Hart v. Suarez (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

CAROLA K. HART, )

)

Plaintiff, )

)

v. ) CASE NO. 3:23-cv-137-JTA

) (WO)

CARLOS V. SUAREZ AND BADGER )

STATE FREIGHT, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the Court is the Motion for Partial Summary Judgment filed by Defendants

Carlos V. Suarez and Badger State Freight, Inc. (Doc. No. 32.) Also before the Court is

Defendants’ Motion to Strike. (Doc. No. 39.) For the reasons stated below, it is ORDERED

that Defendants’ Motion for Partial Summary Judgment (Doc. No. 32) is GRANTED IN

PART and DENIED IN PART, and Defendants’ Motion to Strike (Doc. No. 39) is

GRANTED.

I. JURISDICTION

The parties have consented to the exercise of dispositive jurisdiction by a magistrate

judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 8, 9.) The Court has subject matter

jurisdiction solely based on diversity of citizenship. 28 U.S.C. § 1332. The parties are

completely diverse, and the amount in controversy exceeds $75,000.00. The parties do not

contest venue or personal jurisdiction, and the Court finds sufficient grounds to support

both in the United States District Court for the Middle District of Alabama, Northern

Division.

II. STANDARD OF REVIEW

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 a judgment as a matter of law.” Palm v. United States, 904 F.

Supp. 1312, 1314 (M.D. Ala. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). The party asking for summary judgment “always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of the

‘pleadings, depositions, answers to interrogatories, and admissions of file, together with

the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex, 477 U.S. at 323. The movant can meet this burden by presenting

evidence showing there is no dispute of material fact, or by showing, or pointing out to,

the district court that the nonmoving party has failed to present evidence in support of some

element of its case on which it bears the ultimate burden of proof. Id. at 322-324. A factual

dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving

party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party

to go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a

genuine issue for trial.’” Celotex, 477 U.S. at 324. To avoid summary judgment, the

nonmoving party “must do more than show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106

(1986). On the other hand, the evidence of the nonmovant must be believed and all

justifiable inferences must be drawn in its favor. See Anderson, 477 U.S. at 255.

After the nonmoving party has responded to the motion for summary judgment, the

court must grant summary judgment if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(e). As stated in

Celotex, if the nonmoving party “fails to make a showing sufficient to establish the

existence of an element essential to [his] case, and on which [he] will bear the burden of

proof at trial,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 322.

III. STATEMENT OF FACTS1

Around noon on July 13, 2022, in Phenix City, Alabama, Carola K. Hart left work,

as was her habit, to pick up lunch for herself and her husband. (Doc. No. 32-1 at 1.) It was

a clear day. (Doc. No. 38-1 at 4.) She was on her way to Burger King, traveling along 11th

Street, when she came to a stop at a red light where 11th Street crosses U.S. Highway 280.

(Doc. No. 32-1 at 1.) Hart’s was the first car stopped at the light waiting to cross Highway

280, which was experiencing “moderate” traffic at the time. (Id.; Doc. No. 32-2 at 3.)

According to Hart, she waited for the light to turn green, and, when it did, she looked both

ways. (Doc. No. 32-1 at 1-2.) Seeing “nothing coming,” she began to move forward to

1 Unless otherwise indicated, the facts set forth in this Section of this Memorandum Opinion and

Order are undisputed. All reasonable factual inferences are drawn in favor of the nonmoving party,

as they must be at this stage of the litigation.

cross the intersection. (Id.) Just as she entered the intersection, she heard a “kapow.” (Id.)

Her car moved, and she hung onto the steering wheel “for dear life,” not knowing what

was happening, as her vehicle spun around. (Id. at 2.) When her car came to a stop, she

noticed that her left arm was bleeding, her glasses were no longer on her face, her purse

was in the floorboard, her right shoe had flown off, the rearview mirror was dangling in

front of her, and the windshield was shattered. (Id.) Both front airbags had deployed. (Id.)

Two men came running up to her and said, “Ma’am, do you know what happened?”

(Id.) She stated that she did not, and the men pointed to a tractor-trailer rig and told her that

she had been hit by it. (Id.)

The rig was driven by Carlos Vicencio Suarez, who contends that the light was

yellow when he entered the intersection. (Doc. No. 32-2 at 3-4; Doc. No. 38-3 at 3.) His

trailer was empty at the time, as he had delivered a load earlier that day and was traveling

on Highway 280 on his way to pick up the next one. (Doc. No. 32-2 at 3.) As he approached

the intersection with 11th Street, he was driving between forty-five and fifty miles per hour

when, according to him, the light at the 11th Street intersection turned yellow. (Doc. No.

