Williams v. Oumer et al
MEMORANDUM OPINION AND ORDER DENYING 34 MOTION for Partial Summary Judgment. Signed by Judge Virginia Emerson Hopkins on 12/17/2013. (JLC)
2013 Dec-17 PM 02:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
GLEN ANTYONE WILLIAMS,
WERNER ENTERPRISES, et al.,
) Case No.: 1:11-CV-3671-VEH
MEMORANDUM OPINION AND ORDER
Plaintiff Glen Antyone Williams (“Mr. Williams”) initiated this personal injury
lawsuit against Defendants Werner Enterprises (“Werner”) and Oumer S. Oumer
(“Mr. Oumer”) in the Circuit Court of Cleburne County on September 9, 2011. (Doc.
1-1 at 1).1 Defendants removed the action to this court on October 19, 2011, on the
basis of diversity jurisdiction. (Doc. 1 ¶ 3).
In this case, Mr. Williams maintains that he was injured due to a motor vehicle
collision caused by Mr. Oumer, one of Werner’s drivers, on January 21, 2010. (Doc.
1-1 ¶ 4). Mr. Williams is asserting claims against Mr. Oumer and Werner for
All page references to Doc. 1-1 correspond with the court’s CM/ECF numbering system.
negligence and wantonness under Alabama law. (Doc. 1-1 ¶¶ 6-7).
On April 19, 2012, the court granted intervenor status to Builders Transport,
Inc. (“Builders”), and its insurer, Cherokee Insurance Company (“Cherokee”). (Doc.
11). As Builders and Cherokee maintain, “when Mr. Williams was injured, he was
‘allegedly working within the line and scope of his employment with Builders’ and
. . . they ‘have a subrogation lien on any funds that may be recovered by [Mr.]
Williams in his ‘third-party’ action from the defendant via settlement or judgment.’”
(Doc. 11 at 1-2 (quoting Doc. 10 ¶¶ 1, 6)).
As a part of the pretrial process, on August 29, 2013, the court entered a margin
order which permitted Defendants to file any dispositive motions on or before
September 30, 2013. (See CM/ECF entry dated Aug. 29, 2013 (“Finally, the deadline
for filing any Dispositive Motion is September 30, 2013.”)). Pending before the court
is Defendants’ Motion for Partial Summary Judgment (Doc. 34) (the “Partial
Motion”) filed on September 30, 2013. The parties have supported and opposed the
Partial Motion; however, Defendants elected not to file a reply brief. (Docs. 35-38).2
Accordingly, the Partial Motion is now under submission. For the reasons
explained below, the Partial Motion is DENIED.
All page references to Doc. 35 and Doc. 37 correspond with the court’s CM/ECF
This lawsuit arises from a motor vehicle accident between two tractor trailers
which took place on January 21, 2010, in Cleburne County, Alabama. More
specifically, the collision involving Mr. Oumer and Mr. Williams occurred on I-20
westbound. At the time of the wreck, Mr. Oumer was employed by Werner.
Approximately two to two and a half “truck lengths” prior to the point of
impact, I-20 crests a hill. Further, Mr. Oumer has expressly acknowledged his
awareness that, after I-20 crosses into Alabama, there is a hill – right before the site
of the collision – and the Alabama welcome center and rest stop is located at the foot
of the hill.
Before cresting the above-mentioned hill on January 21, 2010, Mr. Williams
Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy. Finally, these facts are
taken from Defendants’ narrative summary of undisputed facts and Mr. Williams’s response to those
facts as well as part of his additional undisputed and disputed facts, the substance of which
Defendants have not contested under the requirements of Appendix II to the court’s uniform initial
order (Doc. 3) entered on October 19, 2011. (See Doc. 35 ¶¶ 1-10 (“STATEMENT OF
UNDISPUTED RELEVANT MATERIAL FACTS”); Doc. 37 at 2 (“Mr. Williams does not
dispute the facts stated by Defendants.”); Doc. 37 at 2-4 ¶¶ 1-14 (“PLAINTIFF’S ADDITIONAL
UNDISPUTED FACTS”); Doc. 37 at 4-12 ¶¶ 1-22 (“PLAINTIFF’S ADDITIONAL DISPUTED
was driving a tractor trailer in the right lane of traffic. As Mr. Williams crested the
hill, he saw Mr. Oumer’s tractor trailer on the right shoulder of the road.
