Barry et al v. Big M Transportation Inc et al
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 9/11/2017. (KAM)
2017 Sep-11 PM 04:15
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DAVID C. BARRY and VANESSIA
BIG M TRANSPORTATION, INC., et
Case No. 1:16-cv-00167-JEO
This action, which was filed in Alabama state court and then removed to
federal court, arises out of a motor vehicle accident that occurred on Interstate 20
in Cleburne County, Alabama. Plaintiffs David and Vanessia Barry were injured
when a tractor-trailer driven by defendant Joshua Shaffer, an employee of
defendant Big M Transportation, Inc. (“Big M”), struck their vehicle, which was
stopped in the right lane of traffic along with two other vehicles. The Barrys seek
to recover compensatory and punitive damages for their injuries and have asserted
the following claims against Big M and Shaffer (collectively, “Defendants”): a
claim against both Defendants for wanton or reckless operation of the tractortrailer (Count I of the Barrys’ complaint); a claim against both Defendants for
negligent operation of the tractor-trailer (Count II); a clam against Big M for
wanton or negligent entrustment of the tractor-trailer to Shaffer (Count III); a
“respondeat superior” claim against Big M (Count IV); a negligent training claim
against Big M (Count V); a negligent hiring claim against Big M (Count VI); a
claim against Big M for negligent maintenance or repair of the tractor-trailer
(Count VII); and a claim against Big M for negligent or wanton supervision (Count
XI). 1 The Defendants have denied the Barrys’ claims and have asserted a number
of affirmative defenses, including contributory negligence, assumption of the risk,
and intervening cause.
The case is now before the Court on four related motions. Big M and
Shaffer have each filed a motion for summary judgment on the Barrys’ claims.
(Docs. 46 & 47). The Barrys have filed a motion for partial summary judgment on
the Defendants’ affirmative defenses of contributory negligence, assumption of the
risk, and intervening cause, and for a “spoliation sanction” in the form of either a
default judgment on the Defendants’ negligence liability or an order judicially
establishing certain facts against the Defendants. (Doc. 50). Shaffer has also filed
a motion to strike Exhibit 16 to the Barrys’ motion for partial summary judgment
(doc. 50-16), a sketch he drew of the accident 24 to 48 hours after it occurred.
(Doc. 60). All of the motions have been briefed and are ripe for decision.
In addition to Big M and Shaffer, the Barrys’ complaint named their underinsured motorist
insurance carrier, Alfa Insurance Corporation (“Alfa”), and fifteen fictitious parties as
defendants. (Doc. 1 at 16-17). Alfa has been granted leave to opt out of the litigation. (Doc. 33).
The Barrys never amended the complaint to substitute the names of any of the fictitious parties.
Big M’s Hiring of Shaffer
Big M is a transportation company that employs commercial truck drivers.
(Deposition of Benton Elliott (“Elliott Dep.”) at 29).2 On March 15, 2015, Big M
hired Shaffer as a trainee driver. (Deposition of Joshua Shaffer (“Shaffer Dep.”) at
23).3 At that time, Shaffer had a valid commercial driver’s license (“CDL”), but
his only prior commercial driving experience was approximately 20 to 30 days as a
trainee driver for Covenant Transport in 2012. (Shaffer Dep. at 18-21; Elliott Dep.
at 55). Shaffer had gone to work for Covenant Transport after completing at least
160 hours of driver training at the Tennessee Truck Driving School and obtaining
his CDL. (Shaffer Dep. at 20). Shaffer left his employment at Covenant Transport
while still a trainee driver. (Id. at 19). When he decided to resume commercial
driving in 2015, he took a refresher driving course at Peak Technical Institute
shortly before being hired by Big M. (Id. at 22, 25-26).
In 2013, two years before Shaffer was hired by Big M, his CDL and driver’s
license were suspended for failure to pay child support. (Shaffer Dep. at 11-12,
16). In addition, Shaffer’s motor vehicle record reflects a citation for following too
The Deposition of Benton Elliott is located at Doc. 50-4.
The Deposition of Joshua Shaffer is located at Docs. 46-4 and 46-5.
closely to another vehicle in November 2012, an accident related to the same
event, and two occasions when he failed to appear in court in 2010. (Id. at 13-15).
Shaffer completed two days of classroom training at Big M after he was
hired. (Shaffer Dep. at 28). As a trainee driver, he was then required to complete
an on-the-road training program with a more experienced driver (his trainer).
(Elliott Dep. at 72-73). Big M’s on-the-road training program typically lasts six
weeks. (Id. at 73). Big M assigned Joshua Spruill to be Shaffer’s trainer. (Shaffer
Dep. at 28-29).
The Barrys’ First Collision
The subject accident occurred on March 31, 2015. That day, the Barrys
were traveling in their car from Anniston, Alabama, to Fairburn, Georgia, on
Interstate 20. Mr. Barry was driving, and Mrs. Barry was a passenger in the front
seat. Sometime around 6:00 p.m., the weather turned bad. There was hail,
lightning, heavy winds, and heavy rain. Mr. Barry pulled off on the side of the
road. When the rain and hail lightened up five to ten minutes later, Mr. Barry got
back on the highway. (Deposition of David Barry (“D. Barry Dep.”) at 21, 25-29).4
Shortly after the Barrys resumed travel, they entered a construction zone on
I-20. (D. Barry Dep. at 29-30). The two lanes of travel in the construction zone
were shifted to the right—the left lane was blocked off, the right lane was serving
The Deposition of David Barry is located at Doc. 46-2.
as the left lane, and the shoulder was serving as the right lane. (Deposition of
Judith Taylor (“Taylor Dep.”) at 11-12; Deposition of Vanessia Barry (“V. Barry
Dep.”) at 42; Shaffer Dep. at 98-99).5
A few minutes after the Barrys entered the construction zone, they
experienced a side-to-side collision with a tractor-trailer. The Barrys were
traveling in the right lane of traffic and the tractor trailer was traveling in the left
lane. 6 (D. Barry Dep. at 32-33). Mr. Barry testified that the weather was not a
factor in the collision and he did not feel it was unsafe to be on the road at that
time. (Id. at 29-30).
As a result of the collision, the driver’s side door of the Barrys’ car was
caved in, the driver’s side mirror was knocked loose, the driver’s side window was
knocked out, and the front windshield was crushed on the driver’s side. (Doc. 5017 at 3). However, the vehicle was still operational. (D. Barry Dep. at 44). Mr.
