Smith v. Schwans Home Service Inc et al

Filing 30

MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/17/2015. (AVC)

FILED
2015 Sep-18 AM 09:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CAROL SMITH,
Plaintiff,
v.
SCHWAN’S FOOD SERVICE, et al.
Defendants.

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Case No.: 7:13-CV-00844-RDP

MEMORANDUM OPINION
This matter is before the court on Defendants’ Motion for Partial Summary Judgment
(Doc. # 26). The Motion has been fully briefed. (Docs. # 26, 27, and 28).
This case arises out of an accident occurring while Plaintiff Carol Smith was riding her
bicycle and Tamiko Harris was operating a commercial vehicle in the course of his employment
with Defendant Schwan’s Home Service, Inc. The accident occurred when Harris turned his
truck to the left and pulled into the path of Plaintiff’s bicycle. To avoid Harris’s vehicle,
Plaintiff steered her bike to the right, which caused her to strike the curb and that resulted in
injuries to Plaintiff.
After a careful review of Defendants’ Motion for Summary Judgment (Doc. # 26), along
with the briefs and submission filed in conjunction with it (Docs. # 26, 27 & 28), and for the
reasons outlined in this opinion, the court concludes that Defendants’ Motion is due to be granted
in part and denied in part.

I.

Summary of Relevant Facts1
Plaintiff was injured on May 31, 2011 while riding her bicycle on Bradford Boulevard in

Tuscaloosa, Alabama. (Doc. # 26 at ¶ 1). The accident occurred when a commercial refrigerated
truck driven by Tamiko Harris turned left onto Bradford Boulevard and into the path of
Plaintiff’s bicycle. (Doc. # 26 at ¶ 4; Doc. # 27-5 at p. 24). Plaintiff steered to the right to avoid
hitting the back of the truck, and that caused her to strike the curb. This resulted in injuries to
Plaintiff. (Doc. # 27 at ¶ 7; Doc. # 27-5 at 15). The only other eyewitness to the accident was
Kristen Hubbard, who was driving on Bradford Boulevard behind Plaintiff’s bicycle. (Doc # 27
at ¶ 5).
Just before the accident, Harris was driving the truck on Covington Lane and approaching
a stop sign at the intersection of Covington Lane and Bradford Boulevard. (Doc. # 27-5 at 24;
Doc. # 27-6 at 45). Hubbard does not know how fast the truck was travelling as it approached
the stop sign at the intersection, but Plaintiff testified that the truck was travelling at least 20
mph. (Doc. # 27-5 at 24; Doc. # 27-6 at 51-52). Although the truck slowed as it approached the
intersection, Harris did not stop fully at the stop sign before turning left onto Bradford
Boulevard. (Doc. # 27-5 at 15, 30; Doc. # 27-6 at 39). Hubbard testified that Harris looked left
and right at the intersection of Covington Lane and Bradford Boulevard before rolling through
the stop sign and turning on to Bradford Boulevard. (Doc. # 27-5 at 30-31). Harris accelerated
and turned onto Bradford Boulevard with enough speed to cause the weight of the truck to shift
or tilt as he made the turn. (Doc. # 27-5 at 15, 31-32, 52; Doc. # 27-6 at 39). When Harris

1

If facts are in dispute, they are stated in the manner most favorable to the non-movant, and all reasonable
doubts about the facts have been resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993); Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
These are the “facts” for summary judgment purposes only. They may not be the actual facts that could be
established through live testimony at trial. See Cox. v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir.
1994).

2

turned the truck onto Bradford Boulevard, the back of the truck came close enough to Plaintiff
on her bicycle that she could have reached out and touched it. (Doc. # 27-6 at 55). Plaintiff was
injured when she struck the curb to avoid hitting the truck. (Doc. # 27-6 at 57). Harris did not
stop the truck after the accident, but continued driving down Bradford Boulevard at a normal
speed. (Doc. # 26-5 at 38-39).
Harris testified that he does not remember the accident. (Doc. # 27-1 at 70-71). Harris
also testified that he did not run a stop sign and did not see Plaintiff on Bradford Boulevard.
(Doc # 27-1 at 54, 58, 70, 71). Neither Plaintiff nor Hubbard knows whether Harris saw Plaintiff
on her bicycle before he turned on to Bradford. (Doc # 26 at ¶ 11; Doc. # 27-5 at 15). Hubbard
testified, however, that she does not understand how Harris could not have seen Plaintiff on her
bicycle because Plaintiff was peddling toward him, and was wearing colorful clothes and a
helmet. (Doc. # 27-5 at 36).
Bradford Boulevard is in the Woodland Forest neighborhood. (Doc. # 27-6 at 39). There
is no sidewalk on Bradford where the accident occurred. (Doc. # 27-6 at 57-58). Plaintiff
testified that Bradford Boulevard was frequented by cyclists, runners, and walkers. (Doc. # 27-6
at 49). Hubbard also testified that there were many people out running and walking when she
drove through the Woodland Forest neighborhood, and that she had seen cyclists riding in the
neighborhood.

(Doc. # 27-5 at 14, 44).

Harris was familiar with the Woodland Forest

neighborhood and drove through it bi-weekly in the refrigerated truck. (Doc. # 27-1 at 52).
Harris testified that the neighborhood was “always dead” when he drove through it. (Id.). Harris
also testified that “[y]ou can’t drive fast through a neighborhood” because “[y]ou don’t know
what is going to happen in that neighborhood” and that he knew to drive carefully through the
Woodland Forest neighborhood. (Doc. # 27-1 at 59; See also, Doc. # 27-1 at 66).

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At the time of the accident, Harris was employed by Defendant Schwan’s Home Service,
Inc., (“Schwan’s Home”). (Doc. # 26 at Exh. A, ¶ 6). Harris was driving the truck involved in
the accident during the course of his employment with Schwan’s Home. (Doc. # 27 at 9, ¶ 41).
Harris stated in his deposition that Schwan’s Home and Defendant Schwan’s Food Service, Inc.
(“Schwan’s Food”) are one company. (Doc. # 27-1 at 7). However, a corporate attorney for The
Schwan Food Company, the parent company of Schwan’s Home and Schwan’s Food, attested
that Harris was never employed by Schwan’s Food and that Schwan’s Food was not the owner of
the refrigerated truck Harris was driving on the day of the accident. (Doc. # 26 at Exh. A, ¶¶ 3 &
6). Defendant Schwan’s Sales Enterprises, Inc. was not a legal entity on the day of the accident.
(Doc # 26 at ¶ 3 & Exh. A, ¶ 4).
Before hiring Harris as a driving salesman in February or March, 2011, Schwan’s Home
obtained a driving history report that showed that Harris had not been involved in any traffic
accidents or received any citations for moving violations for the previous three years. (Doc. # 26
at ¶ 5; Doc. # 27-2 at 25). Schwan’s Home also confirmed that Harris had a valid commercial
driver’s license and medical examiner’s certificate before hiring him. (Doc. # 26 at ¶ 5; Doc #
27-2 at 133-34). After he was hired, Harris completed a road test administered by Schwan’s
Home. (Doc. # 26 at ¶ 6). Harris was not involved in any accidents between the date he was
hired by Schwan’s Home and the date of the accident at issue here, nor had he received any
citations for moving violations during that time period. (Doc. # 26 at ¶ 7). In fact, Harris had
not been involved any accidents at all prior to May 31, 2011. (Doc. # 27-1 at 86).
Months after the accident, Schwan’s Home had concerns about Harris’s sales
performance. (Doc. # 27-1 at 24-26; Doc. # 27-8; Doc. # 27-9). Additionally, Harris had
problems with the sequence of stops on his sales route. (Doc. # 27-1 at 43-44; Doc. # 27-2 at 41-

