Driskell v. Kenny Enters., LLC
United States District Court for the Southern District of Alabama, Northern Division
May 21, 2018, Decided; May 21, 2018, Filed
CIVIL ACTION NO. 2:17-00080-KD-B

Reporter
2018 U.S. Dist. LEXIS 85743 *
DEBRA HUNGATE DRISKELL and MENZO DRISKELL, Plaintiffs, vs. KENNY ENTERPRISES, LLC and DANIEL DAIRELL ZEIGLER, Defendants.

ORDER
This action is before the Court on the motion for partial summary judgment and supporting documents filed by Defendants Kenny Enterprises, LLC and Daniel Dairell Zeigler, the response filed by Plaintiffs Debra Hungate Driskell and Menzo Driskell, and Defendants’ reply (docs. 79, 84, 87). Upon consideration, and for the reasons set forth herein, the motion for partial summary judgment is GRANTED. Accordingly, summary judgment is entered in favor of Defendants as to the Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action. The First, Second and Ninth Causes of Action remain for trial.
I. Factual and procedural background1
This action arises from a motor vehicle accident which occurred at the intersection of Highland Avenue and Marie Foster Street in Selma, Alabama [*2] at 5:24 a.m. on July 24, 2016. Debra Hungate Driskell was the driver of a Chevrolet Silverado. Defendant Zeigler was the driver of a Peterbilt tractor to which a van type trailer was attached. The tractor and trailer were owned by An Ngoc Tran2 and leased to Defendant Kenny Enterprises, LLC.
Plaintiff Debra Driskell was stopped at a red light at the intersection. The vehicle Defendant Zeigler was driving hit the rear of Plaintiff’s vehicle. Plaintiffs assert that Zeigler either fell asleep or was distracted by his cell phone while using the GPS.
Zeigler obtained his commercial driver’s license in 2012. Zeigler underwent preemployment drug and alcohol screening that was negative for drugs or alcohol prior to going to work for Kenny Enterprises as an independent contractor in April 2016. He was working in that capacity on the date of the accident.
The Records of the Georgia Department of Drivers Services show that Zeigler had a properly issued and valid commercial driver’s license and medical certificate. He had only one traffic offense occurring in Tennessee on March 4, 2013. While working for Kenny Enterprises, Zeigler was involved in one minor accident involving property damage in a parking [*3] lot on June 15, 2016 and received one warning citation.
Zeigler testified that on the day of the accident, he inspected the tractor and trailer before beginning his trip. He found the equipment was in proper working order. There were no defects or insufficiencies in either the tractor or the trailer at the time accident.
Khanh Phuoc (Kenny) Nguyen was the owner of Kenny Enterprises. He testified that the company did not have a safety director, did not provide any safety training for its drivers, and did not have a program in place to insure compliance with the Federal Motor Carrier Safety Regulations. When hiring drivers, the company relied upon its insurance company’s background investigations instead of conducting the federally mandated background checks. The company is no longer in business.
II. Conclusions of Law
A. Standard of Review
“The 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) (Dec. 2010). Defendants, as the parties seeking summary judgment bear “the initial burden to show the district court, by reference to materials on file, that there are no genuine [*4] issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)). In deciding whether the Defendants have met their initial burden, the Court must review the record and draw all reasonable inferences therefrom in a light most favorable to Plaintiffs, as the non-moving parties. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999).
Once the Defendants meet this responsibility, the burden shifts to Plaintiffs, as the nonmovant, to show the existence of a genuine issue of material fact that would preclude summary judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “In reviewing whether the [non-movant has met the] burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ((bracketed text added). However, the [*5] Defendants would be entitled to summary judgment if Plaintiffs fail “to make a sufficient showing on an essential element of [their] case with respect to which [they have] the burden of proof.'” In re Walker, 48 F. 3d 1161, 1163 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552) (bracketed text added). Overall, the Court must “resolve all issues of material fact in favor of the [Plaintiffs], and then determine the legal question of whether [Defendants are] entitled to judgment as a matter of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)) (bracketed text added).
However, the mere existence of any factual dispute will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).
B. Analysis
1. The Third, Fourth, Seventh, and Eighth Causes of Action
Plaintiffs concede that Defendants have demonstrated entitlement to summary judgment as to these four Causes of Action (doc. 84, p. 13). Accordingly, [*6] summary judgment is GRANTED in favor of Defendants as to the Third, Fourth, Seventh and Eighth Causes of Action.
2. The Fifth and Sixth Causes of Action
On motion for summary judgment, Defendants argues that the Fifth and Sixth Causes of Action contain allegations of negligent or wanton, hiring, training, supervision and retention of Zeigler. Defendants argues that in order to support these causes of action, Plaintiffs must show that Kenny Enterprises knew that Zeigler was an incompetent driver, or upon the exercise of due and proper diligence (ordinary care), could have found out that Zeigler was an incompetent driver (doc. 79, p. 9-10). Defendants argues that since there was no evidence that Zeigler was incompetent, summary judgment should be granted in their favor.
In response, Plaintiffs concede that Defendants have demonstrated entitlement to summary judgment as to the allegations in subparagraphs (a) through (e) in the Fifth and Sixth Causes of Action (doc. 84, p. 13). Accordingly, summary judgment is GRANTED in favor of Defendants as to those allegations.
However, Plaintiffs argue that subparagraphs (f) through (j) do not raise these allegations. Instead, these subparagraphs are [*7] “claims of negligence or wantonness against Kenny Enterprises” for failure to meet the standard of care for a motor carrier (doc. 84, p. 10, 14). Specifically, the “complete failure to take any steps to run a safe trucking company.” (Id., p. 10).3 Plaintiffs argue this failure was a contributing cause of the accident and that Kenny Enterprises is liable to Plaintiffs (Id.).
Subparagraph (f) through (j) set forth as follows:
(f) negligently /wantonly failing to establish and enforce adequate rules, regulations, policies and procedures to ensure the safe operation of vehicles;
(g) negligently /wantonly failing to institute an adequate safety program for all drivers of commercial motor vehicles utilized by these Defendants;
(h) negligently / wantonly failing to institute a training program for all drivers of commercial motor vehicles utilized by these Defendants;
(i) negligently / wantonly failing to put in place a preventative accident program for all drivers of commercial motor vehicles utilized by these Defendants;
(j) negligently / wantonly failing to train, educate and/or instruct Daniel Dairell Zeigler and/or Defendants 1-10; 81-90 regarding Federal Motor Carrier Safety Administration regulations [*8] and/or other applicable rules, regulations and standards and negligently / wantonly failing to require these Defendants to adhere to these regulations and standards.
(Doc. 49, p. 12, 14).
Plaintiffs argue that these subparagraphs allege direct actions against Kenny Enterprises for negligently and wantonly breaching the standard of care of a motor carrier operator, i.e., “failure to institute a safety program and to enforce the Federal Motor Carrier Safety Regulations”, and that this breach was a “contributing cause” of the accident (doc. 84, p. 10, 14). They argue that Defendants ignored these allegations in their motion for summary judgment, and therefore did not show the absence of a genuine issue of material fact as to whether Kenny Enterprises was negligent or wanton for failing to meet the standard of care, and summary judgment should be denied (doc. 84, p. 10-11. 13-14).
Defendants reply with two arguments. First, they argue that a plain reading shows that subparagraphs (f) through (j) allege negligent or wanton hiring, training, supervision, and retention of Zeigler even though those words may not have been used in each subparagraph. They argue that to survive summary judgment [*9] as to these allegations, as with the allegations in subparagraphs (a) through (e), Plaintiffs must put forth substantial evidence that Zeigler was incompetent (doc. 87, p. 3-9). Defendants argue that since there is no such evidence, there is no genuine dispute of material fact as to this element of Plaintiffs’ claims, and they cannot establish that Kenny Enterprises is liable for negligent or wanton hiring, retention, training, and supervision. (Id.)
In support, Defendants cite to Maendele v. Rhett Butler Trucking, Inc., 2005 U.S. Dist. LEXIS 15520, 2005 WL 1367202 (M.D. Ala. June 8, 2005). The district court found that “as articulated” and as elaborated upon in opposition to the summary judgment motion, plaintiff’s allegation that defendant “negligently failed to exercise the degree of care that a reasonable and prudent businessperson would have exercised under similar circumstance” was “best characterized as a negligent supervision claim.” 2005 U.S. Dist. LEXIS 15520, [WL] at *5. The district court explained that “it is a claim that Rhett Butler Trucking negligently supervised Crowell’s driving and failed to realize that Crowell was violating federal regulations.” Id. Similarly, in Britt v. USA Truck, Inc., plaintiff referred to “Count V, … as a [negligence] claim that USA Truck ‘failed to enforce’ federal statutes and regulations.” [*10] 2007 U.S. Dist. LEXIS 94164, 2007 WL 4554027, *2 (M.D. Ala. Dec. 20, 2007). Citing Maendele, the district court addressed this as a claim for negligent supervision. 2007 U.S. Dist. LEXIS 94164, [WL] at *4, n.9. Additionally, the district court noted that the plaintiff had not “cited any opinion in which an Alabama court expressly has recognized such a claim, and the court is aware of none.” Id.
