McCray v. Milan Supply Chain

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

REGINALD MCCRAY, SR., )

)

Plaintiff, )

) Civil Action Number

v. ) 2:20-CV-01891-AKK

)

MILAN SUPPLY CHAIN and )

BOBBY LEE BURKE, )

)

Defendants. )

MEMORANDUM OPINION

Pending before the court is Milan Supply Chain’s motion for partial summary

judgment, in which Milan argues for dismissal of Reginald McCray’s punitive

damages and negligent entrustment claims following an automobile collision

between McCray and Bobby Lee Burke, Milan’s tractor-trailer driver. See doc. 10.

McCray failed to respond to the motion. After review of the motion, the evidence,

and the governing case law, the court concludes that no reasonable juror could find

in favor of McCray on his claims for wantonness and negligent entrustment.

I.

Summary judgment is warranted “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 movant 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 to “go beyond the pleadings” and

establish a “genuine issue for trial.” See id. at 324. 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).

At summary judgment, the court must construe the evidence and all

reasonable inferences arising from it in the light most favorable to the nonmovant.

Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Anderson, 477 U.S. at 255.

Factual disputes are resolved in the nonmoving party’s favor when sufficient

competent evidence supports the nonmoving party’s version of the facts. See Pace

v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002). 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).

II.

The collision at issue in this case occurred in October 2018, as McCray drove

west on Highway 78 in Birmingham and Burke drove Milan’s commercial tractor-

trailer behind him. See doc. 1-1 at 4. After McCray stopped at a red light, Burke’s

tractor-trailer rear-ended McCray’s vehicle. See id.; doc. 10-4 at 3. According to

the police report of Officer Christopher McClure, who responded to the accident, a

vehicle had pulled in front of McCray before the light turned red, causing McCray

to brake. See docs. 10-4 at 3 (citing the police report); 10-6 at 2. Burke told Officer

McClure that “he couldn’t stop fast enough” before hitting McCray. Doc. 10-6 at

2.1 McCray suffered back injuries that required medical treatment. Doc. 1-1 at 5.

This lawsuit followed, and Milan removed the case to federal court. See doc. 1.

According to Burke’s 2017 employment application for Milan, Burke has

worked on and off as a commercial driver since 1996. See doc. 10-8. In his

application, Burke indicated that he had not had any accidents and had no violations

on his driving record. See id. Before hiring Burke, Milan ran a “motor vehicle

record” check on him that came back “clear.” See doc. 10-5. Milan also had Burke

perform a drug test, which came back negative; verified Burke’s employment

history; gave Burke a road test, which he passed; and provided Burke with “entry-

level” driver training. See docs. 10-10; 10-11; 10-12. Burke held a valid commercial

driver’s license at the time of the accident, and his CDL remains valid. See doc. 10-

5.

1 See also doc. 10-7 (Milan’s accident report) (“A cop was 2 vehicles ahead of [Burke]. The cop

made a sudded [sic] right turn into a parking lot without using his turn signal. [McCray] in front

of [Burke] was able to slam on his brakes and get stopped. [Burke] was not able to stop before

rear-ending [McCray].”).

III.

McCray pleads negligence, negligence per se, and negligent entrustment

claims against Milan and seeks compensatory and punitive damages as relief. See

doc. 1-1. For its part, Milan argues that McCray cannot seek punitive damages

because he does not allege wantonness, and if McCray does assert wantonness, no

evidence of wantonness exists. Doc. 10-1 at 6. Milan also argues that McCray

cannot prove that Milan negligently entrusted Burke. Id. at 13. The court addresses

these contentions in turn.

A.

Milan is correct that Alabama law requires evidence of wantonness—or

oppression, fraud, or malice—for a plaintiff to recover punitive damages. See id. at

6–7; ALA. CODE § 6-11-20(a).2 Thus, without evidence of wantonness, McCray

cannot recover punitive damages. However, the court disagrees with Milan that

McCray fails to plead wantonness. To be sure, McCray’s complaint asserts three

counts, labelled “Negligence,” “Negligence Per Se,” and “Negligent Entrustment,”;

McCray does not specifically separate his claim for wantonness. See doc. 1-1. But

2 “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 oppression, fraud, wantonness, or malice with regard to the plaintiff.” ALA. CODE § 6-

11-20(a). See also CP & B Enterprises, Inc. v Mellert, 762 So. 2d 356, 362 (Ala. 2000) (holding

that a finding of negligence “would not warrant an award of punitive damages”) (citing Bradley v.

Walker, 93 So. 634, 635 (Ala. 1922)); Bradley, 93 So. at 635 (“Punitive damages are not

recoverable for simple negligence, but the recovery in such case is for compensatory damages.”).

his factual allegations express as much: McCray pleads that Burke operated the

tractor-trailer “in such a negligent, reckless, and/or wanton manner.” See id. at 4

(emphasis added). Though McCray could have pleaded his claims with more clarity,

the court understands him to allege negligence and/or wantonness against Burke and

Milan in support of his claim for punitive damages. Thus, the question is whether a

reasonable jury could return a verdict for McCray on his wantonness claim. See

Anderson, 477 U.S. at 248.

Here, however, the complaint and the evidence fall short. In Alabama,

wantonness refers to “the conscious doing of some act or 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.” McMahon v. Yamaha

Motor Corp., USA, 95 So. 3d 769, 773 (Ala. 2012); Ex parte Essary, 992 So. 2d 5,

9 (Ala. 2007). Though wantonness requires a conscious act, “the actor’s knowledge

may be proved by showing circumstances from which the fact of knowledge is a

reasonable inference.” Hicks v. Dunn, 819 So. 2d 22, 24 (Ala. 2001) (quoting Scott

v. Villegas, 723 So. 2d 642, 643 (Ala. 1998)). In the context of automobile accidents,

the negligent failure to exercise “good judgment” while driving does not mean that

the driver’s conduct constitutes “reckless indifference to a known danger to inflict

injury.” Cheshire, 54 So. 3d at 344; Essary, 992 So. 2d at 12.3 See also George v.

Champion Ins. Co., 591 So. 2d 852, 854 (Ala. 1991).4 Rather, wantonness depends

on the circumstances of each case, Cheshire v. Putman, 54 So. 3d 336, 342 (Ala.

2010) (quoting Ex parte Anderson, 682 So. 2d 467 (Ala. 1996)), and speeding alone

is insufficient unless coupled with other factors, Hicks, 819 So. 2d at 24.5

In this case, even in the light most favorable to McCray, the evidence would

not lead a reasonable jury to find wantonness. The evidence demonstrates that prior

to the collision, a vehicle somewhat abruptly pulled in front of McCray, who applied

his brakes. See docs. 10-1 at 2; 10-6 at 2; 10-7 at 2. It appears that as McCray

slowed to accommodate the car in front of him, the traffic light also turned red,

forcing him to come to a complete stop. See id. Burke, traveling behind McCray,

3 In Essary, the Supreme Court of Alabama held that a driver’s rolling stop at an intersection

requiring him to yield was not wanton, even though the driver “knowingly entered the intersection”

to try to cross it. 992 So. 2d at 7, 12. The Court noted that although the plaintiffs characterized

the driver’s “attempt to cross the intersection between two vehicles” as “‘accelerating’ after a

‘rolling stop’ to ‘shoot the gap,’” in reality the driver “made an error in judgment when he

attempted to ‘beat the traffic.’” Id. at 12.

4 In George, the Supreme Court of Alabama held that there was insufficient evidence of

wantonness where the driver approached an intersection at a green light, glanced back at the

occupants in the rear seat, looked forward again, saw the light was red, and drove into another

vehicle when her foot missed the brake pedal. 591 So. 2d at 854. The Court concluded that

although the facts “show[ed] inadvertence on the part of the driver, they [did] not amount to

wantonness, which requires some degree of conscious culpability.” Id.

5 In Hicks, the Supreme Court of Alabama held that the trial court should have presented a

wantonness claim to the jury because evidence showed that the driver was driving “much faster

than the posted speed limit” and “was not paying attention to the road.” 819 So. 2d at 25. In

addition, the Court noted that the driver did not slow his speed despite constructions signs and the

driver’s knowledge “that a restaurant into which patrons would likely be turning was on the other

side of the hill he was cresting, obscured from his view.” Id.

could not stop in time, and Burke’s tractor-trailer rear-ended McCray’s vehicle. See

id. Although Milan’s accident report lists “[d]istracted [d]riving” as a factor in the

accident, doc. 10-7, and McCray appears to allege that Burke followed his vehicle

too closely, doc. 1-1 at 6, McCray has not established that Burke was speeding or

behaved with “reckless indifference to a known danger to inflict injury,” Cheshire,

54 So. 3d at 344; Essary, 992 So. 2d at 12. Perhaps Burke made an error in judgment.

But because McCray cannot establish wantonness, his claim—as well as his request

for punitive damages—cannot proceed.

B.

Milan also contends that McCray cannot satisfy the elements of negligent

entrustment. See doc. 10-1 at 16–17. “The essential ingredients of a cause of action

for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with

knowledge that he is incompetent; (4) proximate cause; and (5) damages.” Prill v.

Marrone, 23 So. 3d 1, 8 (Ala. 2009) (quoting Halford v. Alamo Rent-A-Car, LLC,

921 So. 2d 409, 419 (Ala. 2005)). Milan asserts that McCray cannot demonstrate

Burke’s incompetence, doc. 10-1 at 16–17; and that regardless, McCray cannot show

Milan knew of Burke’s alleged incompetence, id. at 17–18. The court agrees.

1.

