VIRGINIA EMERSON HOPKINS, United States District Judge.
This case arises out of the shooting of Joshua Emery while a student at Talladega College. The defendants, Talladega College, Billy C. Hawkins, Jacqueline W. Paddio, and Miguel A. Bonds ("Talladega" or "Defendants") have moved for summary judgment under Rule 56 against Plaintiff Joshua Emery ("Emery" or "Plaintiff"). The parties have also filed a panoply of discovery-related motions, all of which, other than Defendants' Motion to Strike Expert Testimony, will be
Except as set out below, this motion will
(Doc. 37, ¶¶ 72, 74-75).
The threshold issue for the admissibility of expert testimony and reports is Rule 702, which provides, in relevant part, that a witness who "is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will
Defendants move to strike the expert testimony because it fails, they allege, to satisfy Rule 702 and, in the alternative, should be excluded under Rule 403 anyhow. For the reasons above, the court only conducts the Rule 702 analysis. The Eleventh Circuit has refined the Rule 702 analysis somewhat to require that the trial court consider, first, whether "the expert is qualified to testify competently regarding the matters he intends to address," second, whether his methodology satisfies Daubert, and third, whether the testimony would assist the trier of fact, through specialized expertise, to understand the evidence or to determine a fact in issue. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004).
As to paragraphs 74 and 75, Gaut is clearly qualified. His background in law enforcement gives him experience sufficient to consider proper protocols for the reporting of crimes. Because this opinion is a deeply factual one, it could easily be undercut by cross examination if it were untrue, so the touchstone of Daubert, reliability, is satisfied. Finally, this information would assist the trier of fact in determining the Defendants' mental state as to Emery's fraud claims. The motion is
Paragraph 72 is a different story. The court is unwilling to assume that Dr. Gaut — or anyone — is qualified to render such an opinion, but the short explanation for why it should be excluded is that it would not assist the trier of fact because it does nothing but make Emery's closing argument for him. See Frazier, 387 F.3d at 1262-63 ("Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments."). Further, as will be discussed infra, there is almost no evidence to support this opinion; it is "rank speculation." See 29 CHARLES ALAN WRIGHT AND VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 6924 at 226-27 & n. 45 (1997) (collecting cases). The motion to strike is
Emery asserts four claims against the Defendants. Count I, against Talladega College, alleges that Talladega College
A New Orleanian, Emery enrolled as a freshman at Talladega College in August 2012. (Emery Dep. 59:16-22; 60:9-23; 70:1-2). Prior to enrollment, Miguel Bonds offered Emery a $2,000 band scholarship to attend Talladega College. (Emery Dep. 39:18-23). At the time of enrollment, Emery wanted to major in engineering because he likes to use his hands, and he had an interest in cars. (Emery Dep. 45:2-8). Talladega College does not offer an Engineering Program, Bonds Dep. 34:20-35:2, but Emery was informed that they had such a program at the time he enrolled and only learned the truth a few months after enrollment. (Emery Dep. 69:14-70:10).
Additionally, Bonds informed Emery before enrollment that the crime rate in Talladega was "not that high." (Emery. Dep. 242:18-22). Similarly, Bonds responded to a question from Sherida Emery, Joshua Emery's mother, about the safety of campus by saying "it's pretty safe." (Sherida Dep. 40:20-22). Bonds also described Talladega as a "friendly area" and a "little hick town." (Sherida Dep. 40:13-17).
On October 12, 2012, near "The Inn," Emery Dep. 195:4-15, while Emery and two other Talladega College band members were walking on a campus sidewalk to meet other students for "activities at the campus chapel," Emery observed "three people [he] walked past." (Emery Dep. 87:13-14). He "looked" and "didn't recognize them, so" he "turned [his] head." (Emery Dep. 87:15-16). "[O]ne of them was looking at [Emery] kind of strange like he had a problem." (Emery Dep. 87:16-18). Emery kept walking because "they had a bottle sitting next to them." (Emery Dep. 87:19-21). Emery and his friends proceeded to the chapel without incident. (Emery Dep. 87:22-88:2).
