Trinidad v. Moore et al

Filing 65

MEMORANDUM OPINION AND ORDER: The 45 Partial Motion for Summary Judgment is GRANTED in part and DENIED in part as follows: 1. The Motion is GRANTED and judgment is entered in favor of Daniel Joe Moore, Jr. and RDB Trucking, LLC and against the Plai ntiff on his claim in Count II for negligent failure maintain or properly equip the commercial vehicle and all wantonness claims in Count III. 2. The Motion is DENIED as to the negligent entrustment claim in Count II. The case will proceed on the negligence claims in Count I and the negligent entrustment claim in Count II. Signed by Honorable Judge W. Harold Albritton, III on 8/11/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JOSE A. TRINIDAD,

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Plaintiff,
v.

DANIEL JOE MOORE, JR., and
RDB TRUCKING, LLC,
Defendants.

Civil Action No. 2:15cv323-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion for Summary Judgment (Doc. #45), filed by the
Defendants, Daniel Joe Moore, Jr. and RDB Trucking, LLC.
The Plaintiff filed a Complaint in this case on May 15, 2015. The Plaintiff brings claims
for negligence (Count One), negligence theories including negligent entrustment (Count Two),
and wantonness (Count Three). The Defendants move for summary judgment as to the claims in
Count Two for negligent hiring, retention, training, supervision and other claims related to
negligent entrustment, and the wantonness claims in Count Three.
For the reasons to be discussed, the Motion for Summary Judgment is due to be
GRANTED in part and DENIED in part.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if there is no genuine issue as to any material fact and

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the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).

The party asking for summary judgment "always bears the initial responsibility of
informing the district court of the basis for its motion,@ relying on submissions Awhich it believes
demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party
has met its burden, the nonmoving party must Ago beyond the pleadings@ and show that there is a
genuine issue for trial. Id. at 324.
Both the party Aasserting that a fact cannot be,@ and a party asserting that a fact is genuinely
disputed, must support their assertions by Aciting to particular parts of materials in the record,@ or
by Ashowing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.@ Fed. R. Civ. P.
56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include Adepositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials.@
To avoid summary judgment, the nonmoving party "must do more than show that there is
some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, 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 a matter of law. Fed. R. Civ. P. 56(a).

III. FACTS
The submissions of the parties establish the following facts, construed in a light most

favorable to the non-movant:
The case arises out of an automotive wreck in October of 2014. The wreck was a collision
of a commercial vehicle owned by RDB Trucking, LLC and driven by Daniel Joe Moore, Jr.
(“Moore”) with a vehicle driven by Plaintiff Jose A. Trinidad (“Trinidad”). The circumstances of
the collision are in dispute. Trinidad’s view of the facts is that Moore was driving on the inside
lane of four-lane U.S. Highway 231 when he improperly changed lanes and caused Trinidad to
collide with the rear end of the commercial vehicle. At issue in the partial Motion for Summary
Judgment are the facts giving rise to the Plaintiff’s claims for negligence hiring, training,
supervision, and negligence in equipping the truck, as claimed in Count II and claim for
wantonness in Count III.
Trinidad contends that Moore had eight driving violations which establish that he is
habitually negligent or an incompetent driver. Trinidad relies on the following incidents: three
speeding tickets, a vehicle accident, falsification of logbooks, and a failure to properly maintain
equipment. Trinidad reproduces in his brief a page from RDB Trucking’s accident register which
shows that the accident Moore had shortly after being hired was deemed “preventable,” but the
record was changed to say that it was not preventable. Trinidad states that the violations occurred
within a three-year-period, and five of the violations occurred within the two years in which Moore
worked for RDB Trucking. Trinidad also points to evidence regarding RDB Trucking’s policies
as evidence that Moore should not have been hired, and should have been terminated after he was
hired, including the deposition testimony of Ron Brock (“Brock), owner of RDB Trucking.
Brock agreed in his deposition that drivers violating RDB Trucking’s rules implicated safe driving
beyond the safety ratings. (Doc. #54-3 at p.96:2-7).
RDB Trucking concedes that Moore had speeding tickets in 2009, 2011, and 2012, but
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states that the 2011 and 2012 tickets were for traveling four miles over the permit speed limits.
(Doc. #45-1 at p. 26-27). RDB Trucking also states that the accident in which Moore was
involved was caused by the other driver. (Doc. #45-1 at p.74-76). RDB Trucking provides
testimony that the record of that accident was probably recopied by Brock’s daughter into RDB
Trucking’s records and the change from indicating the accident was preventable to not preventable
was a mistake. (Doc. #54-3 at p. 132:19-133:4). RDB Trucking points out that at the time of the
accident, Moore had a valid commercial license and had been driving tractor-trailers for nearly ten
years. (Doc. #45-1 at p.8: 10-11).
IV. DISCUSSION
As noted, the Defendants have moved for summary judgment as to claims in Counts II and
III.
A Count II—Negligent Entrustment1
The elements of a claim for negligent entrustment are (1) an entrustment, (2) to an
incompetent, (3) with knowledge that he is incompetent, (4) proximate cause, and (5) damages.
Halford v. Alamo-Rent-A-Car, 921 So. 2d 409, 412 (Ala. 2005).
RDB Trucking seeks summary judgment on the ground that Moore was not an incompetent
driver, so RDB Trucking cannot be held liable for negligent hiring, retention, entrustment,
supervision or other related claims. RDB Trucking also contends that there is no evidence of
knowledge or proximate cause.

