Docket Number CV 2015-02

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

MARGO MARTIN AND TODD MARTIN,Appellant,

v.CLARK W. GRISWOLD,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF ALABAMA

BRIEF FOR APPELLEE

ORAL ARGUMENT REQUESTED

Stephen K. WeaverThe Prestige Firm800 Lakeshore DriveBirmingham, AL 35209Telephone: (205) 222-2107Facsimile: (205) 222-8475

C-1 of 1

Martin v. GriswoldDocket No. CV 2015-02

CERTIFICATE OF INTERESTED PARTIES

Clark W. Griswold hereby certifies that the following persons, attorneys and

entities have an interest in the outcome of the case:

1. S. Kyle Weaver, Esq., The Prestige Firm, Attorneys for Appellee;

2. Honorable, J. Mark Baggett, United States District Judge;

3. Clarke Griswold, Appellee;

4. Andrea Shaw, Esq., The Shaw Firm, Attorneys for Appellant;

5. Margo Martin, individually and as next friend of Todd Martin, a minor,

Appellant;

___________________________S. Kyle Weaver

Attorney for Appellee

i

STATEMENT REGARDING ORAL ARGUMENT

Clark W. Griswold requests oral argument to persuade this court that the

District Court properly granted summary judgment on all counts in favor of the

Defendant.

Oral argument will aid the court in reviewing the claim for nuisance because

this case’s facts are unique and oral argument will assist the court in understanding

the facts.

Oral argument will aid the court in reviewing the claim for negligent

entrustment, specifically in regards to the knowledge of the entrustee, the

incompetency of the entrustee, and the proximate cause of the Plaintiff’s injuries.

We feel that this issue is complex and much better suited for determination by oral

argument.

ii

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES ....................................................C-1

STATEMENT REGARDING ORAL ARGUMENT ................................................i

TABLE OF CONTENTS ......................................................................................... ii

TABLE OF CITATIONS ........................................................................................iv

STATEMENT OF JURISDICTION...................................................................... viii

STATEMENT OF THE ISSUES...............................................................................1

STATEMENT OF THE CASE ……………………………………………………2

a. PROCEDURAL HISTORY……………………………………………...2

b. STATEMENT OF THE FACTS ………………………………………...3

c. STANDARD OF REVIEW ……………………………………………..7

SUMMARY OF THE ARGUMENT ……………………………………………...9

ARGUMENT……………………………………………………………………...12I. THE DISTRICT COURT PROPERLY GRANTED SUMMARY

JUDGMENT FOR CLARK W. GRISWOLD WHEN HIS OCCASIONALFESTIVALS WHICH ARE STRONGLY SUPPORTED BY THECOMMUNITY HAVE NOT SUBSTANTIALLY INJURED,MATERIALLY INTERFERED WITH OR INCONVENIENCEDAPPELLANT WHO NEVER COMPLAINED TO APPELLEE ABOUTTHE FESTIVALS.…………………………………………………...…12

A. Noise from the Appellee’s festivals does not constitute a nuisanceunder Alabama law when the noises are occasional and have notproduced a substantial injury to, materially interfered with, orinconvenienced the Appellant…………………………………..12

B. Lights from the Appellee’s festivals do not constitute a nuisanceunder Alabama law when the lights are occasional and would notaffect an ordinary reasonable person……………………………17

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C. Increased neighborhood traffic does not establish the existence of anuisance; and Appellant failed to go beyond the pleadings asrequired under Celotex in presenting evidence that cars blockedingress and egress from the property…………………………….18

D. Litter dropped on Appellant’s property was dropped bytrespassers not under the control of Appellee and was not socontinuous as to constitute a nuisance…………………………..20

II. THE DISTRICT COURT PROPERLY GRANTED SUMMARYJUDGMENT IN FAVOR OF CLARK W. GRISWOLD BECAUSEISOLATED INSTANCES AND RUMORS ABOUT JOHNNY JONESCONDUCT ARE NOT ENOUGH TO PROVE THAT JOHNNY JONESWAS INCOMPETENT NOR ARE THEY ENOUGH TO PROVE THATMR. GRISWOLD HAD KNOWLEDGE OF JOHNNY JONES’ALLEGED INCOMPENTENCY; AND WHEN MR. GRISWOLD ISNOT THE PROXIMATE CAUSE OF APPELLANT’S INJURIESBECAUSE TODD MARTIN UNEXPECTEDLY AND UNLAWFULLYDARTED INTO THE ROAD IN FRONT OF THETRACTOR……………………………………………………………...21

A. Mr. Griswold had no knowledge of Mr. Jones incompetency becausean isolated remote instance of underage drinking and rumors do notmeet the standard for knowledge under Alabamalaw….……………………………………………………………..22

