Davis et al v. Edwards Oil Company of Lawrenceburg Inc

Filing 56

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 11/28/12. (CVA)

FILED
2012 Nov-28 AM 09:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEORGIA MAE DAVIS and
TOMORA LEA DAVIS,
Plaintiffs;
vs.
EDWARDS OIL COMPANY OF
LAWRENCEBURG, INC.,
Defendant.

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2:10-cv-2926-LSC

MEMORANDUM OPINION
I.

Introduction
Before the Court is Defendant’s motion for partial summary judgement, filed

on October 3, 2012. (Doc. 40.) Defendant seeks partial summary judgment in its favor
on Plaintiffs’ claims for (1) wantonness, (2) negligent and wanton entrustment, and
(3) negligent hiring, training, and supervision. In their response, Plaintiffs concede to
the dismissal of the negligent hiring and training claims, but contest the motion for
summary judgment as to their claims for wantonness, negligent and wanton
entrustment, and negligent supervision. (Doc. 46 at 1.) Defendant’s motion is fully
briefed and ripe for decision. For the reasons described below, Defendant’s motion
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for partial summary judgment is due to be GRANTED in part and DENIED in part.
II.

Facts
Around one o’clock in the morning on September 20, 2010, a tractor-trailer

tanker owned by Defendant Edwards Oil Company of Lawrenceburg, Inc. (“Edwards
Oil”) and driven by its employee, David Grissom (“Grissom”), rear ended a vehicle
occupied by Plaintiffs Georgia and Tomora Davis. Prior to the accident, both vehicles
were traveling south on a three-lane segment of Interstate 65 in Birmingham, Alabama.
Grissom failed to immediately observe Plaintiffs’ vehicle as he was changing from the
middle to the right hand lane in order to exit. When Grissom finally saw Plaintiffs’
vehicle, it was too late to stop. The resulting collision caused Plaintiffs’ car to careen
out of control and strike a concrete barrier, injuring both Plaintiffs.
There were no eye-witnesses to the accident. However, Stacie Rowell
(“Rowell”), another driver on the road that evening, testified that she observed a
silver tractor-trailer tanker with a white cab “swerving all over the road” sometime
prior to the collision. (Doc. 49-1 at 22.) Although Rowell could not recall any features
of the erratically driven tanker other than its color, she stated she had only observed
one tanker on the roadway that evening. (Doc. 49-1 at 42–43.)
Data downloaded from the engine of the tanker truck involved in the wreck

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demonstrates that from September 13, 2010, through September 20, 2010, the tanker
was driven 5,365.7 miles, which took 95 hours and 36 minutes. Additionally, the
engine data indicates the truck was idling for 21 hours and 3 minutes. Grissom testified
that, to his knowledge, he was the only driver that operated the Edwards’s Oil tanker.
(See Grissom Depo, Doc 47-1 at pg. 43, ln. 17–20; pg. 70, ln. 17–22.) Edwards Oil,
however, has produced evidence that Grissom was mistaken, and in fact another
driver, Bill Poston, accounted for approximately half of that time. (See Poston Aff.,
Doc. 53-3.)
III.

Standard
Summary judgment is proper “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, and
identifying those portions of [the evidence] which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The movant can meet this burden by presenting evidence showing that there is no
genuine dispute of material fact, or by showing that the nonmoving party has failed to
present evidence in support of some element of its case on which it bears the ultimate

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burden of proof. Id. at 322-23. In evaluating the arguments of the movant, the court
must view the evidence in the light most favorable to the nonmoving party. Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
Once the moving party has met his burden, Rule 56 “requires the nonmoving
party to go beyond the pleadings and by [his] own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations
omitted); see also Fed. R. Civ. P. 56(c). “A factual dispute is genuine only if a
‘reasonable jury could return a verdict for the nonmoving party.’” Info. Sys. &
Networks Corp., 281 F.3d at 1224 (quoting United States v. Four Parcels of Real Property,
941 F.2d 1428, 1437 (11th Cir. 1991)).
IV.

Analysis
Plaintiffs challenge Defendant’s motion to the extent it seeks summary

judgment on Plaintiffs’ claims for wantonness, negligent and wanton entrustment, and
negligent supervision. Each of these will be addressed in turn.
A.

