United States District Court, E.D. Tennessee, Northern Division, at Knoxville.

Aybuke ERDEM, Plaintiff,

v.

J.B. HUNT TRANSPORT, INC. and Phillip E. Carothers, Defendants.

No. 3:22-CV-00216-JRG-CRW

Filed January 30, 2023

Attorneys and Law Firms

Morgan G. Adams, Danny R. Ellis, Truck Wreck Justice, PLLC, Chattanooga, TN, Timothy Aaron Roberto, Brown and Roberto, PLLC, Knoxville, TN, for Plaintiff.

Derek Wayne Mullins, K. Stephen Powers, Baker, Donelson, Bearman, Caldwell & Berkowitz, Chattanooga, TN, for Defendant J.B. Hunt Transport, Inc.

MEMORANDUM OPINION AND ORDER

J. RONNIE GREER, UNITED STATES DISTRICT COURT JUDGE

*1 This matter is before the Court on Defendants’ Motion for Partial Dismissal, or in the Alternative, Motion To Strike [Doc. 9] and Brief in Support [Doc. 10]; Plaintiff’s Response in Opposition [Doc. 12]; and Defendants’ Reply [Doc. 15]. For the reasons stated below Defendants’ motion is GRANTED.

I. BACKGROUND

On the morning of July 10, 2021, Defendant Phillip E. Carothers, an employee of Defendant J.B. Hunt Transport, Inc., was driving a tractor-trailer owned by J.B. Hunt eastbound on Interstate 40 in Knox County, Tennessee. [Compl., Doc. 1 ¶¶ 14, 25.] At some point, Mr. Carothers left his lane of travel and his tractor-trailer collided with Plaintiff’s car. [Id. ¶¶ 29–31.] As a result of the collision, Plaintiff sustained injuries and her vehicle was totaled. [Id. ¶¶ 43–44.]

II. PROCEDURAL POSTURE

On June 17, 2022, Plaintiff brought this five-count action against Defendants for: (I) direct-negligence against J.B. Hunt; (II) direct-negligence against Mr. Carothers; (III) negligence per se against Mr. Carothers; (IV) respondeat superior against J.B. Hunt; and (V) economic, non-economic, and punitive damages against J.B. Hunt and Mr. Carothers. [Id. ¶¶ 45–84.] Defendants have moved to dismiss Count I entirely, portions of Count II, portions of Count III, and Plaintiff’s claim for punitive damages or, in the alternative, to strike various portions of Plaintiff’s Complaint. [Defs.’ Mot. Dismiss, Doc. 9 at 1–2.] Plaintiff has responded in opposition to Defendants’ motion as to Counts I, II, and III, but has agreed to withdraw her claim for punitive damages. [Pl.’s Resp., Doc. 12 at 1–8.] Accordingly, Plaintiff’s claim for punitive damages is DISMISSED. The court will address Counts I, II, and III in turn below.

III. LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure provides that a plaintiff’s complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though the statement need not contain detailed factual allegations, it must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

A defendant may obtain dismissal of a claim that fails to satisfy Rule 8 by filing a motion pursuant to Rule 12(b)(6). On a Rule 12(b)(6) motion, the Court considers not whether the plaintiff will ultimately prevail, but whether the facts “permit the [C]ourt to infer more than the mere possibility of misconduct[.]” Id. at 679 (citation omitted). For the purposes of this determination, the Court construes the complaint in the light most favorable to the plaintiff and assumes the veracity of all well-pleaded factual allegations in the complaint. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). This assumption of veracity, however, does not extend to “bare assertions” of legal conclusions, Iqbal, 556 U.S. at 681, nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986) (citations omitted).