Mr. Oumer has acknowledged that the Werner’s Driver’s Handbook indicates
at least three times that a driver should “Never stop or park on the roadway or the
shoulder of the road unless you have a breakdown or you are blocked or prohibited
from moving forward.” Mr. Oumer also has admitted that this same rule is stated in
the Federal Motor Carrier Safety Regulations book. No evidence in the record shows
that Mr. Oumer’s stopping on the shoulder on January 21, 2010, was due to an
accident or breakdown.
At or about the time that he spotted Mr. Oumer’s vehicle on the shoulder, Mr.
Williams saw Mr. Oumer’s tractor trailer begin to enter the roadway. Mr. Williams
attempted to stop his tractor trailer to prevent a collision, but was unable to do so
before colliding with the rear Mr. Oumer’s tractor trailer.
Mr. Oumer denies pulling from the shoulder of the interstate and maintains that
he was traveling in the right lane when he was struck in the rear by the tractor trailer
operated by Mr. Williams. However, one nonparty witness testified “see[ing] the
Werner truck starting to move” and Mr. Oumer “trying to gain some speed.” This
same witness indicated that “the Werner’s truck [then] move[d] abruptly from the
shoulder of the road into the right-hand lane, and [that] this was a very abrupt
maneuver to take it over. And at that point, there [wa]s maybe a second or two where
[he] s[aw] the flatbed [driven by Mr. Williams] hit the brakes.”
Another nonparty witness testified during his deposition that Mr. Oumer pulled
out “sharp enough to swing out and get pretty much everything [i.e., the truck and
trailer] out in the road.” This same witness did not recall seeing any flashers or turn
signals from Mr. Oumer’s vehicle.
STANDARD OF REVIEW
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Defendants’ Partial Motion seeks summary judgment on Mr. Williams’s
wantonness count only. Defendants contend that Mr. Williams has not produced
sufficient evidence which could support a jury returning a verdict for him on his
claim for wantonness. (Doc. 35 at 5 (“A comparison of the facts in the instant case
to Alabama case law interpreting wantonness illustrates no reasonable jury could
determine Mr. Oumer operated his vehicle wantonly.”)).
The court agrees with Defendants that wantonness includes more than just a
heightened level of awareness under Alabama law. See, e.g., Tolbert v. Tolbert, 903
So. 2d 103, 114 (Ala. 2004) (“Wantonness is not merely a higher degree of
culpability than negligence.”) (internal quotation marks omitted). As the Supreme
Court of Alabama explained wantonness in Scott v. Villegas, 723 So. 2d 642 (Ala.
In Alfa Mutual Ins. Co. v. Roush, 723 So. 2d 1250 (Ala.1998), this Court
clarified the definition of “wantonness”:
“‘Wantonness’ is statutorily defined as ‘[c]onduct which is
carried on with a reckless or conscious disregard of the
rights or safety of others.’ Ala. Code 1975, §
6-11-20(b)(3). ‘Wantonness’ has been defined by this
Court as 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 likely or probably result. Bozeman v. Central
Bank of the South, 646 So. 2d 601 (Ala. 1994).”
Wantonness requires more than a mere showing of some form of
inadvertence on the part of the driver; it requires a showing of some
degree of conscious culpability. See Ex parte Anderson, 682 So. 2d 467,
469 (Ala. 1996); see, also, George v. Champion Ins. Co., 591 So. 2d 852
(Ala. 1991). “The actor’s knowledge may be proved by showing
circumstances from which the fact of knowledge is a reasonable
inference; it need not be proved by direct evidence.” Hamme v. CSX
Transp., Inc., 621 So. 2d 281, 283 (Ala. 1993).
