Cannon v. Modular Transportation Company

Filing 35

MEMORANDUM OPINION AND ORDER For reasons as noted within, the court VACATES its order of March 3, 2014, and DENIES defendants' motion for partial summary judgment on the claim of wantonness. Signed by Judge William M Acker, Jr on 3/6/14. (SAC )

FILED
2014 Mar-06 PM 03:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CONSUELLA GRIFFIN, as mother
and next friend of Aaliyah
Moreland, a minor and natural
child of Andrew Moreland,
Jr., deceased,
Plaintiff,
MODULAR TRANSPORTATION
COMPANY and ROBERT D.
PHINIZEE,
Defendants.

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Case No. 2:12-CV-2378-WMA

MEMORANDUM OPINION AND ORDER
The court has for consideration the motion filed on March 5,
2014, by defendants seeking a reconsideration of the memorandum
opinion and order of March 3, 2014, and an amendment to or vacation
of that order.

The motion brings to the court’s attention what the

court failed to comprehend from reading the briefs filed in support
of and in opposition to defendants’ previous motion for partial
summary judgment, seeking an adjudication that plaintiff, Consuella
Griffin (“Griffin”), cannot proceed on a claim of wantonness.
Defendants’

earlier

brief

argued

other

reasons

for

an

eliminating the claim of wantonness, but did not make clear to the
court

the

negligence

reason
and

it

now

wantonness.

asserts

for

Because

distinguishing
the

distinction

between
affects

defendants’ defense of contributory negligence, the court will
address the merits of their argument for partial summary judgment.

For the reasons stated below, defendants’ motion for partial
summary judgment is DENIED.
BACKGROUND
The collision that caused the death of Andrew Moreland, Jr.
(“Moreland”) happened between 5:15 A.M. and 5:45 A.M. on Monday,
June 11, 2012.

It took place on Highway 79 just north of the

intersection

Valley

Alabama.1

of

East

Industrial

Drive

in

Birmingham,

That portion of Highway 79 passes through an industrial

park and has four lanes divided by a grassy median.
The collision occurred while Phinizee was backing up an 18wheel flatbed tractor trailer perpendicularly across Highway 79,
thereby blocking the two southbound lanes for an unknown period of
time.2

The trailer had its back flashers on and had one side light

on in the middle of the flatbed.

Keith Jones (“Jones”) was driving

a pickup truck in the inner southbound lane and noticed the trailer
blocking the southbound lanes when he was approximately 100 yards
away.

Although he could not see the flashers very well, Jones had

time to come to a controlled stop.

Moreland was driving his car in

the outer southbound lane next to and slightly behind Jones’s

1

Pursuant to Rule 56, FED. R. CIV. P., the court views all admissible
evidence in the light most favorable to Griffin and draws all reasonable
inferences in her favor.
2

Defendants claim that Phinizee was turning into the driveway, not
backing up, at the time of the collision. However, they acknowledge that the
interpretation of facts most favorable to Griffin would be that Phinizee was
backing up into the southbound lanes.

2

truck.

If Moreland slowed down as he neared the trailer, he did

not slow down enough to prevent his car from colliding with the
flatbed with such force that it became wedged underneath it.
Phinizee testifies that he does not remember feeling the
impact.

He became aware of a problem when his trailer would not

move forward after Moreland’s car became wedged underneath it.
Phinizee started to exit the trailer cabin to identify the problem
when another motorist approached the cabin, told Phinizee that a
car had collided with the trailer and that the car was on fire, and
asked for Phinizee’s fire extinguisher.

Phinizee called 911, went

to assist with the fire, then returned to the cabin to move the
trailer in an attempt to dislodge Moreland’s car.

Moreland’s car

exploded before it could be dislodged and before Moreland could be
pulled from it.
The trailer was in the area of the collision because Modular
had assigned Phinizee to transport steel coils from Chicago to
Birmingham.

Phinizee picked up the steel coils the Friday before

the collision.

