Amy Gondrella v. Brittany Mainor ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 06-11445 ELEVENTH CIRCUIT
APRIL 16, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00546-CV-BH-M
AMY GONDRELLA,
Plaintiff-Appellant,
versus
BRITTANY MAINOR,
Defendant-Appellee,
PROGRESSIVE INSURANCE COMPANY,
Defendant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(April 16, 2007)
Before EDMONDSON, Chief Judge, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Amy Gondrella appeals the jury verdict in favor of
Defendant-Appellee Brittany Mainor in Plaintiff’s diversity suit for damages
sustained when Plaintiff’s vehicle was rear-ended by Defendant’s vehicle. No
reversible error has been shown; we affirm.
According to stipulated facts, on the day of the collision, the parties were
teammates on the Alabama Southern College softball team; the team had just
finished a practice session. The parties were leaving campus to go to their off
campus housing when, while still within the parking lot, Plaintiff’s vehicle
stopped; and Defendant, unaware that Plaintiff had stopped, struck the rear of
Plaintiff’s car.
Plaintiff testified that she was rear-ended by Defendant’s vehicle one or two
seconds after she stopped her car in the parking lot at a stop sign where, had she
not stopped, she would have entered oncoming traffic. Defendant’s version of the
facts is somewhat different. Defendant testified that most of her teammates left in
their cars shortly before Defendant and Plaintiff. Plaintiff pulled out in front of
Defendant, and Plaintiff’s body language indicated to Defendant that Plaintiff
wanted to race. According to Defendant, Plaintiff and Defendant were goofing
around in the parking lot. Plaintiff cut through the parking lot (the other
teammates exited onto a street which went around the parking lot); Defendant was
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behind Plaintiff. Plaintiff stopped abruptly before reaching the stop sign that
would have required her to stop and yield the right of way to traffic. Because
Defendant had not anticipated the abrupt stop, Defendant plowed into Plaintiff’s
car.
Plaintiff maintains that no reasonable jury could determine that Defendant
was not at fault in this accident. But no such determination was required: in
Alabama contributory negligence is an absolute bar to recovery. Ridgeway v.
CSX Transp. Inc., 723 So. 2d 600, 606 (Ala. 1998). The Supreme Court of
Alabama has rejected expressly calls to abandon the doctrine of contributory
negligence (and its complete bar to recovery) in favor of the doctrine of
comparative negligence applied in most common law jurisdictions. See Williams
v. Delta Intern. Machinery Corp., 619 So. 2d 1330, 1333 (Ala. 1993). And,
contributory negligence is an issue for the jury except “only when the facts are
such that all reasonable men must draw the same conclusion.” Wyser v. Ray
Sumlin Constr. Co., 680 So. 2d 235, 238 (Ala. 1996).
Evidence existed in the record that Plaintiff “egged” Defendant into
engaging in horseplay that included cutting through the parking lot and racing
toward an exit in a manner that could have allowed Plaintiff and Defendant to
overtake their teammates. Plaintiff denied this conduct and denied stopping
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abruptly in advance of the intersection; her denials could be true. But Plaintiff’s
credibility was challenged. By its verdict, the jury expressed its lack of
confidence in Plaintiff’s account of the accident; “[w]e will not override the jury’s
decision on the credibility of a witness.” Meeks v. Computer Associates Intern.,
15 F.3d 1013, 1018 (11th Cir. 1994) (quotation and citation omitted).
Sufficient evidence existed to allow the jury to consider the issue of
contributory negligence. Indeed, Plaintiff cites us to nothing in the record
whereby Plaintiff sought a determination of this issue in her favor as a matter of
law. On this record, it cannot be said that no reasonable jury could conclude that
Plaintiff was contributorily negligent; the jury verdict will not be disturbed.
AFFIRMED.
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