Parker v. Oliva et al

Filing 32

MEMORANDUM OPINION AND ORDER- The defts' motion for partial summary judgment is due to be GRANTED. (Doc. 24 ). The pltf's claims for wantonness, as well as the claims for wanton and/or negligent entrustment, hiring, training, and supervision, are DISMISSED. Signed by Magistrate Judge Staci G Cornelius on 10/15/20. (MRR, )

FILED
2020 Oct-15 PM 03:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MCTHREENA PARKER,
Plaintiff,
v.
JOSE OLIVA, et al.,
Defendants.

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Case No. 2:18-cv-00779-SGC

MEMORANDUM OPINION AND ORDER 1
This matter arises out of a May 28, 2016 traffic accident in Jefferson County,
Alabama. (Doc. 1). Presently pending is the motion for partial summary judgment
filed by the defendants, Jose Oliva and AJ Lines, Inc. (Doc. 24). The motion is fully
briefed and ripe for adjudication. (Docs. 25–28). As explained below, the motion
is due to be granted; the plaintiff’s claims for wantonness and negligent and/or
wanton entrustment, hiring, training, and supervision are due to be dismissed.
I.

SUMMARY JUDGMENT STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment

is proper “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
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The parties have consented to dispositive magistrate judge jurisdiction pursuant to
28 U.S.C. § 636(c). (Doc. 16).

law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings or filings
which it believes demonstrate the absence of a genuine issue of material fact. Id. at
323. Once the moving party has met its burden, Rule 56(e) requires the non-moving
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
there is a genuine issue for trial. See id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.
1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. See id. at 249.
II.

FACTS
Oliva obtained his commercial driver’s license in approximately 2015 after

completing a truck driving school in Florida. (Doc. 25 at 4). Prior to obtaining his
CDL, Oliva received two traffic citations while driving a non-commercial vehicle—
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one for failure to maintain lane in 2011 and one for his role in a 2012 car accident.
(Doc. 25-3 at 17–18, 75–76).
Oliva began working for AJ Lines in late 2015 or early 2016. (Doc. 25 at 3).
His job with AJ Lines was his first as a truck driver. (Doc. 26 at 3). At some point,
he received an out-of-service order for failing to keep his commercial driving
logbook up to date. (Doc. 25 at 4). He did not receive any citations for moving
violations while driving a commercial vehicle before the subject accident. (Id.).
On May 28, 2016, Oliva was driving a fully-loaded tractor-trailer owned by
AJ Lines and was at all times acting in the line and scope of his employment. (Doc.
25 at 2; Doc. 26 at 4). Oliva testified he was traveling eastbound in the right lane of
Highway 78 in Jefferson County, Alabama at approximately 40 to 45 miles per hour.
(Doc. 25 at 2). The portion of Highway 78 where the accident occurred has several
traffic lights and is close to a Walmart. (Doc. 25-3 at 8-9; Doc. 26 at 4). This was
the first time Oliva had ever traveled on this road. (Doc. 25-3 at 8-9).
The plaintiff, McThreena Parker, was a passenger in the car directly in front
of Oliva’s truck. (Doc. 25 at 3). Brush along the side of the highway partially
obstructed Olivia’s view of an upcoming traffic light. (Doc. 25-3 at 10). Then, when
he was approximately 225 feet behind the plaintiff’s car, he saw the traffic light was
yellow. (Doc. 25 at 3). The plaintiff’s car came to a complete stop at the
intersection. (Id.). Oliva applied his brakes, which locked up, and the truck struck
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the plaintiff’s car from behind a few seconds after the plaintiff’s car stopped. (Id.;
Doc. 26 at 4). Patricia Mauldin, another passenger in the car who saw the truck
coming from behind in the rearview mirror. During her deposition, Mauldin initially
estimated the truck was travelling at 80 miles per hour; she subsequently testified
she did not know the truck’s speed, but believed it was speeding when it struck the
car. (Doc. 27-2 at 8-9).
Shortly after the accident, AJ Lines went out of business and shut down. (Doc.
27-1 at 7). On June 2, 2016, the plaintiff’s attorney sent a preservation letter to the
members of AJ Lines asking them to preserve several documents “routinely
maintained in accordance with State and Federal regulations and in the routine
course of the business of a commercial vehicle operation” for purposes of discovery
in potential litigation. (Doc. 27-1 at 49). Almantas Rudzionis, the owner and general
director of AJ Lines, received the letter on June 7, 2016. (Doc. 26 at 2). But
Rudzionis could not locate or produce any documents related to the hiring, training,
and supervision of Oliva. (Id. at 3). Rudzionis called Grazima Kiaunyte, who was
AJ Lines’ safety director responsible for maintaining those records before the
company shut down; however, Kiaunyte did not answer Rudzionis’s phone call, and
Rudzionis did not know where Kiaunyte worked after AJ Lines shut down. (Doc.
27-1 at 8; Doc. 28 at 2). AJ Lines had moved business locations on several

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occasions, so Rudzionis suspected the records were lost during one of those moves.
(Doc. 27-1 at 7–8; Doc. 28 at 2).
III.

DISCUSSION
The defendants move for summary judgment on the plaintiff’s claims for

wantonness and negligent and/or wanton entrustment, hiring, training, and
supervision. (Doc. 24 at 1). Substantive Alabama law governs these claims, which
are addressed in turn. But before addressing the merits of the defendants’ motion,
the court first addresses the plaintiff’s contention the motion should be denied as a
sanction for spoliation of evidence and failure to produce evidence during discovery.
A.

Spoliation

The plaintiff argues the defendants have committed spoliation—i.e., they
suppressed or destroyed evidence—warranting the denial of their motion for
summary judgment. (Doc. 26 at 6). According to the plaintiff, the defendants failed
to produce documents pertaining to Oliva’s hiring, training, and employment at AJ
Lines, as well as AJ Lines’ internal investigation of the accident. (Id. at 8–9). The
plaintiff argues the defendants knew they were required to preserve these documents
because: (1) the Federal Motor Carrier Safety Act required it; and (2) they received
a letter from the plaintiff’s attorney nine days after the accident asking them to
preserve the documents in anticipation of potential litigation. (Doc. 27-1 at 49–53).
The defendants do not deny they had the requested documents in their
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possession at some point—AJ Lines’ Rule 30(b)(6) witness, Rudzionis, admitted as
much during his deposition. (Doc. 27-1 at 10). Instead, the defendants argue they
were unable to locate the documents. (Doc. 28 at 6). Rudzionis testified: (1) he
searched for the documents but failed to find them; (2) AJ Lines’ safety director
responsible for maintaining the documents would not answer his calls; (3) he did not
know where the safety director then worked; and (4) AJ Lines may have lost the
documents during one of its moves. (Doc. 27-1 at 7–8). Based on Rudzionis’s
testimony, the defendants contend no spoliation occurred. (Doc. 28 at 6–7).
“Spoliation is ‘defined as the destruction of evidence or the significant and
meaningful alteration of a document or instrument.’” Tesoriero v. Carnival Corp.,
965 F.3d 1170, 1184 (11th Cir. 2020) (quoting Green Leaf Nursery v. E.I. DuPont
De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003)). “In some circumstances,
a party’s ‘spoliation of critical evidence may warrant the imposition of sanctions.’”
Id. (quoting Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005)).
“Because spoliation is an evidentiary matter, ‘federal law governs the imposition of
spoliation sanctions.’” Id. (quoting Flury, 427 F.3d at 944).
As a sanction for spoliation, the court may instruct the jury that it can infer
the destroyed evidence would have been unfavorable to the party responsible for the
destruction. See Flury, 427 F.3d at 945. “At the summary judgment stage, the
spoliation doctrine provides a basis for denying a motion for summary judgment
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where there is sufficient probative evidence for a jury to find an act of spoliation and
to draw the inference derived from such an act.” Watson v. Edelen, 76 F. Supp. 3d
1332, 1343 (N.D. Fla. 2015); see also Stanton v. Nat’l R.R. Passenger Corp., 849 F.
Supp. 1524, 1528 (M.D. Ala. Apr. 19, 1994) (giving prejudiced party the adverse
inference on summary judgment upon determining a question of fact existed as to
whether opposing party committed sanctionable spoliation).
When deciding whether to impose sanctions, courts consider the following
factors: (1) “whether the party seeking sanctions was prejudiced as a result of the
destruction of evidence and whether any prejudice could be cured”; (2) “the practical
importance of the evidence”; (3) “whether the spoliating party acted in bad faith”;
and (4) “the potential for abuse if sanctions are not imposed.” ML Healthcare Servs.,
LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018) (citing Flury,
427 F.3d at 945).
However, “[s]poliation sanctions—and in particular adverse inferences—
cannot be imposed for negligently losing or destroying evidence.” Tesoriero, 965
F.3d at 1184. “Indeed, ‘an adverse inference is drawn from a party’s failure to
preserve evidence only when the absence of that evidence is predicated on bad
faith.’” Id. (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)). Bad
faith, in the context of spoliation, “generally means destruction for the purpose of
hiding adverse evidence.” Id. (quotation marks omitted). “This consideration is key
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in evaluating bad faith because the party’s reason for destroying evidence is what
justifies sanctions (or a lack thereof).” Id. The plaintiff must therefore establish the
defendants destroyed the requested documents in bad faith. See id. at 1186 (“Mere
negligence in losing or destroying evidence is not enough to warrant sanctions.”)
(citing Bashir, 119 F.3d at 931).
In Tesoriero the Eleventh Circuit surveyed its prior holdings to illustrate the
differences between bad faith and mere negligence.