*2 After sorting the factual allegations from the legal conclusions, the Court next considers whether the factual allegations, if true, would support a claim entitling the plaintiff to relief. Thurman, 484 F.3d at 859. This factual matter must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

IV. ANALYSIS

A. Count I – Plaintiff Has Not Pleaded Facts Sufficient to Establish a Direct-Negligence Claim Against J.B. Hunt.

J.B. Hunt has moved to dismiss Plaintiff’s direct-negligence claim on grounds that it “fall[s] well short of” the standards established by Federal Rule of Civil Procedure 8.¹ [Defs.’ Br. Supp. Mot. Dismiss, Doc. 10 at 7.] Specifically, it contends that Plaintiff has offered no factual support for her allegations that J.B. Hunt, inter alia, negligently hired, trained, supervised, and retained Mr. Carothers; did not maintain and inspect the tractor-trailer involved in the accident; and did not comply with Federal Motor Carrier Safety Regulations (“FMCSR”). [Id. at 7–8.] In response, Plaintiff argues that Mr. Carothers’ negligence “by extension, implicate[s] Defendant J.B. Hunt’s negligence in its hiring, training, entrusting, supervising and retaining Defendant Carothers.” [Pl.’s Resp., Doc. 12 at 5.] Plaintiff further asserts that its direct-negligence claim is supported by snapshots of “publicly-available information from the Federal Motor Carrier Safety Administration (“FMCSA”) website demonstrating that [J.B. Hunt’s] tractor-trailer drivers are repeatedly involved in preventable collisions, and habitually violate the state/local law and the regulations throughout the United States.” [Id. at 6 (emphasis in the original); see also Compl., Doc. 1 ¶¶ 53–54.]

The Court agrees with J.B. Hunt. Plaintiff’s Complaint is devoid of any facts about J.B. Hunt’s hiring, training, supervision, or retention policies and procedures generally; much less its hiring, training, supervision, and retention of Mr. Carothers. Likewise, her Complaint contains no facts related to J.B. Hunt’s maintenance program or its maintenance of the tractor-trailer involved in the accident. Nor are there any facts from which the Court could plausibly conclude that J.B. Hunt failed to inspect or maintain the tractor-trailer (e.g., allegations of an identifiable defect or of a mechanical failure). See Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998) (“A complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.”) (cleaned up and citations omitted). While it is possible that J.B. Hunt negligently supervised Mr. Carothers or did not maintain its tractor-trailer, the Complaint’s material facts describing an ordinary side-swipe-type car accident do not allow the Court to draw the reasonable inference that such scenarios are plausible. Iqbal, 556 U.S. at 678 (establishing that “plausibility” requires more than “possibility”).

*3 Defendant correctly points out that snapshots of accidents and violations from the FMCSA website involving unknown individuals, under unknown circumstances are irrelevant, and therefore inadmissible, to establish a direct-negligence claim against J.B. Hunt. See Fed. R. Evid. 401, 402. Indeed, the FMCSA’s website explicitly states that “[r]eaders should not draw conclusions about a carrier’s overall safety condition simply based on the data in this system.” See J.B. Hunt Safety Measurement System, FMCSA, https://ai.fmcsa.dot.gov/SMS/Carrier/80806/BASIC/UnsafeDriving.aspx (last visited January 30, 2023). Moreover, even if the FMCSA data was relevant evidence of a motor carrier’s negligence, it would not be useful here because J.B. Hunt has maintained a “Satisfactory” rating (i.e., compliant with FMCSA regulations and authorized to operate on the Nation’s roadways) for over thirty years. Id.

Because Plaintiff has not pleaded facts sufficient to establish a direct-negligence claim against J.B. Hunt, Count I is DISMISSED.

B. Count II – Plaintiff Has Not Pleaded Facts Sufficient to Establish Negligence Claims for Speeding or Failure to Inspect, or Facts Sufficient to Establish a Claim for Recklessness.

Mr. Carothers has moved to dismiss portions of Count II that he asserts are unsupported by any facts; specifically, paragraph 61’s allegation that he “fail[ed] to operate the tractor-trailer at a safe speed”; paragraph 65(l)’s allegation that he “fail[ed] to inspect the tractor-trailer”; and paragraph 65(j)’s allegation that he drove in a “reckless manner[.]” [Defs.’ Br. Supp. Mot. Dismiss, Doc. 10 at 8–9, 14.] In response, Plaintiff argues that her allegations are supported by a “myriad” of facts. [Pl.’s Resp., Doc. 12 at 7–8.] But, the only facts she points to are that “[Mr.] Carothers was driving in lane three (i.e. a passing lane)” and that an accident occurred. [Id.] These facts are insufficient to support her claims.

