JOSE A. TRINIDAD, Plaintiff, v. DANIEL JOE MOORE, JR., and RDB TRUCKING, LLC, Defendants.

 

Civil Action No. 2:15cv323-WHA

 

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

 

2016 U.S. Dist. LEXIS 106099

 

 

August 11, 2016, Decided

August 11, 2016, Filed

 

 

COUNSEL:  [*1] For Jose A. Trinidad, Plaintiff: Cesar Tavares, LEAD ATTORNEY, PRO HAC VICE, Arnold & Itkin LLP, Houston, TX; Henry Cooper Ellenberg, II, Thomas Shealer Moore, LEAD ATTORNEYS, Moore Law Group LLC, Birmingham, AL.

 

For Daniel Joe Moore, Jr., RDB Trucking, LLC, Defendants: Andrew Jackson Sinor, Jr., LEAD ATTORNEY, Hand Arendall, LLC, Birmingham, AL; Katie Hammett Hassell, Hand Arendall, LLC, Mobile, AL.

 

JUDGES: W. HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE.

 

OPINION BY: W. HAROLD ALBRITTON

 

OPINION

(wo)

 

MEMORANDUM OPINION AND ORDER

 

1. INTRODUCTION

This case is before the court on a Motion for Summary Judgment (Doc. #45), filed by the Defendants, Daniel Joe Moore, Jr. and RDB Trucking, LLC.

The Plaintiff filed a Complaint in this case on May 15, 2015. The Plaintiff brings claims for negligence (Count One), negligence theories including negligent entrustment (Count Two), and wantonness (Count Three). The Defendants move for summary judgment as to the claims in Count Two for negligent hiring, retention, training, supervision and other claims related to negligent entrustment, and the wantonness claims in Count Three.

For the reasons to be discussed, the Motion for Summary Judgment is due to be GRANTED in part and DENIED [*2]  in part.

 

1. SUMMARY JUDGMENT STANDARD

Summary judgment is proper “if there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324.

Both the party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or [*3]  other materials.”

To avoid summary judgment, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, 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).

 

III. FACTS

The submissions of the parties establish the following facts, construed in a light most favorable to the non-movant:

The case arises out of an automotive wreck in October of 2014. The wreck was a collision of a commercial vehicle owned by RDB Trucking, LLC and driven by Daniel Joe Moore, Jr. (“Moore”) with a vehicle driven by Plaintiff Jose A. Trinidad (“Trinidad”). The circumstances of the collision are in dispute. Trinidad’s view of the facts is that Moore was driving on the inside lane of four-lane U.S. Highway 231 when he improperly changed lanes and caused Trinidad to collide with the rear end of the commercial vehicle. At issue in the partial [*4]  Motion for Summary Judgment are the facts giving rise to the Plaintiff’s claims for negligence hiring, training, supervision, and negligence in equipping the truck, as claimed in Count II and claim for wantonness in Count III.

Trinidad contends that Moore had eight driving violations which establish that he is habitually negligent or an incompetent driver. Trinidad relies on the following incidents: three speeding tickets, a vehicle accident, falsification of logbooks, and a failure to properly maintain equipment. Trinidad reproduces in his brief a page from RDB Trucking’s accident register which shows that the accident Moore had shortly after being hired was deemed “preventable,” but the record was changed to say that it was not preventable. Trinidad states that the violations occurred within a three-year-period, and five of the violations occurred within the two years in which Moore worked for RDB Trucking. Trinidad also points to evidence regarding RDB Trucking’s policies as evidence that Moore should not have been hired, and should have been terminated after he was hired, including the deposition testimony of Ron Brock (“Brock), owner of RDB Trucking. Brock agreed in his deposition [*5]  that drivers violating RDB Trucking’s rules implicated safe driving beyond the safety ratings. (Doc. #54-3 at p.96:2-7).

RDB Trucking concedes that Moore had speeding tickets in 2009, 2011, and 2012, but states that the 2011 and 2012 tickets were for traveling four miles over the permit speed limits. (Doc. #45-1 at p. 26-27). RDB Trucking also states that the accident in which Moore was involved was caused by the other driver. (Doc. #45-1 at p.74-76). RDB Trucking provides testimony that the record of that accident was probably recopied by Brock’s daughter into RDB Trucking’s records and the change from indicating the accident was preventable to not preventable was a mistake. (Doc. #54-3 at p. 132:19-133:4). RDB Trucking points out that at the time of the accident, Moore had a valid commercial license and had been driving tractor-trailers for nearly ten years. (Doc. #45-1 at p.8: 10-11).

 

1. DISCUSSION

As noted, the Defendants have moved for summary judgment as to claims in Counts II and III.

 

A Count II–Negligent Entrustment1

 

1   As earlier noted, several theories are asserted in Count II of the Complaint. The Defendants have moved for summary judgment as to all of the claims related to negligent [*6]  entrustment with the same analysis, stating that Alabama law treats them all the same. The Plaintiff has responded that he opposes summary judgment as to negligent entrustment and failure to supervise, but only presents evidence as to entrustment. (Doc. #54 at p.28).

The elements of a claim for negligent entrustment are (1) an entrustment, (2) to an incompetent, (3) with knowledge that he is incompetent, (4) proximate cause, and (5) damages. Halford v. Alamo-Rent-A-Car, 921 So. 2d 409, 412 (Ala. 2005).

RDB Trucking seeks summary judgment on the ground that Moore was not an incompetent driver, so RDB Trucking cannot be held liable for negligent hiring, retention, entrustment, supervision or other related claims. RDB Trucking also contends that there is no evidence of knowledge or proximate cause.

Evidence of incompetence must bear on the ability to properly drive a vehicle. Halford, 921 So. 2d at 413. The Supreme Court of Alabama has explained that a plaintiff alleging negligent entrustment may show that the driver to whom the defendant entrusted the vehicle was “unable or unlikely to have operated the motor vehicle with reasonable safety due to one of several characteristics or conditions,” including “general incompetence” or “habitual negligence.” Edwards v. Valentine, 926 So. 2d 315, 321-22 (Ala. 2005).

RDB Trucking cites [*7]  to various cases including Wright v. McKenzie, 647 F. Supp. 2d 1293, 1300 (M.D. Ala. 2009); Askew v. R&L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala. 2009); Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 52 (Ala. 1995); Craft v. Triumph Logistics, Inc., 107 F. Sup. 3d 1218 (M.D. Ala. 2015); and Vines v. Cook, No. 2:15cv111-KD-C, 2015 U.S. Dist. LEXIS 163986, 2015 WL 8328675 (S.D. Ala. Dec. 8, 2015), for the proposition that Moore’s driving record in this case did not reflect sufficient evidence of incompetence. RDB Trucking states that Moore had three speeding tickets and one accident in the ten years preceding the accident at issue. RDB Trucking further states that the tickets in 2011 and 2012 were for traveling less than five miles per hour over the speed limits. RDB Trucking also states that the accident was caused by the other driver, and Moore merely drove into a median to avoid a collision where a trailer came loose from another truck.

As to the habitual negligence theory, it appears that that standard has not been met in this case. As the court explained in Craft, several moving violations do not establish habitual negligence if they occurred under “diverse circumstances.” Craft, 107 F. Supp. 3d at 1225. Habitual negligence has been found by Alabama courts when the same negligent practice occurs 30 to 40 times. Id. (citing Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933 (Ala. 2006) involving the improper use of gauze in a medical procedure and which analogized the case to automobile entrustment cases).

As to the issue of general incompetence, evidence of previous acts of negligent or reckless [*8]  driving and previous accidents may be evidence to support that the driver to whom the defendant entrusted the vehicle was unable or unlikely to have operated the motor vehicle with reasonable safety. Edwards, 926 So. 2d at 322. One prior accident, standing alone, is not substantial evidence of incompetence. See Thedford v. Payne, 813 So.2d 905 (Ala. Civ. App. 2001).

