Allen et al v. Conway Truck Load Inc et al

Filing 47

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 8/23/2012. (KAM, )

FILED
2012 Aug-23 PM 05:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARTER DANIEL ALLEN, et al.,
Plaintiffs,
vs.

CASE NO. CV-11-J-3537-S

CON-WAY TRUCKLOAD, INC.,
et al.,
Defendants.
MEMORANDUM OPINION
Pending before the court is the defendants’ motion for partial summary
judgment, brief and evidence in support of said motion (doc. 27), to which the
plaintiffs filed a response in opposition and evidence (doc. 35), and the defendants
thereafter filed a reply (doc. 37).
Defendants seek summary judgment on the plaintiffs’ claims for wantonness
and negligent or wanton entrustment, hiring, supervision, or training. This case arises
from a tragic accident, of which the facts relevant to this motion are not in dispute.
FACTUAL BACKGROUND
Defendant Christopher Grissinger was operating a tractor trailer for defendant
Conway Truckload, Inc., when his vehicle struck the rear of decedent Margaret
Franks’ vehicle. Ms. Franks died as a result of the collision. The parties do not

dispute that defendant Grissinger was acting in the line and scope of his employment
with defendant Conway at the time of the accident.
Defendant Grissinger had a valid Commercial Drivers’ License (“CDL”), had
no prior moving violations, was not speeding, was not on his telephone, and there is
no evidence that he was under the influence of drugs or alcohol at the time of the
accident. See e.g. depo. of Grissinger, at 23-24; Trooper Mark Wisner, at 22; depo.
of Heather Ramos, at 30-32; depo. of Trooper Jason White, at 13-15, defendants ex.
2 to White depo., defendants exs. K and L.
Evidence reflects that defendant Grissinger was traveling at approximately 60
mph, while the decedent’s vehicle, a Toyota Camry, was moving at approximately 15
to 30 mph.1 Defendants ex. A, ¶¶ 1,11-12; Sutton depo. at 41; 60. The accident
occurred slightly after 7:30 p.m. on September 13, 2011. Defendants ex. A, ¶¶ 1, 14.
At that time, the sun had set. Defendants ex. B, at 1-2, 6.
Ms. Franks was traveling from a Dollar General store to her granddaughter’s
home on Highway 157, a distance of 3/4 of a mile. Defendants ex. C, at 4; Sutton
depo. at 127; plaintiff ex. B. She was approximately 100 feet from turning into the
driveway at the time of the collision. Defendants ex. C, at 5. Grissinger remembers

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Defendant Conway’s trucks have governors which prevent the trucks from exceeding 65
mph. Tobin depo. at 123.
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seeing an open road, with no cars. Grissinger depo. at 54, 65. He never saw
headlights or taillights from Ms. Franks’ vehicle, although his high beams were on.
Grissinger depo. at 82, 111, 132-133. Because he never saw her car, he did not apply
his brakes at any time prior to the accident.2 Grissinger depo. at 111; depo. of
Trooper Marcus McCollum, at 116. No citations were issued to Grissinger as a result
of this accident. McCollum depo. at 8, 19-20. McCollum believed Grissinger had
been distracted by something. McCollum depo. at 121-122.
Grissinger was within the legal requirements related to hours of work
permitted. Depo. of Trooper Mark Wisner, at 18; Sutton depo. at 102. Although
plaintiff harps on Grissinger driving for over seven hours after only an eighteen
minute stop, Matt Tobin, a trainer for defendant, agreed that such a stretch of driving
was common. Tobin depo. at 120.
The plaintiffs allege that defendant Grissinger, for a variety of reasons, should
have been able to avoid hitting the decedent’s vehicle. See plaintiffs’ response (at 712). Plaintiffs also assert that Grissinger had a prior accident, shortly before this one,
where he hit a light pole while making a right-hand turn. See e.g., Wallace3 depo. at
2

Immediately after the collision, Grissinger told Trooper McCollum that he suddenly saw
brake lights in front of him. McCollum depo. at 39. Grissinger initially stated he thought the
deceased had backed out of a driveway onto the road. McCollum depo. at 41.
3

Stephen M. Wallace is employed as a safety manager for defendant Conway. Wallace
depo. at 90.
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116. Additionally, the plaintiffs assert defendant Conway should not let defendant
Grissinger operate a truck because he had only had his CDL for five months and, in
spite of a 7,500 mile training course required by defendant Conway, his driving
instructor, Matt Tobin, believed Grissinger to be the worst student driver ever to
complete the court. Plaintiffs’ response, at 8-9. Based on these facts, the plaintiffs
assert defendant Conway was guilty of negligent hiring and entrustment, and
defendant Grissinger was wanton and/or reckless.
According to Wallace, nothing about Grissinger’s scores from driving school
or defendants’ finishing school concerned him, and his instructor, Matt Tobin, did not
raise any issues that would cause Conway to be concerned about the safety of
Grissinger or other drivers on the road with him. Wallace depo. at 111-113;
defendants ex. Q. However, Tobin testified he would not have hired Grissinger
because of Grissinger’s attitude toward driving, although Grissinger met all of
Conway’s requirements. Tobin depo. at 63-65; 152. According to Tobin, very few
drivers meet his standards. Tobin depo. at 104. He rated Grissinger as satisfactory
on not following too closely and allowing sufficient stopping distance, but thought
Grissinger spent too much time looking straight in front of him rather than checking
mirrors and gauges. Tobin depo. at 186-193.

