Hubbard v. Cowabunga Inc ( 2023 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION GARRETT HUBBARD, Plaintiff, v. Case No. 4:19-cv-1881-CLM COWABUNGA, INC., Defendant. MEMORANDUM OPINION A Domino’s Pizza driver was turning left into the Domino’s parking lot when he hit Garrett Hubbard, who was driving his motorcycle in the other lane. Hubbard sued Cowabunga, Inc. (the owner of this Domino’s location) for negligence, wantonness, and negligent and wanton hiring, training, and supervision. Cowabunga moved for summary judgment on all counts. (Doc. 72). In his response to the motion for summary judgment, Hubbard stated that he does not oppose granting summary judgment for Cowabunga on the negligent and wanton hiring, training, and supervision claims. (Doc. 76, p. 7). So the court GRANTS Cowabunga’s motion for summary judgment on those claims. (Doc. 72). For the reasons stated below, the court will GRANT Cowabunga’s motion for summary judgment on the wantonness claim and DENY the motion for summary judgment on the negligence claim. (Doc. 72). BACKGROUND Garrett Hubbard took his motorcycle out for a ride with a video camera attached to his helmet. That video shows him pulling out of a Sonic parking lot and colliding with Tristin Barnes, a Domino’s Pizza delivery driver. Barnes was travelling in the opposite direction and began turning left into the Domino’s parking lot when Hubbard exited the Sonic parking lot. The video shows that Barnes did not use his turn signal when he turned. The video also shows that Hubbard exited the Sonic parking lot in the opposite direction of arrows painted on the ground. Before he exited the parking lot, Hubbard checked the road for oncoming cars but did not come to a complete stop. A few seconds after Hubbard exited the parking lot, Barnes ran into him with his car while making his turn. Hubbard was travelling 27 MPH1 at the time of the collision. Barnes claims the sun was in his eyes, and he could not see Hubbard. Hubbard sued Barnes—but not Cowabunga—in Alabama state court, alleging negligence and wantonness. The parties settled that case for $50,000. Hubbard later filed this federal case against Cowabunga. Cowabunga moved for summary judgment, arguing that Hubbard is judicially estopped from pursuing his claims because of the state court settlement. This court denied that motion, holding that Cowabunga did not satisfy the elements of judicial estoppel. But the court noted that “Cowabunga may re-raise the issue in post- discovery motions, should the facts support it.” (Doc. 52, p. 12). STANDARD OF REVIEW In reviewing a motion for summary judgment, this court views the facts and draws all reasonable inferences in the light most favorable to the non- moving party. See Cuesta v. Sch. Bd. of Miami-Dade Cty., 285 F.3d 962, 966 (11th Cir. 2002). Summary judgment is appropriate when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 1 Cowabunga contends that the speed limit was 25 MPH, while Hubbard says it isn’t clear whether the sped limit was 25 or 40 MPH. DISCUSSION Cowabunga’s argument for summary judgment is three-part. It first argues that the court should grant summary judgment on the wantonness claim because Barnes’ actions do not meet the high standard required under Alabama law for a claim of wantonness to go to trial. It next argues that the negligence claim should fail because Hubbard was contributorily negligent in the accident. And finally, it renews its judicial estoppel argument that Hubbard should be unable to recover at all in this lawsuit because of his positions and the settlement in the state court action. I. Wantonness Hubbard alleges that Barnes acted wantonly by failing to use his turn signal, failing to see Hubbard, hitting Hubbard despite his familiarity with the road, and the lack of risk of harm to himself from running into the motorcycle. Cowabunga argues that summary judgment is appropriate on this count because Barnes’ actions do not meet the high standard required for a wantonness claim 1. Legal Standard: “Wantonness” is “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.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007). “[I]t is not essential that the actor should have entertained a specific design or intent to injure the plaintiff, only that the actor is ‘conscious’ that injury will likely or probably result from his actions.” Id. In fact, “[a] wantonness count should go to the jury if there is any evidence to support a finding of wantonness.” Bishop v. Poore, 475 So. 2d 486, 487 (Ala. 1985). But “[w]antonness requires more than a mere showing of some form of inadvertence on the part of the driver; it requires a showing of some degree of conscious culpability.” Scott v. Villegas, 723 So. 2d 642, 643 (Ala. 1998). 2. Analysis: Hubbard argues that Barnes’ failure to use his turn signal, failure to see him, running into Hubbard despite his familiarity with the road, and lack of risk of harm from hitting the motorcycle all support a finding of wantonness. The video shows that Barnes began his turn into the Domino’s parking lot as Hubbard entered the road and collided with Hubbard two seconds later: “igs = | a be a { Wy = ‘ oop EPS fh. A i ~ LSPs ! : TARY Bo a uF ae ; oe J mee | ee eT =! ™~ : f \/ ‘a According to Hubbard, the court should allow his wantonness claim to proceed to the jury because this court has done so in a case in which the defendant violated a rule of the road. See Vasser v. Tezi Express LLC, 2022 WL 19625 (N.D. Ala. Jan. 3, 2022). But that case relied on Alabama caselaw that established that running a stop sign was sufficient evidence for a wantonness claim to survive a summary judgment. See Clark v. Black, 630 So. 2d 1012 (Ala. 1993). The plaintiff has not cited, and the court is unaware of, any Alabama caselaw that establishes that the failure to use a turn signal is sufficient evidence to support a finding of wantonness. The court agrees with Cowabunga that summary judgment is appropriate on the wantonness count because no reasonable juror could find that Barnes had “some degree of conscious culpability” and still ran into Hubbard. Scott v. Villegas, 723 So. 2d 642, 643 (Ala. 1998). Instead, the video establishes that Hubbard darted quickly into his lane, the events happened quickly, the sun was in Barnes’ sight, and Barnes repeatedly said that “I didn’t see you” after the accident. No reasonable juror who watches these events could find that Barnes was conscious that he was about to hit and injure Hubbard when he turned. So the court GRANTS Cowabunga’s motion for summary judgment on the wantonness count. II. Contributory Negligence 1. Legal Standard: Because contributory negligence is a defense, not an element of the claim, “the question of contributory negligence is normally one for the jury,” not dispositive motions. Crook v. Allstate Indem. Co., 314 So. 3d 1188, 1198 (Ala. 2020). In Alabama, courts can summarily dismiss a claim on contributory negligence grounds if the defendant proves 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.” Ridgeway v. CSX Transp., Inc., 723 So. 2d 600, 606 (Ala. 1998). “[I]t is only when the facts are such that all reasonable men must draw the same conclusion that contributory negligence is ever a question of law for the court.” Wyser v. Ray Sumlin Const. Co., Inc., 680 So. 2d 235, 238 (Ala. 1996). 2. Analysis: Cowabunga argues that Hubbard’s negligence contributed to the accident because he exited the Sonic parking lot in the opposite direction of arrows on the pavement, failed to come to a complete stop before entering the road, failed to yield to Barnes, was speeding”, and entered the road at a sharp angle. Screenshots from the video highlight these arguments: j □□ w ¥ PP oe ie aa (Hubbard exits the parking lot opposite of the circled arrow) os = wh Ss re ee [4 a aN >. i ‘= ee 7 = ’ rt sie ai “ ra (| (Hubbard does not come to a complete stop before entering the road) Hubbard was travelling 27 MPH at the time of impact. The parties dispute whether the speed limit was 25 or 40 MPH at the location of the accident. aay as ae: ' i | a : le _ eral Lite. a Me ean □□ □ ——~*=ts” —