Plaintiff’s negligent speeding and failure to inspect allegations are conclusory. There are no facts from which the Court could reasonably infer that Mr. Carothers’ speed or the condition of the tractor-trailer were factors in the accident (e.g., factual assertions regarding his speed or perceived speed and/or allegations of an identifiable defect or mechanical failure with the tractor-trailer). See Lewis, 135 F.3d at 406.

Plaintiff’s Complaint also is devoid of any facts supporting a claim for recklessness. Under Tennessee law, “[a] person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992) (citation omitted). The ordinary side-swipe car accident alleged by Plaintiff simply does not give rise to a claim for recklessness. See Russell v. Gardner, No. 2:11-CV-75, 2012 WL 170887, at *2–3 (E.D. Tenn. Jan. 18, 2012) (dismissing punitive damages claim where Complaint failed to plead facts demonstrating recklessness in case involving “typical rear-end type collision”).

Accordingly, Plaintiff’s claims asserted in paragraphs 61, 65(l), and 65(j) are DISMISSED.

C. Count III – Plaintiff Has Not Pleaded Facts Sufficient to Establish Negligence Per Se for FMCSR Violations or Facts Sufficient to Establish a Claim for Gross Negligence.

Mr. Carothers has moved to dismiss portions of Count III which he argues are unsupported; specifically, paragraph 74’s negligence per se allegation based on violations FMCSR Parts 383, 390, 391, 392, 393, 395, and 396, and paragraph 75’s gross negligence allegation. [Defs.’ Br. Supp. Mot. Dismiss, Doc. 10 at 9, 14.] As with Count II, Plaintiff argues that her allegations are supported by a “myriad” of facts, but only can point to the occurrence of the accident. [Pl.’s Resp., Doc. 12 at 7–8.] Further, as to her negligence per se allegation, she argues that under Iqbal “legal conclusions can provide the framework of a complaint [when] … supported by factual allegations.” [Id. at 7 (quoting Iqbal, 556 U.S. at 679).]

*4 Though Plaintiff correctly quotes Iqbal’s text, her reliance on it is misplaced. Under Tennessee law, negligence per se is “a form of ordinary negligence that enables the courts to use a penal statute to define a reasonably prudent person’s standard of care.” Ryans, 2015 WL 12942221, at *3 (quoting Rains v. Bend of the River, 124 S.W.3d 580, 589 (Tenn. Ct. App. 2003)). In other words, a statute can create a duty. Therefore, even though Plaintiff may rely on the FMCSRs to establish the duty element of her negligence per se claim, she must still plead facts sufficient to establish breach, causation, and damages. Partee v. City of Memphis, 449 F.App’x 444, 448 (6th Cir. 2011) (a plaintiff’s “complaint must plead each element of a negligence claim: duty, breach, causation in fact, proximate causation, and harm.”) (quoting Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011)).

Plaintiff has not done that here. The regulations at issue are generally related to driver licensing and qualifications, maximum drive time limits, and vehicle maintenance and inspections. Despite being information that would be readily attainable through a police report or other means, Plaintiff’s Complaint is devoid of factual allegations from which the Court could infer that, at the time of the accident, Mr. Carothers was unlicensed, not qualified to drive the tractor-trailer, or had exceeded the allowable driving time—i.e., facts from which the court could plausibly conclude that he breached the duties created by the FMCSRs. See Espinal v. Wright, No. 3:09–CV–861, 2012 WL 864783, at *2–3 (E.D. Ky. Mar. 13, 2012) (granting defendant’s partial motion for summary judgment where plaintiff brought negligence per se claim alleging violations of FMCSRs against trucker with Tennessee commercial driver’s license). Likewise, as to the maintenance and inspection FMCSRs, Plaintiff has not pleaded any facts from which the Court could plausibly conclude that something about the condition of the tractor-trailer contributed to the accident at issue.

Plaintiff’s Complaint also is devoid of any facts supporting a claim for gross negligence. “Under Tennessee law, gross negligence is ‘a conscious neglect of duty or a callous indifference to the consequences.” Waterhouse v. Tenn. Valley Auth., 475 F.Supp.3d 817, 825 (E.D. Tenn. 2020) (emphasis in original) (quoting Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 932, 938). The ordinary side-swipe car accident alleged by Plaintiff is insufficient to support a claim for gross negligence because none of the material facts indicate that Mr. Carothers acted with “a callous indifference to the consequences” of his actions. Id.

Accordingly, paragraph 74’s negligence per se claim and paragraph 75’s gross negligence allegations are DISMISSED.

V. CONCLUSION

The Court would typically afford Plaintiff the opportunity to amend her Complaint. But, she has not submitted a proposed amended complaint and nothing in her Complaint or briefing suggests that she possesses facts that would allow her to cure the pleading deficiencies. See Roskam Baking Co., Inc. v. Lanham Mach. Co., Inc., 288 F.3d 895, 906 (6th Cir. 2002) (“[I]mplicit in [Rule 15(a)(2)’s directive that courts should freely give amendments when justice so requires] is that the district court must be able to determine whether “justice so requires,” and in order to do this, the court must have before it the substance of the proposed amendment.” (citing Kostyu v. Ford Motor Co., 798 F.2d 1414 (Table), at *2 (6th Cir. July 28, 1986) (concluding that district court did not abuse its discretion in not permitting the plaintiff to amend his complaint, because “[t]he plaintiff did not submit a proposed amended complaint and failed to disclose what amendments he intended to make.”))). In fact, she states in her opposition brief that “most facts that will become relevant and material to this action are presently unknown and contained in Defendant J.B. Hunt’s corporate records.” [Pl.’s Resp., Doc. 12 at 3.] It is well established, however, that plaintiffs must plead facts sufficient to support their claims in the first place, and they cannot use conclusory allegations as placeholders for facts that they hope to discover later. New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050–51 (6th Cir. 2011) (“[C]ourts may no longer accept conclusory allegations that do not include specific facts necessary to establish the cause of action” and “plaintiff[s] may not use the discovery process to obtain [specific] facts after filing suit.”). Moreover, considering Plaintiff’s counsels’ “copy and paste” approach to pleading—at least as it pertains to trucking companies’ direct negligence and FMCSR negligence per se—the Court finds that a permissive amendment is unwarranted in this action. [See Attachs. 2–5 Defs.’ Reply Br., Docs. 15-2–5.]

*5 Accordingly, for the reasons stated above, Plaintiff’s claim for punitive damages; Count I; the claims asserted in paragraphs 61, 65(l), and 65(j) of Count II; and the claims asserted in paragraphs 74 and 75 (as to gross negligence) of Count III are DISMISSED.

So ordered.

All Citations

Footnotes

1. J.B. Hunt also argues that Plaintiff’s direct-negligence claim is barred by the “preemption rule” which prevents “a plaintiff from pursuing direct negligence claims against an employer where the employer has admitted vicarious liability under respondeat superior.” Swift v. Old Dominion Freight Lines, Inc., 583 F.Supp.3d 1125, 1134 (W.D. Tenn. 2022) (citing Ryans v. Koch Foods, LLC, No. 1:13-cv-234-SKL, 2015 WL 12942221, at *8 (E.D. Tenn. July 8, 2015); Freeman v. Paddack Heavy Transp., Inc., No. 3:20-cv-00505, 2020 WL 7399026, at *1 (M.D. Tenn. Dec. 16, 2020)). But, because J.B. Hunt raised the preemption rule for the first time in its Reply, the Court will not consider that argument. [Defs.’ Reply, Doc. 15 at 6–7 n.3; see also E.D. Tenn. L.R. 7.1(c) (establishing that reply briefs are for the limited purpose of “directly reply[ing] to the points and authorities contained in the answering brief”); Malin v. JPMorgan, 860 F.Supp.2d 574, 577 (E.D. Tenn. 2012) (“It is well-settled that a movant cannot raise new issues for the first time in a reply brief because consideration of such issues ‘deprives the non-moving party of its opportunity to address the new arguments.’ ” (citations omitted)).]  

End of Document

United States District Court, M.D. Alabama, Eastern Division.

Alex Donovan LAWSON, Plaintiff,

v.

PARKWOOD INDUSTRIES LLC, et al., Defendants.

