United States District Court, W.D. Texas, San Antonio Division.

Barbara GAY, Plaintiff,

v.

ALABAMA MOTOR EXPRESS, Kevin Watley, Defendants.

Case

No. SA-21-CV-00255-JKP

Signed January 6, 2023

Attorneys and Law Firms

Bianca Habib, Dunk Law Firm, Houston, TX, Michael E. Pierce, Pierce Skrabanek, PLLC, Houston, TX, Randall S. Richardson, Pro Hac Vice, Law Office of Randall S. Richardson PLLC, Houston, TX, for Plaintiff.

Nicondra Chargois-Allen, David R. Rangel, Davidson, Troilo, Ream & Garza, P.C., San Antonio, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

JASON PULLIAM, UNITED STATES DISTRICT JUDGE

*1 Before the Court is Defendants Kevin Watley and Alabama Motor Express’s Motion for Partial Summary Judgment. ECF No. 35. The Court reserved ruling on the motion to allow the parties an opportunity to conduct additional discovery. ECF No. 36. The Court then granted the parties’ request to extend Plaintiff Barbara Gay’s deadline to respond to the motion, making the new deadline December 19, 2022. ECF No. 50. Gay did not file a response and the time for doing so has passed. The motion is now ripe for ruling. Upon consideration of the Defendants’ briefing and the applicable law, the Court GRANTS the Defendants’ Partial Motion for Summary Judgment. Gay’s causes of action for negligent hiring, training, and supervision are DISMISSED with prejudice. Gay’s ordinary negligence and respondeat superior claims will proceed to trial.

BACKGROUND

This lawsuit arises from a motor vehicle accident that occurred on June 2, 2019. According to Gay, she was traveling on the access road of IH-10 East in San Antonio, Texas, when her vehicle was struck by a tractor trailer driven by Watley, who was acting in the scope and course of his employment with Alabama Motor Express at the time. Gay says she suffered significant physical injuries from the accident. She alleges Watley is liable for negligently failing to keep a proper lookout, timely apply breaks, obey traffic regulations, and pay attention. Gay alleges Alabama Motor Express is liable for Watley’s negligence under the theory of respondeat superior. She also alleges Alabama Motor Express is directly liable for negligently hiring, training, and supervising Watley. The Defendants filed a partial motion for summary judgment arguing Gay cannot proffer competent summary judgment evidence to support her claims for negligent hiring, training, and supervision.

LEGAL STANDARD

Summary judgment is appropriate if the record shows “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Rodriguez v. Pacificare, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993).¹ “A fact is material only if its resolution would affect the outcome of the action.” Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009). A genuine dispute for trial exists if the record taken as a whole could lead a reasonable trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010). Because there must be a genuine dispute of material fact, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).

*2 The moving party bears the initial burden of informing the court of the basis for the motion and of identifying those portions of the record which demonstrate the absence of a genuine dispute of material fact or the appropriateness of judgment as a matter of law. Celotex Corp., 477 U.S. at 323; Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). The movant is not required to negate the elements of the nonmovant’s case but may satisfy its summary judgment burden by demonstrating the absence of facts supporting specific elements of the nonmovant’s cause(s) of action. Little v. Liquid Air Corp., 37 F. 3d 1069, 1075, 1076 n.16 (5th Cir. 1994).

To satisfy this burden, the moving party must provide affidavits or identify any portion of the pleadings, discovery or admissions that demonstrate the absence of a triable dispute of material fact. Celotex Corp., 477 U.S. at 323; Rodriguez, 980 F.2d at 1019. “If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014).

If the movant carries its initial burden, the burden shifts to the nonmovant to present competent summary judgment evidence showing the existence of a genuine dispute of material fact. Matsushita, 475 U.S. at 586–87; see also Fed. R. Civ. P. 56(c). Upon the shifting burden, “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003); see also Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which this evidence raises a genuine dispute of material fact. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)).

