Lanham et al v. Gnewuch et al

Filing 53

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/30/2015. (JLC)

FILED
2015 Jun-30 PM 01:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
BRIAN SCOTT LANHAM and
CYNTHIA LANHAM,
Plaintiffs,
v.
JOHN CAREY GNEWUCH and
PRIME, INC.,
Defendants.

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Case No.: 4:13-CV-1358-VEH

MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiffs Brian Scott Lanham (“Mr. Lanham”) and Cynthia Lanham (“Ms.

Lanham”) initiated this personal injury lawsuit against Defendants John Carey
Gnewuch (“Mr. Gnewuch”) and Prime, Inc. (“Prime”) on July 22, 2013. (Doc. 1). In
this case, Mr. Lanham alleges that he was injured when he fell from the back of a
tractor trailer owned by Prime and driven by Mr. Gnewuch when Mr. Gnewuch drove
the trailer away from a loading dock while Mr. Lanham was inside the trailer
unloading a delivery. (Doc. 1 ¶¶ 10, 12).
Pending before the court is Defendants’ Motion for Summary Judgment (Doc.
32) (the “Motion”) filed on December 1, 2014. On December 22, 2014, the Lanhams
filed their response in opposition to the Motion. (Doc. 42). Prime and Mr. Gnewuch

followed with their reply (Doc. 43) on January 5, 2015, and now the Motion is under
submission. For the reasons explained below, the Motion is GRANTED IN PART
and otherwise is DENIED.
II.

FACTUAL BACKGROUND1
A.

Mr. Gnewuch’s Employment with Prime Inc.

Mr. Gnewuch became a professional truck driver in 2010 after attending a three
week truck driving course at Houston Community College. (Doc. 33-1 at 5, 9). He
began his employment with Prime in December 2012, after working as a truck driver
for two years, AF No. 24.2 Upon joining Prime, Mr. Gnewuch participated in a four

1

Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following factual background. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
2

The designation “AF” stands for admitted fact and indicates a fact offered by one of the
parties that the opposing party has admitted in his written submissions on summary judgment, in his
deposition testimony, or by virtue of any other evidence offered in support of his case. Further,
pursuant to appendix II of the court’s uniform initial order (Doc. 3), entered on July 23, 2013, “[a]ll
additional material facts set forth in the statement required of the opposing party will be deemed
to be admitted for summary judgment purposes unless controverted by the statement of the movant.”
(Id. at 19) (emphasis in original). The movant may respond to the non-moving party’s additional
facts, in separately numbered paragraphs, by stating that the fact is disputed and referencing those
portions of the evidentiary record upon which the disputation is based. (Id.) In their reply (Doc. 43),
Defendants reference the Lanhams’ additional undisputed facts. (Id. at 4-5). However, except for
facts related to the policy concerning the trailer lock, they do not dispute the additional undisputed
facts offered by the Lanhams. (Id.) The court’s numbering of admitted facts (e.g., AF No. 1)
corresponds to the numbering of Defendants’ statement of undisputed facts as set forth in Doc. 32
2

or five day training program that consisted of classroom and simulator training, but
did not include any actual behind-the-wheel training. (Doc. 33-1 at 18-19).
In January 2013, Mr. Gnewuch was involved in two separate preventable
accidents. On January 4, 2013, he was backing or pulling through a parking spot and
scraped the trailer next to him. (Doc. 33-4 at 9). On January 20, 2013, he backed into
the passenger front of the other vehicle. (Doc. 33-4 at 10). There is no evidence that
any adverse employment action was taken against Mr. Gnewuch as a result of these
incidents. (Doc. 33-4 at 9-10).
B.