After stopping at the chapel, Emery returned to see "the three people are still sitting there. One of them looking at me like, like he's mad or something." (Emery Dep. 88:3-6). Emery said "what's up?" to the individual, to which the individual replied, "what's up, what you mean, you want to fight?" (Emery Dep. 88:7-9). Emery then said to the individual, "What you want to do then," but the individual's friends grabbed the individual and said "we're not on that." (Emery Dep. 88:10-12). Emery walked off, and the three individuals, who Emery characterized as "locals," began to follow him, Emery Dep. 88:13-17,
The driver ("ColbyD") exited the vehicle with his hand in his pants; he removed his hand, and he was holding a bottle that he subsequently placed into the car. (Emery Dep. 89:10-15). He then reached into the car, retrieved a gun, and stuck it into his pants. (Emery Dep. 89:16-18). Everyone "kind of backed up," but a campus police car passed by, and the locals piled into the Charger with ColbyD and drove off. (Emery Dep. 89:19-23).
Seeing the crowd of people, the campus police stopped and asked the students what was happening. (Emery Dep. 90:1-3). Emery and the other students told the Talladega College police officer that the Dodge Charger that had driven away had a gun in it. (Emery Dep. 173:7-17; 90:6-9).
After Emery told the Talladega College police officer that the car had a gun in it, Emery walked to two local stores, Geneva's and Westco, which were off campus. Emery first walked to Geneva's, which was closed, and then to Westco. (Emery Dep. 90:10-15). At Westco, Emery spoke to a campus police officer who had pulled up. (Emery Dep. 90:14-15). Emery described the individual who had earlier "pulled a gun out on [Emery]" and said that he was parked at "this little place called the Super 10," another store that was not on the Talladega College campus. (Emery Dep. 91:4-9). The Talladega College police officer told Emery to walk back toward campus. (Emery Dep. 91:4-14).
I need to briefly pause the recitation of facts. While Emery's
And now, a return to the narrative. The walk from Westco back to campus was peaceful — mostly. (Emery Dep. 108:12-15). Emery, along with three of his bandmates, had nearly reached their dormitory, Crawford Hall, when "some dudes" ("dudes") jumped out from behind a church. (Emery Dep. 91:17-18). The dudes "rah-rah[ed] off at the mouth, curs[ed] [the students] out, call[ed] [the students] all these names." (Emery Dep. 91:19-22). In response, Emery and another student "said something,"
The dudes followed Emery and his bandmates at "[a] good little distance," Emery Dep. 113:2, cursing the students all along, Emery Dep. 112:1, but the dudes did not reach Crawford Hall until after the students had stepped inside. (Emery Dep. 112:5-7). After Emery and the other Talladega College students closed the door to Crawford Hall, some of the dudes began to try to enter Crawford Hall. The students prevented the non-students from entering Crawford Hall. (Emery Dep. 98:11-17; 99:4-7). One dude tried to "snatch the door open," but one of the students kept it shut. (Emery Dep. 98:3-5).
As some point (Emery does not know when or how), the door to Crawford Hall was opened. (Emery Dep. 99:2-3). Feeling that he had to defend himself, Emery Dep. 99:19-100:1, Emery exited Crawford Hall, descended the steps of Crawford Hall toward the street, and struck one of the dudes at the bottom of the front steps to Crawford Hall. (Emery Dep. 99:12-14). Emery then began "fighting random people," Emery Dep. 101:12-18, and the fracas spilled into the street. (Emery Dep. 99:15-17). There is no evidence any guns were involved in this fight. (Emery Dep. 79:12-81:10, 78:19-20; 86:5-15). Emery did not know who he was fighting. (Emery Dep. 86:14-23).
Officer Lindsay, a Talladega College police officer, arrived at the scene of the fight and broke up the fight using mace or other deterrent spray and disbursed the students and the dudes. (Emery Dep. 92:19-23). Lindsay told Emery to relax (Emery Dep., 104:5-7). Lindsay then told Emery and the other Talladega College students to get back inside Crawford Hall. Officer Lindsay personally escorted Emery back inside Crawford Hall. (Emery Dep., 203:20-23; 204:1-4). Lindsey also instructed Emery and the other Talladega College students to stay near the dorm area. (Emery Depo., 204:5-9).
Lindsay left the students in the custody of Isaiah Carter, the Crawford Hall Dorm Director. Lindsay thereafter began to search for the dudes. (Lindsay Aff. ¶ 13). Carter kept Emery and the other students inside Crawford Hall after the fight for some period of time. Emery estimates this to have been about 5 minutes. (Emery Dep. 80:22-23; 81:1-4). The school was not placed on "lock down" during this time, Paddio Dep. 121:20-122:2, although there was an informal "lock out." Talladega College campus was not equipped to be locked down, nor was there a mass communication system. (Chief Jefferson Walker Aff. ¶ 7). The students were then allowed onto the front porch of Crawford Hall, although Lindsay had not yet apprehended anyone. (Lindsay Aff. ¶ 13). Around this time, Lindsay saw someone running between MLK and Savory Streets. (Id.).
Between 5 and 10 minutes after the students were allowed to exit the lobby of Crawford Hall to sit on the front porch, shots were fired from a location off campus across Martin Luther King Drive from Crawford Hall. Emery was the only person injured; he was struck in the abdomen by
While Emery was being treated, Paddio informed Sherida Emery that "you and Joshua have nothing to worry about, all expenses, medical bills and anything pertaining to this incident, the school will cover." (Sherida Dep. 72:4-8). Hawkins "piggybacked" what Paddio had said, reiterating "the school is going to cover all expenses." (Sherida Dep. 72:10-12). Paddio later repeated the guarantee in her office to Sherida Emery. (Sherida Aff., ¶ 4). The medical bills were incurred as a necessity. On June 17, 2013, Talladega employee Gerald J. William advised in writing that Talladega College "paid up to its limits." (Williams Letter).
After the shooting, Talladega College President Billy Hawkins stated "there has been an ongoing problem with locals coming onto campus with guns ... and that [Talladega College's] chief (of campus police) has taken a lot of guns off locals on campus." (Aziza Jackson Aff., ¶ 5).
Emery returned to the Talladega College campus and enrolled for the Spring semester in January 2013. He completed that semester and enrolled again in the Fall semester of 2013. Emery continued as a Talladega student, despite knowing that Engineering was unavailable as a major, so that he could get his minor coursework out of the way, and so he could learn to read music in the band. (Emery Dep. 242:1-7). Because he did not currently have a major, he selected music as his major after he was shot. (Emery Dep. 187:14-188:13).
There is a final factual matter to discuss. Emery's "Additional Disputed Facts" found in his response brief, doc. 37, ¶¶ 69-76, have been partially included in the above recitation of facts. In a footnote in their reply brief, doc. 44 at 5 n. 2, Defendants
Further, the court declines to discount the "Additional Disputed Facts" on the basis of Emery's failure to include undermining citations, because the record citations clearly support the facts as stated. This is not to say that the "Additional Disputed Facts" were automatically considered undisputed. Paragraphs 70, 71, and 76 were already included within the recitation of facts. Paragraphs 69 and 73-75 have been included as undisputed facts. Paragraph 72 has been excluded as described above.
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
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, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) (citation omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505 (internal citations omitted).
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (citation omitted). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16 (citation omitted). First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17 (citation omitted). When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (citation omitted). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
"In Alabama, the existence of a duty is a strictly legal question to be determined by the court." Bryan v. Alabama Power Co., 20 So.3d 108, 116 (Ala. 2009) (quoting Taylor v. Smith, 892 So.2d 887, 891 (Ala.2004)). "It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person." Collins v. Scenic Homes, Inc., 38 So.3d 28, 32 (Ala.2009) (citation and quotation marks omitted). The court will discuss these alternative avenues of establishing Talladega's duty in turn.
To establish that special circumstances exist sufficient to give rise to a duty to protect against third-party violence, Alabama law requires a plaintiff to prove three elements. "First, the particular criminal conduct must have been foreseeable. Second, the defendant must have possessed specialized knowledge of the criminal activity. Third, the criminal conduct must have been a probability." Tenn Tom Bldg. v. Olen, Nicholas, & Copeland, P.C., 908 So.2d 230, 233 (Ala.2005) (citation and quotation marks omitted).
The elements blend into each other to an extent, but it appears they are designed to work like a series of ever finer sieves. Thinking of it this way, the questions become: First, which criminal conduct are we talking about, and based on all the information in the universe, was
Starting with the first element, the parties disagree about the level of generality at which the "particular criminal conduct" must be cast. Emery argues that a battery
The court will briefly detour from her legal analysis to explain why she does not consider the events outside The Inn to constitute common law assault or battery, nor, to the extent they are relevant, Alabama assault, ALA. CODE §§ 13A-6-20-22, or menacing, id. § 13A-6-23. There is no evidence that anyone touched anyone else during the events at The Inn, see Emery Dep. 208:12-18 (Emery admits that the confrontation at The Inn was not a fight), so battery and Alabama assault are off the table. At common law, it was well-settled that mere words are insufficient to constitute assault. See, e.g., Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289, 294 (1975). The same is true for the Alabama menacing statute. Lansdell v. State, 25 So.3d 1169 (Ala.Crim.App.2007). It is unlikely that the events that transpired, including Emery and the disgruntled man asking each other if they wanted to fight, created sufficient imminence to qualify as common law assault.