Barry continued briefly down the interstate and then brought his vehicle to a
complete stop in the right lane of traffic (i.e., the shoulder of the road, which was
still serving as the right lane), several hundred feet behind a tractor-trailer that was
The Deposition of Judith Taylor is located at Doc. 50-3, and the Deposition of Vanessia Taylor
is located at Doc. 50-2.
It is disputed who was at fault for the collision. Mrs. Barry testified that the tractor-trailer hit
their vehicle. (V. Barry Dep. at 38, 70-71). However, Judith Taylor, who was driving in the right
lane behind the Barrys, testified that the Barrys’ vehicle veered into the truck. (Taylor Dep. at
parked in that lane up ahead. (D. Barry Dep. at 34-36; V. Barry Dep. at 42, 73;
Taylor Dep. at 64). He stopped the vehicle with all four wheels within the right
lane, close to a guardrail running along the passenger side of the vehicle. (D. Barry
Dep. at 36, 44; V. Barry Dep. at 43).
After Mr. Barry stopped in the right lane of traffic, Judith Taylor, who had
been driving behind him, brought her vehicle to a stop about four feet behind the
Barrys’ vehicle. (Taylor Dep. at 16). Danny Moore, who was driving behind
Taylor, stopped his vehicle behind Taylor’s. (Id. at 16-18). All three of the
stopped vehicles had their lights on. (Id. at 36). The flashing hazard lights of the
Barrys’ vehicle were also on. (D. Barry Dep. at 45).
After stopping his vehicle, Mr. Barry discovered that he could not get out of
the car because the crush from the side-impact collision prevented him from
opening his door. (D. Barry Dep. at 38-39; V. Barry Dep. at 41). Mrs. Barry told
her husband that she would try to get him out. She then exited the vehicle through
her side door. (V. Barry Dep. at 41-43, 79).
The Subject Accident
That same day, Shaffer and his trainer, Spruill, were also traveling east on
Interstate 20, in a Big M tractor-trailer. Shaffer was driving and Spruill was in the
sleeper berth. By that time, Shaffer had been training with Spruill for eleven days
and Spruill was comfortable with Shaffer driving without his direct supervision
from the front passenger seat.7 (Shaffer Dep. 147, 168).
When the weather turned bad, Shaffer asked Spruill to get out of the sleeper
berth and move into the front passenger seat, which he did. It is unclear exactly
when Spruill moved into the passenger seat. Spruill initially testified that he got
down from the sleeper berth and into the passenger seat about five minutes before
the subject accident. (Spruill Dep. at 23-24). He later testified that he got into the
passenger seat earlier, about five to ten minutes before they entered the
construction zone where the accident occurred. (Id. at 28-29).
Spruill testified that when Shaffer asked him to move into the front
passenger seat, it was “raining real hard and hailing.” (Spruill Dep. at 23). Shaffer
was “nervous” and wanted Spruill in the front seat to “calm him down.” (Id.)
Shaffer asked Spruill if he could pull off the road, but Spruill told him there was no
place to pull off and that they just needed to keep on going. (Id. at 24). Spruill told
Shaffer to stay calm, to keep his distance between the other vehicles on the road,
and to keep his speed below the speed limit. (Id. at 25).
The Barrys’ accident reconstruction expert, Chris Bloomberg, does not agree
with Spruill that there was no place for Shaffer to pull off. According to
According to Paul Dillard, the Barrys’ designated expert on the transportation industry,
Spruill’s driver logs reflect only two days when Spruill could have been providing any on-duty
supervision of Shaffer while Shaffer was operating the tractor-trailer. (Doc. 65-3 at 7).
Bloomberg, there were at least two exits that Shaffer could have taken to exit the
highway between the time he told Spruill he was nervous and the time of the
accident. (Doc. 65-4 at 4).
How the accident happened is in dispute. Shaffer testified that he was
driving between 30-35 miles per hour when he entered the construction zone and
continued to drive at that speed after moving into the left lane of traffic. (Shaffer
Dep. at 102-04, 164). He said it was still hailing and raining hard. (Id. at 94-95).
According to Shaffer, another tractor-trailer was traveling in the right lane of
traffic and blocked his view of the three vehicles that were stopped in the right lane
up ahead (i.e., Danny Moore’s vehicle, Judith Taylor’s vehicle, and the Barrys’
vehicle). (Id. at 137-38). The other tractor-trailer suddenly cut into the left lane in
front of Shaffer’s truck. Shaffer applied his brakes and swerved into the right lane
of traffic to avoid hitting the other truck. (Id. at 108-09). As he moved into the
right lane, Shaffer saw the three vehicles that were stopped in that lane. (Id.at 14850). His tractor-trailer collided with the guardrail and struck the three stopped
vehicles. (Id. at 79-80, 156-59). Spruill’s testimony was similar to Shaffer’s,
although Spruill testified that the hailing had stopped and the rain had lightened to
a drizzle by the time of the accident.8 (Spruill Depo. at 56).
Like Shaffer, Spruill testified at his deposition that Shaffer was driving between 30-35 miles
per hour at the time of the accident. (Spruill Dep. at 59, 73). However, there is also evidence that
Judith Taylor testified that the accident happened in a different manner.
According to Taylor, the rain had lightened to a light drizzle. (Taylor Dep. at 11).
As she was sitting in her stopped vehicle in between the Barrys’ vehicle and Danny
Moore’s vehicle, she saw two tractor-trailers approaching them, both in the right
lane of traffic. The leading truck was the Big M truck. The trailing truck came out
from behind the Big M truck and moved into the left lane, leaving the Big M truck
with nowhere to go but to the right where the three stopped cars were sitting. The
Big M truck sideswiped Taylor’s and Moore’s vehicles along their passenger sides
before striking the Barrys’ vehicle in the rear. (Id. at 22-29).
At the time of the accident, Mrs. Barry was standing in front of the Barrys’
vehicle. (V. Barry Dep. at 79-80). She remembers “flying through the air,” losing
her vision, and then blacking out. (Id. at 45). She does not know which of the
vehicles involved in the collision struck her. (Id.) She was transported from the
accident scene by ambulance. (D. Barry Dep. at 67-68).
After the Big M tractor-trailer came to a stop, Shaffer called E911 on his cell
phone. (Shafer Dep. at 170). He told the E911 operator: “Two cars collided and
then we’[re] coming down the hill and I tried to get ’er downshifted enough and
then all the other truckers in front of me slammed on their brakes and I tried to
Spruill told the paramedics who transported him from the accident scene that the Big M truck
had been traveling at 40-45 miles per hour at the time of the accident. (Doc. 65-5 at 3).
downshift it even harder and ... I pretty much hydroplaned.” (Doc. 50-1 at 4). Later
in the call he told the operator: “I didn’t even see the wreck until the other truck …
pulled his trailer out. He basically saved himself just in time and … he pulled his
trailer out and I tried to … swing around him and there was a wreck right here. I
didn’t even see it ….” (Id. at 6). He also told the operator that Mrs. Barry was
“bleeding on the ground” and “barely breathing.” (Id.)
After talking to E911, Shaffer called Big M’s CFO, Wes Davis, and told him
what had happened. Davis told him “to make sure [he took] plenty of pictures of
... the truck, trailer, scene, cars, everything.” (Shaffer Dep. at 196). Shaffer does
not recall Davis instructing him to preserve the data on the tractor’s electronic data
recorder. (Id. at 207).
Alabama State Trooper Gary Mitchell investigated the accident along with a
trainee trooper, Brandon Maye. Trooper Maye interviewed the drivers and then
prepared the accident report, which Trooper Mitchell approved and signed. The
accident report identified Mr. Barry’s “[i]mproper parking/stopped in road” as the
primary circumstance contributing to the accident. (Doc. 58-3 at 2, 9). The report
also included a diagram of the accident that showed the Big M tractor-trailer in the
right lane of traffic during the entire sequence of events. (Id. at 5).
A wrecker truck towed away the Big M truck to Ohatchee, Alabama.
(Shaffer Dep. at 197; Elliott Dep. at 231-32). The truck was driven back to Big
M’s headquarters in Mississippi one or two days later. (Elliott Dep. at 232-33).
Within 24 to 48 hours of the accident, Shaffer was interviewed by Wes
Davis and a liability insurance representative at Big M’s headquarters in
Mississippi. During the interview, Shaffer drew a sketch of the accident. (D.5016). When Shaffer was deposed a year and a half later, he identified the sketch and
confirmed that he had drawn it, but he was unable to recall what all of the
markings on the sketch represented. (Shaffer Dep. at 187-95).
On April 27, 2015, just less than a month after the accident, Big M received
a “letter of preservation” from counsel for the Barrys, requesting Big M to
preserve, among other evidence, the tractor-trailer and the “Electronic
Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box and its
data” (the “ECM data”). (Doc. 64-2; Elliott Dep. at 178-79). By that date,
however, the tractor had already undergone accident-related repairs. (Doc. 58-1;
Elliott Dep. at 173). In addition, prior to the accident the tractor had been selected
for sale to Mack as part of a vehicle swap program. (Doc. 58-1; Elliott Dep. at 17476). Mack sent Big M a power-of-attorney on April 30, 2015, effectively
completing the sale of the tractor, and then took possession of the vehicle. (Doc.
Big M did not download or otherwise preserve the tractor’s ECM data prior
to completing the sale of the tractor to Mack. (Elliott Dep. at 165-66). According
to the Barrys’ accident reconstruction expert, Chris Bloomberg, the ECM data
would likely have provided information “relating to the Big M truck leading up to
and at the time of the wreck, including the speed history of the tractor-trailer as it
approached [the collision] area, when the brakes were applied, how much the
vehicle slowed down, etc.” (Doc. 65-4 at 5).
Big M’s corporate representative, Benton Elliott, testified that it is Big M’s
normal practice to “get the ECM data” if they know a collision is severe. (Elliott
Depo. at 170). He conceded that there “wasn’t anything” preventing Big M from
preserving the ECM data in this instance, but said that it “wouldn’t have mattered”
because it was his understanding from Mack that any accident-related data “would
have been gone.” (Id. at 172-73). He said it was his understanding that “something
as simple as moving the truck” can start the process of rewriting the module, so
that the accident-related data would have been gone “as soon as the truck probably
got to the tow yard.” (Id. at 166). Contrary to Elliott’s understanding, Big M’s
motor carrier expert, Stephen Chewning, testified that “towing the truck with the
engine off would not overwrite [ECM] data” in any truck engine, including a Mack
engine. (Deposition of Stephen Chewning (“Chewning Dep.”) at 26).9
The Deposition of Stephen Chewning is located at Doc. 50-8.
As noted, there are four related motions before the Court. Big M and
Shaffer have each moved for summary judgment on the Barrys’ claims. (Docs. 46
& 47). The Barrys, in turn, have moved for partial summary judgment on the
Defendants’ affirmative defenses of contributory negligence, assumption of the
risk, and intervening cause, and for imposition of a “spoliation sanction” against
the Defendants for their failure to preserve the tractor-trailer’s ECM data. (Doc.
50). Shaffer has moved to strike Exhibit 16 to the Barrys’ motion, the sketch he
drew of the accident. (Doc. 60). The Court will first address Shaffer’s motion to
strike and the Barrys’ spoliation argument. The Court will then consider the
parties’ summary judgment arguments together.
Shaffer’s Motion to Strike
In his one-paragraph motion to strike, Shaffer asks the Court to strike
Exhibit 16 to the Barrys’ motion for partial summary judgment, the sketch he drew
of the accident when he was interviewed at Big M’s headquarters 24 to 48 hours
after the accident occurred. He argues that because he “testified in deposition that
he could not recall what various markings on this purported collision [sketch]
were,” the sketch “does not accurately depict the accident scene and should not be
considered” by the Court as evidence. (Doc. 60). That is the extent of his
argument. He cites no rule of evidence or other legal authority in support of his
Shaffer’s motion to strike is due to be denied. As the Barrys point out in
their opposition to the motion to strike, Shaffer admitted in his deposition that he
drew the sketch shortly after the accident occurred for the purpose of describing to
Big M’s CFO and its insurance carrier how the accident happened. He may not
have been able to recall what all of the markings on the sketch depicted, but he did
admit that he drew the sketch and was able to testify to what most of the markings
represented. (Shaffer Dep. at 181-82, 187-95). Moreover, he never testified that
the sketch was inaccurate; he simply was unable to recall what some of the
markings on the sketch depicted.
Having been affirmatively identified by Shaffer as the sketch he drew of the
accident shortly after it happened, the sketch is certainly evidence relevant to the
issues raised in the pending summary motions. Shaffer’s motion to strike Exhibit
16 will be denied.
The Barrys’ Request for a Spoliation Sanction
As a part of their motion for partial summary judgment, the Barrys have
moved the Court to impose a spoliation sanction against the Defendants for their
failure to preserve the tractor’s ECM data following the accident. They have
moved the Court to either (1) enter a default judgment on the Defendants’
negligence liability or (2) enter an order judicially establishing “the speed [at]
which Shaffer was driving and the maneuvers he made in the light most favorable”
to the Barrys. (Doc. 51 at 2). In response, the Defendants argue that the “lack of
preservation” of the ECM data was “well-reasoned and justifiable” and that, even
if the failure to preserve the ECM data is seen as not reasonable, it does not
warrant the imposition of sanctions. (Doc. 58 at 1-2). In addition, Shaffer
separately argues that there is no evidence that he, as a trainee employee of Big M,
had any duty to preserve the tractor’s ECM data at the time of the accident or had
any custody or control over the tractor following the accident. (Doc. 59 at 1-2).
Spoliation is the “failure to preserve property for another’s use as evidence
in pending or reasonably foreseeable litigation.” Oil Equip. Co. v. Modern Welding
Co., 661 F. App’x 646, 652 (11th Cir. 2016) (internal quotation marks omitted).
The Court has “broad discretion” to impose spoliation sanctions as part of its
“inherent power to manage its own affairs and to achieve the orderly and
expeditious disposition of cases.” Flury v. Daimler Chrysler, 427 F.3d 939, 944
(11th Cir. 2005). Sanctions for spoliation of evidence are intended to “prevent
unfair prejudice to litigants and to insure the integrity of the discovery process.” Id.
In diversity cases such as this one, “federal law governs the imposition of
sanctions for failure to preserve evidence.” Id. Rule 37(e) of the Federal Rules of
Civil Procedure, which governs the preservation of electronically stored evidence,
If electronically stored information that should have been preserved in
the anticipation or conduct of litigation is lost because a party failed to
take reasonable steps to preserve it, and it cannot be restored or
replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to cure the
(2) only upon finding that the party acted with the intent to deprive
another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
FED. R. CIV. P. 37(e).
Here, the Court finds that Big M—but not Shaffer—is guilty of spoliation.
Big M’s corporate representative, Benton Elliott, confirmed that it is Big M’s
normal practice to retrieve the ECM data from a tractor if they know a collision is
severe, and he admitted that there was nothing preventing Big M from preserving
the ECM data in this instance. The subject collision was certainly severe; three
vehicles were struck by Big M’s truck, and Mrs. Barry was rushed from the
accident scene by ambulance. In addition, Big M received a preservation letter
from the Barrys’ counsel on April 27, 2015, three days before Big M completed
the sale of the truck to Mack. (Doc. 64-2 at 5). Under these circumstances, Big
M’s failure to preserve the truck’s ECM data amounts to spoliation, as it was
reasonably foreseeable, if not a near certainty, that the accident would lead to
The Court also finds that Big M’s failure to preserve the ECM data has
prejudiced the Barrys. The lost ECM data has deprived the Barrys of the best and
most accurate evidence of the truck’s speed in the moments prior to the collision.
However, Rule 37(e)(2) expressly provides that the severe sanctions of
entering a judgment against the spoliating party or presuming that the lost
information was unfavorable to the spoliating party—which are, in essence, the
sanctions the Barrys have asked the Court to impose here—are limited to situations
where the party “acted with the intent to deprive another party of the information’s
use in the litigation.” FED. R. CIV. P. 37(e)(2). Moreover, the Advisory Committee
Notes to Rule 37(e)(2) caution courts to “exercise caution … in using the measures
specified in (e)(2). Finding intent to deprive another of the lost information’s use in
the litigation does not require a court to adopt any of the measures listed in
subdivision (e)(2).” FED. R. CIV. P. 37(e)(2), 2015 Notes of Advisory Committee.
Here, the Court is unwilling to impose either of the severe sanctions
requested by the Barrys for a number of reasons. First, the Court is not convinced
that Big M acted with the intent to deprive the Barrys of the use of the ECM data
in this litigation. Big M has offered a plausible explanation for why it did not
preserve the data: it was Big M’s understanding that the relevant ECM data would
have been overwritten as soon as the truck was moved by the towing company and
that the data would have been gone by the time the truck reached the tow yard.
Big M’s understanding, even if mistaken, is consistent with Big M’s insistence that
it did not act in bad faith and had no intention of depriving the Barrys of the ability
to use the ECM data in litigation. Furthermore, by the time Big M received the
preservation letter from the Barrys’ counsel, the truck had been driven from the
tow yard in Alabama back to Big M’s headquarters in Mississippi (further
overwriting the ECM data), the accident-related damage to the truck had been
repaired, and the sale of the truck to Mack, which had been arranged before the
accident, was nearly complete. Under these circumstances, it was not
unreasonable for Big M to complete the sale and transfer of the truck to Mack
without first endeavoring to have the ECM data downloaded.
Second, although the accident was serious and it was reasonably foreseeable
that litigation might ensue, it was Big M’s impression that the Barrys were at fault
for the accident, as they had stopped their vehicle in a lane of traffic on the
interstate.10 While that does not totally absolve Big M from its failure to preserve
the truck’s ECM data, it does explain why Big M may have concluded that
litigation was not likely, at least prior to the time they received the preservation
letter from the Barrys’ attorneys.
Third, even if the Court were to determine that Big M’s real intent was to
deprive the Barrys of the use of the ECM data in any ensuing litigation, the Barrys
have not been prejudiced to such an extent that the severe sanctions they have
requested would be warranted. In particular, the Barrys have not shown that the
loss of the ECM data has impaired their ability to prove their case to such a degree
that the only appropriate sanction is to enter a judgment against the Defendants on
negligence or to judicially establish the facts in the light most favorable to the
Barrys. Even without the ECM data, the Barrys’ accident reconstruction expert,
Chris Bloomberg, was able to reconstruct the accident to a sufficient level of
certainty to enable him to render an opinion on the speed of the Big M truck prior
to impact. (Doc. 65-4; Deposition of Chris Bloomberg (“Bloomberg Dep.”) at 9899, 137).11 He testified that the ECM data would have been “another piece of
evidence” that would “help validate and support” and “bolster” certain of his
opinions (id. at 237-38); he did not testify that the ECM data was critical or
See the discussion of the Defendants’ contributory negligence defense below.
The Deposition of Chris Bloomberg is located at Doc. 50-7.
necessary evidence without which he could not render any meaningful opinions.
Indeed, there obviously was sufficient alternative evidence for him to arrive at all
of the opinions he has expressed in this case, including his opinion on the speed at
which the Big M truck was traveling immediately prior to impact.
