Lohr v. Zehner et al
MEMORANDUM OPINION AND ORDER as follows: Dfts Joseph Earl Zehner, III and United Parcel Service, Inc.'s 111 motion for partial summary judgment is granted as to (a) the wantonness claims against them for dft Zehner's actions before the in itial collision and (b) the direct wanton-supervision and wanton-entrustment claims against dft United Parcel Service, Inc., and is denied in all other respects, as further set out in order; Dfts Ricky Briggs and Kevin G. Transportation, Inc.'s 114 motion for summary judgment is granted as to the wantonness claims against them for dft Briggs's actions before the initial collision, and is denied in all other respects, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/24/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
RICHARD I. LOHR, II, as
Administrator of the Estate )
of Charles David Fancher,
JOSEPH EARL ZEHNER, III,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Richard I. Lohr, II, as administrator of the
estate of Charles David Fancher, filed this wrongful-death
Zehner’s employer United Parcel Service, Inc. (UPS), Ricky
Briggs, and Briggs’s employer Kevin G. Transportation
The lawsuit arises out of a series of highway
collisions among Zehner, Briggs, and Fancher that resulted
in Fancher’s death.
The cause is before the court on
Zehner and UPS’s motion for partial summary judgment and
Briggs and KGT’s motion for summary judgment.
will be granted in part and denied in part.
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
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 a matter of law.”
Fed. R. Civ. P. 56(a).
The court must view the admissible
evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in favor of that
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
At approximately 4:44 on a summer morning, Briggs was
approximately 60 miles an hour.
Zehner was driving at
approximately 72 miles an hour, when he struck Briggs from
Zehner’s truck veered to the left and tipped onto
its side, with the truck blocking both northbound lanes of
the highway and with the cab blocking part of the grass
median to the left.
Briggs stopped and parked his truck
so that it was blocking the emergency lane and shoulder to
the right side of the highway.
Zehner and Briggs disagree as to what caused the
Briggs, as well as a state highway trooper and a UPS
investigator, that he “must have fallen asleep” and that
he could not remember anything from the previous two miles
See Zehner Dep., Pl.’s
Ex. E (Doc. No.
130-5) at 110:7-14; Briggs Dep., Pl.’s Ex. D (Doc. No.
130-4) at 83:9-10; Vaughn Dep., Pl.’s Ex. I (Doc. No.
130-9) at 59:12-22.
According to Zehner, this was a
statement of uncertainty, and his memory loss may have
been caused by a head injury during the collision.
recalls that the taillights of Briggs’s truck suddenly
appeared before the collision, as if they had been turned
taillights were illuminated before the collision.
stopped in front of the trucks.
After a few minutes,
someone whom Briggs perceived to be in a position of
authority instructed him to move his truck forward so that
traffic could pass.
Briggs did so, and the cars proceeded
single-file around Zehner’s overturned truck.
triangles in front of Zehner’s overturned trailer.
After the traffic had cleared, Kelli Littlejohn drove
toward the collision site in the right lane.
was still dark, and she saw no lights or reflective
materials until she was close enough to the overturned
trailer that her headlights reached the underside of
She then saw Briggs’s truck ahead and
swerved to the left, hitting the back left side of his
Approximately ten minutes after Littlejohn drove to
the right, Fancher collided with the underside of Zehner’s
No one saw Fancher drive up, but administrator
Lohr’s accident-reconstruction expert opines that he was
likely traveling at approximately 70 miles an hour, the
speed limit; that he braked and swerved to the left to
avoid the trailer; and that his car was still moving at
approximately 50 miles an hour when it hit the overturned
Lohr’s expert on human factors and visibility
opines that, with low-beam headlights, Fancher was unable
to see the trailer until he was within 230 feet of it and
that he could not have stopped within that distance.
In the two years before the collisions, Zehner had
been involved in three accidents.
In June 2010, he
swerved to avoid a deer and his trailer tipped over.
February 2010, a tire blew on his private vehicle, causing
the tread to hit another vehicle.
In March 2009, while
driving a UPS truck, Zehner “had become distracted and
jerked the wheel to the left, which caused his right rear
... tire to hit the concrete guard rail.”