Scott, 723 So. 2d at 642 (emphasis added). Where the court parts with Defendants
is on the issue of whether Mr. Williams has adduced sufficient evidence such that his
wantonness claim should be tried to a jury.
More specifically, Defendants maintain that, even if believed by a jury, Mr.
Oumer’s abruptly pulling his tractor trailer from the shoulder into the right-hand lane
of I-20 without using his flashers or turn signals or building up a sufficient amount
of speed as he entered the lane, after previously coming to a complete stop along the
shoulder in proximity to a portion of I-20 with a known hillcrest and blocked
visibility issue, Mr. Oumer’s actions still do not rise to a level sufficient to support
a claim of wantonness.
In pressing this position, Defendants rely heavily upon Enochs v. Lessors, Inc.,
No. 3:11–CV–782–CSC, 2012 WL 3656479 (M.D. Ala. Aug. 24, 2012); Ex parte
Essary, 992 So. 2d 5 (Ala. 2007); George v. Champion Ins. Co., 591 So. 2d 852
(Ala.1991); South Cent. Bell Tel. Co. v. Branum, 568 So. 2d 795 (Ala. 1990); and
Mandella v. Pennington, 73 So. 3d 1257 (Ala. Civ. App. 2011). Having examined
each one these cases, the court finds that none of them establishes that Mr. Williams’s
wantonness claim should be kept from the jury here. The court discusses these
authorities more specifically below.
Although the Supreme Court of Alabama does address an accident involving
a tractor trailer and a hillcrest, Enochs is otherwise substantially different from this
case factually. More particularly, Enochs did not involve a set of facts from which
a jury could reasonably conclude that the driver of the tractor trailer, who caused the
accident, abruptly pulled his tractor trailer from the shoulder into the right-hand lane
of an interstate without using his flashers or turn signals or building up a sufficient
amount of speed as he entered the lane, after previously coming to a complete stop
along the shoulder in proximity to a portion of the interstate with a familiar hillcrest
and restricted visibility issue. Instead, the driver in Enochs “was unfamiliar with the
area” and “saw no other vehicles on the road [as] . . . he pulled across Alabama
Highway 229 [and] blocked the northbound lane and part of the southbound lane.”
2012 WL 3656479, at *3.
In Ex parte Essary, in a split decision (Cobb, C.J., dissenting; Woodall, J.,
concurring in the result), the Supreme Court of Alabama upheld the trial court’s
decision to grant summary judgment in the defendant’s favor on wantonness in a
motor vehicle collision case involving evidence of a rolling stop at an intersection.
See id., 992 So. 2d at 13 (“Instead, Burrell’s testimony shows that when Essary
reached the intersection, he slowed and made a ‘rolling stop.’”); see also id. (“We
reverse the portion of the Court of Civil Appeals’ opinion reversing the trial court’s
judgment on the wantonness claim and we render a judgment in favor of Essary on
Once again, factually distinguishable, in Essary, there was no evidence from
which a jury could reasonably conclude that the driver abruptly pulled his tractor
trailer from the shoulder into the right-hand lane of an interstate without using his
flashers or turn signals or building up a sufficient amount of speed as he entered the
interstate’s right-hand lane into a familiarly dangerous part of the interstate. Also, in
applying Alabama’s self-destructive behavior presumption to the situation in Essary,
the court explained:
The facts here presented do not establish any basis from which to
conclude that Essary was not possessed of his normal faculties, such as
from voluntary intoxication, rendering him indifferent to the risk of
injury to himself when crossing the intersection if he collided with
another vehicle. Nor is the act as described by Burrell so inherently
reckless that we might otherwise impute to Essary a depravity consistent
with disregard of instincts of safety and self-preservation. We therefore
conclude that, as a matter of law, the plaintiffs failed to offer substantial
evidence indicating that Essary was conscious that injury would likely
or probably result from his actions.
Ex parte Essary, 992 So. 2d at 12 (emphasis added).
Thus, Essary acknowledges that, separate from evidence that a driver lacks
normal mental capacities, certain actions, taken while driving, may be so inherently
dangerous that Alabama’s self-destructive behavior presumption is inapplicable or
overcome. Essary also expressly recognizes that “[t]he determination whether a
defendant’s acts constitute wanton conduct depends on the facts in each particular
case.” Id., 992 So. 2d at 10 (citing Ex parte Anderson, 682 So. 2d 467, 470 (1996)).
George likewise is inapposite to the facts in this case. Specifically, as the
Supreme Court of Alabama summarized the facts taken in the light most favorable to
the plaintiff in George:
The facts before the trial judge were that the plaintiff, Elizabeth Karen
George, age 16, was the passenger in an automobile driven by her best
friend, Shannon Plaiss, also 16. The two were going to a birthday party.
Shannon was driving a white 1979 Ford Pinto automobile, proceeding
south on Memorial Parkway in Huntsville. It was a full car. Shannon
was driving, Scott White was sitting in the front passenger seat, Karen's
sister Paula was sitting beside White. Karen and her sister Kelly George
were in the rear seat. It was Sunday afternoon and a clear day. The
occupants of the car were engaged in conversation. As the car
approached the intersection of the Parkway and Golf Road, Shannon
saw that the traffic light was green. She glanced back in conversation.
When she looked forward, the traffic light was red. Scott cried out for
her to stop. Shannon testified in her deposition that she tried to put her
foot on the brake pedal, but missed and hit the clutch pedal. She ran the
red light, and her automobile collided with a vehicle that was turning
left in front of her.
George, 591 So. 2d at 854.
The Supreme Court of Alabama ultimately upheld the partial summary
judgment ruling favorable to the defendant insurer in George, concluding that
“[w]hile the[se] facts [may] show inadvertence [on the part of the driver] . . . , they
do not measure up to wantonness, which requires some degree of conscious
culpability.” Id. In sharp contrast, here, sufficient evidence of wantonness exists,
including Mr. Oumer’s admitted familiarity with the interstate’s hillcrest as well as
non-party eyewitness testimony from which a jury could reasonably conclude that Mr.
Oumer entered the right-hand lane of the interstate from the shoulder in a reckless
Branum is both procedurally and substantively distinct from the situation here.
First, from a procedural standpoint, in reversing the trial court, the Supreme Court of
Alabama reviewed the merits the plaintiff’s wantonness claim based upon the
evidence developed during trial, as opposed to an evaluation of it on a summary
judgment record. See Branum, 568 So. 2d at 795 (“On appeal, South Central Bell
argues that the trial court erred in submitting the wantonness and negligence claims
to the jury.”).
Factually, the plaintiff in Branum, an injured pedestrian, based wantonness
simply on the driver’s failure to watch where he was going and his “knowledge of the
habits of pedestrians in the downtown area . . . .” Id. at 798. Further, testimony
adduced at trial confirmed that the driver’s attention was diverted by another vehicle,
that the plaintiff witnessed the driver’s van “zigzag[ging] as if its driver was trying
to avoid a collision with the car[,]” and that the driver “immediately applied the
brakes but could not avoid hitting [the plaintiff].” Id. Thus, based upon this caliber
of evidence, the jury could not reasonably infer wantonness. See Branum, 568 So.
2d at 798 (“We hold that these facts did not constitute sufficient proof that Davis, on
that occurrence, acted wantonly.”).
Finally, Madella is also inapposite. More specifically, the Alabama Court of
Civil Appeals found that the “beat the traffic” facts from Madella fell within the
scope of the Supreme Court of Alabama’s controlling holding in Essary.
Hence, for purposes of reviewing the summary judgment, we accept
Beck’s testimony that Pennington did not stop in the paved gap in the
concrete median and that he appeared to be attempting to beat the
oncoming traffic. Nonetheless, we find that the trial court did not err in
holding that, under the supreme court’s decision in Essary, Pennington
was entitled to a summary judgment with respect to the wantonness
claim. In Essary, the facts, viewed in the light most favorable to the
plaintiffs, indicated that the defendant made a “rolling stop” and then
attempted to beat the oncoming traffic. In the case now before us, the
facts, viewed in the light most favorable to Robert and Sharon, indicate
that Pennington made a complete stop at the stop sign located at the
edge of Domino’s parking lot and then tried to beat the oncoming traffic.
It appears that, in the case now before us, Pennington had to cross a
greater distance in order to beat the oncoming traffic than Essary did;
however, as was the case in Essary, there is no evidence in the case now
before us indicating that Pennington was intoxicated or otherwise
impaired and there is no evidence indicating that he was conscious that
harm would likely or probably result from his attempting to beat the
oncoming traffic. Therefore, we find no merit in Robert and Sharon’s
argument that the case now before us is distinguishable from Essary.
Mandella, 73 So. 3d at 1266. Contrastingly, Mr. Williams’s wantonness claim is not
premised upon a so-called “beat the traffic” scenario.
In sum, the court finds that the material facts before it are significantly
distinguishable from those in Enochs, Essary, George, Branum, Mandella, and the
other authorities cited by Defendants. Further, critically absent from Defendants’
brief is any comparable authority (and this court is unaware of any) in which the
Supreme Court of Alabama has ruled that a driver of a tractor trailer, who, despite
having knowledge of an obstructed view caused by a hillcrest, abruptly and without
signaling enters the right-hand lane of an interstate from the shoulder with conscious
disregard for others (as Mr. Oumer did4), cannot be liable for wantonness as a matter
of law. Cf. Clark v. Black, 630 So. 2d 1012, 1016 (Ala. 1993) (“Kalar’s testimony,
if believed by the jury, would provide clear and convincing evidence that Black, who
was familiar with the intersection, and, consequently, the dangers posed to traffic
travelling south on Watermelon Road by the ‘hillcrest’ in that road, ignored the stop
Taking all the facts and reasonable inferences in a light most favorable to Mr. Williams.
sign, or, otherwise wantonly entered the intersection.” (emphasis added) (citing
Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So. 2d 882 (Ala.1993))).
“In other words, viewing the evidence in the light most favorable to [Mr.
Williams], [the court] conclude[s] that there is substantial evidence from which the
jury could find that [Mr. Oumer] acted with a reckless or conscious disregard of the
rights or safety of others by consciously” abruptly pulling into the right-hand lane of
the interstate at an unsafe speed in the vicinity of a hillcrest and without properly
using any flashers or turn signals before proceeding to enter such lane “and knowing”
under such circumstances that, “injury would likely or probably result.” Scott, 723
So. 2d at 644; see also Scharff v. Wyeth, No. 2:10–CV–220–WKW [WO], 2011 WL
4361634, at *15 (M.D. Ala. Sept. 19, 2011) (“The defendant’s knowledge [pertaining
to wantonness] ‘may be proved by showing circumstances from which the fact of
knowledge is a reasonable inference; it need not be proved by direct evidence.’”
(quoting Hamme v. CSX Transp., Inc., 621 So. 2d 281, 283 (Ala.1993))); cf. Daniel
v. Motes, 153 So. 727, 728 (Ala. 1934) (determining under scintilla of evidence rule
that “[t]hough he may not intend a collision, if he knowingly and wrongfully brings
on a condition of danger, taking a chance on the other fellow giving way to his
wrongful course, until too late for preventive effort, such conduct has all the elements
of a wanton act”).
Accordingly, for the foregoing reasons, Defendants’ Partial Motion is
DONE and ORDERED this the 17th of December, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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