Shows v. Red Line Trucking LLC

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT SHOWS, )

)

Plaintiff, )

)

vs. ) Civil Action Number

) 2:18-cv-01692-AKK

REDLINE TRUCKING, LLC ET )

AL., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Robert Shows sustained injuries after his vehicle collided with a vehicle

owned by Redline Trucking, Inc. and operated by Adil Dumanjic. Doc. 1-1 at 4-5.

Shows filed a lawsuit in the Circuit Court of Jefferson County, Alabama, alleging

claims for negligence and wantonness (Count I), respondeat superior (Count II), and

negligent/wanton hiring, training, and retention (Count III).1 Doc. 1-1. Redline

Trucking subsequently removed the action to this court, citing diversity jurisdiction.

See doc. 1 at 3-6. Redline Trucking filed a motion for summary judgment, doc. 21,

1 Shows pleads a claim in Count IV against fictitious parties whose conduct purportedly “combined

and concurred to directly or proximately cause [Shows] injuries.” Doc. 1-1 at 7. There is no

fictitious party practice in federal court unless a plaintiff can specifically describe or identify the

defendant. See Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010); New v. Sports &

Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997). Shows has not done so, and he

abandoned this claim in his briefing. See generally docs. 24 and 27. Therefore, the court will only

address the claims against the named defendants.

which is fully briefed, docs. 27; 28, and ripe for consideration. After carefully

reviewing the briefs, evidence, and relevant law, Redline’s motion, doc. 21, is due

to be denied as to Shows’ negligence, wantonness, and respondeat superior claims

pleaded in Counts I and II, and granted as to the negligent/wanton hiring,

supervision, and retention claims in Count III.

I.

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

is proper “if 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.

“Rule 56[] mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986) (alteration in original). The moving party bears the initial burden

of proving the absence of a genuine issue of material fact. Id. at 323. The burden

then shifts to the nonmoving party, who is required to “go beyond the pleadings” to

establish that there is a “genuine issue for trial.” Id. at 324 (citation and quotation

marks omitted). A dispute about a material fact is genuine “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment motions, the court must construe the evidence and all

reasonable inferences arising from it in the light most favorable to the non-moving

party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson,

477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s

favor when sufficient competent evidence supports the non-moving party’s version

of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir.

2002) (a court is not required to resolve disputes in the non-moving party’s favor

when that party’s version of events is supported by insufficient evidence). However,

“mere conclusions and unsupported factual allegations are legally insufficient to

defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th

Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,

1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the

opposing party’s position will not suffice; there must be enough of a showing that

the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577

(11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).

II.

This case arises out of an automobile collision that occurred when Shows

crashed into Redline Trucking’s tractor-trailer that Dumanjic had parked in an active

lane of travel on a two-lane highway one early morning before sunrise. Docs. 27 at

65-71, 83, 85, 87; 21 at 36. Shows, who had his headlights on, hit the tractor-trailer

when he turned left onto the highway after stopping at a stop sign. Doc. 21 at 32.

The trailer, which had stopped in the right-hand lane of the highway, doc. 27 at 65-

71, 83, 85, and 87, did not have any lights illuminated, doc. 21 at 34. It did, however,

have reflective tape and plastic reflectors on the back of the trailer. Doc. 21 at 39.

After the collision, Dumanjic, who had not set up emergency reflectors or flares in

the roadway to alert drivers to the stopped vehicle, doc. 27 at 65-71, 83, 85, and 87,

exited the trailer’s cab, explained to Shows that he had stopped due to an electrical

emergency, and returned to the cab, doc. 21 at 34. The parties dispute whether two

gas stations and a McDonald’s at the intersection cast sufficient light to illuminate

the roadway that morning. Doc. 21 at 5, 33.

The speed limit at the intersection was thirty-five (35) miles per hour, though

Shows cannot remember his speed or whether he was accelerating, decelerating, or

traveling at a steady pace when he hit the tractor-trailer. Id. at 37. Shows does not

recall whether he swerved or braked to avoid the trailer. Id. Shows denies being

distracted and claims that his ability to see the trailer was disrupted by the darkness

of the early morning and lack of emergency markers in the road or lights on the

trailer. Id. at 42. Shows seeks damages for injuries he allegedly sustained from the

collision, including a broken clavicle and pain in his neck and left arm. Id. at 27.

III.

The court turns now to Redline Trucking’s motion for summary judgment.

The court considers Counts I (negligence and wantonness) and II (respondeat

superior) in tandem, before turning to the negligent/wanton hiring, training, and

supervision claim in Count III. Because this action is based on diversity jurisdiction,

the court applies Alabama’s substantive law.

A.

In Count I, Shows pleads negligence and wantonness on the part of Dumanjic,

claiming Redline Trucking is vicariously liable for Dumanjic’s actions. Doc. 1-1 at

3-6.2

i.

Redline Trucking asserts that the negligence claim fails due to Shows’

contributory negligence. Doc. 21 at 10-13. To sustain a negligence claim under

Alabama law, a plaintiff must establish “a legal duty owed to the [plaintiff] or to a

2 Although the court has dismissed the claims against Dumanjic, see doc. 29, Redline Trucking

remains open to liability for Dumanjic’s actions. Under Alabama law, “[t]he vicarious liability of

a putative master under the rule of respondeat superior depends upon the liability of the putative

servant . . . if a putative servant is not liable . . . no liability exists to be visited upon the putative

master under the rule of respondeat superior.” Hollis v. City of Brighton, 885 So. 2d 135, 141-42

(Ala. 2004). The Alabama Supreme Court has indicated on multiple occasions that vicarious

liability does not attach to employers where the agent enjoys immunity. Indus. Dev. Bd. Of City of

Montgomery v. Russell, 124 So. 3d 127, 137 (Ala. 2013) (citing Wheeler v. George, 39 So. 3d

1061 (Ala. 2009). This reasoning extends to cases in which the court has dismissed the claims

against the agent with prejudice due to a finding on the merits. See Crete Carrier Corp. v. Adair,

792 So. 2d 429, 430 (Ala. Civ. App. 2000). But where the dismissal of an employee does not result

in an adjudication on the merits, the plaintiff may still hold the employer liable for its employee’s

acts under respondeat superior. See Dolgencorp, LLC v. Spence, 224 So. 3d 173, 179 (Ala. 2016).

The dismissal of Dumanjic due to Shows’ failure to effect timely service, is not an adjudication on

the merits, and does not absolve Redline Trucking from liability for Dumanjic’s actions.

class of persons to which the plaintiff belongs, and a breach of that duty, proximately

resulting in the injury.” Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So. 2d

199, 203 (Ala. 1992). A vehicle operator owes a duty to use reasonable care in

operating the vehicle. Jones v. Baltazar, 658 So. 2d 420, 421 (Ala. 1995). But

“[c]ontributory negligence is an affirmative and complete defense to a claim based

on negligence.” Serio v. Merrell, Inc., 941 So. 2d 960, 964 (Ala. 2006). To establish

contributory negligence, a defendant must prove “that the plaintiff 1) had knowledge

of the dangerous condition; 2) had an appreciation of the danger under the

surrounding circumstances; and 3) failed to exercise reasonable care, by placing

himself in the way of danger.” Serio, 941 So. 2d at 964. “[Q]uestions of negligence

incorporate factual evaluations that are almost always within the province of the jury

[and therefore] summary judgment based on the doctrine of contributory negligence

is seldom proper.” Gulledge v. Brown & Root, Inc., 598 So. 2d 1325, 1330 (Ala.

1992) (citing Osmer v. Belshe Industries, Inc., 585 So. 2d 719 (Ala. 1991) and Jones

v. Power Cleaning Contractors, 551 So. 2d 996 (Ala. 1989)). A court may find

contributory negligence on summary judgment only when “the facts are such that all

reasonable people would logically have to reach the conclusion that the plaintiff was

contributorily negligent.” Serio, 941 So. 2d at 964.

Redline Trucking argues that any reasonable juror would find that Shows was

contributorily negligent because Shows’ headlights and the alleged ambient light

cast by the surrounding businesses “should have [enabled Shows] to see the large

trailer with reflective tape . . . had he been paying attention.” Doc. 21 at 11-12. This

contention is unavailing because it requires the court to accept Redline’s version of

the facts. The court cannot do that because Shows disagrees that the surrounding

businesses sufficiently illuminated the road way. Taking the facts in the light most

favorable to Shows, as the court must do, Dumanjic stopped the trailer in an active

lane of traffic on a dark morning and failed to illuminate the trailer’s lights or set out

emergency signals in the road. Doc. 27 at 65-71, 83, 85, and 87. In addition to the

dispute regarding the amount of ambient light the surrounding businesses cast, the

parties disagree whether Shows’ inattentiveness caused the collision. Moreover, that

Shows had illuminated his headlights and the trailer was equipped with reflectors do

not prove that Shows knew of and appreciated the danger of the parked trailer, or

that he failed to exercise reasonable care.

To close, Shows’ purported contributory negligence hinges on whether the

trailer was sufficiently visible on the night of the collision. Accordingly, in light of

the parties’ conflicting evidence on this issue, the motion as to the negligence claims

pleaded in Counts I and II against Redline Trucking is due to be denied.

ii.

Under § 32-1-2, to prevail on his wantonness claim, Shows must provide

substantial evidence that Dumanjic engaged in “willful or wanton misconduct.” Ala.

Code § 32-1-2. Wantonness requires “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, 9-10 (Ala. 2007). Shows does not need to show that “the

actor kn[ew] that a person [wa]s within the zone made dangerous by his conduct” or

that the actor “entertained a specific design or intent to injure the plaintiff” to prove

wantonness. Id. Rather, Shows need only show that “the actor is ‘conscious’ that

injury will likely or probably result from his actions.” Id. Demonstrating this

consciousness of injury requires Shows to overcome a rebuttable presumption of

Dumanjic’s instincts for self-preservation. Id. at 12. In the context of an automobile

accident, this entails showing that Dumanjic was either so dispossessed of his

“normal faculties, such as from voluntary intoxication [that he was] indifferent to

the risk of injury to himself” or that his act was “so inherently reckless” that he

showed “depravity consistent with disregard of instincts of safety and self-

preservation.” Id. Put simply, a wantonness determination is wholly fact-dependent.

Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala. 1989).

As a fact-dependent inquiry, wantonness is a question for the jury, and a court

may grant summary judgment only when “there is a total lack of evidence from

which the jury can reasonably infer wantonness.” Cash, 603 So. 2d at 1003. Alabama

courts have denied summary judgment when “fairminded persons in the exercise of

impartial judgment could reach different conclusions as to the existence of

wantonness.” Berry v. Fife, 590 So. 2d 884, 887 (Ala. 1991). And, denial is proper

where either a jury could reach different conclusions on whether the undisputed facts

constitute wantonness3 or there is a material dispute regarding whether the driver

engaged in wanton behavior.4

Based on the record, the court cannot find as a matter of law that there is “a

total lack of evidence from the jury can reasonably infer wantonness.” Cash, 603 So.

2d at 1003. Shows claims that Dumanjic stopped his trailer in a lane of travel on a

dark morning without illuminating any lights or creating an indication of an

emergency. Doc. 27 at 65-71. Although Redline Trucking denies both contentions,

doc. 21 at 10, 14, the court must view the facts in the light most favorable to Shows.

Doing so, the court finds that a reasonable juror could deem Dumanjic’s alleged

3 See Johnson v. Baldwin, 584 F. Supp. 2d 1322, 1328 (M.D. Ala. 2008) (holding a jury could find

the Essary self-preservation presumption rebutted by the recklessness of the defendant’s behavior

where he drove backwards on a high-speed interstate highway); Coleman v. Smith, 901 So. 2d 729

(Ala. Civ. App. 2004) (jury question on wantonness where driver drove at high speed and was

traveling down the middle of a road, forcing him to swerve to avoid oncoming traffic); Clark v.

Black, 630 So. 2d 1012, 1016 (Ala. 1993) (defendant either ignored a stop sign or entered an

intersection at a dangerously high rate of speed, despite knowing the intersection had diminished

visibility of oncoming traffic due to a hillcrest); Sellers v. Sexton, 576 So. 2d 172 (Ala. 1991)

(defendant entered a bridge at or near maximum speed despite knowing a wide turn would obstruct

her view of oncoming traffic and bridge had been spread with stone in preparation for bad

weather); McDougle v. Shaddrix 534 So. 2d 228 (Ala. 1988) (defendant drove in front of truck

despite it being no more than 50 feet away from her).

4 See, e.g., Allen v. Hill, 758 So. 2d 574 (Ala. Civ. App. 1999) (genuine issue of material fact

existed as to whether driver stopped at a stop sign or sped through an intersection without

stopping); Barker v. Towns, 747 So. 2d 907 (Ala. Civ. App. 1999) (genuine issue as to whether

driver saw a truck approaching and properly yielded).

actions to be inherently reckless and therefore rise to the level of wantonness.

Whether the trailer was in the lane of travel and whether the intersection was well-

lit are matters for the jury to resolve as the trier of fact. Therefore, the motion on the

wantonness claims pleaded in Counts I and II against Redline is also due to be

denied.5

B.

Shows claims in Count III that Redline Trucking engaged in negligent or

wanton hiring, training, and retention by failing to “ascertain whether [Dumanjic]

was a safe and skillful driver[,] . . . adequately train [Dumanjic] in the safe operation

of a motor vehicle[, or] . . . properly supervise [Dumanjic] in his operation of a motor

vehicle.” Doc. 1-1 at 6. The court agrees with Redline Trucking that Shows cannot

bear his burden on these claims. Doc. 21. At 18-20.

5 Redline Trucking also moves for judgment on Shows’ punitive damages claim, arguing that the

evidence Shows offers in support of his wantonness claim cannot meet the clear and convincing

standard. Doc. 21 at 17-18. “Punitive damages may not be awarded in any civil action other than

in a tort action where it is proven by clear and convincing evidence that the defendant consciously

or deliberately engaged in . . . wantonness . . . with regard to the plaintiff.” ALA. CODE § 6-11-

20(a). But the clear and convincing standard is reserved for trial—“[i]f a plaintiff presents

substantial evidence of a defendant’s wantonness, then the court should preserve the issue for the

jury’s determination.” See Bozeman v. Central Bank of the South, 646 So. 2d 601, 603–04

(Ala.1994); see also Shoals Ford v. Clardy, 588 So.2d 879, 884 (Ala.1991) (holding that normally

the question of wantonness is a jury question). Substantial evidence is “evidence of such weight

and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the

existence of the fact sought to be proved.” Von Sury v. Kuehn, 51 So. 3d 311, 315 (Ala. 2010).

Shows’ testimony, the affidavits of three witnesses, and photographs of the collision scene and

surrounding area constitute the type of evidence that would allow a fair-minded juror to infer facts

that would in turn allow that juror to find Dumanjic’s actions wanton. Docs. 21 at 54-59; 27 at 65-

71, 83, 85, 87, 89. Accordingly, the motion on the claim for punitive damages is due to be denied.

Under Alabama law, the torts of negligent hiring, training, and supervision all

require a plaintiff to show that the employee was incompetent to operate a

commercial vehicle and that the employer knew, or should have known, of this

incompetence. Southland Bank v. A & A Drywall Supply Co., Inc., 21 So. 3d 1196,

1214-15 (Ala. 2008). This entails establishing that “specific acts of incompetency

[were within] the knowledge of the master,” or that the acts were “of such nature,

character, and frequency that the master, in the exercise of due care, must have had

them brought to his notice.” Id. A single act of negligence does not constitute

incompetency—“the most competent [person] may [still] be negligent.” Southland

Bank, 21 So. 3d at 1216. Instead, habitual negligence is necessary for conduct to rise

to the level of incompetence. Id. In the context of a commercial driver, “the

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

inability) to properly drive a vehicle.” Halford v. Alamo Rent-A Car, LLC, 921 So.

2d 409, 413-14 (Ala. 2005) (declining to find a driver incompetent for a single non-

moving violation).6

Shows presents no evidence which would allow a reasonable jury to determine

6 See also Day v. Williams, 670 So.2d 914 (Ala.1995) (finding “no evidence indicating that [the

driver] was incompetent” where the driver did not have a license but was an experienced adult

driver with only one citation for speeding); Pryor v. Brown & Root USA, Inc., 674 So. 2d 45

(Ala.1995) (holding a plaintiff failed to present substantial evidence of incompetence where a

driver had a two speeding tickets and a charge for driving under the influence within ten years of

the accident); Thompson v. Havard, 235 So. 2d 853 (Ala. 1970) (finding a driver incompetent

based on eleven moving violations in the space of three years).

that Redline Trucking had any reason to believe that Dumanjic was incompetent to

work as a driver. See generally docs. 1-1, 27. In his application, Dumanjic reported

no accidents or traffic citations for the previous three years. Doc. 21 at 61-66. Prior

to hiring Dumanjic, Redline Trucking verified that he had a valid commercial

driver’s license and a minimum of two years of relevant driving experience. Doc. 21

at 72, 75. Redline then required Dumanjic to undergo driver orientation and pass a

road test. Id. And while at Redline Trucking, Dumanjic earned only one traffic

citation for speeding over a weigh-station scale. Id. at 71. This single citation7 is

insufficient to demonstrate Dumanjic’s purported incompetency. Therefore, the

motion on the negligent or wanton hiring, training, and retention claims is due to be

granted.

CONCLUSION AND ORDER

Consistent with this opinion, Redline Trucking’s motion for summary

judgment, doc. 21, is DENIED as to Count I and II (negligence and wantonness

claims and respondeat superior liability) as well as to Shows’ claims for punitive

damages, and GRANTED as to Count III (negligent/wanton hiring, training, and

retention). Shows’ negligent/wanton hiring, training, and retention claims are

7 Shows also argues that Dumanjic was unable to converse in English and had a criminal history,

citing an unverified police report describing an incident in which Dumanjic was arrested for

trespassing on his former employer’s property. Doc. 27 at 16-17, 91-93. This evidence is irrelevant

to Dumanjic’s competency as a driver or to Redline Trucking’s perception of that competence.

DISMISSED WITH PREJUDICE.

DONE the 18th day of May, 2020.

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

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