Dillard v. Smith et al
OPINION and ORDER granting in part and denying in part 86 Motion for Partial Summary Judgment; granting 87 Motion for Partial Summary Judgment. The Court ORDERS the parties to meet and confer in a serious, good faith effort to resolve this cas e within the next 30 days. At least some of these discussions must be in person. The parties have previously expressed an interest in mediation. If they want to pursue that option, they should notify the Court within the next 30 days. Signed by Judge Michael L. Brown on 5/9/2022. (dob) Modified on 5/9/2022 to edit text (dob).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
Case No. 1:19-cv-821-MLB
Leroy Smith, Jr., and Marten
OPINION AND ORDER
This case arises from a motor vehicle collision. Defendant Leroy
Smith, Jr. crashed into Plaintiff Nessia Dillard while he was driving a
truck for Defendant Marten Transport, Ltd.
Plaintiff sued both
Defendants for negligently causing the accident. Defendants now move
for partial summary judgment.
(Dkts. 86; 87.)
The Court grants
Defendant Smith’s motion in full and grants Defendant Marten’s motion
Defendant Smith was a truck driver for Defendant Marten. One
night, while he was out on a job, he “had to stand on [his] brakes with
more force than normal” to stop at a red light. (Dkt. 86-2 at 61.) He had
never had any problems with his brakes before. (Id. at 62.) There was
little space for him to pull over on the side of the road. (Id. at 70.) And
he was “right up the road” from his destination. (Id. at 61–62.) So he
decided to drive on and check his brakes when “got to [his] drop.” (Id.)
He did not make it far before he reached another red light—and,
this time, he could not stop in time. He was going about 55 miles per
hour (which was at or below the speed limit) when the light turned
yellow. (Id. at 30–31.) He immediately applied his brakes and “should
have been able to stop before the red light . . . . if everything was working
normal.” (Id. at 30, 37–38.) But the pedal brake was “stiff,” the engine
brake did not work at all, and he “wasn’t slowing down much.” (Id. at
34–35.) He “wasn’t exactly sure if [he] was going to stop” so he turned on
his emergency blinkers and “look[ed] for people that may be entering the
intersection.” (Id. at 36, 38.) He ultimately went through the red light
and crashed into Plaintiff’s vehicle despite “mak[ing] a left-hand steer to
try to avoid the collision.” (Id. at 36, 38, 40.)
Plaintiff sued both Defendants for causing the accident.
Dkt. 47.) She asserts a claim for negligent driving against Defendant
Smith, an identical claim against Defendant Marten under the doctrine
of respondeat superior, and a claim for negligent hiring, retention,
supervision, and entrustment against Defendant Marten.
punitive damages for all three claims.
Both Defendants move for
summary judgment on Plaintiff’s request for punitive damages.
Defendant Marten also moves for summary judgment on Plaintiff’s claim
for negligent hiring, retention, supervision, and entrustment.
Standard of Review
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party
moving for summary judgment bears the initial burden of showing a
court, by reference to materials in the record, that there is no genuine
dispute as to any material fact. Hickson Corp. v. N. Crossarm Co., 357
F.3d 1256, 1260 (11th Cir. 2004). The nonmoving party then has the
burden of showing that summary judgment is improper by coming
forward with “specific facts” showing a genuine dispute. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately,
“[w]here the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.”
Salinero v. Johnson & Johnson, 995 F.3d 959, 964 (11th Cir. 2021).
Punitive Damages for Defendant Smith’s Negligent
The parties agree Defendant Smith negligently crashed into
But they dispute whether Plaintiff is entitled to punitive
damages for that negligence. Plaintiff says she is because Defendant
Smith drove “a loaded tractor-trailer with known brake problems at
speeds at or above 50 mph through a red traffic light.” (Dkts. 90 at 1; 91
Defendants say punitive damages are unwarranted because,
although “Mr. Smith’s actions were negligent,” they do not meet the “very
high bar for punitive damages” as a matter of law. (Dkt. 86-1 at 17, 19;
see Dkt. 87-1 at 1–2.) The Court agrees with Defendants.
“Punitive damages may be awarded only in such tort actions in
which it is proven by clear and convincing evidence that the defendant’s
oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences.” O.C.G.A. § 5112-5.1(b). Plaintiff’s briefing focuses on the last clause, which requires
an “entire want of care” suggesting “conscious indifference to
consequences.” (See Dkts. 90 at 13–16; 91 at 9–13.) “Courts analyzing
this standard have highlighted how stringent it is, noting that, where a
defendant has exhibited at least some degree of care[,] there cannot be
an entire want of care necessary to support a jury award for punitive
damages.” Karr v. Celadon Trucking Servs., Inc., 2017 WL 11084520, at
*6 (N.D. Ga. Nov. 3, 2017). “Negligence alone, even gross negligence, is
MDC Blackshear, LLC v. Littell, 537 S.E.2d 356, 361
(Ga. 2000). “There must be circumstances of aggravation or outrage.”
