Collier v. Bronson

Filing 40

Order on Bench Trial held on 12/6/16, judgment shall be entered in favor of Plf on her negligence claim & Plf is awarded $50,000.00 in compensatory damages as set out. Additionally, judgment shall be entered in favor of Dft as to Plf's wantonness claim as set out. Signed by Senior Judge Callie V. S. Granade on 4/20/2017. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBIN COLLIER,
Plaintiff,
vs.
CHARELLE BRONSON,
Defendant.

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) CIVIL ACTION NO. 15-498-CG-M
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ORDER

A bench trial was held and testimony was taken and other evidence was
received in this matter on December 6, 2016. For the reasons discussed below, the
Court finds that Plaintiff should be awarded a total of $50,000.00 in compensatory
damages on her negligence claim, but that judgment should be entered in favor of
Defendant on Plaintiff’s wantonness claim.
FACTS
This action arises from an automobile accident that occurred on May 10,
2014, in Baldwin County, Alabama, on Orange Beach Boulevard at its intersection
with Marina Road. It is undisputed that Plaintiff Robin Collier was sitting in her
car, stopped in the southbound lane at the Marina Road traffic light when a
southbound vehicle driven by Defendant Charelle Bronson collided with the rear of
Plaintiff’s vehicle. As a result of the accident both vehicles were declared total losses
and Plaintiff claims she suffered permanent physical and emotional injuries.

The Defendant Charelle Bronson testified at trial that she was in Alabama
on vacation with friends at the time of the accident. Bronson had driven to Alabama
the day before and had been up late the night before the accident. According to
Bronson, on the day of the accident she was the designated driver and she did not
have anything to drink that day. Bronson and three friends were listening to music
in the car and the music selection was coming from Bronson’s phone as she was
driving down Orange Beach Boulevard. Bronson testified that she did not see
Plaintiff’s car in front of her until she was three or four car lengths from Plaintiff’s
car. Bronson reports that the person in the front passenger seat wanted to change
the song they were listening to and asked Bronson for her password to unlock her
phone and change the music. According to Bronson, she turned her head in the
direction of the passenger and told her friend the password and when she turned
back toward the road she saw Plaintiff’s car, but it was too late to avoid it. Bronson
testified at her deposition that she could not have been going much over 45 mph,
but at trial she admits that she is not sure how fast she was going and she concedes
that she was distracted by her friend asking for the password to unlock her cell
phone. Bronson maintains that her friend had Bronson’s cell phone at the time of
the accident.
There was evidence presented regarding cell phone records from Bronson’s
phone on the day of the accident but there was some confusion regarding whether
the times stated in the records were accurate due to the records listing the times
under the heading “Conn. Time (UTC).” (P. Ex. 25). Counsel had assumed that the