In determining the merits of a motion for summary judgment, a court has no duty to search the record for material fact issues or to find a party’s ill-cited evidence. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012); Ragas, 136 F.3d at 458. In addition, a court may not make credibility determinations or weigh the evidence and must view all evidence and draw all reasonable inferences in the light most favorable to the party opposing the motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).

DISCUSSION

The Defendants assert the absence of a genuine dispute of material fact as to Gay’s negligent hiring, training, and supervision causes of action. Specifically, the Defendants cite evidence of Watley’s valid commercial driver’s license, employment history, training, and background check to refute Gay’s claim that Alabama Motor Express negligently hired, trained, and supervised him. According to the Defendants, Gay has proffered no evidence to the contrary, and indeed, by failing to respond their motion, Gay has provided the Court with none. This alone is sufficient to meet the Defendants’ summary judgment burden. However, the Court also finds the Defendants are entitled to summary judgment because a plaintiff cannot seek recovery against an employer on the theories of respondeat superior and direct negligence at the same time.

The common-law doctrine of respondeat superior holds one person vicariously liable for the acts of another based solely on the relationship between them. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130–31 (Tex. 2018), reh’g denied (Dec. 14, 2018). Under this respondeat superior doctrine, an employer may be vicariously liable for its employee’s negligence if “at the time of the negligent conduct, the worker (1) was an employee and (2) was acting in the course and scope of his employment.” Id. at 131; Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007). Conversely, direct causes of action asserting negligent hiring, training, and supervision are based on the employer’s own negligent conduct and not the employee’s negligent conduct. Williams v. McCollister, 671 F. Supp. 2d 884, 888 (S.D. Tex. 2009).

*3 As a general rule, in cases involving ordinary negligence, causes of action which impose direct liability on an employer for its own negligence (e.g., negligent hiring, …) and causes of action which impose vicarious liability on an employer for its employee’s negligence (respondeat superior) allow a plaintiff to recover twice on the same negligent act, that is, once for the employee’s negligence in causing the plaintiff’s injury, and again for the employer’s negligence in hiring the employee. Robinson, 2022 WL 174520, at *7; Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied). However, in this situation, if the plaintiff does not allege gross negligence, and the defendant employer admits vicarious liability, “the competence or incompetence of the [employee] and the care which was exercised in his employment are immaterial issues.” Id. Consequently, to preclude this double recovery, the two modes of recovery are mutually exclusive. Id.; Sanchez v. Transportes Internacionales Tamaulipecos S.A. de C.V., No. 7:16-CV-354, 2017 WL 3671089, at *2 (S.D. Tex. July 20, 2017); Arrington’s Estate v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.). In practicality, then, a plaintiff may not advance an ordinary negligence cause of action against an employer under both vicarious liability and direct liability theories when the vicarious liability of the employer is established “by an admission or stipulation of agency or course and scope of employment.” Plascencia v. Hillman, No. 19-CV-40, 2019 WL 4087439, at *3 (W.D. Tex. July 3, 2019); Robinson, 2022 WL 174520, at *7.

Here, Gay alleges Watley’s ordinary negligence caused the accident that is the subject of this action. Alabama Motor Express stipulates Watley was acting within the course and scope of his employment at the time of the accident occurred and, therefore, was its statutory employee for purposes of vicarious liability. See ECF No. 2 at 2 ¶ 7. Thus, under the doctrine of respondeat superior, Alabama Motor Express assumes vicarious liability for Watley’s alleged negligence. Alabama Motor Express’s admitted vicarious liability precludes recovery on any causes of action based on its own negligence. See Williams, 671 F. Supp. 2d at 888; Sanchez, 2017 WL 3671089, at *2; Fuller v. Werner Enterprises, Inc., No. 3:16-CV-2958, 2018 WL 3548886, at *2 (N.D. Tex. July 24, 2018); Rosell, 89 S.W.3d at 654. Because Gay cannot pursue both theories of recovery, summary judgment is granted as a matter of law on Gay’s direct negligence causes of action against Alabama Motor Express—that is, negligent hiring, training, and supervision. See Robinson, 2022 WL 174520, at *7; Fuller, 2018 WL 3548886, at *2.

