Anderson v. Hunte Delivery System, Inc. et al (CONSENT)
MEMORANDUM OPINION AND ORDER Granting 17 MOTION for Summary Judgment with respect to the claims for wantonness (Count II, Count IV, and Count VI); further ORDERING that the motion for summary judgment be DENIED with respect to the negligence claims (Count I, Count III, and Count V). Signed by Honorable Judge Terry F. Moorer on 4/23/12. (Attachment(s) added on 4/23/2012: # 1 civil appeals checklist). (djy, ).
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
DAVID DARIEL ANDERSON,
HUNTE DELIVERY SYSTEM, INC.,
Case No. 2:11-cv-355-TFM
MEMORANDUM OPINION AND ORDER
Now pending before this Court is Defendant’s Motion for Summary Judgment, filed
on September 27, 2011.
On November 10, 2009, Sarah Darelle Anderson (“Decedent”) died in an automobile
accident on Interstate Highway 85 between Mitylene and Waugh, Alabama. Plaintiff, David
Dariel Anderson (“Anderson” or “Plaintiff”), as Administrator and Personal Representative
of the Decedent, originally filed the instant action on November 23, 2011, in the Circuit
Court of Montgomery County, Alabama alleging the following claims: 1) Negligence against
Aaron Lewis (“Lewis”) and Hunt Delivery System, Inc., Hunte Kennel Systems and Animal
Care, Inc., (“Hunte”) (collectively “Defendants”); 2) Wantonness against Lewis and Hunte;
3) Negligent Entrustment against Hunte; 4) Wanton Entrustment against Hunte; 5) Negligent
Hiring, Training, Supervising and Monitoring against Hunte; and 6) Wanton Hiring,
Training, Supervising and Monitoring against Hunte. (Doc. 27, filed on October 5, 2011).
Having removed the suit to this Court on May 9, 2011 (Doc. 1), Defendants now seek
summary judgment on the grounds that Plaintiff cannot establish negligence or wantonness
because the duty to avoid is not applicable and/or because the Decedent was contributorily
negligent. (Doc. 17, filed September 27, 2011). After careful consideration of the Motion
for Summary Judgment filed by the Defendants (Doc. 17) arguments presented by parties
through filings (Doc. 17., and Doc. 31., and accompanying evidentiary submissions), along
with oral arguments on January 13, 2012, and the record as a whole, the Court finds that a
genuine dispute of material facts exist regarding all claims of negligence and that the
Defendants’ Motion for Summary Judgment is due to be DENIED in part and GRANTED
The Court exercises subject matter jurisdiction over the claims in this action pursuant
to 28 U.S.C. § 1332 based upon the parties’ diversity of citizenship and an amount in
controversy exceeding $75,000.00, exclusive of interest and costs. Pursuant to the provisions
of 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to a United
States Magistrate Judge conducting all proceedings in this case and ordering the entry of final
judgment. (Docs. 9-10, filed June 3, 2011).
II. SUMMARY JUDGEMENT STANDARD
A party in a lawsuit may move a court to enter summary judgment before trial. FED.
R. CIV. P. 56(a) and (b). “The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as
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a matter of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gonzalez v. Lee County Housing Authority, 161 F.3d
1290, 1294 (11th Cir. 1998). “[T]he substantive law will identify which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202
(1986). At the summary judgment juncture, the court does not “weigh the evidence and
determine the truth of the matter,” but solely “determine[s] whether there is a genuine issue
for trial.” Id. at 249. Only disputes about the material facts will preclude the granting of
summary judgment and “disputes that are irrelevant or unnecessary will not be counted.” Id.
at 248. A material fact is one “that might affect the outcome of the suit under governing
law,” and 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.” Id.; accord Greenberg v.
Bell-South Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007); see also Slomcenski v.
