Graf et al v. Morgan et al
Filing
57
ORDER granting 47 Motion for Partial Summary Judgment.Defendants motion for summary judgment as to Counts Two andThree of the Complaint is hereby GRANTED.. Signed by Senior Judge Charles R. Butler, Jr on 1/10/2012. (adk)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL SCOTT GRAF and
PAULA GRAF,
)
) CIVIL ACTION NO.
Plaintiffs,
)
11-00064-CB
v.
)
ROBERT LANIER MORGAN; FOREST
PRODUCTS TRANSPORTATION, LLC;
ET AL.,
)
)
Defendants.
)
ORDER
This matter is before the Court on a motion for partial summary judgment filed by defendants
Robert Morgan and Forest Products Transportation, LLC. (Doc. 47.) The Defendants seek summary
judgment as Plaintiffs’ claims for wantonness (Count II) and negligent entrustment (Count III).
Plaintiffs have filed a response stating that they “will not offer any opposition to Defendants’
[m]otion.” (Doc. 55.) Viewing the undisputed facts in light of the applicable law, the Court finds
that Defendants are entitled to summary judgment on Counts Two and Three.
Findings of Fact1
This case arises out of an October 16, 2010 accident (the “Accident”) that occurred in
Baldwin County, Alabama on “the Bayway,” an elevated two-lane portion of Interstate 10 (I-10)
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As the law requires, the facts, and all inferences arising from them, are viewed forth in the
light most favorable to the non-moving party. Merritt v. Dillard Paper Co., 120 F.3d 1181, 1182
(11th Cir. 1997). Moreover, the Afacts@ on which the Court=s summary judgment order is based are
merely those presented by the parties thus far that are relevant to the issues presented. These, of
course, may not be the actual facts adduced at trial. Id.
West crossing Mobile Bay. Complaint (Doc. 1-1, pp. 5-12) at 2-3 ¶¶ 7, 11 & n.1. At the time of the
Accident, weather conditions were favorable and visibility was clear. Ex. 2 at 20-21. The speed
limit on the Bayway is 65 mph. Id. at 146.
The Complaint alleges that Defendant Morgan, while operating a tractor-trailer in the course
of his employment with Defendant Forest Products in the right lane of I-10 West, “approached
another small vehicle in front of his semi-truck” and “improperly and without notice or warning
changed lanes to avoid an accident with the vehicle in front of him.” Complaint at 1-3 ¶¶ 4, 8, 3¶ 9.
Plaintiff claims that immediately prior to the accident he was traveling somewhere between 65 and
72 miles per hour with his cruise control in the left (fast) lane. Ex. 1 at 61. He was unable to
estimate Morgan’s actual speed, but was certain Morgan was “moving slower than [Plaintiff].” Id. at
61-62. Morgan confirmed this speed disparity. He decelerated to 65 mph prior to reaching the
Bayway and was traveling at that speed in the right lane when he approached two slower moving
vehicles in front of him that were traveling “[a] pretty good bit under the speed limit.” Ex. 2 at 1618, 21, 1492
When Morgan decided to move into the left lane to pass these slower vehicles, he was not at
any risk of a collision. Id. at 152. Rather, based on the speed at which he was traveling in the right
lane and his distance behind that slower vehicle, Morgan “ha[d] plenty of time that [he] could have
stopped if [he] needed to” and “wouldn’t have run into the back of the vehicles ahead of [him].” Id.
at 21-23, 152, 154-55. To determine that he could safely move into the left lane, Morgan first looked
in his rear view mirror and out his driver side window, from which he concluded that the coast was
“completely clear.” Id. at 25-26. Because his tractor trailer blocked the view of drivers of “cars on
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Although Plaintiff could only offer a range as to his speed and his actual speed is in dispute,
it is undisputed that Morgan was traveling at the 65 mph speed limit and that Plaintiff was traveling
faster than Morgan. It necessarily follows that Plaintiff was speeding. Defendants expect their
disclosed expert to testify that Plaintiff was traveling at least 11 mph faster than Morgan at the point
of impact. See Ex. 7, p. 3.
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the right lane directly behind [him],” Morgan then “tapped” his brakes as a warning to these drivers
to be alert, specifically “to let them know, ‘If I change lanes, there’s – there’s something up here
ahead that you can’t see.”. Id. at 25-26, 38, 149-52, 169-70, 176-77.