Fourth, the Barrys contend that the ECM data is “critical information in
helping determine whether Shaffer’s driving was negligent or wanton prior to
impact.” (Doc. 64 at 8). In other words, they contend that the lost data would be
helpful in establishing their direct claims against Shaffer (and their respondeat
superior claims against Big M) for negligence and wantonness. However, the
Barrys have not shown that Shaffer bears any responsibility for the loss of the
ECM data. There is no evidence that Shaffer, as a trainee employee of Big M, had
any custody or control over the Big M tractor-trailer following the accident. It
would be manifestly unjust to enter a default judgment on Shaffer’s negligence
liability, or to enter an order judicially establishing the speed at which Shaffer was
driving and the maneuvers he made prior to impact in the light most favorable to
the Barrys, based on Big M’s conduct in failing to preserve the ECM data. Such
sanctions would unduly prejudice, if not completely foreclose, Shaffer’s ability to
present his defense to the Barrys’ claims.
Alabama state law also supports the imposition of a lesser sanction than the
sanctions the Barrys have requested. In analyzing a request for spoliation
sanctions, a court may look to state law for guidance to the extent that state law is
consistent with federal law. See Flury, 427 F.3d at 944 (examining the spoliation
factors enumerated in Georgia law). The Supreme Court of Alabama has applied
five factors in analyzing spoliation issues: “(1) the importance of the evidence
destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4)
alternative sources of the information obtainable from the evidence destroyed; and
(5) the possible effectiveness of other sanctions less severe than dismissal.” Story
v. RAJ Properties, Inc., 909 So. 2d 797, 802-803 (Ala. 2005). (citation omitted).
Application of these factors supports the Court’s determination that the
sanctions sought by the Barrys are not warranted. While the ECM data certainly
would have been helpful in reconstructing the accident and determining the precise
speed at which the Big M tractor-trailer was traveling prior to the collision, the
data was not so important that its loss has crippled the Barrys’ ability to prove their
case against the Defendants. Big M’s conduct in failing to preserve the ECM data,
while not blameless, does not reflect any malicious intent to deprive the Barrys of
the evidence and affect the litigation. See Vesta Fire Ins. Corp. v. Milam & Co.
Constr., Inc., 901 So. 2d 84, 95 (Ala. 2004) (“When a party maliciously destroys
evidence, that is, with the intent to affect the litigation, that party is more culpable
for spoliation.”). Requiring the Barrys to proceed on their claims without the ECM
data is not fundamentally unfair, as the Barrys have been able, through alternative
sources, to reconstruct the accident and calculate the speed of the Big M truck prior
to impact. Conversely, it would be fundamentally unfair to impose the Barrys’
requested sanctions on Shaffer, who was not responsible for the loss of the data.
Finally, the Court is satisfied that a lesser sanction will be sufficiently effective.
Based on the above, the Barrys’ request for spoliation sanctions will be
denied to the extent they have asked the Court to enter a default judgment on the
Defendants’ negligence liability or, alternatively, to enter an order judicially
establishing the speed at which Shaffer was driving and the maneuvers he made
prior to impact in the light most favorable to the Barrys. However, as an
alternative sanction, the Court intends to tell the jury that the ECM data was not
preserved and will allow the parties to present evidence and argument at trial
regarding Big M’s failure to preserve the data.
The Parties’ Summary Judgment Arguments
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a 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). The party moving 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). 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. Celotex Corp., 477 U.S. at 324. At summary judgment, a court
views the evidence in the light most favorable to the non-movant. Stewart v.
Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000).
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). In its review of the evidence, a court must credit the evidence of
the non-movant and draw all justifiable inferences in the non-movant’s favor.
Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At
summary judgment, “the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Negligent Operation of the Tractor-Trailer
Count II of the Barrys’ complaint alleges that Shaffer negligently operated
the Big M tractor-trailer. They seek to recover against Shaffer in his individual
capacity and against Big M as his employer. The Defendants have moved for
summary judgment on the Barrys’ negligence claim based on the Barrys’ alleged
contributory negligence and the “sudden emergency” doctrine. (Doc. 48 at 7-15).
The Barrys, in turn, have moved for summary judgment on the Defendants’
contributory negligence defense as well as their assumption of risk and intervening
cause defenses. (Doc. 19-30). The Court will address these competing summary
judgment arguments together.
The Court will first consider the Defendants’ “sudden emergency” defense,
because it ties into their other defenses. Under the sudden emergency doctrine, “a
person faced with a sudden emergency calling for quick action is not held to the
same correctness of judgment and action that would apply if he had the time and
opportunity to consider fully and choose the best means of escaping peril or
preventing injury.” Bettis v. Thornton, 662 So. 2d 256, 257 (Ala. 1995) (internal
quotation mark and citation omitted). For the sudden emergency doctrine to apply,
“there must be a sudden emergency and the sudden emergency must not be the
fault of the one seeking to invoke the doctrine.” Id.
The Defendants’ sudden emergency argument is premised upon their
contention that the accident happened in the manner described by Shaffer and
Spruill—namely, that another truck, traveling in the right lane of traffic, blocked
Shaffer’s view of the stopped cars and that the other truck suddenly cut into the left
lane in front of the Big M truck, creating a sudden emergency that forced Shaffer
to maneuver the truck into the right lane where the stopped cars were parked.
They contend that there is “no admissible evidence” that contradicts this version of
how the accident happened. (Doc. 72 at 19). That is not correct. The Defendants
ignore the testimony of Judith Taylor, who was sitting in her stopped car behind
the Barrys’ car and witnessed the accident as it unfolded. According to Taylor, the
Big M truck was traveling in the right lane of traffic and a second truck, also
traveling in the right lane, came out from behind the Big M truck and moved into
the left lane, leaving the Big M driver with nowhere to go but to his right where the
stopped cars were sitting. In other words, according to Taylor, the Big M truck
was not traveling in the left lane and was not cut off by another truck; rather, the
Big M truck was in the right lane the entire time and Shaffer simply failed to notice
(for whatever reason) the stopped cars before the other truck moved out from
behind him and into the left lane. 12
As noted in the statement of facts above, the accident report included a diagram that showed
the Big M tractor-trailer in the right lane of traffic during the entire sequence of events,
consistent with Taylor’s testimony. (Doc. 58-3 at 5).
There being at least two conflicting versions of how the accident happened,
the Defendants are not entitled to a summary judgment on negligence based on the
sudden emergency doctrine. It will be for the jury to determine how the accident
happened, whether Shaffer was confronted with a sudden emergency, and, if so,
who was at fault for creating the sudden emergency.
“Contributory negligence is an affirmative and complete defense to a claim
based on negligence. In order to establish contributory negligence, the defendant
must show that the plaintiff 1) had knowledge of the dangerous condition; 2) had
an appreciation of the danger under the surrounding circumstances; and 3) failed to
exercise reasonable care, by placing himself in the way of danger.” Serio v.
