroe v. Brown, 307 F.Supp.2d 1268, 1271 (M.D. Ala. 2004), wantonness is characterized by “a conscious act.” Ex parte Essary, 992 So.2d 5, 9 (Ala. 2007) (internal citations omitted). Wantonness is willful misconduct undertaken with the knowledge that the likely or probable result will be injury, that is, with a conscious disregard for the rights or safety of others. See, e.g., Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998); Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994). Wantonness can also be established by reckless disregard for the rights or safety of others. See Ala. Code § 6-11-20(b)(3). Wantonness is, therefore, “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” Id. Because negligence is the “inadvertent omission of duty, ” and wantonness is about the “state of mind with which the act or omission is done, ” Essary, 992 So.2d at 9, ...

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