The Accident

The accident that is the basis of this lawsuit occurred on March 22, 2013, at the
Wal-Mart in Oneonta, Alabama. The Oneonta Wal-Mart has two loading bays, one at
each back corner of the building. AF No. 9; (Doc. 33-12). The loading bay where the
accident occurred contained four lanes, such that four trailers could be parked for
loading or unloading at any given time. (Doc. 33-12). There are two pedestrian doors
adjacent to the loading area. (Id.) The DSD Grocery door is located on the side of the
building near the end of the loading bay (this door is labeled “DSD GRO” on the
exhibit) and the DSD door is located on the back of the building near the front of the
loading bay (this door is labeled “D” on the exhibit). (Id.) (Doc. 33-7 at 33).

and responded to and expanded upon by the Lanhams in Doc. 42.
3

The day of the accident, as part of his employment with Prime, Mr. Gnewuch
was making deliveries from the Wal-Mart distribution center in Tennessee to several
Wal-Mart stores in Alabama. AF No. 4. After making his first delivery, he drove to
the Oneonta Wal-Mart to make his next delivery. AF No. 3. Mr. Gnewuch did not
place a padlock on the trailer after making his first delivery. (Doc. 33-3 at 3). Upon
his arrival at the Onenota Wal-Mart, Mr. Gnewuch drove to a loading bay at the rear
of the store. AF No. 5. He backed his trailer into a loading bay, exited the vehicle, and
walked to a pedestrian door. AF No. 6.
The door Mr. Gnewuch went to is the DSD Grocery door. (Doc. 33-7 at 25). He
rang the doorbell and waited for “several minutes” before Terry Tucker opened the
door. (Doc. 33-3 at 6); (Doc. 33-7 at 25). Ms. Tucker asked him if she could help him
and he responded that he was there to drop off a delivery. (Doc. 33-7 at 26). Ms.
Tucker told him “you’re at the wrong door.” (Id.) He asked which door did he need
to go to and Ms. Tucker walked out of the door into the parking lot and pointed in the
direction of the DSD door, which is located on the other side of that loading bay. (Id.
at 26-27, 30-33). She also explained to him that he needed to walk past the fence and
then he would see the door. (Id. at 32-33).
While Mr. Gnewuch was at the pedestrian door, Wal-Mart personnel, including
Mr. Lanham, began unloading the unlocked trailer. AF Nos. 1-2, 12. Specifically,
4

Wal-Mart employee Chris Thompson arrived at the unloading dock where Mr.
Gnewuch’s trailer was parked. He testified that the truck appeared ready to be
unloaded, so he began the unloading process. (Doc. 33-9 at 24). He further testified
that if there is not a padlock on a trailer, “it’s [his] job to break the seal and go in and
unload the truck.” (33-10 at 23).
After his interaction with Ms. Tucker, Mr. Gnewuch returned to his tractor
trailer and began to pull away from the loading dock with the intent to move his trailer
to the other loading bay at the Oneonta Wal-Mart. AF Nos. 8-9. He did not check to
see if anyone was unloading the truck and did not issue any type of warning before
moving. (Doc. 33-3 at 7; Doc. 33-9 at 41). As Mr. Gnewuch pulled his vehicle away
from the loading bay , Mr. Lanham fell from the trailer and was injured as a result. AF No. 13.
C.

Wal-Mart and Prime Inc.’s Policies

The parties point to several policies as being relevant to this case. First, both
Prime and Wal-Mart required the trailer to remain padlocked. (Doc. 41-6 at 5; Doc.
41-7 at 5). The purpose of the policy was load security. (Doc. 41-6). Mr. Gnewuch
was aware he was supposed to keep his trailer locked. However, he did not place a
padlock on the trailer after he made his first delivery on the morning of the accident.
(Doc. 33-3 at 3). It was Mr. Gnewuch’s practice not to replace the padlock on the
trailer after making the first delivery of the day. (Doc. 33-2 at 16).
5

Second, pursuant to Wal-Mart’s delivery guidelines for third party drivers,
when a driver is making a delivery, he is to “[r]emove the padlock, open the trailer
door, . . . and oversee the unloading of the store’s product.” (Doc. 33-13 at 5).3 As the
truck is unloaded, the driver is to verify that the appropriate pallets are taken off. (Id.)
Neither Terry Tucker nor Chris Thompson was aware that it was Wal-Mart’s policy
that third party truck drivers be present during delivery. (Doc. 33-8 at 12; Doc. 33-9
at 36). Mr. Gnewuch understood that he was to be present at the back door of the
trailer to oversee the unloading process. AF No. 14. That being said, a Wal-Mart
employee noted that Prime truck drivers were not always present during the delivery
and unloading process. (Doc. 33-10 at 36).
D.

Procedural History

On July 22, 2013, Mr. and Mrs. Lanham filed suit against Mr. Gnewuch and
Prime. (Doc. 1). Their Complaint contains four causes of action:4 (1) negligence,
recklessness, and/or wantonness by John Gnewuch; (2) respondeat superior; (3)
3

Defendants cite to a different section of this document in their statement of facts. (Doc. 32
at ¶ 15). However, that section relates to the delivery/unloading process of Dry Loads and HVDC.
(Doc. 33-13 at 2). The section cited by the undersigned relates to the delivery/unloading process of
perishable goods. The difference in language is immaterial.
4

The Complaint contains a “Fifth Cause of Action” that reads, in whole: “Plaintiff avers that
all of his injuries and damages were proximately caused by the combined and concurring negligence
of each and all of the Defendants.” (Doc. 1 at ¶ 18). This is not a distinct cause of action. This point
was addressed by Defendants in their Motion for Summary Judgment (Doc. 32 at 29) and not was
disputed by Plaintiffs’ in their Response (Doc. 42). Accordingly, such “claim” is due to be
dismissed.
6

negligent, reckless, and wanton actions on the part of Prime in its hiring, training,
retention, and supervision of Mr. Gnewuch and when it entrusted Mr. Gnewuch with
the tractor trailer; and (4) loss of consortium claim. In short, the Complaint alleges:
that Mr. Gnewuch’s negligence and/or wantonness caused Mr. Lanham’s injuries; that
both Mr. Gnewuch and Prime, as employer of Mr. Gnewuch, are liable for those
injuries; and that Prime was independently negligent and/or wanton in its hiring,
training, retention, and supervision of Mr. Gnewuch and in entrusting the tractor
trailer to Mr. Gnewuch. Finally, the Complaint alleges that the above negligence and
wantonness caused Cynthia Lanham to lose the services, companionship, and
consortium of her husband.
III.

SUMMARY JUDGMENT STANDARD
Summary judgment is proper only when there is no genuine dispute of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(a). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. 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 v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
7

nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
IV.

ANALYSIS
A.

Negligence and Wantonness Claims Based on Mr. Gnewuch’s
Conduct

Counts One and Two Complaint allege that Mr. Gnewuch’s negligence and
wantonness caused the accident in this case, that Mr. Gnewuch is liable individually,
and that Prime is liable as his employer on the basis of respondeat superior. Prime
concedes for purposes of summary judgment that Mr. Gnewuch was acting an agent
for Prime. (Doc. 32 at 23-24). Thus, Prime’s liability turns on whether Mr. Gnewuch
was either negligent or wanton. Because Mr. Gnewuch’s and Prime’s liability both
turn on whether Mr. Gnewuch acted negligently and/or wantonly, the court will
address these claims together.
1.

Negligence

“To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable
plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury.”
Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585, 587 (Ala. 1987).
Defendants argue that Plaintiffs cannot prove that Mr. Gnewuch breached any duty
8

to Mr. Lanham and they further argue that any alleged negligent acts by Mr. Gnewuch
were not the proximate cause of Mr. Lanham’s injuries. (Doc. 32 at 15-16).
Defendants correctly note that Mr. Gnewuch had “a duty to operate his vehicle
and perform his duties in a reasonably safe manner.” (Doc. 32 at 16). They argue he
did this when he parked in the correct loading bay and that it was reasonable for him
to move his truck when he was told he was at the wrong door. This argument misses
the point. The issue in this case is whether, upon hearing he was “at the wrong door,”
it was reasonable for Mr. Gnewuch to move his truck without ensuring that it was safe
to do so. The facts show, that upon his arrival at the Oneonta Wal-Mart, Mr. Gnewuch
backed his trailer, which he knew was unlocked, to a loading bay and went to a
pedestrian door to announce his arrival. He had to wait for some time before Terry
Tucker answered the door. In light of the facts that Mr. Gnewuch left his trailer parked
at a dock that was used for unloading trailers, knew his trailer was not secured, and
that several minutes had passed since he arrived at the Wal-Mart, whether it was
reasonable for him to move his trailer without ensuring that no one was actively
unloading it is a question for the jury. See Gulledge v. Brown & Root, Inc., 598 So.
2d 1325, 1330 (Ala. 1992) (“[The Alabama Supreme Court has often noted that
questions of negligence incorporate factual evaluations that are almost always within
the province of the jury.”). Further, it is clear that a reasonable jury could find that Mr.
9

Gnewuch’s failure to ensure no one was unloading the truck before he moved it
proximately caused Mr. Lanham’s injuries.5 Accordingly, Defendants’ motion for
summary judgment as to this claim is due to be denied.
2.