CONCLUSION

For the reasons set forth above, the Court GRANTS the Defendants’ Partial Motion for Summary Judgment. ECF No. 35. Gay’s claims for negligent hiring, training, and supervision are DISMSSED with prejudice. Gay’s ordinary negligence and respondeat superior claims will proceed to trial.

It is so ORDERED.

All Citations

Footnotes

1 Although 2010 amendments replaced “issue” with “dispute,” the summary judgment standard “remains unchanged.” Fed. R. Civ. P. 56 advisory committee notes (2010 amend.).

End of Document

United States District Court, M.D. Georgia, Macon Division.

Martin MACK, Plaintiff,

v.

OLD DOMINION FREIGHT LINE, INC., and Harry Poole, Defendants.

CIVIL ACTION NO. 5:21-cv-00118-TES

Signed January 11, 2023

Attorneys and Law Firms

Katherine Lee McArthur, Caleb F. Walker, Lindsey Macon, Macon, GA, Michael Lee Thompson, Atlanta, GA, for Plaintiff.

Derron B. Bowles, Atlanta, GA, Elenore Klingler, Kevin P. Branch, Alpharetta, GA, for Defendant Old Dominion Freight Lines Inc.

Samuel G. Alderman, III, Macon, GA, for Defendant Harry Poole.

OMNIBUS ORDER

TILMAN E. SELF, III, JUDGE

*1 At the time of a motor vehicle collision that occurred on September 28, 2020, in Twiggs County, Georgia, Plaintiff Martin Mack drove one tractor-trailer and Defendant Harry Poole, while on business for Defendant Old Dominion Freight Line, Inc. (“ODFL”), drove the other. [Doc. 1, ¶¶ 13–14]. Before the Court is ODFL’s request that the Court compel the completion of a Rule 30(b)(6) deponent; a request by ODFL and Defendant Poole that the Court bifurcate the upcoming trial; Plaintiff’s request for sanctions against Defendant Poole; and two motions for partial summary judgment filed by ODFL and Defendant Poole. Easy stuff first.

A. ODFL’s Motion to Compel

At the time of the incident in this case, Plaintiff worked for FP Enterprises, Inc. (“FP”) as an independent contractor driving a tractor-trailer. [Doc. 39-1, p. 1]; [Doc. 35-1, ¶¶ 1–2]. Since some of Plaintiff’s claims concern lost wages and diminished earning capacity, ODFL noticed a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) to FP. [Doc. 39-1, pp. 1–2]; [Doc. 39-4]. FP did not move to quash or otherwise object to ODFL’s efforts to depose one of its representatives. [Doc. 39-1, pp. 2, 7].

Despite the deposition notice clearly stating that ODFL intended to obtain testimony related to FP’s “relationship, affiliation, or business connection with” Plaintiff, ODFL reported to the Court that “FP’s representative refused to discuss Plaintiff’s work for FP at any point before 2020[ ]” and walked out of the deposition.¹ [Doc. 39-4, p. 9]; [Doc. 39-1, pp. 2–3]; see also [Doc. 39-5, Perez Depo., pp. 8:9—13:13]. According to ODFL, FP’s conduct thwarted its efforts to obtain testimony on this topic and several other relevant issues—issues like compliance with the Federal Motor Vehicle Safety Act, issues relating to a post-accident inspection of the tractor-trailer driven by Plaintiff, and issues regarding FP’s policies and procedures for its drivers. [Doc. 39-1, pp. 3–4].

To that end, the scope of discovery, especially when it comes to “deposition-discovery rules[,] are to be accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 507–08 (1947). Federal Rule of Civil Procedure 26(b)(1) allows parties to

… obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

*2 Thus, the Court GRANTS ODFL’s Motion to Compel [Doc. 39] and ORDERS FP to produce a representative that is willing and capable of responding to the topics set forth in ODFL’s Notice of 30(b)(6) Deposition [Doc. 39-4] on January 17, 2023, at 10:00 a.m. at the William Augustus Bootle Federal Building and United States Courthouse in Macon, Georgia.

B. ODFL and Defendant Poole’s Motion to Bifurcate

During the Court’s hearing on January 11, 2023, the Court discussed ODFL and Defendant Poole’s request that it bifurcate the trial of this matter pursuant to O.C.G.A. § 51-12-5.1(d). [Doc. 41, p. 2]; [Doc. 47, p. 1]; [Doc. 77]. Although Plaintiff stated that he may prefer a non-bifurcated trial, the Court nevertheless GRANTS ODFL’s Motion to Bifurcate [Doc. 41] and Defendant Poole’s Motion to Bifurcate [Doc. 47] to “expedite and economize” the issues involved in the case. Fed. R. Civ. P. 42(b).

The trial of this matter is to occur in two phases. “In the first phase, the parties will present evidence on the liability for compensatory damages and the propriety of punitive damages[.]” McGinnis v. Am. Home Mortg. Servicing, Inc., No. 5:11–CV–284 (CAR), 2013 WL 3964916, at *3 (M.D. Ga. July 31, 2013). “[I]f the jury finds that punitive damages … should be awarded, the parties will present evidence as to the amount of punitive damages[ ]” in the second phase. Id.

C. Plaintiff’s Motion for Sanctions

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Alston v. City of Darien, 750 F. App’x 825, 835 (11th Cir. 2018) (per curiam). The moving party bears the burden of proving spoliation. Lamb v. Outback Steakhouse Fla., LLC, No. 1:19-CV-150 (LAG), 2021 WL 4507521, at *5 (M.D. Ga. Sept. 30, 2021). To carry that burden, the moving party must show: “(1) the missing evidence existed at one time; (2) the spoliating party had a duty to preserve the evidence; and (3) the evidence was crucial—not just relevant—to the moving party’s ability to prove [his] case.” Id. (internal citations omitted).

Plaintiff seeks spoliation sanctions against Defendant Poole for his decision to “flee the scene of the wreck and avoid being tested for drugs and alcohol within the timeframe required by law.” [Doc. 36-1, p. 1]. That argument faces at least two problems. First, no evidence of a drug or alcohol test existed, therefore no evidence could have been spoliated. Second, neither Defendant Poole nor ODFL were under a duty to initiate drug testing after the accident.

“In order for evidence to be spoliated, that evidence must first exist.” DeBakker v. Hanger Prosthetics & Orthotics E., Inc., No. 3:08-CV-11, 2009 WL 5031319, at *2 (E.D. Tenn. Dec. 14, 2009); see also LSR, Inc. v. Satellite Rest. Inc. Crabcake Factory USA, No. 1:17-CV-3722-SAG, 2020 WL 4784774, at *3 (D. Md. Aug. 18, 2020) (“A party cannot be held responsible for spoliating evidence that never existed.”). In this case, however, Plaintiff cannot show that the evidence ever existed. Although, Plaintiff admits that the evidence never existed, he argues that it should have. That’s not what the law requires, though.

A party “does not commit spoliation by failing to create evidence, [but] only by destroying, altering, or concealing it.” I.S. ex rel. Sepiol v. Sch. Town of Munster, No. 2:11-CV-160 JD, 2014 WL 4449898, at *9 (N.D. Ind. Sept. 10, 2014) (emphasis added). Applying that, Plaintiff’s efforts to obtain sanctions for spoliation of evidence fails at the outset. Further, Plaintiff’s argument that the evidence should have existed also fails.

*3 The parties agree that the possible underlying duty to initiate a drug test arises from the Federal Motor Carrier Safety Regulations, which provides, in relevant part:

(a) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol for each of its surviving drivers:

…

(2) Who receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:

(i) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or

(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

49 C.F.R. § 382.303 (emphasis added). That regulation unambiguously places the duty to initiate testing on employers, not individual drivers. Despite this, Plaintiff urges the Court to sanction Defendant Poole—the driver—for failing to sit for a drug and alcohol test. [Doc. 36-1, p. 1]. A plain reading of 49 C.F.R. § 382.303 absolutely does not require Defendant Poole to create any evidence of a drug or alcohol test on his own. To the extent any duty arose (which it did not) to procure evidence of a drug and alcohol test under the facts surrounding the collision in this case, that duty clearly fell to ODFL—not to Defendant Poole. See [Doc. 1, ¶ 11] in connection with [Doc. 6, ¶ 11].

However, even construing Plaintiff’s efforts as against ODFL, the federal regulation at issue doesn’t provide grounds for spoliation sanctions. Indeed, § 382.303 lays out exactly what is needed in order to invoke an employer’s duty to obtain a drug and alcohol test following an occurrence involving a commercial motor vehicle. First, a local or state law enforcement officer must issue a citation within eight hours of the accident. 49 C.F.R. § 382.303(a)(2). Both parties agree that Defendant Poole left the scene and never received a citation. [Doc. 36-1, p. 6]; [Doc. 33-1, ¶ 2]. Plaintiff, however, takes it a step further and argues the act of leaving the scene of the collision is enough to invoke spoliation sanctions. Plaintiff asks the Court to assume that if Defendant Poole would have stayed at the scene, law enforcement would have cited him for a traffic violation which would have initiated ODFL’s duty under the federal regulation. However, every step of that proposed chain of events requires speculation on speculation. And, speculation cannot serve as the basis for spoliation sanctions.² A.T.O. Golden Constr. Corp. v. Allied World Ins. Co., No. 17-24223-CIV, 2018 WL 5886663, at *5 (S.D. Fla. Nov. 9, 2018); In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1309 (N.D. Ga. 2011).

*4 Therefore, because law enforcement didn’t issue any citation for this collision (notwithstanding the eight-hour period in which it could have), the duty from the federal regulation for ODFL to obtain a drug and alcohol test for Defendant Poole was never implicated. That said, there simply isn’t an appropriate basis for the Court to conclude that Defendant Poole—or ODFL for that matter—spoliated evidence. For these reasons, the Court DENIES Plaintiff’s Motion for Sanctions [Doc. 36]. The Court will not provide an adverse jury charge with respect to what the jury may presume given the lack of a drug and alcohol test nor will it provide an adverse jury charge that might allow for an inference that Defendant Poole was under the influence of drugs or alcohol at the time of the collision. [Doc. 36-1, p. 8].

As discussed with the parties during the Court’s hearing on January 10, 2023, the best outcome is for the jury hear all of the non-speculative facts surrounding this case. See [Doc. 77, p. 2]. Those facts, of course, would include the fact that Poole left the scene after the collision. The Court is confident that after hearing the evidence, the jury can decide who and what it believes. With respect to testimonial evidence regarding drugs and alcohol, Plaintiff’s counsel may ask Defendant Poole whether he was under the influence of drugs or alcohol at the time of the collision. However, counsel must refrain from (1) telling the jury or eliciting testimony from witnesses that Defendant Poole or ODFL had any duty to initiate and obtain evidence of a drug or alcohol test and (2) telling the jury or eliciting testimony from witnesses that the lack of such test allows for a presumption that Defendant Poole was under the influence of drugs or alcohol.

D. ODFL and Defendant Poole’s Motions for Partial Summary Judgment

Given that Plaintiff alleges that Defendant Poole “was motivated by a sense of guilt” when he fled the scene of the collision, Plaintiff seeks uncapped punitive damages under O.C.G.A. § 51-12-5.1. [Doc. 33-2, p. 1 (citing [Doc. 1 ¶¶ 37–38])]. Not only do Defendant Poole and ODFL deny Plaintiff’s claim for punitive damages, but they also seek partial summary judgment as to Plaintiff’s efforts to reach beyond the statutory maximum allowed by O.C.G.A. § 51-12-5.1(g) and “uncap” his damages. [Doc. 33-2 p. 5]; [Doc. 34, pp. 1–2]; see also O.C.G.A. § 51-12-5.1(f). Defendant Poole and ODFL also seek a partial summary judgment ruling that Plaintiff was negligent per se at the time of the collision. [Doc. 33-2, pp. 15–17]; see also [Doc. 34, p. 1].

