Mason v. McGuffey

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE F. MASON, )

)

Plaintiff, )

)

v. ) CASE NO. 2:20-CV-320-WKW

) [WO]

LARRY A. MCGUFFEY and )

MERDZIC TRANSPORTATION )

SERVICES, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On August 18, 2018, Plaintiff Willie F. Mason’s (“Mason”) car collided with

a tractor trailer truck operated by Defendant Larry A. McGuffey (“McGuffey”).

After the accident, Mason sued McGuffey and his employer, Merdzic Transportation

Services, Inc. (“Merdzic”), on five counts: (I) negligence/wantoness; (II)

respondeat superior; (III) negligent/wanton hiring, training, supervision, and/or

retention; (IV) negligent/wanton supervision of the maintenance, operation, service,

and/or repair of the tractor trailer; and (V) negligent/wanton entrustment. (Doc. # 1-

1.)

Before the court is Defendants’ motion for partial summary judgment. (Doc.

# 33.) The motion has been fully briefed. (Docs. # 34, 37–38.) For the reasons

discussed below, the motion is due to be granted.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1332.1 Personal

jurisdiction and venue are uncontested.

II. BACKGROUND

August 18, 2018, began uneventfully for Mason and McGuffey. The night

before, McGuffey had parked his tractor trailer truck on the shoulder of the

southbound entrance ramp to Interstate 65 to rest. (Doc. # 34 at 57, 59–60.) That

morning, Mason had just finished his night work shift and went to the Flying J on

the Tyson Road exit off Interstate 65 in Lowndes County, Alabama, to buy a

breakfast pizza. After buying his pizza, Mason drove down the southbound ramp to

merge onto Interstate 65.

At that point, the narratives diverge. The only fact that is clear and undisputed

is that there was an accident. The parties offer different stories of how that happened.

Mason testifies that as he was driving down the ramp McGuffey moved his truck off

the shoulder and ran into Mason’s car. (Doc. # 34 at 33–34.) As a result of this

impact, Mason suffered physical injury and damage to the front right corner of his

vehicle. (Doc. # 34 at 32, 39–41.) In contrast, McGuffey testifies that he had just

woken up, had moved out of his sleeper berth, was sitting in the driver’s seat of the

truck, and was checking his cellphone for messages. (Doc. # 34 at 55, 62–63.) At

1 Mason is a citizen of Alabama, and Defendants are both citizens of Kentucky. (Doc. #

1-1 ¶¶ 1–3.) The amount in controversy exceeds $75,000. (Doc. #1 ¶¶ 4, 17–18.)

that point, Mason ran into the driver’s side of the truck, and McGuffey felt the

impact. (Doc. # 34 at 55.) As a result of the collision, one of the steps on the driver’s

side of McGuffey’s truck cab was gone; there was damage to the front axle; and

there was damage to the steering. (Doc. # 34 at 55, 68, 76.)

McGuffey had been an employee of Merdzic for four months when this

accident occurred. (See Doc. # 34 at 81.) Before hiring McGuffey, Merdzic

examined his motor vehicle record, his pre-employment screening program record,

and his prior employment history. (Doc. # 34 at 81–82.) Merdzic does not provide

training for its truck drivers on how to operate tractor trailers, but only hires those

with extensive experience in the field. (Doc. # 34 at 89–90.) At the time of the

accident, McGuffey had been a truck driver for approximately thirty years. (Doc. #

34 at 45.)

