United States District Court for the District of Kansas

December 13, 2022, Decided; December 13, 2022, Filed

Case No. 21-2045-JAR

Reporter

2022 U.S. Dist. LEXIS 224613 *; 2022 WL 17612092

BRITTANY YAPLE, et al., Plaintiffs, v. JAKEL TRUCKING LLC, et al., Defendants.

Prior History: Yaple v. Jakel Trucking LLC, 2022 U.S. Dist. LEXIS 210019, 2022 WL 17082696 (D. Kan., Nov. 18, 2022)

Core Terms

Trucking, summary judgment, tractor-trailer, driving, punitive damages, willful, wanton, deer, reasonable jury, wanton conduct, uncontroverted, indifference, training, hitting, codes, posted speed limit, no evidence, inspection, imminence, traveling, Highway, brakes, hiring, fault, speed

Counsel:  [*1] For Brittany Yaple, individually and as heir-at-law of John Brian Yaple, deceased, Ralph Yaple, as Administrator of, estate of, John Brian Yaple, Plaintiffs: Daniel Adam Kopp, Jeffrey D. Rowe, R. Douglas Gentile, Randall L. Rhodes, LEAD ATTORNEYS, Rachel Nelson Boden, Rouse Frets White Goss Gentile Rhodes, PC – Leawood, Leawood, KS.

For Jakel Trucking LLC, a foreign corporation, Christopher James Erion, Defendants: Daniel H. Diepenbrock, LEAD ATTORNEY, Thompson-Hall, PA, Lawrence, KS.

Judges: JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.

Opinion by: JULIE A. ROBINSON

Opinion

MEMORANDUM AND ORDER

Plaintiffs Brittany Yaple, individually and as heir-at-law of John Brian Yaple, and Ralph Yaple, as the Administrator of the Estate of John Brian Yaple, bring negligence claims under Kansas law in this diversity action against Defendants Jakel Trucking, Inc. and Christopher J. Erion arising out of a motor vehicle accident. Before the Court is Defendants’ Motion for Summary Judgment on Plaintiff’s Claims for Punitive Damages (Doc. 49). The motion is fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants Defendants’ motion for summary judgment.

I. Summary Judgment Standard

Summary judgment [*2]  is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.”³ A fact is “material” if, under the applicable substantive law, “it is essential to the proper disposition of the claim.”⁴ “An issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party on the issue.'”⁵

Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”⁶ In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” [*3] ⁷

II. Uncontroverted Facts

The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiffs. Defendants failed to specifically controvert Plaintiffs’ statements of additional material fact as required by Fed. R. Civ. P. 56(c)(1) and D. Kan. Rule 56.1. Therefore, to the extent such facts are material to the limited question before the Court and supported by the record, the Court deems them undisputed.⁸

On May 14, 2019, John Brian Yaple (“Decedent”) died at the age of forty-seven as a result of a collision with a Jakel Trucking LLC (“Jakel Trucking”) tractor-trailer operated by Defendant Christopher J. Erion. Plaintiff Brittany Yaple is the sole surviving adult child of Decedent. Ralph Yaple is the Administrator of Decedent’s estate.

At the time of the accident, Erion was employed by Jakel Trucking and was acting in the course and scope of his employment. Erion applied for a job with Jakel Trucking as a driver on January 24, 2019, and again on February 5, 2019. At the time he applied, Erion did not have a Class A commercial driver’s license (“CDL”). His only commercial driving experience was driving a straight truck; he had no experience driving a tractor-trailer. Erion obtained [*4]  a Class A CDL in late January or early February 2019, through the State of Minnesota.

On the night of May 13, 2019, Erion slept in the sleeper cab of the tractor-trailer overnight in La Cygne, Kansas. He woke up sometime between 4:00 and 5:00 a.m. the next morning to begin his haul job. Erion called his wife and then completed a 10-15 minute pre-trip inspection of the tractor-trailer. During the inspection, Erion looked for mechanical issues, safety issues, tire issues, loose or missing parts, and burnt-out lights. Erion testified at his deposition that he found no issues that needed to be addressed before his trip; he believed his brakes were in safe condition.

The wreck occurred around 5:35 a.m. on May 14, 2019. Erion was traveling westbound on K-68 Highway in Franklin, County, Kansas, when he struck a deer crossing the road while traveling at approximately 65 mph. Erion locked up his brakes and began an uncontrolled skid. Before hitting the deer, Erion steered left to avoid hitting it, which caused the front of the tractor to spin counterclockwise and impact the south guard rail of the Hickory Creek Bridge. This impact redirected the semi-tractor, facing it eastbound, into a jackknifed [*5]  position with the attached trailer covering both lanes of travel. The tractor-trailer became wedged at the entrance of the bridge—the cab on the south side of the bridge and the rear wheels of the trailer on the north side of the bridge. Decedent’s 1995 Ford F-150 pickup truck crashed into the rear of the trailer, resulting in Decedent’s death. The accident took place at a relative flat spot on the highway with no sight obstructions to drivers coming from the east or west. Decedent’s truck became engulfed in flames after impacting the tractor-trailer.⁹

Although the posted speed limit on K-68 Highway where the accident occurred was 65 mph, the posted speed limit is not necessarily an appropriate safe speed. According to one of Plaintiffs’ experts, 65 mph is too fast for a heavy duty tractor-trailer on a rural road in the dark, with sections of wooded environment, and an empty trailer that usually requires a greater stopping distance. When Erion saw the deer, he should have recognized it as a hazard and applied an appropriate driving defense that focused on maintaining his lane of travel by steering appropriately and maintaining control of his vehicle, rather than panic-braking [*6]  and steering in a manner to avoid hitting the deer.

The Kansas Highway Patrol arrived at the scene of the accident after it happened. Erion completed and passed both a field sobriety test from Officer Stanley at the scene, and breath alcohol and urine tests at Ransom Memorial Hospital. Erion does not recall being contacted by the Kansas Highway Patrol for additional information after the accident.

The 2009 Volvo Tractor is equipped with a Bendix EC-60 Antilock Braking System/Automatic Traction Control unit. There were multiple active trouble or fault codes related to the automatic break system (“ABS”) on Erion’s tractor-trailer before, at the time of, and after the March 14, 2019 accident. “When an error is detected by the self-testing program, the EC-60 controller will illuminate the appropriate indicator lamp and place related trouble code information in the ECU’s memory.”¹⁰

III. Discussion

Plaintiffs allege two claims for relief in the Pretrial Order. First, they allege a negligence claim based on Erion’s acts or omissions while acting in the course and scope of his employment with Jakel—a respondeat superior theory. Second, Plaintiffs allege a negligence claim against Jakel Trucking [*7]  based on its own conduct, including failure to exercise reasonable care in hiring Erion, entrusting and equipping him with the trucking rig used in the accident, and failing to properly train him. Plaintiffs’ prayer for relief seeks, among other things, “[p]unitive damages in an amount to punish Jakel Trucking and deter Jakel Trucking and others from similar conduct.”¹¹

Defendants move for summary judgment on Plaintiffs’ punitive damages claim only, arguing that Plaintiffs cannot demonstrate either that Erion acted willfully or wantonly, or that punitive damages may be assessed against Jakel Trucking. Plaintiff responds that genuine issues of material fact exist and preclude summary judgment.

The parties agree that Kansas law governs the negligence claims in this case, including the issue of punitive damages. Under Kansas law, “[p]unitive damages are awarded on the theory that the defendant deserves punishment for his or her wrongful acts.”¹² K.S.A. § 60-3702(c) requires that the plaintiff prove “by clear and convincing evidence in the initial phase of the trial, that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice.” In addition, the statute limits punitive damages [*8]  against an employer or principal as follows:

(d) In no case shall exemplary or punitive damages be assessed pursuant to this section against:

(1) A principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer; or

(2) an association, partnership or corporation for the acts of a member, partner or shareholder unless such association, partnership or corporation authorized or ratified the questioned conduct.¹³

Thus, an “employer’s or principal’s alleged negligent acts in hiring, training, supervising, or retaining the employee/agent may not be advanced as a separate claim for punitive damages.”¹⁴

Plaintiffs do not claim that Defendants acted with malice or fraud, which leaves willful or wanton conduct as the basis for their punitive damages claim. “A willful wrong involves an intentional act and intentional injury. A wanton wrong involves an intentional act but not an intentional injury; the act is intentional and purposeful, but the consequences of the act are not.”¹⁵ To show wanton conduct, Plaintiffs must first “show that the act was ‘performed with a [*9]  realization of the imminence of danger.”¹⁶ Second, Plaintiffs must show “that the act was performed with ‘reckless disregard or complete indifference to the probable consequences of the act.'”¹⁷ The Kansas Supreme Court describes “wanton” behavior as follows:

On a sliding scale, wanton behavior falls between negligent behavior and willful or malicious misconduct. Wanton acts are those showing that the defendant realized the imminence of injury to others and refrained from taking steps to prevent injury because of indifference to the ultimate outcome, not that the defendant lacked simple due care. In other words, “the actor [must] have reason to believe his act may injure another, and [commits the act anyway,] being indifferent to whether or not it injures [another].”¹⁸

A. Erion

Defendants argue that there is no evidence in the summary judgment record that Erion’s conduct was willful or wanton. According to Defendants, Erion confirmed the tractor-trailer‘s safe condition before driving it and was unaware of Decedent’s presence behind him at the time of the accident.¹⁹ Additionally, Defendants point to evidence that Erion drove the posted speed limit, and that his use of the brakes to avoid [*10]  hitting the deer was an involuntary loss of control, which does not satisfy the willful and wanton standard. Therefore, Defendants contend that there is an absence of evidence to support either prong of the test for wanton conduct.

Plaintiffs respond that a reasonable jury could find that Erion acted willfully or wantonly based on the following evidence: (1) his admitted lack of experience driving a tractor-trailer; (2) he operated the tractor-trailer at an excessive speed given the road conditions; (3) he responded to the deer by steering left to avoid hitting it, panic-braking, and losing control of the vehicle; and (4) he ignored the dysfunctional ABS system on the truck, which he should have been aware of during his pre-trip inspection. Plaintiffs must be able to demonstrate that this specific conduct was willful or wanton.²⁰ The Court agrees with Defendants that, on this record, a reasonable jury could not conclude that Erion’s conduct was willful or wanton.

Plaintiffs make no showing with respect to Erion’s knowledge of a dangerous condition. As for Erion’s experience, it is uncontroverted that he had no previous experience driving a tractor-trailer like the one he drove on May [*11]  14, 2019, before Jakel hired him as a driver. But it is also uncontroverted that by the time Jakel Trucking allowed him to drive the tractor-trailer, he had obtained a Class A CDL that authorized him to drive that vehicle. Plaintiffs offer no evidence upon which a jury could infer that, despite his CDL, Erion had reason to believe that his lack of experience placed others in imminent danger when he drove the tractor-trailer.

Erion testified that he believed he was traveling at the appropriate speed because he was driving the posted speed limit. And Plaintiffs offer no evidence that Erion knew he should hit the deer instead of avoid it when it darted into the road. While Plaintiffs submitted evidence about what Erion’s training should have been on the issue of animals in the roadway, there is no evidence he was aware of this guidance and ignored it. While evidence about Erion’s lack of training may form the basis of Plaintiffs’ negligence claim against Jakel Trucking for failure-to-train, for which punitive damages is not available, it does not support a finding of wantonness on “the questioned conduct” that proximately caused the accident.²¹

There is evidence that certain fault codes on [*12]  the truck’s ABS prior to May 14, 2019, were active but Plaintiffs offer no non-conclusory evidence that Erion was aware of these codes, or that the ABS itself was not functioning properly. Stanley B. Andrews, Plaintiffs’ accident reconstruction and vehicle dynamics expert, states in his report that the active fault codes should have triggered an alert on the truck’s dashboard, so Plaintiffs contend that a reasonable jury could infer that Erion saw and ignored the signal. Andrews also states in his report that if the ABS was “fully functioning,” and if Erion “had maintained his original heading position,” his loss of control that caused the accident could have been avoided.²² But there is no information in the report linking the fault codes to the conclusion that the ABS failed. Nor does Plaintiffs’ other expert, Paul Herbert, opine that the ABS failed, contributing to the accident. Herbert is a commercial motor vehicle safety and compliance expert. Most of his report concerns the industry standards that should have guided Erion’s actions on May 14, 2019, and the adequacy of the safety programs in place by Jakel Trucking. Herbert opines that it was Erion’s speed and improper reaction [*13]  to the deer in the road that caused him to lose control of the tractor-trailer; he does not opine that the ABS system was not functioning properly.

The test for wanton conduct is whether “the defendant realized the imminence of injury to others and refrained from taking steps to prevent injury because of indifference to the ultimate outcome,” not whether “the defendant lacked simple due care.”²³ The mere possibility of danger is not enough.²⁴ Erion testified that he had never experienced issues with the ABS, that he had no knowledge or information about the system not functioning properly, and that during his pre-trip inspection he did not notice any issues—he testified that he believed his brakes were in safe condition. Given this evidence, a reasonable jury could not find that Erion realized the imminence of injury to others based on the ABS fault codes and chose to drive anyway due to indifference on May 14, 2019.

There is likewise no evidence that Erion’s decisions to drive 65 mph and attempt to avoid the collision were made with indifference to the risks posed to a following vehicle. It is uncontroverted that Erion conducted a 10-15 minute pre-trip inspection to check on [*14]  safety and maintenance issues and that he determined there were none. It is also uncontroverted that Erion was driving the posted speed limit. Although a reasonable jury could determine that Erion should have reduced his speed and did not react properly to the sudden presence of a deer in the road, it is uncontroverted that he was unaware that he responded inappropriately, nor was he aware that he was driving too fast. Despite Plaintiffs’ evidence that these acts likely contributed to the collision, it is not enough for Plaintiffs to demonstrate negligence in order to submit punitive damages to the jury. They must show that Erion knew that his actions or inactions would likely or probably result in injury to others.²⁵ The evidence presented on summary judgment falls short of this threshold.

B. Jakel Trucking

Defendants next move for summary judgment on Plaintiffs’ punitive damages claim against Jakel Trucking. Plaintiffs respond that summary judgment on punitive damages should be denied because, when viewed in the light most favorable to Plaintiffs, a reasonable jury could find that (1) Jakel Trucking acted willfully or wantonly in hiring and failing to properly train Erion, and [*15]  (2) Jakel Trucking authorized or ratified Erion’s willful and wanton conduct.

As discussed above, Plaintiffs’ first punitive damages theory is foreclosed by the plain language of § 60-3701(b). Although Plaintiffs can proceed on its claim against Jakel Trucking for negligent hiring, training, retention, or supervision for purposes of compensatory damages, punitive damages are not available to them on that claim.²⁶ Jakel Trucking cannot be liable for punitive damages except to the extent Erion, its employee, engaged in willful and wanton conduct and Jakel Trucking authorized or ratified that conduct.²⁷ Because the Court grants summary judgment in favor of Defendants on the issue of Erion’s willful and wanton conduct, it must necessarily grant summary judgment in favor of Jakel Trucking on the punitive damages claim, as well.

IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion for Summary Judgment on Plaintiff’s Claims for Punitive Damages (Doc. 49) is granted.

IT IS SO ORDERED.

Dated: December 13, 2022

/s/ Julie A. Robinson

JULIE A. ROBINSON

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).

² City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

³ Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

⁴ Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).

⁵ Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson, 477 U.S. at 248).

⁶ Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 1).

⁷ Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

⁸ See Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion”); D. Kan. R. 56.1(b)(2), (c) (“All material facts set forth [in the non-moving party’s statement of additional material facts] will be deemed admitted for the purpose of summary judgment unless specifically controverted”). Nonetheless, many of Plaintiffs’ additional statements of fact are immaterial because they are only relevant to Plaintiffs’ punitive damages request against Jakel Trucking. For the reasons explained in Part III.B, punitive damages are unavailable against Jakel Trucking.

⁹ Defendants offer a report prepared by Technical Trooper Brian L. Horney at the conclusion of the Kansas Highway Patrol’s CHART team investigation and forensic map of the collision. Doc. 50-3. That report concludes that Decedent was the sole cause of the collision because he was following too closely and failed to apply his own brakes prior to striking the back of the trailer. The report opines that Decedent was either distracted by his dog in the vehicle, distracted by an electronic device, fell asleep while operating the vehicle, or had a medical issue. Id. at 6. Plaintiffs object to the admissibility of this report under Fed. R. Evid. 403, 702, 703, 704, and 801. They submit evidence that the report offered by Defendants was superseded by an amended report dated May 23, 2022. See Doc. 52-3. That amended report does not include the statements about the Decedent being the sole cause of the accident; it states that “[i]t is not known why the driver of the pickup truck failed to stop his vehicle prior to striking the rear of the trailer.” Id. at 5.

In the reply, Defendants do not respond to Plaintiffs’ objections to the superseded Horney Report. Because it is Defendants’ burden as the proponent of this evidence to show that it can be presented in an admissible form at trial, the Court sustains Plaintiffs’ objections for purposes of summary judgment and does not consider Doc. 50-3. See Fed. R. Civ. P. 56(c)(2) & advisory committee’s note to 2010 amendment; Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016).

¹⁰ Doc. 52-5 at 12.

¹¹ Doc. 48 at 9.

¹² Adamson v. Bicknell, 295 Kan. 879, 287 P.3d 274, 280 (Kan. 2012) (citing Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 136 P.3d 428 (2006)).

¹³ K.S.A. § 60-3702(d)(1)-(2).

¹⁴ Smith v. Printup, 254 Kan. 315, 866 P.2d 985, 1001 (Kan. 1993); see also Stallings v. Werner Enters., Inc., 598 F. Supp. 2d 1203, 1215 (D. Kan. 2009) (citing Smith, 866 P.2d at 1001).

¹⁵ McElhaney v. Thomas, 307 Kan. 45, 405 P.3d 1214, 1222 (Kan. 2017) (quoting Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112, 118 (Kan. 1984)).

¹⁶ Adamson, 287 P.3d at 281 (quoting Reeves v. Carlson, 266 Kan. 310, 969 P.2d 252, 254 (Kan. 1998)).

¹⁷ Id. (quoting Reeves, 969 P.2d at 254).

¹⁸ Id. at 281-82 (quoting Frazier v. Cities Serv. Oil Co., 159 Kan. 655, 157 P.2d 822 (Kan. 1945)) (citations omitted).

¹⁹ Defendants offer no statement of fact about Erion’s awareness of Decedent’s pickup truck behind him. Instead, they make the conclusory assertion that he did not see the truck in their argument only. Because Defendants did not offer this assertion as a statement of fact with a citation to the record, the Court does not consider it in ruling on summary judgment.

²⁰ Reeves, 969 P.2d at 256; Adamson, 287 P.3d at 281 (“[T]he inquiry should have focused on the act [the defendant] allegedly performed, i.e., his choice to drive under circumstances that would likely cause a collision.”).

²¹ Smith v. Printup, 254 Kan. 315, 866 P.2d 985, 1004 (Kan. 1993).

²² Doc. 52-5 at 18.

²³ Adamson, 287 P.3d at 281

²⁴ See, e.g., Finke v. Post Acute Med., LLC, No. 19-2056-DDC-KGG, 2021 U.S. Dist. LEXIS 81081, 2021 WL 1663925, at *4 (D. Kan. Apr. 28, 2021) (citations omitted).

²⁵ See id. (citation omitted).

²⁶ See Adamson, 287 P.3d at 280; Patterson v. Dahlsten Truck Line, Inc., 130 F. Supp. 2d 1228, 1233 (D. Kan. 2000).

²⁷ Smith v. Printup, 254 Kan. 315, 866 P.2d 985, 1001 (Kan. 1993); see also Stallings v. Werner Enters., Inc., 598 F. Supp. 2d 1203, 1215 (D. Kan. 2009) (citing Smith, 866 P.2d at 1001).

United States District Court for the Northern District of Alabama, Southern Division

December 14, 2022, Decided; December 14, 2022, Filed

CIVIL ACTION NO. 2:20-cv-02062-KOB

Reporter

2022 U.S. Dist. LEXIS 225168 *; 2022 WL 17672619

SHARON WALLACE, Plaintiff, v. JUSTIN EBAUGH, et al., Defendants.

Core Terms

incompetence, wantonness, negligent entrustment, summary judgment, violations, genuine issue of material fact, entrusted, driving, tractor-trailer, negligent hiring, lower back, driver, summary judgment motion, damages, disk, speeding ticket, lumbar, nerve, lower back injury, no evidence, consciousness, supervision, protruding, arthritis, collision, traveling, surgery, traffic, infer, spine

Counsel:  [*1] For Sharon Wallace, Plaintiff: Douglas M Roy, Jr, LEAD ATTORNEY, THE ROY LAW FIRM LLC, Birmingham, AL.

For Justin Edward Ebaugh, Mercer Transportation Co Inc, Defendants: Richard M Thayer, Rick D Norris, Jr, LEAD ATTORNEYS, THAYER NORRIS, LLP, Birmingham, AL.

Judges: KARON OWEN BOWDRE, UNITED STATES DISTRICT JUDGE.

Opinion by: KARON OWEN BOWDRE

Opinion

MEMORANDUM OPINION

This matter comes before the court on Defendants’ motion for summary judgment. (Doc. 35). The case arises out of a vehicle collision where Defendant Justin Ebaugh, driving a tractor-trailer truck, rear-ended Plaintiff Sharon Wallace. Ms. Wallace alleges that the accident occurred because Mr. Ebaugh was negligent and wanton; she also alleges that Defendant Mercer Transportation Co. is vicariously liable for Mr. Ebaugh’s conduct and independently liable for “negligent/wanton entrustment, hiring, training supervision, and/or retention.” (Doc. 1-1).

Defendants moved for summary judgment on the wantonness claim against Mr. Ebaugh and the direct claims against Mercer. Defendants also “request an Order precluding Plaintiff from recovering any compensatory damages related to treatment . . . for any alleged injuries to her lower back/lumbar spine.” (Doc. 35 [*2]  at 1). Because Ms. Wallace has not pointed to evidence on which a reasonable jury could rely to find that Mr. Ebaugh acted wantonly or that he was incompetent, the court will grant Defendants’ motion as to the wantonness claim against Mr. Ebaugh and the negligent hiring and entrustment claims against Mercer. Ms. Wallace has, however, provided sufficient evidence to create a genuine issue of material fact as to the cause of her lower back injuries; so the court will deny Defendants’ motion for summary judgment as to damages related to Ms. Wallace’s lower back injuries.

I. Facts

On November 19, 2019, Ms. Wallace was driving west on Highway 150 in Bessemer, Alabama. A car traveling in front of Ms. Wallace stopped abruptly to make a left-hand turn, causing Ms. Wallace to stop abruptly as well. Mr. Ebaugh, traveling behind Ms. Wallace, then collided with her vehicle from behind. Ms. Wallace did not recall how fast she was traveling prior to stopping or how fast Mr. Ebaugh was traveling behind her. (Doc. 35-3 at 15-16). Ms. Wallace also testified that she first saw Mr. Ebaugh “when he hit me” and that she did not see him at any point prior to that or “have any idea how closely he was following [*3]  behind” her. (Doc. 35-3 at 20).

Ms. Wallace was treated on November 21, 2019 at Medplex Injury Clinic, where a nurse practitioner examined her and recommended physical therapy. Ms. Wallace returned to Medplex on December 7, 2019 and saw Dr. Robert Agee. Because Ms. Wallace still had significant lower back pain, Dr. Agee ordered an MRI of her lumbar spine. The MRI showed severe arthritis and a protruding disk pressing on a nerve root at the fourth level of Ms. Wallace’s lumbar spine. Dr. Agee ordered an epidural steroid injection, which only slightly lessened Ms. Wallace’s pain. Dr. Agee then referred Ms. Wallace to Dr. Spain Hodges for a cervical opinion. Dr. Hodges recommended surgical intervention—a “lateral lumbar fusion at the third and fourth level with posterior instrumentation and fusion,” carrying an approximate cost of $ 233,000. (Doc. 35-5 at 5-8). While the summary judgment record is not crystal clear on this point, the evidence suggests that Ms. Wallace has not yet undergone the surgery. See, e.g., (doc. 35-5 at 8).

II. Legal Standard

A. Summary Judgment

A party moving for summary judgment must demonstrate the absence of any “genuine dispute as to any material fact” and that [*4]  it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying the evidence “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party meets that burden, the burden shifts to the non-moving party to demonstrate that the case involves genuine issues of material fact. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). In doing so, the nonmovant must point to evidence beyond the pleadings to designate “specific facts showing . . . a genuine issue for trial.” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). On summary judgment, the court must view the evidence in the record and draw reasonable inferences from the evidence in the light most favorable to the non-moving party. Sconiers v. Lockhart, 946 F.3d 1256, 1260 (11th Cir. 2020). So, in evaluating this motion, the court views the evidence in the light most favorable to Ms. Wallace.

B. Wantonness

Under Alabama law, wantonness is “Conduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” Ala. Code § 6-11-20(b)(3). Because it “requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, [wantonness] is not to be confused with negligence (i.e., mere inadvertence).” Valley Bldg. & Supply, Inc. v. Lombus, 590 So. 2d 142, 144 (Ala. 1991) (citing Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142, 145 (Ala. 1987)). But wantonness does not require [*5]  “a specific design or intent to injure the plaintiff.” Alfa Mut. Ins. Co. v. Roush, 723 So. 2d 1250, 1256 (Ala. 1998) (citing Joseph v. Staggs, 519 So. 2d 952 (Ala. 1988)). While wantonness is often a question for the jury, a court should not submit it to the jury where the record contains no evidence from which a jury could reasonably conclude that a defendant acted wantonly. See Alfa Mut. Ins. Co., 723 So. 2d at 1257 (wantonness claim “was not supported by the evidence and should not have been presented to the jury”).

C. Negligent Entrustment and Hiring/Training/Supervision

In Alabama, the elements of negligent entrustment are “(1) an entrustment (2) to an incompetent (3) with knowledge that he is incompetent, (4) proximate cause, and (5) damage.” Pollnitz v. Univ. of Ala. Bd. of Trs., No. 2:14-cv-00807-MHH, 2015 U.S. Dist. LEXIS 100924, 2015 WL 4626882, *7 (N.D. Ala. 2015) (quoting Thompson v. Mindis Metals, Inc., 692 So. 2d 805, 807 (Ala. 1997)). To make an entrustment, “one must retain either ownership of the property or dominion and control over it.” Thompson, 692 So. 2d at 807 (citing Land v. Niehaus, 340 So. 2d 760, 762 (Ala. 1976)). An incompetent is one “likely because of his youth, inexperience, or otherwise to use [the entrusted property] in a manner involving unreasonable risk of physical harm to himself and others.” Dunaway v. King, 510 So. 2d 543, 545-46 (Ala. 1987) (quoting Mason v. New, 475 So. 2d 854, 856 (Ala. 1985)).

Negligent hiring, training, and supervision are essentially identical claims under Alabama law. Southland Bank v. A & A Drywall Supply Co. Inc., 21 So. 3d 1196, 1215 n. 17 (Ala. 2008) (no distinction between wrongful training and wrongful supervision); Univ. Fed. Credit Union v. Grayson, 878 So. 2d 280, 291 (Ala. 2003) (discussing “negligent supervision and hiring” as a single claim).¹ Regardless of how [*6]  a plaintiff styles the claim, it requires that the plaintiff “establish ‘by affirmative proof’ that the employer actually knew of the incompetence [of the employee], or that the employer reasonably should have known of it.” Burback v. BNSF Ry. Co., Inc., 963 F. Supp. 2d 1255, 1266 (N.D. Ala. 2013) (quoting Southland Bank, 21 So. 3d at 1215-16).

III. Analysis

A. Wantonness Claim Against Mr. Ebaugh

Because Ms. Wallace is unable to point to any evidence from which a jury could reasonably infer that Mr. Ebaugh acted with conscious disregard for her or others’ safety, Mr. Ebaugh is entitled to summary judgment on the wantonness claim. Ms. Wallace testified at her deposition that she did not see Mr. Ebaugh prior to the collision and did not know how fast he was going or how closely he was following her. (Doc. 35-3 at 15-16, 20). Without evidence on these points, Ms. Wallace cannot point to any basis on which a jury could conclude that Mr. Ebaugh’s driving involved a conscious choice to drive in a manner that endangered other drivers.

In her brief, Ms. Wallace emphasizes the requirement that a driver leave a safe distance between himself and any vehicles in front of him, as well as Mr. Ebaugh’s knowledge of this rule. (Doc. 54 at 3). Critically, however, she points to no evidence other than the fact [*7]  of the collision itself to show that Mr. Ebaugh did not maintain a safe distance, much less that he did so consciously or recklessly rather than through mere negligence. A jury could reasonably infer from the collision alone that Mr. Ebaugh was following at an unsafely close distance, though it would not be compelled to reach that conclusion. But even if the jury inferred that Mr. Ebaugh was following too closely, that alone is insufficient for a finding of wantonness.

Unlike negligence, wantonness “requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission” and is therefore “not to be confused with negligence (i.e., mere inadvertence).” Valley Building & Supply, 590 So. 2d at 144. Evidence suggesting a violation of traffic laws does not by itself raise an inference of the consciousness required for wantonness. See, e.g., Jinright v. Werner Enters. Inc., 607 F. Supp. 2d 1274, 1277 (M.D. Ala. 2009) (“failing to look to one’s left before crossing a lane, while imprudent and likely negligent, is . . . not suggestive of the kind of knowledge of likely injury required by the consciousness standard applied to wantonness claims in Alabama”); Gordon v. Schneider Nat. Carriers, Inc., 951 F. Supp. 207, 212 (M.D. Ala. 1996) (summary judgment granted on wantonness claim despite genuine issue of fact as to whether defendant was [*8]  traveling at an unsafely high speed). Thus, while Ms. Wallace may be able to show a genuine issue of material fact as to whether Mr. Ebaugh was following her too closely, a jury would still have no basis from the evidence in the summary judgment record to infer that he did so with a conscious disregard for safety rather than through mere negligence.

B. Negligent Entrustment and Negligent Hiring Claims Against Mercer

Defendants argue that they are entitled to summary judgment on the negligent entrustment claim because Mr. Ebaugh owned the tractor-trailer rig and Mercer therefore did not “entrust” it to him. Defendants further contend that Ms. Wallace can point to no evidence creating a genuine issue of material fact as to Mr. Ebaugh’s incompetence, an element required for both negligent entrustment and negligent hiring.

1. Negligent Entrustment

Defendants offered uncontroverted evidence that Mr. Ebaugh, not Mercer, owned the vehicle, pursuant to a “lease purchase” arrangement. (Doc. 54-2 at 7, Doc. 54-4 at 3). Ms. Wallace argues that Mercer nevertheless “entrusted” the vehicle to Mr. Ebaugh because it “maintained liability insurance on the vehicle, received a percentage of the revenue generated, [*9]  inspect[ed] the tractor-trailer per federal regulations at least two times a year, and Defendant Ebaugh operated the tractor-trailer under Mercer’s ‘DOT’ authority.” (Doc. 42 at 21-22).

All the connections that Ms. Wallace draws between Mercer and the vehicle, however, fall far short of “dominion” or “control,” which a defendant must maintain to be deemed capable of “entrusting” property to another. Thompson, 692 So. 2d at 807. See also Lewis v. Linkamerica Corp., 2009 U.S. Dist. LEXIS 150249, 2009 WL 10704903, *2 (N.D. Tex. Dec. 16, 2009) (granting summary judgment to defendant trucking company on negligent entrustment claim where plaintiffs had “not raised a material fact question regarding whether Defendant owned the tractor trailer” driven by the defendant’s employee). Mercer’s safety director, Leonard Dunman, testified that drivers bring their own trucks, accept or decline routes that Mercer offers to them, and “take the tractor-trailer with them” if they leave Mercer. As Mr. Dunman explained, “They’re in control. It’s their tractor-trailer.” (Doc. 35-1 at 4). Ms. Wallace offers no evidence to contradict Mr. Dunman’s account of the relationship, which demonstrates that Mr. Ebaugh, not Mercer, had “dominion” and “control” of the tractor-trailer. No genuine issue of material fact exists regarding whether Mercer [*10]  entrusted the tractor-trailer to Mr. Ebaugh under Alabama law.

Ms. Wallace does not expressly argue alternatively that Mercer entrusted its DOT authority negligently to Mr. Ebaugh. But because Ms. Wallace mentions that Mr. Ebaugh operated the tractor-trailer rig under Mercer’s DOT authority, the court notes that it “is highly skeptical that DOT authority is chattel within the meaning of a negligent entrustment claim.” Sanchez v. S&H Transp., Inc., No. 20-cv-0374-CVE-SH, 2022 U.S. Dist. LEXIS 74480, 2022 WL 1213127, *3 (W.D. Okla. Apr. 25, 2022). Thus, Mr. Ebaugh’s operation under Mercer’s DOT authority does not provide an alternative basis for a negligent entrustment claim against Mercer, and Mercer is entitled to summary judgment on the negligent entrustment claim.

2. Negligent Hiring

Ms. Wallace does, however, attempt to refute Defendants’ contention that no evidence shows Mr. Ebaugh’s incompetence as required for the negligent hiring claim. Specifically, Ms. Wallace contends that Mr. Ebaugh’s driving record contained prior violations that put Mercer on notice that Mr. Ebaugh was incompetent. (Doc. 54 at 6). The driving record Ms. Wallace cites includes six violations: a license suspension in May 2014, three speeding tickets from December 2013, February 2014, and July 2017, and two “improper equipment” violations [*11]  for operating without required equipment from May 2018 and August 2018. (Doc. 54-5 at 1). Ms. Wallace also offers a report dated May 9, 2018 from the Federal Motor Carrier Safety Administration showing that Mr. Ebaugh had a December 2017 violation for “failure to obey [a] traffic control device.” (Doc. 54-6 at 2). Finally, Ms. Wallace submitted an annual certification of violations that Mr. Ebaugh completed for Mercer that lists two speeding violations, one in May 2018 and the other in July 2018. (Doc. 54-8). However, the violation listed as July 2018 likely refers to the previously mentioned July 2017 ticket because the form is dated prior to July 2018.

Mercer does not argue that it was unaware of Mr. Ebaugh’s record; rather, it responds that Mr. Ebaugh’s record, while imperfect, was “more than sufficient to maintain a valid CDL [commercial driver’s license]” and that Mr. Ebaugh’s past violations were “a far cry from being sufficient to establish a genuine issue with regard to incompetence.” (Doc. 36 at 24). Mercer cites Craft v. Triumph Logistics, Inc., 107 F. Supp. 3d 1218, 1224-25 (M.D. Ala 2015), where the court found that the defendant’s driving record, which included “several moving violations” did not create a genuine issue of material fact because they [*12]  did not “establish the kind of ‘habitual negligence’ that amounts to incompetence.” The court in Craft also cited a number of other precedents with similar findings that a small number of moving violations did not amount to incompetence. 107 F. Supp. 3d at 1225 (collecting cases).

The court first notes that Mr. Ebaugh’s May 2014 license suspension is not relevant to his ability to operate a vehicle properly. Mr. Ebaugh explained at his deposition that the suspension resulted from his failure to report that he had completed a driving school requirement following a speeding ticket although he had in fact completed the class, and Ms. Wallace has not disputed that account. (Doc. 54-4 at 4). The suspension accordingly was “administrative in nature—not related to [Mr. Ebaugh’s] actual driving habits or abilities.” Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 414 (Ala. 2005). Similarly, without additional information regarding the “operating without required equipment” citations, Ms. Wallace has not provided a basis on which a jury could infer that these violations are indicative of habitual negligence or an inability to drive safely. The violations that remain, then, are four speeding tickets over the six-year period prior to the accident at issue in this case (one each in 2013, [*13]  2014, and 2017 and 2018) and the December 2017 “failure to obey [a] traffic control device.”

These facts fall in between established precedents from the Supreme Court of Alabama. In Thompson v. Havard, 285 Ala. 718, 235 So. 2d 853, 857 (Ala. 1970), the court found a jury issue regarding competence where a driver had 11 moving violations over a period of about three years. Conversely, the court in Thompson quoted with approval a Texas case stating that “proof of only one previous traffic violation is grossly inadequate to establish incompetency or recklessness, and proof of two moving violations or accidents within a two year period prior to the accident made the basis of the suit, is probably insufficient,” 235 So. 2d at 857 (quoting Broesche v. Bullock, 427 S.W.2d 89, 93 (Tex. Civ. App. 1968)) (internal citations omitted). The Supreme Court of Alabama likewise affirmed a grant of summary judgment appropriate where the plaintiff’s only evidence of a driver’s incompetence was two speeding tickets within five years of the accident and a DUI charge within ten years of the accident. Pryor v. Brown & Root USA, 674 So. 2d 45, 51-52 (Ala. 1995).

District courts in this circuit applying Alabama law have gleaned from past precedents the principle that “several traffic violations do not establish habitual negligence if they occur under ‘diverse circumstances.'” Green v. Markovitch, 385 F. Supp. 3d 1190, 1197 (N.D. Ala. 2019) (citing Craft, 107 F. Supp. 3d at 1225). “Instead, the kind [*14]  of habitual negligence that amounts to incompetence under Alabama law includes situations where an employee engaged in the same negligent practice numerous times.” Green, 385 F. Supp. 3d at 1197 (citing Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 941 (Ala. 2006)). For example, the plaintiff had presented a genuine issue of material fact regarding competency by presenting evidence that the driver “had two DUI convictions, four accidents in the two years preceding [the accident at issue], and an admitted ‘dependency’ on [two medications].” Hobbs v. U.S. Xpress, Inc., No. 18-cv-02129-LSC, 2021 U.S. Dist. LEXIS 44449, 2021 WL 913398, *4 (N.D. Ala. Mar. 10, 2021).

Here, plaintiffs have presented evidence that Mr. Ebaugh was cited for speeding four times in the six years prior to the accident. The court finds this record closer to those at issue in cases where courts applying Alabama law have found the evidence insufficient to create an issue of fact regarding incompetence than to Hobbs or Thompson. Three of Mr. Ebaugh’s four speeding convictions date from July 2017 or earlier, leaving only one within the two years prior to the November 2019 accident. The Supreme Court of Alabama has stated that one violation in two years is “grossly inadequate” to establish incompetence. Thompson, 235 So. 2d at 857. Thus, Mr. Ebaugh’s prior speeding tickets are insufficient to demonstrate incompetence here.

Ms. Wallace also argues that Mercer [*15]  violated its own policy by hiring Mr. Ebaugh despite his prior speeding tickets. (Doc. 42 at 24-25). But an employer’s policy is not the measure of competence; rather, “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. So, the court concludes that a reasonable jury could not find from Mr. Ebaugh’s driving record that he was incompetent and will grant summary judgment for Mercer on the negligent entrustment claim.

C. Damages for Treatment of Ms. Wallace’s Lower Back

The final component of Defendants’ summary judgment motion is a request that the court rule that Ms. Wallace cannot recover compensatory damages for treatment of her lower back. Defendants specifically request “an Order” excluding the cost of treatment for Ms. Wallace’s lower back/lumbar spine from any damages she may recover. (Doc. 35 at 4). The court construes this request as an additional component of the summary judgment motion, consistent with Rule 56‘s provision that a party may seek summary judgment on any claim, defense or “part of [a] claim or defense.” Fed. R. Civ. P. 56(a). So, the court assesses this issue under the same summary judgment rubric as the wantonness and [*16]  negligent hiring and entrustment claims, asking whether Ms. Wallace has demonstrated a genuine issue of material fact regarding causation of her lower back injuries and viewing the evidence in the light most favorable to Ms. Wallace.

Defendants acknowledge that one of Ms. Wallace’s doctors, Dr. Robert Agee, testified initially in his deposition that “it was his opinion within ‘a reasonable degree of medical certainty’ that [Ms. Wallace’s] condition was caused by the subject accident.” (Doc. 36 at 16; Doc. 35-5 at 8). But Defendants argue that Dr. Agee had inadequate knowledge of Ms. Wallace’s history of back problems prior to the injury and argue that he later “qualified” his opinion by stating that Ms. Wallace’s back problems “may have been exacerbated” by the accident and conceded that she may have needed surgery even if the accident had not occurred. (Doc. 36 at 14-15).

A jury may or may not accept Dr. Agee’s opinions, but his deposition testimony establishes a genuine issue of material fact regarding causation. Dr. Agee testified that he reviewed Ms. Wallace’s medical records when he treated her on December 7, 2019. (Doc. 35-5 at 4). At the December visit, he also ordered an MRI [*17]  of her lower back, which revealed “severe arthritis at [the third] level [of her lower back] and a protruding disk that was pressing on the left L4 nerve root.” (Doc. 35-5 at 6). Dr. Agee testified that he believed with a reasonable degree of medical certainty that the disk protrusion was “caused by the November 18, 2019 motor vehicle accident.” He subsequently referred Ms. Wallace to Dr. Spain Hodges, who recommended surgery. (Doc. 35-5 at 7). On cross examination, Dr. Agee acknowledged that an MRI from November 11, 2019, prior to the accident, showed “left disk protrusion compressing the left L4 nerve root.” (Doc. 35-5 at 10). On re-direct, Dr. Agee appeared to clarify that the November 11, 2019 MRI showed that “there may be a bulge and some arthritis there, but not a protruding disk. That’s what I saw as the difference from MRI to MRI.” (Doc. 35-5 at 13).²

Defendants point to Dr. Agee’s response “That may be correct, yes, sir” when asked whether Ms. Wallace’s history would “make it very difficult to say this lady wasn’t going to need a surgery regardless of whether she was involved in this accident.” (Doc. 35-5 at 11). But Dr. Agee’s full answer provides additional context:

That may [*18]  be correct, yes, sir. And you know, I think what I see from her MRI, you know, what stands out more is that she also had that protruding disk on to the left which compresses onto the left L4 nerve root which, from what I heard on your previous MRI report, that looks somewhat new from the accident. So I do think the arthritis was there previously, even throughout all of the MRIs that were done, but I think the newer thing was the protruding disk compressing on the left L4 nerve root which looked like it had gotten worse from her accident.

But you are right, I mean, you can definitely have surgery from arthritis itself and she may have been headed that route from that standpoint. But I think the pain shooting down her legs and the compressing of that nerve may have quickened things and/or made, you know, this — her present to us with the pain that she was suffering from.

(Doc. 35-5 at 11) (emphasis added)

To be sure, a jury may or may not credit Dr. Agee’s opinion that this accident caused some or all of the medical treatment that Ms. Wallace later received. But the court cannot say based on the evidence before it that Dr. Agee’s testimony is so speculative that no reasonable jury could [*19]  conclude that any of Ms. Wallace’s treatment of her lower back was caused by the collision with Mr. Ebaugh.

Viewing the evidence in the light most favorable to Ms. Wallace and drawing all reasonable inferences from it, she has shown a genuine issue of material fact regarding causation of her lower back injuries. So, the court will deny Defendants’ motion for summary judgment as to damages for treatment of Ms. Wallace’s lower back.

IV. Conclusion

Ms. Wallace has not provided any evidence from which a jury could reasonably conclude that Mr. Ebaugh acted wantonly when he rear-ended her. Nor has she pointed to evidence that could support a finding that Mercer entrusted the tractor-trailer rig to Mr. Ebaugh, or that Mr. Ebaugh was incompetent when Mercer engaged his services. So, the court will GRANT Defendants’ motion for summary judgment on the wantonness, negligent entrustment, and negligent hiring claims. However, because Ms. Wallace has presented evidence sufficient to create a genuine issue of material fact regarding whether the accident caused some or all of the lower back injuries for which she received treatment, the court will DENY Defendants’ motion as to damages related to those [*20]  injuries.

DONE and ORDERED this 14th day of December, 2022.

/s/ Karon Owen Bowdre

KARON OWEN BOWDRE

UNITED STATES DISTRICT JUDGE

ORDER

This matter comes before the court on Defendants’ motion for summary judgment. (Doc. 35). For the reasons explained in the memorandum opinion entered contemporaneously with this Order, the court GRANTS Defendants’ motion for summary judgment on the wantonness claim against Mr. Ebaugh and the negligent hiring and negligent entrustment claims against Mercer, but DENIES Defendants’ motion as to the issue of damages related to Ms. Wallace’s lower back/lumbar spine injuries.

DONE and ORDERED this 14th day of December, 2022.

/s/ Karon Owen Bowdre

KARON OWEN BOWDRE

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ For brevity, the court will refer to this claim simply as “negligent hiring.”

² Ms. Wallace’s counsel, Doug Roy, initially asked Dr. Agee if a record from 2015 showed the left disk protrusion, to which Dr. Agee answered that he did not have records of 2015. Mr. Roy then asked, “The one that they mentioned, there was no mention in there of an L4 protrusion?” (Doc. 35-5 at 13). The court understands Mr. Roy’s rephrased question to be referring to the November 11, 2019 MRI that defense counsel had asked Dr. Agee about during cross examination, particularly given its obligation to view all evidence in the light most favorable to Ms. Wallace as the non-movant on a summary judgment motion.