# Fuller v. Payne

> District Court, N.D. Alabama · March 30, 2023

URL: https://www.frixlaw.com/law-library/cases/9991616

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991616

## How later opinions describe it (automated extraction)

- noting evidence employer knew employee was incompetent to drive was required to establish claim for negligent hiring, training, retention, supervision, or entrustment

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CHRISTOPHER DALE FULLER, }
}
Plaintiff, }
}
v. } Case No.: 2:22-cv-01400-RDP
}
STEVEN RAY PAYNE and CRANE }
TRANSPORT, INC., }
}
Defendants. }

MEMORANDUM OPINION
This matter is before the court on the Motion to Dismiss Plaintiff’s First Amended
Complaint in Part filed by Defendants Steven Ray Payne and Crane Transport, Inc. (“CTI”)
(together, “Defendants”). (Doc. # 9). The Motion has been fully briefed. (Docs. # 9, 11, 12). After
careful review, and for the reasons discussed below, Defendants’ Motion is due to be granted in
part and denied in part.
I. Background
Plaintiff Christopher Dale Fuller filed suit in state court against Defendant Payne, a truck
driver, and Defendant CTI, Payne’s employer, following a traffic accident. On November 2, 2022,
Defendants removed this case to this court. A month later, on December 2, 2022, Plaintiff filed an
Amended Complaint alleging (1) negligence and (2) wantonness against Defendant Payne; and (3)
negligent entrustment, (4) respondeat superior, and (5) negligent hiring, training, retention, and
supervision against Defendant CTI. (Doc. # 8).
The Amended Complaint alleges that, early on the morning of August 16, 2022, Plaintiff
Christopher Dale Fuller was operating a 2016 Ford F-250 Supercab pickup truck heading
southbound on I-459. (Doc. # 8 ¶ 6). At the same time, Defendant Payne was operating a tractor
trailer owned by his employer, CTI. (Id. ¶ 7). Payne allegedly fell asleep behind the wheel of his
tractor trailer and struck Plaintiff’s truck, pushing Plaintiff into another tractor trailer that was in
front of him. (Id. ¶ 8). As a result of the accident, Plaintiff suffered cervical, thoracic, lumbar, and
lower leg injuries - and significant pain resulting from each injury. (Id. ¶ 12).
In support of his wantonness claim, Plaintiff alleges that Payne drove while knowingly

fatigued (Id. ¶ 15(a)); ignored the premonitory symptoms of sleep (Id. ¶ 15(b)); exceeded one or
more of the hours-of-service regulations imposed by 49 C.F.R. § 395.1, et. seq. (Id. ¶ 15(c));
followed Plaintiff’s vehicle at a distance that he knew could likely or probably cause injury to
Plaintiff (Id. ¶ 15(d)); failed to keep a lookout (Id. ¶ 15(e)); traveled at a speed far beyond what
was reasonable and prudent under the conditions (Id. ¶ 15(f)); and failed to obey the rules of the
road (Id. ¶ 15(f)).
In support of the negligent entrustment claim, Plaintiff alleges that Payne suffered from
one or more health conditions which made him susceptible to fatigue and/or sudden bouts of
sleepiness (Id. ¶ 20(a)); exceeded one or more of the hours-of-service regulations imposed by 49

C.F.R. § 395.1, et. seq. on the date of the collision and/or on previous occasions (Id. ¶ 20(b)); did
not have proper training or experience operating the tractor trailer involved in the collision (Id. ¶
20(c)); and exhibited incompetence through previous acts of negligent or reckless driving, previous
collisions, and/or violations of rules of the road (Id. ¶ 20(d)).
In support of the negligent hiring, training, retention, and supervision claim, Plaintiff
alleges that CTI hired and retained Payne despite his suffering from one or more health conditions
which made him susceptible to fatigue and/or sudden bouts of sleepiness (Id. ¶ 26(a)); failed to
properly train Payne on one or more of the hours-of-service regulations imposed by 49 C.F.R. §
395.1, et. seq. (Id. ¶ 26(b)); failed to properly train Payne on safe operation of the tractor trailer he
was operating at the time of the collision (Id. ¶ 26(c)); failed to properly train Payne on the
Alabama Rules of the Road (Id. ¶ 26(d)); failed to properly train Payne on the Federal Motor
Carrier Safety Act (Id. ¶ 26(e)); failed to properly supervise Payne on his compliance with one or
more of the hours-of-service regulations imposed by 49 C.F.R. § 395.1, et. seq. on the date of the
collision and/or on previous occasions (Id. ¶ 26(f)); failed to properly supervise Payne on his