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45, 104-105). Harris testified that Schwan’s wanted him to run the route in a particular sequence
and not take too long with his customers. (Doc. # 27-1 at 39-41). However, Harris also testified
that he did not feel like he had to hurry between customers and that he was not going to rush with
his customers or rush between stops on his route. (Doc. # 27-1 at 40 and 68).
On October 13, 2011—several months after the accident—and in response to a written
warning about not following the Schwans’s route sequence, Harris complained in writing to his
supervisor about the condition of the trucks. (Doc. # 27-4). Additionally, Harris testified that he
complained three or four time about the trucks breaking down because they were old. (Doc.
# 27-1 at 35-36). However, Harris also testified that his complaints about the trucks were related
to the refrigeration units on the trucks and that he had no complaints about the brakes or steering
on the trucks. (Doc. # 27-1 at 36, 81-82). In fact, Harris testified that the Schwan’s maintenance
program was “topnotch.” (Doc. # 27-1 at 37).
II.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), 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 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 that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. Once the moving party has met its burden, the Rule requires the non-moving party
to go beyond the pleadings and—by pointing to affidavits, or depositions, answers to

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interrogatories, and/or admissions on file—designate specific facts showing that there is a
genuine issue for trial. See id. at 324.
The substantive law will identify 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
grated. See id., at 249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc. teaches, Rule 56(c) “does not allow the plaintiff to simply rest on [her]
allegations made in the complaint; instead, as the party bearing the burden of proof of trial, [s]he
must come forward with at least some evidence to support each element essential to [her] case at
trial.” Anderson, 477 U.S. at 252. “Mere allegations” made by a plaintiff are insufficient. Id.
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp.2d 1257, 1262 (D.Kan. 2003) (citing Anderson,
477 U.S. at 250-51).

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“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so onesided that one
party must prevail as a matter of law.’” Sawyer, 243 F. Supp.2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp.2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear … that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
III.

Analysis
Defendants have moved for summary judgment on the following claims: (1) the

wantonness claim in Count I; (2) the negligent and wanton entrustment claim of Count II; (3) the
negligent and wanton hiring, training, supervision and retention claim of Count III; (4) the
negligent and wanton maintenance claims of Count VIII; and (5) all claims against Schwan’s
Sales and Schwan’s Food.2 (Doc. # 26, p. 1). Plaintiff does not oppose entry of summary
judgment on the negligent and wanton entrustment claim of Count II, but does oppose the other
relief sought in the motion.

2

In their Motion for Partial Summary Judgement, Defendants list Plaintiff’s claim for prima facie
negligence among the claims included in their Motion. (Doc. # 26 at 1). However, Defendants’ Memorandum Brief
in Support of Motion for Partial Summary Judgment contains no discussion or argument regarding Plaintiff’s prima
facie negligence claim. (Id. at 4-16). Accordingly, it appears that Defendants have abandoned their motion for
summary judgment as to that claim. At the very least, Defendants failed to meet their burden of establishing that
there are no genuine issues of material fact regarding Plaintiff’s prima facie negligence claim, and they are not
entitled to summary judgment on Count V of Plaintiff’s Amended Complaint. See Fed. R. Civ. P. 56(a).
In their Memorandum Brief in Support of Motion for Partial Summary Judgment, Defendants note that
Plaintiff asserts several counts in her Amended Complaint that are not recognized as separate claims under Alabama
law. (Doc. # 26 at n. 1). Specifically, Defendants state that Plaintiff’s counts for “failure to keep a lookout,
respondeat superior, defective equipment, mental/physical condition of driver, violation of trucking regulations, and
felonious injury [] are not, in and of themselves, recognized causes of action.” (Id.). Defendants did not cite
authority in support of that statement and have not moved for summary judgment on those counts. Accordingly, the
court does not rule on the validity or merits of those counts. They will be addressed at the Pretrial Conference.