1 As earlier noted, several theories are asserted in Count II of the Complaint. The Defendants
have moved for summary judgment as to all of the claims related to negligent entrustment with the
same analysis, stating that Alabama law treats them all the same. The Plaintiff has responded that
he opposes summary judgment as to negligent entrustment and failure to supervise, but only
presents evidence as to entrustment. (Doc. #54 at p.28).

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Evidence of incompetence must bear on the ability to properly drive a vehicle. Halford,
921 So. 2d at 413. The Supreme Court of Alabama has explained that a plaintiff alleging
negligent entrustment may show that the driver to whom the defendant entrusted the vehicle was
“unable or unlikely to have operated the motor vehicle with reasonable safety due to one of several
characteristics or conditions,” including “general incompetence” or “habitual negligence.”
Edwards v. Valentine, 926 So. 2d 315, 321–22 (Ala. 2005).
RDB Trucking cites to various cases including Wright v. McKenzie, 647 F. Supp. 2d 1293,
1300 (M.D. Ala. 2009); Askew v. R&L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala.
2009); Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 52 (Ala. 1995); Craft v. Triumph
Logistics, Inc., 107 F. Sup. 3d 1218 (M.D. Ala. 2015); and Vines v. Cook, No. 2:15cv111-KD-C,
2015 WL 8328675 (S.D. Ala. Dec. 8, 2015), for the proposition that Moore’s driving record in this
case did not reflect sufficient evidence of incompetence. RDB Trucking states that Moore had
three speeding tickets and one accident in the ten years preceding the accident at issue. RDB
Trucking further states that the tickets in 2011 and 2012 were for traveling less than five miles per
hour over the speed limits. RDB Trucking also states that the accident was caused by the other
driver, and Moore merely drove into a median to avoid a collision where a trailer came loose from
another truck.
As to the habitual negligence theory, it appears that that standard has not been met in this
case. As the court explained in Craft, several moving violations do not establish habitual
negligence if they occurred under “diverse circumstances.” Craft, 107 F. Supp. 3d at 1225.
Habitual negligence has been found by Alabama courts when the same negligent practice occurs
30 to 40 times. Id. (citing Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933 (Ala. 2006)
involving the improper use of gauze in a medical procedure and which analogized the case to
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automobile entrustment cases).
As to the issue of general incompetence, evidence of previous acts of negligent or reckless
driving and previous accidents may be evidence to support that the driver to whom the defendant
entrusted the vehicle was unable or unlikely to have operated the motor vehicle with reasonable
safety. Edwards, 926 So. 2d at 322. One prior accident, standing alone, is not substantial
evidence of incompetence. See Thedford v. Payne, 813 So.2d 905 (Ala. Civ. App. 2001).
Trinidad has relied on evidence that at the time of the accident, in addition to three
infractions before he was hired, within the two-year period after he was hired by RDB Trucking
Moore had a speeding ticket, a preventable accident, and RDB Trucking policy violations
including a failure to properly maintain equipment which resulted in air leaking from brakes and a
falsification of logbooks. (Doc. #54-3 at p.169: 1-23). Moore’s driving record, however, is not
the only evidence cited by Trinidad. Trinidad points to the deposition of RDB Trucking’s
representative in which he testified that these infractions were violations of the company’s policy.
Trinidad argues that although RDB Trucking claims that Moore was disciplined for violations of
policy, there are questions of fact because RDB Trucking company records state that Moore was
given two first warnings, which would have only entailed giving him a written warning.
In response to Trinidad’s evidence regarding its policies, RDB Trucking states that the
policy has been improperly characterized as a safety policy, that the violations policy does not
indicate that Moore could not be hired, and that in fact Moore came highly recommended as an
excellent driver. (Doc. #54-3 at p. 58: 7-14). RDB Trucking also states that Moore was
disciplined for his speeding violation and log book and air leak violations, citing to Moore’s
deposition in which he states that the amount of a fine he received was taken out of his pay. (Doc.
#54-4 at p.45: 4-5). Brock also stated in his deposition that the company records indicating that
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Moore got a first warning two times were incorrect. (Doc. #54-3 at p.98:2-6). But, even accepting
Trinidad’s evidence, RDB Trucking argues in reply that all of the evidence which Trinidad seeks
to rely on concerning the conduct of RDB Trucking and its internal policies misses the point
because RDB Trucking’s actions with regard to its internal policies and documents could not have
made Moore a competent or incompetent driver, and without evidence of Moore’s incompetence,
evidence of RDB Trucking’s actions with regard to its policies is not relevant.
Evidence of violation of company policy may be relevant under some circumstances,
however. For example, when the policies violated relate to a driver’s eligibility to drive, they
may bear on the competence inquiry. See Brewster v. S. Home Rentals, LLC, No.
3:11CV872-WHA, 2012 WL 5869282, at *2 (M.D. Ala. Nov. 19, 2012) (considering evidence of
policy violations which would result in a determination that an employee is not eligible to drive).
Also, in addition to objective policy compliance or violation, an entrustor’s evaluation of the
driver’s ability to drive also can be relevant evidence. See Edwards, 926 So. 2d at 324 (considering
testimony by the owner of the vehicle that he considered the driver an unreliable operator of the
vehicle and noting with approval another decision which found that testimony by the entrustor that
the entrustee was a reckless driver was evidence of the entrustee’s incompetence sufficient to
preclude a directed verdict).
In this case, Trinidad has provided evidence from Brock to show that RDB Trucking policy
was violated, that Brock agreed it had been violated, and that in Brock’s view of the policies, they
are policies which promote safe driving. Brock agreed in his deposition that Moore’s violations
of company policy were a “big problem” which deserved “serious action.” (Doc. #54-3 at p.
90-8-9; 96: 22-97:1). On a page of his deposition provided to the court, Brock agrees that he
cannot keep drivers who continue to break the rules because “it’s unsafe driving.” (Doc. #54-3 at
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p.96: 7). Brock further agreed that more than safety ratings are involved because “people can get
killed,” and agreed that that was why they needed to be strict and take serious action. (Doc. #54-3
at p. 96: 10-14, 17-97:1). The court concludes that Brock’s testimony would allow a reasonable
finder of fact to conclude that the RDB Trucking policies violated were safety policies, and that in
RDB Trucking’s view, Moore had engaged in unsafe practices.
This case, therefore, is different from other cases cited by the Defendants in which only the
driving record is relied upon because, in addition to evidence that Moore had eight infractions,
including an accident which RDB Trucking appeared to deem preventable, there is testimonial
evidence that company policies served safety interests, and that the driver of the vehicle violated
those policies. Considering this evidence in a light most favorable to the nonmovant, the court
cannot conclude as a matter of law that Trinidad has failed to present sufficient evidence of
incompetence. See Brewster, 2012 WL 5869282, at *3 (finding sufficient evidence of negligent
entrustment based on evidence of three speeding tickets, an accident subsequent to hire, and
violations of company policies relevant to driver eligibility).
RDB Trucking also argues that even if there were evidence to create a question of fact as to
Moore’s competence as a driver, Trinidad can point to no evidence of notice or causation.
Liability for negligent entrustment “will be imposed only when negligence is the
proximate cause of injury; injury must be a natural and probable consequence of the negligent act
or omission which an ordinarily prudent person ought reasonably to foresee would result in
injury.” Beason v. Gross, No. 3:07-CV-788-WKW WO, 2010 WL 431227, at *5 (M.D. Ala. Feb.
1, 2010) (quoting Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976)).
