Smitherman v. Cloudtrucks, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
RONNIE EARL SMITHERMAN, 	)
)
Plaintiff, 	)
)
vs. 	) 	Civil Action No. 2:23-00465-KD-N
)
CLOUDTRUCKS, LLC, 	)
)
Defendant. 	)
ORDER
This action is before the Court on the motion for summary judgment filed by Defendant
Cloudtrucks LLC and documents in support (doc. 25). Plaintiff Ronnie Earl Smitherman was
ordered to file his response on or before December 27, 2024 and Cloudtrucks was ordered to file
any reply January 3, 2025. The motion was taken under submission on January 4, 2025 (doc. 26).
To date, Smitherman has not filed a response. Accordingly, for the reasons set forth herein,
Cloudtrucks motion is granted in part and denied in part.
I. Background
Plaintiff Smitherman alleges he was injured in a motor vehicle accident on November 3,
3022 (doc. 1-1, p. 3). He alleges that Dewayne Wooten “was operating a Cloudtrucks tractor
trailer within the line and scope of his employment … when he stopped the tractor trailer in the
middle of the westbound lane without using any caution lights or cones.” (Id.). Smitherman
alleges he “was operating a vehicle traveling westbound” on Alabama Highway 14, “when he
collided into the rear of the stopped tractor trailer, causing serious injuries” (Id.).
In an un-numbered “Count”, Smitherman claims negligence and wantonness against
Cloudtrucks based upon Wooten’s negligent and/or wanton operation of the tractor (Id.) In
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Count III (there is no Count II), Smitherman claims that Cloudtrucks “negligently hired, trained,
and/or supervised their drivers, servant, and/or agent” Wooten (Id., p 4). Smitherman demands
punitive and compensatory damages for his injuries.
II. Choice of law
“[A] federal court sitting in diversity will apply the choice of law rules for the state in
which it sits.” Manuel v. Convergys Corp., 430 F.3d 1132, 1139 (11th Cir. 2005) (citing Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). “Under Alabama’s choice-of-law
rules, Alabama courts apply lex loci delicti to tort claims, meaning that ‘an Alabama court will
determine the substantive rights of an injured party according to the law of the state where the
injury occurred.’” King v. S. Poverty L. Ctr., Inc., No. 2:22-CV-207-WKW, 2023 WL 3061825,
at *13 (M.D. Ala. Apr. 24, 2023) (quoting Ex parte U.S. Bank Nat'l Ass'n, 148 So. 3d 1060,
1069 (Ala. 2014) (citation and quotation marks omitted)). The underlying substantive law
identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed. 2d. 202 (1986). The Court will apply Alabama’s
substantive law.
III. Standard of review
The Court of Appeals for the Eleventh Circuit has explained that
“[T]he moving party has the burden of demonstrating that there are no genuine
issues of material fact ....” Paylor v. Hartford Fire Ins., 748 F.3d 1117, 1121 (11th
Cir. 2014). In determining whether the movant has met this burden, we must view
the evidence in the light most favorable to the non-moving party. See Alvarez v.
Royal Atl. Devs., Inc., 610 F.3d 1253, 1263–64 (11th Cir. 2010). We also must
draw all reasonable inferences in the non-movant's favor. United States v. Four
Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc); FindWhat
Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011). However,
inferences that are supported by only speculation or conjecture will not defeat a
summary judgment motion. See Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005).
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The nature of a summary judgment movant's burden varies depending on which
party would bear the burden of proof on a disputed issue at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Where a defendant moves for
summary judgment on an issue for which it would not bear the burden of proof at
trial, it is not necessary for the defendant to entirely negate the plaintiff's claim.
Id. at 1115–16; see also Celotex Corp v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986) (“[W]e find no express or implied requirement in
Rule 56 that the moving party support its motion with affidavits or other similar
materials negating the opponent's claim.” (emphasis in original)). Instead, the
movant “has the burden of either negating an essential element of the nonmoving
party's case or showing that there is no evidence to prove a fact necessary to the
nonmoving party's case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d
1236, 1242 (11th Cir. 2013).