Citibank, N.A., 432 F.3d 1271, 1277 (11th Cir. 2005) (quoting Hudgens v. Bell
Helicopters/Textron, 328 F.3d 1329, 1344-45 (11th Cir. 2003)) (“In determining whether an
issue of fact is ‘genuine’ for the purpose of defeating summary judgment, we ask whether
the evidence is ‘such that a reasonable jury could return a verdict for the nonmoving
Thus, the initial burden of proof rests on the movant. Celotex, 477 U.S. at 325, 106
S.Ct. at 2554; Gonzalez, 161 F.3d at 1294. This burden is satisfied when the movant shows
that if the evidentiary record were reduced to admissible evidence at trial, it would be
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insufficient to permit the non-movant from carrying its burden of proof. Celotex, 477 U.S.
at 322-23; 106 S.Ct. at 2552-53. The admissibility of evidence is subject to the same
standards and rules that govern admissibility of evidence at trial. Clemons v. Dougherty
County, Georgia, 684 F.2d 1365, 1369 n.5 (11th Cir. 1982) (citing Pan-Islamic Trade Corp.
v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980)).
Once the movant meets its burden under Rule 56, the non-movant must designate
specific facts showing there is a genuine dispute for trial. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Conclusory assertions, unsupported by specific facts, presented in affidavits opposing the
motion for summary judgment are likewise insufficient to defeat a proper motion for
summary judgment. Lejaun v. Nat’l Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177,
111 L.Ed.2d 695 (1990); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997)
(conclusory assertions in absence of supporting evidence are insufficient to withstand
summary judgment). “Speculation does not create a genuine issue of fact.” Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citation omitted) (emphasis in
original). The party opposing summary judgment must respond by setting forth specific
evidence in the record and articulating the precise manner in which that evidence supports
his or her claim, and may not rest upon the mere allegations or denials of the pleadings. FED.
R. CIV. P. 56(e); Johnson v. Board of Regents of University of Georgia, 263 F.3d 1234, 1264
(11th Cir. 2001). If the evidence is merely colorable or is not significantly probative,
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summary judgment may be granted. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511
(citations omitted). Thus, to avoid summary judgment, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus., 475 U.S. at 586 106 S.Ct. at 1356 (citations omitted). A plaintiff must present
evidence demonstrating that he can establish the basic elements of his claim. Celotex, 477
U.S. at 322, 106 S.Ct. 2548.
In determining whether a genuine dispute for trial exists, the court must view all the
evidence in the light most favorable to the nonmovant. McCormick v. City of Fort
Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003); Johnson, 263 F.3d at 1242-43. Further,
“all justifiable inferences are to be drawn in [that party’s] favor.” Anderson, 477 U.S. at 255;
106 S.Ct. at 2513; see also McCormick, 333 F.3d at 1243 (the evidence and all reasonable
inferences from the evidence must be viewed in the light most favorable to the nonmovant).
If the non-moving party fails to make a showing sufficient to establish the existence of an
element essential to its case on which it will bear the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. In other
words, summary judgment is proper 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. Id. at 322, 106 S.Ct. at 2552.
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III. FACTS AND PROCEDURAL HISTORY
The undisputed facts are that on the evening of November 10, 2009 the Decedent was
the driver and her friend, Sarah Elizabeth Clayton, was the only passenger in Decedent’s
Chevy Equinox SUV, which was southbound on Interstate 85. (See Doc. 27, filed October
5, 2011). Heavy rain and low visibility made the Decedent hydroplane and lose control of
her Chevy Equinox, which flipped at least once but perhaps multiple times. (“first accident”)
Ultimately the Equinox landed on its roof, with the front half of the vehicle on the left
shoulder of the road while the back half of the vehicle remained, in part, in the left hand lane
of traffic. After the first accident, a commercial motor vehicle driven by Lewis and owned
by Hunte, was traveling southbound on Interstate 85 and hit the back half of the decedent’s
vehicle (“second accident”). Id.
Plaintiff asserts that the Decedent survived the first accident only to be struck a fatal
blow to her head, either directly or indirectly, by the Defendant in the second accident. Id.
Defendants assert that the Decedent was already dead at the time of the second accident.
Defendants theorize that the Decedent broke her neck when she was ejected from her vehicle
in the first accident. (Doc. 17).
Deposition Testimony of Sara Elizabeth Clayton
Clayton testified in her deposition that she and the decedent were Auburn University
students at the time of the accidents and the two of them were close friends. (Doc. 18, Ex.
A, Clayton Dep. 10: 11-23). Clayton and the Decedent first met in the Auburn Band and
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were two members of the piccolo section. Id. at 10-12. Clayton and the Decedent were fast
friends who were together most of their spare time. Id.
Shortly before the accident Clayton and Decedent left a Bible study at a friend’s house
when they decided to go to Krispy Kreme in Montgomery. Decedent was upset because she
recently broke up with her boyfriend. Id. at 21-22. During the trip Clayton and Decedent
discussed the breakup and were listening to music when the vehicle hit a puddle and began
to hydroplane. Id. at 29, 41. Clayton remembers the car going up on two wheels, closing her
eyes, hanging upside down, and then feeling wet grass under her feet. Id. She does not recall
climbing out of the vehicle or how she got out of the vehicle. Id. at 44. Clayton said it was
dark with few other vehicles on the road and that it had been raining most of the day. Id. at
33-34. Clayton cannot recall all the events from that evening. For example, she said she
apparently called her parents multiple times from the side of the road but now has no memory
of calling them or anyone else. Id. at 63.
Deposition Testimony of Aaron Eugene Lewis
Lewis, and his brother Jason Lewis acting as his co-driver, were employed by Hunte
at the time of the accident. (Doc. 18, Ex. B, Lewis Dep. 10: 9-13). Lewis was driving at the
time of the accident while Jason was resting in the sleeper compartment of the truck. Id. at
15. Lewis said that he was traveling 55 to 60 mph in the left hand lane behind another
commercial vehicle on a rain slick Interstate 85. Id. at 14-15. Lewis saw the driver of the
truck ahead of him unexpectedly swerve into the right lane. Lewis was unable to completely
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move over before his truck hit the Equinox. The driver of the first truck, George Donaldson,
said to Lewis that the only reason he moved over to the right was because he was able to see
Sarah Clayton on the side of the road with some kind of light either from a cell phone or
flashlight. Id. at 17. Lewis said that he did not see the vehicle until he was right on top of
it, probably ten feet or less, and that he never saw the decedent or anyone else for that matter
with any kind of light. Id. at 25. Lewis said his truck did not strike the Decedent. Id. at 46.
Lewis also said the driver of the other truck [Donaldson] said it had been Sarah Clayton, not
the Decedent, that had been flashing some kind of light. Id. at 50-51. Lewis said that he
knew and understood the requirements to obtain a commercial driver’s license and the
requirements to safely operate a large commercial vehicle as well as the duties he owed to
other drivers. Id. at 84-91.
The Certificate of Death indicates that the cause of death was a car accident with
(Doc. 18, Ex. F). The State Troopers photos of the Decedent and both vehicles
indicated that an accident did happen. (Doc. 19-24. Ex. G).
Plaintiff gave an affidavit by Chris Bloomberg, a consulting engineer specializing in
the reconstruction of vehicular accidents, to the Court to consider. (Doc. 31, Ex. 3). Mr.
Bloomberg purports that based on his knowledge, experience, analysis of evidence available
to him and his reconstruction of the accident that had Lewis been paying adequate attention
he would have been able to avoid the Decedent’s vehicle and thereby avoid the second
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accident that was the proximate cause of the Decedent’s death. Id. Mr. Bloomberg analyzed
data from the Bosch CDR report which captured data from the Equinox’s electronic data
recorder regarding deployment of the air-bags within the vehicle. Mr. Bloomberg opines that
the hydroplaning incident did not cause the air-bags to deploy and that the CDR report proves
the drivers’ side seatbelt was buckled. Id. Further, Mr. Bloomberg opines that the second
accident caused the air-bags to deploy and blood was left on the passenger side air-bag. Id.