Wantonness

Wantonness is defined in the Alabama Code as “[c]onduct which is carried on
with reckless or conscious disregard of the rights or safety of others.” Ala. Code § 6-

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11-20(b)(3). The Alabama Supreme Court has stated that wantonness is the
“conscious doing of some act . . . , while knowing of the existing conditions and being
conscious that, from doing . . . an act, injury will likely or probably result.” Scott v.
Villegas, 723 So. 2d 642, 643 (Ala. 1998) (citations omitted). “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.” Id. (citations omitted).
“‘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.’” Id. (quoting Hamme v. CSX Transp., Inc., 621 So.2d 281, 283 (Ala.1993)).
Plaintiffs have produced sufficient evidence for a jury to return a verdict in their
favor on a claim for wantonness. Federal regulations limit the service hours a
commercial driver is allowed to operate a commercial vehicle in a given period of time.
See 49 C.F.R. § 395.3(b). Specifically, the regulations prohibit a commercial driver
from operating a vehicle if the driver has been on duty 60 hours in the previous 7 days
or 70 hours in the previous 8 days (depending on whether the carrier operates 6 or 7
days a week). Id. The data downloaded from the engine of the truck involved in the
accident indicates that it was running for 116 hours in the previous 8 days, and was on
the road for more than 95 hours. Edwards Oil disputes that Grissom was the driver

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responsible for all the hours reflected in the downloaded engine data. Nevertheless,
Plaintiffs have submitted enough evidence to create a jury question about whether
Grissom exceeded the federally-mandated service limits.
If Grissom was the truck’s only driver, he greatly exceeded the time limits
established by the federal regulations. Additionally, Rowell testified that she only saw
one tanker truck on the road that morning and it was driving erratically just prior to
the wreck, swerving in and out of its lanes. Rowell’s testimony, coupled with the
evidence about the number of hours the truck was driven, could lead a jury to
conclude Grissom was exhausted due to his excessive hours driving the tanker truck.
A jury might well determine that Edwards Oil should have known that “injury [would]
likely or probably result” if they deliberately chose to allow Grissom to drive in such
a state. Scott, 723 So. 2d at 643. Accordingly, there is enough evidence to permit
Plaintiffs to present their wantonness claim to the jury.
Defendant argues that wantonness cannot be founded on pure inattention or
thoughtlessness, but rather requires a conscious disregard of the health or safety of
others. Accordingly, Defendant argues “Edwards Oil’s driver was not wanton
because, at most, he was guilty of failing to keep a proper lookout.” (Doc. 40-2 at 11.)
Defendant may be correct that simple inattention to the roadway is not enough to

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support a claim for wantonness. However, the evidence offered by Plaintiffs could
establish more than simple failure to pay attention. The jury may determine that
Grissom made a deliberate choice to put other drivers at risk by operating the Edwards
Oil tanker in an exhausted state. Such a conscious disregard of others may amount to
wantonness as defined by Alabama law. See Osborne Truck Lines, Inc. v. Langston, 454
So. 2d 1317, 1326 (Ala. 1984) (upholding wantonness verdict in part because “[t]he
jury could also have found that [the driver] was fatigued because of the inordinate
length of time he had driven the truck and with knowledge of that fact continued to
drive”).
B.

Negligent and Wanton Entrustment

“The essential ingredients of a cause of action for negligent entrustment are:
(1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent;
(4) proximate cause; and (5) damages.” Dunaway v. King, 510 So. 2d 543, 545 (Ala.
1987). When an employee driver’s competency is at issue, the focus is on “the
driver’s demonstrated ability (or inability) to properly drive a vehicle.” Askew v. R &
L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala. 2009).
The typical negligent entrustment case is one where the employer hands over
keys to a driver whose record reveals someone unfit to bear such responsibility. In

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some instances the driver’s blemished record is the result of problems before he or she
was hired, such as a plethora of moving violations or evidence that the driver’s license
had been previously suspended. In other instances, habitual on the job negligence may
put the employer on notice that the driver is incompetent and unfit to continue
driving. Plaintiffs, however, do not allege either of these theories. Instead, Plaintiffs’
theory is that Edwards Oil was negligent or wanton in entrusting the tanker to an
exhausted driver who had exceeded the on-duty hours allowed by the federal
regulations.
Plaintiffs should be permitted to present their negligent entrustment theory to
the jury. Plaintiffs may be able to establish Grissom’s incompetence by showing that
he exceeded the on-duty hour limit imposed by federal regulations. Plaintiffs may
additionally be able to prove that Edwards Oil was knowledgeable of Grissom’s
incompetency since Edwards Oil claims it monitors its drivers to ensure they are not
exceeding federally-mandated service hours. (Doc. 40-2 at 7 ¶ 25.) Thus, if Grissom
exceeded the on-duty limit, the company should have known about it. Accordingly,
a jury accepting Plaintiffs’ argument that Grissom exceeded the hourly limits could
determine that Edwards Oil’s conduct amounts to negligent entrustment under
Alabama law.