W. Indus., Inc. v. Poole, 634 S.E.2d 118, 120 (Ga. Ct. App. 2006). And
those circumstances must suggest “an intentional disregard of the rights
of another, knowingly or wilfully.” COMCAST Corp. v. Warren, 650
S.E.2d 307, 311 (Ga. Ct. App. 2007).
Whether a defendant’s conduct is sufficiently aggravating to
warrant punitive damages is generally a jury question. Weller v. Blake,
726 S.E.2d 698, 703 (Ga. App. 2012).
But “summary judgment is
appropriate if the . . . record does not suggest that a plaintiff could carry
his burden of proof by showing clear and convincing evidence that the
defendant acted with the requisite intent.” Dickerson v. Am. Nat. Prop.
& Cas. Co., 2009 WL 1035131, at *9 (M.D. Ga. Apr. 16, 2009); see, e.g.,
Taylor v. Powertel, Inc., 551 S.E.2d 765, 769 (Ga. Ct. App. 2001)
(“[P]laintiff failed to come forward with some evidence that would
indicate that at trial he could meet the intermediate standard of proof by
clear and convincing evidence, creating a jury issue, because defendant,
in support of its motion, demonstrated the complete absence of evidence
of such culpability in the record.”)
This is such a case. On the undisputed facts presented here, no
reasonable jury could find by clear and convincing evidence that
Defendant Smith engaged in culpable conduct so as to justify an award
of punitive damages. He would not have crashed into Plaintiff if his
brakes were working properly. And he had no reason to believe his
brakes were even an issue until “the intersection right before” he crashed.
(Dkt. 86-2 at 61.) That means he drove only a short distance with any
knowledge of the mechanical problem that caused the crash. And, the
mechanical problem did not suggest he would be unable to stop the truck
as needed to operate it safely, but rather that he would simply have to
work harder to do so. These undisputed facts reduce his culpability for
Plaintiff’s injuries and preclude punitive damages.
Cf. J.B. Hunt
Transp., Inc. v. Bentley, 427 S.E.2d 499, 503 (Ga. Ct. App. 1992) (punitive
mechanical problem or serious physical problem or both, [the driver]
continued on the highway for at least 10 or 20 miles”).
Plaintiff contends the brake incident at the first light provided
Defendant Smith knowledge of a “critical equipment failure” that he then
intentionally disregarded. (Dkt. 91 at 11.) That is not an accurate
statement of the undisputed facts. When the issue arose at the first light,
Defendant Smith managed to stop the truck with only “a little difficulty.”
(Dkt. 86-2 at 60.) There was no equipment failure. All he had to do was
apply the pedal brake with “more force than normal.” (Id. at 61.) That
may not have worried him much since Defendant Marten had serviced
his brakes just three weeks earlier. (Dkts. 86-3; 90-1 at 10; 91-1 at 4–5.)
Indeed, Defendant Smith testified he thought it was safe to continue
driving despite the issue with his brakes. (Dkt. 86-2 at 71–72.)
Moreover, Defendant Smith did not simply ignore or disregard the
braking issue; he came up with a “plan” to resolve it. (Id. at 61.) It was
dark outside, there was not enough space to pull over safely, he did not
know how to check the brakes himself, and he was “right up the road”
from his destination. (Id. at 28, 61–62, 70.) So, instead of pulling over
and causing a potential obstruction for traffic behind him, he decided to
drive on for a short distance and investigate the issue when he reached
his destination. (Id. at 61–62.) Given everything Defendant Smith knew
at the time, that decision may have been reasonable. But even if it was
not—indeed, even if it was grossly unreasonable—it does not
demonstrate an “entire want of care” suggesting “conscious indifference
to consequences.” Not even close.
Our facts are far different from the situation in Glenn McClendon
Trucking Co. v. Williams, 359 S.E.2d 351 (Ga. Ct. App. 1987)—the case
Plaintiff primarily relies upon to argue a jury must decide punitive
In Glenn McClendon, the Georgia Court of Appeals
upheld an award of punitive damages against a trucking company after
the wheels of a truck separated from the truck and smashed into the
plaintiff’s car. Id. at 353. The court held a jury could find wanton
disregard from evidence the defendant made repairs to the truck knowing
the repair method was unsafe and created a risk the wheels would
eventually fall off, the company’s driver was notified while driving down
the road that the truck’s wheels were smoking (a sign of impending
failure), the driver ignored specific advice to stop, and the driver
continued down the road until the wheels separated from the truck. Id.
at 354. All of that is to say, the defendant in Glenn McLendon knowingly
created a risk of equipment failure and then continued driving despite
clear evidence the risk was materializing and third-party advice to pull
None of those things happened here. Defendant Smith did not
recklessly cause the braking issue with his truck, he had no reason to
suspect the issue before he got on the road, he had little reason to think
the issue was critical when it first arose at the intersection before he
crashed, and no one told him to pull over. There are also mitigating facts
here that were not present in Glenn McLendon. Defendant Smith could
not pull over because there was not enough space to do safely, he was a
short distance away from his destination, he did not simply ignore the
braking issue but formulated a plan to resolve it, and, even now, he does
not think his driving was unsafe. All of this distinguishes our case from
the blatant recklessness in Glenn McClendon.
Plaintiff counters that “running a red light in a tractor-trailer is
itself preventable” and egregious. (Dkt. 90 at 15–16.) But “punitive
damages are not recoverable in automobile collision cases when a driver
simply violates a rule of the road.” Ferguson v. Garkusha, 2020 WL
4732187, at *4 (N.D. Ga. Aug. 14, 2020). That includes cases, like this
one, where the driver “ran a red light and caused the collision.” Cullen
v. Novak, 411 S.E.2d 331, 332 (Ga. Ct. App. 1991). So Plaintiff’s red-light
argument is a non-starter.
Plaintiff also criticizes Defendant Smith for driving 55 miles per
hour after noticing his brakes were faulty. (Dkt. 90 at 15.) But, according
to Plaintiff, 55 miles per hour was less than the speed limit. (Dkt. 86-2
at 31.) There were no “cars ahead of [him] stopped at the intersection or
preparing to stop at the intersection.” (Id. at 33.) And he managed to
stop at the prior intersection despite presumably travelling at similar
speeds. Throw in all the mitigating circumstances described above and
Defendant Smith’s speed, though probably ill-advised, was not
“reprehensible” enough to warrant punitive damages. Colonial Pipeline
Co. v. Brown, 365 S.E.2d 827, 830 (Ga. 1988) (“Punitive damages are
private fines levied by civil juries to punish reprehensible conduct and to
deter its future occurrence.”).
Finally, Plaintiff points to Defendant Smith’s testimony that, if
possible, he “should have pulled over and inspected [his] brakes” when
they first started acting up at the intersection before the crash. (Dkt. 862 at 70; see Dkt. 91 at 11.) But Defendant Smith said this with the benefit
of hindsight at a deposition more than three years after the accident. So
it tells us little about the reasonableness of his decision in real time.
Moreover, Defendant Smith was clear that, while he “should have pulled
over . . . . [i]f that was possible,” doing so was not in fact possible because
“[t]here wasn’t enough space for [him] to stop” at the side of the road.
(Dkt. 86-2 at 70 (emphasis added).)1
Plaintiff has submitted two “Google images” purporting to show the
dimensions of one part of State Route 316. (Dkts. 90-11; 90-12.) Plaintiff
says these images “show that there was room for Defendant Smith to
get his tractor-trailer off of the road prior to the collision.” (Dkt. 91 at 7
n.2.) No reasonable jury could agree. The images are unclear, we do not
know how big Defendants’ truck was, and there is no cognizable evidence
of where the collision occurred or whether/when Defendant Smith even
passed the location displayed in the images. (See Dkt. 86-2 at 92–93
(Defendant Smith testifying he is “not exactly sure” where the collision
occurred).) Plaintiff also points to Defendant Smith’s testimony that he
Given the undisputed facts, no reasonable jury could find that
Defendant Smith deserves punitive damages for crashing into Plaintiff’s
His driving was no worse than negligent.
negligent. Neither is sufficient for punitive damages. So Defendants are
entitled to summary judgment on Plaintiff’s claim for punitive damages
arising from Defendant Smith’s negligent driving.2
Negligent Hiring, Retention, Supervision,
Entrustment (and Related Punitive Damages)
Plaintiff also asserts a claim against Defendant Marten for
negligent hiring, retention, supervision, and entrustment (for which she
seeks punitive damages). Her theory is that, given Defendant Smith’s
“pull[ed] off to the side of the road” after the accident. (Dkt. 86-2 at 28;
see Dkt. 90-1 at 23.) But that does not necessarily mean he got off the
road entirely. And it says nothing about whether he could have done so
before the accident. Plaintiff’s “conjecture . . . cannot overcome
[Defendant Smith’s] contradictory direct evidence.” Rodriguez v. Farrell,
280 F.3d 1341, 1353 n.20 (11th Cir. 2002). So it does not “raise a genuine
issue of fact.” Id. And, even if it did, it would not change the Court’s view
that punitive damages are unwarranted as a matter of law.
2 “In cases involving automobile collisions, punitive damages are
authorized when the accident results from a pattern or policy of
dangerous driving, such as excessive speeding or driving while
intoxicated.” Mastec N. Am., Inc. v. Wilson, 755 S.E.2d 257, 260 (Ga. Ct.