Merrell, Inc., 941 So. 2d 960, 964 (Ala. 2006) (internal quotation marks and
citations omitted). Contributory negligence is normally a question for the jury, but
contributory negligence “may be found to exist as a matter of law when the
evidence is such that reasonable people must all agree that the plaintiff was
negligent and that the plaintiff’s negligence was a proximate cause of the
plaintiff’s injury.” Buchanan v. Mitchell, 741 So. 2d at 1055, 1057 (Ala. 1999).
Mr. Barry’s Conduct
The Defendants argue that Mr. Barry was contributorily negligent when he
stopped his operational vehicle in a lane of traffic on the interstate. (Doc. 48 at 11).
They argue that the danger of parking an operational vehicle in a lane of traffic on
an interstate is “simply self-evident and all reasonable people can logically
conclude that [Mr. Barry] would have, or should have, consciously appreciated that
The Barrys argue just the opposite. They argue that, as a matter of law, Mr.
Barry was not negligent in stopping his car where he did, because he was under a
statutory duty to comply with ALA. CODE § 32-10-1(a), which provides that “[t]he
driver of any motor vehicle involved in an accident resulting in injury to … any
person, or in damage to a motor vehicle or other vehicle which is driven or
attended by any person, shall immediately stop such vehicle at the scene of such
accident or as close thereto as possible ….” (Doc. 51 at 24 (emphasis omitted)).
They also contend that his decision to stop his car on the interstate “merely created
the condition from which the Defendants’ intervening acts caused the collision.”
(Id. at 21).
The Court is not convinced by either side’s arguments. ALA. CODE § 32-101(a) not only provides that a person involved in an accident shall “immediately
stop [his] vehicle at the scene of [the] accident or as close thereto as possible,” it
also provides that “[e]very such stop shall be made without obstructing more
traffic than is necessary.” Whether Mr. Barry stopped his vehicle as close to the
scene of his first accident as possible without obstructing more traffic than was
necessary is an issue of fact for the jury’s determination. Given that the shoulder
was serving as the right lane of traffic, there was no other emergency lane for Mr.
Barry to use, and there was a tractor-trailer parked up ahead in the right lane, the
Court cannot say, as a matter of law, that Mr. Barry was negligent in stopping
where he did. By the same token, the Court cannot say, as a matter of law, that Mr.
Barry was not negligent and acted with reasonable care, given that his car was
operational and he stopped his car in a lane of traffic in a construction zone.
Ultimately the issue will be for the jury to decide.
The jury will also need to determine whether Mr. Barry’s decision to stop
his car on the interstate was a proximate cause of the Barrys’ injuries. To their
credit, the Barrys have candidly admitted that they are unable to point to any
Alabama appellate decisions with similar facts as this case. (Doc. 51 at 21). They
do cite three cases involving successive collisions from other states 13, but all three
cases differ from this case in at least three key respects. First, the issue in each of
the cases cited by the Barrys was whether the negligence of a party (or parties)
who caused a first collision was a proximate cause of injuries suffered by the
accident victims in a second collision, which is not the case here. The cases would
be more apt if the Defendants were arguing that the negligence of the driver of the
tractor-trailer who (allegedly) side-swiped the Barrys’ vehicle was a proximate
Anderson v. Jones, 213 N.E.2d 627 (Ill. App. Ct. 1966); Sanders v. Wright, 642 A.2d 847
(D.C. App. 1994); and Mahmood v. Pinto, 974 N.Y.S.2d 102 (N.Y. App. Div. 2005).
cause of the injuries the Barrys suffered when the Big M truck subsequently
collided with their stopped car. The Defendants have made no such argument.
Second, none of the cases cited by the Barrys involved any contention that the
injured parties were contributorily negligent, which is one of the Defendants’
primary defenses here. Third, none of the cases involved the sudden emergency
doctrine, which the Defendants have also invoked here.
Mrs. Barry’s Conduct
The Defendants argue that Mrs. Barry was contributorily negligent when she
exited the Barrys’ parked vehicle and became a pedestrian in a lane of traffic on
the interstate. (Doc. 48 at 11). As with Mr. Barry’s conduct, they argue that the
danger of exciting an operational vehicle parked in a lane of traffic on an interstate
Again, the Barrys argue just the opposite. They argue that the Defendants
cannot establish that Mrs. Barry acted with contributory negligence. They offer
three related reasons for why Mrs. Barry cannot be found contributorily negligent
for exiting the Barrys’ vehicle. First, they invoke the sudden emergency doctrine.
(Doc. 51 at 30). Second, they argue that “[n]either contributory negligence nor
assumption of risk is charged to [h]er who comes to the rescue of others in peril
without their fault, unless the act of the rescuer is manifestly rash and reckless to a
man of ordinary prudence acting in emergency.” (Doc. 51 at 30-31 (quoting
Seaboard Air v. Johnson, 115 So. 168, 170 (Ala. 1927)). Third, they argue that a
person “should not be charged with contributory negligence, if [s]he is exercising
reasonable care so far as things appear to h[er].” (Doc. 51 at 31 (quoting Dothan v.
Hardy, 188 So. 2d 264, 267 (Ala. 1939)). The crux of the Barrys’ argument is that
Mrs. Barry was faced with a sudden emergency (her husband was in a stopped car
in a lane of traffic on the interstate and could not open his car door), she had a
reasonable belief that her husband was in peril, and she acted with reasonable care
in attempting to rescue him. 14
Again, the Court is not swayed by either party’s arguments. A reasonable
jury could certainly find that Mrs. Barry acted negligently when she exited the
Barrys’ car and became a pedestrian in a lane of traffic on a busy interstate. The
jury could also find that Mr. Barry was not in any immediate peril—he was not
injured and could have exited the car through the passenger door just like Mrs.
Barry—and that Mrs. Barry was not engaged in a rescue effort. Alternatively, the
jury could find that, under the totality of the circumstances, Mrs. Barry did not act
negligently and reasonably concluded that she needed to rescue her husband and
get him out of the car.
The Barrys also argue that Mr. Barry’s alleged negligence in stopping his vehicle in a lane of
traffic cannot be imputed to Mrs. Barry, who was merely a passenger in the vehicle. The
Defendants have not argued that Mr. Barry’s alleged negligence should be imputed to Mrs.