He stayed at his uncle’s friend’s house in the

Nashville area on Saturday and Sunday then drove the trailer to
Birmingham early on Monday morning.

Phinizee used the delivery

address on the bill of lading as his destination on his personal
GPS device.

Phinizee had his GPS device in the trailer cabin on

the dashboard because he had never been to the delivery address
before.

The GPS device caused Phinizee to turn left into a

3

driveway on Highway 79, but the correct delivery address was
further south.
error,

he

Griffin claims that when Phinizee realized his

backed

up

the

trailer

to

get

back

on

Highway

79

southbound, and it was then that the collision occurred.
Many facts relating to the collision come from Jones’s account
because Phinizee says that he does not remember much about the
accident.

He claims to not remember whether he backed up at all,

how long he blocked the southbound lanes before the collision, and
whether he realized at the time that he was blocking the southbound
lanes.

Phinizee contends that he thought he was turning into the

driveway of the correct delivery address, although he does not
remember if he backed up, so he cannot refute that part of
Griffin’s narrative.

Phinizee also contends that he put his GPS

device on mute before turning into (or backing up from) the
driveway.

Griffin speculates that Phinizee was looking at his GPS

device while backing up across the highway.
The parties agree that it was dark with misty rain at the time
of the collision, but they do not agree on the degree of visibility
or the traffic conditions.

Jones, a regular commuter, describes

the normal traffic at that time of day as variant: “[s]ometimes
it's busy, and sometimes it's not. It's just hitting it." Doc. 273, p.10.

Jones does not recall seeing anyone in the southbound

lanes other than himself, Moreland, and Phinizee.

Phinizee notes

that two unidentified men appeared after the collision to help

4

direct traffic and to try to extinguish the car fire; these men may
or may not have been other drivers.
that

directly

addressed

the

Phinizee gave no testimony

traffic

conditions.

From

this

evidence, Griffin claims that the collision occurred during busy
morning traffic, and Phinizee knew or should have known that
employees in industrial parks work early hours.
Jones’s

testimony

regarding

normal

traffic

Defendants note
conditions

but,

otherwise, say only that the state of traffic at the time of the
collision is unknown.
DISCUSSION
To grant summary judgment, a court must determine that there
is no genuine dispute of material fact and that the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56.

A

genuine dispute of material fact exists if “a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).

For the purposes of summary

judgment, the court views all admissible evidence in the light most
favorable

to

the

nonmoving

party

and

draws

all

reasonable

inferences in that party’s favor. Scott v. Harris, 550 U.S. 372,
378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)).

The court's function does not extend to “weigh[ing]

the evidence and determin[ing] the truth of the matter” but is
limited to “determin[ing] whether there is a genuine issue for
trial.” Liberty Lobby, 477 U.S. at 249.
5

Defendants move for partial summary judgment on the claim of
wantonness.

In Alabama, wantonness requires conduct undertaken

with knowledge of the existing conditions and with consciousness
that injury will likely or probably result. Ex parte Essary, 992
So. 2d 5, 9 (Ala. 2007) (quoting Bozeman v. Cent. Bank of the S.,
646 So.2d 601 (Ala. 1994)).
consciousness

does

not

Determining defendants’ knowledge and

require

direct

proof and may

rest

on

reasonable inferences drawn from the circumstances. Klaber v.
Elliott, 533 So.2d 576, 579 (Ala. 1988).

A plaintiff must show

substantial evidence of wantonness for the court to submit the
issue to a jury. See ALA. CODE § 12–21–12 (1975); Phillips ex rel.
Phillips v. United Servs. Auto. Ass'n, 988 So.2d 464, 467 (Ala.
2008).

Substantial evidence is “evidence of such weight and

quality that fair-minded persons in the exercise of impartial
judgment can reasonably infer the existence of the fact sought to
be proved.” Phillips, 988 So.2d at 467 (quoting West v. Founders
Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala. 1989)).
Evaluating a claim of wantonness in operating a motor vehicle,
as in the present case, must begin with Ex parte Essary, 992 So. 2d
5 (Ala. 2007). In Essary, the plaintiff claimed that the defendant
had stopped at a 2-way stop sign and, seeing an oncoming car, tried
to “shoot the gap.” Id. at 12.