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After a careful review of Defendants’ Motion for Summary Judgment (Doc. # 26), along
with the briefs and submission filed in conjunction with it (Docs. # 26, 27 & 28), and for the
reasons outlined in this opinion, the court concludes there are genuine issues of material fact
relating to Plaintiff’s wantonness claim, but there are no genuine issues of material fact relating
to: Plaintiff’s claims for negligent and wanton entrustment; negligent and wanton hiring,
supervision, training, and retention; negligent and wanton maintenance; and Plaintiff’s claims
against Defendants Schwan’s Food Service, Inc. and Schwan’s Sales Enterprises, Inc. The court
addresses each of these claims in turn.
A.

Wantonness

Under Alabama law, wantonness is “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.”3 Ex parte Essary, 992 So.2d 5, 9
(Ala. 2007) (citing Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala. 1994) (emphasis
in original)). See also Ala. Code § 6–11–20(b)(3) (1975) (defining wantonness as “[c]onduct
which is carried on with a reckless or conscious disregard for the rights or safety of others.”).
Alabama courts have repeatedly recognized that wantonness and negligence are qualitatively
differently tort concepts[,]” and “wantonness is not merely a higher degree of culpability than
negligence.” Ex parte Essary, at 9 (quoting Tolbert v. Tolbert, 903 So.2d 103, 114-15 (Ala.
2004); Mandella v. Pennington, 73 So.3d 1257, 1264 (Ala. Civ. App. 2011) (citations omitted).
Accordingly, in cases arising from car accidents, proving a driver’s wantonness, “requires more
than a showing of some form of inadvertence on the part of the driver; it requires a showing of

3

An employer can be liable for the wanton acts of its employee if the employee’s wanton acts were
committed within the course and scope of his employment. See Cheshire v. Putman, 54 So.3d 336, 341 (Ala. 2010).
Accordingly, the Defendants may be liable for Harris’s wanton acts if, while they were committed, he was acting
within the course and scope of his employment with Defendants.

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some degree of conscious culpability.” Ex parte Anderson, 682 So.2d 467, 469 (Ala. 1996)
(citing George v. Champion Ins. Co., 591 So.2d 582 (Ala. 1991)).
“The most crucial element of wantonness is knowledge, and while that element need not
be shown by direct 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) (citations omitted). See also
Klaber by & through Klaber v. Elliott, 533 So.2d 576, 579 (Ala. 1988) (“Knowledge need not be
proven directly but may be inferred from the facts of the case.”). Additionally, “‘[t]o constitute
wantonness, it is not necessary that the actor know that a person is within the zone made
dangerous by his conduct; it is enough that he knows that a strong possibility exists that others
may rightfully come within that zone.’” Frederick v. Wallis, 3 So.3d 904, 907 (Ala. 2008)
(quoting Ex parte Essary, 992 So.2d at 9).
“Wantonness is a question of fact for the jury, unless there is a [] lack of [substantial]
evidence from which the jury could reasonably infer wantonness.” Cash v. Caldwell, 603 So.2d
1001, 1003 (Ala. 1992).4 “Substantial evidence is ‘evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the
fact sought to be proved.’” Griffin v. Modular Transp. Co., 2014 WL 896627, *2 (N.D. Ala.
Mar. 6, 2014) (quoting Phillips ex rel. Phillips v. United Servs. Auto. Ass’n, 988 So. 2d 464, 467
(Ala. 2008)). A court must carefully consider the facts of each particular case in order to
determine if substantial evidence of wantonness exists. Cheshire v. Putnam, 54 So. 3d 336, 343
(Ala. 2010) (citing Sellers v. Sexton, 576 So. 2d 172, 175 (Ala. 1991)).

4

The court has modified this quote to account for Rule 56’s requirement that a claim must be supported by
“substantial evidence.”

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For wantonness claims arising from a car accident and asserted against a driver, the
Supreme Court of Alabama recognizes a rebuttable presumption against a finding of wantonness
when the defendant’s actions put both a defendant and a plaintiff at the same risk of injury. See
Essary, 992 So.2d at 12 (“Absent some evidence of impaired judgment, … we do not expect an
individual to engage in self-destructive behavior.”) (citations omitted); Roberts, 384 So. 2d at
1050 (“There 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.”). In
other words, Alabama courts recognize a presumption that a driver will not consciously do
something that will likely result in injury to himself.

Griffin, 2014 WL 896627, at * 3

(recognizing the “Essary presumption” and noting that “courts … will presume against
wantonness when the risk of injury to the actor is as real as the risk of injury to others.”).
Defendants seek summary judgment on Plaintiff’s wantonness claim because, they argue,
Plaintiff has presented no evidence that Harris consciously ran the stop sign with awareness that
injury would likely result. (Doc. # 26 at 9-11). Defendants rely heavily on Ex parte Essary to
support their motion for summary judgment as to Plaintiff’s wantonness claim and argue that
decision illustrates “the difficulty of proving a wantonness claim under Alabama law in the
context of an automobile accident.” (Doc. # 26 at 9; Doc. # 28 at 2). The presumption against a
finding of wantonness that the Supreme Court of Alabama applied in Ex parte Essary does not
apply in this case, however, because Harris’s actions posed a much greater risk of injury to
Plaintiff, who was riding a bicycle, than to Harris, who was driving a large commercial truck.
See Essary, 992 So.2d at 12; Griffin, 2014 WL 896627, at * 4. As a result, Plaintiff does not

10

have to rebut a presumption that Harris was not conscious that “rolling” the stop sign would
likely result in injury in order to prove her claim for wantonness.
Plaintiff argues that the Rule 56 record precludes entry of summary judgment on her
wantonness claim. (Doc. # 27 at 23). Plaintiff points to the follow evidence, among other
things, to support her claim of wantonness against Defendants: (1) the truck Harris was driving
did not stop at the stop sign; (2) Harris looked both ways at the intersection before rolling
through the stop sign; (3) the truck turned so quickly onto Bradford that the truck’s weight
shifted; (4) Hubbard, a witness to the accident, does not know how Harris did not see Plaintiff on
her bicycle because Plaintiff was wearing colorful clothes and a helmet; (5) Harris was familiar
with the Woodland Forest neighborhood where the accident occurred; (6) Hubbard testified that
there are a lot walkers, runners, and kids in the Woodland Forest neighborhood, and a lot of
families in the neighborhood who use the roads and sidewalks on a daily basis; and (7) Harris
testified that he would have known to drive carefully and safely through the neighborhood on the
day of the accident.5 (Doc. # 27 at 20-21; Doc. 27-5 at 36).
First, Plaintiff’s and Hubbard’s testimony that Harris ran the stop sign is sufficient to
allow a jury to reasonably infer that Harris consciously ran the stop sign. Defendants argue that
even if Harris consciously ran the stop sign they are still entitled to summary judgment on
Plaintiff’s wantonness claim because there is no evidence that Harris was conscious that an
injury would likely result from his action. (Doc. # 26 at 8). Defendants assert that “the evidence
is undisputed that Harris never saw the Plaintiff’s bicycle on the day of the accident” and that
Hubbard “assumed that [Harris] did not see the Plaintiff because he continued down Bradford

5

Plaintiff also argues that there is evidence that fatigue could have been a factor in the accident, which
precludes entry of summary judgment. (Doc. # 27 at 22-23). However, there is no substantial evidence to support a
finding that Harris was fatigued on the day of the accident. (See Doc. # 27-1 at 22-23, 27-28; Doc. # 27-2 at 15054). Instead, any inference that fatigue played a role in the accident is based on mere conjecture.

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Boulevard at a ‘normal speed.’” (Doc. # 26 at 10; Doc. # 27 at 3). As an initial matter, Hubbard
testified that she “can’t say for sure if [Harris] saw [Plaintiff] or not, because you would think if
somebody did see her, he would either stop or accelerate to get away, … [s]o I don’t know.”
(Doc. # 27-5 at 39).

