Anderson v. United States of America

Filing 41

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 1/22/16. (SAC )

FILED
2016 Jan-22 AM 10:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM DEAN ANDERSON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL ACTION NO.
2:14-cv-1182-WMA

MEMORANDUM OPINION
On June 20, 2014, plaintiff William Dean Anderson
(“Anderson”) filed this suit under the Federal Tort Claims Act
alleging that he was injured when struck by a vehicle operated by
Karen Denise Hutchins (“Hutchins”), a United States Postal
Service employee and agent of defendant United States of America.
(Doc. 1).

On December 11, 2015, Anderson filed a motion for

partial summary judgment (Doc. 29) and defendant United States of
America filed a motion for summary judgment (Doc. 31).

On

January 5, 2016, consistent with the court’s briefing schedule,
Anderson and the United States filed their respective responses.
On January 8, 2016, the United States filed a reply.

Both

motions are now under submission.
Summary judgment must be granted if and only if “there is no
genuine issue as to any material fact and . . . the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. Proc.
56(c).

When disputed, the facts are presented in the light most
1

favorable to the non-moving party. See Baldwin County, Ala. v.
Purcell Corp., 971 F.2d 1558, 1563 (11th Cir. 1992).

“For

factual issues to be considered genuine, they must have a real
basis in the record . . . mere conclusions and unsupported
factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (citations omitted).
While Anderson moves for partial summary judgment on the
issues of liability and economic damages (Doc. 29; Doc. 30),

the

United States’ cross-motion for summary judgment raises a
contributory negligence defense that any such violation was not
the proximate cause of Anderson’s injuries. See Baker v. Helms,
527 So. 2d 1241, 1244 (Ala. 1988) (“Therefore, without regard to
the negligence vel non of [the driver], we hold that [the
pedestrian’s] failure to exercise due care in crossing the road
was the proximate cause of his injuries . . . [t]hus, he is
guilty of contributory negligence as a matter of law.”).

For the

reasons stated below, the United States’ motion for summary
judgment will be granted and Anderson’s motion will be denied.
I.

Contributory Negligence
“Contributory negligence is an affirmative and complete

defense to a claim based on negligence.” Norfolk S. Ry. Co. v.
Johnson, 75 So. 3d 624, 639 (Ala. 2011)). The Alabama Supreme
Court has already determined that where a plaintiff crosses
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traffic by “jaywalking” and is struck, “[t]here is no question as
to contributory negligence.” Zaharavich v. Clingerman By &
Through Clingerman, 529 So. 2d 978, 979 (Ala. 1988); see
Allman v. Beam, 130 So. 2d 194, 196 (Ala. 1961) (“the violation
of a statute designed for the protection of a person claiming to
have been injured by reason of such violation, is negligence per
se, or negligence as a matter of law”).

In Alabama, “four

elements are required for violation of a statute to constitute
negligence per se: (1) The statute must have been enacted to
protect a class of persons, of which the plaintiff is a member;
(2) the injury must be of the type contemplated by the statute;
(3) the defendant must have violated the statute; and (4) the
defendant's statutory violation must have proximately caused the
injury.” Parker Bldg. Servs. Co. v. Lightsey ex rel. Lightsey,
925 So. 2d 927, 931 (Ala. 2005) (citing Fox v. Bartholf, 374 So.
2d 294, 295 (Ala. 1979)).
Generally, Alabama’s Rules of the Road were enacted in part
to protect pedestrians like Anderson from roadway injuries.
Bentley v. Lawson, 191 So. 2d 372, 377 (Ala. 1966) (finding that
the Alabama Rules of the Road have in mind the benefit the
pedestrian as well as vehicles).

Specifically, Alabama’s Rules

of the Road for pedestrian crossings plainly state:
(a) Every pedestrian crossing a roadway at any point other
than within a marked crosswalk or within an unmarked
crosswalk at an intersection shall yield the right-of-way to
all vehicles upon the roadway.
3

(b) Any pedestrian crossing a roadway at a point where a
pedestrian tunnel or overhead pedestrian crossing has been
provided shall yield the right-of-way to all vehicles upon
the roadway.
(c) Between adjacent intersections at which traffic-control
signals are in operation pedestrians shall not cross at any
place except in a marked crosswalk.
(d) No pedestrian shall cross a roadway intersection
diagonally unless authorized by official traffic-control
devices; and, when authorized to cross diagonally,
pedestrians shall cross only in accordance with the official
traffic-control devices pertaining to such crossing
movements.
Ala. Code § 32-5A-212 (emphasis added).

This provision includes

a pedestrian’s duty and “responsibility to be particularly
vigilant when crossing a roadway at any point other than within a
marked crosswalk . . . [and] impose a duty on the pedestrian to
yield the right-of-way to all vehicles upon the roadway when the
pedestrian is crossing at any point other than within a marked
crosswalk or within an unmarked crosswalk at an intersection.”
Baker v. Helms, 527 So. 2d 1241, 1244 (Ala. 1988).

As a

pedestrian crossing the street, Anderson is unmistakably among
the class of persons the “jaywalking” statute was designed to
protect.
While Anderson quibbles over whether the actions were
unlawful and resists the use of the label “jaywalking” (Doc. 33-1
at 20-21), he admits failing to use the pedestrian crosswalk
(Doc. 33-1 at 19-22) and in crossing the street at the points he
did (Doc. 33-1 at 12-16, 19-22, 83).

Specifically, Anderson does

not dispute that while there were marked pedestrian crosswalks at
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adjacent intersections located between 17th Street and 3rd and
4th Avenues North, he crossed 17th Street between these adjacent
intersections. (Doc. 32 at 3-4; Doc. 33-2 at 1-2; Doc. 38 at 45).

Therefore, there is no genuine issue as to the material fact

that Anderson’s crossing 17th Street violated the statute.
If this crossing was unlawful, Anderson argues that the
violation was not the proximate cause of his injury because he
“was not committing any of these violations at the time he was
struck . . . [because he] had already crossed 17th Street from
the parking lot, and was about to step up onto the curb, at the
moment he was struck.” (Doc. 38 at 9; Doc. 33-1 at 19-22).
Anderson argues that at the time he was struck he “was attempting
to step up onto the curb . . . standing in the parking lane,
close to the curb, not in the roadway or crossing the street.”
(Doc. 38 at 4; Doc. 33-1 at 19-22). Anderson’s narrow
construction of “roadway” to exclude the parking lane and not to
be bounded by the curb, is contrary to Alabama law.1

For

example, parking regulations under Alabama’s Rules of the Road
considers these parallel parking lanes as part of the roadway and
construes “roadway” as that area being bounded by the curb:
Except when otherwise provided by local ordinance, every
vehicle stopped or parked upon a one-way roadway shall be so

1

Alabama’s Rules of the Road command uniform
interpretation. Ala. Code § 32-5A-11 (“This chapter shall be so
interpreted and construed as to effectuate its general purpose to
make uniform the law of various jurisdictions.”).
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stopped or parked parallel to the curb or edge of the
roadway, in the direction of authorized traffic movement,
with its right-hand wheels within 18 inches of the
right-hand curb or edge of the roadway, or its left-hand
wheels within 18 inches of the left-hand curb or edge of the
roadway.
Ala. Code § 32-5A-138(b) (emphasis added).

Accordingly,

Alabama’s Rule of the Road addressing a pedestrian’s right-of-way
in a crosswalk specifies that “[n]o pedestrian shall suddenly
leave a curb or other place of safety and walk or run into the
path of a vehicle which is so close as to constitute an immediate
hazard.” Ala. Code § 32-5A-211(b) (emphasis added).

Therefore,

because there is no genuine issue as to the material fact that
Anderson was struck in the parking lane and before standing on
the curb,2 thereby in the “roadway”, his unlawful crossing of
17th Street constituted contributory negligence per se that
proximately caused his injuries.
II.

Subsequent Negligence
“Contributory negligence, however, is no defense to

subsequent negligence.” Zaharavich v. Clingerman By & Through
Clingerman, 529 So. 2d 978, 979 (Ala. 1988). “The elements of

2

While it is clear Anderson was not on the curb when he was
struck, Anderson inconsistently states he was “attempting to step
up onto the curb” (Doc. 38 at 4), “was about to step up onto the
curb” (Doc. 28 at 6, 9), “was standing in the parking lane, close
to the curb” (Doc. 38 at 6), and was “[a]bout two feet from the
curb” (Doc. 33-1 at 15; Doc. 34-1 at 5); however, on summary
judgment the court views these statements in the light most
favorable to Anderson.
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subsequent negligence are: (1) that the plaintiff was in a
perilous position, (2) of which the defendant had actual
knowledge, (3) that armed with such knowledge the defendant
failed to use reasonable and ordinary care in avoiding the
accident, (4) that the use of reasonable and ordinary care would
have avoided the accident, and (5) that the plaintiff was injured
as a result.” Treadway v. Brantley, 437 So. 2d 93, 97 (Ala.
1983).

While “knowledge of the plaintiff's peril in a subsequent

negligence case may not be ‘imputed’ to a defendant[,] the
defendant's knowledge may, however, be ‘inferred,’ if such an
inference would be reasonable under the totality of the
circumstances.” Zaharavich, 529 So. 2d at 980.

However, “the

subsequent negligence doctrine does not apply where the
manifestation of the plaintiff's peril and the accident are
virtually instantaneous.” Baker v. Grantham, 585 So. 2d 896, 897
(Ala. 1991) (citing Eason v. Comfort, 561 So.2d 1068 (Ala.
1990)).
Although Hutchins first became aware of Anderson’s presence
when Anderson was “across the street” (Doc. 38 at 5; Doc. 38–3 at
4-5), the evidence in this case is insufficient to allow the fact
finder to find that Hutchins had actual knowledge of Anderson’s
peril of crossing 17th street until immediately before she struck
him.