1. Legal Standard

A court must 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). A factual dispute is not genuine unless, based on the evidence presented, “ ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The moving party bears the initial responsibility of informing the court of the basis for its motion.” Four Parcels, 941 F.2d at 1437. The movant may cite to particular parts of materials in the record, including, “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); Fed. R. Civ. P. 56(c)(1)(A).³ “When the nonmoving party has the burden of proof at trial, the moving party is not required to ‘support its motion with affidavits or other similar material negating the opponent’s claim[ ]’ in order to discharge this ‘initial responsibility.’ ” Four Parcels, 941 F.2d at 1437–38 (quoting Celotex, 477 U.S. at 323). Rather, “the moving party simply may show—that is, point out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Four Parcels, 941 F.2d at 1437–38 (quoting Celotex, 477 U.S. at 324) (cleaned up). Alternatively, the movant may provide “affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.” Id.

*5 If this initial burden is satisfied, the burden then shifts to the nonmoving party, who must rebut the movant’s showing “by producing … relevant and admissible evidence beyond the pleadings.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (citing Celotex, 477 U.S. at 324). The nonmoving party does not satisfy its burden “if the rebuttal evidence ‘is merely colorable or[ ] is not significantly probative’ of a disputed fact.” Josendis, 662 F.3d at 1315 (quoting Anderson, 477 U.S. at 249–50). “A mere scintilla of evidence supporting the [nonmoving] party’s position will not suffice.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). Further, where a party fails to address another party’s assertion of fact as required by Federal Rule of Civil Procedure 56(c), the Court may consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). However, “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Anderson, 477 U.S. at 255. Succinctly put,

[s]ummary judgment is not a time for fact-finding; that task is reserved for trial. Rather, on summary judgment, the district court must accept as fact all allegations the [nonmoving] party makes, provided they are sufficiently supported by evidence of record. So[,] when competing narratives emerge on key events, courts are not at liberty to pick which side they think is more credible. Indeed, if “the only issue is one of credibility,” the issue is factual, and a court cannot grant summary judgment.

Sconiers v. Lockhart, 946 F.3d 1256, 1263 (11th Cir. 2020) (internal citations omitted).

Stated differently, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “The evidence of the [nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. And “if a reasonable jury could make more than one inference from the facts, and one of those permissible inferences creates a genuine issue of material fact, a court cannot grant summary judgment”; it “must hold a trial to get to the bottom of the matter.” Sconiers, 946 F.3d at 1263.

2. Punitive Damages Under Georgia Law

In Georgia, a plaintiff has a right to punitive damages in tort cases where “it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. § 51-12-5.1(b). However,

In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.

Id. at § 51-12-5.1(f) (emphasis added). Contending that there is a lack of evidence to support Plaintiff’s claim for uncapped punitive damages, ODFL and Defendant Poole argue that they are entitled to a punitive-damages cap of $250,000. See id. at § 51-12-5.1(g).⁴ The Court agrees.

*6 First, with respect to the “specific intent to cause harm” portion of O.C.G.A. § 51-12-5.1(f), Plaintiff testified that he doesn’t have any evidence that Defendant Poole was trying to hurt him through his actions or lack thereof leading up to the collision. [Doc. 66, Mack Depo., p. 82:13-24]. Without that evidence, there isn’t any basis for the Court to deny Defendant Poole and ODFL partial summary judgment on the issue of uncapped punitive damages when it comes to “intent to cause harm.” Id.; Four Parcels, 941 F.2d at 1437–38 (quoting Celotex, 477 U.S. at 324) (cleaned up) (noting that a moving party only has to point to “an absence of evidence to support the nonmoving party’s case[ ]” to obtain summary judgment). Second, when it comes to impairment, there similarly isn’t (consistent with the Court’s discussion above on Plaintiff’s efforts to obtain sanctions regarding alleged spoliation) any evidence of alcohol or drug usage in this case to pierce the statutory cap. See, e.g., [Doc. 65, Poole Depo., p. 47:11–13]; [Doc. 67, Valentine Depo., pp. 24:2—25:6 (noting that witness “did not specifically notice any signs that [he] would have contributed to [Defendant Poole] being impaired[ ]”)].

When determining whether uncapped punitive damages are available for cases like this one, the Georgia Supreme Court instructs that “[t]he question is whether the defendant was intoxicated to the degree that his judgment was substantially impaired.” Reid v. Morris, 845 S.E.2d 590, 597 (Ga. 2020). Here, this is no evidence of that beyond Plaintiff’s mere speculation. Accordingly, Defendant Poole and ODFL are entitled to the $250,000 cap as set forth in O.C.G.A. § 51-12-5.1(g) as a matter of law.

3. Negligence Per Se Under Georgia Law

Finally, ODFL and Defendant Poole argue that they are entitled to a finding that Plaintiff was negligent per se for his breach of the duty imposed by O.C.G.A. § 40-6-181. [Doc. 33-2, p. 17]; [Doc. 34, p. 1]. Since it is undisputed among the parties that Plaintiff was driving 67 miles per hour in a speed zone marked 55 miles per hour as he approached the T-intersection where Defendant Poole initiated his left-hand turn, the Court finds that Plaintiff was negligent per se. See [Doc. 33-1, ¶¶ 1, 8] in connection with [Doc. 50-1, ¶¶ 1, 8]. Consequently, the Court the Court GRANTS ODFL’s Motion for Partial Summary Judgment [Doc. 33] and Defendant Poole’s Motion for Partial Summary Judgment [Doc. 34].

E. Conclusion

Based on the foregoing, the Court GRANTS ODFL’s Motion to Compel [Doc. 39], ODFL’s Motion to Bifurcate [Doc. 41], and its Motion for Partial Summary Judgment [Doc. 33]. The Court also GRANTS Defendant Poole’s Motion to Bifurcate [Doc. 47] and his Motion for Partial Summary Judgment [Doc. 34]. However, the Court DENIES Plaintiff’s Motion for Sanctions [Doc. 36].

SO ORDERED, this 11th day of January, 2023.

All Citations

Footnotes

1 Astoundingly, FP’s representative thought it appropriate for him to call the shots during ODFL’s deposition. That’s not how it works though. Notwithstanding the FP representative’s initial thoughts that this case had nothing to do with a federal judge, the Court hopes that the FP representative’s presence at the hearing on ODFL’s efforts to compel his testimony provided some clarity. See [Doc. 39-5, Perez Depo., p. 8:10–19].

2 Plaintiff also argues that the evidence did exist (inside of Defendant Poole’s body) but because Defendant Poole left the scene, he spoliated it. However, Plaintiff’s counsel could not provide any cases or other support for such an argument. Counsel directed the Court to Little v. McClure, where now-Chief Judge Treadwell sanctioned a party for the destruction of a hands-free device. No. 5:12-CV-147 MTT, 2014 WL 3778963, at *3 (M.D. Ga. July 31, 2014). However, that case is wholly different from the instant action. In Little, the plaintiff contended that the defendant caused a wreck because he was on his cell phone and that the cell phone could not be inspected because the defendant returned the phone to its manufacturer. Id. at *1. Obviously, in that case, there was physical evidence—a cell phone—that was destroyed. Here, however, the “physical evidence” is more tenuous. Even assuming that Defendant Poole controlled some evidence, neither he nor ODFL were under a duty to obtain it.

3 Courts may consider all materials in the record, not just those cited by the parties. Fed. R. Civ. P. 56(c)(3).

4 “For any tort action not provided for by subsection (e) or (f) of this Code section in which the trier of fact has determined that punitive damages are to be awarded, the amount which may be awarded in the case shall be limited to a maximum of $250,000.00.” O.C.G.A. § 51-12-5.1(g).

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