32-2 at 4; Doc. No. 38-1 at 6.) Suarez claims that he thought he had enough time to pass

through the yellow light, so he maintained his speed and proceeded through the

intersection. (Doc. No. 32-2 at 4-5.) He was not aware of what the vehicles in the other two

lanes of Highway 280 were doing because he “was not paying attention to that. [He] was

paying attention to crossing the intersection.” (Doc. No. 38-1 at 7.) He did not apply his

brakes, but maintained his speed as he went through the intersection because he intended

to pass through the intersection with no incident. (Id. at 9.) In Suarez’s opinion, had he

tried to slam on the brakes to stop for the yellow light, his brakes may have locked, which

could have caused his rig to jackknife in the intersection, causing “a worse situation.” (Doc.

No. 32-2 at 5.) As Suarez proceeded through the intersection, he heard a noise as if he had

hit something, and he couldn’t figure out where it came from until, in his rear-view mirror,

he saw a car near the tires on his truck. (Doc. No. 32-2 at 4.) He pulled over to investigate.

(Id.) Police arrived, and he made a statement to the police. (Id. at 5.) A post-accident drug

test on Suarez was negative. (Doc. No. 32-4.)

Miszka Trucking, LLC, owned the truck Suarez was driving at the time of the

accident. (Id.) However, Suarez was hauling freight as an independent contractor for

Badger State Freight, Inc. (Doc. No. 32-3 at 1.) He had driven as an independent contractor

for Badger State since 2016. (Id. at 4.) Prior to the accident, Suarez had not been in

violation of any of Badger State’s policies, nor had he been disciplined by Badger State for

any reason. (Id. at 4-5.) Justin Grantin, who has owned Badger State since 2016, testified

in a deposition that, prior to the accident, Suarez had been a “very good and safe driver”

who kept “prestigious logs,” and “never ha[d] any issues.” (Id. at 1, 5-6.) He had never

been taken out of service for any medical issues. (Id. at 6.) About ten years prior to the

accident, he did have “some moving violations.” (Doc. No. 38-1 at 8.)

Badger State has a seventeen-point process for screening, selecting, and training an

independent contractor driver. (Doc. No. 32-2 at 2, 4.) In addition, Badger State’s insurance

company vetted the drivers to determine if it would insure them according to its own

guidelines. (Id. at 2.) Badger State hired and trained Suarez in 2016. (Id. at 4.) In the vetting

process prior to hiring, Suarez’s record showed that he had safety violations for not passing

one out of six inspections, for operating without proof of periodic inspection, for

inadequate brakes, and for an oil or grease leak. (Id. at 3.) At that time, the most recent

violation, which was the one for inadequate brakes, had occurred in 2015. (Id.) In addition,

Suarez had citations for failure to pay fines in 2008 and 2009. (Id.) The training process

also included a health certificate, drug screening, training on company safety policies, and

a two-week ride-along test. (Id. at 4.) After hiring independent contractor drivers, Badger

State provides additional training materials to them on a continuous basis. (Id. at 5-6.)

Suarez met all of the requirements for working for Badger State, completed all required

training, and regularly received and reviewed the required continuous training materials

that Badger State provided him. (Id. at 1-6.)

In his deposition, Grantin testified that, for situations such as approaching an

intersection with an empty trailer and the light turning yellow, Badger State drivers are

trained to “look at the ... horizon line, as far forward as you can see to see something happen

before it happens,” “like a pilot.” (Doc. No. 38-3 at 5.) He testified that an unloaded trailer

such as the one Suarez was driving would have jackknifed if it stopped suddenly, causing

a more dangerous situation. (Id. at 4-3.) Thus, according to Grantin, in Suarez’s situation,

his options were to proceed through the intersection or to slam on his brakes and jackknife,

“possibly creating a worse action.” (Id. at 3.) Grantin also testified that, had Suarez been

going at a slower rate of speed, the accident could have been avoided, but he “maintained

the rate of speed for the cars around him.” (Id. at 5-6.)

Timothy Slezak, a witness at the scene of the accident, stated in an affidavit that,

while he was traveling northbound on Highway 280, his own and other vehicles were

stopped at a red light at the 11th Street intersection. (Doc. No. 38-4.) He saw Suarez’s

commercial truck pass his vehicle and enter the intersection “even though it was already a

red light.” (Id.) Slezak stated that he “also observed Carlos V. Suarez wearing a headset or

headphones and it appeared to affect his ability to hear.” (Id.)

IV. PROCEDURAL HISTORY

On February 3, 2023, Hart filed suit against Suarez and Badger State in the Circuit

Court of Russell County, Alabama. (Doc. No. 1-3.) In her Complaint, Suarez alleged the

following facts:

6. On or about July 13, 2022, at approximately 12:10 p.m. at the

intersection of Highway 280 and 11th Street in Phenix City, Alabama, [Hart]

was operating her 2017 Nissan Sentra and was stopped at a red light traveling

westbound on 11th Street.