III. STANDARD OF REVIEW

To succeed on a motion for summary judgment, the moving party must

demonstrate 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 court views

the evidence, and all reasonable inferences drawn therefrom, in the light most

favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820

(11th Cir. 2010).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying

the portions of the record illustrating the absence of a genuine dispute of material

fact. Id. Alternatively, a movant who does not have a trial burden of production can

assert, without citing the record, that the nonmoving party “cannot produce

admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also

Fed. R. Civ. P. 56 advisory committee note (“Subdivision (c)(1)(B) recognizes that

a party need not always point to specific record materials. . . . [A] party who does

not have the trial burden of production may rely on a showing that a party who does

have the trial burden cannot produce admissible evidence to carry its burden as to

the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute

of material fact exists when the nonmoving party produces evidence allowing a

reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental

Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

IV. DISCUSSION

Defendants seek partial summary judgment on the following of Mason’s

claims: (1) the wantonness claim in Counts I and II; (2) negligent/wanton hiring,

training, supervision, and/or retention claims in Count III; (3) negligent/wanton

supervision of the maintenance, operation, service and/or repair of the tractor trailer

claims in Count IV; and (4) negligent/wanton entrustment claims in Count V. (Doc.

# 33 at 1.)

In his opposition to Defendants’ motion for partial summary judgment, Mason

“concedes that the wantonness claim is due to be dismissed[,] as well as any claims

of negligent/wanton maintenance, service[,] and/or repair.” (Doc. # 37 at 1.) And

he correctly states that Defendants did not seek “summary judgment on the issue of

negligence.” (Doc. # 37 at 1.)2 As a result, two of Mason’s counts are presently at

issue: Count III (negligent hiring, training, supervision, and/or retention) and Count

V (negligent entrustment). (See Doc. # 38 at 3.)3 On these two counts, Mason argues

2 Although Mason does not explicitly say so, this failure to seek summary judgment on

“the issue of negligence” is best understood in context as referring to McGuffey’s negligence

generally and negligence as applied to Merdzic under respondeat superior (e.g., the negligence

claim in Count I and Count II). Conceding the wantonness claim appears to be wantonness as

originally included in Counts I and II. Because Defendants’ motion for summary judgment did

not address the negligence claim in Counts I and II, it remains live for future proceedings.

3 In his opposition, Mason does not concede the negligent operation claim in Count IV,

although he does concede the other claims in Count IV (negligent/wanton supervision of the

maintenance, service, and/or repair of the truck). He also does not allege any disputes of material

fact regarding the negligent operation claim. Defendants argue that negligent supervision includes

the element of incompetence (which it does), that McGuffey is not incompetent under Alabama

case law (see discussion below), and that there is no evidence that any other persons doing the

maintenance, service, or repair of the truck were incompetent. (Doc. # 34 at 27.) Therefore,

that there are genuine disputes of material fact that preclude summary judgment.

(Doc. # 37 at 1–2.)

A. Negligent Entrustment (Count V)

Mason asserts that Merdzic negligently entrusted its vehicle to McGuffey and

that a genuine dispute of material fact exists as to this claim: whether McGuffey was

“incompetent.” (Doc. # 37 at 2.) Under Alabama law, negligent entrustment is

defined as the following:

“One who supplies directly or through a third person a chattel for the

use of another whom the supplier knows or has reason to know to be

likely because of his youth, inexperience, or otherwise, to use it in a

manner involving unreasonable risk of physical harm to himself and

others whom the supplier should expect to share in or be endangered by

its use, is subject to liability for physical harm resulting to them.”

Brown v. Vanity Fair Mills, Inc., 277 So. 2d 893, 895–96 (Ala. 1973) (quoting

Restatement (Second) of Torts § 390 (1965)). “One who negligently entrusts a

motor vehicle to an incompetent driver who is likely to cause injury to others because

of the driver’s incompetence may be liable for damages that proximately result from

that entrustment.” Day v. Williams, 670 So. 2d 914, 916 (Ala. 1995) (citing Keller

v. Kiedinger, 389 So. 2d 129 (Ala. 1980)).