Zehner Dep. at
44:6-11 (reading UPS internal accident report).
driving record also shows several speeding violations and
four other collisions in the previous ten years.
against Zehner: two negligence claims (one for conduct
before the initial collision between Zehner and Briggs and
one for conduct after the initial collision) and two
1. The nature of Briggs’s employment by KGT is
somewhat complicated, as Briggs may also have had an
employment relationship of some kind with Wilmac
See Lohr v. Zehner, 2:12CV533-MHT,
2014 WL 2504574 (M.D. Ala. June 3, 2014) (Doc. No. 152).
However, the parties do not dispute that Briggs was
acting on behalf of KGT at the time of the collisions at
issue in this case, and this court has ruled that Wilmac
is not vicariously liable for Briggs’s actions in this
wantonness claims (one for conduct before the initial
collision and one for conduct after it).
summary judgment in his favor on only the two wantonness
Relying on vicarious liability, he asserts against UPS the
Zehner, UPS seeks summary judgment in its favor on only
the two wantonness claims. The remaining six claims Lohr
asserts against UPS are three direct negligence claims
(for entrustment, supervision, and retention) and three
direct wantonness claims (for entrustment, supervision,
and retention). UPS seeks summary judgment in its favor on
only two of the direct wantonness claims (for entrustment
and supervision) and on none of the direct negligence
2. Administrator Lohr initially raised negligentand-wanton hiring and maintenance claims against UPS, but
he has abandoned them. Lohr also abandoned negligentand-wanton entrustment, hiring, maintenance, retention,
and supervision claims against KGT.
Lohr asserts essentially four claims against Briggs:
two negligence claims (one for conduct before the initial
collision and one for conduct after it) and two wantonness
claims (one for conduct before the initial collision and
one for conduct after it).
Briggs seeks summary judgment
in his favor on all four claims.
Finally, Lohr asserts essentially four claims against
Relying on vicarious liability, he asserts against
KGT the same four claims he asserts against Briggs. KGT
seeks summary judgment in its favor on all four claims.
In the briefing, UPS makes arguments against the
negligent-supervision claim and the negligent-retention
claim, but it did not mention those claims in its motion
for partial summary judgment. Zehner and UPS Mot. for
Summ. J. (Doc. No. 111).
The company includes the
negligent-supervision claim in its initial brief but does
not meaningfully address the claim, instead arguing
Furthermore, the company does not mention the retention
claims until its reply brief. Since Lohr did not have
notice to make arguments regarding those claims, it would
be unfair for the court to read them into UPS’s motion
for summary judgment.
At first glance, it may seem confusing for the court
to devote significant attention in this Alabama wrongfuldeath case to disagreements about whether the defendants’
conduct was negligent or wanton.
Generally, the major
difference between an action for negligence and wantonness
is the availability of punitive damages if wantonness is
proven by clear and convincing evidence.
See 1975 Ala.
Code § 6-11-27(a). However, for “wrongful-death cases ...
all damages are punitive damages.”
Cain v. Mortgage
Realty Co., Inc., 723 So.2d 631, 633 (Ala. 1998); see 1975
Ala. Code § 6-5-410(a).
In fact, plaintiffs are not
permitted to present evidence about the particular value
of the deceased individual based on the “concept that all
human life is precious.”
Estes Health Care Centers, Inc.
v. Bannerman, 411 So. 2d 109, 113 (Ala.
the question of punitive damages is typically not at
However, there are two reasons why the question of
wantonness is still important at this stage in this case.
First, the defendants all argue the affirmative defenses
defenses which bar recovery for negligence actions but not
for wantonness actions.
McMahon v. Yamaha Motor Corp.,
U.S.A., 95 So. 3d 769, 773 (Ala. 2012) (contributory
negligence); Chance v. Dallas County, Ala., 456 So. 2d
instructions on these defenses.
Second, “the degree of
reprehensibility of the defendant’s conduct is perhaps
‘the most important indicium of the reasonableness of a
punitive damages award.’” BMW of N. Am., Inc. v. Gore, 701
So. 507, 512 (Ala. 1997) (quoting BMW of N. Am. v. Gore,
517 U.S. 559, 575 (1996)).
If the jury is permitted to
find only that defendants were negligent, the plaintiff
may be entitled to a lower amount of damages than if the
jury finds that they were wanton as well.
Since the questions with regard to wantonness affect
both the affirmative defenses available to the defendants
and the damages available to Lohr, the court considered
administrator Lohr’s wantonness claims.
against Zehner: that he was negligent before the collision
with Briggs, that he was negligent after that collision,
that he was wanton before that collision, and that he was
wanton after that collision.
Zehner moves for summary
judgment on only the two wantonness claims.
Under Alabama law, wantonness is defined as, “Conduct
which is carried on with a reckless or conscious disregard
of the rights or safety of others.”
1975 Ala. Code
§ 6-11-20(b)(3). However, “it is not essential to prove
that the defendant entertained a specific design or intent
to injure the plaintiff.”
Alfa Mut. Ins. Co. v. Roush,
723 So. 2d 1250, 1256 (Ala. 1998).
First, administrator Lohr argues that Zehner’s conduct
before the initial collision was wanton because he fell
asleep at the wheel.
Although Zehner now denies having
fallen asleep at the wheel, at this stage the court must
make all reasonable inferences against him.
In light of
his admissions immediately after the accident, it would be
reasonable for a jury to find that he did fall asleep at
However, in Lankford v. Mong, 214 So. 2d 301
(1968), the Alabama Supreme Court established that a
driver may be guilty of wantonness for falling asleep at
the wheel only if there is evidence that he “continued to
drive in reckless disregard of premonitory symptoms” of
sleepiness. Id. at 303 (quoting 28 A.L.R.2d 72).
Lankford, evidence that the driver was a nightclub singer
who had not slept much in the previous evenings was
experienced “premonitory symptoms,” that is, that he would
have noticed that he was feeling sleepy before nodding off
at the wheel.
In subsequent cases, however, Alabama
courts found insufficient evidence of premonitory symptoms
where the driver had slept a normal amount on previous
evenings and there was no other evidence or admission of
See, e.g. Glass v. Clark, 100 So. 3d 1074,
1084-85 (Ala. Civ. App. 2012).
Administrator Lohr presents no evidence that Zehner
Furthermore, Zehner testified to having had
plenty of sleep in the previous weekend.
occurred early in the morning, after Zehner had been
immediately before his shift, Zehner had taken a four-hour
and a two-hour nap and had slept for at least seven hours
the night before.
Lohr points to no evidence that Zehner
was sleep-deprived or other evidence that he had any other
knowledge of his own drowsiness.
Therefore, even if
Zehner fell asleep, his nodding-off alone cannot support
a wantonness claim.
Administrator Lohr’s second wantonness claim, for
Zehner’s behavior after the initial collision, is more
There were approximately 15 minutes between
the initial collision and when Fancher’s car hit Zehner’s
reflective triangles or make the darkened underside of his
around a stopped vehicle “as soon as possible, but in any
event within 10 minutes.” 49 C.F.R. § 392.22(b)(1).
regulation, among other safety training, would have put
Zehner on notice that it was likely that injury could
result from his leaving his truck unmarked. Injury was
particularly likely given the darkness of the road and the
lack of any reflective tape or lights on the underside of
Zehner was not physically incapacitated,
Therefore, it would be reasonable
for a jury to infer that he consciously decided to do
something else, rather than placing reflective or lighted
materials in front of his overturned truck.
offer sufficient evidence that a jury could find Zehner to
have been wanton.
Zehner argues that his failure to make his truck
visible on the roadway does not, as a matter of law,
federal case from the Northern District of Alabama in
which a driver had not placed reflective triangles and
wantonness claim: Bishop v. R.A. Wagner Trucking Co.,
Inc., 2014 WL 636987 (N.D. Ala. Feb. 18, 2014) (Putnam,
This court does not find Bishop persuasive in this
case for three reasons.
First, the Bishop court did not
address the issue of lights or reflective triangles in its
discussion of wantonness.
It addressed only the driver’s
decision, in that case, to park in the emergency lane of
an entrance ramp.
It would be unwise to draw many
conclusions from the court’s silence.
The parties may not
have argued that failure to place lights and triangles
amounted to wantonness.
Second, the collision in Bishop
contrast, this collision occurred in darkness, with an
overturned trailer blocking the entire road.
A jury could
find that such an invisible barrier created a more obvious
chance of injury than a visible obstacle to the side of
Finally, even if the Bishop court would hold
that failure to place triangles or light a vehicle was not
wanton behavior, such a holding would run contrary to
several other courts’ application of similar wantonness
See Alfonso v. Robinson, 514 S.E.2d 615, 619
(Va. 1999) (affirming jury instruction of wantonness for
truck driver not deploying flares or triangles around
disabled truck); Boatright v. Sclivia, 421 F.2d 949, 95152 (10th Cir. 1970) (reversing because of failure to
instruct jury on wantonness, under New Mexico law, in
similar situation); Kellerman v. J.S. Durig Co., 199
N.E.2d 562, 565-66 (Ohio 1964) (reversing directed verdict
on wantonness in similar situation); see also 61A C.J.S.