Once a summary judgment movant's initial burden is met, “the burden shifts to
the nonmoving party to bring the court's attention to evidence demonstrating a
genuine issue for trial.” [Paylor v. Hartford Fire Ins., 748 F.3d 1117, 1121 (11th
Cir. 2014)]. “Overcoming that burden requires more than speculation or a mere
scintilla of evidence.” Id. at 1122. The non-movant must “go beyond the
pleadings,” to provide evidence and “designate specific facts showing that there is
a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal
quotation marks omitted). The non-movant will survive summary judgment in this
instance if it can demonstrate “that the record in fact contains supporting
evidence, sufficient to withstand a directed verdict motion.” Doe v. Drummond
Co., 782 F.3d 576, 604 (11th Cir. 2015) (internal quotation marks omitted).
Poer v. Jefferson Cnty. Comm'n, 100 F.4th 1325, 1335–36 (11th Cir. 2024) (emphasis added). 1
1 The two legal theories by which the movant who does not bear the burden of proof at trial to
obtain summary judgment are explained as follows: “When the nonmoving party has the burden
of proof at trial, the moving party is not required to ‘support its motion with affidavits or other
similar material negating the opponent's claim,’ [ ], in order to discharge this ‘initial
responsibility.’ Instead, the moving party simply may ‘ “ show[ ]’—that is, point[ ] out to the
district court—that there is an absence of evidence to support the nonmoving party's case.’ ” [ ]
Alternatively, the moving party may support its motion for summary judgment with affirmative
evidence demonstrating that the nonmoving party will be unable to prove its case at trial.” United
States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys. in State of Ala., 941 F.2d
1428, 1437–38 (11th Cir. 1991) (citations omitted).
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Here, the non-movant Smitherman did not respond. However, “a non-movant's failure to
respond to a defendant's motion for summary judgment is not fatal; rather, the court must
determine if the facts in the record illustrate that the movant is entitled to summary judgment.”
Ogwo v. Miami Dade County School Board, 702 Fed. Appx. 809, 810 (11th Cir. 2017) (citing
Dixie Stevedores, Inc. v. Marinic Maritime, Ltd., 778 F.2d 670, 673 (11th Cir. 1985) (the “mere
failure of the non-moving party to create a factual dispute does not automatically authorize the
entry of summary judgment for the moving party.”). However, “when the non-movant fails to
properly address a party's factual assertions, the court may consider those facts undisputed and
grant summary judgment if the facts in the record—including those considered undisputed—
illustrate that the movant is entitled to judgment in its favor.” Id. (citing Fed. R. Civ. P. 56(e)).
In United States v. One Piece of Property, 5800 S.W. 4th Ave., Miami, Fla., 363 F.3d
1099, 1101 (11th Cir. 2004), the Eleventh Circuit explained that
... the district court need not sua sponte review all of the evidentiary materials on
file at the time the motion is granted, but must ensure that the motion itself is
supported by evidentiary materials ... At the least, the district court must review
all of the evidentiary materials submitted in support of the motion for summary
judgment..... In addition, so that there can be an effective review of the case on
appeal, the district court's order granting summary judgment must [ ] indicate that
the merits of the motion were addressed....
Id. (citations omitted).
Overall, the district courts are “required to view the evidence and all factual inferences
therefrom in the light most favorable to the non-moving party and resolve all reasonable doubts
about the facts in favor of the non-movant.” Feliciano v. City of Miami Beach, 707 F.3d 1244,
1247 (11th Cir. 2013) (citation omitted).
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IV. Findings of Fact
The parties do not dispute that Smitherman drove into the rear of the stopped tractor, and
that the driver Wooten and Mechanic Raymond Williams were present. Smitherman answered
interrogatories 8 and 9, as follows:
8. Describe in detail how the incident described in the complaint happened,
including all actions taken by you to prevent the incident.
RESPONSE: It was at or around dark and I was traveling on Hwy 14 towards
Marion. All of a sudden the tractor was parked in my lane without any lights or
flashers and I wrecked into the back of it.
9. Describe in detail each act or omission on the part of any party to this lawsuit
that you contend constituted negligence that was a contributing legal cause of the
incident in question.
RESPONSE: Instead of pulling off the two lane highway, the defendant's driver
and tractor trailer were stopped in my lane without any flashers or warning lights.
(Doc. 25-4, p. 4). When questioned regarding persons with knowledge of the issues,
Smitherman responded: “The mechanic who was working on the truck at the time of the
accident, [and the] driver of the semi-truck[.]” (Id., p. 7).
Cloudtrucks admits that Wooten was traveling in the tractor without a trailer and that the
tractor “became inoperable before Mr. Wooten was able to pull over” from the roadway (doc. 25,
p. 2). “Per the account of DeWayne Wooten, he had stopped the tractor to make repairs to its
engine” (doc. 25-1, p. 3-4, Cloudtrucks’ answer to Smitherman’s interrogatories). Mechanic
Williams was present at the time of the incident (doc. 25-1, p. 8); (doc. 25-4, p. 7).2
2 The record is unclear as to whether Williams was a passenger in the tractor when it broke
down, Williams was in a separate vehicle traveling with the tractor, or he was contacted by
Wooten after the tractor broke down and then came to the scene.
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Cloudtrucks also admits that Wooten was the owner of the tractor but was operating as an
employee of Cloudtrucks at the time of incident. Although not carrying a trailer, Cloudtrucks
acknowledges that Wooten was acting within the scope of his employment (doc. 25-1, p. 10).
Cloudtrucks asserts that “[w]hile Mr. Wooten has not yet given testimony in this matter,
…, Mr. Wooten would testify that he turned on his hazard lights, got out of his tractor, and began
walking around the back of it. Before Mr. Wooten could set up any warning lights, flares, or
caution flags, Plaintiff Ronnie Smitherman drove into the back of Mr. Wooten's tractor.” (doc.
25, p. 2). Although, Cloudtrucks did not produce Wooten’s affidavit or declaration to support its
position that the hazard lights were on before Smitherman crashed, the Court may consider “a
hearsay statement in passing on a motion for summary judgment if the statement could be
reduced to admissible evidence at trial or reduced to admissible form. The most obvious way that
hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify
directly to the matter at trial.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 -1294 (11th
Cir. 2012); Carrizosa v. Chiquita Brands Int'l, Inc., 47 F.4th 1278, 1303 (11th Cir. 2022)
(“hearsay statement can be considered at summary judgment if it can be reduced to admissible
evidence at trial.”). For purpose of summary judgment, the Court will consider Cloudtrucks’
proffer of Wooten’s testimony, as testimony that Wooten would give at trial.
V. Analysis
A. Count for negligence and/or wantonness
In an un-numbered “Count”, Smitherman claims that Wooten “while acting within his
capacity as agent, servant, and/or employee” of Cloudtrucks “negligently and/or wantonly
operated the …tractor-trailer in a manner as to stop in the middle of the westbound lane of
Alabama Highway 14 without pulling off the roadway and/or using any caution lights or cones”
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(doc. 6-1, p. 2). Smitherman claims that “[a]s a proximate consequence of Defendant
Cloudtrucks, LLC., negligence and/or wantonness” he was injured and damaged (Id.). He claims
that Cloudtrucks “was acting both individually and in its Respondeat Superior and/or Principal
capacity to its agent and/or employee” Wooten (Id.).
