VIRGINIA EMERSON HOPKINS, District Judge.
This is a civil action filed by the plaintiff, Gregory Campbell, appearing pro se,
The complaint contains one count and alleges, in pertinent part, that
(Doc. 1-1 at 4-5). The plaintiff states that his injuries include: "physical injuries, mental anguish, undue worry, and concern," and that the plaintiff "was caused to seek the services of . . . hospitals and physicians and ha[s] incurred charges and bills related to same." (Doc. 1-1 at 5). The complaint also alleges that GEICO insured him at the time of the accident, and "provided, among other coverages, underinsured and uninsured motorist coverage and benefits[.] (Doc. 1-1 at 4). He demands a judgment against GEICO in the amount of $200,000, plus costs. (Doc. 1-1 at 5). Although the plaintiff does not specify why GEICO is liable for his injuries, the court assumes that the plaintiff's claim is based on the uninsured/underinsured motorist coverage that he alleges GEICO provided him.
The case comes before the court on GEICO's motion for summary judgment. (Doc. 14). On October 2, 2015, this court gave the pro se plaintiff "express, ten-day notice of the summary judgment rules, of his right to file affidavits or other materials in opposition to the motion, and of the consequences of default." McBride v. Sharpe, 981 F.2d 1234, 1236 (11th Cir. 1993) (quotation and citation omitted). (Doc. 15). He has failed to respond to the motion. For the reasons stated herein, the motion will be
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 (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 and citation 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. 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. 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 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. 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. 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.
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). 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 issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
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. 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. 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 (1996). 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.
This court's summary judgment scheduling order provides:
(Doc. 3 at 17) (emphasis in original). The plaintiff has not filed any in opposition to the motion for summary judgment. Accordingly, the following facts, set out in the movant's brief, are deemed to be admitted:
(Doc. 14-1 at 2-5).
The plaintiff's claims against GEICO require, at the very least, that there was an "uninsured" or "underinsured" tractor trailer truck that engaged in the conduct described by the plaintiff in his deposition. In this case, the plaintiff is deemed to have admitted that there was "no tractor-trailer, semi, or other large commercial vehicle [which] entered your lane immediately prior to the accident." (Doc. 14-5 at 6). Fed. R. Civ. P. 36(a)(3); see also, Broad. Music, Inc. v. L.S. Horne Inv. III, LLC, No. 1:14-CV-01157-ELR, 2015 WL 1812777, at *1 (N.D. Ga. Apr. 16, 2015) (noting that the failure to respond to a Request for Admission results in that request being admitted). Since there was no truck, there is no claim.
The defendant also notes that the plaintiff has failed to produce evidence of any injury proximately caused by either the negligence or wantonness of the alleged tractor trailer. "Proximate cause is an essential element of both negligence claims and wantonness claims. . . . Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new independent causes, produces the injury and without which the injury would not have occurred." Lingefelt v. Int'l Paper Co., 57 So.3d 118, 122-23 (Ala. Civ. App. 2010) (internal quotations and citations omitted). Because the plaintiff has failed to produce such evidence, summary judgment on the plaintiff's claims is due to be granted.
The wantonness claim also fails for alternative reason that there is a lack of evidence of wantonness on the part of the driver of the alleged tractor trailer. Wantonness 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. Crouch v. N. Alabama Sand & Gravel, LLC, No. 1131086, 2015 WL 1388139, at *5 (Ala. Mar. 27, 2015) (internal citations omitted). As noted by the defendant, even assuming that the tractor trailer truck existed, there has been no such showing by the plaintiff.
For the foregoing reasons, summary judgment will be
(Doc. 14-2 at 18(65-66).
Thomas Lyner was directly behind the plaintiff's vehicle when the accident happened. He testified:
(Doc. 14-3 at 4(11)-5(13)).
Linda Lyner was in the car with her husband Thomas at the time of the accident. She testified that she did not remember the facts to be any different than how Thomas Lyner testified. (Doc. 14-4 at 3(6)). She added that she does not remember "any vehicle coming up the hill that was in [her] lane of travel." (Doc. 14-4 at 3(6)).
(Doc. 14-2 at 20(73-74)).
Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala. 1998). In the absence of any argument by GEICO that the above elements have been satisfied, summary judgment on this issue is not appropriate simply because of the plaintiff's admission. The same goes for GEICO's argument, in a footnote, that the plaintiff was contributorily negligent because he "was not paying attention," and that he "lost situational awareness." (Doc. 14-1 at 6, n. 3). Regardless, the point is moot in light of the court's holding.
