Davis v. Automatic Food Service, Inc. et al
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,
AUTOMATIC FOOD SERVICE,
INC., et al.,
CIVIL ACTION NO.
OPINION AND ORDER
The plaintiff is Sundee Ann
Davis and the defendants are Automatic Food Service,
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
James Ray & Associates and a negligent-training claim
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
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
judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
In deciding whether summary judgment should be granted,
the court must view the evidence in the light most
Matsushita Elec. Indus. Co. v._Zenith Radio Corp., 475
U.S. 574, 587 (1986).
favorable to Davis, are as follows.
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.
was driving a fully loaded box truck directly behind
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
Little told his co-worker that he was going to turn on
to the road to the plant, but he did not activate his
Instead, shortly before reaching the road
that leads to the plant, Little hit his brakes a few
times and stopped suddenly.
McGaughy tried to avoid
hitting Little but still rear-ended him.
caused Little’s pick-up truck to move into northbound
traffic and crash head-on into the car that Davis was
Little died as a result of the accident, and
Davis sustained serious injuries.
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
A. Negligent-Driving Claim
causation, and damages.
Sessions v. Nonnenmann, 842
Little was negligent for not following the laws of the
road and for using a cell phone while driving.
suddenly decreas[ing] the speed of a vehicle without
first giving an appropriate signal ... to the driver of
signal of intention to turn right or left ... given
continuously not less than the last 100 feet traveled
by the vehicle before turning.”
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
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
Pattern Jury Instructions: Civil § 28.01.
violation or breach of duty is not actionable unless
the violation or breach is the proximate cause of the
Cox v. Miller, 361 So. 2d 1044 (Ala.
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.
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-
testified that, immediately before the accident, Little
“just stopped,” and “his blinker or nothing never came
on before he stopped.”
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
claim will be denied.
B. Wanton-Driving Claim
Davis also claims that Little was wanton in his
operation of his pick-up truck.
Wantonness can result
§ 6-11-20(b)(3), or (2) “reckless indifference,” Martin
v. Arnold, 643 So. 2d 564, 567 (Ala. 1994).
to the Alabama Supreme Court, “Wantonness is not merely
Tolbert v. Tolbert, 903 So. 2d 103, 114
care,” Monroe v. Brown, 307 F. Supp. 2d 1268, 1271
(M.D. Ala. 2004)
(Thompson, J.), wantonness
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,
recklessness if the conduct is “so inherently reckless
that it would signal the kind of depravity consistent
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
As stated, a witness to the
accident, Little “just stopped,” and “his blinker or
nothing never came on before he stopped.”
(doc. no. 98-7) at 15:21-24.
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.
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
reckless conduct” and therefore constitutes wantonness.
Jinright, F. Supp. 2d. at 1277.
Logistics, Inc., 2015 WL 1565003 (M.D. Ala. April 8,
In Craft, a truck-accident case, the court
established only that the defendant was inattentive in
driving into the left lane.
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.
1565003, at *3.
“something more” than mere inattentiveness or violation
of road rules.
Craft, 2015 WL 1565003, at *3.
jury could find two exacerbating circumstances: that
Little was talking on his cell phone at the time of the
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
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
C. Negligent-Training Claim
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
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.
As discussed above, Davis has established a genuine
driving on the day of the accident.
However, Davis has
not put forth sufficient evidence for a jury to find
drive Automatic’s vehicle.
“Incompetence” is defined
as the “state or fact of being unable or unqualified to
Halford v. Alamo Rent-A-Car, LLC, 921
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
Valentine, 926 So. 2d 315 (Ala. 2005).
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
Little had driven for years as a licensed driver.
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.”).
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
* * *
For the foregoing reasons, it is the ORDER of the
motion for summary judgment (doc. no. 98) is granted as
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
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