Beason v. Gross

Filing 64

MEMORANDUM OPINION AND ORDER, granting 51 Gross's MOTION for Summary Judgment; and granting Mott's 50 MOTION for Summary Judgment. Signed by Honorable William Keith Watkins on 2/1/2010. (jg, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION J O S E P H BEASON, P l a in tif f , v. E V E L Y N GROSS, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 3:07-CV-788-WKW [WO]

M E M O R A N D U M OPINION AND ORDER P la in tif f Joseph Beason ("Beason") brings this action against Defendants Evelyn G ro s s ("Gross"), Tonnie Mott ("Mott"), and "Fictitious Party C," alleging claims for n e g lig e n c e and negligent entrustment arising out of an automobile accident. This cause is b e f o re the court on Mott's and Gross's motions for summary judgment (Docs. # 50, 51) and M o tt's supplemental motion for summary judgment (Doc. # 52). Beason opposes the m o tio n s . (Docs. # 56, 57.) After careful consideration of counsels' arguments, the relevant la w , and the record as a whole, the court finds that the motions are due to be granted. I. JURISDICTION AND VENUE S u b je c t matter jurisdiction is exercised pursuant to 28 U.S.C. § 1332. The parties do n o t contest personal jurisdiction or venue, and there are adequate allegations in support of e a ch .

I I . BACKGROUND T h is case arises out of an automobile accident that occurred on December 30, 2006, in Russell County, Alabama. (Am. Compl. ¶ 3.) On that date, a 2002 Kia Spectra, owned b y Gross, collided with a vehicle driven by Deputy Sheriff David Walters ("Walters"). (Am. C o m p l. ¶ 5.) Beason, a passenger in the vehicle driven by Walters, was injured as a result o f the collision. (Am. Compl. ¶¶ 5, 21.) The driver of the Kia Spectra fled the scene. (B e a s o n Dep. 49 (Doc. # 51, Ex. C).) A lth o u g h the parties dispute who was driving Gross's vehicle at the time of the a c cid e n t, it is undisputed that at some time prior to the accident, Gross gave Mott permission to drive her vehicle to the store to buy alcohol. (Mott Dep. 72 (Doc. # 51, Ex. A); Gross D ep . 99 (Doc. # 51, Ex. B).) The parties contest the date on which Mott drove Gross's v e h ic le and what happened while the vehicle was in Mott's possession. A c c o rd in g to Mott, Gross gave him permission to drive her vehicle to the store on D e c em b e r 14 or 15, 2006, over two weeks before the accident. (Mott Dep. 24-25.) On the w a y to the store, Mott noticed a woman walking along Fontaine Road. (Mott Dep. 73-74.) H e stopped, got out of the vehicle, and asked the woman if she needed a ride. (Mott Dep. 7 5 .) After agreeing to give her a ride, and while the keys were in the ignition, Mott left the v e h icle unattended to use the bathroom behind a bus stop. (Mott Dep. 75, 79.) While Mott w a s out of the vehicle, the woman jumped in and drove off. (Mott Dep. 75-76, 79.)

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M o tt contends that he ran back to his friend Curtis Mosley's ("Mosley") house, told h im what happened, and then took off on foot in an attempt to find the vehicle. (Mott Dep. 8 1 -8 8 .) At some point, Mott collapsed on the side of the road (Mott Dep. 95) and the p a ra m e d ic s and police were called. (Mott Dep. 95-100; Campbell Aff., Attach. 1 (Doc. # 52, E x . E).) According to Sergeant Michael Campbell's ("Sergeant Campbell") incident report, th e following occurred: "On December 14th, 2006 at about 1116 Hrs Tonnie Mott was tr ea ted for exhaustion from walking by Mt. Olive Fire Dept." (Campbell Aff., Attach. 1.) C a m p b e ll further stated in his affidavit that "Mr. Mott asked what needed to be done to re p o rt a stolen vehicle." (Campbell Aff. ¶ 4.) Mott contends that he notified Gross that her v e h ic le had been stolen and that instead of filing a police report, Gross told Mott to go find h er vehicle. (Mott Dep. 103-04.) Beason proposes a different set of facts. According to Beason, Gross lent Mott her v e h ic le on the afternoon of December 29, 2006, and Mott was in the vehicle (either as the d r iv e r or a passenger) at the time of the accident on December 30, 2006. In support of these c o n te n tio n s , Beason cites (1) Gross's testimony that Mosley told her that when Mott returned th e morning after he borrowed Gross's vehicle, Mott told Mosley that he had been in a wreck (G ro s s Dep. 58-63); (2) Gross's testimony regarding her belief as to who was driving the v e h ic le at the time of the accident (Gross Dep. 83-85, 99, 102); and (3) the credibility of M o tt's statements generally (see Pl.'s Resp. Br. 19 (Doc. # 57)).