The Barrys also argue that the Defendants cannot establish the element of
proximate cause. They argue that the Defendants have produced no evidence that
Mrs. Barry’s injuries would have been less severe if she had stayed in the car and
that “[s]uch is a matter for expert testimony, and [the] Defendants have hired no
biomechanical or medical expert to establish such.” (Doc. 51 at 32). The Barrys
have cited no authority for their contention that the Defendants must have expert
testimony to establish a causal relation between Mrs. Barry’s conduct and her
injuries, and the Court is not convinced that the Defendants’ evidence is otherwise
insufficient, as a matter of law, to enable the jury to reasonably infer a causal
relation between Mrs. Barry’s conduct in exiting her vehicle and her resulting
Assumption of Risk
The Barrys also seek summary judgment on the Defendants’ affirmative
defense of assumption of risk. They assert that there is “no evidence of assumption
of risk.” (Doc. 51 at 32). The Court does not agree. It is undisputed that Mr. Barry
parked an operational vehicle in a lane of traffic on an interstate highway. It is
undisputed that Mrs. Barry exited the vehicle and became a pedestrian on the
interstate. Such evidence is more than sufficient to allow the Defendants to present
the defense of assumption of risk to the jury.
Lastly, the Barrys seek summary judgment on the Defendants’ defense of
intervening cause. “An intervening cause must be unforeseeable and must have
been sufficient to have been the ‘sole cause in fact’ of the injury.” Lance, Inc. v.
Ramanauskas, 731 So. 2d 1204, 1210 (Ala. 1999). The Barrys argue that Mr.
Barry’s conduct—stopping his vehicle on the interstate—was not an intervening
cause of his wife’s injuries or his own injuries, and that Mrs. Barry’s conduct—
exiting the vehicle while it was parked on the interstate—was not an intervening
cause of her own injuries. (Doc. 51 at 29-30). The Barrys’ arguments miss the
mark. The Defendants have not argued that either Mr. Barry’s conduct or Mrs.
Barry’s conduct was an intervening cause; as discussed above, they argue that the
Barrys’ conduct constitutes contributory negligence. To the extent the Defendants
have asserted the defense of intervening cause, it relates to their contention that
Shaffer was cut off by another tractor-trailer, which forced him to move into the
right lane where Mr. Barry had parked his car. (Doc. 59 at 6). This is a disputed
matter for the jury’s consideration.
Based on the above analysis, the Court concludes that the Defendants are not
entitled to summary judgment on the Barrys’ negligence claim. Likewise, the
Barrys are not entitled to summary judgment on the Defendants’ affirmative
defenses of contributory negligence, assumption of risk, and intervening cause.
The Barrys may present their negligence claim to the jury, and the Defendants may
offer their affirmative defenses to such claim.
Count I of the Barrys’ complaint alleges that Shaffer wantonly operated the
Big M tractor-trailer. As with their negligence claim, the Barry’s seek to recover
against Shaffer in his individual capacity and against Big M as his employer. The
Defendants argue that the Barrys’ wantonness claim is subject to dismissal because
there is no evidence that Shaffer consciously and intentionally engaged in any
wrongful conduct. The Barrys respond that, to the contrary, there is substantial
evidence of Shaffer’s wanton conduct.
The statutory definition of wantonness is “[c]onduct which is carried on with
a reckless or conscious disregard of the rights or safety of others.” ALA. CODE § 611-20(b)(3). The Alabama Supreme Court has defined wantonness 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.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007)
(citation omitted). “Wantonness does not require an intent to injure another, but
may consist of an inadvertent act or failure to act, when the one acting or failing to
act has knowledge that another is probably imperiled by the act or the failure to act
and the act or failure to act is in reckless disregard of the consequences.” Hamme v.
CSX Transp., Inc., 621 So. 2d 281, 283 (Ala. 1993). Moreover, “[w]antonness 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).
Here, even viewing the evidence in the light most favorable to the Barrys,
the evidence is insufficient to support a finding that Shaffer’s operation of the Big
M truck was wanton. Even assuming that Shaffer was not driving in the left lane
of traffic as he and Spruill claim and that he was not faced with the sudden
emergency of being cut off by another tractor trailer, his conduct in driving
through the construction zone does not reflect a conscious disregard of the rights or
safety of others or a consciousness that injury to others would likely or probably
result. At most, the evidence reflects that Shaffer was nervous about driving in
bad weather, was traveling in the right lane of traffic rather than the left lane, and
failed to notice the three stopped cars in the right lane; otherwise, there is no
evidence that he was exceeding the speed limit, attempting to pass in the right lane,
driving while intoxicated, driving while texting, or engaging in any other risky
behavior that he knew was likely to result in injury to others in the construction
zone. See Dawson v. Smith, 2015 WL 7458635, *3 (Nov. 24, 2015) (granting
summary judgment on the plaintiff’s wantonness claims and finding that “[n]o
evidence reflects that, at or immediately before the accident, Smith was engaging
in risky behavior such as passing on the shoulder, texting, or going faster than the
flow of traffic”). Shaffer may have been inattentive in failing to notice the three
stopped cars sooner, but inattention or carelessness does not constitute wantonness.
See South Cent. Bell Tel. Co. v. Barnum, 568 So. 2d 795, 797 (Ala. 1990)
Furthermore, the Supreme Court of Alabama has noted that “[i]in the
absence of impaired judgment, such as from the consumption of alcohol, we do not
expect an individual to engage in self-destructive behavior.” Essary, 992 So. 2d at
12. “There is a rebuttable presumption recognized by the law that every person in
possession of his normal faculties in a situation known to be dangerous to himself,
will give heed to instincts of safety and self-preservation to exercise ordinary care
for his own personal protection. It is founded on a law of nature and has [as] its
motive the fear of pain or death.” Id. (quoting Griffin Lumber Co. v. Harper, 39
So. 2d 399, 401 (Ala. 1949)). Here, there is no evidence, let alone any substantial
evidence, that Shaffer was not in possession of his normal faculties or that his
conduct was “so inherently reckless that we might otherwise impute to [him] a
depravity consistent with disregard of instincts of safety and self-preservation.” Id.
Count III of the Barrys’ complaint alleges that Big M negligently or
wantonly entrusted the tractor-trailer to Shaffer. Big M argues that the claim fails
as a matter of law because there is no evidence that Shaffer had ever manifested
any sort of incompetence, much less that Big M was on notice any such
incompetence. The Court agrees.
To succeed on their clam for negligent/wanton entrustment, the Barrys must
prove the following elements: “(1) an entrustment; (2) to an incompetent; (3) with
knowledge that he is incompetent; (4) proximate cause; and (5) damages.”
