Davis v. Automatic Food Service, Inc. et al

Filing 190

OPINION AND ORDER: It is the ORDER of the court that defendant Automatic Food Service, Inc.'s 98 Motion for Summary Judgment is granted as to plaintiff Sundee Ann Davis's negligent-training claim and is denied as to her negligent-and-wanton driving claims as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 11/23/2015. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
SUNDEE ANN DAVIS,

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)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AUTOMATIC FOOD SERVICE,
INC., et al.,
Defendants.

CIVIL ACTION NO.
2:14cv308-MHT
(WO)

OPINION AND ORDER
This

personal-injury

three-vehicle accident.

lawsuit

arises

out

of

a

The plaintiff is Sundee Ann

Davis and the defendants are Automatic Food Service,
Inc.,

James

Ray

&

Associates,

and

James

McGaughy.

Davis was injured when a box truck hit the rear of a
much smaller pick-up truck, causing the pick-up truck
to veer into oncoming traffic and collide head-on with
her

car.

In

wanton-driving
Davis

brings

addition
claims
a

to

bringing

against

all

negligent-

three

negligent-entrustment

and

defendants,

claim

against

James Ray & Associates and a negligent-training claim

against Automatic.

Jurisdiction is proper pursuant to

28 U.S.C. § 1332 (diversity of citizenship).
This case is now before the court on Automatic’s
motion for summary judgment in its favor on all claims.
The motion will be granted as to the negligent-training
claim

and

denied

as

to

the

negligent-

and

wanton-driving claims.

I. SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate “if the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to
any

material

fact

and

the

movant

judgment as a matter of law.”

is

entitled

to

Fed. R. Civ. P. 56(c).

In deciding whether summary judgment should be granted,
the court must view the evidence in the light most
favorable
reasonable

to

the

non-moving

inferences

in

party

favor

of

and

draw

that

all

party.

Matsushita Elec. Indus. Co. v._Zenith Radio Corp., 475
U.S. 574, 587 (1986).
2

II. BACKGROUND
The

relevant

facts,

taken

in

favorable to Davis, are as follows.

the

light

most

At the time of the

accident, Melvin Wayne Little, an Automatic employee,
was driving a pick-up truck southbound on a two-lane
highway, heading to a manufacturing plant.

McGaughy

was driving a fully loaded box truck directly behind
Little.

Davis was traveling in the opposite direction,

northbound on the same highway, which was still wet
from rain earlier in the day.
Little slowed down and sped up several times trying
to locate the road he needed to take in order to reach
the manufacturing plant.

In violation of Automatic’s

cell-phone policy, he used his hand-held company cell
phone

to

call

a

co-worker

to

ask

for

directions.

Little told his co-worker that he was going to turn on
to the road to the plant, but he did not activate his
turn signal.

Instead, shortly before reaching the road

that leads to the plant, Little hit his brakes a few
3

times and stopped suddenly.

McGaughy tried to avoid

hitting Little but still rear-ended him.

The impact

caused Little’s pick-up truck to move into northbound
traffic and crash head-on into the car that Davis was
driving.

Little died as a result of the accident, and

Davis sustained serious injuries.

III. DISCUSSION
Automatic
negligent-

moves

and

for

summary

wanton-driving

judgment

claims

on

Davis’s

stemming

from

Little’s operation and driving of the pick-up truck,
and on Davis’s negligent-training claim.

There is no

dispute that Little was acting within the scope of his
employment with Automatic when the accident occurred
and that Automatic can therefore be held liable for his
actions.

A. Negligent-Driving Claim
In

order

plaintiff

must

to

prevail
prove

on

four
4

a

negligence

elements:

duty,

claim,

a

breach,

causation, and damages.
So.

2d

649,

651

(Ala.

Sessions v. Nonnenmann, 842
2002).

Davis

contends

that

Little was negligent for not following the laws of the
road and for using a cell phone while driving.
the

duties

of

a

driver

include

not

First,

“stop[ping]

or

suddenly decreas[ing] the speed of a vehicle without
first giving an appropriate signal ... to the driver of
any

vehicle

opportunity
§ 32-5A-133.

immediately
to

give
The

such

to

the

rear

signal.”

appropriate

signal

when
1975

there
Ala.

would

be

is

Code
“[a]

signal of intention to turn right or left ... given
continuously not less than the last 100 feet traveled
by the vehicle before turning.”

Id.