See id. at 1184–85.

Summarizing its decision in Bashir, the Eleventh Circuit explained: “Because
plaintiffs produced no evidence that the [defendant] train company purposefully lost
or destroyed the [requested evidence], we concluded that there was no showing of
bad faith.” Id. (citing Bashir, 119 F.3d at 931–32). Conversely, in Flury, “bad faith
was evident, and spoliation sanctions were appropriate.” Id. (citing Flury, 427 F.3d
at 945). In Flury, which centered on a vehicle’s malfunctioning airbags, the plaintiff
was fully aware the defendant wished to inspect the vehicle but nevertheless allowed
it to be sold for salvage—a purposeful act that could not be reasonably explained as
not involving bad faith. See id. (citing Flury, 427 F.3d at 945). Tesoriero also
favorably cited a Florida district court decision “concluding that bad faith can be
established by circumstantial evidence only when the ‘act causing the loss cannot be
credibly explained as not involving bad faith by the reason proffered by the
spoliator.’” Id. (quoting Calixto v. Watson Bowman Acme Corp., No. 07-60077,
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2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009)).
Here, while the plaintiff produced evidence showing the defendants had a duty
to preserve the requested documents in anticipation of litigation, “anticipation of
litigation is not the standard for spoliation sanctions—bad faith is.” Id. at 1183. Just
as in Bashir, the plaintiff produced no evidence that AJ Lines “purposefully lost or
destroyed” the requested documents; thus, “there [is] no showing of bad faith.” Id.
(citing Bashir, 119 F.3d at 931–32). Furthermore, the act causing the loss of the
documents can be credibly explained as not involving bad faith.

AJ Lines

presumably misplaced or accidently discarded the documents during one of its
moves—an act indicating negligence, not bad faith. Accordingly, the plaintiff has
failed to show bad faith through either direct or circumstantial evidence, and the
court declines to impose spoliation sanctions.
B.

Wantonness

Alabama law defines wantonness as “[c]onduct which is carried on with a
reckless or conscious disregard for the rights or safety of others.” ALA. CODE § 6–
11–20(b)(3). As explained by the Alabama Pattern Jury Instructions, a defendant’s
conduct is wanton if he “consciously acts or fails to act with a reckless or conscious
disregard of the rights or safety of others, and [] is aware that harm will likely or

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probably result.” 2 Ala. Pattern Jury Instr. Civ. § 29.00 (3d ed.). As explained by
the Alabama Supreme Court:
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.
Carter v. Treadway Trucking, Inc., 611 So. 2d 1034, 1035 (Ala. 1992) (quotation
marks omitted) (overruled on other grounds by Robertson v. Gaddy Electrical and
Plumbing, LLC, 53 So. 3d 75 (Ala. 2010)).

Of course, a plaintiff claiming

wantonness need not prove the defendant had a “specific design or intent to injure”
him. Joseph v. Staggs, 519 So. 2d 952 (Ala. 1988). As this court has noted, in the
context of a traffic accident, a plaintiff must show the defendant was driving “in a
manner likely to result in injury. . . . However, an error in judgment is insufficient
to demonstrate that an alleged tortfeasor has acted in a manner likely to result in
injury.” Stephens v. Snow, No. 16-442-SGC, Doc. 24 at 1 (N.D. Ala. entered Sept.
25, 2017).
“Wantonness is a question of fact for the jury, unless there is a total lack of

substantial evidence from which a jury could reasonably infer wantonness.” Cash
v. Caldwell, 603 So. 2d 1001, 1003 (Ala. 1992). “The most crucial element of
wantonness is knowledge, and while that element need not be shown by direct

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evidence it may be made to appear by showing circumstances from which the fact
of knowledge is a legitimate inference . . . it may not be left to the conjecture or
speculation of the jury.” Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala. 1980).
Considering the facts of this case under the summary judgment standard, the
plaintiff has failed to present substantial evidence from which a jury could infer
Oliva was wanton. First, the plaintiff presented no evidence indicating Oliva
“consciously act[ed] or fail[ed] to act,” solely by speeding, in a manner likely to
cause injury. 2 Ala. Pattern Jury Instr. Civ. § 29.00 (3d ed.). Regarding Oliva’s
speed, Patricia Mauldin, a passenger in the same vehicle as the plaintiff, testified as
follows:
Q:

Tell me what you remember about the accident happening.

A:

I remember a lot. When we were coming, you know, like I said,
right there by the traffic light. And it was – we were going like
this, and then a light turned red. I was looking out the rearview
mirror, and I was like – I said, “Tina, an 18-wheeler coming, 18wheeler coming. He was coming fast, fast. Looked like he ain’t
going to stop.” I mean, he was like, shew, real fast. . . .

***
Q:

And you saw [Oliva]’s truck in the rearview mirror before the
impact?

A:

Yes I did.

Q:

And you were telling Tina, “18-wheeler is coming”?

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A:

Yeah. He was flying. I mean, he came out of nowhere, and he
was flying.

Q:

How fast do you think he was going?

A:

Probably 80 miles. I mean, he was flying.

Q:

Is that a guess or – you say 80 miles per hour.

A:

Look, I’m not confused at all, okay? He was flying.

Q:

Okay. And I understand that. You say 80.

A:

I said could have been. I’m not saying – I really don’t know. I
know he was flying. He was going over the speed limit.

Q:

You believe that?

A:

Yes.

(Doc. 27-2 at 8, 9).
Conversely, Oliva testified: (1) he was traveling approximately 45 miles per
hour as he approached the accident site; (2) his view of the accident site initially was
partially obstructed by brush on the side of the road; (3) he was approximately three
tractor-trailer lengths, or 225 feet, behind the plaintiff when he saw her apply the
brakes; (4) he immediately applied his brakes, which locked up prior to impact; and
(5) he was traveling approximately 15 miles per hour at the point of impact. (Doc.
25-3 at 9). It is uncontested that this was the first time Oliva had ever traveled this
section of road. (Id. at 8-9).

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Mauldin’s testimony, taken as true under the summary judgment standard,
establishes Oliva was going over the speed limit before he applied his brakes. While
Mauldin initially estimated Oliva was traveling at 80 miles per hour prior to the
accident, she subsequently testified Oliva was “flying,” but she did not know how
fast he was traveling. However, “speed alone does not amount to wantonness.”
Serio v. Merrell, Inc., 941 So. 2d 960, 966 (Ala. 2006). Speed must be “coupled
with other circumstances” to show wantonness. Id. (quotation marks omitted);
Barnett v. Franklin Logistics, LLC, No. 05-1922-RDP, 2006 WL 8436994 at *3
(N.D. Ala. July 25, 2006) (under Alabama law, speeding alone is insufficient to show
wantonness). In Hicks v. Dunn, the defendant driver was driving much faster than
the posted speed limit and did not slow down despite knowing there was a busy
restaurant on the other side of a hill he was cresting that obstructed his view. 819
So. 2d 22, 24 (Ala. 2001). On those facts, the Alabama Supreme Court found
substantial evidence of wantonness existed to warrant its submission to the jury. Id.
Here, the plaintiff has not established the existence of circumstances other
than speed to support a reasonable inference of wantonness. Unlike the defendant
in Hicks, Oliva had not previously traveled this route and was unfamiliar with the
area where the accident occurred. There is no evidence Oliva had any particularized
knowledge of traffic lights in the area or that roadside brush partially obstructed his
view of the upcoming traffic light. (Doc. 25-3 at 9–10, 12, 15). Indeed, Oliva’s
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knowledge of the area only came after the fact. See Roberts, 384 So. 2d at 1048
(knowledge, the “most crucial element of wantonness,” cannot rest on “conjecture
or speculation of the jury”). Accordingly, the rationale in Hicks does not apply to
this case.
For the foregoing reasons, the court concludes the plaintiff has failed to submit
evidence showing a genuine issue of material fact as to wantonness. Accordingly,
the defendants are entitled to judgment as a matter of law on this claim.
B.

Negligent/Wanton Entrustment, Hiring, Training, and Supervision

In Alabama, claims for negligent entrustment, hiring, training, and
supervision all share a common element: the plaintiff must show the tortfeasor
employee was incompetent. Halford v. Alamo Rent–A–Car, LLC, 921 So. 2d 409,
412 (Ala. 2005); Johnson v. Brunswick Riverview Club, Inc., 39 So. 3d 132, 140
(Ala. 2009). The same is true regarding similar claims premised on wantonness.
See Vines v. Cook, No. 15-0111, 2015 WL 8328675, at *6 (S.D. Ala. Dec. 8, 2015);
Bruck v. Jim Walter Corp., 470 So. 2d 1141, 1144 (Ala. 1985). In Alabama,
incompetence is the “state or fact of being unable or unqualified to do something.”
Halford, 921 So. 2d at 415. Alabama courts measure a driver’s competence “by the
driver’s demonstrated ability (or inability) to properly drive a vehicle.” Id. at 414–
15. Additionally, “[n]egligence is not synonymous with incompetency. The most
competent may be negligent. . . . But one who is habitually negligent may on that
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account be incompetent.” Pritchett v. ICN Medical Alliance, Inc., 938 So. 2d 933,
941 (Ala. 2006) (alteration incorporated) (emphasis in original).
Oliva’s driving history does not demonstrate he was incompetent.

He

received one traffic ticket in 2011 and was involved in one traffic accident in 2012.
These two incidents, during which Olivia was not operating a commercial vehicle,
occurred at least three years before AJ Lines hired Oliva. While working for AJ
Lines, he received only one out-of-service order for failing to maintain his logbook.
This infraction was not a moving violation. Courts applying Alabama law have
granted summary judgment—based on plaintiffs’ failure to show incompetence—
where tortfeasors had driving records similar to (and worse than) Oliva’s. See, e.g.,
Vines, 2015 WL 8328675, at *6 (one speeding ticket and one accident over previous
four years); Askew v. R&L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala.
2009) (two moving violations and four minor accidents over previous nine years);
Lanham v. Gnewuch, No. 13-1358-VEH, 2015 WL 3966480, *8–9 (N.D. Ala. Jun.
30, 2015) (two preventable accidents in previous two years); Thedford, 813 So. 2d
at 912 (one similar accident three months prior); Pryor v. Brown & Root USA, Inc.,
674 So. 2d 45, 52 (Ala. 1995) (two speeding tickets and a suspended DUI charge
over ten years).
Other than Oliva’s driving history, the plaintiff has produced no evidence to
show Oliva was incompetent when AJ Lines hired, trained, supervised, and entrusted
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him with a vehicle. The plaintiff apparently recognizes she lacks evidence to support
these claims but asserts the defendants’ spoliation of evidence prevented her from
doing so. (Doc. 26 at 13–14). However, because the court has already declined to
impose spoliation sanctions, the plaintiff cannot rely on spoliation to overcome
summary judgment.
For the foregoing reasons, there are no genuine issues of material fact as to
the plaintiff’s claims for negligent and/or wanton entrustment, hiring, training and
supervision. The defendants are entitled to judgment as a matter of law on those
claims.
IV.

CONCLUSION
For the foregoing reasons, the defendants’ motion for partial summary

judgment is due to be GRANTED.

(Doc. 24).

The plaintiff’s claims for

wantonness, as well as the claims for wanton and/or negligent entrustment, hiring,
training, and supervision, are DISMISSED.
DONE this 15th day of October, 2020.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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