# Sherwood v. United Parcel Service Co Inc

> District Court, N.D. Alabama · September 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9991808

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** September 7, 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/9991808

## How later opinions describe it (automated extraction)

- observing that a district court “cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KRISTEN SHERWOOD, )
)
Plaintiff, )
)
v. ) Civil Action No. 5:22-cv-499-CLS
)
UNITED PARCEL SERVICE, )
CO., INC., and )
USAA CASUALTY )
INSURANCE CO., )
)
Defendants. )
MEMORANDUM OPINION
Plaintiff, Kristen Sherwood, sustained serious injuries on May 22, 2020, when
the vehicle she was driving westbound on Governors Drive in Huntsville, Alabama,
left the road and crashed, near the intersection of Monte Sano Boulevard. She alleges
that the accident occurred when she was forced to swerve, to avoid colliding with a
vehicle which, she believes, to have been driven by an employee of defendant United
Parcel Service Co., Inc. (“UPS”). Plaintiff originally filed this action in the Circuit
Court of Madison County, Alabama, on March 23, 2022.1 Her complaint against UPS
asserts claims of negligence, wantonness, negligent and wanton entrustment, and
negligent and wanton hiring, training, retention, and supervision. Defendant UPS
1 Doc. no. 1-1 (State Court Complaint).
timely removed the action to this court, with the consent of co-defendant USAA
Casualty Insurance Co., on April 20, 2022, based upon the court’s diversity

jurisdiction.2
UPS filed a motion for summary judgment on June 12, 2023.3 Plaintiff, who
is represented by counsel, was ordered to respond to the motion no later than July 3,

2023, but she failed to do so. Instead, on Saturday, August 5, 2023 — more than a
month late — she filed a motion to voluntarily dismiss the action under Federal Rule
of Civil Procedure 41(a)(2), which allows dismissal on “terms that the court considers

proper.”4 Further, “[u]nless the [court’s] order states otherwise, a dismissal under
2 Doc. no. 1 (Notice of Removal).
3 Doc. no. 27.
4 Federal Rule of Civil Procedure 41(a) provides for the voluntary dismissal of actions in the
following circumstances:
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and
any applicable federal statute, the plaintiff may dismiss an action without a court
order by filing:
(i) a notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is
without prejudice. But if the plaintiff previously dismissed any federal- or state-court
action based on or including the same claim, a notice of dismissal operates as an
adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be
2
[Rule 41(a)(2)] is without prejudice.” Id. (alterations supplied).
Plaintiff cites Eleventh Circuit precedent stating that a court ordinarily should

grant such a motion, unless the defendant shows “clear legal prejudice.” Pontenberg
v. Boston Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001). The Eleventh
Circuit directs the district court to “weigh the relevant equities and do justice between

the parties in each case, imposing such costs and attaching such conditions to the
dismissal as are deemed appropriate.” McCants v. Ford Motor Co., 781 F.2d 855,
857 (11th Cir. 1986).

Neither the fact that the litigation has proceeded to the summary
judgment stage nor the fact that the plaintiff’s attorney has been
negligent in prosecuting the case, alone or together, conclusively or per
se establishes plain legal prejudice requiring the denial of a motion to
dismiss.
Pontenburg, 252 F.3d at 1256 (citing Durham v. Florida East Coast Railway Co.,
385 F.2d 366 (5th Cir. 1967)). When considering the motion, protection of the
defendant’s interest is paramount — i.e., whether the defendant would lose any
substantial right by dismissal. Fisher v. Puerto Rico Marine Management, Inc., 940
F.2d 1502, 1503 (11th Cir. 1991); Durham, 385 F.2d at 368.

dismissed at the plaintiff’s request only by court order, on terms that the court
considers proper. If a defendant has pleaded a counterclaim before being served with
the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s
objection only if the counterclaim can remain pending for independent adjudication.
Unless the order states otherwise, a dismissal under this paragraph (2) is without
prejudice.
3
This court ordered defendants to respond to plaintiff’s motion to dismiss her
claims.5 Defendant USAA Casualty Insurance Co. responded that it had no objection

to dismissal without prejudice.6 The response of UPS, however, contained the
following statement:
Counsel for Plaintiff has informed Counsel for UPS that she agrees there
is no evidence indicating UPS caused the accident at issue. As a result,
Plaintiff’s Counsel has indicated she would consent to UPS’s Motion for
Summary Judgment and UPS’s dismissal with prejudice.

Doc. no. 34. The court ordered plaintiff to reply to those statements no later than
August 28, 2023.7 Once again, plaintiff failed to do so.
UPS filed a “Supplement to its Response to the Plaintiff’s Motion to Dismiss”
on August 31, 2023, stating:
Attached to UPS’s supplemented responses [sic] is an exhibit of an
email between Defense Counsel and Plaintiff’s Counsel which
demonstrates Plaintiff’s consent to UPS’s Motion for Summary
Judgment. In the email, Defense Counsel asks Plaintiff’s Counsel “[c]an
you confirm that the Plaintiff is willing to consent to the entry of
summary judgment on behalf of UPS?” Defense counsel makes clear he
intends to use Plaintiff’s Counsel’s response as an exhibit in a
supplemental motion. In response, Plaintiff’s counsel stated that
Plaintiff consented to the entry of summary judgment.
Doc. no. 37.
5 Doc. no. 33.
6 Doc. no. 35.
7 Doc. no. 36.
4
In view of Eleventh Circuit precedent, it seems the motion for voluntary
dismissal should be granted. Even so, plaintiff’s failure to respond to the motion for

summary judgment and her delay in filing the motion for voluntary dismissal,
combined with the second failure of plaintiff’s counsel to comply with the court’s
order to reply to the response of UPS, is troubling.

Nevertheless, the court will address the merits of the summary judgment
motion. See United States v. One Piece of Real Property, 363 F.3d 1099, 1101 (11th
Cir. 2004) (observing that a district court “cannot base the entry of summary

judgment on the mere fact that the motion was unopposed, but, rather, must consider
the merits of the motion”).
I. SUMMARY JUDGMENT STANDARDS

Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment 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(a). In

other words, summary judgment is proper “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).

“In making this determination, the court must review all evidence and make all
5
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.

City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-
moving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but

is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”). “A mere ‘scintilla’ of evidence supporting the [nonmoving] party’s
position will not suffice; there must be a showing that the jury could reasonably find

for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). “Where the
record taken as a whole could not lead a rational trier of fact to find for the non-

6
moving party, there is no genuine issue for trial.” Matsushita Electric Industrial
Company v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. FACTUAL BACKGROUND
Plaintiff departed her home in Guntersville, Alabama, around 6:00 p.m. on
Friday, May 22, 2020. She was traveling to the Huntsville home of a friend named

“Arlana,” to have dinner and study with fellow students of the Birmingham School
of Law.8 She planned to arrive at Arlana’s house by 6:30 p.m.9 After stopping at the
traffic light controlling the intersection of Monte Sano Boulevard with Governors

Drive, the following events — as described during plaintiff’s deposition — occurred:
We were coming down the hill, and there was — I was in the left lane.
There was a blue truck in the right [lane], and then behind [me] —
between me and the blue truck was [a] UPS [brown truck]. And then the
blue truck and UPS [truck] were just — were kind of pushing each
other, and then UPS was trying to come over in the left lane. And I
don’t think that he saw me because I remember I avoided him.
Q: Avoided who?
A: I avoided the UPS, the brown truck. And then I remember like
avoiding — like there’s this grass in between the — it’s four
lanes and there is a median of grass in the middle. And I
remember I swerved a little bit toward the left. I avoided the —
them trying to come over. And then it happened a second time.
Q: What did?
8 Doc. no. 27-5 (Plaintiff’s dep.), at 32-33, 45.
9 Id. at 33.
7
A: The UPS [truck] tried to come over again.
Q: Okay.