While Anderson says in his statement of undisputed facts

that "Hutchins has no explanation for failing to see Anderson as

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he was crossing 17th Street, before she hit him" (Doc. 38 at 7),
"[t]he burden is on plaintiff to show actual knowledge on the
part of [the defendant] that [the victim] was in peril." Scotch
Lumber Co. v. Baugh, 256 So. 2d 869, 877 (Ala. 1972).

Anderson

fails to provide any basis3 for finding that when Hutchins saw
Anderson “across the street” that she had any reason to think or
believe that Anderson would illegally cross the roadway by
“jaywalking.” (Doc. 40 at 2-3).

Indeed, it would stretch the

bounds of reasonableness to require a motorist to anticipate that
an adult pedestrian on the sidewalk in a zone of safety would
suddenly enter the roadway, particularly in an urban area with
designated crosswalks.

Compare Pike Taxi Co. v. Patterson, 63

So. 2d 599, 602 (Ala. 1952) (“[t]he motorist must exercise due
care to anticipate the presence of others upon the highway and
not to injure him after he is aware of his presence . . . [where]
[t]he two words due care qualify all that was said . . .
chargeable with knowledge of what a prudent and vigilant operator
3

Anderson argues in his brief, “[i]t is undisputed that
Hutchins was aware of Anderson’s presence on the roadway as a
pedestrian, before the collision” (Doc. 38 at 12), however
Anderson’s statement of undisputed facts merely states “Hutchins
saw Anderson when he was across the street. . . [and] has no
explanation for failing to see Anderson as he was crossing 17th
Street, before she hit him” (Doc. 38 at 7). Ultimately, these
undisputed facts rely on Hutchins’ deposition statements that “I
did see Mr. Anderson and I think it was somebody else across the
street” (Doc. 34-3 at 4), that she “didn’t see [Anderson] as he
was crossing the street” (Doc. 34-3 at 5), and that she “didn’t
observe him in the far side parking lane or on any of the three
lanes of traffic before . . . impact” (Doc. 34-3 at 7).
8

would have seen”) with Carr v. Irons, 259 So. 2d 240, 242 (Ala.
1972) (“[t]he driver of an automobile, and a pedestrian on a
public highway or street, each owe to the other the duty to
exercise such reasonable care as the attendant circumstances may
require”); see also Rodgers v. Turberville, 29 So. 3d 224, 227
(Ala. Civ. App. 2009) (finding a separate duty to use ordinary
and reasonable caution for the safety of minor pedestrians
present on the roadway).
Instead, the evidence demonstrates Hutchins’ manifestation
of Anderson's peril and the accident were virtually
instantaneous, where Hutchins states “[w]hen I saw [Anderson], he
was right in front of my vehicle, and he . . . hit the hood of my
truck, and I immediately stopped.” (Doc. 34-3 at 4-5).

In Dees

v. Gilley, the Alabama Supreme Court inferred actual knowledge
where the the driver “admitted not only that she was looking in
the direction of the boys and that her view was unobstructed but
also that she actually saw something in the road 200 to 300 feet
ahead of her.” 339 So. 2d 1000, 1002 (Ala. 1976) (emphasis
added).

In this case, there is no evidence Hutchins saw Anderson

in the road, only that Hutchins saw Anderson “across the street.”
In Zaharavich, the Alabama Supreme Court inferred actual
knowledge where the defendant admitted seeing the victim
“[r]unning and dodging traffic.” 529 So. 2d at 979. Here, there
is no evidence Hutchins saw Anderson running and dodging 17th
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Street traffic, only that Hutchins saw Anderson “across the
street.”

In Eason, the Supreme Court of Alabama determined that

actual knowledge could not be inferred from the totality of the
circumstances where a driver saw two pedestrians “cross in front
of her car . . . but that she did not see [the victim] at any
time prior to impact.” 561 So. 2d at 1071. Here, actual knowledge
by Hutchins cannot be inferred from the totality of the
circumstances where Anderson was “across the street.”

Finally,

in Baker v. Grantham, the Supreme Court of Alabama found
insufficient evidence to establish actual knowledge where the
driver “was only 20 feet from [the victim] when he first became
aware of [the victim’s] presence in the roadway” even where the
driver admitted “prior to the accident he had been looking in the
direction in which he was driving and that his view was
unobstructed.” 585 So. 2d at 897.

Therefore, lacking sufficient

evidence to establish Hutchins’ had actual knowledge, summary
judgment is appropriate because there is no triable issue for
subsequent negligence.4
CONCLUSION
For the reasons stated above, by separate order the United

4

Defendant alternatively argues that summary judgment is
appropriate because Anderson failed to plead subsequent
negligence in his complaint, however in Alabama a theory of
“subsequent negligence can be the basis of recovery under a count
charging simple negligence.” Plenkers v. Chappelle, 420 So. 2d
41, 43 (Ala. 1982).
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States’ motion for summary judgment will be granted and
Anderson’s motion denied.

DONE this 22nd day of January, 2016.

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

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