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times listed were listed as the local, Central Standard times. However, when
questioned about the heading on the records, counsel was unsure, and though
counsel later stated that he still understood the times to be the same as local time,
the Court is not persuaded1. Even if counsel was correct that the records showed the
local central standard time, the Court finds that the records and Bronson’s
responses to questions regarding her phone use did not show that she was using the
phone at the time of the accident. The most that the records demonstrated (if the
times listed were the same as local time) was that calls were made to Bronson’s
phone around that time. There was no evidence that Bronson had placed a phone
call or had answered a phone call or texted anyone around the same time as the
accident.
After the accident, police officers arrived. They talked to Bronson but
reportedly did not charge her with having committed any offense and did not test
her for alcohol or even ask her if she had been drinking. One of Bronson’s friends
was passed out in the back seat of Bronson’s car.
Carol Ewing testified that she witnessed the accident. Ewing testified that
the day of the accident was a beautiful day and that it was not dark yet when the
Rule 201 of the Federal Rules of Evidence permits a court to take judicial notice of
a fact that is not subject to reasonable dispute at any point in the proceedings.
Fed.R. Evid. 201(b), (d). In United States v. Michael, 664 Fed. Appx. 32, 36 (2d Cir.
2016), the Second Circuit Court of Appeals held that taking judicial notice of the
relationship between UTC and Eastern Time was not subject to reasonable dispute
and therefore not an abuse of discretion. Here, the Court takes judicial notice that
UTC, or Coordinated Universal Time, is the primary time standard by which the
world regulates clocks and time. Local time in the Central Time zone is six hours
behind UTC during winter but five hours behind while daylight savings time is
observed.
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accident occurred. Ewing was travelling North on Orange Beach Boulevard when
she reports she saw Bronson’s car traveling very fast - at least 60 mph. According to
Ewing, she was “back a ways” from the intersection and heading in the opposite
direction when she saw Bronson’s car coming over the hill or rise in the distance.
When she saw Bronson’s car she reports that she immediately knew there was
going to be an accident, so she pulled to the side, into the turn lane and stopped her
car. Ewing was stopped south of the accident and immediately after the accident
she moved her car farther to the north - closer to where Plaintiff’ Robin Collier’s car
ended up after the accident occurred. Collier’s car travelled south across the Marina
Road intersection when it was hit by Bronson’s car. Ewing got out of her car and
checked on the people in both cars involved in the accident. According to Ewing,
Bronson and her friends were searching for Bronson’s phone and Bronson had
slurred speech and appeared impaired. Ewing reported that Bronson said the phone
flew out of her hand.
Plaintiff’s husband, John Collier, testified at trial. Mr. Collier took a video of
the view someone driving south on Orange Beach Boulevard would have as they
approached the Marina Road intersection. In the video he estimates he was going
about 45 miles per hour and it took approximately 14 seconds to go the distance
from the hill or rise to where the collision occurred.
Plaintiff Robin Collier testified that she was nauseated and had a bruise on
her forehead but she did not see a doctor or go to the hospital the day of the
accident. The next morning she had a headache and was sore. That day while she

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was driving with her daughter, Plaintiff started experiencing problems and her
daughter insisted she go to the hospital. Plaintiff started repeating things she had
said just moments before, had trouble with numbers and seemed to be having
mental issues of some kind. Plaintiff complained of stiffness in her neck and said
she had a headache. At the hospital they performed a CT scan but they did not find
anything wrong and told her to see an orthopedic physician if she kept hurting. She
went to go see her general practitioner, Dr. Ross Bishop, to get a referral to a
physical therapist. She also went to see an orthopedist, Dr. Harcourt, on May 23rd
and again on June 4 because of her neck pain and pain down her arm. On August
8, 2014 Dr. Harcourt told Plaintiff that her MRI showed that the accident had
aggravated her underlying degenerative cervical spine. Plaintiff’s spine had not
bothered her before and she did not know until then that she had a degenerative
cervical spine. Plaintiff saw Dr. Harcourt a total of 4 times, but did not go back to
him after that because she did not think he was going to be able to do anything to
help her condition. Plaintiff went to see Dr. Ross Bishop on August 19, 2014 to get a
referral to try acupuncture. She continued to be treated with acupuncture and also
started getting massages regularly. She still gets a massage every two weeks.
Plaintiff went to see a neurologist, Dr. Kasmia in October 2014. Dr. Kasmia’s notes
indicate that Plaintiff was working full time without any difficulties and that she
had developed headaches after the accident, but that they have improved almost
back to base line. Plaintiff never went back to Dr. Kasmia.
Plaintiff works as a hairdresser and has her own shop. She is 55 years old as