To prevail on his negligence claim, Smitherman must show that Cloudtrucks, either
individually or as the principal or employer of Wooten, owed him a legal duty, that Cloudtrucks
breached that duty, that Cloudtrucks’ breach was a proximate cause of the loss or injury, and that
he was damaged or injured. Brazeal v. Wills, 2008 WL 11423972 (N.D. Ala. 2008) (citation
omitted). Under Alabama law, “[t]o establish negligence, the plaintiff must prove (1) a duty to a
foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or
injury.” Hilyer v. Fortier, 227 So. 3d 13, 22 (Ala. 2017) (citations omitted).
Negligence “is the failure to do what a reasonably prudent person would have done under
the same or similar circumstances, or the doing of something that a reasonably prudent person
would not have done under the same or similar circumstances.” Ford Motor Co. v. Burdeshaw,
661 So.2d 236, 238 (Ala.1995). “Negligence is usually characterized as an inattention,
thoughtlessness, or heedlessness, a lack of due care.” Lynn Strickland Sales and Serv., Inc. v.
Aero–Lane Fabricators, Inc., 510 So.2d 142, 145 (Ala.1987), overruled on other grounds, Alfa
Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998).
Under Alabama law, a “vehicle operator is under a duty to use reasonable care in
operating the vehicle.” Jones v. Baltazar, 658 So. 2d 420, 421 (Ala. 1995). “Generally, a
defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with
respect to all risks which make the conduct unreasonably dangerous.” Oakley v. A.L. Logistics,
LLC, 2024 WL 1120107, at *3 (M.D. Ala. 2024).
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As to proximate cause, “the issue of proximate causation hinges on foreseeability and is
intertwined, analytically, with the concept of intervening cause.” Oakley, 2024 WL 1120107, at
*4 (quoting Springer v. Jefferson County, 595 So. 2d 1381, 1382 (Ala. 1992)). “An intervening
cause is ‘one which occurs after an act committed by a tortfeasor and which relieves him of his
liability by breaking the chain of causation between his act and the resulting injury.’” Oakley, at
*4 (citing General Motors Corp. v. Edwards, 482 So. 2d 1176, 1194 (Ala. 1985)). However,
“[i]f an intervening cause could have reasonably been foreseen at the time the tortfeasor acted, it
does not break the chain of causation between his act and the injury.” Id. “In the same respect, if
the intervening cause is not sufficient to be considered the sole ‘cause in fact’ of the injury, if it
is not in and of itself sufficient to stand as the ‘efficient cause’ of the injury, the causal chain is
not broken; but if the intervening cause was alone sufficient to produce the injury complained of,
it is deemed the proximate cause of the injury.” Id.
“Under Alabama law, ‘[w]antonness is the doing of some act or the omission to do some
act with reckless indifference that such act or omission will likely or probably result in injury.’”
Oakley, at *5 (quoting IMAC Energy, Inc. v. Tittle, 590 So. 2d 163, 168 (Ala. 1991)). The
Alabama Supreme Court has explained: “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 v. Tolbert, 903 So.2d 103, 114
(Ala.2004) (internal citations omitted). For purposes of punitive damages, wantonness is shown
by “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of
others.” Ala. Code § 6-11-20(b)(3).
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“In the context of motor vehicle accidents, including a standing vehicle accident such as
this one, wantonness depends on the particular facts presented in each case. [ ] And, under
Alabama law, there is a rebuttable presumption that a driver does not act wantonly in causing a
car accident. [ ] That is because people ‘act in their own self-interest,’ and thus, a driver has ‘no
consciousness that an injury would likely occur from his actions because presumably he would
not engage in activity that would knowingly result in harm to himself.’ [ ] However, where a
driver's actions are more dangerous to other parties than to himself, the presumption against self-
destructive behavior—and therefore wantonness—does not apply.” Oakley, at *6 (citations
omitted). “Even though wantonness requires a conscious or an intentional act, ‘the actor's
knowledge may be proved by showing circumstances from which the fact of knowledge is a
reasonable inference; it need not be proved by direct evidence.’” Oakley, at *5 (citation omitted).