CIVIL ACT. NO. 3:21-cv-247-ECM

Signed February 14, 2023

Attorneys and Law Firms

David Hall Marsh, Derrick A. Mills, John David Marsh, Richard Jon Riley, Marsh, Rickard & Bryan, PC, Birmingham, AL, for Plaintiff.

Hugh Blackwell Harris, James Alan Potts, II, Stockham, Cooper, Potts, & Hale P.C., Birmingham, AL, for Defendant Parkwood Industries, LLC.

Joseph Lenn Ryals, J. Lenn Ryals PC, Montgomery, AL, for Defendants Allstate Property and Casualty Insurance Company.

MEMORANDUM OPINION and ORDER

EMILY C. MARKS, CHIEF UNITED STATES DISTRICT JUDGE

*1 Now pending before the Court is the Defendant Parkwood Industries, LLC’s (“Parkwood”) motion for partial summary judgment (doc. 79). Plaintiff Alex Donovan Lawson (“Lawson”) has brought claims against Parkwood for negligence; wantonness; negligent/wanton hiring, training, supervision, and retention; negligent/wanton entrustment; and negligent/wanton maintenance, operation, service and/or repair. Parkwood has moved for summary judgment on the negligent/wanton hiring, training, supervision, and retention claims and the negligent/wanton entrustment claims. Upon consideration of the briefs, evidence, and applicable law, and for the reasons that follow, the Defendant’s motion for summary judgment is due to be GRANTED.¹

I. JURISDICTION

The Court has original subject matter jurisdiction of this matter pursuant to 28 U.S.C. § 1332. Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

II. LEGAL STANDARD

“Summary judgment is proper if the evidence shows ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “[A] court generally must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). However, “conclusory allegations without specific supporting facts have no probative value.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924–25 (11th Cir. 2018). If the record, taken as a whole, “could not lead a rational trier of fact to find for the non-moving party,” then there is no genuine dispute as to any material fact. Hornsby-Culpepper, 906 F.3d at 1311 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The movant bears the initial burden of demonstrating that there is no genuine dispute as to any material fact, and the movant must identify the portions of the record which support this proposition. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The movant may carry this burden “by demonstrating that the nonmoving party has failed to present sufficient evidence to support an essential element of the case.” Id. The burden then shifts to the non-moving party to establish, by going beyond the pleadings, that a genuine issue of material fact exists. Id. at 1311–12.

The Court construes the facts in the light most favorable to the non-movant plaintiff and draws all reasonable inferences in his favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000) (“In assessing whether there is any ‘genuine issue’ for trial, the court ‘must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party’ and ‘resolve all reasonable doubts about the facts in favor of the non-movant.’ Moreover, the court must avoid weighing conflicting evidence or making credibility determinations.” (citations omitted)).

III. FACTS

*2 This case derives from a traffic accident that occurred on April 22, 2020. Gerald B. Pitts (“Pitts”), who was driving an eighteen-wheeler, struck Lawson’s vehicle while Lawson was stopped at a stoplight on U.S. Highway 280 in Phenix City, Alabama. Parkwood does not dispute that Pitts was its employee and acting within the scope of his employment at the time of the accident. While Pitts was originally named a Defendant in this case, Pitts died on July 28, 2022 and was terminated from this lawsuit on December 1, 2022. (Doc. 78).

Pitts attended truck driving school in 2009 and received his truck driving certification. Pitts successfully completed a written and driving exam as part of this process. Pitts then started his first job driving an eighteen-wheeler with Swift Transportation (“Swift”) in 2010. Pitts worked for Swift for about one year before he was terminated for receiving three citations from the company.

Pitts received his first citation after he tore off the caging around a fuel pump, which violated company policy. As a result, Swift had to replace the removed caging. Pitts received a second citation after he pulled the bumper off of another truck at a Pilot station. That incident occurred when Pitts’ back bumper caught the other truck’s front bumper as Pitts drove past it. Pitts received his third citation after he pulled to the side of the road due to rainy conditions. As Pitts slept in his sleeper cabin, his truck fell into a ditch. Swift terminated Pitts after this final incident. Swift explained that, because Pitts received three citations, he was no longer qualified to drive for Swift.