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B e a so n filed his Second Amended Complaint on May 20, 2008, alleging negligence a g a in s t Mott and negligent entrustment against Gross. (Am. Compl.) Mott and Gross filed s e p a ra te motions for summary judgment on September 3, 2009 and September 4, 2009, re s p e c tiv e ly. (Docs. # 50, 51.) I I I . STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m atter of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam); Fed. R. Civ. P. Rule 56(c) (Summary judgment "should be rendered if th e pleadings, the discovery and disclosure materials on file, and any affidavits show that th e re is no genuine issue as to any material fact and that the movant is entitled to judgment a s a matter of law."). The party moving for summary judgment "always bears the initial r e sp o n s ib i lity of informing the district court of the basis for its motion, and identifying those p o rtio n s of [the record, including pleadings, discovery materials and affidavits], which it b e lie v e s demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tre tt, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence in d ic a tin g there is no dispute of material fact or by showing that the nonmoving party has f a il e d to present evidence in support of some element of its case on which it bears the u ltim a te burden of proof. Id. at 322-24.

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If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); C e lo t e x Corp., 477 U.S. at 324; Fed. R. Civ. P 56(e)(2) ("When a motion for summary ju d g m e n t is properly made and supported, an opposing party may not rely merely on a lleg a tio n s or denials in its own pleading; rather, its response must . . . set out specific facts s h o w in g a genuine issue for trial."). What is material is determined by the substantive law a p p lic a b le to the case. Celotex Corp., 477 U.S. at 248; Lofton v. Sec'y of the Dep't of C h i ld r e n & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that a r e material under the substantive law governing the case will preclude entry of summary ju d g m e n t." ). Furthermore, "[t]he mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (p e r curiam) (internal quotation marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). H o w e v e r, if the evidence on which the nonmoving party relies, "is merely colorable, or is not s ig n if ic a n tly probative, summary judgment may be granted." Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 249-50 (1986) (citations omitted). "A mere `scintilla' of evidence

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s u p p o rtin g the [nonmovant's] position will not suffice; there must be enough of a showing th a t the [trier of fact] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1 5 7 7 (11th Cir. 1990), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith R a d io Corp., 475 U.S. 574, 587 (1986). Conclusory allegations based on subjective beliefs a re likewise insufficient to create a genuine issue of material fact and do not suffice to o p p o s e a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th C ir. 1997) (per curiam) (A plaintiff's "conclusory assertions . . . in the absence of supporting e v id e n c e , are insufficient to withstand summary judgment."). Hence, when a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient to establish the e x is te n c e of an element essential to his case and on which the plaintiff will bear the burden o f proof at trial, summary judgment is due to be granted in favor of the moving party. C e lo te x Corp., 477 U.S. at 323 ("[F]ailure of proof concerning an essential element of the n o n m o v in g party's case necessarily renders all other facts immaterial."). Thus, in cases where the evidence before the court is admissible on its face or can be red u ce d to admissible form and indicates there is no genuine issue of material fact, and where the party moving for summary judgment is entitled to it as a matter of law, summary ju d g m e n t is proper. Celotex Corp., 477 U.S. at 323-24 (summary judgment appropriate w h e re pleadings, evidentiary materials and affidavits before the court show there is no g en u ine issue as to a requisite material fact).

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I V . DISCUSSION A. N eg lig en ce Against Mott B e a so n contends that on December 30, 2006, Mott "negligently and/or wantonly o p e r a t e d a motor vehicle owned by Evelyn Gross and caused the same to collide with the v e h ic le . . . in which the Plaintiff was a passenger." (Compl. ¶ 10.) In the alternative, B e a so n contends that Mott was negligent in allowing "Fictitious Party C with permission to u s e and operate the automobile while he was a passenger in the same at the time of the ac cide n t in question." (Compl. ¶ 15.) In his motion for summary judgment, Mott argues that Beason has failed to produce an y evidence that Mott was either driving Gross's vehicle or was a passenger in Gross's v eh icle on December 30, 2006, when the accident occurred. (Mott's Summ. J. Br. 6.) In o th e r words, Mott contends that Beason has not presented sufficient evidence to establish the c a u s a tio n element of his negligence claims. See Albert v. Hsu, 602 So. 2d 895, 897 (Ala. 1 9 9 2 ) ("The elements required for recovery under a negligence theory are: (1) duty, (2) b rea ch of duty, (3) proximate cause, and (4) injury." (emphasis added) (citing John R. C o w le y & Bros., Inc. v. Brown, 569 So. 2d 375, 379 (Ala. 1990)). Because Mott has d e m o n s tra te d a lack of evidence in this regard, the burden shifts to Beason to establish that a genuine issue of material fact exists as to the causation element. See Clark, 929 F.2d at 6 0 8 ; Celotex Corp., 477 U.S. at 324. Beason has failed to meet his burden.