To prove wantonness, it is not essential to prove that the defendant entertained a specific design
or intent to injure the plaintiff.” Id. (citation omitted).
1. Cloudtrucks in its individual capacity
Cloudtrucks argues that Smitherman presents “no evidence beyond his bare Complaint
allegations and discovery responses that Cloudtrucks itself was negligent” (doc. 25, p. 5)3
Therefore, Smitherman has “no evidence for a jury to consider toward the premise that
Cloudtrucks LLC had some independent negligent conduct.” (Id., p. 6). Cloudtrucks also argues
that Smitherman has no evidence that Cloudtrucks conduct was wanton, and [w]ith discovery
3 Cloudtrucks refers to the Complaint as evidence. Generally, an unsworn and unverified
complaint is not evidence. Hinton v. Grieco, No. 5:22-CV-16, 2025 WL 349722, at *6 (S.D. Ga.
Jan. 30, 2025) (“A verified, or sworn, complaint may be used as evidence to oppose a summary
judgment motion. Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986). In this case, the
complaint is not verified because the complaint contains no language indicating that Plaintiff
swears the contents of the complaint are true and based on personal knowledge. [ ]; see also Roy
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now completed, [Smitherman’s] claims of wantonness against Cloudtrucks appear baseless and
due to be dismissed as a matter of law” (Id., p. 8).
As previously stated, Smitherman did not respond to the motion for summary judgment.
However, before granting a motion for summary judgment, the Court “must ensure that the
motion itself is supported by evidentiary materials ... At the least, the district court must review
all of the evidentiary materials submitted in support of the motion for summary judgment.”
United States v. One Piece of Property, 363 F.3d at 1101.
The parties’ responses to interrogatories are the only evidence relevant to this claim
which could be reduced to admissible evidence at trial. Viewing this evidence in the light most
favorable to Smitherman as the non-movant, indicates there is no evidence that Cloudtrucks was
directly involved in, authorized, or participated in Wooten’s conduct or ratified his conduct after
it learned of his actions. When asked to describe the events leading up to the breakdown of the
tractor, Cloudtrucks responded, “Per the account of DeWayne Wooten, he had stopped the
vehicle to make repairs to its engine, otherwise, Defendant has no responsive information” (doc.
25-1. p. 3). When asked about any reason to believe the tractor had a defect or failure,
Cloudtrucks responded, “… that per the account of DeWayne Wooten, he had stopped the
vehicle for repairs to its engine.” (Id., p. 4). When asked to describe “each act or omission on the
part of any party … that you contend constituted negligence that was a contributing legal cause
of the incident”, Smitherman responded “Instead of pulling off the two lane highway, the
defendant’s driver and tractor trailer were stopped in my lane without any flashers or warning
lights.” (doc. 25-4, p. 4). In other words, Smitherman fails to even allege any acts by
Cloudtrucks that would make it directly responsible. Since Smitherman failed to present
v. Ivy, 53 F.4th 1338, 1343–45 (11th Cir. 2022). ‘Unsworn statements may not be considered by
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sufficient evidence to support an element of the claim for which he would carry the burden of
proof at trial, Cloudtrucks is entitled to summary judgment as to the claims of negligence or
wantonness against Cloudtrucks for any direct involvement with the accident.
2. Respondeat superior as to Cloudtrucks
Cloudtrucks argues that Smitherman’s negligence claim based on the theory of
respondeat superior fails as a matter of law because Smitherman has not produced any evidence
that Wooten engaged in any wrongful acts. Cloudtrucks also argues that Smitherman’s claims of
wantonness against Cloudtrucks based on a theory of respondeat superior “appear baseless and
due to be dismissed as a matter of law.” (doc. 25, p. 8).
The doctrine of respondeat superior holds an employer vicariously liable for the wrongful
acts of its employee. In Alabama, for a principal to be liable for the alleged intentional torts of
its agent, the plaintiff “must offer evidence that the agent's wrongful acts were in the line and
scope of his employment; or that the acts were in furtherance of the business of [the principal];
or that [the principal] participated in, authorized, or ratified the wrongful acts.” Joyner v. AAA
Cooper Transp., 477 So. 2d 364, 365 (Ala. 1985) (internal citations omitted). “The vicarious
liability of a putative master under the rule of respondeat superior depends upon the liability of
the putative servant.” Hollis v. City of Brighton, 885 So. 2d 135, 141–42 (Ala. 2004).
Cloudtrucks does not dispute that Wooten acted within the line and scope of his
employment or in furtherance of Cloudtrucks’ business. Cloudtrucks argues that Wooten’s
conduct was neither negligent nor wanton and that Smitherman has not provided any evidence to
create an issue of fact as to whether Wooten’s conduct was wrongful.
a district court in evaluating a motion for summary judgment.’ Roy, 53 F.4th at 1347.”).
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Specifically, as to negligence, Cloudtrucks argues that Smitherman has no evidence that
Wooten’s conduct contributed to the breakdown of his vehicle or that Wooten “voluntarily
stopped his vehicle, and only suggests that [Wooten] should’ve had warning lights and/or cones
in place” (doc. 25, p. 6-7). Cloudtrucks also asserts that there “are no other facts or evidence” to
support Smitherman’s “assertions that Mr. Wooten did not have on his hazard lights or flags or
had the opportunity to erect hazard lights or flags but failed to do so.” (Id.). As to wantonness,
Cloudtrucks argues there is no evidence that Wooten intentionally placed the tractor in
Smitherman’s lane, and that even if Wooten did not utilize hazard or warning lights, flags or
flares, that conduct was inattentive, but not intentional (Id., p. 9).
Cloudtrucks disputes Smitherman’s answers to interrogatories wherein he states that the
tractor’s lights or flashers, i.e., hazard lights, were not on. Cloudtrucks asserts that “[w]hile Mr.
Wooten has not yet given testimony in this matter, …, Mr. Wooten would testify that he turned
on his hazard lights, got out of his tractor, and began walking around the back of it. Before Mr.
Wooten could set up any warning lights, flares, or caution flags, Plaintiff Ronnie Smitherman
drove into the back of Mr. Wooten's tractor.” (doc. 25, p. 2).
As previously stated, Smitherman did not respond to the motion for summary judgment.
However, before granting a motion for summary judgment, the Court “must ensure that the
motion itself is supported by evidentiary materials ... At the least, the district court must review
all of the evidentiary materials submitted in support of the motion for summary judgment.”
United States v. One Piece of Property, 363 F.3d at 1101.
Viewing the evidence in the light most favorable to the non-movant Smitherman, the
Court finds that genuine issues of material fact exist as to whether Wooten’s conduct was
negligent. Wooten owed a duty of care to others to warn of the stopped vehicle. See Oakley, at
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*4 (“The foreseeability of such collisions is precisely the reason why Department of
Transportation regulations require the use of flashers and warning triangles…”). An issue of fact
exists as to whether the tractor’s hazard or warning lights were on. Accordingly, Cloudtrucks’
motion for summary judgment as to Smitherman’s claim of negligence is denied.
As to wantonness, Wooten’s proffered testimony is that the accident occurred after the
tractor stopped in the highway, and after he turned on the hazard lights and got out of the tractor,
but before he could place other warning devices.lights Smitherman’s evidence of wantonness is
his response that no warning lights or flashers were on, and that the tractor was not moved from
the highway. Under Alabama law, “wantonness is a question of fact for the jury, and a court
may grant summary judgment only when ‘there is a total lack of evidence from which the jury
can reasonably infer wantonness.’” Shows v. Redline Trucking, LLC, 2020 WL 2527105, at *3
(N.D. Ala. 2020) (citation omitted). “And, denial is proper where either a jury could reach
different conclusions on whether the undisputed facts constitute wantonness or there is a material
dispute regarding whether the driver engaged in wanton behavior.” (Id.). Viewing the evidence
in the light most favorable to Smitherman, the Court cannot find as a matter of law that there is a
total lack of evidence from which a reasonable jury could infer wantonness. A juror could
reasonably infer that failing to place warning devices or turn on the tractor’s hazard lights could
be wanton. Whether the hazard lights were on and whether Wooten did not have time to place
other warning devices is a question for the jury. Accordingly, Cloudtrucks’ motion for summary
judgment as to Smitherman’s claim of wantonness is denied.
