Gollotte v. Peterbilt of Mobile, Inc.

• Decision Date: 19 April 1991
• Citation: 582 So.2d 459
• Parties: Walter GOLLOTTE, d/b/a Walter Gollotte Trucking v. PETERBILT OF MOBILE, INC. 89-1600.
• Court: Alabama Supreme Court

Page 459

582 So.2d 459

Walter GOLLOTTE, d/b/a Walter Gollotte Trucking v. PETERBILT OF MOBILE, INC.

89-1600.

Supreme Court of Alabama.

April 19, 1991.

Rehearing Denied May 31, 1991.

Edward P. Turner, Jr. and E. Tatum Turner of Turner, Onderdonk, Kimbrough & Howell, Chatom, for appellant.

Broox G. Holmes and William Steele Holman II of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.

INGRAM, Justice.

Walter Gollotte, d/b/a Walter Gollotte Trucking, sued Peterbilt of Mobile, Inc., alleging that Peterbilt had failed to install an air filter in the engine of one of Gollotte's trucks when the truck was in Peterbilt's shop for repairs to a "dropped valve," and that, as a result, the engine had been damaged. Gollotte's complaint alleged both negligence and breach of contract by Peterbilt. Following discovery, Peterbilt filed a motion for summary judgment, which the trial court granted. Thereafter, Gollotte filed a motion to alter, amend, or vacate the summary judgment. The motion was denied and Gollotte appealed.

Gollotte argues that the trial court erred in entering the summary judgment because, he argues, there was substantial evidence that Peterbilt failed to install an air filter in Gollotte's truck. Gollotte also argues that the trial court erred in refusing to compel Peterbilt to produce documents relating to an investigation done by a Peterbilt employee. The trial court found that the documents were made in anticipation of litigation and were, therefore, a part of Peterbilt's work product.

The pertinent evidence in this case indicates that on August 17, 1988, Gollotte took a 1982 Kenworth K100 diesel tractor-truck to Peterbilt for repairs after the engine began "skipping," losing power, and blowing white smoke. Peterbilt determined that the problem with the truck was a dropped valve in the engine. In authorizing Peterbilt to make the necessary repair, Gollotte says, he instructed Peterbilt to "fix whatever needs repairing." Peterbilt repaired the dropped valve. On three later occasions in August and September 1988, Gollotte brought the truck back to Peterbilt for other repairs on specified items, such as the air conditioner, the motor mount, the lube refiner oil lines, the speedometer, the tachometer, and the fuel pressure mechanism.

On March 17, 1989, six months and 62,000 miles after Peterbilt's last repairs on the truck, the truck broke down. It was towed to Yankee Kenworth in Hartford, Connecticut, for repairs. Donald LaPlante, the service manager at Yankee Kenworth, stated in his deposition that when he inspected the truck after it had arrived at Yankee Kenworth, there was no air filter in the canister on the engine. LaPlante further stated that the cylinder walls of the engine were "extremely dusted" as a result of foreign materials entering the engine through the air intake system. Gollotte spent $6,777.40 to have the truck towed and repaired.

The principal question presented in this appeal is whether there was a genuine issue of material fact either as to whether Peterbilt negligently failed to install an air filter in Gollotte's truck while the truck was being repaired for a dropped valve, or as to whether a contract existed between Gollotte and Peterbilt requiring Peterbilt to install an air filter in Gollotte's truck. There is no dispute that Gollotte suffered damage to his truck.

Initially, we note that a motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So.2d 732, 734 (Ala.1989). The burden is, therefore, upon the moving party to clearly show that there is no material fact in dispute, and all reasonable inferences from the evidence are to be viewed most favorably to the nonmovant. Southern Guar. Ins. Co., supra, at 734.

Rule 56 is read in conjunction with the "substantial evidence rule," § 12-21-12, Ala.Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989).

In the present case, Peterbilt supported its motion for summary judgment with the following: (1) the deposition of Paul Marlow, the Peterbilt mechanic who worked on the truck in August 1988, wherein he states that when Peterbilt worked on the truck there was an air filter on it and that he personally inspected that filter and determined that there was no need to replace it with a new one; (2) the deposition of Larry Johnson, Peterbilt's service manager, who stated that the repair order, dated August 17, 1988, provided that Peterbilt was to check the engine for a possible dropped valve on Gollotte's truck and also stated that changing the air filter was not ordinarily part of repairing a dropped valve; (3) the deposition of Donald LaPlante, service manager for Yankee Kenworth, stating that if Gollotte had followed the engine manufacturer's recommended service checks, the damage to the engine could have been avoided, because, he stated, the engine's air filter should have been checked by the operator at least once every 12,000 miles.

In opposition to Peterbilt's motion for summary judgment, Gollotte, like Peterbilt, filed the depositions of Paul Marlow, Larry Johnson, and Donald LaPlante. In addition, Gollotte also filed the answers he had given to Peterbilt's first set of interrogatories, his dispatch sheets and his drivers' daily logs, and his own deposition, in which he stated that when he took his truck to Peterbilt in August 1988, he told the mechanics to "fix whatever needs repairing." Gollotte further stated in his deposition that shortly after the truck broke down, he checked the air filter canister and found that "the bolts hadn't even been off of it." He continued: "The paint was still new on it. See, before I bought [the] truck, Peterbilt had it painted. The nuts had never been even cracked on the air breather from the day I got it."

In response to a question regarding how often he changed the air filter in his trucks, Gollotte stated:

"The only time we ever would even take [the truck] to get [the air filter] replaced would be if it had excessive smoking and a driver would complain about it....

"Normally when it gets like that, when it's blowing black smoke, it's a fuel filter. After that you go further into it, you know, you check other things: fuel pressure injectors, air filter. But if you correct it, one or the other, you don't even [replace the air filter]."

In order to prove a claim of negligence, a plaintiff must establish a breach of a duty owed by the defendant to the plaintiff which proximately caused damage to the plaintiff. Thompson v. Lee, 439 So.2d 113, 115 (Ala.1983). Proof of injury or damage alone is, therefore, generally insufficient to establish negligence. Id.

Here, Gollotte attempts to argue that because his truck broke down on March 17, 1989, as a result of the absence of an air filter, and because Peterbilt performed work on the truck on August 17, 1988, Peterbilt must have been negligent in its repair. However, we agree with the trial court that no duty was owed by Peterbilt to replace the air filter. Nothing in Gollotte's deposition testimony presents substantial evidence of a material fact to rebut the prima facie showing made by Peterbilt that summary judgment was proper, because his deposition does not establish that Peterbilt owed a duty to him to replace the air filter element in his truck engine when the truck was in Peterbilt's shop for repairs in August 1988.

We also do not agree with Gollotte's argument that Paul Marlow's deposition testimony shows that Peterbilt owed a duty to Gollotte regarding replacement of the air filter. Although Marlow testified that he voluntarily inspected the air filter element and found it to be "about brand new," we find nothing in his testimony that indicates that he inspected the air filter because he had a duty to do so. Furthermore, Marlow's...