For about the next three months, Pitts drove for a man named Sasha, who ran a one-truck operation. Although Sasha’s truck was not in good condition, Pitts drove for Sasha because Pitts was “desperate for money.” (Doc. 80-1 at 8). Pitts stopped working for Sasha after Sasha’s truck broke down. Pitts did not have any driving incidents while working for Sasha.

For about the next six months, Pitts drove what he described as a “raggedy” truck for Grace and Mercy Trucking (“GMT”). Pitts accumulated citations on his license for failed inspections while driving for GMT. The record does not establish how many citations Pitts received while driving for GMT or why those citations were issued. Pitts stopped working for GMT after GMT’s truck broke down.

Thereafter, Pitts was unemployed for about six months. Pitts applied to about nine different trucking companies during this period of unemployment. However, Pitts was unable to secure employment because of the citations he received while driving for GMT. In 2013, Pitts started driving an eighteen-wheeler for KAK Trucking (“KAK”). Pitts drove for KAK for about a year but stopped driving for the company after having a compensation dispute with the owner. Pitts did not have any driving incidents during his time at KAK.

Pitts was once again unemployed for about six months after leaving KAK. During this period, Pitts re-applied with the same nine trucking companies to which he previously applied. Those companies informed Pitts that, under their rules, Pitts was unemployable due to his driving record and previous citations. After this period of unemployment, Pitts returned to GMT for about four months in 2015. Once again, Pitts stopped working for GMT after their truck broke down. Pitts was then unemployed for another six months. Pitts re-applied to about nine trucking companies and was again told that he was unemployable under those companies’ rules due to his driving record.

*3 Pitts next drove for a temporary employment agency that connected truck drivers with trucking companies. Pitts drove for this agency for a few months and did not have any driving incidents in this time period. Pitts was then unemployed for approximately six months. Again, Pitts applied to about nine trucking companies and was told that he was unemployable at those companies due to his driving record. Pitts then returned to GMT for a few months until GMT’s truck once again broke down. For a short period, Pitts drove for another truck owner that used Parkwood as a broker. After that truck also broke down, Pitts began driving for Parkwood. Pitts’ employment application with Parkwood is dated February 1, 2018.

In Pitts’ employment application, Pitts listed KAK as his employer from 2013 to 2017. Pitts did not list any of his other previous employers in his employment history. Pitts drew a slash across the sections asking for his accident record and traffic convictions from the past three years and did not otherwise fill out these sections of his application.

Lanair Taylor (“Taylor”), the owner and operator of Parkwood, was in charge of Parkwood’s hiring. Parkwood contracted with Foley Carrier Services, LLC (“Foley”) to perform background checks and investigate potential hires. Foley investigated Pitts and provided Parkwood an Illinois Motor Vehicle Report that did not reveal any license restrictions or infractions on Pitts’ driving record between March 2015 and March 2018. (Doc. 80-3 at 19).

Taylor was also responsible for training Parkwood’s truck drivers. Taylor trained Pitts by reading Parkwood’s policies aloud to him. Taylor also conducted a road test when Pitts first started driving. As Taylor did not know how to drive a truck, Taylor assessed basic functions like whether Pitts knew how to shift gears, read gauges, signal, and brake.

Pitts received several citations while driving for Parkwood. On December 19, 2020 Pitts received a citation from the Ohio State Highway Patrol because his truck had three inoperable lights, a broken cab door, and a broken hinge on the trailer door. On January 7, 2020, Pitts received a citation from the Ohio State Highway Patrol because his truck had a flat tire that was off the rim. On January 13, 2020, Pitts received a citation from the Ohio State Highway Patrol for failing to log his total mileage entries for January 9th and 10th. On January 27, 2020, Pitts received a citation from the Indiana State Police for operating his truck without completing or displaying proof of an annual inspection.

On April 22, 2020, Pitts was driving a Georgia-bound load on U.S. Highway 280 in Phenix City, Alabama. When Pitts reached the top of a hill, he saw that the upcoming traffic light was red. Lawson was properly stopped in his vehicle at the upcoming traffic light. Pitts tried to stop his vehicle, but his brakes did not bring his truck to a complete stop. As a result, Pitts collided with Lawson’s vehicle. This litigation ensued.