Additionally, Hubbard testified that Harris looked both ways at the

intersection before rolling through the stop sign and that she does not know how Harris did not
see Plaintiff because Plaintiff was wearing colorful clothes and a helmet. (Id. at 36).
Resolving all doubts and making all justifiable inferences in favor of Plaintiff, as is
required at this stage in the litigation, Hubbard’s testimony is sufficient to allow a jury to
reasonably infer that Harris saw Plaintiff on her bicycle before “rolling” the stop sign and turning
on to Bradford Boulevard. Therefore, a reasonable jury could conclude from the Rule 56 record
that Harris had a conscious appreciation that rolling through the stop sign and turning the truck
into the path of Plaintiff’s bicycle would likely result in injury to Plaintiff. Moreover, Harris’s
familiarity with the Woodland Forest neighborhood combined with Hubbard’s and Plaintiff’s
testimony that walkers, runners, and families with strollers frequently used the streets in the
neighborhood, are sufficient at this stage in the litigation to allow a jury to reasonably infer that
Harris knew that a strong possibility existed that someone may be put at risk of injury when he
turned quickly onto Bradford Boulevard without stopping at the stop sign to look carefully for
people on the road. See Frederick, 3 So.3d at 907 (citation omitted).
Plaintiff has presented sufficient evidence in the Rule 56 record to show that there are
genuine issues of material fact regarding her wantonness claim. Therefore, Defendants are not
entitled to summary judgment on Plaintiff’s wantonness claim.

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B.

Negligent and Wanton Entrustment

Plaintiff asserts a claim for negligence and wanton entrustment against Defendants.
(Doc. # 2 at ¶ 34). To prove a negligent or wanton entrustment claim involving the entrustment
of a vehicle to a driver, a plaintiff must show among other things that the driver was incompetent
and that the owner of the vehicle knew, or should have known, of the driver’s incompetence. See
Hetzel v. Fleetwood Trucking Co., Inc., 90 So.3d 180, 182 (Ala. 2012); Prill v. Marrone, 23
So.3d 1, 8 (Ala. 2009) (citing Halford v. Alamo Rent–A–Car, LLC, 921 So.2d 409, 412 (Ala.
2005) and Mason v. New, 475 So.2d 854, 856 (Ala. 1985)); Edwards v. Valentine, 926 So.2d
315, 321-22 (Ala. 2005).
Here, Plaintiff has not presented substantial evidence that Harris was an incompetent
driver, much less that Defendants had knowledge of his incompetency. Indeed, Plaintiff did not
oppose Defendants’ motion for summary judgment on her negligent and wanton entrustment
claim and concedes that the claim should be dismissed. (Doc. # 27 at 24). Because there is no
genuine issue of material fact, Defendants are entitled to summary judgment on Plaintiff’s
negligent and wanton entrustment claim.
C.

Negligent and Wanton Hiring, Training, Supervision, and Retention

Alabama law recognizes claims for negligent and wanton hiring, training, supervision,
and retention. See Hetzel, 90 So.3d at 182-83. As with a negligent or wanton entrustment claim,
to prove a claim under Alabama law for negligent or wanton hiring, training, supervision, or
retention, a plaintiff must demonstrate that the employee was incompetent and that the defendant
knew, or should have known, that its employee was incompetent. Southland Bank v. A&A
Drywall Supply Co., Inc., 21 So.3d 1196, 1214-15 (Ala. 2008); Voyager Ins. Companies v.
Whitson, 867 So.2d 1065, 1073 (Ala. 2003) (citing Lane v. Central Bank of Alabama, N.A., 425

