Opinion
CIVIL ACTION NO. 2:08cv25-WC.
February 4, 2009
MEMORANDUM OPINION ORDER
I. INTRODUCTION
This lawsuit arises out of a motor vehicle accident in which Plaintiff, James Arthur Murry ("Murry"), was hit from behind by Defendant Christopher Bernard Banks ("Banks"), an employee of Hodges Trucking Company, Inc ("Hodges Trucking"). Murry brings claims of wantonness and negligent entrustment against defendants. This cause is before the Court on the Motion for Summary Judgment (Doc. #20) filed on 16 September 2008 by Defendants. In this Motion, to which Murry filed no response, Defendants contend they are entitled to judgment as a matter of law on both claims. Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #12); Def.s' Consent to Jurisdiction (Doc. #11). For the reasons discussed below, the Motion for Summary Judgment (Doc. #20) is GRANTED.
II. JURISDICTION AND VENUE
Jurisdiction over this action is proper pursuant to 28 U.S.C. § 1332 (diversity) and 28 U.S.C. § 1441(a) (removal jurisdiction).
III. STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `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." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23.
Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party "must do more than simply 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 (1986). On the other hand, a court ruling on a motion for summary judgment must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson, 477 U.S. at 255. After the non-moving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).
IV. FACTS AND PROCEDURAL HISTORY
The Court has carefully considered all deposition excerpts and documents submitted in support of the motion, as well as the cases submitted by Plaintiff in the Motion to Strike (Doc. #25) and the statement of uncontested facts contained within the Motion for Summary Judgment. The submissions of the parties, viewed in the light most favorable to the non-moving party, establish the following facts:
On 31 August 2005, Murry, age 64, was driving a dump truck North on Interstate 65 from Montgomery, Alabama, toward Clanton, Alabama. Murry stopped twice along the way in order to pick up meat scraps at grocery stores in Prattville, Alabama. At approximately 5 a.m., Murry's dump truck was hit from behind by a tractor-trailer driven by Banks.
Murry was taken to hospital in Birmingham, Alabama, and treated for his injuries. He has no memory of the accident.
Banks was an employee of Hodges Trucking and had obtained his commercial drivers license ten years prior to the accident. Banks was off-duty the day prior to the accident and began driving from Columbus, Georgia to Bessemer, Alabama at about 2 a.m. on the morning of the accident. Banks had not consumed alcohol or any prescription or non-prescription drugs on the day of, or the day prior to, the accident. Banks's remembers seeing tail lights in front of his vehicle when he was approximately one car length behind Murry's dump truck and that he immediately applied his brakes. He also testified in his deposition that he was not speeding. Banks was not issued a citation for the accident.
Murry filed this suit in the Circuit Court of Chilton County, Alabama, on 5 October 2007. Defendants removed the case to this Court on 10 January 2008. (Doc. #1). On 16 September 2008, Defendants filed this Motion for Summary Judgment (Doc. #20). On 14 October 2008, Defendants filed a "Supplement Submission in Support of Motion for Summary Judgment" (Doc. #21). In the Supplement, Defendants argued that, based on Plaintiff's failure to file any response to the Motion for Summary Judgment, Rule 56(e)(2) of the Federal Rules of Civil Procedure, and the evidence submitted to the Court by Defendants, they "have demonstrated there is no genuine issue as to any material fact, and a final summary judgment as a matter of law is due to be rendered in the Defendants' favor." (Doc. #21 at 2).
On 15 October 2008, Plaintiff filed a Reply and Motion to Clarify and/or Motion for Extension of Time. (Doc. #22). Plaintiff, confused as to the deadlines spelled out in the Court's orders, sought an extension of time to respond to the motion for summary judgment. The Court denied Plaintiff's motion because it failed to indicate that counsel for Plaintiff had contacted opposing counsel, and did not inform the Court as to opposing counsel's position on the requestd extension, as required by the Court's Uniform Scheduling Order of 17 March 2008 (Doc. #14 at 2). See Court's Order of 22 October 2009 (Doc. #27). Rather than re-file a compliant motion for extension of time, Plaintiff filed a Motion to Strike Defendant's Motion for Summary Judgment, (Doc. #25), which was denied. See Order (Doc. #27).
V. DISCUSSION
A. Wantonness
Defendants move for summary judgment arguing that Murry cannot prove the essential elements of a wantonness claim. "Under Alabama law, to survive summary judgment on the issue of wantonness, a plaintiff must provide substantial evidence creating a genuine issue of material fact that a defendant acted with recklessness or with conscious disregard to the rights or safety of others in his operation of his vehicle." Haynes v. Sarsfield, 2007 WL 2409724 at *2 (M.D. Ala. August 21, 2007) (Fuller, C. J.) (citing ALA. CODE § 6-11-20); see also Monroe v. Brown, 307 F. Supp. 2d 1268, 1271 (M.D. Ala. 2004) (Thompson, J.).
Wantonness is "conduct which is carried on with a reckless or conscious disregard for the rights or safety of others." ALA. CODE § 6-11-20(b)(3) (1975). "`Wantonness' has been defined by [the Alabama Supreme] Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result." Alfa Mut. Ins. Co. v. Roush, 723 So. 2d 1250, 1256 (Ala. 1998).
To survive summary judgment, then, Murry must establish a genuine issue of fact, as to whether Banks (1) acted consciously when he failed to see Murry's truck until he was only one car length behind, and (2) was conscious, based on existing conditions, that injury was a likely or probable result of his actions. See Monroe, 307 F. Supp. 2d at 1272. There is no evidence before this Court to suggest that Banks acted in a wanton manner.