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of January 2017 and has worked for 20 years to build her clientele to about 125
customers. She usually works four or five days a week. She has not missed any days
of work, but after the accident she would be tired and sore at the end of the day and
especially at the end of the week. As a hairdresser she has to hold her arms up all
the time. She puts ice on her shoulders every night. When she sleeps on her side she
experiences pain and her fingers go to sleep, but she has learned to adjust her arm
to alleviate the problem. She has also learned to do stretches that relieve the pain
and tension. Plaintiff testified that the memory of the wreck still affects her. She
remembers the blood-curdling scream of her daughter, Molly Harbison, right after
the impact. However she never pursued any kind of treatment for emotional
problems and did not go to a psychiatrist, psychologist, counselor, or other mental
health specialist. She occasionally took Tramadol for pain, but that made her feel
disoriented or lightheaded and she stopped using it. Now she takes Mobic in the
mornings and sometimes substitutes with ibuprofen because that is not as hard on
her stomach. Plaintiff also takes the muscle relaxer Flexeril three or four times a
week. Plaintiff sees Dr. Ross Bishop every three months to get her prescriptions for
Flexeril and Mobic.
Plaintiff’s husband testified that after the accident, Plaintiff was sometimes
very emotional and would have flashbacks of the accident. He said Plaintiff would
often repeat statements she made a few days or a couple hours earlier. He reported
that she was in physical pain from her neck and her back and took medications for
pain and also used heating pads and ice packs. He said they have tried to exercise

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or go hiking together, but she always had to stop. As a result they were not as active
as they used to be.
Plaintiff’s daughter, Molly Harbison, testified that Plaintiff is still easily
upset and sometimes “almost a little bit confused.” Harbison reported that Plaintiff
is exhausted and in pain after a workday from holding her arms up to cut and blow
dry hair and standing on her feet all day. Before she could do that and now it is very
difficult. Harbison testified that she used to exercise with her mother when she
would come home – they would run circuits – and they do not do that anymore.
Harbison said her mother is generally not as lively or robust as she used to be.
Plaintiff testified that the pain she experiences does not prevent her from
doing anything she used to do. She has resumed all the activities she used to do and
is even trying to start back jogging. She still does the same activities, just not as
frequently and she experiences pain and soreness depending on her workload and
activities. She now has someone come to her house to do the heavy cleaning every
two or three weeks because it aggravates her back for her to do it.
Plaintiff kept a calendar in which she sometimes wrote notes about how she
was feeling. She sometimes reported that she was feeling good, her neck was getting
better or that she felt like she was back to her old self, but Plaintiff says that
although she sometimes feels better and tries to stay optimistic, she is not back to
her old self. The pain still comes and goes. According to Dr. Ross Bishop, in the
future Plaintiff will probably have persistent neck pain that could get worse from
the aging process and the wreck and its possible she could need surgery at some

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point. (Pl. Ex. 28, pp. 32-34).
DISCUSSION
I. Negligence Claim
In order to prevail on a negligence claim, a plaintiff must prove four
elements: duty, breach, causation, and damages. Sessions v. Nonnenmann, 842 So.
2d 649, 651 (Ala. 2002). “[A] vehicle operator is under a duty to use reasonable care
in operating the vehicle,” Jones v. Baltazar, 658 So. 2d 420, 421 (Ala. 1995), and the
parties in this case do not dispute that Defendant breached that duty and that the
breach resulted in injury to Plaintiff. The only dispute with regard to Plaintiff’s
negligence claim is the amount of damages that should be awarded.
“Where liability is established, the assessment [of damages] must include an
amount at least as high as the uncontradicted special damages, as well as a
reasonable amount as compensation for pain and suffering.” Bailey v. Bean, 812 So.
2d 1241, 1242–43 (Ala. Civ. App. 2001) (citations omitted). “ ‘[I]f there are special or
compensatory damages and proof of some ‘pain and suffering,’ then there must be
an award in excess of the special damages.’ “ Id. at 1243 (citations omitted).
In the instant case, Plaintiff seeks an award of $100,000 for compensatory
damage. (Doc. 34, p. 7). Plaintiff presented evidence that her medical bills from the
accident amount to approximately $10,000. Plaintiff has not shown a loss of
earnings or lost wages, but claims her injury is permanent and that she has and
will suffer future pain and mental anguish from her injuries. Plaintiff has a life

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expectancy of about 27 years. (See Pl. Ex. 23 – mortality table). Plaintiff sates that
she continues to get massages every other week for treatment at a cost of $150 per
month, which would amount to $48,000 if she continued with that treatment for 27
years.
Defendant concedes that Plaintiff was injured and does not dispute the
$10,000 claimed for medical expenses, but contends that she has improved
considerably and is able to do all the things she used to do. Defendant points out
that Plaintiff only saw a physician for a problem related to this accident eight times
in approximately two and a half years. She has seen a specialist and a neurologist,
but now only sees her general practitioner to have her medications monitored.
Plaintiff was also found to have an underlying degenerative cervical spine, which
was aggravated by the accident. Her condition would have deteriorated as she aged
and would be expected to continue to deteriorate as she ages even if she had not
been injured in the accident. Defendant contends that Plaintiff’s decline in ability
to work long hours, exercise and do other things at the same intensity or vigor as
she used to is a normal result of her aging with a degenerative cervical spine.
The Court after review of all of the evidence concludes that Plaintiff was
indeed injured, but that she has substantially improved and is not likely to need
substantial medical treatment in the future as a result of the accident. Additionally,
although the Court believes Plaintiff suffered pain and was distressed by the whole
incident, her mental suffering did not rise to the level of requiring any kind of
formal professional treatment. After considering the testimony and evidence

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submitted, the Court finds that Plaintiff should be awarded a total of $50,000.00 in
compensatory damages consisting of $10,000 for past medical costs and $40,000 for
pain and suffering and future medical costs.
II. Wantonness Claim
Plaintiff also asserts a claim of wantonness. “To establish wantonness, the
plaintiff must prove that the defendant, with reckless indifference to the
consequences, consciously and intentionally did some wrongful act or omitted some
known duty.” Lemley v. Wilson, 178 So.3d 834, 841-42 (Ala. 2015) (citation omitted).
In the instant case, Plaintiff contends that the Defendant wantonly operated her
vehicle because she was using her cell phone at the time of the accident and/or she
had been drinking and was impaired.
The Court notes that under Alabama law it is illegal to write or send a text
while operating a motor vehicle. ALA. CODE § 32-5A-350.2 However,
there is no Alabama statute that expressly addresses talking on a cell
phone while driving, see generally 1975 Ala. Code §§ 32-5A-1 to -352
(“Rules of the Road”) (containing in the traffic-law compilation no
express prohibition of talking on cell phone while driving), common
sense dictates that doing so could result in culpability if it interferes
with a driver's duty to use “reasonable care” not to cause harm to
others using the public roadway, Jones v. Baltazar, 658 So. 2d 420, 421
(Ala. 1995), with the term reasonable care defined as what “a
reasonably prudent person would not do in a similar situation” or what
“a reasonably prudent person would have done in a similar situation.”
Alabama Pattern Jury Instructions: Civil § 28.01.
Davis v. Automatic Food Serv., Inc., 2015 WL 7455544, at *2 (M.D. Ala. Nov. 23,
ALA. CODE § 32-5A-350 states the following: “A person may not operate a motor
vehicle on a public road, street, or highway in Alabama while using a wireless
telecommunication device to write, send, or read a text-based communication.”
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2015). Nor is there an Alabama statute that expressly addresses what actions are
prohibited or appropriate when using a cell phone to operate music while driving.
Moreover, for a finding of wantonness, there must be more than merely a failure to
use “reasonable care” in operating a vehicle.
Wantonness can result from (1) “conscious disregard,” 1975 Ala. Code §
6-11-20(b)(3), or (2) “reckless indifference,” Martin v. Arnold, 643 So.
2d 564, 567 (Ala. 1994). According to the Alabama Supreme Court,
“Wantonness is not merely a higher degree of culpability than
negligence. Negligence and wantonness, plainly and simply, are
qualitatively different tort concepts of actionable culpability.” Tolbert
v. Tolbert, 903 So. 2d 103, 114 (Ala. 2004) (internal citations omitted).
While negligent conduct is characterized by “inattention,
thoughtlessness, heedlessness,” and “a lack of due care,” Monroe v.
Brown, 307 F. Supp. 2d 1268, 1271 (M.D. Ala. 2004) (Thompson, J.),
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,” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (emphasis in
original). A factfinder may find wantonness based on recklessness if
the conduct is “so inherently reckless that it would signal the kind of
depravity consistent with disregard of instincts of safety and selfpreservation.” Jinright v. Werner Enterprises, Inc., 607 F. Supp. 2d
1274, 1276-1277 (M.D. Ala. 2009) (Thompson, J.) (internal quotations
omitted).
Davis, 2015 WL 7455544, at *2–3. “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.” Williams v. Werner Enterprises,
2013 WL 6665385, at *3 (N.D. Ala. Dec. 17, 2013) (quoting Scott v. Villegas, 723
So.2d 642, 642 (Ala.1998)). “The actor's knowledge may be proved by showing
circumstances from which the fact of knowledge is a reasonable inference; it need
not be proved by direct evidence.” Id. (quoting Scott, 723 So.2d at 642).
In the instant case, the Court finds from the testimony and other evidence
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that the Defendant was not personally using her phone at the time of the accident,
but had turned to tell her passenger the password for her phone immediately prior
to the accident. Plaintiff was distracted while driving, but the Court finds the
evidence does not show that she was using her phone at the time to read or send a
text, to talk to someone on the phone, or to key in a password. Defendant testified
that her passenger had Defendant’s phone at the time of the accident and no one
witnessed Defendant using the phone. As mentioned previously, the Court finds
that the cell phone records do not demonstrate any inconsistency in the Defendant’s
account. The Court is not convinced by Ms. Ewing’s report that Defendant said the
phone flew out of her hand. As will be explained further below, the Court did not
find Ewing’s testimony to be credible.
The Court also finds that Plaintiff was not impaired at the time of the
accident. Although Ms. Ewing testified that Defendant had slurred speech and
appeared impaired immediately after the accident, the Court finds Ewing’s account
of the events surrounding the accident not credible. All of Ewing’s testimony
regarding the accident was dubious. Ewing claimed to see the Defendant’s car
coming from the opposite direction from a great distance away and to have
immediately divined that there would be an accident. The Court does not believe
that Ms. Ewing could have seen and appreciated the circumstances she claims to
have discerned from where she was located prior to the accident. Ewing’s testimony
regarding the Defendant’s reported impairment are contrary to the other facts and
circumstances presented at trial. There is no evidence that the officers who

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investigated the accident had any inclination that Defendant was impaired.
Although they spoke with Defendant at length after the accident they apparently
found no reason to ask her if she had been drinking or to ask her to submit to a
breathalyzer or field sobriety test. The officers did not detain Defendant or charge
her with any offense or infraction. Defendant testified that she had not had
anything to drink and that she was the designated driver. After considering all of
the evidence, the Court concludes that Defendant was not intoxicated or otherwise
impaired at the time of the accident.
There are no “exacerbating circumstance,” such as the Defendant “talking on
h[er] phone or texting,” that could support a finding of wantonness. See Davis, 2015
WL 7455544, at*3 (finding sufficient evidence in that case for jury to find
exacerbating circumstances) (quoting Craft v. Triumph Logistics, Inc., 2015 WL
1565003, at *3 (M.D. Ala. April 8, 2015). Here, the evidence does not establish
something more than mere inattentiveness or violation of road rules. See Davis,
2015 WL 7455544, at*3 (citing Craft, 2015 WL 1565003, at *3). The Defendant was
in conversation with other occupants of the car and glanced away from the road to
tell another passenger the password to her phone. Such conduct may show
inadvertence, but does not measure up to wantonness. See e.g. George v. Champion
Ins. Co., 591 So.2d 852 (Ala.1991) (finding summary judgment in favor of defendant
proper where the driver “glanced back in conversation” and “[w]hen she looked
forward, the traffic light was red” and “she tried to put her foot on the brake pedal,
but missed and hit the clutch pedal.”).

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CONCLUSION
For the reasons stated above, Judgment shall be entered in favor of Plaintiff,
Robin Collier, on her negligence claim and Plaintiff is awarded a total of $50,000.00
compensatory damages. Additionally, judgment shall be entered in favor of
Defendant, Charelle Bronson, as to Plaintiff’s wantonness claim.
DONE and ORDERED this 20th day of April, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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