Walker et al v. Ergon Trucking, Inc. et al
MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 11/19/2020. (KAM)
2020 Nov-20 AM 09:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
ALVIN WALKER, et al.,
ERGON TRUCKING, INC.
A Foreign Corporation, et al.,
) Civil Action No. 1:18-cv-594-ACA
This action arises out of a February 13, 2017, motor vehicle accident
involving Plaintiff Alvin Walker’s car and a commercial tractor pulling a semi-tank
trailer driven by Defendant Richard McGinnis. (Doc. 55-1 at 4, 23; Doc. 55-8 at 5;
Doc. 55-12 at 2). Mr. Walker’s third amended complaint states claims against
Mr. McGinnis and his employer, Ergon Trucking, Inc. (“Ergon”), (collectively,
“Defendants”) for negligence, wantonness, and subsequent negligence. (Doc. 34).
The Defendants move for summary judgment on all Mr. Walker’s claims. (Doc.
For the reasons set out below, the court WILL GRANT the motion and
WILL ENTER SUMMARY JUDGMENT in favor of Defendants and against
Mr. Walker on all claims because he has not presented any evidence creating a
genuine dispute of material fact about Defendants liability on those claims.
In deciding a motion for summary judgment, the court “draw[s] all inferences
and review[s] all evidence in the light most favorable to the non-moving party.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012)
(quotation marks omitted). But in cases where a video in evidence “obviously
contradicts [the nonmovant’s] version of the facts, [courts accept] the video’s
depiction instead of [the nonmovant’s] account,” Shaw v. City of Selma, 884 F.3d
1093, 1098 (11th Cir. 2018) (quoting Pourmoghani-Esfahani v. Gee, 625 F.3d 1313,
1315 (11th Cir. 2010)), and “view[ ] the facts in the light depicted by the videotape.”
(Id.) (quoting Scott v. Harris, 550 U.S. 372 at 380–81 (2007)). Here, a dash-cam
video recorder mounted in Mr. McGinnis’s truck captured the accident along with
over 100 seconds of pre-impact footage during which Mr. McGinnis’s roadway
movements can be seen. (Doc. 55-7). In addition, a nearby business’s surveillance
video camera captured the accident. (Doc. 55-15). Having reviewed the evidence
in the light most favorable to Mr. Walker, except where either video obviously
contradict his version of the facts, the court finds as follows.
The accident occurred in the right-hand travel lane of U.S. Highway 280 at
the signalized intersection of Coosa Street in Mr. Walker’s hometown of Sylacauga,
Alabama. (Doc. 55-1 at 23–24). Just before the accident occurred, Mr. Walker
travelled up Coosa Street in the right-hand turn lane, with the intention of merging
eastbound on Highway 280. (Doc. 55-1 at 24, 27; Doc. 55-12 at 8–9). The righthand turn lane on Coosa Street channels into a 200-foot long auxiliary acceleration
lane with painted roadway geometry to facilitate safely navigating the intersection
and merging onto Highway 280. (Doc. 55-17 at 4, 13).
Just as Mr. Walker approached the right turn into the auxiliary acceleration
lane, Mr. McGinnis passed through the intersection traveling east on Highway 280.
(Doc. 55-7). It is undisputed that Mr. McGinnis had a green traffic light and the
right of way. (Doc. 55-15). As Mr. McGinnis came through the intersection,
Mr. Walker drove across the right turn lane and straight through the white solid
traffic line and entered Mr. McGinnis’s travel lane directly into the path of
Mr. McGinnis’s truck without warning.
(Doc. 55-1 at 26; doc. 55-12 at 9).
Mr. Walker’s vehicle hit Mr. McGinnis’s truck 0.33 seconds later. (Doc. 55-17 at
3, 13; Doc. 55-12 at 9).
According to the expert accident reconstructionist,
Mr. McGinnis did not have time to slow down or avoid the collision. (Doc. 55-12
In deciding a motion for summary judgment, the court must determine
whether, accepting the evidence in the light most favorable to the non-moving party,
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
see also Hamilton, 680 F.3d at 1318. “[T]here is a genuine issue of material fact if
the nonmoving party has produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Looney v. Moore, 886 F.3d 1058, 1062 (11th Cir. 2018)
(quotation marks omitted).
Under Alabama law, negligence “is the failure to do what a reasonably
prudent person would have done under the same or similar circumstances, or the
doing of something that a reasonably prudent person would not have done under the
same or similar circumstances.” Ford Motor Co. v. Burdeshaw, 661 So. 2d 236, 238
(Ala. 1995). “To establish negligence, [a] plaintiff must prove: (1) a duty to a
foreseeable plaintiff; (2) breach of that duty; (3) proximate causation; and (4)
damage or injury.” Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994). Here,
Defendants are entitled to summary judgment on Mr. Walker’s negligence claim
because Mr. Walker has not presented substantial evidence from which a reasonable
jury could conclude that Mr. McGinnis breached a duty.
In this case, Mr. Walker alleges that Mr. McGinnis committed negligence by
failing “to keep a proper lookout.” (Doc. at 76 at 21). In support of his contention,
Mr. Walker cites Miller v. Cleckler, 51 So.3d 379, 384 (Ala. Civ. App. 2010), for
the proposition that Mr. McGinnis is liable for failing to look out for Mr. Walker
even if Mr. McGinnis followed all applicable driving rules and regulations. (Doc.
at 76 at 21 n. 4 (citing Miller v. Cleckler, 51 So.3d 379, 384 (Ala. Civ. App. 2010)).
But the facts of Miller are materially distinguishable from the facts found here.
Miller involved drivers on the same roadway and addressed the duties owed to
travelers in front and behind. Miller, 51 So.3d at 384 (citing Cox v. Miller, 361
So.3d 1044, 1046 (Ala. 1978)). Here, Mr. McGinnis’s vehicle struck Mr. Walker’s
vehicle as Mr. Walker merged into oncoming traffic at an intersection. (Doc. 55-1
at 24 97:15–19). And the duties owed to other drivers at an intersection are different
than the duties owed to drivers on the same road.
It is true that all drivers owe each other a “general duty to operate an
automobile with careful and prudent regard for the safety of others.” Pearson v.
Fountain, 189 So. 2d 551, 553 (Ala. 1966) (citation omitted). But “there is no duty
imposed as a matter of law” on a driver approaching an intersection “to keep a
special lookout for other vehicles when a driver is observing the rules relating to
traffic signals.” Id. (citing Smith v. Kifer, 52 So. 2d 399, 402 (Ala. Civ. App. 1951)).
This is because, in the absence of actual knowledge that the intersection is a
dangerous one, “[a]n operator of a motor vehicle approaching an intersection may
presume that others will obey the traffic laws and regulations.” Id. (citing Smith, 52
So. 2d 399 at 402).
Here, the evidence is undisputed that the accident “occurred right at the
intersection” of Highway 280 and Coosa Street.” (Doc. 55-1 at 24 97:15–19). It is
further undisputed that Mr. McGinnis’s traffic light was green as Mr. McGinnis
entered the intersection (doc. 55-7 at 23:01:12), giving Mr. McGinnis the right of
way. And, there is no evidence that this intersection is particularly dangerous, much
less that Mr. McGinnis had knowledge of that danger. In fact, this was the first time
Mr. McGinnis ever drove through this intersection. (Doc. 55-8 at 8 25:24 –9 26:3).
Accordingly, Mr. McGinnis did not have a duty to keep a special lookout for
Mr. Walker’s vehicle. 1
But even if Mr. McGinnis breached a duty he owed Mr. Walker, Mr. Walker’s
negligence claim still does not survive summary judgment because Mr. Walker’s
own negligence contributed to his injuries. In Alabama, contributory negligence is
an affirmative and complete defense to negligence. Serio v. Merrell, Inc., 941 So.
2d 960, 964 (Ala. 2006). To prevail on this defense, Defendants have the burden of
proving that Mr. Walker (1) had knowledge of the dangerous condition; (2)
appreciated the danger, and (3) failed to exercise reasonable care by putting himself
in the way of danger. Id. “[I]t has long been recognized that contributory negligence
In fact, the record establishes that Mr. McGinnis owed Mr. Walker a lower, general
standard of care because Mr. Walker’s premature entrance into the travel lane caused a sudden
emergency. (See Doc. 55-17 at 23). Thus Mr. McGinnis “is not held to the same correctness of
judgment and action that would apply if he had 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) (citing Burns v. Martin, 589 So.2d 147, 149 (Ala. 1991)).
may also be predicated upon the failure to appreciate the danger when there is a
reasonable opportunity to do so under the circumstances.” (Id.). Whether a plaintiff
is contributorily negligent is normally a question for the jury. Serio, 941 So.2d at
964. However, “if the facts are such that all reasonable persons would logically
reach the conclusion that the plaintiff was contributorily negligent, then contributory
negligence may be found as a matter of law.” Id.
To prevail on summary judgment, Defendants must establish that Mr. Walker
understood, or should have understood, the danger posed by crossing over the solid
white line and entering a travel lane where he did not have the right of way and did
not look to see if there was oncoming traffic. Serio, 941 So.2d at 965 (citations
omitted). In this case, the evidence establishes that Mr. Walker clearly understood
the risk posed by his actions. He testified that he understood the significance of the
solid white traffic line (doc. 55-1 at 24 89:3–6), and that, as the merging vehicle, he
was required to yield to the right of way (id. at 25 90 913). Mr. Walker also admitted
that he did not look for approaching traffic before he merged onto Highway 280.
(Id. at 26 97:1518). Based on this evidence, the risk is self-evident and “all
reasonable people would logically have to conclude that [Mr. Walker] would have,
or should have, consciously appreciated that danger” when he merged into oncoming
traffic. Serio, 941 So.2d at 965.
Mr. Walker contends that even if he was contributorily negligent when pulling
onto Highway 280, the defense does not apply to shield Defendants from liability
because of Mr. McGinnis’s subsequent negligence. Subsequent negligence allows
a negligent plaintiff to escape the contributory negligence bar under certain limited
circumstances. Zaharavich v. Clingerman By & Through Clingerman, 529 So. 2d
978, 979 (Ala. 1988). To prevail on this theory Mr. Walker must establish, among
other things, that he was in a perilous position and Mr. McGinnis had actual
knowledge of this peril.
Assuming Mr. Walker established that he was in peril just before the accident
and that Mr. McGinnis knew of this peril, the subsequent negligence doctrine does
not apply because the accident occurred within the same second it became apparent
that Mr. Walker was going to cross the solid white line and enter Mr. McGinnis’s
travel lane. Baker v. Grantham, 585 So. 2d 896, 897 (Ala. 1991) (citing Eason v.
Comfort, 561 So. 2d 1068 (Ala. 1990) (“[T]he subsequent negligence doctrine does
not apply where the manifestation of the plaintiff’s peril and the accident are
virtually instantaneous.”)). According to the uncontroverted testimony of an expert
accident reconstructionist, Mr. McGinnis had less than one second between the time
it became apparent that Mr. Walker was going to enter his lane and when the accident
occurred. (See Doc. 55-12 at 10). Because there was not enough time to prevent the
accident from occurring (see id.), the doctrine of subsequent negligence does not
apply. See Shows v. Donnell Trucking Co., 631 So. 2d 1010, 1013 (Ala. 1994).
Based on the foregoing, the court finds the evidence establishes as a matter of
law that Mr. Walker’s own negligence contributed to the cause of his accident with
Mr. McGinnis and Mr. McGinnis was not subsequently negligent. Accordingly, the
court WILL GRANT Defendants’ motion for summary judgment on the claim for
Under Alabama law, “wantonness” is “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.” Galaxy Cable, Inc. v. Davis, 58 So. 3d 93, 101 (Ala. 2010) (quotation marks
omitted). “To establish wantonness, the plaintiff must prove that the defendant, with
reckless indifference to the consequences, consciously and intentionally did some
wrongful act or omitted some known duty.” (Id.) (quotation marks omitted).
“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. Implicit in wanton . . . misconduct is  acting,
with knowledge of danger, or with consciousness, that the doing or not doing of
some act will likely result in injury . . . .” Cheshire v. Putman, 54 So. 3d 336, 343
(Ala. 2010) (quoting McNeil v. Munson S.S. Lines, 184 Ala. 420, 423 (1913)).
Defendants contend that they are entitled to summary judgment on
Mr. Walker’s wantonness claim because Mr. Walker has not presented any evidence
that Defendants consciously disregarded his safety or knew that Mr. McGinnis’s acts
or omissions would make his injuries likely or probable. (Doc. 59 at 28-29). This
Mr. Walker has presented no evidence that Mr. McGinnis acted consciously
or intentionally. (Doc. 55-8 at 13). Mr. Walker argues that Mr. McGinnis’s failure
to slow down, observe Mr. Walker, appreciate Mr. Walker’s peril, and warn
Mr. Walker of his presence constitutes a conscious disregard for Mr. Walker’s
safety. (Doc. 76 at 26). However, the undisputed evidence establishes that the
intersection was designed to encourage eastbound traffic to continue through it at
full speed. (Doc. 55-17 at 23). And, the channelized, continuous-flow right turn
lane was designed to allow traffic to travel through the intersection without any
conflicts or potential hazards from Coosa Street’s northbound traffic. (Doc. 55-17
at 23). Therefore, there was no reason for Mr. McGinnis, who had the right of way,
to slow down or warn Mr. Walker of Mr. McGinnis’s approach. And, because
Mr. Walker’s car was travelling at a speed consistent with the design of the
continuous flow right-turn lane, there was no reason for Mr. McGinnis to suspect
Because Mr. Walker has not presented any evidence from which the court
could infer facts that would support a wantonness claim, the court WILL GRANT
Defendants’ motion for summary judgment as to the claim for wantonness.
The court WILL GRANT Defendants’ motion for summary judgment and
WILL ENTER SUMMARY JUDGMENT in a separate order in favor of
Defendants’ and against Mr. Walker on all claims.
DONE and ORDERED this November 19, 2020.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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