IV. DISCUSSION

Parkwood has moved for summary judgment on the negligent/wanton hiring, training, supervision, and retention claims and the negligent/wanton entrustment claims. Lawson does not oppose the entry of summary judgment on his wanton hiring, training, supervision, retention, or entrustment claims or his negligent supervision and retention claims. Lawson opposes summary judgment on his negligent hiring, training, and entrustment claims but admits the outcome “may be a close call.” (Doc. 88 at 82). The Court will first address Lawson’s negligent hiring claim, followed by his negligent entrustment and negligent training claims.

A. Negligent Hiring²

*4 “To establish negligent hiring ‘a plaintiff must demonstrate that the employer knew, or in the exercise of ordinary care should have known, that its employee was incompetent’ when he was hired.” Claussen v. PowerSecure, Inc., 2019 WL 4941109, at *5 (M.D. Ala. Oct. 7, 2019). “[T]he incompetence of a driver is measured by the driver’s demonstrated ability (or inability) to properly drive a vehicle.” Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 413 (Ala. 2005). “Alabama courts have been especially reluctant to allow a negligent hiring claim when the driver’s accidents or speeding tickets were in the distant past.” Claussen, 2019 WL 4941109, at *5.

Parkwood has moved for summary judgment on Lawson’s negligent hiring claim, arguing that Lawson cannot establish that Pitts was incompetent or that Parkwood should have known about Pitts’ incompetence when he was hired. Lawson opposes summary judgment, arguing that Pitts was generally incompetent by his own admission. Lawson provides no evidence in support of this contention. When Parkwood hired Pitts, Pitts had three citations from Swift. Pitts also had citations on his license from his initial employment with GMT. The citations Pitts received while working for Parkwood do not play into the incompetency analysis for Lawson’s negligent hiring claim because Pitts accrued them after he was hired.

Here, Pitts’ citations from Swift were from 2010, his citations from GMT were from 2011 or 2012, and his application with Parkwood was dated February 1, 2018. Such temporally distant violations do not establish Pitts’ incompetency under Alabama law. In Askew v. R & L Transfer, Inc., 676 F. Supp. 2d 1298 (M.D. Ala. 2009), a driver committed two moving violations and was involved in four minor accidents over a nine-year period. Id. at 1303. This Court described those incidents as “blemishes on an otherwise clean professional driving record” and found that the driver was competent to drive. Id. This Court reasoned that Alabama law “does not require that [the driver] have a record completely free of mistake.” Id. Over a similar period of time, Pitts had fewer citations and fewer accidents than the driver in Askew. Pitts had three citations, compared to the Askew driver’s six citations, in the eight years before Pitts was hired by Parkwood. Thus, Pitts’ record was even less indicative of an inability to safely operate a vehicle than the record of the driver who was found competent in Askew.

Further, Pitts’ citations are temporally remote from his hire date, weighing against his incompetence under Alabama law. See Mason v. New, 475 So. 2d 854, 856 (Ala. 1985) (suggesting incident’s remoteness in time reduces its weight in competence analysis). Although Pitts received additional citations while driving for GMT, Lawson cannot identify the quantity, severity, or bases of those citations. This Court declines to engage in speculation as to what these additional citations may entail. Finally, the record does not establish that Pitts was involved in any wrecks or accidents in the three years before he was hired, evidencing that Pitts was a competent driver. See Claussen, 2019 WL 4941109, at *5. Ultimately, Lawson has not established that Pitts was incompetent under Alabama law on the date Parkwood hired him.

Additionally, Lawson cannot establish that Parkwood knew or should have known about Pitts’ prior citations. Pitts did not report any information on his job application that would indicate that he had previous citations. Lawson argues that Parkwood should have learned of Pitts’ incompetency by conducting a more rigorous investigation. However, Parkwood hired an investigator to research Pitts’ driving history, and that investigator did not find any citations on Pitts’ record within the previous three years. Further, Pitts hindered Parkwood’s ability to investigate because he submitted an incomplete version of his employment history in his application. For example, because Pitts did not list Swift as a previous employer, Parkwood had no reason to investigate Pitts’ driving history with Swift. Based on the information Pitts provided, Parkwood conducted a reasonable investigation under the circumstances. See Wright v. McKenzie, 647 F. Supp. 2d 1293, 1298 (M.D. Ala. 2009) (verifying employee’s commercial driver’s license and insurance information was reasonable investigation when no evidence suggested further “investigation would have uncovered proof of [driver’s] incompetence”).

*5 Parkwood’s investigation is not made unreasonable by the fact that other trucking companies declined to hire Pitts based on his driving record. Those trucking companies conducted their investigations closer in time to when Pitts received his citations, making those citations easier to detect. Second, there is no evidence that Pitts misrepresented his employment history to those trucking companies as he did with Parkwood. As Lawson has not established that Pitts was incompetent when he was hired or that Parkwood knew or should have known that Pitts was incompetent, Parkwood’s motion for summary judgment on Lawson’s negligent hiring claim is due to be granted.

B. Negligent Entrustment and Negligent Training

“The elements of a cause of action for negligent entrustment are: ‘(1) an entrustment; (2) to an incompetent; (3) with knowledge that he [or she] is incompetent; (4) proximate cause; and (5) damages.’ ” Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 51 (Ala. 1995) (quoting New, 475 So. 2d at 856). To establish a negligent training claim against an employer, “a plaintiff must demonstrate that the employer knew, or in the exercise of ordinary care should have known, that its employee was incompetent.” Mason v. McGuffey, 2022 WL 3640301, at *4 (M.D. Ala. Aug. 23, 2022). “[T]he 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. Infractions that are “administrative in nature” do not bear on a driver’s “actual ability or inability to properly handle an automobile on the road.” Id.

Parkwood has also moved for summary judgment on these two claims, arguing that Pitts was not incompetent on the date of the accident. As discussed, Lawson has not established that Pitts was incompetent when he was hired. Although Pitts received additional citations from law enforcement before the accident occurred, these additional citations also do not establish Pitts’ incompetence to drive a vehicle.

Several of the citations Pitts received while driving for Parkwood do not evidence incompetency under Alabama law. Pitts received citations for failing to record his mileage and for operating his truck without completing or displaying proof of an annual inspection. In Halford, the Alabama Supreme Court held that a suspended license did not establish a driver’s incompetence when the driver’s license was suspended because the driver failed to appear in traffic court regarding her failure to display a tag. Id. at 414. The court reasoned that the citation was administrative in nature and did not impact that driver’s ability to safely handle an automobile. Id. Pitts’ deficient logging habits and failure to comply with inspection obligations do not hinder his ability to safely operate a vehicle and are thus equally administrative in nature.

Pitts’ other citations from his time at Parkwood—driving with a flat tire, driving with faulty doors, and driving with inoperable headlamps—are akin to the infractions this Court has previously described as “minor violations.” McGuffey, 2022 WL 3640301, at *4 (describing citations for inoperative headlamp and inoperative brakes as minor). Thus, while Lawson establishes that Pitts had three minor infractions within one year of the accident, Pitts did not have any wrecks or accidents on his record in over five years before the accident. Pitts had also successfully completed a driving test and had never had his trucking certification revoked. Ultimately, the evidence Lawson puts forth is insufficient to establish Pitts’ incompetence under Alabama law. Because Lawson cannot establish that Pitts was incompetent at the time of the accident, Lawson cannot establish a claim for negligent entrustment or negligent training, and Parkwood’s motion for summary judgment is due to be granted.

V. CONCLUSION

*6 For the reasons discussed above, it is hereby

ORDERED that the Defendant’s motion for partial summary judgment (doc. 79) is GRANTED.

Done this 14th day of February, 2023.

All Citations

Footnotes

1. Parkwood has also moved to exclude the testimony of Plaintiff’s experts Ona Graham and Rustin T. Yerkes. (Docs. 81–82). The Court has not considered the testimony of either expert in ruling on summary judgment.  
2. Because this matter is before the Court on diversity jurisdiction, the state law causes of action are examined under Alabama law. Poplin v. Bestway Express, 286 F. Supp. 2d 1316, 1318 (M.D. Ala. 2003) (applying Alabama law to negligent hiring, training, and entrustment claims on diversity jurisdiction).