The court can locate no Alabama decision in which leering at a person, following him, and asking if he wanted to fight constituted menacing. Finally, there is no evidence that ColbyD ever engaged or spoke to the students. Merely observing that an individual possesses a weapon is insufficient to constitute common law assault or menacing as a matter of law. See Ex parte Pate, 145 So.3d 733 (Ala. 2013) (retrieving shotgun and pointing finger at victim insufficient). This conclusion is not disturbed by Emery's repeated characterization of ColbyD as "threatening" the students and "brandishing" the gun; "[s]tatements by counsel in briefs are not evidence." Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir.1980).
Back to the level of generality. Emery's position becomes difficult to maintain as the disparity in violence between battery 1 and battery 2 grows. The problem arises because Emery appears to argue that, as long as two crimes have the same archetype, the second one is foreseeable. However, crimes can be subject multiple characterizations. Here, the shooting could be a battery or it could be attempted murder. It is well-settled in Alabama that
A shooting occurs following a series of brawls, and the victim is on life support. A civil action is initiated against the owner of the premises on which the shooting occurred, and it clears summary judgment because a subsequent battery was the foreseeable consequence of the previous. Shortly before trial, the victim dies. The battery merges into the new crime of murder, and the previously foreseeable crime is now unforeseeable.
So, there must be some limitation on the foreseeability of a more violent form of the same crime when the difference in degree is so large as to be a difference in kind. Emery's "categorical approach," to borrow a phrase, see Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), is therefore inapposite, but so is Talladega's shooting-or-nothing approach;
Whether you call it battery with a deadly weapon or attempted murder, the shooting was not a foreseeable consequence of a brawl in which no weapons were observed,
Finally, all of the foregoing discussion on foreseeability has been premised on the idea that the same party batters once and then batters again — a proposition unsupported by the evidence in this case. Where the beaters are different, or at least not certainly the same, the probative value of the earlier battery is reduced vis-à-vis foreseeability; it is difficult to see why being battered by one person makes it foreseeable that another person will randomly batter you later. But the parties appear to agree that the identity of the shooter goes to the requirement of Talladega's specialized knowledge, so the court will briefly delay this discussion.
The second element, as discussed above, appears to bear on whether Talladega
As to the issue of the shooter's identity, both parties quote from Hail v. Regency Terrace Owners Ass'n, 782 So.2d 1271 (Ala.1999) to support their respective positions. Here is the relevant portion:
Id. (emphasis added). Hail stands for three propositions: 1) there is no "special circumstances" duty where the criminal's identity is completely unknown; 2) there is a "special circumstances" duty when the criminal's identity is narrowed to one of two people; and 3) taking precautionary
Here, there is no evidence at all about who shot Emery. "Au contraire," says Emery; the shooter was narrowed to the group of people in the Charger, and it was the same group of "Locals" throughout the night who harassed the students. Aside from his habit during briefing to refer to the crowd at The Inn, the church, Crawford Hall, and the shooter as "Locals," Emery has offered
Anyway, Emery also points out that Lindsay pepper-sprayed a "Local," and Lindsay was trying to apprehend the assailants when Emery was shot. So what? If there were
Two Talladega College Police Officers described the brawl as "an imminent threat to student safety." Brawls often have that characteristic. Of course, the fact that the brawl posed a threat to student safety says nothing about the foreseeability of the shooting (or even the brawl). And a crime that was otherwise unforeseeable does not become foreseeable simply because it has started but not yet concluded. Cf. Virginia v. Peterson, 286 Va. 349, 749 S.E.2d 307, 313 (2013) (Virginia Tech had no duty, during Seung-Hui Cho's rampage, to warn students about a not-yet apprehended shooter whose identity was unknown after discovering his first victim).
Finally, as to probability, Emery offers no record citations, just saying that Emery was the target of a coordinated attack. Perhaps it is beating a dead horse to say so, but a plaintiff has to prove his case. No evidence has been introduced to demonstrate that the "Locals" were the same people as the riders in the Charger; no one knows who the shooter is. Emery cannot sustain his negligence claim on the "special circumstances" theory. See also Wilder v. Sigma Nu Fraternity, Inc., 390 Fed.Appx. 910, 912-13 (11th Cir.2010) (finding no duty where the criminal
Defendants suggest that the court should analogize to actions under 42 U.S.C. § 1983 to determine whether a special relationship exists under Alabama law. They reason that, as a consequence of Alabama's provision of immunity from state law tort actions to school boards, there is not a lot law on the subject of students injured by third parties at school, so section 1983 is better than nothing. The court is skeptical of the relevance of section 1983 to a negligence action, since section 1983 is a "unique remedy," Wilson v. Garcia, 471 U.S. 261, 272, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), superseded on other grounds, that is, if analogous to any state law cause of action at all, most like the intentional torts. See Owens v. Okure, 488 U.S. 235, 248, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (describing intentional torts as "most analogous to § 1983 claims," but noting the analogy is "imprecise"). But see Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (drawing on common law malicious prosecution for elements of section 1983 action seeking damages for an unconstitutional conviction). Taking account of section 1983's sui
Emery, for his part, argues that a special relationship is created when a party takes "custodial control" of another. That may be, and it would jibe with the court's intuitions, but flattering the court's hunches is not enough to make law. Alas, Emery offered no Alabama law to support his position — not even an Alabama definition of custodial control. Instead, Plaintiff recited the facts of the case and laconically asserted that "when Defendant took custodial control of the students during the "lock out," Defendant had a
Citing section 315 of the Restatement (Second) of Torts,
With an unpersuasive analogy from Talladega College and an ipse dixit from Emery, the court has gone hunting for Alabama authority. I present my quarry: The existence of a special relationship in Alabama "hinge[s] on dependence or mutual dependence among the parties," Young v. Huntsville Hosp., 595 So.2d 1386, 1388-89 (Ala.1992) (citation and internal quotation marks omitted); i.e., where the plaintiff is "uniquely," Saccuzzo v. Krystal Co., 646 So.2d 595, 597 (Ala.1994), and "completely," Finley v. Patterson, 705 So.2d 826, 828 (Ala.1997), dependent upon the defendants for protection. This is a very high bar, and it appears that the Alabama Supreme Court has only twice found that a special relationship exists. First, in Young, a special relationship existed where a patient was sexually assaulted while sedated, because she was unable to care for herself. 595 So.2d at 1388-89. Second, in Thetford v. City of Clanton, 605 So.2d 835, 838-40 (Ala.1992), the court found a special relationship existed where a battered wife informed an innkeeper that she was fleeing her husband, she checked in under a false name, requested that the innkeeper not reveal her location, but the innkeeper ultimately cut the lock off the door to allow the husband access. The wife was later beaten to death. Id.
A promissory fraud claim "is one based upon a promise to act or not to act in the future." Southland Bank v. A & A Drywall Supply Co., Inc., 21 So.3d 1196, 1210 (Ala.2008). The elements of such a claim are:
Id. (citation omitted). Defendants argue that the claim fails because Emery has failed to produce evidence supporting Defendants' scienter, Emery's damages, and that Emery relied on the promise.
The court agrees with Defendants as to the reliance element. Assuming arguendo that a person could be defrauded on the basis of a gratuitous promise,
To establish fraudulent misrepresentation,
The alleged deceit did not proximately cause the shooting. Cf. Ex parte Wild Wild West Social Club, Inc., 806 So.2d 1235 (Ala.2001) (a beating by a security guard outside a bar is not a foreseeable consequence of ejecting someone from a bar). A fortiori, it did not cause the medical bills. In his brief, Emery suggests that he enrolled at Talladega College, paid tuition, and incurred student loan debt for which he is now in collections. He cites no evidence to support any of these allegations. Summary judgment will be
To make a claim for fraudulent suppression, Emery must prove that "(1) the defendant had a duty to disclose an existing material fact; (2) the defendant concealed or suppressed that material fact; (3) the defendant's suppression induced the plaintiff to act or refrain from acting; and (4) the plaintiff suffered actual damage as a proximate result." Coilplus-Alabama, Inc. v. Vann, 53 So.3d 898, 909 (Ala.2010). Defendants argue that they were under no duty to disclose the crime information to Emery, and that he has offered no evidence of actual damage. For the same reasons as claim III, the damage element is inadequately supported here. The motion will be
"[A] trial judge may use summary judgment procedures to require a plaintiff, who has had ample time for discovery, to show that [he] has some admissible evidence to support an essential element of [his] case." Catrett v. Johns-Manville Sales Corp., 756 F.2d 181, 187 (D.C.Cir.1985) rev'd sub nom. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Bork, J., dissenting). Emery has failed to do this. The motion for summary judgment will be