compliance with one or more of the regulations imposed by the Federal Motor Carrier Safety Act
on the date of the collision and/or on previous occasions (Id. ¶ 26(g)); hired and retained Payne
despite his lack of training or experience operating the tractor trailer involved in the collision (Id.
¶ 26(h)); and hired and retained Payne despite his exhibited incompetence through previous acts
of negligent or reckless driving, previous collisions, and/or violations of rules of the road (Id. ¶
26(i)).
II. Standard of Review
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the complaint must include enough facts “to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more
than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,
nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)
motion to dismiss, courts view the allegations in the complaint in the light most favorable to the
non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate
“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138
(11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).
That task is context specific and, to survive the motion, the allegations must permit the court based
on its “judicial experience and common sense . . . to infer more than the mere possibility of
misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as

true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S.
at 570.
Complaints that tender “‘naked assertion[s]’ devoid of ‘further factual enhancement’” will
not survive a motion to dismiss. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(alteration in original). Stated differently, the complaint must allege enough facts “to raise a
reasonable expectation that discovery will reveal evidence” supporting a claim. Twombly, 550 U.S.
at 556.
III. Discussion
In their Motion to Dismiss, Defendants seek to dismiss: (1) Count II, the wantonness claim
against Payne; (2) Count III, the negligent entrustment claim against CTI; (2) Count IV, the
vicarious liability claim against CTI to the extent it seeks to impose respondeat superior liability
based on wantonness; and (4) Count V, the negligent hiring, training, retention, and supervision

claim against CTI. (Doc. # 9). The court first addresses the wantonness claim, then turns to the
claims asserted against Defendant CTI.
1. Wantonness and Respondeat Superior Liability Based on Wantonness
In Alabama, wantonness is characterized by a “a reckless or conscious disregard of the
rights or safety of others.” Ala. Code § 6-11-20(b)(3) (1975). Alabama courts have interpreted
wantonness to require “acting with knowledge of danger, or with consciousness, that the doing or
not doing of some act will likely result in injury.” Ex parte Essary, 992 So. 2d 5, 9-10 (Ala. 2007)
(quoting Tolbert v. Tolbert, 903 So. 2d 103, 114-15 (Ala. 2004)). This does not require a “specific
design or intent to injure the plaintiff, only that the actor is ‘conscious’ that injury will likely or

probably result from his actions.” Essary, 992 So. 2d at 9. While claims of wantonness frequently
arise alongside claims of negligence, “[w]antonness is not merely a higher degree of culpability
than negligence.” Id. (quoting Tolbert, 903 So. 2d at 114-15). Rather, “[n]egligence and
wantonness … are qualitatively different tort concepts of actionable culpability.” Id.
Defendants argue that Plaintiff has not properly alleged wantonness because his claims are
“built only upon conclusory allegations.” (Doc. # 9 at 7). Defendants cite Welch v. Time Well Spent
for the proposition that “a complaint must include factual allegations that a driver ‘continued to
drive after he became aware he was sleepy tired, or fatigued’ … to state a claim for wantonness in
the context of falling asleep at the wheel.” 2016 WL 5462716 (N.D. Ala. Sept. 29, 2016).
Defendants further contend that Plaintiff’s allegations that Defendant Payne “ignore[ed] the
premonitory symptoms of sleep” and “dr[ove] while knowingly fatigued” are “unsubstantiated,
conclusory allegations” and little more than an attempt “to meet the facial plausibility standard by
parroting the words from Welch in his amended complaint.” (Doc. # 9 at 7).
Plaintiff counters that “determining defendants’ knowledge and consciousness … may rest

on reasonable inferences drawn from the circumstances.” (Doc. # 11 at 3) (quoting Griffin v.
Modular Transp. Co., No. 21-cv-2378, 2014 WL 896627, at *2 (N.D. Ala. March 6, 2014)). In
support of his wantonness claim, Plaintiff cites to a number of factual allegations made in his
amended complaint including these: Payne (1) drove while knowingly fatigued, (2) ignored the
“premonitory symptoms of sleep,” (3) failed to follow hours-of-service regulations, (4) trailed
Plaintiff’s vehicle at a distance he knew could cause injury to Plaintiff, and (5) drove at a speed
well in excess of what was reasonable or prudent. (Doc. # 11 at 4) (citing Doc. # 8 ¶ 15). Plaintiff
suggests that reasonable inferences may be drawn from these allegations to support a wantonness
claim.