3. Contributory negligence
Cloudtrucks argues that Smitherman was contributorily negligent because he rear-ended
the disabled tractor which was clearly ahead of him on an open roadway (doc. 25, p. 4-5).
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Cloudtrucks argues that Smitherman had a duty to operate his vehicle in a safe manner under
common conditions such as oncoming headlights (Id., p. 7). Cloudtrucks contends that
Smitherman “may have contributed to the accident” because he “was operating his vehicle at an
unsafe speed and manner causing him to strike a motionless vehicle ahead of him in clear view.”
(doc. 25-1, p. 8). Cloudtrucks relies upon Smitherman’s medical records wherein he appears to
have written the following on an intake form:
Complaints. Traveling on Hwy 14 W out of Selma and rearended a transfer truck.
It was disabled in the right lane. I never saw the truck until the last second. No
cones, flairs, warning lights, nothing. Traveling around 55 to 60 mph. Airbags
deployed. On coming traffic lights played a part in not seeing the truck also.
(Doc. 25-3, p. 18).
“‘[C]ontributory negligence is an affirmative and complete defense to a claim based on
negligence.’” Shows, 2020 WL 2527105, at *2 (quoting Serio v. Merrell, Inc., 941 So. 2d 960,
964 (Ala. 2006). “To establish contributory negligence, a defendant must prove ‘that the plaintiff
1) had knowledge of the dangerous condition; 2) had an appreciation of the danger under the
surrounding circumstances; and 3) failed to exercise reasonable care, by placing himself in the
way of danger.’” Id. (quoting Serio, 941 So. 2d at 964. “‘[Q]uestions of negligence incorporate
factual evaluations that are almost always within the province of the jury [and therefore]
summary judgment based on the doctrine of contributory negligence is seldom proper.’” Id.,
(quoting Gulledge v. Brown & Root, Inc., 598 So. 2d 1325, 1330 (Ala. 1992)). “A court may
find contributory negligence on summary judgment only when ‘the facts are such that all
reasonable people would logically have to reach the conclusion that the plaintiff was
contributorily negligent.’” Id. (quoting Serio, 941 So. 2d at 964).
Viewing the facts in the light most favorable to Smitherman, the Court is unable to find
as a matter of law that Smitherman was contributorily negligent. Cloudtrucks’ argument is based
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in part on its version of the facts that Wooten had turned on the hazard lights. However, an issue
of fact exists as to whether any warning lights were on. Also, Cloudtrucks has not presented any
evidence as to the speed limit for Highway 14. Although Cloudtrucks argues that the tractor was
in clear view, the evidence before the Court does not support an inference that Smitherman was
aware of the stalled tractor and acted unreasonably.
B. Count III claiming negligent hiring, trainings, and/or supervision
Smitherman claims that Cloudtrucks “negligently hired, trained, and/or supervised their
drivers, servant, and/or agent” Wooten (doc. 1-1, p 4). Cloudtrucks argues that it is entitled to
summary judgment as to this claim because discovery has closed, and Smitherman did not
produce any evidence that Cloudtrucks negligently hired, trained, or supervised Wooten.
Cloudtrucks points out that Smitherman did not conduct any discovery but for obtaining
Cloudtrucks’ response to his interrogatories and requests for production (doc. 25-1). Since
Smitherman has no evidence to support this claim which he could present to a jury, Cloudtrucks
argues that it is entitled to judgment as a matter of law.
Under Alabama law, the torts of negligent hiring, training, and supervision require
Smitherman to show that Wooten was “ ‘incompetent to operate a commercial vehicle and that
the employer [Cloudtrucks] knew, or should have known, of this incompetence.’” Davis as Next
Friend J.W. v. Grant, No. CV 1:21-00005-KD-M, 2022 WL 1557377, at *12 (S.D. Ala. May 17,
2022) (quoting Bailey v. DAS North America, Inc., 473 F. Supp.3d 1310, 1334 (M.D. Ala.
2020)); see Shaw v. City of Selma, 241 F. Supp.3d 1253, 1281 n.32 (S.D. Ala. 2017) (“[u]nder
Alabama law, a critical element of a claim of negligent hiring ... and supervision is proof of the
employer's actual or constructive awareness of the employee's incompetency[ ]”) (citation and
internal quotation marks omitted). Additionally, “‘for an employer to be liable for the negligent
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hiring … supervision of its employee, the plaintiff must also prove wrongful conduct on the part
of the employee[.]’” Davis as Next Friend J.W., 2022 WL 1557377, at *12 (quoting Jones Exp.,
Inc. v. Jackson, 86 So. 3d 298, 304 (Ala. 2010)); see also Jones Exp., Inc., 86 So. 3d at 305
(“[I]mplicit in the tort of negligent hiring, retention, training, and supervision is the concept that,
as a consequence of the employee's incompetence, the employee committed some sort of act,
wrongdoing, or tort that caused the plaintiff's injury.”). Evidence of incompetence for purposes
of negligent hiring, training, or retention may be shown by “prior acts of negligent or reckless
driving, prior accidents, or prior acts of driving while intoxicated.” Roberts v. Stewart, 2024 WL
4544124, at *3 (S.D. Ala. 2024).
As previously stated, Smitherman did not respond to the motion for summary judgment.
However, before granting a motion for summary judgment, the Court “must ensure that the
motion itself is supported by evidentiary materials ... At the least, the district court must review
all of the evidentiary materials submitted in support of the motion for summary judgment.”
United States v. One Piece of Property, 363 F.3d at 1101.
The only evidence regarding Wooten’s hiring, training, or supervision is found in
Cloudtrucks’ answers to Smitherman’s interrogatories.4 Cloudtrucks answered that Wooten was
employed from May 2022 to December 2022, and the subject wreck was the only wreck during
that time. (doc. 25-1, p. 9-10). Based upon this evidence, no reasonable jury could find that
Wooten was not competent to operate the tractor, or that any alleged incompetence contributed
4 Subject to objections, Cloudtrucks produced to Smitherman certain documents
regarding Wooten’s driving record including the “HR file for Wooten”, logbooks, records of
incidents or accidents for the past five years for “18-wheeler in question or its driver”, Wooten’s
commercial driver’s license, and driver’s license report (doc. 25-1, p. 14-18). The Court does
not have any information as to the content of these documents and therefore, cannot make any
inferences whether these documents would support Smitherman’s claim that Cloudtrucks was
negligent in its hiring, training, or supervision of Wooten.
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to the accident, or that Cloudtrucks knew or should have known of his incompetency. Since
Smitherman failed to establish a genuine issue of material fact as to Wooten’s competence and
has not presented any evidence on the elements of a tort for which he bears the burden of proof
at trial, summary judgment is granted in favor of Cloudtrucks as to Count III.
VI. Conclusion
For the reasons set forth herein, summary judgment is granted in favor of Cloudtrucks as
to Smitherman’s claim for negligent hiring, training, and or supervision (Count III) and as to
Smitherman’s claim that Cloudtrucks was directly negligent or wanton (unnumbered Count)
Summary judgment is denied as to Smitherman’s claims for negligence and wantonness based
upon a theory of respondeat superior.
DONE and ORDERED this 4th day of March 2025.
s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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