App. 2014) (emphasis added). Plaintiff does not pursue this theory in her
briefing (certainly not clearly anyway) but, even if she had, it would fail
as a matter of law given the record here.
driving record, “Defendant Marten Transport knew or should have
known that [he] was neither competent to be entrusted with a
commercial vehicle nor suited for employment as a commercial vehicle
operator.” (Dkt. 47 at ¶ 34.) Defendant Marten moves for summary
judgment on this claim (including Plaintiff’s related request for punitive
damages) given “Smith’s clean driving record and Marten’s proper hiring
protocols.” (Dkt. 86-1 at 19.)
The Court denies Defendant Marten’s
motion for failure to comply with Local Rule 56.1 and for failure to meet
a movant’s initial burden on summary judgment.
A party seeking summary judgment “must point to specific portions
of the record in order to demonstrate that the nonmoving party cannot
meet its burden of proof.” United States v. Four Parcels of Real Prop. in
Greene & Tuscaloosa Ctys. in State of Ala., 941 F.2d 1428, 1438 n.19 (11th
Cir. 1991). To do this, the movant must file a statement of undisputed
material facts with “[e]ach material fact . . . numbered separately and
supported by a citation to evidence.” LR 56.1(B)(1), NDGa. “The Court
will not consider any fact . . . not supported by a citation to evidence . . .
[or] set out only in the brief.” Id. This rule is “not a mere technicality.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009).
“streamlines the resolution of summary judgment motions” and “protects
judicial resources by making the parties organize the evidence rather
than leaving the burden upon the district judge.” Reese v. Herbert, 527
F.3d 1253, 1268 (11th Cir. 2008).
Defendant Marten has filed a statement of undisputed material
(See Dkt. 86-8.)
And it does include some allegations about
“Smith’s clean driving record and Marten’s proper hiring protocols”
(which is the basis for Defendant Marten’s motion). (See id. ¶¶ 16–22.)
But none of these allegations include “citation[s] to evidence.”
LR 56.1(B)(1), NDGa. And all of them are bundled together with other
facts rather than “numbered separately.” Id. So “the Court will not
consider” them. Id.; see Johnson v. Am. Fam. Ins., 2021 WL 2588010, at
*3 (N.D. Ga. Jan. 29, 2021) (“The Court has excluded . . . assertions of
fact unsupported by a citation to admissible evidence in the record or set
forth only in Defendants’ brief and not in the statement of facts.”).
That leaves Defendant Marten with no cognizable evidence against
Plaintiff’s claim for negligent hiring, retention, supervision, and
entrustment, or the related request for punitive damages. So the Court
denies Defendant Marten’s motion for summary judgment on those
claims. See Gomez v. Jackson, 2020 WL 4048061, at *3 (N.D. Ga. July
20, 2020) (“[Movant] did submit a statement of undisputed material facts,
but it includes no record citations in violation of Local Rule 56.1. That
precludes summary judgment in his favor.”); Lumbermen’s Underwriting
All. v. Blount Int’l, Inc., 2007 WL 7603709, at *3 (N.D. Ga. Feb. 5, 2007)
(“[Movant], because of its failure to comply with the Local Rules, has not
met its initial responsibility of informing the Court of the portions of the
record, which it believes demonstrates that no question of material fact
exists. . . . Accordingly, the Court DENIES [Movant’s] Motion for
Defendant Smith’s Motion for Partial Summary Judgment (Dkt. 87)
Defendant Marten’s Motion for Partial Summary
See also Bulluck v. Newtek Small Bus. Fin., Inc., 2018 WL 5262553, at
*1 (N.D. Ga. Aug. 24, 2018) (denying summary judgment motion because
“the party seeking summary judgment bears the burden of
demonstrating the absence of a genuine dispute as to any material fact,
and [Movant] has failed to carry that burden through her non-compliance
with the Local Civil Rules.”); USAA Gen. Indem. Co. v. Pendergrass, 2017
WL 3461315, at *7 (N.D. Ga. Feb. 27, 2017) (“USAA provided no evidence
in its statement of facts concerning this notice argument. . . .
Consequently, the Court denies USAA’s request for summary judgment
on this ground.”).
Judgment (Dkt. 86) is GRANTED IN PART and DENIED IN PART.
It is GRANTED with respect to Plaintiff’s claim for punitive damages
arising from Defendant Smith’s negligent driving.
It is otherwise
DENIED. The Court ORDERS the parties to meet and confer in a
serious, good faith effort to resolve this case within the next 30 days. At
least some of these discussions must be in person. The parties have
previously expressed an interest in mediation. If they want to pursue
that option, they should notify the Court within the next 30 days.
SO ORDERED this 9th day of May, 2022.
MICH"K E L L. B R O W N
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