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B e a so n goes to great lengths to point out the inconsistencies between Mott's and G ro ss 's deposition testimony, thereby attempting to discredit Mott's version of the facts. A c c o rd in g to Beason, Mott's "version of what happened is so incredible that no one could re a so n a b ly believe what he is saying is the truth." (Pl.'s Resp. Br. 21.) Beason is tasked, h o w e v e r, with providing evidence that Mott caused the accident at issue. Thus, even if the c o u rt were to find Mott's version of the facts to be impossible and disregard Mott's testimony in its entirety, Beason still has the burden of pointing to some evidence that Mott was either d r iv i n g the vehicle or was a passenger in the vehicle on the date in question. He must do so b y producing evidence that would allow a reasonable fact-finder to return a verdict in his fa v o r, Greenberg, 498 F.3d at 1263; Waddell, 276 F.3d at 1279. The court will not consider c le a rly inadmissable evidence. Beason attempts to meet his burden by pointing to (1) Gross's testimony that Mosley to ld her that when Mott returned that night, Mott told Mosley that he had been in a wreck and (2 ) Gross's testimony regarding her belief that Mott was driving the vehicle at the time of the a c c id e n t. This evidence, however, is clearly inadmissible. Mosley's statement to Gross a b o u t what Mott told Mosley is inadmissable double hearsay. Rule 805 of the Federal Rules o f Evidence states that "hearsay included within hearsay is not excluded under the hearsay ru le if each part of the combined statements conforms with an exception to the hearsay rule." T h u s , this evidence is admissible only if both out of court statements ­ i.e., Mott's statement to Gross and Mosley's statement to Mott ­ are admissible in their own right. Although

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M o tt's statement to Mosley would be admissible standing alone as an admission of a partyo p p o n e n t, see Fed. R. Evid. 801(d)(2) (admission by a party-opponent not hearsay), Mott's sta tem e n ts are nonetheless inadmissable because they come through Mosley's statements to G ro s s , which, when offered for the truth of the matter asserted, are inadmissible hearsay. S e e Fed. R. Evid. 801(c), 802 (defining hearsay as an out of court statement offered for the tru th of the matter asserted). In other words, Mosley's out of court statement to Gross is o f f e re d for the truth of the matter asserted, i.e., that Mott did in fact tell Mosley that Mott was in v o lv e d in the accident. Therefore, the court will not consider Gross's testimony about the c o n te n t of what Mosley told her. Likewise, Gross's testimony concerning her belief about w h a t happened during the accident is inadmissable, as such testimony is irrelevant and not b a se d on personal knowledge. Fed. R. Evid. 401, 402. T h u s , although Beason attacks Mott's credibility and demonstrates various in c o n sis te n c ie s and contradictions in his testimony, he fails to produce admissible evidence t h a t Mott was present at the scene of the accident.1 Beason has therefore failed to present e v id e n c e creating a genuine issue of material fact as to the causation element of his n e g lig e n c e claims against Mott, and Mott's motion for summary judgment is due to be g ra n te d on this basis.

In fact, Sergeant Campbell's affidavit and accompanying incident report corroborate Mott's story ­ that the vehicle was stolen in mid-December and that Mott collapsed of exhaustion after running around searching for the vehicle after it was stolen. (Campbell Aff., Attach. 1.)

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B.

N e g l ig e n t Entrustment Against Gross B e a so n next contends that Gross, in allowing Mott to driver her vehicle, is liable for

n e g lig e n t entrustment. However, because there is no genuine issue of material fact as to w h e th e r Mott was in Gross's vehicle at the time of the accident on December 30, 2006, the n e g lig e n t entrustment claim against Gross falters. Liability for negligent entrustment "will be imposed only when negligence is the p ro x im a te cause of injury; injury must be a natural and probable consequence of the n e g lig e n t act or omission which an ordinarily prudent person ought reasonably to foresee w o u ld result in injury." Vines v. Plantation Motor Lodge, 336 So. 2d 1338, 1339 (Ala. 1 9 7 6 ). Thus, to the extent Beason argues that Gross should be liable even if the car was s to l e n and not in Mott's possession at the time of the accident, Beason's claim likewise fails. E v e n if Mott was an incompetent driver and Gross had knowledge of the same when she a llo w e d him to drive her vehicle, it was not reasonably foreseeable that (1) Mott would leave th e vehicle with the keys in the ignition and (2) a stranger would then steal the vehicle and c o llid e with the Sheriff's inmate-transportation vehicle. See id. at 1340 (stating that "the c o n se q u e n c e s of the theft were too remote to be reasonably foreseeable"); see also Penland v . Allsup, 527 So. 2d 715, 716 (Ala. 1988). Beason has therefore failed to present a genuine is s u e of material fact that Gross's alleged entrustment of her vehicle to Mott was the p ro x im a te cause of the injuries at issue, and Gross's motion for summary judgment is due to b e granted on this basis

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V . CONCLUSION A c c o r d in g ly, it is ORDERED as follows: (1 ) G ro s s 's motion for summary judgment on Beason's negligent entrustment c la im is GRANTED; and (2) M o tt's motion for summary judgment on Beason's negligence claims is GRANTED. An appropriate Judgment will be entered separately. DONE this 1st day of February, 2010. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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