Trinidad has relied on evidence that at the time of the accident, in addition to three infractions before he was hired, within the two-year period after he was hired by RDB Trucking Moore had a speeding ticket, a preventable accident, and RDB Trucking policy violations including a failure to properly maintain equipment which resulted in air leaking from brakes and a falsification of logbooks. (Doc. #54-3 at p.169: 1-23). Moore’s driving record, however, is not the only evidence cited by Trinidad. Trinidad points to the deposition of RDB Trucking’s representative in which he testified that these infractions were violations of the company’s policy. Trinidad argues that although RDB Trucking claims that Moore was disciplined for violations of policy, there are questions of fact because RDB Trucking company records state that Moore was given two first warnings, which would have only entailed giving him [*9]  a written warning.

In response to Trinidad’s evidence regarding its policies, RDB Trucking states that the policy has been improperly characterized as a safety policy, that the violations policy does not indicate that Moore could not be hired, and that in fact Moore came highly recommended as an excellent driver. (Doc. #54-3 at p. 58: 7-14). RDB Trucking also states that Moore was disciplined for his speeding violation and log book and air leak violations, citing to Moore’s deposition in which he states that the amount of a fine he received was taken out of his pay. (Doc. #54-4 at p.45: 4-5). Brock also stated in his deposition that the company records indicating that Moore got a first warning two times were incorrect. (Doc. #54-3 at p.98:2-6). But, even accepting Trinidad’s evidence, RDB Trucking argues in reply that all of the evidence which Trinidad seeks to rely on concerning the conduct of RDB Trucking and its internal policies misses the point because RDB Trucking’s actions with regard to its internal policies and documents could not have made Moore a competent or incompetent driver, and without evidence of Moore’s incompetence, evidence of RDB Trucking’s actions with regard to [*10]  its policies is not relevant.

Evidence of violation of company policy may be relevant under some circumstances, however. For example, when the policies violated relate to a driver’s eligibility to drive, they may bear on the competence inquiry. See Brewster v. S. Home Rentals, LLC, No. 3:11CV872-WHA, 2012 U.S. Dist. LEXIS 164745, 2012 WL 5869282, at *2 (M.D. Ala. Nov. 19, 2012) (considering evidence of policy violations which would result in a determination that an employee is not eligible to drive). Also, in addition to objective policy compliance or violation, an entrustor’s evaluation of the driver’s ability to drive also can be relevant evidence. See Edwards, 926 So. 2d at 324 (considering testimony by the owner of the vehicle that he considered the driver an unreliable operator of the vehicle and noting with approval another decision which found that testimony by the entrustor that the entrustee was a reckless driver was evidence of the entrustee’s incompetence sufficient to preclude a directed verdict).

In this case, Trinidad has provided evidence from Brock to show that RDB Trucking policy was violated, that Brock agreed it had been violated, and that in Brock’s view of the policies, they are policies which promote safe driving. Brock agreed in his deposition that Moore’s violations [*11]  of company policy were a “big problem” which deserved “serious action.” (Doc. #54-3 at p. 90-8-9; 96: 22-97:1). On a page of his deposition provided to the court, Brock agrees that he cannot keep drivers who continue to break the rules because “it’s unsafe driving.” (Doc. #54-3 at p.96: 7). Brock further agreed that more than safety ratings are involved because “people can get killed,” and agreed that that was why they needed to be strict and take serious action. (Doc. #54-3 at p. 96: 10-14, 17-97:1). The court concludes that Brock’s testimony would allow a reasonable finder of fact to conclude that the RDB Trucking policies violated were safety policies, and that in RDB Trucking’s view, Moore had engaged in unsafe practices.

This case, therefore, is different from other cases cited by the Defendants in which only the driving record is relied upon because, in addition to evidence that Moore had eight infractions, including an accident which RDB Trucking appeared to deem preventable, there is testimonial evidence that company policies served safety interests, and that the driver of the vehicle violated those policies. Considering this evidence in a light most favorable to the nonmovant, [*12]  the court cannot conclude as a matter of law that Trinidad has failed to present sufficient evidence of incompetence. See Brewster, 2012 U.S. Dist. LEXIS 164745, 2012 WL 5869282, at *3 (finding sufficient evidence of negligent entrustment based on evidence of three speeding tickets, an accident subsequent to hire, and violations of company policies relevant to driver eligibility).

RDB Trucking also argues that even if there were evidence to create a question of fact as to Moore’s competence as a driver, Trinidad can point to no evidence of notice or causation.

Liability for negligent entrustment “will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury.” Beason v. Gross, No. 3:07-CV-788-WKW WO, 2010 U.S. Dist. LEXIS 8059, 2010 WL 431227, at *5 (M.D. Ala. Feb. 1, 2010) (quoting Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976)).

RDB Trucking argues, without citation to authority, that to establish notice and causation, Moore’s incompetence known to RDB Trucking must have related to failure to keep a proper look-out and improper lane changes, because that is Trinidad’s theory for how the accident at issue occurred. Because a question of fact has been created as to general incompetence, however, and [*13]  because there are questions of fact as to the cause of the accident, the court concludes that the evidence presented also creates questions of fact as to notice and proximate cause. A reasonable finder of fact could conclude that a reasonably prudent person with knowledge of Moore’s infractions and violations of safety policy ought to foresee injury resulting from the entrustment of a vehicle to Moore.

RDB Trucking also moves for summary judgment on Trinidad’s separate claim that RDB Trucking failed to properly equip the vehicle. RDB Trucking states that there is no evidence that RDB Trucking failed to maintain the vehicle, inspect, or equip and secure the vehicle. In response, Trinidad states that he does not intend to pursue negligence claims based directly on RDB Trucking’s failure to maintain the vehicle. (Doc. #54 at p.28). Summary judgment is due to be GRANTED as to that claim in Count II.

 

1. Wantonness

Wantonness is the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So. 2d 601 (Ala. 1994).

RDB Trucking states that Trinidad has no evidence to contradict Moore’s testimony that he did not think [*14]  he was putting anyone in danger and did not see Trinidad’s truck until he already had pulled out into the road.

Trinidad does not respond with any evidence to establish that Moore was wanton in his driving. Summary judgment is, therefore, due to be GRANTED as to a wantonness claim against Moore individually. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

Rather than pursue a claim against Moore, Trinidad instead argues that RDB Trucking was wanton because it knew of Moore’s numerous driving violations, even arguing that RDB Trucking changed the records regarding one action and cause the violation in another regard, and chose not to pursue sufficient corrective action.

A “claim for wanton entrustment requires a slightly modified analysis because wantonness involves a more aggravated state of mind than that required for negligent entrustment” including a showing of knowledge that “entrustment would likely or probably result in injury to others.” Davis v. Edwards Oil Co. of Lawrenceburg, No. 2:10-CV-2926-LSC, 2012 U.S. Dist. LEXIS 168431, 2012 WL 5954139, at *4 (N.D. Ala. Nov. 28, 2012). While it is clear that RDB Trucking was aware of Moore’s infractions, and a question of fact has been raised as to whether injury was foreseeable, even viewed in a light most favorable to the non-movant, the court cannot conclude [*15]  that a sufficient question of fact has been raised as to knowledge that entrustment of a vehicle to Moore would likely or probably result in injury to others. See Brewster, 2012 U.S. Dist. LEXIS 164745, 2012 WL 5869282, at *4 (denying summary judgment as to negligent entrustment but granting as to wanton entrustment where evidence, including evidence of violation of policies, did not rise to the level of knowledge that entrustment would likely or probably result in injury to others).

 

1. CONCLUSION

For the reasons discussed, the partial Motion for Summary Judgment (Doc. #45) is GRANTED in part and DENIED in part as follows:

 

1. The Motion is GRANTED and judgment is entered in favor of Daniel Joe Moore, Jr. and RDB Trucking, LLC and against the Plaintiff on his claim in Count II for negligent failure maintain or properly equip the commercial vehicle and all wantonness claims in Count III.
2. The Motion is DENIED as to the negligent entrustment claim in Count II.

 

 

The case will proceed on the negligence claims in Count I and the negligent entrustment claim in Count II.

Done this 11th day of August, 2016.

/s/ W. Harold Albritton

1. HAROLD ALBRITTON

SENIOR UNITED STATES DISTRICT JUDGE

A copy of this checklist is available at the website for the USCA, 11th Circuit [*16]  at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.

 

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

 

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals [*17]  are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

 

 

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:

 

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the [*18]  notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion [*19]  that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

 

 

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).