To establish a claim of negligent entrustment, a party must show the following

elements: “(1) an entrustment; (2) to an incompetent; (3) with knowledge that he is

summary judgment ought to be granted on this claim. (Doc. # 34 at 27.) Under these

circumstances, this argument is sufficient to support a finding that summary judgment ought to be

granted on the negligent operation claim.

incompetent; (4) proximate cause; and (5) damages.” Askew v. R & L Transfer, Inc.,

676 F. Supp. 2d 1298, 1303 (M.D. Ala. 2009) (quoting Pryor v. Brown & Root USA,

Inc., 674 So. 2d 45, 51 (Ala. 1995) (alteration omitted)) (emphasis added). “[T]he

incompetence of a driver is measured by the driver’s demonstrated ability (or

inability) to properly drive a vehicle.” Id. (quoting Halford v. Alamo Rent-A-Car,

LLC, 921 So. 2d 409, 413–14 (Ala. 2005)). And “competence or incompetence of

one to whom an automobile is entrusted” is determined by “the presentation of

evidence relevant to that person’s mental and physical abilities and his or her prior

driving experience and record.” Halford, 921 So. 2d at 417. For example, such

evidence can include “previous acts of negligent or reckless driving, . . . previous

accidents, or previous acts of driving while intoxicated.” Edwards v. Valentine, 926

So. 2d 315, 322 (Ala. 2005) (alteration omitted) (quoting Restatement (Second) of

Torts § 390 (1965)).

Under Alabama law, it is difficult to establish incompetence. For example, in

Pryor, the Alabama Supreme Court reviewed the trial court’s finding that there was

no negative entrustment. 674 So. 2d at 51. In that case, the driver of the vehicle

received a DUI charge and two speeding tickets during the ten years prior to the

accident at issue. Id. The court found that this driving record was not “substantial

evidence that” the driver “was incompetent.” Id. at 52.

Similarly, in Wright v. McKenzie, this court found that two speeding tickets

were insufficient to demonstrate the driver’s incompetence, granting the defendants’

motion for summary judgment on the negligent entrustment claim. 647 F. Supp. 2d

1293, 1299–1300 (M.D. Ala. 2009) (noting that “Alabama courts have generally

held [two speeding tickets] to be insufficient to show a driver’s incompetence”); see

also Day, 670 So. 2d at 916 (noting that a speeding ticket received approximately

two years before the accident at issue combined with “several tickets for driving

without a license” did not demonstrate the driver’s incompetence). In another case,

this court found that a driver having “two moving violations” and “four minor

accidents [one of them being a sideswipe incident and another hitting a parked

vehicle]” during the “nine-plus years” he worked for his employer did “not amount,

under the law, to incompetence.” Askew, 676 F. Supp. at 1303. Therefore, the court

granted summary judgment in favor of Defendant on Plaintiff’s negligent

entrustment claim. Id.

In contrast, the Alabama Supreme Court found that competency was a

question for the jury where the driver was convicted of “eleven moving violations”

(which included eight speeding violations) “within approximately three years prior

to the accident” at issue. Thompson v. Havard, 235 So. 2d 853, 857 (Ala. 1970); see

also Halford, 921 So. 2d at 413 (utilizing Thompson in its analysis of whether there

was a genuine issue of material fact regarding the incompetence of the driver at

issue).

Here Mason asserts that McGuffey “was not competent to operate a tractor-

trailer.” (Doc. # 1-1 ¶ 20.) And Mason argues that there is a genuine dispute as to

this material fact. (Doc. # 37 at 2.) But Mason is mistaken.

Mason points to evidence that McGuffey had received citations for traffic

violations before his employment with Merdzic. These citations were for “minor

violations” that “weren’t relevant [to his job with Merdzic],” such as for “an

inoperative headlamp” and “inoperative, slash, defective brakes.” (Doc. # 37-1 at

7.) He also received a citation more than ten years before he started working for

Merdzic for “violating the Federal Safety Regulation 11-hour rule [driving for more

than 11 hours without a break].” (Doc. # 37-1 at 7.)4

At the time of the accident, McGuffey had been employed as a truck driver

for thirty years and had maintained his Commercial Driver’s License for

approximately twenty years. (Doc. # 34 at 45–46.) During that time, Mason points

to no speeding tickets, or other moving violations, equivalent to types of activities

Alabama law has found do not support a finding of driver incompetence. In other

words, it appears that McGuffey’s driving record falls far below what the law deems

4 In the record, there is a reference to a “failure to obey [a] traffic control device in Indiana,”

but Mason provides no explanation of what type of violation this was or if it is relevant to establish

a genuine dispute of material fact regarding McGuffey’s competence. (Doc. # 37-1 at 7.)

to be incompetent. Accordingly, there is no material dispute as to McGuffey’s

competence, and summary judgment is due to be granted on Mason’s negligent

entrustment count.

B. Negligent Hiring, Training, Supervision, and/or Retention (Count III)

Mason also argues that a genuine dispute of material fact exists as to whether

Merdzic “negligently hired, trained, and/or supervis[ed]” McGuffey. (Doc. # 37 at

2.)5 “[T]o prove a claim under Alabama law for either . . . negligent hiring, negligent

supervision [, negligent training,] or negligent retention, a plaintiff must demonstrate

that the employer knew, or in the exercise of ordinary care should have known, that

its employee was incompetent.” Britt v. USA Truck, Inc., No. 2:06-CV-868-ID, 2007

WL 4554027, at *4 (M.D. Ala. Dec. 20, 2007); Wright, 647 F. Supp. 2d at 1297; see

also Southland Bank v. A & A Drywall Supply Co., 21 So. 3d 1196, 1214–15 (Ala.

2008) (negligent training and negligent supervision); Brown, 277 So. 2d at 895

(negligent hiring and negligent retention); Sanders v. Shoe Show, Inc., 778 So. 2d

820, 824 (Ala. Civ. App. 2000) (negligent hiring and negligent supervision).6

Mason argues that the evidence shows Merdzic failed to adequately train and

supervise McGuffey and failed to adequately inquire into his past employment and

5 Although Mason does not explicitly say that there is a dispute of material fact on the

negligent retention claim in this count, the court analyzes it nonetheless. (Doc. # 37 at 2.)

6 At least for negligent hiring, training, and supervision claims, there is an additional

requirement that the incompetence “of the offending employee . . . must be based on an injury

resulting from a tort which is recognized under Alabama common law.” Buckentin v. SunTrust

Mortg. Corp., 928 F. Supp. 2d 1273, 1288 (N.D. Ala. 2013) (quoting Sears v. PHP of Ala., Inc.,

driving histories. (See Doc. # 37-1 at 6–7, 17–18.) Those portions of the record

would be relevant if there was sufficient evidence that McGuffey was incompetent.

Indeed, this evidence could help establish that Merdzic knew or should have known

about McGuffey’s incompetence. Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817

So. 2d 665, 683 (Ala. 2001) (“A plaintiff must establish ‘by affirmative proof’ that

the employer actually knew of the incompetence, or that the employer reasonably

should have known of it.” (quoting Lane v. Central Bank, 425 So. 2d 1098, 1100

(Ala. 1983)).

But, as discussed above, Mason has not adduced evidence to create a genuine

dispute of material fact regarding the competence of McGuffey. Under Alabama

law, McGuffey was not an incompetent driver. There can be no knowledge, actual

or otherwise, of something that does not exist. So, there is no genuine dispute of

material fact on these claims. Defendants’ motion is due to be granted for this count

as well.

No. 2:05-CV-304-ID, 2006 WL 932044, at *20 (M.D. Ala. 2006)). “[N]ot just any ‘incompetency’

suffices to give rise to a cause of action for so-called negligent hiring, training, and supervision

liability. Rather, Plaintiffs must prove that an allegedly incompetent employee committed a state

law tort.” Id. at 1288–89 (citing Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala.

1999)). However, this additional requirement does not change this court’s analysis because Mason

has failed to allege, argue, or establish that McGuffey committed any state law tort.

V. CONCLUSION

For the reasons provided above, it is ORDERED that Defendants’ motion for

partial summary judgment (Doc. # 33) is GRANTED. The negligence claims in

Counts I and II, which Defendants did not challenge, proceed to trial.

DONE this 23rd day of August, 2022.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE