United States District Court,

E.D. Kentucky,

Southern Division,

at London.

Arizona WILSON, as Administrator of the Estate of Leo Michael Cox, Inc., Plaintiff

v.

HIRSCHBACH MOTOR LINES, INC., et al, Defendants.

Civil Action No. 14–139–DLB–HAI. | Signed April 9, 2015.

Attorneys and Law Firms

Aaron Matthew Howard, Law Offices of Howard O. Mann, Corbin, KY, for Plaintiff.

Jennifer Lacey Fiorella, Michael E. Hammond, Landrum & Shouse LLP, Lexington, KY, David Wells Zahniser, Garvey Shearer, PSC, Fort Mitchell, KY, for Defendants.

 

 

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

*1 Plaintiff Arizona Wilson is suing for negligence on behalf of the Estate of Leo Michael Cox, who died on August 10, 2013, as a result of being run over by a semi-truck. One of the two defendants, Hirschbach Motor Lines, Inc. (“Hirschbach”), now moves to dismiss for lack of personal jurisdiction, arguing that it did not transact business in Kentucky for purposes of KRS § 454.210(2)(a)(1). In the alternative, Hirschbach contends that its Kentucky activities did not give rise to the underlying negligence claim. The Court has jurisdiction over this removed action pursuant to 28 U.S.C. §§ 1332 and 1441.

 

 

I. Factual and Procedural Background

a. The Parties

Hirschbach is a trucking company incorporated in Iowa and having its principal place of business in Illinois. (Doc. # 27 at 2). Defendant Anthony Wilson (“Wilson”) worked as a driver for Hirschbach, making deliveries across the country in a commercial semi-truck. (Id.) Although currently a resident of Ohio, Wilson lived in Kentucky when the accident in question took place. (Id. at 2, 7).

 

Plaintiff Arizona Wilson is a resident of Kentucky and the administrator of the estate of Leo Michael Cox (“Cox”). (Id. at 2). Cox died as a result of being run over by Wilson’s semi-truck on August 10, 2013. (Id. at 4–5). The accident occurred in Walcott, Iowa, and the truck was being operated by Wilson, who at the time was completing a delivery for Hirschbach. (Id.) Cox and Wilson were related as cousins. (Id. at 2).

 

 

b. The Accident

In July 2013, Wilson asked Cox to accompany him on a delivery from Cresco, Iowa to Gastonia, North Carolina. (Doc. # 27 at 3). The trip would last approximately five (5) months and would not involve any deliveries to Kentucky. (Id.; Doc. # 24–2 at 1). Cox agreed and Wilson contacted Hirschbach to obtain the necessary paperwork. (Id.) Hirschbach sent a “Passenger Authorization Form” to Wilson in Kentucky, where he lived at the time. (Id.) The form provided insurance coverage for Cox and arranged for Wilson to pay for such coverage. (Doc. # 27–1). It also required Cox to release Hirschbach from any liability for death, injury or property damage that might occur as a result of the trip. (Id.) Both men completed the Passenger Authorization Form and Wilson returned it to Hirschbach via fax on July 24, 2013. (Id.)

 

On the night of August 9, 2013, Wilson and Cox arrived at a truck stop in Walcott, Iowa. (Doc. # 27 at 4). After Wilson parked the truck, both men entered a nearby building and spent approximately one hour there before returning to the truck. (Doc. # 27 at 4). Cox became bored and eventually went back to the building. (Id.) Sometime later, Wilson noticed the vehicle parked in front of him turn on its lights and drive away. (Id.) Wilson then started his truck and began to move forward into the vacant parking space. (Id. at 4–5). Unfortunately, Cox had returned from the building and was sitting between the cab and the trailer of Wilson’s truck. (Id.) The truck rolled forward onto Cox, who died as a result. (Id. at 5).

 

*2 On April 1, 2014, Plaintiff sued Hirschbach and Wilson for negligence in the Knox Circuit Court, Knox County, Kentucky. (Doc. # 1–1). On June 13, 2014, Hirschbach removed the case to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. (Doc. # 1 at 3). Plaintiff filed a motion to remand for lack of subject matter jurisdiction, but that motion was denied.1 (Doc. # 17). The instant Motion to Dismiss for lack of personal jurisdiction followed. (Doc. # 24).

 

 

II. Analysis

a. Standard of Review

In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), the burden of demonstrating personal jurisdiction always rests with the plaintiff. Serras v. First Tenn. Bank Nat’l Assn., 875 F.2d 1212, 1214 (6th Cir.1989). When, as here, the court chooses to rule without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002). However, the plaintiff may not rely solely on his pleadings, “but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.” Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991). The court will view the pleadings and affidavits “in a light most favorable to the plaintiff,” and will not “weigh the controverting assertions of the party seeking dismissal.” Id. at 1459. The purpose of this standard is “to prevent nonresident defendants from regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional facts.” Id. Thus, dismissal is only proper if “the specific facts [alleged by the plaintiff] collectively fail to state a prima face case for jurisdiction.” Id.

 

 

b. Long-arm Jurisdiction in Kentucky.

“A federal court sitting in diversity may exercise personal jurisdiction over an out-of-state defendant only to the extent that a court of the forum state could do so.” Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 148 (6th Cir.1997). In Kentucky, the issue of long-arm jurisdiction is governed by a two-step process.

First, review must proceed under KRS 454.210 to determine if the cause of action arises from conduct or activity of the defendant that fits into one of the statute’s enumerated categories. If not, then in personam jurisdiction may not be exercised. When that initial step results in a determination that the statute is applicable, a second step of analysis must be taken to determine if exercising personal jurisdiction over the non-resident defendant offends his federal due process rights.

Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 (Ky.2011).2

 

Step one—the contested issue in this case—is a matter of satisfying Kentucky’s long-arm statute. KRS § 454.210(2)(a) contains nine subsections, each describing a generic scenario upon which personal jurisdiction may be predicated. The statute also provides that “[w]hen jurisdiction over a person is based solely upon this section, only a claim arising from acts enumerated in this section may be asserted against him.” KRS § 454.210(2)(b) (emphasis added). Thus, a Kentucky court may not exercise jurisdiction “simply because [the non-resident defendant] has engaged in conduct or activity that fits within one or more subsections of KRS § 454.210(2)(a). The plaintiff must also show that his claim is one that arises from the conduct or activities described in the subsection.” Id. at 55.

 

 

c. Kentucky’s long-arm statute precludes jurisdiction over Hirschbach.3

*3 Hirschbach correctly states that it is a nonresident for purposes of Kentucky’s long-arm statute. (Doc. # 24–1 at 4). Hirschbach then contends that Plaintiff cannot satisfy any of the enumerated subsections of KRS § 454.210(2)(a). (Id. at 4–9). In the event a subsection is found applicable, Hirschbach maintains that none of its Kentucky activities gave rise to the cause of action which Plaintiff now asserts. (Doc. # 28 at 2–4).

 

Plaintiff responds that jurisdiction is proper under KRS § 454.210(2)(a)(1). (Doc. # 27 at 6). Subsection one states that a “court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s … [t]ransacting any business in this Commonwealth.”4 KRS § 454.210(2)(a)(1). According to Plaintiff, Hirschbach transacted business by sending the Passenger Authorization Form to Kentucky, which enabled Wilson to purchase an accident insurance policy, while requiring Cox to release Hirschbach from any liability resulting from the trip. (Doc. # 27 at 6–7). Plaintiff contends that these business activities gave rise to the underlying negligence claim because Hirschbach “reasonably believed an accident was possible” and attempted to insulate itself with the Passenger Authorization Form. (Id.)

 

 

1. Hirschbach transacted business in Kentucky.

Kentucky case law provides little guidance regarding the applicability of KRS 454.210(2)(a)(1). Hirschbach asks the Court to follow Tube Turns Div. of Chemetron Corp. v. Patterson Co., 562 S.W.2d 99 (Ky.Ct.App.1978). (Doc. # 28 at 4–5). In that case, an out-of-state corporation sent mail and made telephone calls to Kentucky during the course of negotiating a contract. Patterson, 562 S.W.2d at 99–100. The court held that such activities did not qualify as transacting business, noting that the corporation had no employees in Kentucky and did not keep an office there. Id. Although, factually speaking, Patterson bears some resemblance to the case at hand, it was decided well before Caesars, and as such the court relied solely on constitutional standards in addressing Kentucky’s long-arm statute. Id. Because the issue of due process is reserved for step two of the analysis, at this point, Hirschbach’s reliance on Patterson is misplaced.5

 

A plaintiff’s burden is simply to make a prima facie showing that the nonresident defendant “transacted business” in Kentucky. See Neogen Corp., 282 F.3d at 887. Here, it is undisputed that Hirschbach sent the Passenger Authorization Form to Kentucky for Wilson and Cox to complete. (Doc. # 27 at 3). As a result, Wilson elected to purchase a passenger insurance policy, naming Cox as his beneficiary, and Cox chose to release Hirschbach from any liability resulting from the trip. (Doc. # 27–1 at 1). The form was returned to Hirschbach and approved by Terry Leahy, Vice President of Administration and Safety. (Id.) Viewing these facts in a light most favorable to Plaintiff, the Court concludes that Hirschbach did transact business under KRS 454.210(2)(a)(1) by virtue of the Passenger Authorization Form. Therefore, the Court will now consider whether such conduct gave rise to the underlying claim of negligence.

 

 

2. Plaintiff’s claim did not arise from Hirschbach’s Kentucky activities.

*4 The requirement that a plaintiff’s claim arise from the proffered statutory predicate was discussed at length in Caesers. 336 S.W.3d at 58–59. There, a Kentucky resident sued a casino for negligence after slipping on spilled butter at the casino’s Indiana gambling boat. Id. at 53. The plaintiff filed suit in a Kentucky state court, alleging that jurisdiction over the out-of-state casino was proper because its marketing efforts in Kentucky qualified as business activities under KRS § 454.210(2)(a)(1). Id. at 58. The plaintiff also averred that such conduct gave rise to her claim of negligence, noting that “but for” the casino’s Kentucky advertisements, she would never have been on the gambling boat. Id. The trial court dismissed the case for lack of personal jurisdiction, but was reversed on appeal, and the Kentucky Supreme Court granted the casino’s motion for discretionary review. Id. at 52–53

 

In assessing the applicability of Kentucky’s long-arm statute, the court found that the casino had certainly transacted business for purposes of KRS § 454.210(2)(a)(1), and thus proceeded to address whether those activities gave rise to the plaintiff’s cause of action. Id. at 58. Assigning the statutory language its common and ordinary meaning, the court offered the following explanation with respect to the phrase “arising from”:

[T]he wrongful acts of the defendant alleged in the plaintiff’s complaint must originate from the actions or activities that form the applicable statutory predicate for assertion of long-arm jurisdiction. Conversely, the statutory foundation for the assertion of long-arm jurisdiction must be the source of the plaintiff’s cause of action. If there is a reasonable and direct nexus between the wrongful acts alleged in the complaint and the statutory predicate for long-arm-jurisdiction, then jurisdiction is properly exercised.

Id. at 58–59.

 

The court explained that “[w]hether such a connection exists will often be self-evident, especially when the claim is based upon tortious injury that occurs in this state or upon contracts to supply goods in this state.” Id. at 59. However, due to the limitless factual scenarios that might occur, “no general rule can be expressed … and the analysis must necessarily be undertaken on a case by case basis.” Id. Trial courts should apply a “common sense approach,” and when in doubt, decide in favor of exercising jurisdiction. Id.

 

Applying the ground rules above, the court rejected the plaintiff’s “but for” reasoning, noting that it would “stretch[ ] the phrase ‘arising from’ beyond reasonable bounds.” Id. at 58. The source of the plaintiff’s injury was, after all, “the butter negligently left on the floor.” Id. at 59. The mere fact that the casino’s marketing activities contributed to her presence on the gambling boat was “far too attenuated to fit within the definition of ‘arising from.’ “ Id. Accordingly, the court declared that “there is no reasonable and direct nexus between [the casino’s] marketing activities [in Kentucky] … and the negligent acts or omissions in Indiana that produced [the plaintiff’s] fall.” Id. Having found that the plaintiff’s claim did not arise from any of the enumerated subsections in KRS § 454.210(2)(a), the court concluded that personal jurisdiction in Kentucky was not proper, and therefore reinstated the trial court’s dismissal decision without engaging the federal due process inquiry. Id.

 

*5 Here, Plaintiff argues that because the Passenger Authorization Form arranged for insurance to be purchased, and contained a release of liability clause, Hirschbach must have anticipated the possibility of an accident. (Doc. # 27 at 6–7). While the Court accepts this inference as true, it does not follow that the Passenger Authorization Form gave rise to the allegedly wrongful conduct. Much like the casino’s marketing efforts in Caesars, the form merely contributed to Cox’s presence at the truck stop on August 10, 2013. It had nothing to do with Wilson’s allegedly negligent driving, and, at best, provides a “but for” argument that Hirschbach’s Kentucky activities were the source of Plaintiff’s claim. As discussed above, the Kentucky Supreme Court has held that such attenuated circumstances do not establish a direct and reasonable nexus. Accordingly, the Court concludes that Cox’s injury did not arise from Hirschbach’s conduct in Kentucky.

 

A common sense approach yields the same result. Cox was not killed simply because he accompanied Wilson on a delivery for Hirschbach. As the complaint makes clear, Cox’s death was the result of Wilson’s “negligent, careless and reckless operation of his vehicle.” (Doc. # 1–1 at 2). Although the Passenger Authorization Form might have enabled Cox to go on the trip in the first place, it had absolutely no effect on the manner in which Wilson operated the semi-truck. Again, the Court must conclude that Plaintiff’s claim did not arise from Hirschbach’s Kentucky activities.6

 

 

III. Conclusion

Dismissal of Plaintiff’s claim against Hirschbach is proper because personal jurisdiction cannot be exercised under Kentucky’s long-arm statute. Pursuant to Caesars, the Court need not address the issue of federal due process.

 

Accordingly, for the reasons stated herein,

 

IT IS ORDERED as follows:

 

(1) Defendant Hirschbach’s Motion to Dismiss (Doc. # 24) be, and is hereby GRANTED; and

 

(2) All claims against Defendant Hirschbach are DISMISSED WITHOUT PREJUDICE.

 

 

 

Footnotes

 

1

 

The Court held that complete diversity existed because defendant Anthony Wilson had changed his domicile to Ohio before the case was removed. (Doc. # 17).

 

2

 

Until 2011, Kentucky’s long-arm statute was interpreted as reaching the outer limits of federal due process, thus collapsing the above two-step process into a single, constitutional inquiry. Id. In Caesers, the court restored the independent significance of Kentucky’s long-arm statute, declaring that it must be satisfied as an “initial step.” Id. Thus, if a plaintiff is unable to satisfy KRS § 454.210, the court may not assert jurisdiction over the nonresident defendant, regardless of whether doing so would comport with federal due process.

 

3

 

Within their respective briefs, the parties occasionally frame their arguments as if the Motion to Dismiss applies to both Hirschbach and Wilson. However, the Motion is styled as a “Motion to Dismiss by Defendant Hirschbach Motor Lines, Inc.,” and it was filed solely by Hirschbach’s attorney, Michael E. Hammond, who then certified that he sent a copy to Wilson’s counsel. (Doc. # 24–1 at 1). Accordingly, this Memorandum Opinion and Order only addresses whether the Court can properly exercise jurisdiction over Hirschbach.

 

4

 

KRS § 454.210(1) states that the term “person” includes any “corporation … who is a nonresident of this Commonwealth.”

 

5

 

And because the Court has found that Plaintiff’s claim did not arise from Hirschbach’s Kentucky activities, see infra, it will be unnecessary in this case to address the issue of due process.

 

6

 

Plaintiff also briefly notes that Hirschbach has admitted to supplying goods in Kentucky during other deliveries, which are unrelated to this case. (Doc. # 27 at 6). As it pertains to any subsection of KRS § 454.210(2)(a), this observation is completely irrelevant. Even if Hirschbach has supplied goods to Kentucky on other occasions, Cox was not present for those trips and accordingly his death could not have arisen from those activities.

United States District Court,

M.D. Alabama,

Northern Division.

Gwendolyn CRAFT, Brandy Craft, and Julie Butler, Plaintiffs,

v.

TRIUMPH LOGISTICS, INC., and Reco Gerome Williams, Defendants.

Civil Action No. 2:14cv93–MHT. | Signed April 8, 2015.

Attorneys and Law Firms

Christopher Dean Glover, Jon Cole Portis, Beasley, Allen, Crow, Methvin, Portis & Miles, PC, Montgomery, AL, for Plaintiffs.

Christopher John Zulanas, Jess Street Boone, Friedman Dazzio Zulanas & Bowling PC, Birmingham, AL, for Defendants.

 

 

OPINION

MYRON H. THOMPSON, District Judge.

*1 In this case stemming from a traffic accident between a car and a large truck, plaintiffs Gwendolyn Craft, Brandy Craft, and Julie Butler sued defendants Triumph Logistics, Inc. and Reco Gerome Williams, asserting claims of not only negligence but also claims of wantonness against Triumph and Williams (hereinafter “wantonness claims”), as well as negligent- and wanton-training claims against Triumph only (hereinafter “training claims”). Jurisdiction is proper pursuant to 28 U.S.C. § 1332 (diversity).

 

The case is before the court on the defendants’ motion for partial summary judgment on the plaintiffs’ wantonness claims against both Triumph and Williams and on the plaintiffs’ training claims against Triumph.* The motion will be granted.

 

 

I. SUMMARY–JUDGMENT STANDARD

“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. 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). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

 

 

II. BACKGROUND

Gwendolyn Craft was driving a rented minivan from New Orleans, Louisiana to Atlanta, Georgia to watch a professional football game. She had three passengers in the car, including the two other plaintiffs in this suit. The weather conditions were clear, and the traffic was normal for a weekday afternoon.

 

On a northbound stretch of highway between Mobile and Montgomery, Alabama, the plaintiffs were involved in a car accident with Reco Williams, who was employed by Triumph and driving a commercial-freight truck. Craft was driving in the left lane, and Williams was adjacent in the right lane. Without looking into his driver-side mirror, Williams crossed over into Craft’s lane. Craft swerved left off the highway to avoid a collision with Williams’s truck, passing onto the shoulder and then driving into the grass. Without slowing down, Craft then swerved right, and her minivan began to spin. Craft reentered the roadway mid-spin, crashing twice into Williams’s truck. Craft and her passengers sustained injuries.

 

 

III. DISCUSSION

Triumph and Williams move for partial summary judgment on the plaintiffs’ wantonness claims based on Williams’s operation and driving of the truck, and on the plaintiffs’ negligent- or wanton-training claims.

 

 

A. Wantonness Claims Against Triumph and Williams

To hold a defendant liable for wanton conduct in Alabama, a plaintiff must establish a high degree of culpability. While negligent conduct is characterized by “inattention, thoughtlessness, or heedlessness” and “a lack of due care,” Monroe v. Brown, 307 F.Supp.2d 1268, 1271 (M.D.Ala.2004) (Thompson, J.), wantonness is characterized by “a conscious act.” Ex parte Essary, 992 So.2d 5, 9 (Ala.2007) (internal citations omitted). Wantonness is willful misconduct undertaken with the knowledge that the likely or probable result will be injury, that is, with a conscious disregard for the rights or safety of others. See, e.g., Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998); Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994). Wantonness can also be established by reckless disregard for the rights or safety of others. See 1975 Ala.Code § 6–11–20(b)(3). Wantonness is, therefore, “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” Id. Because negligence is the “inadvertent omission of duty,” and wantonness is about the “state of mind with which the act or omission is done,” Essary, 992 So.2d at 9, the Alabama Supreme Court has explained: “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.” Tolbert v. Tolbert, 903 So.2d 103, 114 (Ala.2004) (internal citations omitted); see also Jinright v. Werner Enterprises, Inc ., 607 F.Supp.2d 1274, 1275–76 (M.D.Ala.2009) (Thompson, J.).

 

*2 Alabama courts will allow a jury to determine whether conduct was wanton if there is any evidence that would allow that determination. Cash v. Caldwell, 603 So.2d 1001, 1003 (Ala.1992) (“Wantonness is a question of fact for the jury, unless there is a total lack of evidence from which the jury could reasonably infer wantonness.”). This determination of consciousness or recklessness underlying the question of wantonness may rely on inferences drawn from the circumstances. Klaber v. Elliott, 533 So.2d 576, 579 (Ala.1988).

 

The plaintiffs argue that Williams was wanton because he failed to look to his left or signal before he drove his vehicle into the left lane. However, this conduct, on its own, is not sufficient to create a genuine issue of material fact concerning wantonness. To establish wantonness, the evidence must support a conclusion that the defendant engaged in conduct conscious, or in knowing disregard, that it was likely to cause injury. But the plaintiffs have not pointed to any evidence that would allow a jury to determine, consistent with Alabama law, that Williams had the requisite level of consciousness and awareness that his moving into the plaintiffs’ lane would likely cause injury. Simply put, the fact that Craft saw Williams’s truck move over into her lane does not prove that he knew that he was moving into their lane—for he could have been drifting without realizing he was doing so—and that by doing so he knew, or recklessly disregarded, that he likely would harm others on the road. See Essary, 992 So.2d at 9. (defining wantonness as “the conscious doing of some act … while knowing of the existing conditions and being conscious that, from doing … an act, injury will likely or probably result.”) (emphasis in original). If mere inattention, without something more that contributes to the accident, that is, without some exacerbating circumstance, could constitute wantonness, then the concepts of negligence and wantonness would collapse into one.

 

Moreover, under Alabama law, there is a presumption that “courts do not expect an individual to engage in self-destructive behavior.” Jinright, 607 F.Supp.2d at 1276 (internal citations omitted). When the dangerous behavior at issue is “similarly likely to harm the perpetrator (as it is, for example, in most cases involving car accidents),” Alabama courts presume that defendants do not engage consciously in that behavior. Id. Here, for example, the presumption is that Williams would not have changed lanes deliberately if he were aware that it would cause an accident in which he could be injured.