According to the statement of uncontested facts and Banks's deposition testimony, Banks was not speeding, he did not see Murry's vehicle until Banks was approximately one car length away, and he immediately applied his brakes when he saw Murry's taillights. (Doc. #20-7 at 26). There is nothing in the deposition testimony that suggests Banks was conscious that injury was a likely or probable result of his driving. There is no evidence in the record of speeding, or that Banks was under the influence of alcohol or drugs (prescription or otherwise). Further, Murry, apparently the only other witness to the accident, testified that he did not know how fast Banks was driving, and that he had no memory of the accident. In fact, Murry's testimony was that he was driving along and "all the [sic] sudden, bam." (Doc. 20-4 at p. 4). Thus, there is nothing to suggest that Banks acted wanton.
The Alabama Supreme Court has held that there needs to be "more than a showing of some form of inadvertence on the part of the driver" to avoid summary judgment on a claim of wantonness. Tolbert v. Tolbert, 903 So. 2d 103, 115 (Ala. 2004) (granting summary judgment where there was only speculation that defendant was speeding at time of accident). In his Motion to Strike, Plaintiff points this court to cases which he believes support a denial of summary judgment. (Doc. #25 at 2). The Court has reviewed those cases and finds them to be significantly distinguishable from the this case.
In Bishop v. Poore, 475 So. 2d 486, 487 (Ala. 1985), the court relied on "the evidence that defendant never looked in the direction of the plaintiff" prior to entering a dangerous intersection. In Green v. Leatherwood, 727 So. 2d 92, 94 (Ala.Civ.App. 1998), the defendant made a conscious decision to abruptly change lanes in order to make a stop at a video store. In Collins v. Shelley By and Through Shelley, 514 So. 2d 1358, 1360-61 (Ala. 1987), there was evidence that defendant's car had "flashed right in front" of plaintiff after "having travelled through three lanes of traffic and the median." Thus, the court concluded "it is reasonably inferable either that defendant did not [when required], or that, if she did, she sped into the [thoroughfare] and across the median, disregarding oncoming traffic." Id. In each of the preceding case, there were specific facts from which the Court could infer, or which provided specific evidence of, wanton conduct. Because Murry is unable to provide any facts in this case that would show a conscious, wanton act by Banks, or that he was consciously aware his actions would likely or probably result in injury, summary judgment is appropriate.
The Alabama courts have gone to great lengths to distinguish a claim under Alabama law for negligence versus that of wantonness. "Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability." Tolbert, at 115 (internal citations omitted). Had Plaintiff's claims been for negligence rather than wantonness and the action filed within the two year statute of limitations for negligence claims, see infra, the result here may very well have been different.
Defendants also move for summary judgment on Plaintiff's wantonness claim by asserting a statute of limitations defense. Specifically, Defendants claim that Plaintiff's wantonness claims are subject to Alabama's two year statute of limitations. See ALA. CODE § 6-2-38 (1975).
In McKenzie v. Killian, 887 So. 2d 861, 870 (Ala. 2004), the Alabama Supreme Court announced that "wanton conduct is the equivalent in law to intentional conduct. Such an allegation of intent renders the six-year statutory period of limitations applicable." The Alabama Supreme Court recently re-affirmed the six-year statute of limitations for wantonness claims in Carr v. International Refining Mfg. Co., 2009 WL 129952 (Ala. January 16, 2009) (finding there is no "products liability" exception to the six-year statute of limitations for wantonness claims). Murry's wantonness claim is subject to the six-year statute of limitations and, because the injury occurred on 31 August 2005 and this case was filed on 5 October 2007, it was timely filed. Accordingly, summary judgment on this basis is denied.
B. Negligent Entrustment
Defendants also moved for summary judgment on Plaintiff's negligent entrustment claim, arguing the claim is subject to the two-year statute of limitation set forth in ALA. CODE § 6-2-38 (1975). The Court agrees. As the United States Court of Appeals for the Eleventh Circuit stated:
Under Alabama law, claims for negligence are subject to a two-year statute of limitations. See Henson v. Celtic Life Ins. Co., 621 So. 2d 1268, 1274 (Ala. 1993). The statutory period of limitations for negligence actions, found at ALA. CODE § 6-2-38, is two years from the date the injury occurred. Id. It is well settled under Alabama law that a negligence cause of action accrues when the plaintiff can first maintain the action, regardless of whether the full amount of damage is apparent at the time of the first injury. See Booker v. United Am. Ins. Co., 700 So. 2d 1333, 1339 (Ala. 1997).Piazza v. Ebsco Industries, Inc., 273 F.3d 1341, 1347 (11th Cir. 2001). Plaintiff's injuries occurred on 31 August 2005, which means the time for filing a claim for negligence ended on 31 August 2007. Plaintiff commenced this action on 5 October 2007, outside the statute of limitations. Therefore summary judgment on this claim is proper.
Because Plaintiff's claim was filed outside the two-year statute of limitations, the Court need not address the merits of his negligent entrustment claim.
VI. CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants' Motion for Summary Judgment (Doc. #20) is GRANTED on the basis that Plaintiff has failed to establish a material issue of fact as to wantonness and Plaintiff's claim of negligent entrustment is outside the statute of limitations. This case is DISMISSED without prejudice, and the parties shall bear the costs of this proceeding.
An appropriate judgment will be entered.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 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. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) 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 , 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." , , (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. (c). (b) 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. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals 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) The certification specified in (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) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 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 notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "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) 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) 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 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) 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 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. 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. (a)(4).