13

So.2d 1098, 1100 (Ala. 1983)); Brown v. Vanity Fair Mills, Inc., 277 So.2d 893, 895 (Ala.
1973); Sanders v. Shoe Show, Inc., 778 So.2d 820, 824 (Ala. Civ. App. 2000). For negligent or
wanton hiring, training, supervision, or retention claims arising from car accidents involving a
defendant’s employee, a plaintiff must show that the employee was an incompetent driver. See
Jones Exp., Inc. v. Jackson, 86 So.3d 298, 305 (Ala. 2010). “[T]he incompetence of a driver is
measured by the driver's demonstrated ability (or inability) to properly drive a vehicle.” Halford
v. Alamo Rent-A Car, LLC, 921 So.2d 409, 413-14 (Ala. 2005).
Here, Plaintiff has not presented any evidence that Harris was an incompetent driver.
Indeed, there is no evidence that Harris was involved in a traffic accident or received a citation
for a moving violation prior to the accident at issue in this case. (Doc. # 26 at ¶ 7; Doc. # 27-1 at
86). Instead, the evidence shows that Harris’s driving record was virtually spotless. (Doc. # 271 at 86). Additionally, the record shows that Harris had a valid commercial driver’s license and
medical examiner’s certificate and that he completed a road test after he was hired by Schwan’s
Home. (Doc. # 26 at ¶¶ 5 & 6; Doc. # 27-2 at 133-34).
Plaintiff argues that evidence that Harris did not drive his route sequence correctly and
had significant performance issues is substantial evidence of Harris’s incompetence. (Doc. # 25
at 24-27). However, that evidence relates to Harris’s ability as a salesman, not as a driver. That
is, it does not indicate Harris’s “demonstrated ability (or inability) to properly drive a vehicle.”
Halford, 921 So.2d at 413-14. As a result, it does not support a conclusion that Harris was an
incompetent driver.
In support of her claim, Plaintiff also asserts that Harris’s incompetence “caused him to
rush through his daily sales route.” (Doc. # 27 at 24). The Rule 56 Record does not support that
bald assertion. Instead, the evidence shows that Harris refused to rush through his route and that

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he only made 27 of his scheduled 114 stops on the day of the accident. (Doc. # 27-1 at 68; Doc.
# 27-2 at 117-18). Moreover, that evidence does not indicate Harris’s ability or inability to
properly drive a vehicle, and it does not support a conclusion that Harris was an incompetent
driver.
Because Plaintiff has failed to present any evidence that would support a conclusion that
Harris was incompetent to drive a vehicle, there is no genuine issue of material fact relating to
Plaintiff’s negligent and wanton hiring, training, supervision and retention claim. Therefore,
Defendants are entitled to summary judgment as to that claim.
D.

Negligent and Wanton Maintenance of Vehicle

Plaintiff asserts a separate negligence and wantonness claim against Defendants based on
her allegations that Harris may have fled the scene of the accident “because the truck was
negligently maintained.” (Doc. # 2 at ¶ 45). Defendants moved for summary judgment on that
claim on the grounds that “Plaintiff has failed to develop any evidence in support of her
negligent/wanton maintenance claim.” (Doc. # 26 at 12).
Plaintiff opposes the motion by arguing that the record shows that Harris complained
about vehicle he was driving at the time of the accident, and she asserts there is “substantial
evidence of mechanical defect in the truck [Harris] was driving at the time of the wreck.”
Specifically, Plaintiff cites Harris’s October 13, 2011 complaint about the condition of the trucks
and Harris’s testimony that he complained about the trucks breaking down to support her claim.
(Doc. # 27 at 28-29). That evidence, however, does not create a genuine issue of fact regarding
the condition or maintenance of the truck on May 31, 2011, the date of the accident. Moreover,
Harris’s undisputed testimony establishes that his complaints about the trucks related to their
refrigeration units, and that he had no concerns about the brakes or steering on the trucks. (Doc.

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# 27-2 at 36, 81-82). In addition, there is no evidence in the Rule 56 record that could support an
inference that a problem with the truck’s condition or maintenance caused or contributed to the
accident at issue.
Plaintiff has not presented substantial evidence that Defendants negligently or wantonly
maintained the vehicle at issue, much less any evidence suggesting that any such negligence or
wantonness caused Plaintiff’s injuries. As a result, there is no issue of material fact relating to
Plaintiff’s negligent and wanton maintenance of vehicle claim.

Therefore, Defendants are

entitled to summary judgment as a matter of law on Plaintiff’s claim that Defendants negligently
or wantonly maintained the vehicle involved in the accident.
E.

Claims Against Schwan’s Sales and Schwan’s Food

Plaintiff named three defendants in this action -- Schwan’s Home Service, Inc., Schwan’s
Food Service, Inc., and Schwan’s Sales Enterprises, Inc. -- and asserted all her allegations
against the three defendants collectively. (Doc. # 2). Defendants have moved for summary
judgment on all claims asserted against Schwan’s Food and Schwan’s Sales and supported its
motion with an affidavit from a corporate attorney for The Schwan Food Company, the parent
corporation of Schwan’s Home and Schwan’s Food. (Doc. # 26 at Exh. A).
1.

Defendant Schwan’s Sales Enterprises, Inc.

Schwan’s Sales was not a legal entity on the date of accident because it became Schwan’s
Home in 2003. (Doc. # 26 at ¶ 3 & Exh. A, ¶ 4). Plaintiff concedes that Schwan’s Sales “has no
role in this litigation.” (Doc. # 27 at 29). As a result, Defendants’ motion for summary
judgment on all of Plaintiff’s claims against Schwan’s Sales is due to be granted, and the claims
against Schwan’s Sales are due to be dismissed with prejudice.

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2.

Defendant Schwan’s Food Services, Inc.

Defendants also argue that Plaintiff has no viable claims against Schwan’s Food because
Plaintiff’s claims are all based on Defendants’ vicarious liability for Harris’s actions or inactions
or on Defendants’ ownership of the truck involved in the accident. (See Doc. # 26 at 15-16). To
support their motion for summary judgment on Plaintiff’s claims against Schwan’s Foods,
Defendants offered evidence in the form of affidavit testimony that Harris was never employed
by Defendant Schwan’s Food and that Schwan’s Food did not own the truck involved in the
accident. (Doc. # 26 at Exh. A, ¶ 6).
To counter that evidence, Plaintiff points to the following testimony from Harris’s
deposition:
Q.

I’ve got some questions for you today about your work for Schwan’s
Home Service or Schwan’s Food Service or whichever Schwan’s you
work for.

A.

It’s all one company.

(Doc. # 27-2 at 7). Harris’s off-hand statement at the beginning of his deposition that Schwan’s
Food and Schwan’s Home are “all one company” is not substantial evidence that Harris was
employed by Schwan’s Food or that the truck involved in the accident was owned by Schwan’s
Food. Harris testified in his personal capacity in his deposition, and not as a representative of
either Schwan’s Home or Schwan’s Food. (See Doc. # 27-2). Additionally, there is no evidence
apart from his employment as a driving salesman for Schwan’s that Harris has any personal
knowledge about Schwan’s corporate structure or which Schwan’s entity owned the truck he was
driving on the day of the accident.
Based on the Rule 56 record, a jury could not reasonably find that Harris was employed
by Schwan’s Food or that Schwan’s Food owned the truck involved in the accident. As a result,

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there is no genuine issue of material fact regarding any of Plaintiff’s claims against Schwan’s
Food.

Therefore, Defendants’ motion for summary judgment on Plaintiff’s claims against

Schwan’s Food is due to be granted, and the claims against Schwan’s Food are due to be
dismissed with prejudice.
IV.

Conclusion
For the foregoing reasons, Defendants are entitled to summary judgment on (1) the

negligent and wanton entrustment claim of Count II; (2) the negligent and wanton hiring,
training, supervision, and retention claim of Count III; (3) the negligent and wanton maintenance
of vehicle claim of Count VIII; and (4) all claims asserted against Defendants Schwan’s Food
Service, Inc. and Schwan’s Sales Enterprises, Inc.

Defendants’ motion as to Plaintiff’s

wantonness claim against Defendant Schwan’s Home Service, Inc. is due to be denied.
A separate order will be entered.
DONE and ORDERED this September 17, 2015.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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