7. On said date and at said time and place, Defendant Suarez was

working in the line and scope of his employment with Defendant Badger

State and was traveling northbound on Highway 280 near the intersection of

Highway 280 and 11th Street in Phenix City, Alabama.

8. As [Hart]’s traffic signal turned green, she began proceeding

westbound on 11th Street to cross over Highway 280, when Defendant

Suarez failed to obey a red traffic signal and caused his commercial truck to

collide with [Hart]’s vehicle.

(Doc. No. 1-3 at 6.)

Based on those facts, Suarez brought the following claims against both Suarez and

Badger State: negligent motor vehicle operation, reckless and wanton operation of a motor

vehicle, and negligence and wantonness per se and violations of the rules of the road. (Doc.

No. 1-3 at 6-10.) She also brought the following claims against Badger State:

negligent/wanton hiring, training, supervision, and maintenance; negligent/wanton

entrustment; and “respondeat superior and agency.” (Id. at 10-15.) Hart seeks

compensatory and punitive damages. (Doc. No. 1-3 at 1-15.)

On March 10, 2023, Defendants removed the action from the Circuit Court of

Russell County, Alabama to the United States District Court for the Middle District of

Alabama. (Doc. No. 1.)

On January 30, 2024, Defendants filed a motion for partial summary judgment

seeking dismissal of all Hart’s claims against Badger State and of Hart’s recklessness,

wantonness, and wantonness per se claims against Suarez. (Doc. No. 32.)

On January 23, 2024, Hart filed a response to Defendants’ Motion for Partial

Summary Judgment. (Doc. No. 38.) As an exhibit to her response, Hart attached the

Alabama Uniform Traffic Crash Report for the accident. (Doc. No. 38-2.) In the Alabama

Uniform Traffic Crash Report, the investigating officer indicated that Suarez had told him

that he (Suarez) “thought he could make it through the green light but before he got to the

light it turned red,” and that he “went through the red light and then felt [Hart’s vehicle]

collide with his trailer.” (Doc. No. 38-2 at 4.) The Alabama Uniform Traffic Crash Report

also contains the investigating officer’s summary of the statements of other witnesses,

including a Barber County Deputy, Slezak, and the driver of another vehicle that was

affected by the accident. (Id.) Those witnesses’ statements corroborate, or at least do not

contradict, Hart’s testimony that Suarez ran the red light. (Id.) In fact, the Barber County

Deputy, Mike Molina, was recorded as having stated that “he was stopped in the middle

lane of Highway 280/431 at 11th Street” when Suarez “passed him in the right lane and

ran the red light colliding with” Hart’s vehicle, which is fully consistent with Slezak’s

statement and affidavit testimony. (Id.) In addition, the police officer who authored the

Alabama Uniform Traffic Crash Report wrote down that the speed limit on Highway 280

at the 11th Street intersection was forty miles per hour. (Id. at 2.)

On January 30, 2024, Defendants moved to strike the Alabama Uniform Traffic

Crash Report. (Doc. No. 39.)

Defendants’ Motion for Partial Summary Judgment (Doc. No. 32) and Defendants’

Motion to Strike (Doc. No. 39) are fully briefed and ripe for disposition.

V. ANALYSIS

A. Hart’s Recklessness, Wantonness, and Wantonness Per Se Claims Against Suarez,

and Hart’s Claims of “Respondeat Superior and Agency” against Badger State

Against Suarez, Hart asserts claims of recklessness, wantonness, and wantonness

per se. (Doc. No. 1-3 at 7-10.) She also seeks to hold Badger State liable for Suarez’s

conduct on theories of respondeat superior and agency. (Doc. No. 1-3 at 11-13.)

In their initial brief, Defendants argue that these claims should be dismissed because

Suarez’s choice to enter the intersection on a yellow light was negligence at most, and does

not rise to the level of wantonness or recklessness as those terms are defined under

Alabama law. (Doc. No. 32 at 8.) The first flaw in this argument is that it requires the Court

to ignore Hart’s claims as they are set out in the Complaint and instead grant summary

judgment on a theory of the case that Hart did not assert in her Complaint.2 The second

2 From the very beginning, Defendants have known that Hart was not suing Suarez for wantonly

or recklessly running a yellow light. Hart clearly alleged in her Complaint that she was suing

Suarez for tortiously running a red light. (Doc. No. 1-3 at 6-10 ¶¶ 8, 13-18.)

flaw is that Defendants’ argument requires the Court to ignore a pivotal factual dispute and

instead apply Alabama law to the facts only as viewed in the light most favorable to

Defendants.

That is not how summary judgment works. In her Complaint, Hart alleged that

Suarez recklessly and wantonly ran a red light. (Doc. No. 1-3 at 6-10 ¶¶ 8, 13-18.) Hart did

not allege in her Complaint any alternative theory that Suarez committed a tort by entering

the intersection on a misjudged yellow light, nor was her Complaint ambiguous as to her

contention that Suarez tortiously entered the intersection on a red light. Furthermore, on

summary judgment, when evidence is present on both sides of a factual dispute, that factual

dispute is to be resolved in favor of the nonmoving party. See Anderson, 477 U.S. at 255.

As Defendants well knew prior to filing their summary judgment motion, even though their

own witness, Saurez, testified the light was yellow when he entered the intersection, Hart

has testimony from more than one3 witness, including her own deposition testimony, to

support her position that Suarez’s light was red and hers was green. Therefore, the ultimate

issue in this case is not whether Suarez entering the intersection on a yellow light would

have constituted wantonness or recklessness as defined by Alabama law, but whether

Suarez entering it on a red one would have. Defendants did not address that issue in their

3 Hart presented sworn testimony from herself and from Slezak that Suarez’s light was red when

he entered the intersection. In response to Defendants’ motion to strike (Doc. No. 39), Hart did not

argue that she can present testimony from the officer who recorded Suarez’s admission against

interest that he “went through the red light” or from two witnesses (other than Slezak) whose

recorded statements in the Alabama Uniform Traffic Crash Report are consistent with Hart’s

version of the facts in this case. (Doc. No. 38-2 at 4.) Therefore, for purposes of summary

judgment, the Court will consider only the sworn testimony of Hart and Slezak, and not the

Alabama Uniform Traffic Crash Report.

initial brief. Instead, they erected a straw man by arguing that Suarez did not recklessly or

wantonly run a yellow light.

In her response brief, Hart explained that her claims are premised on the theory that

Suarez ran the red light and was driving over the speed limit when he did so, not on his

testimony that he ran a yellow light to keep his trailer from jackknifing. (Doc. No. 38 at

13-14.) Even without taking into consideration the Alabama Uniform Traffic Crash Report

that Defendants moved to strike, Hart submitted substantial evidence that the light was not

yellow, but red, when Suarez entered the intersection. Hart’s own testimony and Slezak’s

affidavit more than suffice to establish that fact for purposes of resolving the summary

judgment motion. Although the arguments in Hart’s opposition brief fall short of

establishing that she is entitled to summary judgment in her favor, they are enough to meet

her burden to respond to Defendants’ motion for summary judgment. That is, Hart’s

response is more than adequate to highlight that Defendants made a straw man summary

judgment argument premised on a set of facts that is entirely inapposite to Hart’s actual

wantonness and recklessness claims. And that is all that was required of Hart for her to

overcome Defendants’ motion for summary judgment. Only after the moving party has

met its initial burden to demonstrate the absence of a genuine issue of fact and entitlement

to judgment as a matter of law does Rule 56(e) “require[] the nonmoving party to go beyond

the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories,

and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for

trial.’” Celotex, 477 U.S. at 324. Because Defendants did not argue in their opening brief

that Hart could not prove wantonness or negligence on the basis that Suarez entered the

intersection on a red light while speeding, Hart did not bear a burden to come forward with

substantial evidence and citations to law establishing that she could prevail on such a

theory. This is particularly true where, as here, Defendants fully knew that their summary

judgment motion was based on interpreting openly disputed facts in the light most

favorable to them and that their initial argument did not fairly represent Hart’s claims or

even acknowledge the existence of such an important factual dispute.

In their reply brief, Defendants respond to Hart’s arguments by contending that,

“even assuming arguendo that Suarez ran the red light, that conduct alone is insufficient to

defeat summary judgment as to wantonness.” (Doc. No. 40 at 3.) Defendants also argue in

their reply brief that, “even if [Hart] presented admissible evidence to show that Suarez

was traveling over the speed limit when he entered the intersection, that evidence would

not save [Hart]’s wantonness claim.” (Id.) Defendants then go on to argue that Hart

somehow carried a burden to come forward on summary judgment with clear and

convincing evidence4 that, under the circumstances of this case, Suarez acted wantonly or

recklessly by entering the intersection on a red light and/or by entering the intersection

while driving over the speed limit.

As explained already, that was not Hart’s burden. Her burden was to respond to

Defendants’ argument that they were entitled to summary judgment on grounds that Suarez

did not wantonly or negligently run a yellow light. She did so by adequately explaining

4 Alabama law requires that wantonness and recklessness be proven by clear and convincing

evidence. Ala. Code 1975 § 6-11-20.

that her case was not based on a theory that Suarez tortiously entered the intersection on a

yellow light, but instead (as alleged in her Complaint), she sought to recover on grounds

that Suarez tortiously ran a red light. Thus, Defendants’ arguments attacking Hart’s actual

theory of the case for the first time in a reply brief– a theory that should have been obvious

to Defendants in the first place – are not effective to entitle them to summary judgment. To

find otherwise would allow Defendants to effectively reverse the parties’ burdens on

summary judgment by opening with what they knew or should have known was a straw

man argument. Therefore, Defendants’ summary judgment motion is due to be denied. Cf.

Gutierrez v. City of Woodland, No. CIV. S-10-1142 LKK/EFB, 2012 WL 1640509, at *13

(E.D. Cal. May 9, 2012) (concluding that, where the Defendants’ argument on summary

judgment “completely misstate[d]” the plaintiff’s case, “Defendants’ straw-man argument

w[ould] not prevail” on summary judgment); Perry v. Shelby Cnty. Div. of Corr., No. 04-

2856-MA/V, 2006 WL 8434649, at *4 (W.D. Tenn. 2006) (denying summary judgment

where the defendant’s motion “appear[ed] to attack a straw man” in that it “did not clearly

articulate the relevant facts”5 and “d[id] not address some of the critical factual matters on

which [the plaintiff] relie[d]”).

5 Similarly, in the “Statement of Undisputed Facts” in their summary judgment motion, Defendants

presented as “undisputed” Suarez’s statement that he “saw the yellow light and proceeded through

the intersection while the light was still yellow” and that “he saw the yellow light, but did not brake

before entering the intersection for two reasons: (1) he believed the he would pass through the

yellow light without incident...” (Doc. No. 32 at 2 (emphasis added)). Defendants did not mention

that other evidence existed that the light was red, nor did they acknowledge Hart’s claims were

based on Suarez running a red light rather than a yellow one. Defendants knew or should have

known that they were not being candid with the Court when they failed to acknowledge that the

color of the light when Suarez entered the intersection was a disputed fact, but instead presented

as an undisputed fact that Suarez’s light was yellow.

Alternatively, Defendants’ summary judgment motion is due to be denied on the

basis of Joseph v. Staggs, 519 So. 2d 952, 953 (Ala. 1988), the sole case Defendants cite

in their reply brief for the proposition that entering an intersection on a red light while

speeding is not necessarily wanton or reckless.6 In Joseph, the Alabama Supreme Court

addressed a situation where two litigants each accused the other of entering an intersection

on a red light while speeding, and each maintained that he entered the intersection on a

green light. The court held that the defendant was entitled to a directed verdict on the

plaintiff’s wantonness claim because the plaintiff did not present evidence at trial that the

defendant, “with reckless indifference to the consequences, consciously and intentionally

exceeded the speed limit and failed to keep a reasonable look-out upon approaching the

intersection.” Id. at 955.

As noted in Joseph, however, “‘[t]he question of wantonness must be determined

by the facts and circumstances of each case.’” Id. at 954 (quoting Pate v. Sunset Funeral

Home, 465 So. 2d 347, 348 (Ala. 1984). Here, Hart presented evidence that multiple

vehicles had fully come to a stop on Highway 280 upon perceiving the light was red, and

that Suarez nevertheless passed those vehicles and proceeded through the intersection on a

red light. (Doc. No. 38-4 at 3 ¶¶ 6-8.) There is no evidence that Suarez was unable to

perceive that the light was red due to blocked vision or some other factor, or that he simply

and negligently failed to check the color of the light; nor does the evidence, viewed in the

light most favorable to Hart, necessarily lead to the inference that Suarez merely

6 Hart cited Joseph in her brief as well.

mistakenly misperceived the color of the light or the existence or placement of other cars

at the intersection.7 He had been trained that, when approaching an intersection with a

traffic light, he was to “look at the ... horizon line, as far forward as you can see to see

something happen before it happens,” “like a pilot.” (Doc. No. 38-3 at 5.) Further, it is

reasonable to infer from Suarez’s training, from the moderate traffic conditions at

lunchtime at the intersection, and from common sense about how intersections and traffic

lights work, that Suarez was aware that entering the intersection on a red light would expose

other motorists to the danger of harm from a motor vehicle accident with his tractor-trailer.