Milan contends that the evidence, even viewed in the light most favorable to

McCray, does not show that Burke was an incompetent driver. Under Alabama law,

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

inability) to properly drive a vehicle,” and a driver need not have a perfect or near-

perfect record to establish competence. See Halford, 921 So. 2d at 417.6 In this

case, the evidence demonstrates that although Burke had several citations for certain

inspection violations, he did not have a history of accidents involving personal

injuries. See docs. 10-8 (listing “[n]o accidents”); 10-13 (listing, for example,

violations for “[d]riving beyond 8 hour limit” and “[i]noperable head lamps”).

Burke also held a valid CDL at the time of the accident and received entry-level

driver training and passed a road test the year prior. See docs. 10-5; 10-11; 10-12.

On this evidence, McCray has not met his burden of establishing Burke’s

incompetence.

2.

Milan also argues that even if Burke was incompetent, Milan had no

knowledge of his incompetence. See doc. 10-1 at 17–18. To survive summary

6 Compare id. (holding that the suspension of a driver’s license after the driver failed to appear in

court for a “nonmoving” offense did not establish incompetence) and Pryor v. Brown & Root USA,

Inc., 674 So. 2d 45, 52 (Ala. 1995) (holding that the plaintiff failed to present substantial evidence

of incompetence even where the driver had two prior speeding tickets and a suspended prosecution

of a DUI charge over a 10-year period) with Mason v. New, 475 So. 2d 854, 856 (Ala. 1985)

(holding that evidence of a driver’s lack of a license and three-time failure of her driver’s test prior

to the accident, “although not conclusive, was probative of her possible inexperience and lack of

skill”) and Edwards v. Valentine, 926 So. 2d 315, 324 (Ala. 2005) (holding that where a driver

had “tr[ied] for two years” to reacquire his license, had three instances of driving under the

influence, and had a prior accident in which he “broadsided” someone, the trial court’s finding of

incompetency was not “palpably erroneous or manifestly unjust”).

judgment on his negligent entrustment claim, McCray must establish “that [Milan]

knew, or by the exercise of reasonable care, would have known that [Burke] was

incompetent.” Dunaway v. King, 510 So. 2d 543, 546 (Ala. 1987); Hobbs v. U.S.

Xpress, Inc., No. 7:18-cv-02129-LSC, 2021 WL 9133898, at *4 (N.D. Ala. Mar. 10,

2021).7 Viewed in the light most favorable to McCray, the evidence does not

demonstrate that Milan knew or should have known of Burke’s alleged

incompetence. For one, Milan screened Burke’s past employment, reviewed his

accident and violation histories, and ensured he held a valid CDL prior to hiring him.

See docs. 10-5; 10-8. In addition, Milan obtained Burke’s medical examiner’s

certificate and had him undergo entry-level driver training, a road test, and a drug

test in July 2017. See docs. 10-9; 10-10; 10-11; 10-12. On these facts, McCray

cannot meet his burden of establishing that Milan knew or should have known of

Burke’s purported incompetency. No reasonable juror could therefore find for

McCray on his negligent entrustment claim, and Milan’s motion is due to be granted

as to this claim.

7 In Day v. Williams, the Supreme Court of Alabama determined that there was no evidence the

defendant had reason to believe the entrustee was an incompetent driver. 670 So. 2d 914, 916

(Ala. 1995). The Court reasoned that the defendant’s testimony “demonstrate[d] that he was

unaware that [the entrustee] did not possess a driver’s license,” and that, even if the defendant had

been aware of this fact, “that alone would not [have] support[ed] a finding of negligent

entrustment, under the circumstances of this case.” Id. The Court noted that “[t]he record

indicate[d] that [the entrustee] was an experienced adult driver and had exhibited no indication

that he was an incompetent driver,” despite previous tickets for driving without a license and one

speeding citation. See id.

IV.

To close, Milan’s motion for partial summary judgment, doc. 10, is due to be

granted, and McCray’s wantonness or punitive damages and negligent entrustment

claims are due to be dismissed with prejudice. In addition, because McCray failed

to serve Burke, who is also a defendant, within 90 days of Milan’s removal, see doc.

10 at 2 n.1, and the period for discovery has expired, see doc. 6 at 1, Burke is due to

be dismissed unless McCray can show good cause for his failure. The court will

effectuate this opinion by separate order.

DONE the 11th day of January, 2022.

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

8 See 28 U.S.C. § 1448 (“In all cases removed from any State court to any district court of the

United States in which any one... of the defendants has not been served with process... □□□□

process or service may be completed or new process issued in the same manner as in cases

originally filed in such district court.”); FED. R. Civ. P. 4(m) (‘If a defendant is not served within

90 days after the complaint is filed, the court—on motion or on its own after notice to the

plaintiff—must dismiss the action without prejudice against that defendant or order that service be

made within a specified time. But if the plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period.”’).

10