Second, while

there is no Alabama statute that expressly addresses
talking on a cell phone while driving, see generally
1975 Ala. Code §§ 32-5A-1 to -352 (“Rules of the Road”)
(containing in the traffic-law compilation no express
prohibition of talking on cell phone while driving),
common sense dictates that doing so could result in
culpability if it interferes with a driver’s duty to
5

use “reasonable care” not to cause harm to others using
the public roadway, Jones v. Baltazar, 658 So. 2d 420,
421 (Ala. 1995), with the term reasonable care defined
as what “a reasonably prudent person would not do in a
similar situation” or what “a reasonably prudent person
would

have

done

in

a

similar

situation.”

Pattern Jury Instructions: Civil § 28.01.

Alabama

A statutory

violation or breach of duty is not actionable unless
the violation or breach is the proximate cause of the
accident.

See

Cox v. Miller, 361 So. 2d 1044 (Ala.

1978).
The

record

establishes

a

genuine

dispute

of

material fact as to whether Little negligently failed
to use his turn signal before the crash and whether he
negligently stopped abruptly before the crash.

The

driver of the truck immediately behind Little testified
that Little “tapped his brakes” about a hundred feet
from the road to the plant, but that he did not use his
“blinker” or turn signal.

McGaughy Dep. (doc. no. 98-

5)

a

at

73:17-74:12.

And

6

witness

to

the

accident

testified that, immediately before the accident, Little
“just stopped,” and “his blinker or nothing never came
on before he stopped.”
15:21-24.

Day Dep. (doc. no. 98-7) at

A reasonable finder of fact could conclude

that Little breached his reasonable-care duty by not
signaling before slowing down and abruptly stopping,
and that this breach was the proximate cause of the
accident, as it would have not given the driver behind
warning of the need to slow down and enough time to do
so

in

order

Therefore,

to

avoid

summary

crashing

judgment

on

into
the

Little’s

car.

negligent-driving

claim will be denied.

B. Wanton-Driving Claim
Davis also claims that Little was wanton in his
operation of his pick-up truck.
from

(1)

“conscious

Wantonness can result

disregard,”

1975

Ala.

Code

§ 6-11-20(b)(3), or (2) “reckless indifference,” Martin
v. Arnold, 643 So. 2d 564, 567 (Ala. 1994).

According

to the Alabama Supreme Court, “Wantonness is not merely
7

a

higher

degree

Negligence

and

of

culpability

wantonness,

than

plainly

and

culpability.”

Tolbert v. Tolbert, 903 So. 2d 103, 114

negligent

(internal

conduct

thoughtlessness,

is

citations

actionable

omitted).

characterized

heedlessness,”

of

are

different

2004)

concepts

simply,

qualitatively

(Ala.

tort

negligence.

and

While

by

“inattention,

“a

lack

of

due

care,” Monroe v. Brown, 307 F. Supp. 2d 1268, 1271
(M.D. Ala. 2004)

(Thompson, J.), wantonness

is “the

conscious doing of some act or the omission of some
duty while knowing of the existing conditions and being
conscious that, from doing or omitting to do an act,
injury

will

Essary,

992

likely

or

probably

result,”

So.

5,

9

2007)

2d

(Ala.

Ex

parte

(emphasis

in

original).
A

factfinder

may

find

wantonness

based

on

recklessness if the conduct is “so inherently reckless
that it would signal the kind of depravity consistent
with

disregard

self-preservation.”

of

instincts
Jinright
8

v.

of
Werner

safety

and

Enterprises,

Inc., 607 F. Supp. 2d 1274, 1276-1277 (M.D. Ala. 2009)
(Thompson, J.) (internal quotations omitted).
The evidence before the court establishes a genuine
dispute of material fact whether Little’s conduct was
‘inherently reckless.’1
accident

testified

As stated, a witness to the

that,

immediately

before

the

accident, Little “just stopped,” and “his blinker or
nothing never came on before he stopped.”
(doc. no. 98-7) at 15:21-24.

Day Dep.

And the driver of the

truck behind him also said that Little abruptly stopped
as he approached the road to the plant.
(doc. no. 98-5) at 70:16-23.

McGaughy Dep.

A reasonable jury could

find that abruptly stopping on a wet road with two-way
traffic while talking on a cell phone is “inherently

1. Although Automatic disputes that Little came to
an abrupt stop and offers evidence from the pick-up
truck’s air-bag-control manual that Little did not
completely stop but rather slowed down gradually from
27 to 12 mph before the accident, evidence must be
viewed in the light most favorable to the non-moving
party on summary judgment.
In any event, there is
substantial evidence that Little failed to use his turn
signal.

9

reckless conduct” and therefore constitutes wantonness.
Jinright, F. Supp. 2d. at 1277.
This

court’s

decision

in

Craft

v.

Triumph

Logistics, Inc., 2015 WL 1565003 (M.D. Ala. April 8,
2015)

(Thompson,

conclusion.
granted

does

not

warrant

a

different

In Craft, a truck-accident case, the court

summary

plaintiff’s

J.),

judgment

wantonness

for

claim

the

defendant

because

the

on

the

evidence

established only that the defendant was inattentive in
not

using

his

turn

signal

driving into the left lane.

or

looking

left

before

As the court there noted,

there was no “exacerbating circumstance,” such as the
defendant’s “talking on his phone or texting,” that
could have supported a finding of wantonness.

2015 WL

1565003, at *3.
Here,

in

contrast,

the

evidence

establishes

“something more” than mere inattentiveness or violation
of road rules.

Craft, 2015 WL 1565003, at *3.

The

jury could find two exacerbating circumstances: that
Little was talking on his cell phone at the time of the
10

accident, and that the roads were wet, a condition that
arguably called for drivers to use greater caution.
See Hornady Truck Line, Inc. v. Meadows, 847 So. 2d
908, 915-916 (Ala. 2002) (finding sufficient evidence
of

wantonness

where

facts

included

driver’s

inattentiveness, combined with high rate of speed and
adverse weather conditions).

Because the evidence is

sufficient for a jury to find wantonness, Automatic’s
summary-judgment motion will be denied as to Davis’s
wanton-driving claim.

C. Negligent-Training Claim
Davis
trained

also

Little

claims
by

not

that

Automatic

ensuring

that

negligently
he

read

the

company’s cell-phone policy, which advised drivers to
pull over where possible before talking on cell phones.
In order to bring a negligent-training claim, Davis
must show that (1) Little engaged in a tort recognized
under Alabama law, see Stevenson v. Prevision Standard,
Inc., 762 So. 2d 820, 824 (Ala. 1999); (2) Little was
11

not competent to drive his commercial vehicle, see Lane
v. Central Bank of Alabama, N.A., 425 So. 2d 1098, 1100
(Ala. 1983); (3) Automatic had actual or constructive
notice that Little was incompetent, see Armstrong Bus.
Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala.
2001); and (4) Automatic negligently failed to respond
to this notice.

See id.

As discussed above, Davis has established a genuine
dispute

as

to

whether

Little

was

driving on the day of the accident.

negligent

in

his

However, Davis has

not put forth sufficient evidence for a jury to find
that

Little

was

otherwise

drive Automatic’s vehicle.

generally

incompetent

to

“Incompetence” is defined

as the “state or fact of being unable or unqualified to
do something.”
So.

2d

409,

Dictionary

780

Halford v. Alamo Rent-A-Car, LLC, 921
416

(Ala.

(8th

ed.

2005)

(quoting

2004)).

In

Black’s
Alabama,

Law
“the

incompetence of a driver is measured by the driver’s
demonstrated ability (or inability) to properly drive a
vehicle,” Halford, 921 So. 2d at 413-14, and this may
12

be

measured

incompetence”

by

characteristics

or

“habitual

such

as

negligence,”

“general

Edwards

v.

sufficient

to

Valentine, 926 So. 2d 315 (Ala. 2005).
Little’s

driving

record

is

not

establish incompetence. It indicates only one accident
(and does not include who was at fault) and a citation
for running a red light, both more than a decade before
the accident at issue in this lawsuit.2

In addition,

Little had driven for years as a licensed driver.
Halford,

921

So.

2d

409,

417

(explaining

that

See
a

driver’s competence is determined by “evidence relevant
to that person’s mental and physical abilities and his
or her prior driving experience and record.”).

The

evidence is insufficient for a reasonable jury to find
Little generally incompetent.
Because Davis cannot establish that Little was an
incompetent driver, summary judgment will be granted in
favor of Automatic on her negligent-training claim.
2. Davis offers no evidence that McGaughy had
previously used his cell-phone in an incompetent manner
while driving.
13

* * *

For the foregoing reasons, it is the ORDER of the
court

that

defendant

Automatic

Food

Service,

Inc.’s

motion for summary judgment (doc. no. 98) is granted as
to

plaintiff

Sundee

Ann

Davis’s

negligent-training

claim and is denied as to her negligent- and wantondriving claims.
DONE, this the 23rd day of November, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE