United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
L. BRASHER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.”
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
submissions of the parties establish the following facts,
construed in a light most favorable to the non-movant:
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
died as a result of her injuries.
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
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.
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.
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.
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
his arrest for DUI but before the final resolution of the
Oklahoma legal proceedings, Defendant gave Greathouse the
truck that killed Dr. Claussen.
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.
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, ...