Rickard, et al v. Vidal, et al

Filing 30

MEMORANDUM OPINION AND ORDER re 25 MOTION for Partial Summary Judgment filed by Morristown Driver's Service Inc, Robert J Vidal- For the reasons noted within, the court ORDERS that Defendants' motion for partial summary judgmen t is GRANTED, and Plaintiffs' claims are dismissed to the extent they allege claims of wantonness, vicarious liability for wantonness, and breaches of contract and warranty. Plaintiffs' claims of negligence and vicarious liability for negligence remain pending. Signed by Chief Judge Karon O Bowdre on 12/7/15. (SAC )

FILED
2015 Dec-07 PM 03:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TIMOTHY WADE RICKARD and THOMAS )
DUANE RICKARD,
)
)
)
Plaintiffs,
)
)
v.
)
)
ROBERT J. VIDAL and MORRISTOWN
)
DRIVER’S SERVICE, INC.,
)
)
Defendants.

Case Number: 4:12-cv-03867-KOB

MEMORANDUM OPINION AND ORDER
On September 11, 2015, Defendants Robert J. Vidal (“Vidal”) and Morristown Driver’s
Service, Inc. (“MDS”) (collectively, “Defendants”) moved for partial summary judgment on
Plaintiffs’ complaint to the extent it alleges wantonness, vicarious liability on the wantonness claim,
and breaches of contract and warranty. (Doc. 25). Plaintiffs Timothy Wade Rickard and Thomas
Duane Rickard (collectively, “the Rickards” or “Plaintiffs”) did not file a response in opposition.
For the reasons stated below, the motion for partial summary judgment is GRANTED.
I. Standard of Review
The Eleventh Circuit has held, “[w]here ‘the adverse party does not respond, summary
judgment, if appropriate, shall be entered against the adverse party.’ Thus, summary judgment, even
when unopposed, can only be entered ‘when appropriate.’” United States v. One Piece of Real
Property, 363 F.3d 1099, 1101 (11th Cir. 2004) (quoting FED. R. CIV. P. 56). Pursuant to FED. R.
CIV. P. 56, summary judgment is appropriate when the record shows “that there is no genuine issue
as to any material fact and that the moving party bears the burden entitled to judgment as a matter
of law.” FED. R. CIV. P. 56. The moving party bears the burden of showing no genuine issue of

material fact and that it is entitled to judgment as a matter of law. See Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The making of credibility
determinations, the weighing of evidence, and the drawing of inferences from fact are left to the jury,
and, therefore, the court should accept evidence favoring the non-moving party and draw all
justifiable inferences in his favor. See id. at 255. Nevertheless, the non-moving party “need not be
given the benefit of every inference but only of every reasonable inference.” Graham v. State Farm
Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (citing Brown v. City of Clewiston, 848 F.2d
1534, 1540 n.12 (11th Cir. 1988)).
II. Background
On September 30, 2010, Defendant Vidal was driving a Volvo semi-truck tractor and towing
a trailer for Defendant MDS from Albertville, Alabama, toward Atlanta, Georgia, along U.S.
Highway 431. (Doc. 25-1 at 6-7, 24-25). While crossing the intersection at Denson Avenue in
Boaz, Alabama, he collided with the Rickards’ Chevrolet Malibu. (Id. at 6-7, 15). The Rickards had
stopped at the stoplight at intersection of U.S. Highway 431 and Denson Avenue and assert that their
light had turned green and that Vidal ran the traffic light. (Id. at 7, 10, 16). Although Defendants
contend this last fact is disputed, they set it out, for purposes of summary judgment, in the light most
favorable to the Rickards. (Doc. 25 at 8 n.1).
III. Analysis
Plaintiffs’ complaint alleges Vidal was wantonly operating the MDS vehicle at the time of
the accident and that Vidal and MDS, under the doctrine of respondeat superior, are liable for that

wanton conduct. (Doc. 1 at 1-2). While stating the count against MDS, the complaint also briefly
mentions breach of contract and breach of warranty. (Id. at 2). Defendants contend Plaintiffs cannot
show wantonness under Alabama law and, with no contract between Plaintiffs and Defendants,
cannot prove either breach of contract or breach of warranty.
A.

Wantonness

Alabama law defines wantonness as “[c]onduct which is carried on with a reckless or
conscious disregard of the rights or safety of others,” Ala. Code § 6-11-20(b)(3). The Alabama
Supreme Court has described wantonness “as 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,” Bozeman v. Central Bank of the South,
646 So. 2d 601, 603 (Ala. 1994). Wantonness requires more than knowingly doing something
unadvisable, such as attempting to “beat the traffic,” but requires a “consciousness, awareness, or
perception that injury was likely to, or would probably, result.” Ex parte Essary, 992 So. 2d 5, 12
(Ala. 2007). Moreover, “[t]here is a rebuttable presumption recognized by the law that every person
in possession of his normal faculties in a situation known to be dangerous to himself, will give heed
to instincts of safety and self-preservation to exercise ordinary care for his own personal protection.”
Id.
Defendants contend no evidence exists of any reckless or conscious disregard of the safety
of others on Vidal’s part and, at best, the evidence supports only a claim for negligence. (Doc. 25
at 14). Plaintiffs do not dispute these contentions. Based on the evidence before the court, it finds
no evidence of such conscious or intentional act sufficient to support a claim for wantonness.

Accordingly, Defendants are entitled to judgment as a matter of law on Plaintiffs’ wantonness
claims.1
B.

Breach of Contract and Warranty

Under Alabama law, both breach of contract and breach of warranty require proof of the
existence of a contract. See S. Med. Health Sys., Inc. v. Vaughn, 669 So. 2d 98, 99 (Ala. 1995)
(stating the first element of an ordinary breach-of-contract claim as “the existence of a valid contract
binding the parties in the action”); Geohagan v. Gen. Motors Corp., 279 So. 2d 436, 438 (Ala. 1973)
(holding a warranty is a contract and, therefore, the first question in a claim for breach of warranty
is whether there was a contract of warranty). The Plaintiffs have not alleged that a contract existed
between the Plaintiffs and Defendants, (see doc. 1), and the evidence before the court supports
Defendants’ contention that the only interaction between the Plaintiffs and Defendants occurred the
day of the accident. Plaintiffs do not dispute these contentions. Accordingly, Defendants are entitled
to judgment as a matter of law on Plaintiffs’ breach of contract and warranty claims to the extent the
complaint asserts them.
IV. Conclusion
Based on the foregoing, the court ORDERS that Defendants’ motion for partial summary
judgment, (doc. 25), is GRANTED, and Plaintiffs’ claims are dismissed to the extent they allege
claims of wantonness, vicarious liability for wantonness, and breaches of contract and warranty.
Plaintiffs’ claims of negligence and vicarious liability for negligence remain pending.

1

Under the doctrine of respondeat superior, “[i]f the agent is not liable for any tort, the
principal is also absolved.” Latham v. Redding, 628 So. 2d 490, 495 (Ala. 1993).

DONE and ORDERED this 7th day of December, 2015.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE