Parker v. Oliva

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MCTHREENA PARKER, )

)

Plaintiff, )

)

v. ) Case No. 2:18-cv-00779-SGC

)

JOSE OLIVA, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER1

This matter arises out of a May 28, 2016 traffic accident in Jefferson County,

Alabama. (Doc. 1). Presently pending is the motion for partial summary judgment

filed by the defendants, Jose Oliva and AJ Lines, Inc. (Doc. 24). The motion is fully

briefed and ripe for adjudication. (Docs. 25–28). As explained below, the motion

is due to be granted; the plaintiff’s claims for wantonness and negligent and/or

wanton entrustment, hiring, training, and supervision are due to be dismissed.

I. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, 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 judgment as a matter of

1 The parties have consented to dispositive magistrate judge jurisdiction pursuant to

28 U.S.C. § 636(c). (Doc. 16).

law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for

summary judgment always bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the pleadings or filings

which it believes demonstrate the absence of a genuine issue of material fact. Id. at

323. Once the moving party has met its burden, Rule 56(e) requires the non-moving

party to go beyond the pleadings and by his own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate specific facts showing

there is a genuine issue for trial. See id. at 324.

The substantive law identifies which facts are material and which are

irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All

reasonable doubts about the facts and all justifiable inferences are resolved in favor

of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.

1993). A dispute is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the

evidence is merely colorable, or is not significantly probative, summary judgment

may be granted. See id. at 249.

II. FACTS

Oliva obtained his commercial driver’s license in approximately 2015 after

completing a truck driving school in Florida. (Doc. 25 at 4). Prior to obtaining his

CDL, Oliva received two traffic citations while driving a non-commercial vehicle—

one for failure to maintain lane in 2011 and one for his role in a 2012 car accident.

(Doc. 25-3 at 17–18, 75–76).

Oliva began working for AJ Lines in late 2015 or early 2016. (Doc. 25 at 3).

His job with AJ Lines was his first as a truck driver. (Doc. 26 at 3). At some point,

he received an out-of-service order for failing to keep his commercial driving

logbook up to date. (Doc. 25 at 4). He did not receive any citations for moving

violations while driving a commercial vehicle before the subject accident. (Id.).

On May 28, 2016, Oliva was driving a fully-loaded tractor-trailer owned by

AJ Lines and was at all times acting in the line and scope of his employment. (Doc.

25 at 2; Doc. 26 at 4). Oliva testified he was traveling eastbound in the right lane of

Highway 78 in Jefferson County, Alabama at approximately 40 to 45 miles per hour.

(Doc. 25 at 2). The portion of Highway 78 where the accident occurred has several

traffic lights and is close to a Walmart. (Doc. 25-3 at 8-9; Doc. 26 at 4). This was

the first time Oliva had ever traveled on this road. (Doc. 25-3 at 8-9).

The plaintiff, McThreena Parker, was a passenger in the car directly in front

of Oliva’s truck. (Doc. 25 at 3). Brush along the side of the highway partially

obstructed Olivia’s view of an upcoming traffic light. (Doc. 25-3 at 10). Then, when

he was approximately 225 feet behind the plaintiff’s car, he saw the traffic light was

yellow. (Doc. 25 at 3). The plaintiff’s car came to a complete stop at the

intersection. (Id.). Oliva applied his brakes, which locked up, and the truck struck

the plaintiff’s car from behind a few seconds after the plaintiff’s car stopped. (Id.;

Doc. 26 at 4). Patricia Mauldin, another passenger in the car who saw the truck

coming from behind in the rearview mirror. During her deposition, Mauldin initially

estimated the truck was travelling at 80 miles per hour; she subsequently testified

she did not know the truck’s speed, but believed it was speeding when it struck the

car. (Doc. 27-2 at 8-9).

Shortly after the accident, AJ Lines went out of business and shut down. (Doc.

27-1 at 7). On June 2, 2016, the plaintiff’s attorney sent a preservation letter to the

members of AJ Lines asking them to preserve several documents “routinely

maintained in accordance with State and Federal regulations and in the routine

course of the business of a commercial vehicle operation” for purposes of discovery

in potential litigation. (Doc. 27-1 at 49). Almantas Rudzionis, the owner and general

director of AJ Lines, received the letter on June 7, 2016. (Doc. 26 at 2). But

Rudzionis could not locate or produce any documents related to the hiring, training,

and supervision of Oliva. (Id. at 3). Rudzionis called Grazima Kiaunyte, who was

AJ Lines’ safety director responsible for maintaining those records before the

company shut down; however, Kiaunyte did not answer Rudzionis’s phone call, and

Rudzionis did not know where Kiaunyte worked after AJ Lines shut down. (Doc.

27-1 at 8; Doc. 28 at 2). AJ Lines had moved business locations on several

occasions, so Rudzionis suspected the records were lost during one of those moves.

(Doc. 27-1 at 7–8; Doc. 28 at 2).

III. DISCUSSION

The defendants move for summary judgment on the plaintiff’s claims for

wantonness and negligent and/or wanton entrustment, hiring, training, and

supervision. (Doc. 24 at 1). Substantive Alabama law governs these claims, which

are addressed in turn. But before addressing the merits of the defendants’ motion,

the court first addresses the plaintiff’s contention the motion should be denied as a

sanction for spoliation of evidence and failure to produce evidence during discovery.

A. Spoliation

The plaintiff argues the defendants have committed spoliation—i.e., they

suppressed or destroyed evidence—warranting the denial of their motion for

summary judgment. (Doc. 26 at 6). According to the plaintiff, the defendants failed

to produce documents pertaining to Oliva’s hiring, training, and employment at AJ

Lines, as well as AJ Lines’ internal investigation of the accident. (Id. at 8–9). The

plaintiff argues the defendants knew they were required to preserve these documents

because: (1) the Federal Motor Carrier Safety Act required it; and (2) they received

a letter from the plaintiff’s attorney nine days after the accident asking them to

preserve the documents in anticipation of potential litigation. (Doc. 27-1 at 49–53).

The defendants do not deny they had the requested documents in their

possession at some point—AJ Lines’ Rule 30(b)(6) witness, Rudzionis, admitted as

much during his deposition. (Doc. 27-1 at 10). Instead, the defendants argue they

were unable to locate the documents. (Doc. 28 at 6). Rudzionis testified: (1) he

searched for the documents but failed to find them; (2) AJ Lines’ safety director

responsible for maintaining the documents would not answer his calls; (3) he did not

know where the safety director then worked; and (4) AJ Lines may have lost the

documents during one of its moves. (Doc. 27-1 at 7–8). Based on Rudzionis’s

testimony, the defendants contend no spoliation occurred. (Doc. 28 at 6–7).

“Spoliation is ‘defined as the destruction of evidence or the significant and

meaningful alteration of a document or instrument.’” Tesoriero v. Carnival Corp.,

965 F.3d 1170, 1184 (11th Cir. 2020) (quoting Green Leaf Nursery v. E.I. DuPont

De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003)). “In some circumstances,

a party’s ‘spoliation of critical evidence may warrant the imposition of sanctions.’”

Id. (quoting Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005)).

“Because spoliation is an evidentiary matter, ‘federal law governs the imposition of

spoliation sanctions.’” Id. (quoting Flury, 427 F.3d at 944).

As a sanction for spoliation, the court may instruct the jury that it can infer

the destroyed evidence would have been unfavorable to the party responsible for the

destruction. See Flury, 427 F.3d at 945. “At the summary judgment stage, the

spoliation doctrine provides a basis for denying a motion for summary judgment

where there is sufficient probative evidence for a jury to find an act of spoliation and

to draw the inference derived from such an act.” Watson v. Edelen, 76 F. Supp. 3d

1332, 1343 (N.D. Fla. 2015); see also Stanton v. Nat’l R.R. Passenger Corp., 849 F.

Supp. 1524, 1528 (M.D. Ala. Apr. 19, 1994) (giving prejudiced party the adverse

inference on summary judgment upon determining a question of fact existed as to

whether opposing party committed sanctionable spoliation).

When deciding whether to impose sanctions, courts consider the following

factors: (1) “whether the party seeking sanctions was prejudiced as a result of the

destruction of evidence and whether any prejudice could be cured”; (2) “the practical

importance of the evidence”; (3) “whether the spoliating party acted in bad faith”;

and (4) “the potential for abuse if sanctions are not imposed.” ML Healthcare Servs.,

LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018) (citing Flury,

427 F.3d at 945).

However, “[s]poliation sanctions—and in particular adverse inferences—

cannot be imposed for negligently losing or destroying evidence.” Tesoriero, 965

F.3d at 1184. “Indeed, ‘an adverse inference is drawn from a party’s failure to

preserve evidence only when the absence of that evidence is predicated on bad

faith.’” Id. (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)). Bad

faith, in the context of spoliation, “generally means destruction for the purpose of

hiding adverse evidence.” Id. (quotation marks omitted). “This consideration is key

in evaluating bad faith because the party’s reason for destroying evidence is what

justifies sanctions (or a lack thereof).” Id. The plaintiff must therefore establish the

defendants destroyed the requested documents in bad faith. See id. at 1186 (“Mere

negligence in losing or destroying evidence is not enough to warrant sanctions.”)

(citing Bashir, 119 F.3d at 931).

In Tesoriero the Eleventh Circuit surveyed its prior holdings to illustrate the

differences between bad faith and mere negligence. See id. at 1184–85.

Summarizing its decision in Bashir, the Eleventh Circuit explained: “Because

plaintiffs produced no evidence that the [defendant] train company purposefully lost

or destroyed the [requested evidence], we concluded that there was no showing of

bad faith.” Id. (citing Bashir, 119 F.3d at 931–32). Conversely, in Flury, “bad faith

was evident, and spoliation sanctions were appropriate.” Id. (citing Flury, 427 F.3d

at 945). In Flury, which centered on a vehicle’s malfunctioning airbags, the plaintiff

was fully aware the defendant wished to inspect the vehicle but nevertheless allowed

it to be sold for salvage—a purposeful act that could not be reasonably explained as

not involving bad faith. See id. (citing Flury, 427 F.3d at 945). Tesoriero also

favorably cited a Florida district court decision “concluding that bad faith can be

established by circumstantial evidence only when the ‘act causing the loss cannot be

credibly explained as not involving bad faith by the reason proffered by the

spoliator.’” Id. (quoting Calixto v. Watson Bowman Acme Corp., No. 07-60077,

2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009)).

Here, while the plaintiff produced evidence showing the defendants had a duty

to preserve the requested documents in anticipation of litigation, “anticipation of

litigation is not the standard for spoliation sanctions—bad faith is.” Id. at 1183. Just

as in Bashir, the plaintiff produced no evidence that AJ Lines “purposefully lost or

destroyed” the requested documents; thus, “there [is] no showing of bad faith.” Id.

(citing Bashir, 119 F.3d at 931–32). Furthermore, the act causing the loss of the

documents can be credibly explained as not involving bad faith. AJ Lines

presumably misplaced or accidently discarded the documents during one of its

moves—an act indicating negligence, not bad faith. Accordingly, the plaintiff has

failed to show bad faith through either direct or circumstantial evidence, and the

court declines to impose spoliation sanctions.

B. Wantonness

Alabama law defines wantonness as “[c]onduct which is carried on with a

reckless or conscious disregard for the rights or safety of others.” ALA. CODE § 6–

11–20(b)(3). As explained by the Alabama Pattern Jury Instructions, a defendant’s

conduct is wanton if he “consciously acts or fails to act with a reckless or conscious

disregard of the rights or safety of others, and [] is aware that harm will likely or

probably result.” 2 Ala. Pattern Jury Instr. Civ. § 29.00 (3d ed.). As explained by

the Alabama Supreme Court:

Wantonness is not merely a higher degree of culpability than

negligence. Negligence and wantonness, plainly and simply, are

qualitatively different tort concepts of actionable culpability. Implicit

in wanton, willful, or reckless misconduct is an acting, with knowledge

of danger, or with consciousness, that the doing or not doing of some

act will likely result in injury.

Carter v. Treadway Trucking, Inc., 611 So. 2d 1034, 1035 (Ala. 1992) (quotation

marks omitted) (overruled on other grounds by Robertson v. Gaddy Electrical and

Plumbing, LLC, 53 So. 3d 75 (Ala. 2010)). Of course, a plaintiff claiming

wantonness need not prove the defendant had a “specific design or intent to injure”

him. Joseph v. Staggs, 519 So. 2d 952 (Ala. 1988). As this court has noted, in the

context of a traffic accident, a plaintiff must show the defendant was driving “in a

manner likely to result in injury. . . . However, an error in judgment is insufficient

to demonstrate that an alleged tortfeasor has acted in a manner likely to result in

injury.” Stephens v. Snow, No. 16-442-SGC, Doc. 24 at 1 (N.D. Ala. entered Sept.

25, 2017).

“Wantonness is a question of fact for the jury, unless there is a total lack of

substantial evidence from which a jury could reasonably infer wantonness.” Cash

v. Caldwell, 603 So. 2d 1001, 1003 (Ala. 1992). “The most crucial element of

wantonness is knowledge, and while that element need not be shown by direct

evidence it may be made to appear by showing circumstances from which the fact

of knowledge is a legitimate inference . . . it may not be left to the conjecture or

speculation of the jury.” Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala. 1980).

Considering the facts of this case under the summary judgment standard, the

plaintiff has failed to present substantial evidence from which a jury could infer

Oliva was wanton. First, the plaintiff presented no evidence indicating Oliva

“consciously act[ed] or fail[ed] to act,” solely by speeding, in a manner likely to

cause injury. 2 Ala. Pattern Jury Instr. Civ. § 29.00 (3d ed.). Regarding Oliva’s

speed, Patricia Mauldin, a passenger in the same vehicle as the plaintiff, testified as

follows:

Q: Tell me what you remember about the accident happening.

A: I remember a lot. When we were coming, you know, like I said,

right there by the traffic light. And it was – we were going like

this, and then a light turned red. I was looking out the rearview

mirror, and I was like – I said, “Tina, an 18-wheeler coming, 18-

wheeler coming. He was coming fast, fast. Looked like he ain’t

going to stop.” I mean, he was like, shew, real fast. . . .

* * *

Q: And you saw [Oliva]’s truck in the rearview mirror before the

impact?

A: Yes I did.

Q: And you were telling Tina, “18-wheeler is coming”?

A: Yeah. He was flying. I mean, he came out of nowhere, and he

was flying.

Q: How fast do you think he was going?

A: Probably 80 miles. I mean, he was flying.

Q: Is that a guess or – you say 80 miles per hour.

A: Look, I’m not confused at all, okay? He was flying.

Q: Okay. And I understand that. You say 80.

A: I said could have been. I’m not saying – I really don’t know. I

know he was flying. He was going over the speed limit.

Q: You believe that?

A: Yes.

(Doc. 27-2 at 8, 9).

Conversely, Oliva testified: (1) he was traveling approximately 45 miles per

hour as he approached the accident site; (2) his view of the accident site initially was

partially obstructed by brush on the side of the road; (3) he was approximately three

tractor-trailer lengths, or 225 feet, behind the plaintiff when he saw her apply the

brakes; (4) he immediately applied his brakes, which locked up prior to impact; and

(5) he was traveling approximately 15 miles per hour at the point of impact. (Doc.

25-3 at 9). It is uncontested that this was the first time Oliva had ever traveled this

section of road. (Id. at 8-9).

Mauldin’s testimony, taken as true under the summary judgment standard,

establishes Oliva was going over the speed limit before he applied his brakes. While

Mauldin initially estimated Oliva was traveling at 80 miles per hour prior to the

accident, she subsequently testified Oliva was “flying,” but she did not know how

fast he was traveling. However, “speed alone does not amount to wantonness.”

Serio v. Merrell, Inc., 941 So. 2d 960, 966 (Ala. 2006). Speed must be “coupled

with other circumstances” to show wantonness. Id. (quotation marks omitted);

Barnett v. Franklin Logistics, LLC, No. 05-1922-RDP, 2006 WL 8436994 at *3

(N.D. Ala. July 25, 2006) (under Alabama law, speeding alone is insufficient to show

wantonness). In Hicks v. Dunn, the defendant driver was driving much faster than

the posted speed limit and did not slow down despite knowing there was a busy

restaurant on the other side of a hill he was cresting that obstructed his view. 819

So. 2d 22, 24 (Ala. 2001). On those facts, the Alabama Supreme Court found

substantial evidence of wantonness existed to warrant its submission to the jury. Id.

Here, the plaintiff has not established the existence of circumstances other

than speed to support a reasonable inference of wantonness. Unlike the defendant

in Hicks, Oliva had not previously traveled this route and was unfamiliar with the

area where the accident occurred. There is no evidence Oliva had any particularized

knowledge of traffic lights in the area or that roadside brush partially obstructed his

view of the upcoming traffic light. (Doc. 25-3 at 9–10, 12, 15). Indeed, Oliva’s

knowledge of the area only came after the fact. See Roberts, 384 So. 2d at 1048

(knowledge, the “most crucial element of wantonness,” cannot rest on “conjecture

or speculation of the jury”). Accordingly, the rationale in Hicks does not apply to

this case.

For the foregoing reasons, the court concludes the plaintiff has failed to submit

evidence showing a genuine issue of material fact as to wantonness. Accordingly,

the defendants are entitled to judgment as a matter of law on this claim.

B. Negligent/Wanton Entrustment, Hiring, Training, and Supervision

In Alabama, claims for negligent entrustment, hiring, training, and

supervision all share a common element: the plaintiff must show the tortfeasor

employee was incompetent. Halford v. Alamo Rent–A–Car, LLC, 921 So. 2d 409,

412 (Ala. 2005); Johnson v. Brunswick Riverview Club, Inc., 39 So. 3d 132, 140

(Ala. 2009). The same is true regarding similar claims premised on wantonness.

See Vines v. Cook, No. 15-0111, 2015 WL 8328675, at *6 (S.D. Ala. Dec. 8, 2015);

Bruck v. Jim Walter Corp., 470 So. 2d 1141, 1144 (Ala. 1985). In Alabama,

incompetence is the “state or fact of being unable or unqualified to do something.”

Halford, 921 So. 2d at 415. Alabama courts measure a driver’s competence “by the

driver’s demonstrated ability (or inability) to properly drive a vehicle.” Id. at 414–

15. Additionally, “[n]egligence is not synonymous with incompetency. The most

competent may be negligent. . . . But one who is habitually negligent may on that

account be incompetent.” Pritchett v. ICN Medical Alliance, Inc., 938 So. 2d 933,

941 (Ala. 2006) (alteration incorporated) (emphasis in original).

Oliva’s driving history does not demonstrate he was incompetent. He

received one traffic ticket in 2011 and was involved in one traffic accident in 2012.

These two incidents, during which Olivia was not operating a commercial vehicle,

occurred at least three years before AJ Lines hired Oliva. While working for AJ

Lines, he received only one out-of-service order for failing to maintain his logbook.

This infraction was not a moving violation. Courts applying Alabama law have

granted summary judgment—based on plaintiffs’ failure to show incompetence—

where tortfeasors had driving records similar to (and worse than) Oliva’s. See, e.g.,

Vines, 2015 WL 8328675, at *6 (one speeding ticket and one accident over previous

four years); Askew v. R&L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala.

2009) (two moving violations and four minor accidents over previous nine years);

Lanham v. Gnewuch, No. 13-1358-VEH, 2015 WL 3966480, *8–9 (N.D. Ala. Jun.

30, 2015) (two preventable accidents in previous two years); Thedford, 813 So. 2d

at 912 (one similar accident three months prior); Pryor v. Brown & Root USA, Inc.,

674 So. 2d 45, 52 (Ala. 1995) (two speeding tickets and a suspended DUI charge

over ten years).

Other than Oliva’s driving history, the plaintiff has produced no evidence to

show Oliva was incompetent when AJ Lines hired, trained, supervised, and entrusted

him with a vehicle. The plaintiff apparently recognizes she lacks evidence to support

these claims but asserts the defendants’ spoliation of evidence prevented her from

doing so. (Doc. 26 at 13-14). However, because the court has already declined to

impose spoliation sanctions, the plaintiff cannot rely on spoliation to overcome

summary judgment.

For the foregoing reasons, there are no genuine issues of material fact as to

the plaintiff's claims for negligent and/or wanton entrustment, hiring, training and

supervision. The defendants are entitled to judgment as a matter of law on those

claims.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion for partial summary

judgment is due to be GRANTED. (Doc. 24). The plaintiff's claims for

wantonness, as well as the claims for wanton and/or negligent entrustment, hiring,

training, and supervision, are DISMISSED.

DONE this 15th day of October, 2020.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

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