 

The court recognizes the limitations of this presumption in a situation, such as this one, where the defendant is driving a tractor-trailer truck. When a large commercial truck is involved in a crash with a much smaller passenger vehicle, the truck driver may be shielded from some of the impact of the crash.

 

Yet this asymmetry does not change the court’s analysis here. First, automobile accidents can set off a series of unpredictable reactions, and the presumption against self-destruction means that any driver will attempt to avoid them. Second, a driver of a large truck cannot be sure that he or she is surrounded by only smaller vehicles. Because there are so many trucks on highways, the driver of a large truck bears the substantial risk of colliding with not only smaller vehicles but also with equally large, if not larger, vehicles. (Indeed, because, under the plaintiffs’ version of the facts, Williams did not look before crossing over, there reasonably could have been a vehicle at his left that was the same size as his truck, or larger, that could have put him in serious danger.) Third and finally, there is no evidence that the fact Williams was driving a large truck played any role in the accident. Cf. Fike v. Peace, 964 So.2d 651, 662 (Ala.2007) (rejecting argument that hauling an oversized load constitutes an “inherently dangerous” activity “because the major risk of harm from the oversized load could have been alleviated if [defendants] had used reasonable care.”).

 

*3 To conclude otherwise would mean that any collision between a car and a large truck, resulting from mere negligence or inattention of the driver of the larger vehicle, always would constitute wantonness. Instead, there must be some exacerbating or differentiating circumstance. See, e.g., Griffin v. Modular Transp. Co., 2014 WL 896627, at *4 (N.D.Ala.2014) (Acker, J.) (finding evidence of wantonness in case where only the flatbed portion of tractor-trailer truck was blocking the highway, not the cabin with the driver’s seat, because “[a] collision between a car and the flatbed portion of a tractor trailer does not carry the same risk of injury to the trailer driver as it does to the car driver”) (emphasis in original).

 

However, the presumption that a defendant did not consciously engage in self-destructive behavior is rebutted when there is reason to believe that the defendant was suffering from impaired judgment (such as alcohol consumption) or the act itself is “so inherently reckless that it would signal the kind of depravity consistent with disregard of instincts of safety and self-preservation.” Jinright, 607 F.Supp.2d at 1276–77 (citing Ex Parte Essary, 992 So.2d 5, 16 (Ala.2007)). “Inherently reckless” behavior, for example, might be driving in reverse on a major interstate, see Johnson v. Baldwin, 584 F.Supp.2d 1322 (M.D.Ala.2008) (Thompson, J.); driving through an intersection “at a very fast speed” after ignoring a stop sign, see Clark v. Black, 630 So.2d 1012, 1016 (Ala.1993); or abruptly moving from the right lane into the left lane after seeing a video store on the left and deciding to stop and get a movie. Green v. Leatherwood, 727 So.2d 92 (Ala.Civ.App.1998). In each of these instances, something more than mere inattention, that is, an exacerbating circumstance, contributed to the accident.

 

Here, there is no evidence that Williams suffered from impaired judgment. He held a valid commercial driver’s license and was qualified to operate his vehicle. There is no evidence that he had used drugs or alcohol, or was talking on his phone or texting. And he was not over his commercially allowed ‘service hours’ at the time of the accident.

 

There is also no evidence that Williams’s conduct was inherently reckless. The failure to adjust one’s driving to accommodate special dangers on the road, such as bad weather or reduced visibility, may evidence the kind of recklessness from which a driver’s consciousness or reckless disregard of probable harm could be inferred. See, e.g., Hornady Truck Line, Inc. v. Meadows, 847 So.2d 908 (Ala.2002) (finding evidence of wantonness when truck driver failed to check his mirrors and drifted or merged into the left lane, where the truck was traveling at an unsafe speed during a heavy storm). As the court explained in Hornady, a factfinder could impute conscious disregard to a truck driver operating his vehicle at an unsafe speed during a bad storm because the driver “knew the weather conditions,” “knew the road conditions” and “knew the speed at which their vehicles were traveling.” Id. at 915. The plaintiffs in that case brought negligence and wantonness claims, and, while “inattention alone was sufficient to allow the case to go to the jury on the negligence claim,” the court found that the combination of the speed of the truck and the weather conditions, coupled with the driver’s inattention, was also sufficient to submit the wantonness claim to the jury. Id. at 915, 916.

 

*4 In this case, however, the plaintiffs have not presented evidence of unsafe road conditions such that Williams’s knowledge of those conditions, coupled with his inattentiveness, could support an inference of wantonness. Nor is there is any evidence that Williams was driving at an unsafe speed or engaging in any other reckless conduct.

 

At best, Williams inattentively drifted into the left lane; at worst, he deliberately merged into the left lane without signaling or checking his mirrors. But even “failing to look to one’s left before crossing a lane, while imprudent and likely negligent, is not so inherently reckless as to signal the kind of depravity required by Essary. It is also, quite simply, not suggestive of the kind of knowledge of likely injury required by the consciousness standard applied to wantonness claims in Alabama.” Jinright, 607 F.Supp.2d at 1277.

 

Therefore, because the plaintiffs have not provided any facts from which it could be inferred that Williams consciously or recklessly caused the accident, their submissions show “a total lack of evidence from which the jury could reasonably infer wantonness.” Cash, 603 So.2d at 1003; see also Askew v. R & L Transfer, Inc., 676 F.Supp.2d 1298 (M.D.Ala.2009) (Thompson, J.). Summary judgment will be granted in favor of Triumph and Williams on the plaintiffs’ wantonness claim.

 

 

B. Negligent- and Wanton–Training Claims Against Triumph

The plaintiffs also charge that, under Alabama law, Triumph is liable for negligently or wantonly training Williams. To support a claim of negligent or wanton training, the plaintiffs must demonstrate that (1) Williams committed a tort recognized under Alabama law, see Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala.1999); (2) Williams was incompetent to drive his commercial vehicle, see Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala.1983); (3) Triumph had actual notice of Williams’s incompetence or would have known had it exercised due diligence, see Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 682 (Ala.2001); and (4) Triumph either negligently or wantonly failed to respond to this notice. See id.; see also Askew, 676 F.Supp.2d at 1304. Triumph argues that the plaintiffs cannot satisfy these elements because there is no evidence that Williams was an incompetent driver or that it knew or should have known of Williams’s alleged incompetence.

 

“Incompetence” is defined as the “state or fact of being unable or unqualified to do something.” Halford v. Alamo Rent–A–Car, LLC, 921 So.2d 409, 416 (Ala.2005) (quoting Black’s Law Dictionary 780 (8th ed.2004)). In Alabama, “the incompetence of a driver is measured by the driver’s demonstrated ability (or inability) to properly drive a vehicle,” Halford, 921 So.2d at 413–14, and this may be measured by characteristics such as “general incompetence” or “habitual negligence.” Edwards v. Valentine, 926 So.2d 315 (Ala.2005).

 

*5 The plaintiffs make two arguments to support their contention that Williams was incompetent. First, they argue that Triumph’s failure to train Williams properly means that he necessarily was incompetent; in the alternative, they argue that Williams’s driving record and history of violations establish incompetence.

 

The court rejects the first argument. Williams was a professional commercial driver with several years of experience. He earned his commercial driver’s license after receiving training and education at a technical college, and he passed the necessary tests to obtain his commercial license. He worked several different commercial-truck-driving jobs prior to and between his terms of employment at Triumph, and he passed a road test when hired by Triumph. Prior to the accident, he was trained in defensive driving by another trucking company. His commercial driver’s license had never been suspended or revoked.

 

Moreover, the plaintiffs admitted at the pretrial conference that Williams’s commercial-license training included instruction on safe lane changes. Common sense, too, dictates that drivers look before changing lanes. While it may be that Williams could have benefitted from additional training, there is simply no evidence in the record that Triumph’s failure to train Williams proximately caused this accident.

 

Under the plaintiffs’ line of reasoning, any employee—even with extensive experience or a spotless record—would be considered “incompetent” unless fully retrained by each successive employer. This is simply not the standard in Alabama. Competence is not measured solely by training; it is measured by one’s ability to perform the task at hand. See Halford, 921 So.2d at 414, 417 (explaining that a driver’s competence is measured by “actual ability to properly operate a motor vehicle,” and is determined by “evidence relevant to [the driver’s] mental and physical abilities and his or her prior driving experience and record.”). That he was not trained by Triumph itself does not establish that Williams was incompetent.

 

Turning to the plaintiffs’ second theory, the court also rejects the argument that Williams’s driving record establishes his incompetence. Williams has several traffic violations on his personal driving record, including a ticket for speeding issued when he was driving his pregnant girlfriend to the hospital to deliver their child; an accident from age 17, before he received his commercial driver’s license; a tag violation; a seatbelt violation; and a failure to stop. The only violation he has received while driving his commercial vehicle is an overweight ticket.

 

An employee’s “mistake or single act of negligence” does not establish incompetence, because even “the most competent may be negligent.” Southland Bank v. A & A Drywall Supply Co., Inc., 21 So.3d 1196, 1217 (Ala.2008) (internal citations omitted). But “one who is habitually negligent may on that account be incompetent .” Id. (emphasis removed). Though Williams has been cited for several moving violations, the diverse circumstances behind each citation do not establish the kind of ‘habitual negligence’ that amounts to incompetence. Cf. Pritchett v. ICN Medical Alliance, Inc., 938 So.2d 933 (Ala.2006) (holding that defendant’s use of an improper safety technique during cosmetic surgery on 30 to 40 occasions evidenced habitual negligence and established a jury question on incompetence).

 

*6 Williams had several years of truck-driving experience and a commercial driver’s license in good standing, both demonstrating his “ability to properly handle an automobile on the road.” Halford, 921 So.2d at 414. As this court explained in Askew, “blemishes on an otherwise clean professional driving record do not amount, under the law, to incompetence. The law requires that a driver have had a ‘demonstrated ability to properly drive a vehicle’; it does not require that he have a record completely free of mistake.” Askew, 676 F.Supp.2d at 1303 (citing Halford, 921 So.2d at 413–14); see, e.g., id. (explaining that a driver’s record with two moving violations and four minor accidents did not amount to incompetence); Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 52 (Ala.1995) (“[Defendant]’s prior driving record—two speeding tickets and a suspended prosecution of a DUI charge over a 10–year period—is not sufficient to support a claim of negligent entrustment.”); Thompson v. Havard, 235 So.2d 853, 857 (Ala.1970) (“[P]roof of two moving violations or accidents within a two year period prior to [the] accident … is probably insufficient [to create a fact issue of the driver’s incompetence.]”) (internal citations omitted).

 

Even if the plaintiffs had established that Williams was incompetent, his employer could be liable for negligent or wanton training only if it knew or should have known about his incompetence and failed to respond adequately to that notice. But the plaintiffs have not presented evidence that Triumph had or should have had either notice or knowledge of any prior incident for which it might have needed to offer supplemental training.

 

The plaintiffs cite Big B, Inc., v. Cottingham to support their argument that employers may be held liable for negligent training even when the employer is not on notice of prior similar offenses. 634 So.2d 999 (Ala.1993), abrogated on other grounds, Horton Homes, Inc. v. Brooks, 832 So.2d 44 (Ala.2001). In Big B, a store manager was accused of making improper sexual advances toward a part-time employee, and he later sexually assaulted a suspected shoplifter. The employer was sued by the shoplifter for failure to train, and the court found that a fact question remained as to whether the employer had properly trained the manager in how to detain and question shoplifters. As the court explained, the employer had “reason to question [the manager’s] fitness for employment” after it received notice of the first incident. Id. at 1003. Though the manager’s incompetence arose in two factually different scenarios, the employer’s liability for the second incident was based in its failure to address proactively a recurring problem: the mistreatment of women in the workplace. In Big B, therefore, the court was already on notice of past similar conduct. Here, in contrast, Williams’s employer was not only not on notice of past general incompetence, but was also not on notice of past similar conduct.

 

*7 Because the plaintiffs have failed to put forth sufficient evidence of Williams’s incompetence or any persuasive reason why Triumph should have been on notice of that alleged incompetence, summary judgment in favor of defendant Triumph on the plaintiffs’ training claims is appropriate.

 

* * *

 

An appropriate order will be entered.

 

 

JUDGMENT

In accordance with the opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court as follows:

(1) The defendants’ partial motion for summary judgment (doc. no. 35) is granted.

(2) The plaintiffs’ “wantonness claims” and “training claims” are dismissed.

(3) This case will go to trial on only the plaintiffs’ “negligence claims” against both defendants.

 

The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.

 

This case is not closed.

 

 

 

Footnotes

 

*

 

The plaintiffs also charge the defendants with “gross negligence.” Under Alabama law, gross negligence is a degree of negligence; it is not the same as wantonness. See Miller v. Bailey, 60 So.3d 857, 867 (Ala.2010) (“Gross negligence is negligence, not wantonness.”) (internal citations omitted); Armistead v. Lenkeit, 160 So. 257, 259 (Ala.1935) ( “Gross negligence is defined as a want of slight care, as distinguished from ordinary care, on the one hand, and less culpable than wanton injury, on the other.”) Because the defendants did not move for summary judgment on negligence, this opinion will not address these claims. These claims survive.