Baranowski v. Millis Transfer Inc et al

Filing 54

ORDER -re: R&R 49 . The court is of the opinion that the findings are due to be, and hereby are, ADOPTED, and the recommendation is ACCEPTED. Dfts' Motion for Summary Judgmennt 39 is GRANTED IN PART AND DENIED IN PART. Pltf's negilgen t entrustment and negligent hiring/supervision claims are GRANTED. As to Pltf's remaining wrongful death claim against Dfts, the Motion is DENIED. By 10/25/2013, the parties SHALL meet and confer and file a joint report with proposed dates for both a pretrial conference and trial. Signed by Judge R David Proctor on 10/7/2013. (AVC)

FILED
2013 Oct-07 AM 10:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
KIM BARANOWSKI, as Administrator
ad litem for Susan Kelly Pate, deceased,
Plaintiff,
v.
MILLIS TRANSFER, INC.; GARY
MITCHELL JOHNSON,
Defendants.

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Case No. 7:11-CV-04340-RDP

ORDER
On August 20, 2013, the Magistrate Judge filed his Report and Recommendation in this case
recommending that Defendants’ Motion for Summary Judgment be granted in part and denied in
part. (Doc. # 49). On September 3, 2013, Defendants filed objections to the Report and
Recommendation. (Doc. # 50).
Having now carefully reviewed and considered de novo all of the materials in the court file,
including the findings and recommendation and Defendants’ Objections, the court is of the opinion
that the findings are due to be, and hereby are, ADOPTED, and the recommendation is
ACCEPTED.
The court notes that one of the objections made by Defendants was that the Magistrate Judge
failed to separately address their motion for summary judgment on the issue of wantonness. After
reviewing the record, and construing the facts in the light most favorable to Plaintiff, the court
concludes that there is sufficient evidence to create a material issue of fact on the issue of
wantonness as well as contributory negligence.

Defendants argue that speeding alone is insufficient to establish wantonness. However, there
is (disputed) evidence from which a jury could conclude that Johnson was not only speeding, but
doing so at a rate of speed over fifteen miles in excess of the speed limit, in a construction zone, and
that he failed to use his brakes before striking the vehicle which was being driven by the decedent.
(Doc. # 43-1 at pp. 29, 58; Doc. # 49 at 4-5). This, the court believes, is enough to create a question
of fact for a jury to resolve on the issue of wantonness.
Defendants’ Motion for Summary Judgment (Doc. # 39) is GRANTED IN PART AND
DENIED IN PART. The Motion for Summary Judgment by Defendant Millis Transfer on
Plaintiff’s negligent entrustment and negligent hiring/supervision claims GRANTED. As to
Plaintiff’s remaining wrongful death claim against Defendants,1 the Motion for Summary Judgment
is DENIED.
On or before October 25, 2013, the parties SHALL meet and confer and file a joint report
with proposed dates for both a pretrial conference and trial.
DONE and ORDERED this

7th

day of October, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

1

In cases in which death is caused by any form of tortious conduct, whether denominated negligence,
wantonness, or negligent supervision, the exclusive remedy is the statutory cause of action for wrongful death. “[The
Wrongful Death Act, Ala.Code 1975, § 6-5-410] remains the sole right of action for death under our law.” King v. Nat’l
Spa & Pool Inst., Inc., 607 So. 2d 1241, 1243 (Ala. 1992), citing Black Belt Wood Co. v. Sessions, 514 So. 2d 1249 (Ala.
1986); Mattison v. Kirk, 497 So. 2d 120 (Ala. 1986), overruled on other grounds by King v. Nat’l Spa & Pool Inst., Inc.,
607 So. 2d 1241 (Ala. 1992).