Polk v. Tu Ja Bang

• Decision Date: 12 August 2021
• Docket Number: Civil Action 20-0093-WS-MU
• Parties: JAMES B. POLK, Plaintiff, v. TU JA BANG, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

JAMES B. POLK, Plaintiff, v. TU JA BANG, et al., Defendants.

Civil Action No. 20-0093-WS-MU

United States District Court, S.D. Alabama, Southern Division

August 12, 2021

ORDER

WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on defendants' Motion for Summary Judgment (doc. 52). The Motion has been briefed and is now ripe for disposition.^[1]

I. Background Facts.

Plaintiff James B. Polk, brought this action against defendants, Tu Ja Da Bang and DH Transportation, Inc., to assert claims arising from an automobile accident that occurred on Interstate 65 in Mobile County on December 9, 2017. Defendant Bang was driving the tractor trailer that struck Polk's vehicle, and plaintiff maintains that DH Transportation owned and/or had custody or control of that tractor trailer. As set forth in the Amended Complaint (doc. 13), Polk's claims sound exclusively in Alabama law, including against Bang for gross negligence (Count One), against Bang for wantonness / recklessness (Count Two), and against DH Transportation for negligent/wanton entrustment / supervision (Count Three).^[2] Federal subject-matter jurisdiction is properly predicated on the diversity provisions of 28 U.S.C § 1332. (See doc. 10.)

Viewed in the light most favorable to Polk, the non-movant on summary judgment, the record reveals the following relevant facts and circumstances: In the early morning hours of December 9, 2017, Polk was driving to work, heading northbound on I-65. (Doc. 51-1, PageID.309-10.) According to Polk's testimony, it was dark and the roadway was icy and slippery, on the heels of a rare snowfall event in southern Alabama the night before. (Id., PageID.310-11.) Although the posted speed limit was 55 mph, Polk was driving only 35 to 40 mph because of the slick conditions. (Id., PageID.312.) Immediately before the Saraland exit on I-65, Polk saw a black Mercedes in front of him hit a bridge, lose control, and start spinning in front of his vehicle. (Id., PageID.313.) For his part, Polk attempted to “slow [his] vehicle down so [he] can maybe direct [himself] around her or avoid hitting her.” (Id.) During that time, Polk did not swerve, but instead focused on “trying to slow [his] vehicle down keep control of [his] vehicle.” (Id., PageID.314.) Polk's testimony was emphatic that he “did not change lanes” and did not come to a complete stop. (Id., PageID.316-17.)^[3] According to Polk, he slowed down to as little as 20 to 25 mph to attempt to avoid the out-of-control black Mercedes. (Id.) The only reason Polk abruptly slowed his vehicle was to prevent a collision with the Mercedes. (Id.) All indications are that Polk successfully maintained control of his vehicle at all times, despite the emergency created by the Mercedes and the icy roadway.

At that very moment, defendant Bang was also driving north on Interstate 65, traveling a number of car lengths behind Polk's vehicle. Bang was driving a truck that he owned and that was leased to DH Transportation. (Doc. 51-3, PageID.323, ¶ 2.)^[4] Bang's truck was hauling a trailer at that time. (Id.) Bang was driving at approximately 50 mph in the far left lane on a roadway that, in his assessment, “appeared fine.” (Id., PageID.324, ¶ 5.) When Bang observed the black Mercedes “sliding on the icy bridge, ” he “immediately let off the gas and slowed down, ” applying his brakes. (Id.) As he did so, Bang “realized then that due to ice, [his] truck could not stop and was sliding on ice, ” such that he “could not avoid impact with Mr. Polk's car.” (Id., PageID.325.) Bang's tractor-trailer rear-ended Polk's van, at a speed that Bang estimates to be less than 15 mph. (Id.) Notwithstanding the snowfall the night before and the very cold conditions, Bang avers that “[p]rior to the accident, [he] had no notice that there was ice on any bridges, including the one where the accident occurred.” (Id., ¶ 6.) As Bang's truck struck Polk's van from behind, another vehicle on the bridge rear-ended Bang's truck. (Id., ¶ 7.) Defendants' evidence is that, at the time of the wreck, Bang was not under the influence of drugs or alcohol, was not using any electronic devices, and had obtained the required hours of sleep the night before. (Id., PageID.326, ¶ 8.)

II. Summary Judgment Standard.

Summary judgment should be granted only “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.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11^th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. “If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11^th Cir. 1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11^th Cir. 1987) (citation omitted).

III. Analysis.

Defendants now move for summary judgment on all three remaining counts of the Amended Complaint, including the gross negligence claim against defendant Bang (Count One), the wantonness/recklessness claim against Bang (Count Two), and the negligent/wanton entrustment/supervision claim against defendant DH Transportation (Count Three). Each claim will be considered in turn.

A. Count One: Gross Negligence Against Bang.

As for Count One, defendants maintain that Polk's gross negligence claim under Alabama law is properly evaluated using the same elements and standards applicable to ordinary negligence claims. Caselaw supports this principle. See, e.g., Miller v. Bailey, 60 So.3d 857, 867 (Ala. 2010) (“Gross negligence is negligence, not wantonness.”) (citations omitted); Fidelity-Phenix Fire Ins. Co. v. Lawler, 81 So.2d 908, 912 (Ala.App. 1955) (“the rule laid down by our courts is that the word gross when used in connection with negligence, implies nothing more than negligence”) (citations and internal quotation marks omitted); Craft v. Triumph Logistics, Inc., 107 F.Supp.3d 1218 (M.D. Ala. 2015) (“Under Alabama law, gross negligence is a degree of negligence; it is not the same as wantonness.”). “The elements of a negligence claim are a duty, a breach of that duty, causation, and damage.” Armstrong Business Services, Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala. 2001).

In moving for summary judgment on Count One, defendants posit that the summary judgment record does not support a reasonable inference that Bang breached a duty owed to Polk. Defendants face an uphill battle in advancing this argument. “In general, a driver has the duty to exercise due care and to keep a lookout for others using the road.” Miller v. Cleckler, 51 So.3d 379, 385 (Ala.Civ.App. 2010). Moreover, in Alabama, “summary judgment is rarely appropriate in a negligence action.” Miller, 51 So.3d at 383 (citation omitted). Indeed, “[w]hether a person involved in an accident acted reasonably in operating his motor vehicle depends on all of the circumstances surrounding the accident; the question is ordinarily one for the jury.” Senn v. Alabama Gas Corp., 619 So.2d 1320, 1322 (Ala. 1993). Viewing the limited record evidence in the light most favorable to Polk, a reasonable finder of fact could conclude that (i) Bang should not have been operating his tractor trailer in the far left lane on I-65 because he was neither passing a vehicle nor preparing for a left exit; (ii) Bang was driving too fast for conditions, given the recent snowfall, the cold temperatures, and the obvious potential for icing on bridges and other road surfaces; and (iii) Bang failed to keep a proper lookout and did not begin to apply his brakes until it was too late to avoid the accident on an icy bridge. A reasonable fact finder reaching such conclusions could find Bang liable to Polk on the gross negligence cause of action. See, e.g., Blakley v. Johnson, 80 So.3d 250, 256-57 (Ala.Civ.App. 2010) (negligence claim properly submitted to jury where plaintiff's evidence supported a reasonable conclusion that defendant had operated logging truck at unsafe speed or had followed too closely); Nelson By and Through Sanders v. Meadows, 684 So.2d 145, 148 (Ala.Civ.App. 1996) (reversing summary judgment for defendant where evidence supported reasonable conclusion that he was driving too fast on wet roads even though he did not exceed posted speed limit).

Defendants offer two primary counterarguments. First, they invoke the doctrine of sudden emergency / unavoidable accident. Under Alabama law, “a person faced with a sudden emergency calling for quick action is not held to the same correctness of judgment and action that would apply if he had had the time and opportunity to consider fully and chose the best means of escaping peril or preventing injury.” Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 727 (Ala. 1990). Defendants' theory is that the out-of-control black Mercedes created a sudden...