Wantonness

The Supreme Court of Alabama explained wantonness in Scott v. Villegas, 723
So. 2d 642 (Ala. 1998):
In Alfa Mutual Ins. Co. v. Roush, 723 So. 2d 1250 (Ala. 1998), this Court
clarified the definition of “wantonness”:
“‘Wantonness’ is statutorily defined as ‘[c]onduct which is
carried on with a reckless or conscious disregard of the
rights or safety of others.’ Ala. Code 1975, § 6-11-20(b)(3).
‘Wantonness’ has been defined by this Court 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 (Ala. 1994).”
Wantonness requires more than a mere showing of some form of
inadvertence on the part of the driver; it requires a showing of some
degree of conscious culpability. See Ex parte Anderson, 682 So. 2d 467,
469 (Ala. 1996); see, also, George v. Champion Ins. Co., 591 So. 2d 852
(Ala. 1991). “The actor’s knowledge may be proved by showing

5

Defendants argue that “the subsequent actions of Wal-Mart employee, as well as WalMart’s failure to enforce its own policies constitute efficient, intervening causes of the
accident.”(Doc. 43 at 8). Specifically, Defendants argue that the actions of Ms. Tucker in informing
Mr. Gnewuch he was at the wrong door and Wal-Mart’s failure to inform employees about its policy
that truck drivers must be present for unloading were subsequent or intervening causes. This
argument overlooks the fact that these actions occurred prior to Mr. Gnewuch’s failure to check to
make sure it was safe to move his truck, and thus are not subsequent or intervening actions.
10

circumstances from which the fact of knowledge is a reasonable
inference; it need not be proved by direct evidence.” Hamme v. CSX
Transp., Inc., 621 So. 2d 281, 283 (Ala. 1993).
Scott, 723 So. 2d at 642 (emphasis added). In other words, wantonness involves an
“act done or omitted with knowledge of the probable consequence, and with reckless
disregard of such consequence.” Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 85
(Ala. 2012). The Alabama Supreme Court has emphasized the following:
“wantonness” does not require any intent to injure another:
“The concept is, of course, universal that to constitute
wantonness it is not essential that the defendant should
have entertained a specific design or intent to injure the
plaintiff. A wilful or intentional act may not necessarily be
involved in wantonness. It may consist of an inadvertent
failure to act by a person with knowledge that someone is
probably imperiled and the act or failure to act is in reckless
disregard of the consequences. Atlantic Coast Line R. Co.
v. Brackin, 248 Ala. 459, 461, 28 So. 2d 193.”
Joseph v. Staggs, 519 So. 2d 952, 954 (Ala. 1988) (quoting McNickle v. Stripling, 67
So. 2d 832 at 833 (1953)).
In this case, Mr. Gnewuch knew the purpose of his trip to the Oneonta WalMart was to get his trailer unloaded. He knew that his employer’s policies required
him to keep the trailer locked except when it was being unloaded. He knew his trailer
was unlocked. He backed up his unlocked trailer flush to the unloading dock for it to
be unloaded and walked to a pedestrian door where he remained for several minutes
11

before returning to move the trailer. There is no evidence indicating that Mr. Gnewuch
took any steps to ensure that no one was unloading the trailer before he pulled away.
He also did not issue any warning, such as by knocking on the trailer or blowing his
horn, before driving off. The question for the undersigned is whether, in light of these
facts, a reasonable jury could find that by moving the trailer without ensuring it was
safe to do so, injury would likely or probably result.6 To be clear, “[i]t is not required
. . . that the actor know that a person is within the zone made dangerous by his
conduct; it is enough that he knows a strong possibility exists that others may
rightfully come within the zone.” Staggs, 519 So. 2d at 954. Thus, the question is
whether Mr. Gnewuch knew that a strong possibility existed that someone would be
unloading the trailer and would be injured when he drove away. The court finds that
a reasonable juror could answer that question in the affirmative.
This decision is in line with a similar decision by the Alabama Supreme Court,
Valley Bldg. & Supply, Inc. v. Lombus, 590 So. 2d 142 (Ala. 1991). In Valley, a truck
driver delivered a load to Valley at its business location on U.S. Highway 280 in
Childersburg, Alabama. Id. at 143. “After unloading the roofing material, the driver

