Murry v. Hodges Trucking Co. et al

Filing 34

MEMORANDUM OPINION AND ORDER, granting 20 MOTION for Summary Judgment filed by Christopher Bernard Banks, Hodges Trucking Co. on the basis that Plaintiff has failed to establish a material use of fact as to wantonness and Plaintiff's claim of negligent entrustment is outside the statute of limitations; This case is dismissed without prejudice, and the parties shall bear their costs of this proceeding. Signed by Honorable Wallace Capel, Jr on 2/4/09. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J A M E S ARTHUR MURRY, P l a in tif f , v. H O D G E S TRUCKING CO., et al., D e f e n d a n ts . ) ) ) ) ) CIVIL ACTION NO. 2:08cv25-WC ) ) ) )

M E M O R A N D U M OPINION ORDER
I. IN T R O D U C T IO N T h is lawsuit arises out of a motor vehicle accident in which Plaintiff, James Arthur M u rry ("Murry"), was hit from behind by Defendant Christopher Bernard Banks ("Banks"), a n employee of Hodges Trucking Company, Inc ("Hodges Trucking"). Murry brings claims o f wantonness and negligent entrustment against defendants. This cause is before the Court o n the Motion for Summary Judgment (Doc. #20) filed on 16 September 2008 by D ef en d an ts . In this Motion, to which Murry filed no response, Defendants contend they are e n titled to judgment as a matter of law on both claims. Pursuant to 28 U.S.C. § 636(c), both p a rtie s have consented to the conduct of all proceedings and entry of a final judgment by the u n d e r s ig n e d United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #12); Def.s' C o n s e n t to Jurisdiction (Doc. #11). For the reasons discussed below, the Motion for S u m m a ry Judgment (Doc. #20) is GRANTED.

II.

J U R IS D IC T I O N AND VENUE J u ris d ic tio n over this action is proper pursuant to 28 U.S.C. § 1332 (diversity) and 28

U .S .C . § 1441(a) (removal jurisdiction). III. S T A N D A R D OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed

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to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must draw all justifiable in f e re n c e s from the evidence in the non-moving party's favor. Anderson, 477 U.S. at 255. A f te r the non-moving party has responded to the motion for summary judgment, the court m u s t grant summary judgment if there is no genuine issue of material fact and the moving p a rty is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). IV . FACTS AND PROCEDURAL HISTORY T h e Court has carefully considered all deposition excerpts and documents submitted in support of the motion, as well as the cases submitted by Plaintiff in the Motion to Strike (D o c. #25) and the statement of uncontested facts contained within the Motion for Summary J u d g m e n t. The submissions of the parties, viewed in the light most favorable to the n o n - m o v in g party, establish the following facts: O n 31 August 2005, Murry, age 64, was driving a dump truck North on Interstate 65

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f ro m Montgomery, Alabama, toward Clanton, Alabama. Murry stopped twice along the way in order to pick up meat scraps at grocery stores in Prattville, Alabama. At approximately 5 a.m., Murry's dump truck was hit from behind by a tractor-trailer driven by Banks. Murry was taken to hospital in Birmingham, Alabama, and treated for his injuries. H e has no memory of the accident. B an k s was an employee of Hodges Trucking and had obtained his commercial drivers lic e n se ten years prior to the accident. Banks was off-duty the day prior to the accident and b e g a n driving from Columbus, Georgia to Bessemer, Alabama at about 2 a.m. on the m o r n in g of the accident. Banks had not consumed alcohol or any prescription or nonp re sc rip tio n drugs on the day of, or the day prior to, the accident. Banks's remembers seeing tail lights in front of his vehicle when he was approximately one car length behind Murry's d u m p truck and that he immediately applied his brakes. He also testified in his deposition th a t he was not speeding. Banks was not issued a citation for the accident. Murry filed this suit in the Circuit Court of Chilton County, Alabama, on 5 October 2 0 0 7 . Defendants removed the case to this Court on 10 January 2008. (Doc. #1). On 16 S e p te m b e r 2008, Defendants filed this Motion for Summary Judgment (Doc. #20). On 14 O c to b e r 2008, Defendants filed a "Supplement Submission in Support of Motion for S u m m a ry Judgment" (Doc. #21). In the Supplement, Defendants argued that, based on P la in tif f 's failure to file any response to the Motion for Summary Judgment, Rule 56(e)(2) o f the Federal Rules of Civil Procedure, and the evidence submitted to the Court by

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D e f en d a n ts , they "have demonstrated there is no genuine issue as to any material fact, and a final summary judgment as a matter of law is due to be rendered in the Defendants' favor." (D o c. #21 at 2). O n 15 October 2008, Plaintiff filed a Reply and Motion to Clarify and/or Motion for E x te n sio n of Time. (Doc. #22). Plaintiff, confused as to the deadlines spelled out in the C o u rt's orders, sought an extension of time to respond to the motion for summary judgment. T h e Court denied Plaintiff's motion because it failed to indicate that counsel for Plaintiff had c o n ta c te d opposing counsel, and did not inform the Court as to opposing counsel's position o n the requestd extension, as required by the Court's Uniform Scheduling Order of 17 March 2 0 0 8 (Doc. #14 at 2). See Court's Order of 22 October 2009 (Doc. #27). Rather than re-file a compliant motion for extension of time, Plaintiff filed a Motion to Strike Defendant's M o tio n for Summary Judgment, (Doc. #25), which was denied. See Order (Doc. #27). V. D IS C U S S IO N A. W a n to n n e s s

D e f en d a n ts move for summary judgment arguing that Murry cannot prove the esse n tial elements of a wantonness claim. "Under Alabama law, to survive summary ju d g m e n t on the issue of wantonness, a plaintiff must provide substantial evidence creating a genuine issue of material fact that a defendant acted with recklessness or with conscious d is re g a r d to the rights or safety of others in his operation of his vehicle." Haynes v. S a rs field , 2007 WL 2409724 at *2 (M.D. Ala. August 21, 2007) (Fuller, C. J.) (citing ALA.

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C ODE § 6-11-20); see also Monroe v. Brown, 307 F. Supp. 2d 1268, 1271 (M.D. Ala. 2004) (T h o m p so n , J.). W a n to n n e ss is "conduct which is carried on with a reckless or conscious disregard for th e rights or safety of others." ALA. CODE § 6-11-20(b)(3) (1975). "`Wantonness' has been d e f in e d by [the Alabama Supreme] Court as the conscious doing of some act or the omission o f some duty, while knowing of the existing conditions and being conscious that, from doing o r omitting to do an act, injury will likely or probably result." Alfa Mut. Ins. Co. v. Roush, 7 2 3 So. 2d 1250, 1256 (Ala. 1998). To survive summary judgment, then, Murry must establish a genuine issue of fact, as to whether Banks (1) acted consciously when he failed to see Murry's truck until he was only o n e car length behind, and (2) was conscious, based on existing conditions, that injury was a likely or probable result of his actions. See Monroe, 307 F. Supp. 2d at 1272. There is no e v id e n c e before this Court to suggest that Banks acted in a wanton manner. According to the statement of uncontested facts and Banks's deposition testimony, B a n k s was not speeding, he did not see Murry's vehicle until Banks was approximately one c a r length away, and he immediately applied his brakes when he saw Murry's taillights. (D o c . #20-7 at 26). There is nothing in the deposition testimony that suggests Banks was c o n sc io u s that injury was a likely or probable result of his driving. There is no evidence in t h e record of speeding, or that Banks was under the influence of alcohol or drugs (p re sc rip tio n or otherwise). Further, Murry, apparently the only other witness to the accident,

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te stif ie d that he did not know how fast Banks was driving, and that he had no memory of the a c cid e n t. In fact, Murry's testimony was that he was driving along and "all the [sic] sudden, b a m ." (Doc. 20-4 at p.4). Thus, there is nothing to suggest that Banks acted wanton. T h e Alabama Supreme Court has held that there needs to be "more than a showing of so m e form of inadvertence on the part of the driver" to avoid summary judgment on a claim o f wantonness. Tolbert v. Tolbert, 903 So. 2d 103, 115 (Ala. 2004) (granting summary jud g m en t where there was only speculation that defendant was speeding at time of accident). In his Motion to Strike, Plaintiff points this court to cases which he believes support a denial o f summary judgment. (Doc. #25 at 2). The Court has reviewed those cases and finds them to be significantly distinguishable from the this case. In Bishop v. Poore, 475 So. 2d 486, 487 (Ala. 1985), the court relied on "the evidence th a t defendant never looked in the direction of the plaintiff" prior to entering a dangerous in te rs e c ti o n . In Green v. Leatherwood, 727 So. 2d 92, 94 (Ala. Civ. App. 1998), the d e f e n d a n t made a conscious decision to abruptly change lanes in order to make a stop at a v id e o store. In Collins v. Shelley By and Through Shelley, 514 So. 2d 1358, 1360-61 (Ala. 1 9 8 7 ), there was evidence that defendant's car had "flashed right in front" of plaintiff after " h a v in g travelled through three lanes of traffic and the median." Thus, the court concluded " it is reasonably inferable either that defendant did not [when required], or that, if she did, s h e sped into the [thoroughfare] and across the median, disregarding oncoming traffic." Id. In each of the preceding case, there were specific facts from which the Court could infer, or

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w h ic h provided specific evidence of, wanton conduct. Because Murry is unable to provide a n y facts in this case that would show a conscious, wanton act by Banks, or that he was c o n sc io u s ly aware his actions would likely or probably result in injury, summary judgment is appropriate.1 D e f en d a n ts also move for summary judgment on Plaintiff's wantonness claim by a s s e rtin g a statute of limitations defense. S p e c i f i c a l l y , Defendants claim that Plaintiff's w a n to n n e s s claims are subject to Alabama's two year statute of limitations. See ALA. CODE § 6-2-38 (1975). In McKenzie v. Killian, 887 So. 2d 861, 870 (Ala. 2004), the Alabama Supreme Court a n n o u n c ed that "wanton conduct is the equivalent in law to intentional conduct. Such an a ll e g a ti o n of intent renders the six-year statutory period of limitations applicable." The

A la b a m a Supreme Court recently re-affirmed the six-year statute of limitations for w a n to n n e s s claims in Carr v. International Refining & Mfg. Co., 2009 WL 129952 (Ala. Ja n u a ry 16, 2009) (finding there is no "products liability" exception to the six-year statute o f limitations for wantonness claims). Murry's wantonness claim is subject to the six-year s ta tu te of limitations and, because the injury occurred on 31 August 2005 and this case was

The Alabama courts have gone to great lengths to distinguish a claim under Alabama law for negligence versus that of wantonness. "Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability." Tolbert, at 115 (internal citations omitted). Had Plaintiff's claims been for negligence rather than wantonness and the action filed within the two year statute of limitations for negligence claims, see infra, the result here may very well have been different. 8

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f iled on 5 October 2007, it was timely filed. Accordingly, summary judgment on this basis is denied. B. N e g lig e n t Entrustment

D e f en d a n ts also moved for summary judgment on Plaintiff's negligent entrustment c la im , arguing the claim is subject to the two-year statute of limitation set forth in ALA. CODE § 6-2-38 (1975). The Court agrees. As the United States Court of Appeals for the Eleventh C irc u it stated: U n d e r Alabama law, claims for negligence are subject to a two-year statute of lim ita tio n s . See Henson v. Celtic Life Ins. Co., 621 So. 2d 1268, 1274 (Ala. 1 9 9 3 ). The statutory period of limitations for negligence actions, found at ALA. C ODE § 6-2-38, is two years from the date the injury occurred. Id. It is well s e ttle d under Alabama law that a negligence cause of action accrues when the p la in tif f can first maintain the action, regardless of whether the full amount of d a m a g e is apparent at the time of the first injury. See Booker v. United Am. In s . Co., 700 So. 2d 1333, 1339 (Ala. 1997). Piazza v. Ebsco Industries, Inc., 273 F.3d 1341, 1347 (11th Cir. 2001). Plaintiff's injuries o c c u rre d on 31 August 2005, which means the time for filing a claim for negligence ended o n 31 August 2007. Plaintiff commenced this action on 5 October 2007, outside the statute o f limitations. Therefore summary judgment on this claim is proper.2

V I.

CONCLUSION

Because Plaintiff's claim was filed outside the two-year statute of limitations, the Court need not address the merits of his negligent entrustment claim. 9

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F o r the foregoing reasons, it is ORDERED that Defendants' Motion for Summary J u d g m e n t (Doc. #20) is GRANTED on the basis that Plaintiff has failed to establish a m a ter ial issue of fact as to wantonness and Plaintiff's claim of negligent entrustment is o u ts id e the statute of limitations. This case is DISMISSED without prejudice, and the parties s h a ll bear the costs of this proceeding. An appropriate judgment will be entered. D O N E this 4th day of February, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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