The Alabama Supreme Court found

that this scenario does not show wantonness because the defendant
would not have tried to “shoot the gap” if he had thought it likely
6

to result in injury to himself. Id.

Thus, the Court formulated the

“Essary presumption”: courts do not expect people to “engage in
self-destructive behavior” and will presume against wantonness when
the risk of injury to the actor is as real as the risk of injury to
others. Id.
The Essary presumption has two explicit exceptions and a third
implicit

exception.

See

id.

The

presumption

against

self-

destructive behavior does not apply (1) if there is “some evidence
of impaired judgment,” such as alcohol consumption, or (2) if the
conduct “is so inherently reckless that we might otherwise impute
to [the actor] a depravity consistent with disregard of instincts
of safety and self-preservation.” Id.

Although not discussed in

any case, an implicit exception logically applies (3) if the risk
of injury to the actor is somehow not as real as the risk of injury
to others. See Jinright v. Werner Enters., 607 F.Supp.2d 1274,
1276-77 (M.D. Ala. 2009) (the Essary presumption applies “in most
cases involving car accidents”) (emphasis added).

The second and

third exceptions bear on the present case.3
3

Although Griffin also invokes the first Essary exception of impaired
judgment, her grounds are insufficient. Griffin claims that Phinizee had
impaired judgment based on his lack of memory of the collision, his lack of
sleep, and his looking at the GPS device while backing up the trailer. She
does not allege any cause for Phinizee’s memory lapses that could also show
impaired judgment, e.g., alcohol consumption. Griffin has no evidence for
alleging that Phinizee lacked adequate sleep and, indeed, she says in a brief
that he “slept an appropriate period” beforehand. Pl. Resp. 2. Also, if
Phinizee was looking at a GPS device while backing up the trailer, such an
action might be an error of judgment, but it would not impair his judgment in

7

The second exception to the Essary presumption for inherently
reckless conduct is best exemplified by Johnson v. Baldwin, 584
F.Supp.2d 1322 (M.D. Ala. 2008).

In Johnson, the defendant began

driving in reverse in a lane on Interstate Highway 85. Id. at 1323.
Although the defendant claimed that she thought she was driving on
the shoulder, evidence inconsistencies made it possible for a jury
to conclude that the defendant knew that she was driving in a
regular lane. Id. at 1327.

Driving in reverse in a lane of a major

interstate created a high probability of injury to others and
qualified as inherently reckless such that it met the second Essary
exception. Id.

Thus, there was no presumption against wantonness

even though the driver risked injury to herself. Id. at 1328.
A case consistent with the second Essary exception that
strongly resembles the present case is Valley Bldg. & Supply, Inc.
v. Lombus, 590 So. 2d 142 (Ala. 1991).

In Valley, an 18-wheel

tractor trailer delivered roofing materials to a business on
Highway 280 during “rush hour” in Childersburg, Alabama. Id. at
143-44. An employee told the trailer driver that in order to allow
the trailer to exit he and a customer would stop traffic so that
the driver could back out safely onto Highway 280. Id. at 143.

As

the trailer backed out, a car collided with it, killing the car
driver. Id.

The car driver’s estate claimed that the employee had

acted wantonly. Id.

According to the Court, a jury could conclude

the same manner as alcohol would.

8

that the employee was aware that it was rush hour; that he did not
use any warning devices to stop traffic; that he signaled the
trailer to back out anyway; and that other cars driving towards the
trailer were not braking as they neared it. Id. at 144-45.

The

Court found that these facts constituted substantial evidence of
wantonness. Id. at 145. Although Valley was decided before Essary,
the facts of Valley are consistent with the second Essary exception
for

inherent

recklessness,

namely,

highly

probable

injury

to

others.
This court finds that a jury could reasonably conclude that
the second Essary exception for inherent recklessness applies to
the present case.

Taken in the light most favorable to Griffin,

the facts indicate that Phinizee backed out his trailer across
Highway 79, which blocked the two southbound lanes for an unknown
period of time. Although Phinizee’s conduct is less egregious than
the driver’s conduct in Johnson, these facts strongly resemble
Valley with some variance in traffic and weather conditions.

The

evidence of busy traffic is less compelling here than in Valley,
which weighs against finding comparable wantonness. See id. at 14445.

The darkness and the misty rain, however, made the weather in

the present case more dangerous than in Valley. See id.

Reduced

visibility would make it harder for other drivers to see the
flatbed trailer with its one side light, which weighs in favor of
finding comparable wantonness. Although the facts do not precisely
9

mirror Valley, the evidence as a whole would allow a jury to
reasonably find that Phinizee’s conduct was inherently reckless
such that the Essary presumption against wantonness does not apply.
The Essary presumption also does not apply to the present case
because of the implicit third exception.

The Essary presumption

presupposes that the risk of injury to the actor is as real as the
risk of injury to others. See Jinright v. Werner Enters., 607
F.Supp.2d 1274, 1276-1277 (M.D. Ala. 2009). This presupposition is
typically true for collisions involving two-passenger vehicles like
cars and SUVs.
tractor trailer.

However, the present case involves an 18-wheel
Only the flatbed portion of Phinizee’s tractor

trailer was blocking Highway 79——not the trailer cabin with the
driver’s seat. Doc. 27-3, p. 17.

A collision between a car and the

flatbed portion of a tractor trailer does not carry the same risk
of injury to the trailer driver as it does to the car driver.
Indeed, Phinizee testified that he did not even realize that the
collision had occurred until he had trouble moving the trailer
forward

and

someone

approached

the

cabin

to

tell

him

about

Moreland’s car. In the limited circumstance where a trailer driver
does not have as real a risk of injury as the drivers of any
passenger vehicles that collide with the flatbed do, the Essary
presumption against the trailer driver’s wantonness does not apply.
Without having to overcome the Essary presumption, the court
finds

that

Griffin

has

presented
10

substantial

evidence

of

wantonness.

Wantonness

requires

that

the actor

knew

of

the

existing conditions and was conscious that injury would likely or
probably result. Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007)
(quoting Bozeman v. Cent. Bank of the S., 646 So.2d 601 (Ala.
1994)).

A jury could reasonably conclude from the circumstances

that Phinizee knew about the weather and the traffic conditions,
which, although disputed, the evidence shows to be busy enough that
multiple vehicles encountered the trailer while it was blocking the
southbound lanes. A jury could also reasonably infer that Phinizee
was

conscious

that

backing

up

the

trailer

and

blocking

southbound lanes was likely to result in injury to others.
substantial

evidence

for

the

required

elements,

the
With

defendants’

wantonness remains a fact question for a jury to decide.
Having

determined

that

Griffin’s

wantonness

claim

will

proceed, the court now addresses defendants’ argument that a jury
could

not

award

punitive

damages

against

Modular

based

on

Phinizee’s conduct without showing that Modular has a higher degree
of culpability pursuant to ALA. CODE § 6-11-27 (1975).
argument is without merit.
unequivocally
evidentiary

stated

burden

that

imposed

This

The Supreme Court of Alabama has
“[i]t
by

§

is

well-settled”

6-11-27

“does

not

that
apply

the
in

wrongful-death cases.” Boudreaux v. Pettaway, 108 So. 3d 486, 495
(Ala. 2012) (citing Cain v. Mortg. Realty Co., 723 So.2d 631, 633
(Ala. 1998)).

11

CONCLUSION
Interpreting the facts in the light most favorable to Griffin,
she has presented sufficient evidence of defendants’ wantonness to
present a genuine factual dispute for trial.

Accordingly, the

court VACATES its order of March 3, 2014, and DENIES defendants’
motion for partial summary judgment on the claim of wantonness.
DONE this 6th day of March, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

12