6

In their motion for summary judgment, Defendants argue that Mr. Lanham must prove his
case by clear and convincing evidence. (Doc. 32 at 16). However, to survive summary judgment,
Plaintiff must only show substantial evidence of wantonness. Griffin v. Modular Transp. Co., No.
2:12-CV-2378-WMA, 2014 WL 896627, at *2 (N.D. Ala. Mar. 6, 2014) (citing Phillips ex rel.
Phillips v. United Servs. Auto. Ass’n, 988 So. 2d 464, 467 (Ala. 2008)).
12

asked Valley employees how he was to exit Valley’s premises. He was told that
Valley employees would stop the traffic on U.S. Highway 280, and that he would then
be able to back into the highway.” Id. An employee of Valley then enlisted the aid of
a customer to help. Id. Neither was equipped with any type of warning devices in
order to stop traffic. Id. The evidence showed that the customer was to stop traffic and
then let the employee know when it was safe for the driver to back his truck onto the
highway. Id. The employee then conveyed this information to the driver. Id. The plan
did not work, as a motorist who was traveling down U.S. Highway 280 was killed
when he collided with the tractor trailer. Id.
The Alabama Supreme Court affirmed the jury’s finding of wantonness because
the jury could have concluded that the employee had knowledge that U.S. Highway
280 was a well-traveled highway, that it was rush hour, and that he had failed to
provide the customer with any warning devices to assist him in stopping traffic. Thus,
the employee knew that injury would likely or probably result. Id. at 144. If anything,
the facts of the instant case are more egregious than those presented in Valley, as Mr.
Gnewuch did not make any attempt in this case to ensure it was safe to move his
vehicle before doing so.
Defendants argue that Valley is distinguishable from this case because Mr.
Gnewuch did not violate a rule or undertake an illegal maneuver when he pulled his
13

trailer away from the loading dock. (Doc. 43 at 6). However, a close reading of Valley
does not indicate that there was a rule violation or illegal maneuver at issue in that
case. Valley, 590 So. 2d 142. Further, Mr. Lanham has noted that Mr. Gnewuch’s
actions allegedly violated Ala. Code § 32-5A-132, which provides that “no person
shall start a vehicle which is stopped, standing, or parked unless and until such
movement can be made with reasonable safety.” Accordingly, for both these
alternative reasons, Defendants’ argument that Valley is distinguishable is not well
taken.
To the extent Defendants argue Mr. Gnewuch did not have reason to believe the
trailer was being unloaded based on his conversation with Terry Tucker and WalMart’s policy that third-party truck drivers be present during delivery, it is the role of
the jury to weigh those facts with the others to determine whether Mr. Gnewuch knew
that injury would likely or probably result from moving his trailer without ensuring
that it was safe to do so. At this juncture, the undersigned simply finds that Mr.
Lanham has presented sufficient evidence of wantonness such that the claim should
be decided by the jury. As such, Defendants’ motion for summary judgment as to the
wantonness claim is due to be denied.
B.

Mr. Lanham’s Claims against Prime for its Negligence

In addition to alleging that Prime is liable for Mr. Gnewuch’s negligence and/or
14

wantonness, Mr. Lanham Complaint also alleges that Prime was negligent in its own
right. (Doc. 1 at ¶ 16). The first claim against Prime is for negligent and/or wanton
hiring, training, supervision, and retention of Mr. Gnewuch. (Id.) The second is for
negligent entrustment. (Id.)
1.