The Court finds these cases persuasive. The allegations in subparagraphs (f) through (j) are properly considered as allegations of negligent or wanton training, supervision and retention of Zeigler, and therefore, summary judgment is due to be granted in favor of Defendants because Plaintiffs have failed to show a genuine issue of material fact as to whether Zeigler was incompetent. See Jones Exp., Inc. v. Jackson, 86 So. 3d 298, 305 (Ala. 2010) (“[I]mplicit in the tort of negligent hiring, retention, training, and supervision is the concept that, as a consequence of the employee’s incompetence, the employee committed some sort of act, wrongdoing, or tort that caused the plaintiff’s injury.”) (citations omitted).
Second, Defendants argue that if Plaintiffs have alleged “negligence and wantonness completely unrelated to Zeigler’s competency, then the claims are due to be dismissed [because] Plaintiffs cannot prove such negligence or wantonness proximately caused the accident” [*11] (doc. 87, p. 5-6). With regard to causation, Plaintiffs argued in their response that the accident was caused by Zeigler’s failure to abide by the FMCSRs and rules of the road, and that there is “substantial evidence” to support a jury’s finding that Kenny Enterprises’ “failure to meet the standard of care [institute a safety program and enforce the FMCSRs] was a contributing cause of the accident” and render it liable (doc. 84, p. 14).4
In support, Plaintiffs cite to Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317 (Ala. 1984). In Osborne, among other allegations, the plaintiffs alleged that violating the Alabama rules of the road constituted negligence per se. The plaintiffs also alleged and offered proof that the truck driver violated the federal regulations and had done so with Osborne’s knowledge and approval.5 Id. at 1325. On appeal, defendants argued that the trial court improperly instructed the jury by reading portions of the Federal Motor Carrier Safety Regulations6 immediately following the Alabama rules of the road instruction. Id. They argued that by doing so, the jury could have been misled into “believing that violation of the federal regulations constituted negligence per se”, the same as a violation of the Alabama rules of the road. Id.
The [*12] Alabama Supreme Court found that the trial court did not improperly instruct the jury. Id. at 1326. Relevant to this action, the Court found that “an instruction that the jury could consider the Motor Carrier Safety Regulations in determining defendants’ standard of care would have been appropriate[.]” Id. at 1326.
From this decision, Plaintiffs argue that “[u]nder Alabama law, the Federal Motor Carrier Safety Regulations determine the standard of care that should be met by a motor carrier such as Kenny Enterprises”, and that the evidence shows that Kenny Enterprises failed to meet the standard of care by failing to institute a safety program and failing to enforce the FMCSRs. They assert that this failure was a contributing cause to the accident (doc. 84, p. 14).
Plaintiffs have alleged causes of action for negligence and wantonness against the Defendants. Under Alabama law,
To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. . . . To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful [*13] act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains.
Hilyer v. Fortier, 227 So. 3d 13, 22 (Ala. 2017) (citations omitted).
Plaintiffs may be correct to argue that breach or omission of a duty may be determined by consideration of the applicable standard of care. See Lohr v. Zehner, 2014 U.S. Dist. LEXIS 85772, 2014 WL 2832192, at *3 (M.D. Ala. June 23, 2014) (“Alabama law does not recognize a negligence-per-se cause of action based on the Federal Motor Carrier Safety Regulations, but such regulations may be considered by a jury to determine whether a defendant exercised appropriate care for the situation.”) (citing Osborne Truck Lines, 454 So. 2d at 1326). However, both negligence and wantonness require proof of proximate causation. Hilyer, 227 So. 3d at 22. Plaintiffs assert that if Kenny Enterprises had trained Zeigler with respect to the FMCSRs regarding driver fatigue and restricting the use of hand-held devices and had had a compliance officer to enforce the FMCSRs, then he would not have violated these regulations, and the accident would not have occurred. Although the Court must consider all evidence in the light most favorable to the Plaintiffs as the non-moving parties, there is no evidence that the absence of a safety program or a compliance officer to enforce compliance with the FMCSRs was [*14] a proximate cause of the accident. Nothing before the Court indicates that Zeigler was unaware of these regulations or that awareness of the regulations would have prevented the accident. Accordingly, summary judgment is due to be granted in favor of Defendants.
C. Conclusion
Upon consideration, and for the reasons set forth herein, the motion for partial summary judgment is GRANTED. Accordingly, summary judgment is entered in favor of Defendants as to the Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action. The First, Second and Ninth Causes of Action remain for trial.
DONE and ORDERED this the 21st day of May 2018.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE