Serio v. Merrell, Inc.

• Decision Date: 05 May 2006
• Docket Number: 1041815.
• Citation: 941 So.2d 960
• Parties: Susan SERIO v. MERRELL, INC.
• Court: Alabama Supreme Court

941 So.2d 960

Susan SERIO v. MERRELL, INC.

1041815.

Supreme Court of Alabama.

May 5, 2006.

Michael J. Crow of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant.

Alex L. Holtsford, Jr., and April M. Willis of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellee.

HARWOOD, Justice.

Susan Serio, the plaintiff in a personal-injury action in the Elmore Circuit Court, appeals from a summary judgment in favor of the sole defendant, Merrell, Inc. ("Merrell"). We affirm.

Serio was injured in a collision at an intersection in Elmore County on November 14, 2002, involving an automobile driven by Serio and a tractor-trailer truck driven by Russell Merrell ("Russell"). Serio was traveling north on State Highway 143 when she came to a stop sign at the southern edge of Highway 14, which ran generally east and west at that point. Highway 143 intersected State Highway 14 so as to form a "T" intersection. No stop sign or other traffic control signal restricted the passage through the intersection of vehicles traveling on Highway 14. While Serio was stopped at the intersection, the tractor-trailer truck driven by Russell approached the intersection, traveling east on Highway 14. At some point while the truck was approaching, and despite the fact that the truck had the right-of-way, Serio pulled out into the intersection, intending to turn left onto Highway 14. Russell applied all of the brakes on his tractor-trailer rig and attempted to steer to the left to avoid Serio's vehicle, but the truck skidded, jackknifing at some point, and the tractor portion of the rig eventually collided with the left side of Serio's automobile, essentially in the west-bound lane of Highway 14.

After the accident, and before any action was filed by Serio, Russell and the company he claims he was working for on the occasion in question, "Merrell Trucking," filed a petition in bankruptcy and were eventually fully discharged from all potential liability arising out of the accident. Serio sued Merrell, asserting that it was the owner of the truck Russell was driving when the accident occurred and that Russell was actually its employee. Serio charged both that Russell had negligently operated his truck on the occasion in question and that he had wantonly operated it.

Merrell moved for a summary judgment, supported by, among other things, excerpts from the depositions of Russell, Serio, and an eyewitness to the collision, James Schassler. Merrell also submitted as a supporting exhibit a copy of the Alabama Uniform Traffic Accident Report relating to the incident. Serio opposed Merrell's summary-judgment motion, submitting excerpts from her deposition and Russell's, another copy of the accident report, and an affidavit by Larry Mann, whom she tendered as an expert witness. On August 12, 2005, the Elmore Circuit Court entered a summary judgment in favor of Merrell, expressly finding that Serio had been guilty of contributory negligence as a matter of law.

On appeal, Serio contends that there were genuine issues of material fact that precluded a finding that she was contributorily negligent as a matter of law, and that, because contributory negligence is not a defense to a claim of wantonness and there was otherwise sufficient evidence to support the wantonness claim, the trial court erred in entering a summary judgment on that claim.

Our review of the record reveals that the only disputed issue of material fact concerns the speed at which Russell was driving as he approached the point on Highway 14 at which Highway 143 intersected. The posted speed limit was 45 miles per hour. Russell testified in his deposition that he was traveling at that speed when Serio pulled into the intersection; the Alabama state trooper who prepared the accident report (offered as "admissible" evidence by both parties) estimated that Russell's speed was 45 miles per hour as he approached the intersection. He concluded also that the accident occurred when Serio, "not seeing" Russell's truck, collided with it. Schassler, the eyewitness to the accident, did not offer a numerical estimate of Russell's speed but testified in his deposition that it did not appear that Russell was going fast or that he was speeding. Serio acknowledged during her deposition that she had no personal knowledge about Russell's speed because she never at any time saw the tractor-trailer truck.

A factual issue concerning Russell's speed is raised, however, by Mann's affidavit. A former police officer and current "accident reconstructionist and safety consultant," Mann stated that he had reviewed the accident report, 20 color photographs taken by the investigating state troopers, and a report and a scaled diagram of the accident prepared by a forensic-mapping and accident-reconstruction service. Based upon that review and noting that Russell's "tractor-trailer left approximately 190 feet of skid-marks," Mann expressed the opinion that Russell had been traveling "at approximately 60 mph before he applied any brakes to the tractor or trailer." As Mann reconstructed the events leading to the collision, the application of brakes caused the tractor to jackknife; under the scenario Mann postulated, if Russell had been driving at 45 miles per hour, "he would not have had to brake hard or lock his brakes" and he could thereby have avoided the jackknifing and loss of control of his tractor-trailer rig, which, Mann theorizes, he could have then slowed and driven to the right to avoid contact with Serio's vehicle. Mann ended his affidavit by stating, somewhat ambiguously, that if Russell's truck had been traveling at 45 miles per hour "the Serio car would have been beyond the impact area" when Russell's vehicle arrived at the impact area.

Because Merrell interposed no challenge to Mann's affidavit, it constitutes admissible evidence.

Standard of Review

"This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala. 2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce 'substantial evidence' creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). `Substantial evidence' is `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. of Fla., 547 So.2d 870, 871 (Ala. 1989)."

Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala. 2005).

Material Facts

Because under the summary-judgment standard of review we review the evidence in the light most favorable to Serio, the nonmovant, we accept as a fact, for purposes of our review, that Russell's speed as he approached the intersection was 60 miles per hour. All of the other material facts are undisputed. The accident occurred at approximately 12:37 p.m. on a Thursday afternoon; the weather was clear and sunny; visibility was good. Serio testified that she made a complete stop at the stop sign before entering the intersection and that she "looked both ways, and then proceeded to go." She testified: "I did not think I saw anything, and I pulled out.... I mean, I didn't see anything. I can't imagine pulling out if I had seen a big truck coming there." She said that she never saw the tractor-trailer truck or had any idea that it was approaching until after the impact had occurred; pulling out into the intersection is the last thing she remembers before regaining consciousness in a hospital emergency room. She remembers nothing at all about the accident. When she was asked if she had "any reason as to why you did not see the big truck before you pulled out," she answered "[N]o, I really don't."

For his part, Russell testified that as he approached the intersection he saw Serio's white car start to cross his lane of traffic on Highway 14, and he applied both the trailer brakes and the tractor brakes. All the wheels locked up and, able to steer his tractor "somewhat," he turned to the left to attempt to avoid striking the white car.

The eyewitness, Schassler, testified by deposition in the case. Most recently employed training police officers in Iraq, he had formerly worked as both a police officer and a deputy sheriff. He had been driving his vehicle behind Serio's car for a couple of miles on Highway 143 before they reached the intersection with Highway 14, and he stopped behind Serio at the intersection. "We were sitting there. A gravel truck was coming down, a big 18-wheeler looking thing." He could see it "very clearly." He testified:

"As [the truck] was approaching the intersection, the car just pulled out. She pulled out in front of it. I kept thinking why in the heck is she pulling out in front of a gravel truck? And the gravel truck did everything he could to avoid hitting her, you know. The only thing he could have done to avoid hitting her was to swerve and hit me. He locked his brakes up, tried to swerve as best he could, and ended up colliding with the vehicle."

Schassler reiterated later in his deposition his opinion that the only thing the gravel truck could have done to avoid hitting Serio's vehicle was to swerve and hit Schassler's vehicle, "[b]ecause to me, the only avenue that the truck had besides hitting her was coming—come right at me." Schassler could not think of any reason Serio could not have seen the truck approaching. When the truck was "roughly 100 to 150 yards" from her car, she began to move...