Negligent and/or Wanton Hiring, Training, Supervision, and
Retention

The Alabama Supreme Court has described the crux of this cause of action as
follows:7
In the master and servant relationship, the master is held responsible for
his servant’s incompetency when notice or knowledge, either actual or
presumed, of such unfitness has been brought to him. Liability depends
upon its being established by affirmative proof that such incompetency
was actually known by the master or that, had he exercised due and
proper diligence, he would have learned that which would charge him in
the law with such knowledge. It is incumbent on the party charging
negligence to show it by proper evidence. This may be done by showing
specific acts of incompetency and bringing them home to the knowledge
of the master, or by showing them to be of such nature, character, and
frequency that the master, in the exercise of due care, must have had
them brought to his notice. While such specific acts of alleged
incompetency cannot be shown to prove that the servant was negligent
in doing or omitting to do the act complained of, it is proper, when
repeated acts of carelessness and incompetency of a certain character are
shown on the part of the servant to leave it to the jury whether they
7

Mr. Lanham cites to Voyager Ins. Companies v. Whitson, 867 So. 2d 1065 (Ala. 2003) and
Ledbetter v. United American Insurance Co., 624 So. 2d 1371, 1373 (Ala. 1993) for the proposition
that Alabama courts have looked to the Restatement (Second) of Agency for guidance in
determining whether an employer is liable for its own negligence, outside of any vicarious liability
theory. While these cases do mention the Restatement (Second) of Agency, they do not adopt it as
the law of Alabama.
15

would have come to his knowledge, had he exercised ordinary care.
Armstrong Business Services, Inc. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001);
Big B, Inc. v. Cottingham, 634 So. 2d 999, 1003 (Ala. 1993) (abrogated on other
grounds).
In this case, Mr. Lanham alleges that “Prime, Inc. was negligent and/or reckless
. . . as [it] failed to ensure that proper regulations were in place to adequately instruct
and train [its] employees on the delivery/unloading process at the Oneonta [WalMart].” (Doc. 40 at 21). Presumably, Mr. Lanham is arguing that Mr. Gnewuch was
incompetent because he did not have knowledge of the specific delivery/unloading
process at the Oneonta Wal-Mart and that Prime knew about this incompetence
because it had failed to provide the aforementioned training.
In this context,
[I]ncompetency is connected conjunctively with carelessness,
indifference, heedlessness and recklessness. . . . ‘Incompetency, as
related to the law of negligence, connotes “want of ability suitable to the
task, either as regards natural qualities or experience, or deficiency of
disposition to use one’s abilities and experience properly. . . .[I]t may
include want of qualification generally, such as habitual carelessness,
disposition, and temperament.
Joyner v. B & P Pest Control, Inc., 853 So. 2d 991, 999 (Ala. Civ. App. 2002)
(quoting McGowin v. Howard, 36 So. 2d 323, 325 (1948)). The lack of specific
training related to the delivery procedures at the Oneonta Wal-mart does not rise to
16

the level that it rendered Mr. Gnewuch incompetent such that he was unsuitable for
the task of delivering goods to the Oneonta Wal-Mart.
Further, there is no causal relationship between Mr. Gnewuch’s lack of location
specific-training and his alleged negligence. The act of negligence in this case
occurred when Mr. Gnewuch failed to ensure it was safe to move his trailer before
pulling away from the loading bay. To the extent Mr. Lanham suggests that this
training would have prevented the accident because Mr. Gnewuch would have initially
walked to the correct pedestrian door, this argument is a nonstarter. Mr. Gnewuch did
not breach any duty when he went to the DSD Grocery door. In other words, going to
the wrong door was not the act of negligence that caused the accident. Thus, properly
training Mr. Gnewuch on the proper delivery procedures for the Oneonta Wal-Mart,
for example, which pedestrian door to use, would not have prevented the alleged
negligence that caused the accident that occurred in this case. Accordingly, Prime is
entitled to summary judgment on this claim.
2.

Negligent Entrustment

The Alabama Supreme Court “has adopted Restatement (Second) of Torts §
390 (1965) as the law of this State in cases involving negligent entrustment.” Edwards
v. Valentine, 926 So. 2d 315, 319-320 (Ala. 2005) (citing Keller v. Kiedinger, 389 So.
2d 129, 132 (Ala. 1980)). According to § 390, as quoted in
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Edwards,
[o]ne who supplies directly or through a third person a chattel for the use
of another whom the supplier knows or has reason to know to be likely
because of his youth, inexperience, or otherwise, to use it in a manner
involving unreasonable risk of physical harm to himself and others
whom the supplier should expect to share in or be endangered by its use,
is subject to liability for physical harm resulting to them.
926 So. 2d at 320.
To succeed on his claim for negligent entrustment, Mr. Lanham must prove the
following elements “(1) an entrustment; (2) to an incompetent; (3) with knowledge
that he is incompetent; (4) proximate cause; and (5) damages.” Edwards v. Valentine,
926 So. 2d 315, 320 (Ala. 2005). The only element at issue in this motion is whether
there is sufficient evidence to establish that Mr. Gnewuch was incompetent such that
Prime was negligent in entrusting him with the tractor trailer.
A plaintiff alleging “negligent entrustment may show that the driver to whom
the defendant entrusted the vehicle was unable or unlikely to have operated the motor
vehicle with reasonable safety due to one of several characteristics or conditions,
including general incompetence or habitual negligence.” Edwards, 926 So. 2d at 32122 (internal quotation marks omitted). Specifically, “proof may be established by
evidence of previous acts of negligent or reckless driving, previous accidents, or
previous acts of driving while intoxicated.” Id. at 322 (internal emphasis and marks
omitted). However, the Alabama Supreme Court has held that, “In a case dealing with
18

the alleged negligent entrustment of an automobile, in which the issue was whether
the entrusted driver was incompetent . . . [n]egligence is not synonymous with
incompetency. The most competent [driver] may be negligent.” Pritchett v. ICN
Medical Alliance, Inc., 938 So. 2d 933, 941 (Ala. 2006) (internal citations omitted).
Further, the Restatement (Second) of Torts § 390 cmt. b (1965) states, in pertinent
part:
[O]ne who supplies a chattel for the use of another who knows its exact
character and condition is not entitled to assume that the other will use
it safely if the supplier knows or has reason to know that such other is
likely to use it dangerously, as where the other belongs to a class which
is notoriously incompetent to use the chattel safely, or lacks the training
and experience necessary for such use, or the supplier knows that the
other has on other occasions so acted that the supplier should realize that
the chattel is likely to be dangerously used, or that the other, though
otherwise capable of using the chattel safely, has a propensity or fixed
purpose to misuse it.
(Emphasis added). Mr. Lanham’s negligence claim against Mr. Gnewuch, standing
alone, does not establish incompetence. Rather, Mr. Lanham argues that Mr. Gnewuch
was incompetent in two ways: first, because he lacked necessary training and second,
because of two preventable accidents that occurred while Mr. Gnewuch was driving
a Prime truck.8
Mr. Lanham asserts that Mr. Gnewuch was incompetent because he did not
8

Mr. Lanham also points to Mr. Gnewuch’s prior conviction for assault as evidence of his
incompetence. However, he fails to explain why such conviction is relevant to Mr. Gnewuch’s
competence to drive a truck.
19