Morgan thereafter engaged his turn signal and looked in his rear view mirror, at which time
he observed Plaintiff’s vehicle further back in the left lane.” Id. at 152-54. Also while looking in the
mirror, Morgan observed Plaintiff’s flashing headlights, which he “t[ook] to mean” that Plaintiff had
seen his tractor-trailer and was “let[ting him] know it’s okay, come on over.” Id. at 153-54.
Morgan then looked forward to confirm the location of the slower vehicles in front of him,
after which he began to move into the left lane, absent “any concerns about being able to make safe
lane change.” Id. at 26, 154. If he’d had any safety concerns, Morgan would not have made the lane
change. Id. at 153-54. Morgan changed lanes without ever dropping below 60 mph and immediately
began to accelerate back to 65 mph. Id. at 38-39. Morgan’s speed had returned close to 65 mph
when Plaintiff rear-ended his tractor-trailer. Id. at 158.
Plaintiff saw Morgan’s turn signal immediately before Morgan began a lane change, after
which he “noticed the cab of the 18-wheeler turned sharply into the left-hand lane.” Ex. 1 at 52-53,
67. At that time, Plaintiff was behind Morgan in the left lane of the Bayway and was in the process
of passing him in his 2002 Jeep Cherokee. Complaint at 2 ¶¶ 8, 10; Ex. 1 at 69. Plaintiff was still
behind Morgan at impact, having rear-ended Morgan’s trailer. Ex. 1 at 69.
Following the lane change, Plaintiff collided with Morgan’s tractor-trailer “through no fault
of his own,” causing his vehicle to enter a skid and ultimately collide into a concrete wall.
Complaint at 2 ¶ 7, 3 ¶¶ 10-11. Plaintiff “was not able to stop before [Morgan’s] truck came into
[his] lane.” Ex. 1 at 74. As a proximate result of the Accident, Plaintiff alleges that he suffered a
variety of personal injuries. Complaint at 3 ¶ 15, 4¶ 18.
In his December 31, 2010 Complaint, Plaintiff brings claims for Negligence (Count I) and
Wantonness (Count II) against Defendant Morgan relating to his operation of a tractor-trailer, for
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which he seeks to hold Defendant Forest Products vicariously liable on a theory of Agency (Count
IV). See id. Counts, I, II & IV. He further claims that Defendant Forest Products is directly liable to
him based on a theory of Negligent Entrustment (Count III), see id., Count III, specifically alleging it
allowed Defendant Morgan to operate its tractor-trailer when it “knew or should have known that
Morgan was incompetent, reckless, inexperienced, heedless or otherwise careless or incapacitated to
operate a motor vehicle.” Id. at 5 ¶ 21.3
Morgan has been a professional truck driver for 12 years and has worked as a driver for
Defendant Forest Products for 10 years. Ex. 2 at 25. Morgan possessed a valid Commercial Driver’s
License (CDL) at the time of the Accident , which he previously obtained after taking a training
course and passing a test. Id. at 92. As part of his employment with Forest Products, Morgan
attended quarterly safety meetings. Id. at 90. He also received a copy of Forest Product’s Company
handbook, a copy of which he kept in his truck. Id. at 108. The handbook sets forth Forest Product’s
expectation that its employees “take every reasonable measure to avoid involvement in an accident,”
a policy on which Plaintiff received instruction. Id. at 116.
Prior to the Accident, Morgan was rear-ended by another truck driver on an interstate some
three years ago, but was not at fault for that collision and was not at fault for any other motor vehicle
collisions as a truck driver. Id. at 58, 139-40. He has never previously been sued. Id. at 58, 137-40.
In his 12 years as a truck driver, Morgan has received only 4 minor citations, none of which relate to
change lanes and none resulted from a motor vehicle collision. Id. at 134-37. More than 30 years
ago, when Morgan was a teen, he received a DUI but has not otherwise been arrested. Id. at 137-
3
Although Plaintiff’s wife Paula Graf is also named plaintiff in this lawsuit, she brings only a
claim for loss of consortium, see Complaint, Count V, which is an entirely derivative claim under
applicable Alabama law. Defendants therefore limit this motion to substantive claims of Plaintiff
Michael Scott Graf as to which no jury question exists.
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38. At the time of the Accident, Morgan was not impaired and was not using a mobile telephone. Id.
at 51-143; Ex. 3 at 10.
On May 20, 2011, Defendants served interrogatories on Plaintiff requesting him to answer
the following questions.
8.