Motor Vehicles § 1387 (noting jury question of wantonness
“including in cases involving the parking of a vehicle
unattended without lights”).3
Therefore, the court will grant summary judgment in
favor of Zehner on Lohr’s claim for wantonness before the
initial collision between Zehner and Briggs and deny
wantonness after the collision for Zehner’s failure to
place reflective triangles or otherwise illuminate his
3. Zehner also argues that Ex parte Essary, 992 So.
2d 5 (Ala. 2007), stands for the proposition that it is
not wanton to fail to put oneself in danger. However, as
explained later in this opinion, Essary stands for a
different proposition: that courts will not infer a
conscious decision by a non-impaired person to take an
action that would put him in danger. In any event, a jury
could find that Zehner, without endangering himself,
could have found and placed a triangle near his truck so
as to warn other drivers before the Fancher collision or
he could have used his flashlight to draw attention to
the hazard. Any argument that he was unable to do so is
a fact question for the jury to decide.
As stated, administrator Lohr has brought ten claims
vicariously liable for the negligence and wantonness of
Zehner under respondeat superior.
As does Zehner, UPS
moves for summary judgment on only the wantonness claims.
For the reasons described above, summary judgment will be
granted in favor of UPS on the wantonness claim for
Zehner’s actions before his initial collision with Briggs,
but will be denied on the wantonness claim for his actions
after the initial collision.
The other six claims allege misbehavior on the part of
UPS itself with regard to its treatment of Zehner prior to
wanton retention, and wanton supervision.
UPS moves for
summary judgment on Lohr’s claims for wanton entrustment
Since these claims overlap significantly, it is most
efficient to address UPS’s arguments together.
previous crashes and speeding tickets. Administrator Lohr
argues that, having notice of those crashes and tickets,
UPS should not have allowed him to continue to drive
The company insists that it followed a
appropriate for the circumstances and, alternatively, that
the crashes and tickets were not sufficiently closely
related to the collision at issue in this case for the
wanton-entrustment or wanton-supervision claims to attach.
In order for either the entrustment or the supervision
to constitute wantonness, UPS must have continued to allow
Zehner to drive, with the company “being conscious that
... injury will likely or probably result.”
rel. Jordan v. Calloway, 7 So. 3d 310, 316-17 (Ala. 2008)
(quoting Barker v. Towns, 747 So. 2d 907, 907 (Ala. Civ.
App. 1999)) (describing wanton entrustment); see also Big
B, Inc. v. Cottingham, 634 So. 2d 999, 1004 (Ala 1993)
(describing wanton supervision).
followed established progressive-discipline-and-training
policies, as well as the collective-bargaining agreement
that it had reached with Zehner’s union.
order to show that UPS had allowed Zehner to continue
result, administrator Lohr would essentially have to show
that UPS had adopted the discipline-and-training policies
and the collective-bargaining agreement with an awareness
that injury would likely result.
However, Lohr provides
no evidence that would allow a reasonable jury to reach
Therefore, summary judgment will be granted in favor
of UPS on Lohr’s wanton-supervision and wanton-entrustment
Administrator Lohr brings four claims against Briggs:
negligence before the initial collision, negligence after
collision, and wantonness after the initial collision.
Briggs moves for summary judgment on the negligence claims
on the ground that Fancher, the decedent, was guilty of
contributory negligence, and he moves for summary judgment
on the wantonness claims on the ground that Lohr has not
put forward evidence of wantonness.
1. Contributory Negligence
As this court discussed in an earlier case, there are
Bielski v. Alfred Saliba Corp., --- F.Supp.2d ---, 2013 WL
5657440 at *4-6 (M.D. Ala. October 16, 2013) (Thompson,
applies, here the contributory-negligence argument falls
flat at this stage.
At the very least, Briggs would need
to show that there is no dispute of fact that Fancher
failed to exercise reasonable care.
Id. at *5 (quoting
Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839,
860-61 (Ala. 2002)).
Specifically, Briggs argues that Fancher could have
avoided his collision with the underside of Zehner’s truck
by swerving to the right, as Littlejohn did, instead of to
Fancher’s decision to swerve left, they argue,
would be contributory negligence, either because it shows
he chose a riskier path when a safe option was available;
because it shows that he failed to keep an adequate
lookout as Littlejohn did; or because it shows that he was
traveling at an unsafe speed.
The portion of I-65 on which the collision
occurred was a two-lane road, with grass to the left side
and an emergency lane to the right side.
traveling in the right lane and was thus able to swerve
right and avoid hitting Zehner’s truck.
No observer saw
Fancher approach the overturned trailer, but a reasonable
jury could find that Fancher was traveling in the left
This would have made it impossible for him to
follow Littlejohn’s path, even if he were traveling at a
reasonable speed and keeping an adequate lookout.
Because a reasonable jury could find that Fancher’s
collision was unavoidable or that he exercised reasonable
care in advance of the collision, Briggs is not entitled
to summary judgment his contributory-negligence defense
and thus is not entitled to summary judgment on Lohrs
negligence claims against him.
Adminstrator Lohr argues that Briggs’s conduct was
wanton before the initial collision because, with the
facts construed against Briggs, Briggs failed to have his
taillights on until shortly before Zehner hit him.
argues that Briggs was wanton after the initial collision
because he did not place reflective triangles or other
illumination around Zehner’s overturned truck.
In Ex parte Essary, 992 So. 2d 5 (Ala. 2007), the
“Absent some evidence of impaired judgment, such as from
the consumption of alcohol, we do not expect an individual
to engage in self-destructive behavior.”
Id. at 12.
that case, a driver had tried to cross an intersection
between two moving vehicles, causing an accident.
court refused to find such behavior to reflect a conscious
decision to engage in reckless behavior, the definition of
wantonness, because such reckless behavior would have put
the driver himself in danger.
Therefore, the conduct
Jinright v. Werner Enterprises, Inc., 607
F.Supp.2d 1274, 1276 (M.D. Ala. 2009) (Thompson, J.)
(quoting Essary, 992 So. 2d at 12).
In this case, there is no evidence that Briggs was
impaired in any way.
Driving on the highway with his
Briggs would be at least as likely to be injured as anyone
For that reason, no reasonable jury could find that
He cannot be found wanton for actions before
the initial collision.
However, a reasonable jury could find Briggs to have
been wanton after the initial collision in failing to
illuminate the UPS trailer before allowing traffic to go
For the reasons discussed above, a jury may find
wantonness when a truck driver leaves his own vehicle
unlit within traffic.
In the context of this accident,
Briggs may have had a similar duty with regard to Zehner’s
A jury could find that this duty to warn other
drivers arises under either of two scenarios:
although he did not cause the collision, he was still
aware of the dangerous condition.
See Napier Rep. at 15-
17 (describing the duty to place reflective triangles as
applying to an accident scene rather than only one’s own
Therefore, the court will grant summary judgment in
wantonness before the initial collision between Briggs and
Zehner and deny summary judgment on Lohr’s claim against
Briggs for wantonness after the collision for Briggs’s
illuminate Zehner’s overturned truck.
Finally, as stated, administrator Lohr seeks to hold
KGT vicariously liable for each of the four claims brought
against Briggs under respondeat superior, and the company
has joined with Briggs in his motion for summary judgment
on these claims.
For the reasons discussed above, summary
judgment will be granted in favor of KGT on Lohr’s claim
that Briggs was wanton before the initial collision and
will be denied all other wantonness and negligence claims
asserted by Lohr against KGT.
* * *
Accordingly, it is ORDERED as follows:
(1) Defendants Joseph Earl Zehner, III and United
Parcel Service, Inc.’s motion for partial summary judgment
(Doc. No. 111) is granted as to (a) the wantonness claims
against them for defendant Zehner’s actions before the
initial collision and (b) the direct wanton-supervision
and wanton-entrustment claims against defendant United
Parcel Service, Inc.
Inc.’s motion for partial summary judgment (Doc. No. 111)
is denied in all other respects.
(3) The following claims against defendant Zehner will
negligence claims (one for defendant Zehner’s conduct
before the initial collision and one for his conduct after
the initial collision) and (b) plaintiff Lohr’s wantonness
claim for defendant Zehner’s conduct after the initial
(4) The following claims against defendant United
Parcel Service, Inc. will go to trial: (a) plaintiff
Zehner’s conduct before the initial collision and one for
his conduct after the initial collision); (b) plaintiff
Lohr’s wantonness claim for defendant Zehner’s conduct
after the initial collision; (c) plaintiff Lohr’s three
direct negligence claims for entrustment, supervision, and
retention; and (d) plaintiff Lohr’s direct wantonness
claim for retention.
Transportation, Inc.’s motion for summary judgment (Doc.
No. 114) is granted as to the wantonness claims against
them for defendant Briggs’s actions before the initial
(6) Defendants Briggs and Kevin G. Transportation,
Inc.’s motion for summary judgment (Doc. No. 114) is
denied in all other respects.
(7) The following claims against defendant Briggs will
go to trial: (a) plaintiff Lohr’s two negligence claims
(one for defendant Briggs’s conduct before the initial
collision) and (b) plaintiff Lohr’s wantonness claim for
defendant Briggs’s conduct after the initial collision.
(8) The following claims against defendant Kevin G.
Transportation, Inc. will go to trial:
Lohr’s two negligence claims (one for defendant Briggs’s
conduct before the initial collision and one for his
conduct after the initial collision) and (b) plaintiff
Lohr’s wantonness claim for defendant Briggs’s conduct
after the initial collision.
DONE, this the 24th day of June, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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