RDB Trucking argues, without citation to authority, that to establish notice and causation,
Moore’s incompetence known to RDB Trucking must have related to failure to keep a proper
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look-out and improper lane changes, because that is Trinidad’s theory for how the accident at issue
occurred. Because a question of fact has been created as to general incompetence, however, and
because there are questions of fact as to the cause of the accident, the court concludes that the
evidence presented also creates questions of fact as to notice and proximate cause. A reasonable
finder of fact could conclude that a reasonably prudent person with knowledge of Moore’s
infractions and violations of safety policy ought to foresee injury resulting from the entrustment
of a vehicle to Moore.
RDB Trucking also moves for summary judgment on Trinidad’s separate claim that RDB
Trucking failed to properly equip the vehicle. RDB Trucking states that there is no evidence that
RDB Trucking failed to maintain the vehicle, inspect, or equip and secure the vehicle. In
response, Trinidad states that he does not intend to pursue negligence claims based directly on
RDB Trucking’s failure to maintain the vehicle. (Doc. #54 at p.28). Summary judgment is due to
be GRANTED as to that claim in Count II.
B. Wantonness
Wantonness is the conscious doing of some act or the omission of some duty while
knowing of the existing conditions and being conscious that injury will likely or probably result.
Bozeman v. Central Bank of the South, 646 So. 2d 601 (Ala. 1994).
RDB Trucking states that Trinidad has no evidence to contradict Moore’s testimony that he
did not think he was putting anyone in danger and did not see Trinidad’s truck until he already had
pulled out into the road.
Trinidad does not respond with any evidence to establish that Moore was wanton in his
driving. Summary judgment is, therefore, due to be GRANTED as to a wantonness claim against
Moore individually. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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Rather than pursue a claim against Moore, Trinidad instead argues that RDB Trucking was
wanton because it knew of Moore’s numerous driving violations, even arguing that RDB Trucking
changed the records regarding one action and cause the violation in another regard, and chose not
to pursue sufficient corrective action.
A “claim for wanton entrustment requires a slightly modified analysis because wantonness
involves a more aggravated state of mind than that required for negligent entrustment” including a
showing of knowledge that “entrustment would likely or probably result in injury to others.” Davis
v. Edwards Oil Co. of Lawrenceburg, No. 2:10-CV-2926-LSC, 2012 WL 5954139, at *4 (N.D.
Ala. Nov. 28, 2012). While it is clear that RDB Trucking was aware of Moore’s infractions, and
a question of fact has been raised as to whether injury was foreseeable, even viewed in a light most
favorable to the non-movant, the court cannot conclude that a sufficient question of fact has been
raised as to knowledge that entrustment of a vehicle to Moore would likely or probably result in
injury to others. See Brewster, 2012 WL 5869282, at *4 (denying summary judgment as to
negligent entrustment but granting as to wanton entrustment where evidence, including evidence
of violation of policies, did not rise to the level of knowledge that entrustment would likely or
probably result in injury to others).
V. CONCLUSION
For the reasons discussed, the partial Motion for Summary Judgment (Doc. #45) is
GRANTED in part and DENIED in part as follows:
1. The Motion is GRANTED and judgment is entered in favor of Daniel Joe Moore, Jr.
and RDB Trucking, LLC and against the Plaintiff on his claim in Count II for
negligent failure maintain or properly equip the commercial vehicle and all
wantonness claims in Count III.
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2. The Motion is DENIED as to the negligent entrustment claim in Count II.
The case will proceed on the negligence claims in Count I and the negligent entrustment claim in
Count II.

Done this 11th day of August, 2016.

/s/ W. Harold Albritton______________________
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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