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Michael Sutton, a professional engineer hired as a plaintiffs’ expert, believed
there is no reason that Grissinger should not have seen the decedent’s vehicle,
regardless of whether her tail lights were operational or not. Sutton depo. at 75, 77.
He believes the accident was the result of inattention by Grissinger. Sutton depo. at
85, 89-90, 181, 183. According to Sutton, Grissinger had 18 seconds, during which
he covered 1750 feet, from the time he should have seen the decedent’s car until the
time of impact. Sutton depo. at 118.
Because he was in a rear end collision, Grissinger was automatically terminated
by Conway. See e.g., Tobin depo. at 40-41; Depo. of Dan Fowler, at 80.
STANDARD OF REVIEW
A moving party is entitled to summary judgment if there is no genuine issue
of material fact, leaving final judgment to be decided as a matter of law. See Federal
Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S.Ct. 1348, 1355-56 (1986); Reeves v. C.H. Robinson Worldwide,
Inc., 525 F .3d 1139, 1143 (11th Cir.2008). The facts, and any reasonable inferences
therefrom, are to be viewed in the light most favorable to the non-moving party, with
any doubt resolved in the non-movant’s favor. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 158, 90 S.Ct. 1598, 1609 (1970). All “reasonable doubts” about the facts
and all justifiable inferences are resolved in favor of the non-movant. Fitzpatrick v.
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City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). However, all “doubts” need not
be so resolved. Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th
Cir.1987). Once met by the moving party, however, the burden shifts to the
non-moving party to come forward with evidence to establish each element essential
to that party's case sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Earley v. Champion Int’l Corp.,
907 F.2d 1077, 1080 (11th Cir.1990).
A party opposing a properly submitted motion for summary judgment may not
rest upon mere allegations or denials of his pleadings, but must set forth specific facts
showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578,
1580 (11th Cir.1990). In addition, the non-moving party's evidence on rebuttal must
be significantly probative and not based on mere assertion or be merely colorable.
See Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
2505, 2511 (1986). Speculation does not create a genuine issue of fact. Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.2005).
“The mere existence of some factual dispute will not defeat summary judgment
unless that factual dispute is material to an issue affecting the outcome of the case ....
A genuine issue of material fact does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable jury to return a verdict in its favor.”
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Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000), quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995). A factual dispute regarding a nonmaterial issue will not preclude the defendant from succeeding on a motion for
summary judgment. Brown v. American Honda Motor Co., 939 F.2d 946, 953 (11th
Cir.1991).
LEGAL ANALYSIS
Wantonness
The defendants argue that there is no evidence of wantonness on the part of
either defendant. The Alabama Code defines “wantonness” as “[c]onduct which is
carried on with a reckless or conscious disregard of the rights or safety of others.” §
6-11-20(b)(3), Ala.Code 1975. Wantonness requires 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.” Clark v. Kindley, 10 So.3d 1005, 1008 (Ala.Civ.App.2007) (quoting Alfa Mut.
Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998). See also Serio v. Merrell, Inc.,
941 So.2d 960, 966-967 (Ala.2006). In essence, plaintiffs argue that the fact that
defendant Grissinger rear-ended the decedent’s vehicle establishes wantonness
because decedent’s vehicle “should have been visible” for approximately 1750 feet,
had Grissinger maintained a “proper lookout.” Plaintiffs memorandum, at 12-19.
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However, the failure to maintain a proper lookout is negligence – wantonness
requires more. See e.g., Birmingham Electric Co. v. Turner, 241 Ala. 66, 70, 1
So.2d 299, 302 (Ala.1941) (“failure to keep a proper lookout is negligence, but
wantonness cannot be established unless it is shown that the motorman knew that the
place was one where people passed in such numbers and that it was likely or probable
that persons or vehicles would be passing upon or over the track.”). As the Alabama
Supreme Court has repeatedly stated:
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, willful, or
reckless misconduct is an acting, with knowledge of
danger, or with consciousness, that the doing or not doing
of some act will likely result in injury....
Negligence is usually characterized as an inattention,
thoughtlessness, or heedlessness, a lack of due care;
whereas wantonness is characterized as ... a conscious ...
act. “Simple negligence is the inadvertent omission of duty;
and wanton or willful misconduct is characterized as such
by the state of mind with which the act or omission is done
or omitted.” McNeil v. Munson S.S. Lines, 184 Ala. 420,
[423], 63 So. 992 (1913)....
Ex parte Essary, 992 So.2d 5, 9–10 (Ala.2007) (quoting Tolbert v.
Tolbert, 903 So.2d 103, 114–15 (Ala.2004), quoting in turn other cases)
(emphasis omitted).