7 In this sense, this case is distinguishable from a number of the cases Defendants cited in their

principal summary judgment brief. See Wright v. McKenzie, 647 F. Supp. 2d 1293 (2009) (holding

that evidence of wantonness was lacking where the undisputed evidence established that the

defendant driver misperceived which lane the other driver was in before pulling out in front of her

on the highway); Ex parte Essary, 992 So. 2d 5, 12 (2007) (holding that evidence of wantonness

was lacking where the defendant driver was guilty of, at most, making a rolling stop at a stop sign

due to a misperception that he could successfully cross a highway in the gap between two

oncoming cars that did not have a corresponding stop sign); Ex parte Anderson, 682 So. 2d 467,

470 (Ala. 1996) (holding that a defendant driver did not act wantonly “in turning left while her

view of the oncoming traffic was blocked,” after she had “waited at the intersection until she

believed it was safe to turn”); Wilson v. Cuevas, 420 So. 2d 62, 64-65 (Ala. 1982) (holding

evidence of wantonness was absent where the evidence viewed in the light most favorable to the

plaintiff showed that the defendant entered the intersection in a hurry as the light was changing

(not when it was already red) and where the defendant “did not even see” the plaintiff; the court

noted that, “[a]lthough defendant’s act, under other circumstances, could constitute wanton

conduct, here it does not”); see also Monroe v. Brown, 307 F. Supp. 2d 1268, 1276 (M.D. Ala.

2004) (in a case involving evidence that a defendant tractor-trailer driver made a conscious

decision to speed up to make it through the intersection on a yellow light, distinguishing Wilson

on several grounds, including that “[t]he Wilson decision does not reveal the Supreme Court’s

reasoning; rather it simply concludes that ‘[a]lthough defendant’s act, under other circumstances,

could constitute wanton conduct, here it does not’” (quoting Wilson, 420 So. 2d at 64-65)); George

v. Champion Insurance Co., 591 So. 2d 852 (Ala. 1991) (holding that evidence of wantonness was

lacking where the driver was unaware the light was red when she entered the intersection because

she had negligently glanced behind her in conversation while it was still green, and because she

thereafter missed the brake pedal with her foot and hit the clutch instead).

8 Viewing these facts in the light most favorable to Hart, a reasonable juror could conclude

that Suarez knowingly and intentionally entered the intersection on a red light, and that he

did so with conscious or reckless disregard of the harm he well knew he could (and did)

cause to another driver by running the red light. Accordingly, Hart has presented substantial

evidence sufficient to establish wantonness or recklessness under Alabama law. See Ala.

Code 1975 § 6-11-20(b)(3) (defining “wantonness” as “[c]onduct [that] is carried out with

a reckless or conscious disregard of the rights or safety of others”); Joseph, 519 So. 2d at

953 (holding that, to establish wantonness, the plaintiff “must show that, with reckless

indifference to the consequences, the [defendant] consciously and intentionally did some

wrongful act or omitted some known duty with knowledge of the existing conditions, and

that this act or omission produced the injury complained of”).

8 In this way, this case is distinguishable from Ex parte Essary, 992 So. 2d 5, 12 (2007) (holding

that evidence of wantonness was lacking where the defendant driver was guilty of, at most, making

a rolling stop at a stop sign in a misjudged attempt to cross a highway between two oncoming cars

that did not have a corresponding stop sign, and there was no evidence that the defendant was

conscious that injury was likely to result from the rolling stop). Cf. McCutchen v. Valley Home,

Inc., 100 F. Supp. 3d 1235, 1240 (N.D. Ala. 2015) (distinguishing Essary on grounds that Essary

“make[s] it clear that differences in the situation ... can make the difference between conduct being

wanton or merely an error in judgment. In this case, the distinction is that Johnson was driving an

18–wheeler rather than an ordinary passenger vehicle, and that distinction is more than mere

trivia;” the court concluded that “[a] reasonable jury could determine that [the defendant truck

driver’s] attempt to ‘beat the traffic’ in his 18–wheeler involved a conscious disregard for the risk

of injury he was creating, and therefore was wanton”). Also, notably, Essary heavily relied on a

presumption against self-destructive behavior by the defendant driver, which Defendants do not

attempt to avail themselves of here, and which Judge Coogler explained in McCutchen is not

reasonably applicable where the risk to the defendant is significantly less that the risk to which the

defendant exposes the plaintiff, such as where the defendant creates a collision risk between the

defendant’s tractor-trailer rig and a plaintiff’s car in a beat-the-traffic situation. (Id.) Similarly,

Suarez’s alleged decision to run a red light did not pose an equal risk to himself as it did to the

drivers of the passenger vehicles at the intersection.

Accordingly, Defendants’ motion for summary judgment is due to be denied as to

Hart’s wantonness, recklessness, and wantonness per se9 claims against Suarez, and as to

Hart’s corresponding respondeat superior10 and agency claims against Badger State.