Mr. Bloomberg personally recovered samples of the blood on the passenger side air-bag.
Genetic tests reveal the blood from the passenger side air-bag came from Sarah Clayton. Id.
Additionally, the electronic data recorder indicates that the driver’s seatbelt was buckled
during the first accident and was un-buckled during the second accident. Mr. Bloomberg
concludes that the Decedent climbed out of the vehicle; and thus she was the person who was
waiving a light of some kind to warn oncoming traffic of the accident. Id. Mr. Bloomberg
also reviewed the photographs of the vehicle driven by Lewis and determined that the imprint
and damage to the windshield is consistent with a head strike. Id.
ANALYSIS AND DISCUSSION
Counts I, III, and V of the complaint allege negligence on the part of the Defendants.
(Doc. 27) The Alabama Supreme Court defines negligence as “the failure to do what a
reasonably prudent person would have done under the same or similar circumstances.” Ford
Motor Co. v. Burdeshaw, 661 So.2d 236, 238 (Ala. 1995) (citing Elba Wood Prods., Inc., v.
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Brackin, 356 So.2d 119, 122 (Ala. 1978)); accord Thomas v. Jim Walter Homes, Inc., 918
F.Supp. 1498, 1502-03 (M.D.Ala. 1996). Under a typical negligence claim the plaintiff must
establish; “(1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached
that duty; (3) that the plaintiff suffered a loss or an injury; and (4) that the defendant’s
negligence was the actual and proximate cause of that loss or injury.” Id. (citing Lollar v.
Poe, 622 So.2d 902, 905 (Ala. 1993)); accord Thomas, 918 F.Supp. At 1503.
Plaintiff’s negligence claims indicate that Lewis and/or Hunte not only breached a
duty owed to the Decedent but that there were also violations of statutes governing the rules
of the road. (Doc. 27) The Alabama Supreme Court test to establish “statutory” negligence
requires a party to show: “(1) ‘the party charged with negligent conduct [has] violated the
statute;’ (2) ‘the statute was enacted to protect a class of persons which includes the litigant
seeking to assert the statute;’ (3) ‘the injury was of a type contemplated by the statute;’ and
(4) ‘the statutory violation proximately caused the injury.’” Edwards v. United States, 552
F.Supp. 635, 638 (M.D.Ala. 1982) (quoting Fox v. Bartholf, 374 So.2d 294, 295-96 (Ala.
1979)). “Generally, violation of a traffic ordinance or rule of the road constitutes negligence
per se.” Carroll v. Deaton, Inc., 555 So.2d 140, 141 (Ala. 1989). However, some traffic
ordinance violations only serve as prima facie evidence of negligence. See Consolidated
Freightways, Inc., v Pacheco-Rivera, 524 So.2d 346, 350 (Ala. 1988). Specifically, “where
the applicable Rule of the Road requires a judgment to be made on the part of the driver, the
reasonable man standard applies and a violation of the statute is not per se negligence.” Id.
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When considering a claim of negligence, the Court recognizes that Alabama follows
the contributory negligence doctrine that must be taken into consideration wherein a
“plaintiff cannot recover in a negligence action where the plaintiff’s own negligence is
shown to have proximately contributed to his damage, notwithstanding a showing of
negligence on the part of the defendant.” Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d
839, 860 (Ala. 2002) (citing Watters v. Bucyrus-Erie Co., 537 So.2d 24 (Ala.1989)).
Contributory negligence can be found as a matter of law only when the facts of the case are
such that all reasonable persons must reach the same conclusion. Id. However, normally the
question of contributory negligence is one for the jury. Id. see also Salter v. United States,
880 F.Supp. 1524, 1533 (M.D.Ala. 1995) (“Unless the evidence bearing upon [contributory
negligence] is entirely free of doubt and adverse inference, this question must be submitted
to [a trier of fact].” (quoting Lweis v. Sears, Roebuck & Co., 512 So.2d 712, 713 (Ala.1987)).
When different inferences and conclusions can reasonably be drawn from the evidence,
contributory negligence cannot be determined as a matter of law. Id. See, e.g., Savage
Indus., Inc., v. Duke, 598 So.2d 856, 859 (Ala.1992); American Furniture Galleries, Inc. V.
McWane, Inc., 477 So.2d 369, 372 (Ala.1985).
Therefore, in order to succeed on a motion for summary judgment regarding the
negligence claims, the Defendants “must show that the plaintiff put [herself] in danger’s way
and that the plaintiff had a conscious appreciation of the danger at the moment the incident
occurred.” Hannah, 840 So.2d at 860. “Where a plaintiff ‘had knowledge of facts sufficient
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to warn a man of ordinary sense of prudence of the danger to be encountered, and of the
natural and probable consequences of his own conduct ,’ plaintiff is ‘guilty of negligence
if he fails to exercise ordinary care to discover and avoid the danger and the injury.’” Salter,
880 F.Supp at 1533, (quoting Alabama Power Co. V. Mosley, 294 Ala. 394, 398, 318 So.2d
260, 263 (1975)). A finding of contributory negligence requires that “the plaintiff had
knowledge of the danger and appreciated the danger under the circumstances and yet put
himself in the way of harm.” Id. (citing Wilson v. Alabama Power Co., 495 So.2d 48, 49
Defendants argue that 1)there was no applicable duty to avoid hitting the unlit,
overturned, and motionless vehicle, 2)the decedent was responsible for two-thirds of the
speed differential of the two vehicles, and therefore, Plaintiff cannot prove the Defendants
legally caused the decedent’s death, and 3) that as a matter of law the decedent was guilty of
contributory negligence. All arguments presented by the Defendants hinge on the fact that
a reasonable jury must believe the evidence presented by the Defendants, in that Decedent
was negligent in causing both the first and second accidents or was ejected from the vehicle
in the first accident which was the proximate cause of the injuries that ultimately caused the
Decedent’s death. A reasonable jury could chose to believe the Defendants’ evidence and
find no negligence on the part of Lewis or Hunte.1
Defendant makes extensive arguments regarding Lewis’ duty to avoid as well as
the details of Decedent’s contributory negligence. Citing to McBride v. Baggett Transp.
Co., Defendants note that “a motorist may assume that others will not negligently park in
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A jury could just as easily side with the Plaintiff and conclude the Defendants failed
to exercise the degree of care that a reasonably prudent person would under the
circumstances, that the Decedent survived the first accident, and died from the negligence
of the Defendants.
There are substantial gaps in the evidence, such as a lack of
measurements of the accident scene, the rain washing away some or all of any possible
transferal evidence, and conflicting accounts of who was in the vehicle at the time of the
second accident. Such evidentiary deficiencies form the basis of a genuine dispute of
material facts between the parties that may or may not show negligence or contributory
negligence. Therefore, Defendant’s Motion for summary Judgment is due to be DENIED
to the extent that it refers to the complaints of negligence.
the highway at night, when the vision of others may be obscured.” 250 Ala. 488, 493, 35
So.2d 101, 105 (1948). Plaintiff notes that McBride also states that even though motorist
may assume that others will not negligently park on a highway at night, that “this will not
absolve [a motorist] from using reasonable care under the circumstances.” Id. McBride
goes on to state that “whether such driver was negligent is a question for the jury,
especially when a car is illegally parked ahead of him without proper lights. Id.
Provisions of the Alabama Code are cited by Defendants, specifically those
regarding the rules of the road, in that drivers are to drive at reasonable and prudent speed
under the circumstances, that drivers are prohibited from stopping and parking upon a
highway, that signals should be used to warn vehicles to the rear, and that vehicles should
be parked parallel to the direction of trave, not perpendicular to it. Ala. Code 1975 § 325A-170, 32-5A-133(c), 32-5A-136(a), 32-5A-137(a)(1)(g), and 32-5A-138.
Plaintiff directs the Courts attention to McDaniel v. Frye, 536 F.2d 625 (5thCir.
1976), wherein the Fifth Circuit Court of Appeals states that there is a duty to exercise
reasonable care under all circumstances. Id. at 627-28. (citing McBride, 250 Ala. at
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Counts II, IV, and VI under the Plaintiff’s complaint are based on wantonness of
either Lewis or Hunte. (Doc. 27) Under Alabama law, “wantonness is the doing of some act
or the omission to do some act with reckless indifference that such act or omission will likely
or probably result in injury. IMAC Energy, Inc. V. Tittle, 590 So.2d 163, 169 (Ala. 1991);
accord Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202, 1208 (M.S.Ala.
2002). The Code of Alabama defines wantonness as “[c]onduct which is carried on with a
reckless or conscious disregard of the rights or safety of others.” Ala.Code § 6-11-20(b)(3).
“Accordingly, to prove ‘wantonness, one need not prove intentional conduct; however, proof
of wantonness still requires evidence of a reckless or conscious disregard of the rights and
safety of others.” Wal-Mart Stores, Inc., v. Thompson, 726 So.2d 651, 654 (Ala. 1998). see
also Blizzard, 196 F.Supp at 1209.
It is clear that wantonness is a distinct theory of liability from negligence and “not
merely a higher degree of culpability than negligence.” Tolbert v. Tolber, 903 So.2d 103,
115 (Ala. 2004) (quoting NcNeil v. Munson S.S. Lines, 184 Ala. 420, 423, 63 So. 992
(1993)). “Wantonness is not merely a higher degree of culpability, than negligence” but
rather “[n]egligence and wantonness, plainly and simply, are qualitatively different tort
concepts of actionable culpability.” Id. In regards to the difference between wantonness and
negligence “[i]t has been correctly stated that the two concepts are as ‘unmixable as oil and
water.’” Id. see also Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371, 379
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(Ala.1989) (clarifying that “[w]hat constitutes wanton misconduct depends upon the facts
presented in each particular case” and that wantonness is not differing degrees of the same
tort concept but qualitatively different concepts of actionable culpability.)
“The Eleventh Circuit has examined the Alabama wantonness standard at length.”
Blizzard, 196 F.Supp at 1209 (citing Salter v. Westra, 904 F.2d 1517 (11th Cir. 1990)). The
Eleventh Circuit explained that even though knowledge of a condition and consciousness of
a danger may be inferred from the facts of a situation, “negligence in not appreciating the
dangerousness of the conditions is not wantonness.” Salter, 904 F.2d at 1525. The Eleventh
Circuit determined that “a jury may not find wantonness simply on the basis of a defendant’s
awareness that his actions, or failure to act, would entail more risks than not taking the action
in question.” Blizzard, 196 F.Supp at 1209.
In viewing the facts in a light most favorable to the Plaintiff, there is simply no
evidence before this Court whereupon a reasonable jury could find a conscious or reckless
disregard of the rights or safety of others. Id. Thus the Defendant’s Motion for Summary
Judgment is due to be GRANTED with respect to the Plaintiff’s wantonness claims.
Pursuant to the foregoing reasons, it is hereby ORDERED that the Motion for
Summary Judgment, (Doc. 17), is GRANTED with respect to the claims for wantonness
(Count II, Count IV, and Count VI). It is further ORDERED that the Motion for Summary
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Judgment is DENIED with respect to the negligence claims (Count I, Count III, and Count
V). An appropriate judgment will be entered separately.
DONE this 2rd day of April, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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