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Norfolk Southern Ry. Co. v. Johnson, 75 So.3d 624, 646 (Ala.2011). Nothing in the
facts or even the allegations before this court rise to the level of wantonness. The
court has no evidence before it from which a reasonable trier of fact could conclude
that defendant Grissinger acted with wanton intent. The court shall grant defendants’
motion on the issue of wantonness.
Negligent/Wanton Entrustment
The defendants assert that there is no evidence to establish that defendant
Conway negligently or wantonly entrusted a vehicle to defendant Grissinger. To
prevail on a claim of negligent entrustment, the plaintiff must establish (1) an
entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4)
proximate cause; and (5) damages. Askew v. R & L Transfer, Inc., 676 F.Supp.2d
1298, 1303 (M.D.Ala.2009). See also Edwards v. Valentine, 926 So.2d 315, 320
(Ala.2005), citing Halford v. Alamo Rent-A-Car, LLC, 921 So.2d 409, 412 (Ala.2005)
(quoting Mason v. New, 475 So.2d 854, 856 (Ala.1985) (emphasis omitted)). In
Alabama, “the incompetence of a driver is measured by the driver’s demonstrated
ability (or inability) to properly drive a vehicle.” Halford, 921 So.2d at 413-14.
The plaintiffs assert that given the minimal time that defendant Grissinger had
been driving and that he had hit a light pole, defendant Conway should have known
that defendant Grissinger was not competent. Considering the evidence before the
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court in the light most favorable to the plaintiffs, the court will allow the negligent
entrustment claim to proceed to the jury.
To prove wanton entrustment, the plaintiffs must show that defendant Conway
either knew or should have known that defendant Grissinger was incompetent to
drive. Bruck v. Jim Walter Corp., 470 So.2d 1141, 1144 (Ala.1985). The evidence
establishes that defendant Grissinger had a valid CDL, had completed additional
training upon being hired by defendant Conway, and had completed Conway’s
“finishing program” in which he completed an additional 7,500 miles of driving and
observation. The plaintiffs assert Grissinger’s lack of experience driving establishes
“incompetence,” although they cite no case which has found a lack of experience is
equivalent to incompetence when claiming wanton entrustment. See plaintiffs’
memorandum at 20. Based on the evidence submitted, the court is of the opinion
that the plaintiffs can not establish that defendant Conway knowingly allowed
Grissinger to operate a motor vehicle with knowledge of his incompetence such that
a reasonable jury could find defendant Conway liable for wanton conduct. As such,
the court will grant the defendants’ summary judgment motion on this claim.
Negligent/Wanton Hiring. Supervision or Training
Negligent/wanton hiring, supervision and training claims, like negligent
entrustment claims, depend in part on Grissinger’s competency or lack of
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competency as a driver. Hetzel v. Fleetwood Trucking Co., Inc., 90 So.3d 180, 182183 (Ala.Civ.App.2012)(citing Jones Exp., Inc. v. Jackson, 86 So.3d 298, 305
(Ala.2010). To support a claim of negligent supervision and training, the plaintiffs
must prove that (1) defendant Grissinger committed a tort recognized under Alabama
law, (2) Grissinger was incompetent to drive his tractor-trailer, (3) defendant
Conway had actual notice of Grissinger’s incompetence or would have known had
it exercised due diligence, and (4) Conway failed to respond to this notice
adequately. Askew, 676 F.Supp.2d at 1303 -1304 (citations omitted).
The defendants assert that they are entitled to judgment in their favor on these
claims of plaintiffs because the plaintiffs must again demonstrate that defendant
Grissinger was incompetent to drive a truck to prevail on these claims. Because of
the lack of evidence of Grissinger’s incompetence, the plaintiffs cannot establish that
defendant Grissinger was hired in spite of his incompetence, or that defendant
Conway failed to adequately train or supervise defendant Grissinger. Because no
evidence establishes that Conway knowingly hired an incompetent driver, this claim
of plaintiffs must fail as a matter of law.
In summary, the plaintiff has failed to provide the court any evidence that
either defendant acted wantonly and further failed to establish that defendant
Conway negligently or hired, trained, or supervised Grissinger.
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CONCLUSION
The defendants’ motion for partial summary judgment on the above discussed
claims is hereby GRANTED IN PART and DENIED IN PART. Said motion is
GRANTED as to plaintiffs’ claims for wantonness, wanton entrustment and
negligent or wanton hiring, training, or supervision, the court finding no genuine
issue of material fact remains as to these claims. Said motion is DENIED as to
plaintiffs’ claim for negligent entrustment.
DONE and ORDERED this the 23rd day of August, 2012.

INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE

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