Claussen v. PowerSecure, Inc. (JOINT ASSIGN)

Filing 73

MEMORANDUM OPINION AND ORDER: the Court ORDERS as follows: 1. Defendant PowerSecure's 42 Motion for Summary Judgment is GRANTED as to Count 1, Count 3 as regards negligent hiring and negligent retention, and Count 4; 2. Defendant PowerSecur e's 42 Motion for Summary Judgment is DENIED as to Count 3 as regards negligent supervision and Count 5; 3. Defendant PowerSecure's 43 Motion to Exclude the Opinions of Roland Brown is GRANTED IN PART AND DENIED IN PART; 4. Defendant PowerSecure's 53 Motion to Strike is DENIED AS MOOT, as further set out in order. Signed by Honorable Judge Andrew L. Brasher on 10/7/2019. (kr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
TOM CLAUSSEN,
Plaintiff,
v.
POWERSECURE, INC.,
Defendant.

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NO. 3:18-CV-00607-ALB-SMD

MEMORANDUM OPINION AND ORDER
This is a wrongful death case arising from a truck wreck. The matter comes
to the Court on a motion for partial summary judgment filed by Defendant
PowerSecure, Inc. (“Defendant”). See Doc. 42. Defendant also filed a motion to
exclude the expert opinions of Roland Brown, Doc. 43, and a motion to strike
Plaintiff’s request for a spoliation sanction and an objection to certain evidence, Doc.
53. Plaintiff Tom Claussen, as a Personal Representative of the Estate of Gwendolyn
Campbell Claussen, deceased, (“Plaintiff”), opposed the motion for partial summary
judgment, Doc. 48, the motion to exclude Brown’s opinions, Doc. 48, and the motion
to strike the request for spoliation and object to evidence, Doc. 65.
Plaintiff filed a five-count Complaint against Defendant, alleging that its
employee Harry Greathouse (“Greathouse”) caused the wreck that took Dr.
Gwendolyn Claussen’s life while driving a company truck. Count 1 alleges that
Greathouse was wanton or reckless and seeks damages under the theory of
respondeat superior. Count 2 alleges that Greathouse was negligent and seeks
damages under the theory of respondeat superior. Count 3 alleges that Defendant
was negligent in (a) hiring, (b) retaining, and/or (c) supervising Greathouse. Count
4 alleges Defendant negligently trained Greathouse. Count 5 alleges Defendant
negligently entrusted Greathouse with the truck he was driving.

2

Defendant moves for summary judgment on Counts 1, 3, 4, and 5. Upon
consideration, the Court concludes that the motion for partial summary judgment is
due to be GRANTED IN PART and DENIED IN PART. The motion to exclude
the expert opinions of Roland Brown is also due to be GRANTED IN PART and
DENIED IN PART. Based on the reasoning herein, the motion to strike is
DENIED AS MOOT.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if there is no genuine issue as to any material
fact and ... the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Fed. R. Civ. P. 56(a). 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 “which 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 “go beyond
the pleadings” and show that there is a genuine issue for trial. Id. at 324. Both the
party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely
disputed, must support their assertions by “citing to particular parts of materials in
the record,” or by “showing 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
3

under Rule 56(c)(1)(A) include “depositions, 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).
BACKGROUND
The submissions of the parties establish the following facts, construed in a
light most favorable to the non-movant:
In April 2018, Greathouse was driving one of Defendant’s trucks on his way
home from work when he struck Claussen’s SUV. The accident happened at an
intersection where a two-lane road intersects the four-lane Highway 280. Greathouse
did not fully stop at the stop sign for the intersection, traveled across Highway 280’s
two eastbound lanes and through the median without slowing, and struck Claussen’s
SUV as she was traveling on Highway 280 going west.
Claussen died as a result of her injuries.
Greathouse was not under the influence of alcohol or drugs at the time of the
accident. He was also not texting or talking on either of the two phones (a work
4

phone and a personal phone) mounted in the vehicle. He was wearing the corrective
lenses that he is required to wear to drive. He was driving at or under the speed
limit.
At the time of the accident and for many years before, Greathouse held a
Commercial Driver’s License (“CDL”) issued by the State of Alabama. From 1992
to 1996, Greathouse received ten citations for traffic violations. In December 1996,
Alabama suspended Greathouse’s CDL for these violations. While his Alabama
license was suspended, Greathouse secured a license from Kentucky, which also
suspended his license once the Kentucky authorities discovered the Alabama
suspension. Alabama reinstated the license in 1997. Greathouse received additional
tickets for speeding in 1999 and 2005.
Defendant hired Greathouse in August 2016. When he applied to work for
Defendant, Greathouse checked the “Yes” box on a form next to “Has any license,
permit, or privilege ever been suspended or revoked.” But he did not provide
additional details, and no one asked him to provide those details. Defendant ran a
three-year check on Greathouse’s driving history, which showed no accidents or
traffic violations. Defendant also secured a verification from Greathouse’s former
employer that he had no safety performance issues over the previous 14 years.
Defendant also made Greathouse successfully complete a road test.

5

On December 31, 2016, Greathouse attended a New Year’s Eve party in
Oklahoma at the home of one of his supervisors. When driving home in a coworker’s personal vehicle, he was stopped by police, taken to jail, and charged with
driving under the influence of alcohol and for failure to wear a seatbelt. Greathouse
had a 0.14 blood alcohol level and was, in fact, intoxicated.
The DUI charge set off a series of legal proceedings in Oklahoma. Greathouse
received a notice that his driver’s license would be revoked for 180 days because of
the DUI. But his attorney appealed the revocation and Greathouse received a
temporary license pending the outcome of an administrative hearing. In October of
2017, he pled nolo contendere to a lesser included offense of driving while
intoxicated. Under an Oklahoma statute, the court deferred judgment on the DWI
plea and required Greathouse to pay a fine, complete an alcohol and substance abuse
course, and attend a victim impact panel. Judgment and sentencing were deferred
until October 2019. Greathouse informed his supervisors of the arrest, the related
legal proceedings, and that he believed the DWI charge would be expunged from his
record due to the deferred judgment.
After his arrest for DUI but before the final resolution of the Oklahoma legal
proceedings, Defendant gave Greathouse the truck that killed Dr. Claussen.

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DISCUSSION
As noted, Defendant has moved for summary judgment on Counts 1, 3, 4, and
5. Plaintiff does not oppose summary judgment on the negligent training claim in
Count 4. See Doc. 48 at 8. Accordingly, summary judgment is due to be granted on
that Count. The other counts are discussed below.
Count 1—Wantonness
To hold a defendant liable for wanton conduct in Alabama, a plaintiff must
establish a high degree of culpability. While negligent conduct is characterized by
“inattention, thoughtlessness, or heedlessness” and “a lack of due care,” Monroe v.
Brown, 307 F.Supp.2d 1268, 1271 (M.D. Ala. 2004), wantonness is characterized
by “a conscious act.” Ex parte Essary, 992 So.2d 5, 9 (Ala. 2007) (internal citations
omitted). Wantonness is willful misconduct undertaken with the knowledge that the
likely or probable result will be injury, that is, with a conscious disregard for the
rights or safety of others. See, e.g., Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250,
1256 (Ala.1998); Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994).
Wantonness can also be established by reckless disregard for the rights or safety of
others. See Ala. Code § 6–11–20(b)(3). Wantonness is, therefore, “[c]onduct which
is carried on with a reckless or conscious disregard of the rights or safety of others.”
Id. Because negligence is the “inadvertent omission of duty,” and wantonness is
about the “state of mind with which the act or omission is done,” Essary, 992 So.2d
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at 9, the Alabama Supreme Court has explained: “Wantonness is not merely a higher
degree of culpability than negligence. Negligence and wantonness, plainly and
simply, are qualitatively different tort concepts of actionable culpability.” Tolbert v.
Tolbert, 903 So.2d 103, 114 (Ala.2004) (internal citations omitted).
The question of wantonness often arises in car wreck cases. See, e.g., Essary,
992 So. 2d at 6–9; Scott v. Villegas, 723 So. 2d 642, 642–43 (Ala. 1998). In
Alabama, drivers are presumed to not engage in self-destructive behavior. Essary,
992 So. 2d at 12. Therefore, a defendant’s behavior presumptively lacks the
culpability required for wantonness when it creates a “risk of injury to [himself] ...
as real as any risk of injury to the plaintiffs.” Id. Applying this presumption, the
Alabama Supreme Court has held that a driver’s failure “to bring his vehicle to a
complete stop at the stop sign . . . before driving his vehicle into the intersection and
causing the accident is not, in and of itself, substantial evidence of wantonness.”
Thomas v. Heard, 256 So. 3d 644, 659–60 (Ala. 2017), reh'g denied (Jan. 26, 2018).
Instead, for a plaintiff to establish wantonness in a case like this one, he must point
to “evidence of impaired judgment, such as from the consumption of alcohol” or
conduct that is so “inherently reckless” that it signals the kind of “depravity
consistent with disregard of instincts of safety and self-preservation.” See Essary,
992 So. 2d at 12.

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Plaintiff makes three arguments that there is substantial evidence of wanton
conduct here. See Doc. 48 at 74-96.
First, Plaintiff argues that Defendant’s failure to conduct a complete
investigation into the cause of the accident shows wantonness. This theory asserts
wantonness on Defendant’s part, not Greathouse’s part.

But Count 1 in the

complaint is for vicarious, and not direct, liability. See Doc. 1 at 3. In any event,
Defendant’s failure to determine whether Greathouse was at fault in the accident is
not substantial evidence that Defendant “carried on with a reckless or conscious
disregard of the rights or safety of others.” Ala. Code § 6–11–20(b)(3). This case
is plainly distinguishable from cases where the Alabama courts have held that
wantonness may be established by a defendant’s failure to take remedial steps to
prevent similar injuries from occurring in the future. See Doc. 48 at 95 n.250.
Second, Plaintiff points to Greathouse’s driving activity itself—driving
through a stop sign without completely stopping and across a divided highway
without substantially slowing down. But this is exactly the kind of conduct that—
standing alone—the Alabama Supreme Court has held to be insufficient to show
wantonness. See Thomas, 256 So. 3d at 659; Essary, 992 So. 2d at 6–9; South
Central Bell Tel. Co. Branum, 568 So. 2d 795, 796 (Ala. 1990).
Third, Plaintiff argues that Greathouse was distracted by his cell phones at the
time of the wreck. The parties do not dispute that especially distracted driving may
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rise to the level of wantonness under Alabama law when combined with other facts,
such as excessive speed or bad weather conditions. See, e.g., Green v. Markovitch,
385 F. Supp. 3d 1190, 1193 (N.D. Ala. 2019) (driver talking on cell phone in heavy
traffic). Instead, Defendant argues that there is no substantial evidence that
Greathouse was using his phones at the time of the accident and that his conduct
does not otherwise rise to the level of wantonness.
Specifically, Defendant argues that Greathouse denied using his phones and
that his phone records show that he was neither talking nor texting during the
applicable time period. In response, Plaintiff argues that circumstantial evidence
creates a genuine issue of material fact on this question, notwithstanding the absence
of direct evidence that Greathouse was using a cell phone at the time of the wreck.
That circumstantial evidence includes: (1) that Greathouse had two cell phones
mounted around the dashboard of his car, which were powered on at the time of the
wreck, (2) that at least one cell phone could be used for “apps,” social media, and
other Internet-related uses in addition to texting and voice calls, (3) that the nature
of the wreck and Greathouse’s inability to explain why he did not see Dr. Claussen’s
car are substantial evidence that his statements about using his phones are not
credible, and (4) that Greathouse continued to use one or more of his cell phones
after the wreck, which would have wiped evidence of internet and “app” usage from
the phone.
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The Court assumes, without deciding, that Plaintiff has adduced sufficient
evidence to raise a genuine issue of fact as to whether Greathouse was using one of
his cell phones for an “app” at the time of the wreck. 1 But the Court disagrees that
Alabama law supports the proposition that a driver’s unspecified use of a cell phone
rises to the level of wanton behavior. It is almost certainly negligent to be distracted
by one’s cell phone while driving. But it is not illegal under Alabama law to use a
cell phone while driving except in limited circumstances. See Ala. Code § 32-5A350 (banning use of phones for texting, but expressly allowing other uses). And the
unspecified use of a cell phone in a car is not “so inherently reckless that it would
signal the kind of depravity consistent with disregard of instincts of safety and selfpreservation.” Jinright v. Werner Enterprises, Inc., 607 F. Supp. 2d 1274, 1276-1277
(M.D. Ala. 2009). To hold otherwise would undermine the Essary presumption and
make many, if not most, car wreck cases about wantonness instead of negligence.
See, e.g., James v. Krall, 2018 WL 9392747 (Va. Cir. Ct. June 21, 2018) (dismissing

1

Plaintiff argues that he should be allowed to argue a spoliation inference to the jury based on
Greathouse’s continued use of the cell phones after the wreck. Because the Court is assuming for
the sake of argument that Plaintiff can adduce substantial evidence that Greathouse was using one
of his phones at the time of the wreck, the Court need not reach this issue. The Court notes that
Plaintiff never requested that Greathouse stop using his cell phones, see Doc. 47-28; Doc. 47-29,
and there is no evidence of bad faith or intent that would warrant the extreme sanction of an adverse
inference instruction, see, e.g., Mann v. Taser Intern., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009);
Fed. R. Civ. P. 37(e)(2). Accordingly, the Court is not presently satisfied that a spoliation
instruction is appropriate. If Plaintiff still wants to argue a spoliation inference to the jury at trial,
he should file a motion in limine on the issue in enough time for the Court to hold a hearing before
trial.
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wantonness claim under Virginia law because “[u]sing a cell phone while driving is
undoubtedly potentially dangerous, but . . . it is in fact, unfortunately, an extremely
common practice.”).
For these reasons, no Alabama court has held that a driver’s decision to use a
cell phone, without more, rebuts the Essary presumption and establishes wanton
conduct. Instead, courts hold that there is an inference of wanton conduct based on
a driver’s use of a cell phone only when other characteristics of the crash made the
use of a cell phone especially dangerous. See, e.g., Davis v. Automatic Food Serv.,
Inc., 2015 WL 7455544, at *3 (M.D. Ala. Nov. 23, 2015) (holding that “a reasonable
jury could find that abruptly stopping on a wet road in two-way traffic while talking
on a cell phone is ‘inherently reckless conduct’ and therefore constitutes
wantonness.”). In the Northern District of Alabama’s recent opinion in Green, for
example, the driver was talking on his cell phone when he decided to change lanes
in heavy traffic. He was also speeding. Despite these road conditions, the driver “did
not make sure that he was clear of Plaintiffs’ vehicle before merging into the right
lane.” Green, 385 F. Supp. 3d at 1196. Here, there is no evidence Greathouse was
using his phone to talk or text. And some cell phone “app” uses are expressly allowed
under Alabama law. See Ala. Code § 32-5A-350(e) (allowing use of phone for GPS).
Accordingly, assuming without deciding that a reasonable jury could find that
Greathouse was using an unspecified cell phone “app” at the time of the wreck, there
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was nothing about the road or weather that made this conduct especially dangerous
or reckless such that it could rise to the level of wantonness.
Defendant’s motion for partial summary judgment on the wantonness claim
is due to be granted.
Count 3—Negligent hiring
To establish negligent hiring “a plaintiff must demonstrate that the employer
knew, or in the exercise of ordinary care should have known, that its employee was
incompetent” when he was hired. Akers v. Sanderson Farms, Inc., No. 7:13-CVRDP, 2015 WL 114221, *6 (N.D. Ala. Jan. 8, 2015) (citing Britt v. USA Truck, Inc.,
2007 WL 4554027, *4 (M.D. Ala. 2007)) (emphasis added). “‘Incompetence’ is
defined as the ‘state or fact of being unable or unqualified to do something.” Askew
v. R&L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala. 2009) (quoting
Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 416 (Ala. 2005)). The Alabama
Supreme Court has determined that “the incompetence of a driver is measured by
the driver’s ability (or inability) to properly drive a vehicle.” Halford, 921 So. 2d at
413-14. This factor may be established by reference to a driver’s “general
incompetence” or “habitual negligence.” Edwards v. Valentine, 926 So. 2d 315, 322
(Ala. 2005).
There is no genuine issue over the material fact that Defendant was not
negligent when it hired Greathouse. When he was hired, Greathouse held a
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Commercial Driver’s License issued by the State of Alabama. Defendant ran a
three-year check on Greathouse’s driving history, which Plaintiff’s expert testified
was the industry standard, and that check showed no accidents or traffic violations.
Defendant secured a verification from Greathouse’s former employer that he had no
safety performance issues over the previous 14 years.

Defendant also made

Greathouse successfully complete a road test.
Plaintiff argues that Defendant was negligent for failing to uncover
Greathouse’s decades-old driver’s license suspension. But, assuming without
deciding that Defendant had a duty to uncover this information, it would still not
create a genuine issue of fact as to whether Greathouse was incompetent. “The law
requires that a driver have had a ‘demonstrated ability to properly drive a vehicle’;
it does not require that he have a record completely free of mistake.” Craft v.
Triumph Logistics, Inc., 107 F. Supp. 3d 1218, 1225 (M.D. Ala. 2015) (quoting
Askew, 676 F. Supp. 2d at 1303). And Alabama courts have been especially reluctant
to allow a negligent hiring claim when the driver’s accidents or speeding tickets were
in the distant past. See Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 52 (Ala.
1995) (“[Defendant]’s prior driving record—two speeding tickets and a suspended
prosecution of a DUI charge over a 10-year period—is not sufficient to support a
claim of negligent entrustment.”); Askew, 676 F. Supp. 2d at 1303 (finding that a
driver’s record of two moving violations and four minor accidents over an
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approximately nine-year period did not amount to incompetence). At the time
Greathouse was hired, he had held a CDL for almost 20 years, had no wrecks or
accidents within the prior three years, passed a driving test, and had no safety
performance issues with his prior employer over the course of 14 years. Even if
Defendant knew or had a duty to know that Greathouse had a suspended license 20
years before he was hired, it would not create a genuine issue of material fact as to
whether Greathouse was incompetent under Alabama law at the time he was hired.
Counts 3 & 5—Negligent Supervision and Entrustment
As with Plaintiff’s negligent hiring claim, Plaintiff must show for negligent
supervision and/or entrustment that Greathouse was incompetent to drive. E.g.
Akers, 2015 WL 114221 at *6. But Plaintiff’s negligent supervision and entrustment
claims focus on a different snapshot in time. Specifically, Plaintiff argues that
Defendant was negligent because it did not stop Greathouse from driving its truck
after his DUI arrest and nolo plea.
Plaintiff has two theories. First, Plaintiff argues negligence per se because
applicable regulations purportedly required the suspension of Greathouse’s CDL on
account of his arrest and plea. Second and in the alternative, Plaintiff argues that the
industry-wide standard of care, which is reflected in part by the regulations, required
Defendant to stop Greathouse from driving or adopt some other remedial measure.

15

Defendant makes four arguments for summary judgment on Plaintiff’s
negligence theory of liability. First, Defendant argues, correctly, that Plaintiff did
not raise negligence per se in his complaint. Second, Defendant argues that there is
no genuine dispute of fact that Greathouse was not incompetent to drive at the time
of the accident. Third, Defendant argues that, even if Greathouse was incompetent
to drive, Plaintiff lacks substantial evidence that Defendant knew or should have
known that he was incompetent. Fourth, Defendant argues that Plaintiff cannot
establish that its alleged negligence was the proximate cause of the accident.
As an initial matter, Defendant is correct that Plaintiff failed to raise the issue
of negligence per se in his complaint. It is clearly established precedent in this
Circuit that “for a plaintiff to assert negligence per se, such a claim must be included
in the complaint.” Zatarain v. Swift Transp., Inc., 776 F. Supp. 2d 1282, 1292 (M.D.
Ala. 2011). Even before Twombly and Iqbal, the liberal pleading standard for a
complaint did not allow a plaintiff to raise a new claim, such as negligence per se,
in opposition to a summary judgment motion. See Gilmour v. Gates, McDonald &
Co., 382 F.3d 1312, 1314 (11th Cir. 2004). Accordingly, Plaintiff is limited to
theories about general negligence.
Because Plaintiff’s newly proposed negligence per se claim is foreclosed, the
Court must determine whether Plaintiff has offered substantial evidence to make out
a claim under the law of negligent entrustment or negligent supervision. These
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theories of liability, respectively, fault an employer for entrusting an employee with
a vehicle despite evidence of his incompetence and for failing to reasonably
supervise that employee despite evidence of his incompetence.
The parties address these negligence claims together, and the Court will as
well. To proceed to trial on a claim of negligent supervision or entrustment in a case
like this one, a plaintiff must produce substantial evidence that (1) the employee was
negligent, (2) the negligence occurred because the employee was incompetent, (3)
the employer had actual or constructive notice of the incompetence, (4) the employer
failed to exercise reasonable care in supervising the employee after the point at
which the employer should have known about his incompetence, and (5) the
negligence of the employer was a proximate cause of the injury suffered by the
plaintiff.

See Jones Exp., Inc. v. Jackson, 86 So. 3d 298, 305 (Ala. 2010)

(supervision); Voyager Ins. v. Whitson, 867 So.2d 1065, 1073 (Ala. 2003)
(entrustment).
The Court holds that Plaintiff has adduced substantial evidence for a
reasonable jury to conclude that Greathouse was negligent (which is undisputed for
purposes of summary judgment), that he was incompetent to drive Defendant’s
vehicle at the time of the accident, that Defendant knew or should have known of
his incompetence, that Defendant failed to take reasonably prudent steps to

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ameliorate the incompetence, and that Defendant’s alleged negligence proximately
caused the accident.2
1. Incompetence
Plaintiff argues that Greathouse was incompetent to drive under a generally
applicable industry standard of care, which is reflected in various statutes and
regulations and evidenced by proposed expert testimony. Specifically, Plaintiff
argues that Greathouse was incompetent to drive Defendant’s vehicle under the
Alabama Uniform Commercial Driver License Act (“AUCDLA”) as set forth at Ala.
Code § 32-6-49.6(b)(1), the Alabama Public Service Commission Regulations
(“APSCR”) as set forth at Ala. Adm. Code § 770-X-10-.17-1-.07(1)(c), and the
Federal Motor Carrier Safety Regulations (“FMCSR”) as set forth at 49 C.F.R. §
383.37(b). The FMCSR, AUCDLA, and APSCR all generally disqualify the holder
of a commercial driver’s license (CDL) from operating a commercial motor vehicle
(CMV) for one year after a conviction for driving under the influence of drugs or
alcohol. See 49 C.F.R 383.51(a)(2); Ala. Code § 32-6-49.11(a)(1); Ala. Adm. Code
§ 770-X-10-.17-1-.07(1)(c). Plaintiff also has two experts who support his argument
2

Despite a passing reference to negligent retention in the complaint, Plaintiff does little to advance
it in the briefing. The main issue in this case is not whether Greathouse should have been fired,
but whether he should have been driving a company car at the time of the accident even if he was
still employed. Although Defendant argues in its motion for summary judgment that the retention
claim should be thrown out, Plaintiff does not meaningfully attempt to rehabilitate this allegation
as a separate stand-alone claim in his brief. See Doc. 42 at 10-12; Doc. 48. Accordingly, the
negligent retention clam is waived to the extent it is different or apart from the negligent
supervision claim.
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that Greathouse was incompetent to drive: Whitney Morgan and Roland Brown.
They paint a dismal picture of Defendant’s review of Greathouse’s DUI proceedings
in Oklahoma and Defendant’s failure to take away his driving privileges after his
nolo plea.
Defendant argues that (1) because the Oklahoma case resolved with a deferred
adjudication and the truck that killed Claussen weighed less than 26,001 pounds,
these regulations and statutes did not require that Greathouse be barred from driving
the truck he was driving at the time of the accident and (2) Roland Brown’s
testimony is inadmissible under Rule 702. Neither argument is persuasive.
First, Defendant’s arguments about the statutes and regulations miss the point.
Because there is no negligence per se claim, the remaining negligence issue is
whether Greathouse was incompetent to drive a commercial truck under an industry
standard of care. Taking the facts in the light most favorable to the nonmovant, these
statutes and regulations stand for the general proposition that a commercial driver
should not drive within a year of being convicted of a crime that involved driving
under the influence of drugs or alcohol. It may be that Greathouse’s Oklahoma nolo
plea and deferred adjudication are not technically convictions that trigger these
statutes and regulations. See Doc. 42 at 10 & n. 3 (Defendant arguing this point). It
may also be that the truck Greathouse was driving was a few thousand pounds too
light to be covered by one or more of these statutes. Compare 49 CFR § 383.5
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(driving ban applies to vehicles with sticker weight at or over 26,001 pounds) with
Ala. Code § 32-6-49.3(17) (driving ban applies to vehicles with registered weight at
or over 26,001 pounds). But the Plaintiff need not prove that Defendant violated
these statutes to establish a general negligence claim. Greathouse’s competency
under Alabama law does not turn on whether it was technically legal for him to drive.
Instead, Alabama “caselaw demonstrates . . . that we are solely concerned with a
person’s actual driving ability, not a legal disqualification.” Halford v. Alamo RentA-Car, LLC, 921 So. 2d 409, 415 (Ala. 2005).
Second, Defendant cannot get around Plaintiff’s experts. Although Defendant
moves to exclude the testimony of Brown, it does not ask the Court to disregard
Morgan’s anticipated testimony for the purposes of summary judgment.3 Morgan
proposes to testify that Defendant did not use best practices that comply with
industry standards. In his report, Morgan writes that “it is reasonable to believe, that
had Mr. Greathouse’s DUI/DWI arrest in January of 2017 been reported to the safety
department prior to the April 11, 2018 collision involving Dr. Claussen,

Defendant argues that Morgan and Brown’s expert reports are inadmissible at summary judgment
because they were not signed under penalty of perjury. See Doc. 53. Plaintiff argues that these
reports can be considered for summary judgment, in part, because these experts adopted them in
their depositions. See Doc. 65 at 7-8. Although it is better practice for a party opposing summary
judgment to submit a sworn declaration instead of an unsworn report generated for discovery, the
Court agrees with Plaintiff. See Estate of Rogers v. Globe Life, 2015 WL 412919, *7 (N.D. Ala.
2015) (“[i]n light of the fact that the Plaintiff has submitted sworn deposition testimony in which
Dr. Lauridson has attested to his opinions, this Court will consider his report on summary
judgment.”).
3

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PowerSecure would have disciplined/terminated him or sent him for the appropriate
regulatory required treatment…” See Doc. 48 at 37. This anticipated testimony—
from an unquestionably qualified expert—is sufficient for a reasonable jury to
determine that Defendant was negligent in allowing Greathouse to drive.
Although Defendant accepts Morgan’s expertise, Defendant moves to exclude
the testimony of Roland Brown. The Court concludes, and Defendant admits, that
Brown is qualified to give general opinions about customs and practices in the motor
carrier world. See Doc. 54 at 11. After all, Brown’s curricula vitae show decades
of experience working with motor carriers in various capacities and as a consultant
for at least the last 35 years. See Doc. 47-31. Defendant argues, however, that some
of his opinions, “are due to be stricken as legal conclusions.” See Doc. 43 at 1.
Defendant is correct in part. “[T]he law in this circuit pertaining to the admissibility
of an expert's opinion couched in legal terms is not crystal clear.” Hanson v. Waller,
888 F.2d 806, 811 (11th Cir. 1989). A non-lawyer expert cannot testify about the
meaning of a statute or regulation or about whether someone violated a law. See
Cooper v. Pac. Life Ins. Co., No. CV203-131, 2007 WL 430730, at *1 (S.D. Ga.
Feb. 6, 2007). But where “the substance of the expert's testimony concerns ordinary
practices and trade customs which are helpful to the fact-finder’s evaluation of the
parties’ conduct against the standards of ordinary practice in the [] industry, his
passing reference to a legal principle or assumption in an effort to place his opinions
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in some sort of context will not justify the outright exclusion of the expert’s
[testimony] in its entirety.” Id.
Brown’s expert report states that the failure to disqualify Greathouse from
driving after his Oklahoma nolo plea was a violation of industry standards and that
a prudent operator would not have allowed Greathouse to drive. See Doc. 43-1 at 5
¶¶ 7&11. Brown elaborates with vigor on those opinions in his deposition. See Doc.
42-11 at 101-103. Even though some of Brown’s opinions are tantamount to legal
conclusions, his opinions about industry standards are not. See Hannah v. Gregg,
Bland & Berry, Inc., 840 So. 2d 839, 852 (Ala. 2002) (holding “we do not
agree…that one statement by an expert witness explaining a legal standard in the
industry as to which that witness is an expert invalidates that portion of the expert's
testimony that does not pertain to that legal standard.”). Accordingly, Brown can
testify about industry standards of care, which may be reflected in regulations and
statutes, and he can testify about how a reasonable operator in the industry would
comply with these statutes and regulations. But he cannot testify that those statutes
and laws were violated as a matter of law, about the meaning of legal terms in, for
example, Oklahoma’s DUI statute, or the legal effect of Oklahoma’s deferred
adjudication.
Defendant also argues that Brown’s opinions about whether Greathouse
should be disqualified according to an industry standard are not reliable because he
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has no experience in the specific area of driver disqualification. See Doc. 54 at 11.
This is incorrect. “An expert is not necessarily unqualified simply because her
experience does not precisely match the matter at hand.” Furmanite Am., Inc. v. T.D.
Williamson, Inc., 506 F. Supp. 2d 1126, 1129 (M.D. Fla. 2007). Not all expert
testimony subject to Daubert is also subject to scientific reliability standards and a
court may decide that nonscientific expert testimony is reliable based upon
knowledge and experience. Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555
F.3d 1331, 1337 (11th Cir. 2009). Of course, if the witness is relying solely on
experience then he must explain how that experience leads to the conclusion reached
and why that experience is a sufficient basis for the opinion. Webb v. Carnival Corp.,
321 F.R.D. 420, 430 (S.D. Fla. 2017).
The Court is ever wary of simply “taking the expert’s word for it.” Id. Here,
however, this is not an issue. In his expert report, Brown was careful to tell the Court
that he was condemning certain failures based on their substandard nature in relation
to standard industry practice. See Doc. 43-1 at 3-5. Brown further explains the basis
of his opinions throughout his deposition. His opinions are based on “[his]
experience and [his] association with other companies who operate fleets of trucks
in discussion groups,” Doc. 42-11 at 33, “seminars that [he has] led and conduct[s]
with [his] clients,” id. at 52, and “the knowledge [he has] of the industry and [his]
exposure to other people other than just [his] own personal experience…discussion
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groups and question and answer periods…numerous, numerous discussion groups
and seminars,” id. at 62. This Court has held that an expert may rely on “specific
experience” such as his “prior review of other company’s . . . policies.” Lohr v.
Zehner, No. 2:12CV533-MHT, 2014 WL 2832192, at 5 (M.D. Ala. June 23, 2014).4
Plaintiff has produced substantial evidence that Defendant should not have allowed
Greathouse to drive Defendant’s truck after his DUI arrest and nolo plea.
2. Knowledge
“To prove a claim under Alabama law for . . . negligent entrustment, negligent
hiring, negligent supervision or negligent retention, a plaintiff must demonstrate that
the employer knew, or in the exercise of ordinary care should have known, that its
employee was incompetent.” Akers v. Sanderson Farms, Inc., No. 7:13-CV-RDP,
2015 WL 114221, 6 (N.D. Ala. Jan. 8, 2015) (citing Britt v. USA Truck, Inc., 2007
WL 4554027, 4 (M.D. Ala. 2007)). Defendant concedes that it had knowledge of
Greathouse’s initial arrest for drunk driving. See Doc. 42 at 9. It further concedes
that despite this notice, Greathouse’s supervisor did not report the arrest to the
PowerSecure safety department. Id. at 10. The supervisor did report, however, to

4

Defendant expends a great deal of energy attempting to distinguish Lohr, claiming that it is
different because, there, the court found that specific policies had been reviewed. In truth, the cases
are nearly indistinguishable. The court in Lohr was more concerned that there was some objective
process to which the witness could tether his opinion than that the process itself be in one form or
another. (2:12-cv-00533-MHT, Doc. 130-3 at 11)
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the Chief Operating Officer of PowerSecure’s Utility Division. See Doc. 42-8 at 52.
The undisputed fact that PowerSecure received notice that its employee was arrested
for a DUI is sufficient to raise a jury issue about PowerSecure’s knowledge of his
competency to drive.
In any event, Plaintiff’s experts also testified that the failure of management
to follow up on the case and to obtain confirmation from the Oklahoma courts was
negligent under industry standards. Id. at 102-104. Specifically, Brown made it
clear at his deposition that, because Greathouse’s supervisor admitted he had been
tracking the legal proceeding and knew that there was a potential drunk driving
conviction, he should have followed-up. Id. In addition, Brown testified that anyone
who is running a fleet of trucks the size of PowerSecure’s should know to stay on
top of all arrests that involve the possibility of a DUI conviction. This is substantial
evidence that Defendant knew, or in the exercise of ordinary care should have
known, that Greathouse was incompetent to drive.
3. Proximate Cause
Defendant also argues that there is no substantial evidence that its negligence
was the proximate cause of the accident. Alabama law defines proximate cause as
the “cause which, in the natural and probable sequence of events, and without the
intervention or coming in of some new or independent cause, produces the injury,
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and without which the injury would not have occurred.” Mobile Gas Serv. Corp. v.
Robinson, 20 So. 3d 770, 780 (Ala. 2009).
The Court has determined that there is enough evidence for a jury to find that
Defendant failed to act as a reasonably prudent business in light of prevailing
industry standards. Any negligence that a jury might attribute to Greathouse will not
be an intervening cause. In Alabama, the negligent use of a vehicle does “not
insulate the negligence inherent in the entrusting of the vehicle to a known
incompetent driver so as to break the chain of causation, when the driver’s
negligence resulted from his incompetent condition.” Blackmon v. United States,
130 F. Supp. 498, 499 (S.D. Ala. 1955). There is substantial evidence to support an
inference that Greathouse could be considered incompetent as a result of his nolo
contendere plea and that any negligence on his part was the direct result of that
incompetence.
Careful to construe all factual inferences in favor of the non-moving party, the
Court concludes that substantial evidence exists to allow a reasonable jury to find
proximate causation. Defendant knew that one of its drivers was arrested for a DUI.
If Defendant had kept itself adequately informed about the DUI case, it would have
learned of Greathouse’s plea. If it had learned of his plea, it would presumably have
acted as a reasonably prudent business and, in light of industry standards, prohibited
Greathouse from driving a company vehicle. This prohibition would have lasted
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through October 2018, one year after the plea. The accident, in which Greathouse
drove a company vehicle, took place in April 2018. In the natural and probable
sequence of events, Claussen’s injury was the reasonably foreseeable result of
PowerSecure’s negligence in entrusting a vehicle to and/or negligently supervising
Greathouse.
Plaintiff has adduced substantial evidence on each element of his negligent
entrustment and negligent supervision claims. Accordingly, summary judgment
must be denied as to those parts of Count 3 and all of Count 5.
CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1. Defendant PowerSecure’s Motion for Summary Judgment (Doc. 42) is
GRANTED as to Count 1, Count 3 as regards negligent hiring and
negligent retention, and Count 4.
2. Defendant PowerSecure’s Motion for Summary Judgment (Doc. 42) is
DENIED as to Count 3 as regards negligent supervision and Count 5.
3. Defendant PowerSecure’s Motion to Exclude the Opinions of Roland
Brown (Doc. 43) is GRANTED IN PART AND DENIED IN PART.
4. Defendant PowerSecure’s Motion to Strike (Doc. 53) is DENIED AS
MOOT.

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DONE and ORDERED this 7th day of October 2019.

/s/ Andrew L. Brasher
ANDREW L. BRASHER
UNITED STATES DISTRICT JUDGE

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