Please state each and every fact and argument which supports your claim that
Defendants were negligent.
9.
Please state each and every fact and argument which supports your claim that
Defendants were wanton.
10.
Please state each and every fact and argument which supports your claim that
Defendants negligently entrusted the tractor trailer to Robert Morgan.
See Ex. 4, p. 6.
Plaintiff’s sworn interrogatory answers dated June 28, 2011 provide a substantive response
only as to interrogatory 8, offering as evidence of negligence, in their entirety, that Defendant
Morgan “improperly and without notice or warning changed lanes and collided with my vehicle.”
See Ex. 5, p. 4 at Answer 8. Plaintiff has failed to provide substantive answers.
There is no evidence that Morgan possessed an incompetency that Forest Products knew or
should have known that proximately caused the Accident. Nor is there any evidence that Morgan, at
the time of the Accident, (a) was disqualified from driving a tractor-trailer, (b) was in violation of
any federal Motor Carrier rule or regulation, (c) was fatigued, or (d) perceived that changing lanes
involved any risk of a collision.
Conclusions of Law
Under Fed. R. Civ. P. 56, “[a] party is entitled to summary judgment if, after an adequate
time for discovery has passed, it can be demonstrated that no genuine issue of material fact exists and
it is entitled to judgment as a matter of law.” Am. Fed. of Labor & Congress of Indus. Orgs. v. City
of Miami, FL, 637 F.3d 1178, 1186 (11th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986)). “No genuine issue of material fact exists if a party has failed to ‘make a showing
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sufficient to establish the existence of an element. . . on which that party will bear the burden of
proof at trial.’” Id. at 1186-87 (quoting Celotex, 477 U.S. at 322). Accordingly, “[w]hen there is a
‘complete failure of proof concerning an essential element on the nonmoving party’s case,’ the
motion for summary judgment should be granted.” Id. at 1186-87 (quoting Celotex, 477 U.S. at 32224). “When a moving party has discharged its burden, the non-moving party must then ‘go beyond
the pleadings,’ and by its own affidavits, or by ‘depositions, answers to interrogatories, and
admissions on file,’ designate specific facts showing that there is a genuine issue for trial.” Jeffery v.
Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).
To prevail on his claim for Wantonness in Count Two Plaintiff must prove that Defendant
Morgan consciously committed a wrongful act or omission, in “reckless or conscious disregard of the
rights or safety of others,” Ala. Code § 6-11-20(b)(3), ‘while knowing of the existing conditions and
being conscious that, from doing or omitting to do an act, injury will likely or probably result.” Ex
parte Essary, 992 So.2d 5, 9 (Ala. 2007). A rebuttable presumption exists that a defendant motor
vehicle operator does not act or fail to act “consciously” when doing so involves “the risk of injury to
[the defendant] himself” that is “as real as any risk of injury to the plaintiffs.” Id.
No genuine issue of fact exists as to whether Defendant Morgan lacked the requisite
“conscious” mental state necessary for his conduct to be wanton. No genuine issue of fact exists as
to whether Defendant Morgan is entitled to the benefit of the rebuttable presumption established by
Ex parte Essary, which stands unrebutted. Accordingly, Defendants are entitled to judgment as a
matter of law against Plaintiff as to Count Two.
To prevail on his claim for Negligent Entrustment in Count Three, Plaintiff must prove (1)
that Defendant Forest Products entrusted its motor vehicle to Defendant Morgan; (2) that Defendant
Morgan is “incompetent”; (3) that Defendant Forest Products had “knowledge that [Defendant
Morgan] is incompetent; (4) proximate cause; and (5) damages. Edwards v. Valentine, 926 So.2d
315, 320 (Ala. 2005). No genuine issue of fact exists as to whether Defendant Morgan was
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incompetent at the time of the underlying Accident. No genuine issue of fact exists as to whether
Defendant Forest Products lacked knowledge of Defendant Morgan’s incompetence. No genuine
issue of fact exists as to whether Defendant Forest Products’ knowledge of Defendant Morgan’s
incompetence was the proximate cause of any compensable injury. Accordingly, Defendants are
entitled to judgment as a matter of law against Plaintiff as to Count Three.
Conclusion
Based on the foregoing, Defendants’ motion for summary judgment as to Counts Two and
Three of the Complaint is hereby GRANTED.
DONE and ORDERED this the 10th day of January, 2012.
s/Charles R. Butler, Jr.
Senior United States District Judge
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