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Plaintiffs claim for wanton entrustment requires a slightly modified analysis
because wantonness involves a more aggravated state of mind than that required for
negligent entrustment. As noted above, wantonness is the “conscious doing of some
act . . . , while knowing of the existing conditions and being conscious that, from doing
. . . an act, injury will likely or probably result.” Scott, 723 So. 2d at 643. “In order to
establish wanton entrustment, [Plaintiffs] must show that [Edwards Oil] entrusted the
[tanker] to [Grissom] while knowing that that entrustment would likely or probably
result in injury to others.” Jordan ex rel. Jordan v. Calloway, 7 So. 3d 310, 317 (Ala.
2008). As with the wantonness claim above, Plaintiffs have submitted sufficient
evidence to allow a jury to determine that Edwards Oil should have known that
entrusting the tanker to Grissom in an exhausted state “would likely or probably result
in injury to others.” Jordan, 7 So. 3d at 317.
The Court notes that Plaintiffs’ negligent and wanton entrustment claims will
be limited to their contention that Grissom exceeded the hourly driving limits and as
a result was exhausted at the time of the accident. Defendants produced ample
evidence bolstering Grissom’s pre-hiring qualifications and his on-the-job record, but
Plaintiffs did not respond to that evidence with respect to their entrustment claims.
Pursuant to Eleventh Circuit case law, a plaintiff’s failure to support a claim

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constitutes abandonment of that claim. See Coal. for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (“[F]ailure to brief
and argue [an] issue during the proceedings before the district court is grounds for
finding that the issue has been abandoned.”); Wilkerson v. Grinnell Corp., 270 F.3d
1314, 1322 (11th Cir. 2001) (claim that was included in complaint but not again raised
until the plaintiff's supplemental reply brief is abandoned). Thus, Plaintiffs have
forfeited the right to introduce evidence about Grissom’s driving record with regard
to their entrustment claims.
C.

Negligent Supervision

There are “common elements” between Plaintiffs’ claim for negligent and
wanton entrustment and Plaintiffs’ claim for negligent supervision. Wright v.
McKenzie, 647 F. Supp. 2d 1293, 1297 (M.D. Ala. 2009). Namely, to prove both claims
under Alabama law, Plaintiffs “must demonstrate that [Edwards Oil] knew, or in the
exercise of ordinary care should have known, that its driver was incompetent.” Id.; see
also, e.g., Armstrong Bus. Services, Inc. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala.
2001) (negligent/wanton supervision); Bruck v. Jim Walter Corp., 470 So. 2d 1141,
1144 (Ala. 1985) (negligent/wanton entrustment). As a result of this similarity, the
analysis for Plaintiffs’ negligent supervision claim parallels the analysis already

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conducted above with respect to negligent entrustment.
Plaintiffs offer the same theory for their negligent supervision claim that they
present in support of their negligent entrustment claim—i.e., that Edwards Oil
negligently supervised its driver by allowing him on drive the tanker after exceeding
federally promulgated limits on the amount of time a driver can be on-duty. For the
same reasons stated above, the Court finds no reason why this claim is not appropriate
for consideration by the jury. However, as with the negligent entrustment claim,
Plaintiffs may only introduce evidence related to Grissom’s on-duty hours because
they have forfeited the right discuss Grissom’s driving history.
The Court notes that while Plaintiffs are pursuing various claims, they will only
be entitled to a single recovery. However, while it may be advisable for Plaintiffs to
select a single theory and proceed accordingly, there is nothing that requires the Court
eliminate one of Plaintiffs’ theories as a matter of law.
V.

Conclusion
For the forgoing reasons, Defendant’s Motion for Summary Judgment (Doc.

40), is due to be GRANTED in part and DENIED in part. Pursuant to Plaintiffs’
consent, the claims for negligent hiring and training are due to be dismissed with
prejudice. Plaintiffs may proceed to trial on their claims for wantonness, negligent and

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wanton entrustment, and negligent supervision, subject, however, to the limitations
discussed in this Opinion. A separate order will be entered consistent with this
Opinion.
Done this 28th day of November 2012.

L. Scott Coogler
United States District Judge
[170956]

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