Edwards v. Valentine, 926 So. 2d 315, 320 (Ala. 2005). Under Alabama law, “the
incompetence of a driver is measured by the driver’s demonstrated ability (or
inability) to properly drive a vehicle.” Halford v. Alamo Rent-A-Car, LLC, 921 So.
2d 409, 413-14 (Ala. 2005). Such incompetence may be established through
evidence that the driver to whom the vehicle was entrusted “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, 926 So. 2d at 322 (internal quotation marks and citation
omitted). Specifically, proof of a driver’s incompetence “may be established by
evidence of previous acts of negligent or reckless driving, previous accidents, or
previous acts of driving while intoxicated.” Id. at 322 (internal emphasis and marks
omitted). Moreover, “[n]egligence is not synonymous with incompetency. The
most competent driver may be negligent.” Pritchett v. ICN Medical Alliance, Inc.,
938 So. 2d 933, 941 (Ala. 2006) (internal citations omitted).
Here, there is simply no evidence of Shaffer’s incompetence as a
commercial driver or Big M’s knowledge of the same. It is undisputed that when
Shaffer came to work for Big M, he had a valid CDL, he had attended two truck
driving schools, and his motor vehicle record reflected a single moving violation
and one non-injury accident. Even the Barrys’ transportation industry expert, Paul
Dillard, conceded that Shaffer was properly qualified to operate a commercial
vehicle according to Federal Motor Vehicle Safety Carrier Regulations.
(Deposition of Paul Dillard at 62).15
Faced with the absence of any evidence of Shaffer’s incompetence as a
driver, the Barrys offer two novel theories. They admit that Shaffer was competent
to operate a commercial vehicle generally, but argue that (1) “as an inexperienced
trainee he was incompetent to operate a commercial vehicle unsupervised and
without proper training” and (2) he became “temporarily incompetent by state of
mind to operate the Big M vehicle when he asked his trainer to let him pull the Big
M truck off the roadway because, his trainer believed, he was too ‘nervous’ driving
in the stormy weather conditions.” (Doc. 65 at 2).
The Deposition of Paul Dillard is located at Doc. 46-8.
Not surprisingly, the Barrys have provided no legal authority for their novel
theories, which find no support in the law. Lack of experience does not equate to
incompetence. Shaffer may have lacked extensive on-the-road commercial driving
experience, but that does mean he was incompetent to drive a commercial vehicle
on his own. Big M’s decision to provide him with additional on-the-road training
and supervision during the initial period of his employment in no way suggests that
Big M considered him an incompetent driver or that he was one. Likewise, the
Court rejects the Barrys’ “temporary incompetence” theory. It violates an essential
element of negligent entrustment: the employer’s knowledge of the employee’s
incompetence. Incompetence requires knowledge of an employee’s
“demonstrated” inability to properly drive a vehicle as evidenced by his general
incompetence or habitual negligence. There is no such evidence here. Shaffer’s
expression of nervousness while driving in the bad weather reflects neither general
incompetence nor habitual negligence, and the Court is unwilling to elevate a
“nervous” state of mind to incompetence.
There being no evidence that Shaffer was an incompetent commercial driver,
the Barrys’ claim for negligent entrustment fails as a matter of law.
Negligent/Wanton Training and Supervision
The Barrys’ remaining claims against Big M are for negligent training
(Count V) and negligent or wanton supervision (Count XI) of Shaffer.16 These
claims fail for the same reasons as their negligent entrustment claim: the Barrys
have not shown any evidence that Big M knew or should have known that Shaffer
was an incompetent driver.
Alabama law makes little, if any, distinction between claims of wrongful
training and wrongful supervision. Zielke v. AmSouth Bank, N.A., 703 So. 2d 354,
357 n.1 (Ala. Civ. App. 1996) (“After reviewing Alabama caselaw, we see no
distinction between claims of wrongful supervision and claims of wrongful
training.”). Like claims for negligent/wanton entrustment, claims for
negligent/wanton training and supervision depend on the employee’s alleged
incompetence and the employer’s knowledge of such. “In the master and servant
relationship, the master is held responsible for his servant’s incompetency when
notice or knowledge, either actual or presumed, of such unfitness has been brought
to him. Liability depends on it being established by affirmative proof that such
incompetency was actually known by the master or that, had he exercised due and
proper diligence, he would have learned that which would charge him in the law
with such knowledge.” Voyager Ins. Cos. Whitson, 867 So. 2d 1065, 1073 (Ala.
The Barrys have conceded their claims against Big M for negligent hiring (Count One) and for
negligent maintenance or repair of the tractor-trailer (Count VII). (Doc. 65 at 1).
2003) (emphasis in original) (internal quotation marks and citation omitted); see
Britt v. USA Truck, Inc., 2007 WL 4554027, *4 (M.D. Ala. 2007) (“[T]o prove a
claim under Alabama law for either negligent/wanton 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.”).
Here, as discussed above, no evidence in the record suggests that Shaffer
was an incompetent driver, much less that Big M knew or should have known of
any such incompetence. Accordingly, the Barrys’ claims for negligent training and
negligent/wanton supervision fail as a matter of law. See Askew v. R & L Transfer,
Inc., 676 F. Supp. 2d 1298, 1304 (M.D. Ala. 2009) (“Because … no evidence in
the record suggests that [the driver] was incompetent, [the plaintiff’s] claim of
negligent supervision and training fails.”).
Based on the above, the Court concludes as follows:
Shaffer’s motion to strike Exhibit 16 to the Barrys’ motion for partial
summary judgment (doc. 60) is due to be DENIED.
The Barrys’ motion for spoliation sanctions (doc. 50) is due to be
DENIED to the extent the Barrys have requested the Court to enter a default
judgment on the Defendants’ negligence liability or, alternatively, to enter an order
judicially establishing the speed at which Shaffer was driving and the maneuvers
he made prior to impact in the light most favorable to the Barrys. The Court will,
however, inform the jury that the Big M tractor’s ECM data was not preserved and
will allow the parties to present evidence and argument at trial regarding Big M’s
failure to preserve the data.
The Defendants’ motions for summary judgment (docs. 46 & 47) are
due to be DENIED as to the Barrys’ negligence claim and GRANTED as to the
Barrys’ claims for wantonness, negligent hiring, negligent maintenance or repair,
negligent/wanton entrustment, negligent training, and negligent/wanton
The Barrys’ motion for partial summary judgment (doc. 50) on the
Defendants’ affirmative defenses of contributory negligence, assumption of the
risk, and intervening cause is due to be DENIED.
A separate order consistent with this opinion will be entered.
DATED, this 11th day of September, 2017.
JOHN E. OTT
Chief United States Magistrate Judge
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