Defendants’ reliance here on Welch is misplaced. That decision is not analogous. The court
in Welch held that the complaint “contain[ed] no allegation that [the defendant] continued to drive
after he became aware that he was sleepy, tired or fatigued.” Welch, 2016 WL 5462716, at *5.
Defendants do not argue that Plaintiff has completely failed to allege facts supporting a wantonness
claim. Rather, they contend that Plaintiff’s allegations amount to nothing more than “formulaic
recitation[s] of the elements of a cause of action.” Twombly, 550 U.S. at 555. The question is not
whether Plaintiff has alleged no facts supporting a wantonness claim, but whether Plaintiff’s
factual allegations are sufficient to survive a motion to dismiss on a wantonness claim. After
review, the court concludes that they are.
Of course, Defendants are correct that on a motion to dismiss, “courts are not bound to
accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)). But, Plaintiff’s allegations go further than mere legal conclusions.
Plaintiff alleges that Payne wantonly operated his vehicle unsafely in a manner that he knew would
likely or probably cause injury to Plaintiff by (1) driving while knowingly fatigued; (2) ignoring

the premonitory symptoms of sleep; (3) exceeded one or more of the hours-of-service regulations;
(4) following Plaintiff too closely; (5) failing to keep a lookout for a time or to a degree that would
likely cause harm Plaintiff; and (6) travelling at a speed “far beyond what was reasonable and
prudent under the conditions.” (Doc. # 8 ¶ 15).
The allegations in Count II of the Complaint are sufficient to survive a motion to dismiss.
Plaintiff alleges that Payne consciously put him in danger, and he explains the six ways he contends
that happened. (Doc. # 8 ¶ 15). Conversely, in Welch, the plaintiff did not even attempt to meet
the bare minimum standard for pleading why there was consciousness that any action was likely
to cause injury. So, Welch is fundamentally different from this case. Here, Plaintiff clearly has

alleged facts that meet the standard for pleading wantonness. Compare Doc. # 8 ¶ 15 with Welch,
Case No. 2:13-cv-1169-SLB, Doc. # 1).
As to the Respondeat Superior claim against CTI based on Payne’s alleged wantonness,
Alabama law provides two mechanisms by which an employer can be liable for its employee’s
acts:
[An] employer is vicariously liable for acts of its employee that were done for the
employer's benefit, i.e., acts done in the line and scope of employment or ... done
for the furtherance of the employer’s interest. The employer is directly liable for its
own conduct if it authorizes or participates in the employees acts or ratifies the
employee’s conduct after it learns of the action.
Machen v. Childersburg Bancorporation, Inc., 761 So. 2d 981, 984–85 (Ala. 1999); Potts v. BE &
K Const. Co., 604 So. 2d 398, 400 (Ala. 1992). Plaintiff has alleged that “[a]t all times relevant to
this case, and when the accident at issue occurred, Defendant Payne was an agent, servant, or
employee of Defendant CTI and was acting within the line and scope of said agency, service, or
employment on the occasion made the basis of this lawsuit.” (Doc. # 8 at ¶ 23). Allegations that
Payne was acting in the scope of his employment with CTI when the accident occurred are
sufficient to state a claim against CTI for vicarious liability for Payne’s alleged wantonness.

Because Plaintiff has alleged sufficient facts from which wantonness and vicarious liability
may be inferred, Defendants’ Motion to Dismiss (Doc. # 9) is due to be denied in part as to Counts
II and IV of Plaintiff’s Amended Complaint.1
2. Negligent Entrustment, and Negligent Hiring, Training, Retention, and
Supervision
Under Alabama law, the torts of negligent entrustment and negligent hiring, training,
retention, and supervision all require a plaintiff to show an employer knew or should have known
its employee was incompetent. See Buckentin v. SunTrust Mortg. Corp., 928 F. Supp. 2d 1273,
1288 (N.D. Ala. 2013) (negligent hiring, supervision, and entrustment); Britt v. USA Truck, Inc.,
2007 WL 4554027, *4 (M.D. Ala.2007) (negligent entrustment, hiring, supervision, and retention);
Armstrong Bus. Servs. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001) (negligent supervision);
Big B, Inc. v. Cottingham, 634 So. 2d 999, 1002-03 (Ala. 1993) (negligent training and
supervision), abrogation on other grounds recognized by Horton Homes, Inc. v. Brooks, 832 So.
2d 44 (Ala. 2001); Bruck v. Jim Walter Corp., 470 So. 2d 1141, 1144 (Ala. 1985) (negligent
entrustment); Brown v. Vanity Fair Mills, Inc., 277 So. 2d 893, 895 (Ala. 1973) (negligent hiring

and entrustment). The question here is whether Plaintiff has alleged facts that, if true, would show

1 Defendants do not address Plaintiff’s wantonness claim against Crane Transport on a vicarious liability
theory separately. Rather, they contend that because Plaintiff failed to state a claim for wantonness against Defendant
Payne, Crane Transport cannot be held vicariously liable for such a claim. Because the court has determined that the
wantonness claim against Payne survives Defendants’ motion to dismiss, the court independently addresses why the
claim against CTI survives as well.
(1) Payne was incompetent to drive a commercial vehicle and (2) CTI knew or should have known
of Payne’s incompetence. See McCutchen v. Valley Home, Inc., 100 F. Supp. 3d 1235, 1241-42
(N.D. Ala. 2015) (noting evidence employer knew employee was incompetent to drive was
required to establish claim for negligent hiring, training, retention, supervision, or entrustment).
A driver is incompetent if he is “unable or unlikely to [ ] operate[ ] [a] motor vehicle with

reasonable safety due to one of several characteristics or conditions, including general
incompetence or habitual negligence.” Edwards v. Valentine, 926 So. 2d 315, 322 (Ala. 2005)
(internal quotation marks omitted) (discussing incompetence in context of negligent entrustment
claim). “More specifically, proof may be established by evidence of previous acts of negligent or
reckless driving, previous accidents, or previous acts of driving while intoxicated.” Id. (cleaned
up); see also Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 413-14 (Ala. 2005) (“[T]he
incompetence of a driver is measured by the driver’s demonstrated ability (or inability) to properly
drive a vehicle.”) (discussing incompetence in context of negligent entrustment claim).
In Pryor v. Brown & Root USA, the Alabama Supreme Court held an employee’s driving

record, which included an arrest for driving under the influence ten years prior to the accident at
issue, was insufficient to demonstrate the employee’s incompetence as a driver or support a
negligent entrustment claim against an employer. 674 So. 2d 45, 51-52 (Ala. 1995); see also
Thompson v. Havard, 235 So. 2d 853, 857 (Ala. 1970) (favorably quoting Broesche v. Bullock,
427 S.W. 2d 89, 93 (Tex. Civ. App. 1968), which noted “‘proof of only one previous traffic
violation is grossly inadequate to establish incompetency’” for purposes of negligent entrustment
claim).
The allegations in Plaintiff’s Amended Complaint regarding Payne’s alleged incompetence
and regarding CTI’s alleged knowledge of that incompetence are wholly conclusory. There are no
specific factual allegations regarding the hours worked by Payne prior to the accident; any prior
accidents or negligence; Payne’s alleged “health condition;” the alleged failures in training; or the
alleged failures in supervision. (Doc. # 8 at 4] 17-20, 26). These “naked assertion[s] devoid of
further factual enhancement” will not survive a motion to dismiss. Igbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557) (internal quotations omitted).
Because Plaintiff has not alleged sufficient facts to support the conclusory allegations of
his negligent entrustment, and negligent hiring, training, retention, and supervision claims,
Defendants’ Motion to Dismiss (Doc. # 9) is due to be granted in part as to Counts III and V of
Plaintiff's Amended Complaint.
IV. Conclusion
For the reasons outlined above, Defendants’ Motion to Dismiss (Doc. # 9) is due to be
granted in part and denied in part. A separate order will be entered.
DONE and ORDERED this March 30, 2023.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991616. Public record. Not legal advice.