A: And I avoided that. So I was trying to swerve out of — like not
— I didn’t want him to hit me. And so then on — on the third try,
I don’t remember anything after that.
Q: You don’t remember anything after what?
A: I remember there was the two incidents of me trying to swerve out
of the way and then I don’t remember anything after the second
time or third time. So I — I avoided the van, or the UPS [truck]
one time, I avoided him another time. On the third time, I wasn’t
able to avoid the truck. And I don’t remember anything after that.
Doc. no. 27-5 (Plaintiff dep.), at 35-36 (alterations supplied).
Three individuals called the 911 emergency number to report the accident.10
A Huntsville City police officer and a Huntsville Emergency Services ambulance
were dispatched to the scene. According to the Alabama Uniform Traffic Crash
Report prepared by Huntsville City Police Officer Bobby J. Lane, plaintiff’s vehicle
was involved in a single vehicle accident. It appeared that the driver lost
control of the vehicle and ran off the road to the right sticking [sic] the
rock embankment. After she had struck the embankment the vehicle
then re-entered the roadway flipping over what appeared to be multiple
times. The vehicle was stopped in the grass median. A white female
was located in number 1 lane in oncoming traffic after being ejected
10 Doc. no. 27-4 (Records of the Madison County Communications District), at ECF 2.
NOTE: “ECF” is an acronym formed from the initial letters of the name of a filing system that allows
parties to file and serve documents electronically (i.e., “Electronic Case Filing”). When the court
cites to pagination generated by the ECF header, it will, as here, precede the page number(s) with
the letters “ECF.”
8
from the vehicle. The occupant was transported to Huntsville Hospital
where she was treated for her injuries.
Doc. no. 27-3, at ECF 3. The report indicates that the police were notified of the
accident at “2129 MT [Military Time]” — i.e., 9:29 p.m. According to the report,

the police officer arrived two minutes later, at 9:31 p.m. (or “2131 MT”), and the
Emergency Medical Services ambulance arrived at 9:35 p.m. (or “2135 MT”).
Records maintained by the Madison County Communications District indicate that

the 911 calls reporting the accident were received at 9:26 and 9:27 p.m. (“21:26:51,”
“21:26:59,” and “21:27:20” MT).11
Plaintiff sustained multiple injuries in the accident, including facial lacerations,

fractures of her C5 and C6 vertebrae and eye socket, nerve damage, and left arm
paralysis (which required the placement of pins in her left hand).12
Despite the times recorded in the police report and in the 911 records, plaintiff

testified that the accident occurred nearly three hours earlier. Specifically, she stated
that she left her home in Guntersville at 6:00 p.m., and that the accident occurred
while she was en route to her friend’s home in Huntsville. She testified that the drive
to her friend’s home took 35 to 40 minutes. She was unable to account for the three-

hour difference in the time that she maintains the accident occurred and the recorded

11 Doc. no. 27-3, at ECF 3.
12 Doc. no. 27-5 (Plaintiff’s dep.), at 53-54.
9
time of the 911 calls and the arrival at the accident scene of the police officer and
emergency medical services ambulance.13

Further, UPS maintains that none of its employees or vehicles were at or near
the location of the accident at the time recorded in the police report. UPS identified
three employees who were making deliveries at that time: Travis Toone; Vernon

Parrish; and, Michael Day. In support of its motion for summary judgment, UPS
submitted timecards and delivery data relating to those employees, but that
information is largely indecipherable as presented.14

Even so, UPS provided the same data and other information to its expert,
Kristina Lombardi, a Research Engineer/Crash Reconstructionist employed by
Mecanica Scientific Services Corporation.15 Ms. Lombardi’s report indicates that she

reviewed and analyzed the following documents: records maintained by the Madison
County Communications District of 911 calls made at the time of the accident;
Alabama Uniform Traffic Crash Report Number 0648749; plaintiff’s complaint;

13 Id. at 45-47.
14 For example, document number 27-9, which is represented to be the timecards for those
three employees, consists of 39 pages of illegible charts, none of which list the names of employees,
or the times that each worked. UPS did not provide an explanation of the data. Likewise, document
numbers 27-12 through 27-14 purport to be records of the “delivery routes” of the three employees,
but consist of 44 pages of parts of a spreadsheet that are not presented in a comprehensive, or
comprehensible, format. As such, the court is unable to discern from that data the employees’
activities on the date of the accident.
15 Doc. no. 27-15 (Preliminary Analysis Report).
10
internal hours of service and delivery records provided by UPS; plaintiff’s responses
to the interrogatories and requests for production; “C-CURE 9000 SWH06 – Door

Access Report (Admit or Reject) [Entry report into Huntsville International Airport]”;
and, the transcript of plaintiff’s deposition. Ms. Lombardi “[p]arsed and organized
tabular data files (Microsoft Excel and CSV formats)” from the delivery data

provided by UPS, and also researched Google Earth Pro, Google Maps, and “Google
Earth Pro KMZ file,” as well as specifications for plaintiff’s vehicle, a 2006 BMW
325 XI.16

Based upon her analysis of all of the foregoing data, Ms. Lombardi concluded
that UPS Driver No. 1 made his last stop very close to 9:26 p.m. (i.e., from 21:26:56
to 21:26:57 MT); the last stop was located four to seven miles from the crash scene,

with a travel time of approximately eleven to thirteen minutes from the last stop to the
crash scene; the first 911 call was recorded at 9:26 p.m. (21:26:51 MT), eliminating
the possibility that Driver No. 1 was at the scene of the wreck at the time of the crash;
and the travel time from the last stop to the UPS facility was consistent with the

driver’s “clock out” time of 9:43 p.m. (21:43:48 MT).
The data showed that UPS Driver No. 2, operating as an air delivery and
“feeder” driver, was admitted into Huntsville International Airport close to 9:06 p.m.

16 Id. at 3.
11
(i.e., at 21:05:50 MT), approximately 23 minutes before the recorded time of
plaintiff’s crash. She concluded that it was not

reasonably likely that Driver 2 would have had time to arrive at the
airport at 21:05:50, complete his duties, travel eastbound beyond the
incident location, and then turn around to travel westbound in sufficient
enough time before the crash occurred (recall that the earliest 911 call
log occurred at 21:26:51).
Doc. no. 27-15 (Preliminary Analysis Report), at 6.
With respect to UPS Driver No. 3, Ms. Lombardi determined that:
• Driver 3’s last stop took place [around 9:57 p.m. (i.e.,] from
20:57:14 - 20:57:52 [MT])
• It would take approximately 11 minutes for the route from Driver
3’s last stop to the incident location about 5 to 6 miles away,
putting the driver there at approximately 21:09:00 (the earliest
911 call log occurred at 21:26:51)
• It would take approximately 13 to 16 minutes for the route from
the incident location to the UPS Customer Care Center in
Huntsville, AL about 8 to 9 miles away
• Driver 3’s clock out time was at 21:22:12 (21.37 hrs as indicated
on UPS0027), which is about 4 minutes prior to the earliest 911
call log
• It would take approximately 11 to 15 minutes for the route from
Driver 3’s last stop to the UPS Customer Center in Huntsville, AL
about 7 to 8 miles away
• The travel time for the route from Driver 3’s last stop to the UPS
Customer Care Center is consistent with the driver’s clock out
time. The travel time for the route from Driver 3’s last stop, to
12
the crash location and then to the UPS Customer Center is not
consistent with the time of the earliest 911 call log
• Due to the locations and times of Driver 3’s last stop and clock
out information, as well as the crash time, he could not have been
at the incident location during the time of the crash.
Id. at 6-7. Based upon all of the foregoing data, Ms. Lombardi summarized her
conclusions as follows:
During the reported time of the collision and time leading up to
the collision, there were a total of three UPS Delivery vehicles on the
roadway in the city of Huntsville, AL. Drivers 1 and 3 could not have
been at the BMW crash location when the incident took place. Driver
2 was not reasonably likely at the BMW crash location at the time of the
crash. The only way Driver 2 was at the incident location would be if
he checked in at the airport, left immediately, drove straight to the area
of the incident, traveled eastbound past the collision area, made a U-
Turn and traveled westbound to the incident location.
Id. at 7.
II. DISCUSSION
A. Negligence
Under Alabama law, “[i]t is well settled that in every action grounded upon
negligence, there are three essential elements to a right of recovery. First, a duty
owed by the defendant to the plaintiff; second, a breach of that duty; and third, an
injury proximately caused by the breach.” Quillen v. Quillen, 388 So. 2d 985, 988
(Ala. 1980). UPS contends that plaintiff’s claim must fail because she cannot show

13
that UPS breached a duty of care, or that the actions of UPS were the actual or
proximate cause of her injuries. This is so, UPS argues, because there was no UPS

vehicle at the scene of the accident.
UPS presented the evidence described above in support of its motion for
summary judgment. Plaintiff failed to respond to the motion, thereby triggering

Federal Rule of Civil Procedure 56(e), which provides: “If a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of
fact,” summary judgment is appropriate if the facts show “the movant is entitled to

it.” Fed. R. Civ. P. 56(e)(3).
UPS supported its motion with unrebutted, objective evidence that no UPS
vehicles were located near the accident site at the time of the incident. The only

evidence that supports plaintiff’s allegation that a UPS driver forced her off the road
is her deposition testimony. She testified, however, that the accident occurred several
hours earlier than the time recorded in the Alabama Uniform Traffic Crash Report and
in the records of the 911 calls reporting the accident. When confronted with this

discrepancy, plaintiff had no explanation. Plaintiff’s deposition testimony amounts
only to a “scintilla” of evidence, and cannot overcome the motion for summary
judgment.17

17 In making this finding, the court does not make a credibility determination, but, rather,
finds that on the record as a whole, plaintiff’s negligence claim cannot survive summary judgment.
14
B. Wantonness
The Alabama Code defines wantonness as “[c]onduct which is carried on with

a reckless or conscious disregard of the rights and safety of others.” Ala. Code § 6-
11-20(b)(3). The Alabama Supreme Court has explained that “wantonness” is 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 (Ala. 2007)
(citing Bozeman v. Central Bank of the South, 646 So. 2d 601 (Ala. 1994)).

Plaintiff’s wantonness claim must fail for the same reasons stated above — i.e.,
that, her deposition testimony alone constitutes a “mere scintilla” of evidence, and is
insufficient, in view of the unrebutted, objective evidence of record, to support a

denial of summary judgment.
C. Remaining Claims — Negligent/Wanton Entrustment, and Negligent and
Wanton Hiring, Training, and Supervision
Likewise, neither of the remaining claims survives summary judgment. Under
Alabama law, those torts
have common elements. Namely, to prove a claim under Alabama law
for either negligent/wanton entrustment, negligent hiring, negligent
supervision or negligent retention, a plaintiff must demonstrate that the
employer knew, or in the exercise of ordinary care should have known
that its employee was incompetent.
15
Britt v. USA Truck, Inc., Civil Action No. 2:06cv868-ID(WO), 2007 WL 4554027,
at *4 (M.D. Ala. Dec. 20, 2007) (citing Armstrong Business Services v. AmSouth
Bank, 817 So. 2d 665, 682 (Ala. 2001) (negligent supervision); Bruck v. Jim Walter
Corp., 470 So. 2d 1141, 1144 (Ala. 1985) (negligent/wanton entrustment); Brown v.
Vanity Fair Mills, Inc., 277 So. 2d 893, 895 (Ala. 1973) (negligent retention);
Sanders v. Shoe Show, Inc., 778 So. 2d 820, 824 (Ala. Civ. App. 2000) (negligent
hiring)).
Here, because plaintiff failed to identify an employee of UPS who allegedly
caused the accident, and, accordingly, failed to demonstrate that any such employee
was known by UPS to be incompetent, these claims are due to be dismissed.
HI. CONCLUSION
For all of the foregoing reasons, the motion of UPS for summary judgment is
due to be granted. A Final Judgment consistent with this memorandum opinion will
be entered contemporaneously herewith.
DONE this 7th day of September, 2023.
Yosod kal

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991808. Public record. Not legal advice.