receive any training on the specific delivery procedures applicable to each individual
Wal-Mart retail location. He further alleges that he was incompetent because he did
not have any prior experience driving solo and did not receive any actual road training
on driving solo before being sent out as a solo driver. Mr. Lanham relies on language
from comment b from the Restatement (Second) of Torts § 390 that says “one who
supplies a chattel for the use of another . . . is not entitled to assume the other will use
it safely if the supplier knows . . . the other is likely to use it dangerously . . . or lacks
the training and experience necessary for such use” to support his contention that the
alleged lack of training rendered Mr. Gnewuch incompetent. (Doc. 40 at 26). In this
case, Mr. Gnewuch had the training and experience necessary to operate the tractor
trailer: he had completed a three week driving course, had two years of experience
prior to joining Prime, and had completed Prime’s orientation classes. Plaintiff has not
cited, nor could the undersigned locate, any case that even implies that the lack of
specific training of the nature Mr. Lanham complains about could render Mr.
Gnewuch incompetent. Further, as discussed in the previous section, even if this lack
of training did render him incompetent, there is no evidence to suggest that the
training would have prevented the alleged negligence that caused the accident in this
case. As such, Plaintiff has failed to show that Mr. Gnewuch’s lack of training on
store-specific delivery procedures and lack of behind-the-wheel solo driving
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instruction rendered him incompetent.
Mr. Lanham also argues that Mr. Gnewuch was incompetent as evidenced by
the two preventable accidents he had while driving for Prime in January 2013.
Whether these two accident are sufficient to demonstrate incompetence for purposes
of summary judgment is a closer call. Prime relies on Pryor v. Brown & Root USA,
Inc., 674 So. 2d 45 (Ala. 1995) for the proposition that the fact these two preventable
accidents occurred does not establish that Mr. Gnewuch was incompetent. In Pryor,
the Alabama Supreme Court found that the driver’s record, which consisted of two
speeding tickets and a DUI conviction in the ten years preceding the accident, was
insufficient to establish that the driver was incompetent such that the vehicle should
not have been entrusted to him. On the other hand, in Edwards v. Valentine, 926 So.
2d 315, 320 (Ala. 2005), the Alabama Supreme Court upheld the fact-finder’s
determination that the driver was incompetent. In Edwards, the evidence showed that
the driver had been involved in three instances of driving under the influence, was
known to drink a lot, did not have a valid driver’s license, and had had a previous
accident while driving a vehicle owned by the defendant. Id. The Alabama Supreme
Court noted that “[o]ne prior accident, standing alone, is not substantial evidence of
incompetence,” but found that, when taken in consideration of everything else, there
was sufficient evidence to support a finding of incompetence. Id. at 324.
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Here, the two preventable accidents, which only involved property damage, are
not sufficient to establish that Mr. Gnewuch was incompetent such that it was
unreasonable for Prime to entrust him with the vehicle. Pryor v. Brown & Root USA,
Inc., 674 So. 2d 45 (Ala. 1995); Thedford v. Payne, 813 So. 2d 905, 912 (Ala. Civ.
App. 2001) (“Tommy had been involved in only one accident before the accident at
issue in this case; that accident involved only damage to property. We cannot say that,
as a matter of law, Tommy's driving record was such as to indicate an unreasonable
risk of physical harm to himself and others.”) (internal quotation marks omitted).
Because Mr. Lanham failed to establish incompetence, Prime’s motion for summary
judgment as to the negligent entrustment claim is due to be granted.
D.

Ms. Lanham’s Claim for Loss of Consortium

The final claim alleges that, as a result of Defendants’ actions, Ms. Lanham lost
the services, companionship, and consortium of her husband, Brian Lanham. (Doc. 1
at ¶ 17). She further alleges that she lost wages from her employment in her effort to
assist her husband in his time of need. (Id.) Under Alabama law, a loss of consortium
claim is derivative of the claims of the injured spouse. See Ex parte N.P., 676 So. 2d
928, 930 (Ala. 1996); Mattison v. Kirk, 497 So. 2d 120, 123 (Ala. 1986), overruled on
other grounds, King v. Nat'l Spa and Pool Inst., Inc., 607 So. 2d 1241 (Ala. 1992). To
establish a claim for loss of consortium, Ms. Lanham must prove that her husband’s
22

injury was caused by Defendants’ wrongful acts and that there was “damage to [] her
marital interest resulting from the underlying wrongful act.” Ex parte N.P., 676 So.
2d at 930.
Defendants argue Ms. Lanham’s claim is due to be dismissed because Mr.
Lanham’s claims against Mr. Gnewuch and Prime fail as a matter of law. (Doc. 32 at
28-29). As discussed above, the court finds that Mr. Lanham has established, for
purposes of summary judgment, that his injuries were caused by Defendants’
wrongful acts. Accordingly, Defendants’ motion for summary judgment as to Ms.
Lanham’s loss of consortium claim is due to be denied.
V.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc.

32) is GRANTED IN PART AND DENIED IN PART. Mr. Lanham’s claims
against Prime for negligent and/or wanton training, supervision, hiring, and retention
and negligent entrustment (Count Three) are hereby DISMISSED WITH
PREJUDICE. Count Five is DISMISSED for failure to state a claim.The remaining
negligence, wantonness, and loss of consortium claims by the Lanhams against Mr.
Gnewuch and Prime (Counts One, Two, and Four) remain pending. The court will set
this case for a final pretrial conference by a separate order.

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DONE and ORDERED this the 30th day of June, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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