B. Hart’s Claims of Negligent/Wanton Hiring, Training, Supervision, Maintenance,

and Entrustment against Badger State

As Defendants point out, Hart presents no evidence that Badger State negligently or

wantonly violated any duty in hiring or training Suarez, in entrusting him with a vehicle

driven for them, or in maintaining his vehicle. In response, Hart concedes that she has no

evidence of negligent hiring or maintenance of equipment by Badger State. (Doc. No. 38

at 17.) Hart also fails entirely to address her negligent entrustment claim, despite that

Defendants squarely raised the issue in their summary judgment motion. (Doc. No. 32 at

11-13.) Because Hart has abandoned her negligent and wanton hiring, maintenance, and

entrustment claims, Defendants are entitled to summary judgment on those claims. Clark

v. City of Atlanta, 544 F. App’x 848, 855 (11th Cir. 2013) (holding that the district court

properly treated claims as abandoned where the plaintiff asserted those claims in the

complaint but did not address them in opposition to a motion for summary judgment); see

Lambert v. FedEx Ground Package Sys., Inc., No. 1:22-CV-740-TWT, 2024 WL 253622,

at *2 n.3 (N.D. Ga. Jan. 23, 2024) (accepting the plaintiff’s concession on summary

9 It is not clear whether “wantonness per se” is a separately recognizable claim under Alabama

law. McCutchen, 100 F. Supp. 3d at 1240; see also Ala. Code 1975 § 6-11-10 (defining both

wantonness and the circumstances in which punitive damages are allowed in civil actions).

Defendants did not move for summary judgment on that ground.

10 Defendants did not move to dismiss any causes of action that are premised on respondeat

superior on grounds that Suarez was an independent contractor.

judgment as to the nonviability of certain claims and granting summary judgment in the

defendant’s favor on these claims).

In response to Defendants’ summary judgment argument regarding negligent and

wanton training and supervision, Hart points to no evidence of a breach of any duty of

training or supervision. She merely states that she can make her case because it is

undisputed that Badger State trained and supervised Suarez and that the accident occurred.

That is not enough. Correlation and causation are not the same thing. Datamaxx Applied

Techs., Inc. v. Brown & Brown, Inc., No. 21-13451, 2022 WL 3597311, at *4 (11th Cir.

Aug. 23, 2022) (“[A]lthough causation begets correlation, correlation does not imply

causation.”). More importantly, to prove claims of tortiously inadequate training and

supervision, Hart must show, among other things, that Badger State knew or should have

known that Suarez was likely to run a red light and failed to adequately supervise or train

him not to. Hart has come forward with no such evidence. See Sanders v. Shoe Show, Inc.,

778 So. 2d 820, 824 (Ala. Civ. App. 2000) (discussing the requisite elements of negligent

supervision); James v. Nationstar Mortg., LLC, 92 F. Supp. 3d 1190, 1200-01 (S.D. Ala.

2015) (stating that, under Alabama law, claims of negligent and wanton supervision and

training require “a showing that ‘(1) the employee committed a tort recognized under

Alabama law; (2) the employer had actual notice of this conduct or would have gained such

notice if it exercised due and proper diligence; and (3) the employer failed to respond to

this notice adequately.’” (quoting Lawrence v. Christian Mission Center Inc. of Enterprise,

780 F. Supp. 2d 1209, 1218 (M.D. Ala. 2011)). Therefore, Badger State is entitled to

summary judgment on Hart’s negligent and wanton training and supervision claims.

C. Defendants’ Motion to Strike

Defendants move to strike the Alabama Uniform Traffic Crash Report on grounds

that it “contains hearsay, lacks foundation, contains legal opinions/conclusions, and was

not made with personal knowledge of the affiant.”11 (Doc. No. 39.) “Technically, the

evidentiary submissions to which [Defendants’] motion is directed are not pleadings

subject to a motion to strike under the Federal Rules of Civil Procedure.” Pereira v. Gunter,

No. 2:23-CV-5-ECM-JTA, 2023 WL 8937582, at *4 (M.D. Ala. Dec. 27, 2023); see also

Fed R. Civ. P. 7(a); Fed R. Civ. P. 12(f). “However, as has been noted in other contexts,

courts in this Circuit and elsewhere routinely overlook the technicality that the Federal

Rules specifically provide only for motions to strike pleadings and instead rule on the

substance of the motion.” Carter v. City of Montgomery, No. 2:15-CV-555-WKW, 2015

WL 13846254, at *1 (M.D. Ala. Nov. 24, 2015) (citing Argonaut Midwest Ins. Co. v.

McNeilus Truck & Mfg., Inc., No. 1:11-CV-3495-TWT, 2013 WL 489141, at *1 (N.D. Ga.

11 Defendants do not expressly direct their motion to strike specifically to the notation in the

Alabama Uniform Traffic Crash Report that the speed limit on Highway 280 at the 11th Street

intersection was forty miles per hour, which is both an observable fact and one regarding which it

would not be at all difficult for Hart to prove using admissible evidence. Rather, Defendants direct

their arguments at recorded statements about the accident itself, which the police officer who

authored the report did not personally observe. Nonetheless, the Court did not rely on the speed

limit recorded in the Alabama Uniform Traffic Crash Report when resolving the summary

judgment motion.

Further, the Court notes that Defendants raise new arguments in their reply brief for the

inadmissibility of the police report, such as the potential applicability of Ala. Code § 32-10-11. It

is improper to raise arguments for the first time in a reply brief, as doing so unfairly deprives the

opposing party of the opportunity to respond and be heard on the newly-raised issues. Lombard v.

Baker, No. 2:22-CV-328-ECM-JTA, 2023 WL 2974933, at *2 (M.D. Ala. Feb. 22, 2023), report

and recommendation adopted, No. 2:22-CV-328-ECM, 2023 WL 2525509 (M.D. Ala. Mar. 15,

2023) (collecting cases and stating, “a reply brief is not the appropriate place for raising new

arguments”).

Feb. 8, 2013) (collecting cases)). In substance, Defendants object to the consideration of

the Alabama Uniform Traffic Crash Report at the summary judgment stage. Such an

objection is permitted under Rule 56(c)(2) of the Federal Rules of Civil Procedure, which

provides that a party may object that evidentiary material cited to support or dispute a fact

“cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P.

56(c)(2); see also Fed. R. Civ. P. 56, Advisory Committee’s Notes to the 2010 Amendments

(noting that, under subdivision (c)(2), “there is no need to file a motion to strike” when

making such an objection).

In opposition to Defendants’ motion, Hart argues that Suarez’s statements, as

recorded in the Alabama Uniform Traffic Crash Report, are statements of a party opponent

and, therefore, are definitionally not hearsay under Rule 801(d)(2) of the Federal Rules of

Evidence. (Doc. No. 42.) Hart does not argue that other matters in the Alabama Uniform

Traffic Crash Report are not hearsay, nor does she address Defendants’ arguments that all

statements of the police officer who authored the report (including the officer’s written

summary of Suarez’s and other witnesses’ statements) constitute a second layer of hearsay.

In addition, Hart fails to address the fact that evidence submitted on summary judgment

need not be admissible in form so long as the propounding party adequately demonstrates

that it could present that same evidence in admissible form at trial, nor does she contend

that she is capable of presenting the evidence in admissible form.12 Fed. R. Civ. P. 56(c)(2);

12 The Court notes that individuals associated with the statements made in the Alabama Uniform

Traffic Crash Report were listed on Plaintiff’s April 22, 2024 Trial Witness List. (Doc. No. 49.)

However, in response to the Motion to Strike, Hart did not argue that she would present those

Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012) (stating that, while

hearsay generally cannot be considered on summary judgment, the court may consider a

hearsay statement in ruling on a summary judgment motion if the statement is not

contradicted by sworn testimony and if it could be reduced to admissible evidence at trial

or reduced to admissible form in some other way, such as by presenting the declarant as a

witness or by presenting testimony of another witness with personal knowledge of the

matter).

Because the Court did not rely on the Alabama Uniform Traffic Crash Report in

resolving Defendants’ summary judgment motion, and alternatively because Hart did not

raise adequate arguments to rebut Defendants’ Motion to Strike, the Court will sustain

Defendants’ Rule 56(c)(2) objection to considering the Alabama Uniform Traffic Crash

Report on summary judgment.13 Consequently, the Court will grant Defendants’ Motion

to Strike. (Doc. No. 39.)

VI. CONCLUSION

Accordingly, it is ORDERED that Defendants’ Motion for Partial Summary

Judgment (Doc. No. 32) is GRANTED as to Hart’s claims of Negligent/Wanton Hiring,

Training, Supervision, Maintenance, and Entrustment against Badger State, and those

claims are DISMISSED with prejudice.

individuals as witnesses at trial, nor did she contend that their testimony would consist of

admissible versions of the statements made in the Alabama Uniform Traffic Crash Report.

13 This ruling does not affect the admissibility, or lack thereof, of evidence presented at trial.

In all other respects, Defendants’ Motion for Partial Summary Judgment (Doc. No.

32) is DENIED.

Further, Defendants’ Motion to Strike (Doc. No. 39) is GRANTED.

DONE this 2nd day of May, 2024.

JERUSHA T. ADAMS

UNIZED STATES MAGISTRATE JUDGE

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