B. Mr. Jones was not incompetent because under Alabama law he wasneither a habitual drunkard, nor was he intoxicated at the time of theaccident ……………………………………………………...…...26

C. Mr. Griswold is not the proximate cause of Todd Martin’s injurieswhen Todd Martin’s actions constituted an efficient interveningcause because his actions came into operation after Mr. Griswold’salleged negligent act, were unforeseeable and were sufficient to bethe sole cause in fact of the Appellant’s injuries…………………28

CONCLUSION.......................................................................................................30

CERTIFICATE OF SERVICE…………………………………………………....31

iv

TABLE OF CITATIONS

FEDERAL CASES

Anderson v. Liberty Lobby, Inc.,477 U.S. 242 (1986)……………………………………………………….7-8

Celotex Corp. v. Catrett,477 U.S. 317 (1986)…………………………………………………...7-8, 19

Chapman v. Al Transp.,229 F.3d 1012 (11th Cir. 2000)……………………………………………..7

Herman v. NationsBank Trust Co.,126 F.3d 1354 (11th Cir. 1997)……………………………………………..7

Matsushita Elec. Indus. Corp. v. Zenith Radio Corp.,475 U.S. 574 (1986)………………………………………………………...8

STATE CASES

Acker v. Protective Life Ins. Co.,353 So. 2d 1150 (Ala. 1977)……………………………………………….14

*Alabama Power Co. v. Stringfellow,153 So. 269 (Ala. 1934)………………………………………………...14-17

Baldwin v. McClendon,288 So. 2d 671 (Ala. 1974)……………………………………………..12-13

Banks v. Corte521 So. 2d 960 (Ala. 1988)………………………………………………...13

*Birmingham News Co. v. Little,148 So. 398 (Ala. 1933)……………………………………………………20

Borland v. Sanders Lead Co.,369 So. 2d 523 (Ala. 1979)………………………………………………...13

Brown v. Vanity Fair Mills, Inc.,277 So. 2d 893 (Ala. 1973)………………………………………………...26

Coleman v. Estes,201 So. 2d 391 (Ala. 1967)……………………………………………..12-13

Cooter v. State Farm Fire & Cas. Co.,344 So. 2d 496 (Ala. 1977)………………………………………………...23

Crotwell v. Cowan,184 So. 195 (Ala. 1938)………………………………………………...23-24

Crouch v. N. Ala. Sand & Gravel, LLC.,No. CV-06-306, 2015 WL 1388139 (Ala. 2015)…………………………..12

v

Day v. Williams,670 So. 2d 914 (Ala. 1995)………………………………………………...24

Dean v. Johnston,206 So. 2d 610 (Ala. 1968)………………………………………………...28

Downey v. Jackson,65 So. 2d 825 (Ala. 1953)………………………………………………….17

*Drennen v. Mason,133 So. 689 (Ala. 1931)………………………………………………...17-19

*Dunaway v. King,510 So. 2d 543 (Ala. 1987)……………………………………..22-23, 25, 26

*Edwards v. Valentine,926 So. 2d 315 (Ala. 2005)…………………………………………23, 25-27

*Fugazzoto v. Brookwood One,325 So. 2d 161 (Ala. 1976)………………………………………………...19

Gardiner v. Solomon,75 So. 621 (Ala. 1917)…………………………………………………23-24

Halford v. Alamo Rent-A-Car, LLC,321 So. 2d 409 (Ala. 2005)……………………………………………..21-22

Harris v. Randolph Lumber Co.,57 So. 453 (Ala. 1912)……………………………………………………..14

Jones v. Newton,454 So. 2d 1345 (Ala. 1984)……………………………………………….13

*K-Mart v. Stewart,29 So. 3d 887 (Ala. Civ. App. 2009)……………………………….13, 17-19

Lauderdale Cnty Bd. of Educ. V. Alexander,110 So. 2d 911 (Ala. 1959)………………………………………………...13

Mason v. New,475 So. 2d 584 (Ala. 1985)……………………………………………..21-22

McDermott v. Hambright,238 So. 2d 876 (Ala. 1970)………………………………………………...29

*McGowin v. Howard,36 So. 2d 323 (Ala. 1948)………………………………………………23-25

Miller v. Cleckler,51 So. 3d 379 (Ala. Civ. App. 2010)……………………………….22, 28-29

Morgan Concrete Co. v. Tanner,374 So. 2d 1344 (Ala. 1979)……………………………………………….12

vi

*Parker v. Ashford,661 So. 2d 213 (Ala. 1995)…………………………………………17-18, 20

*Patterson v. Robinson,620 So. 2d 609 (Ala. 1993)……………………………………………..15-17

*Pryor v. Brown & Root USA, Inc.,674 So. 2d 45 (Ala. 1995)………………………………………………24-25

*Redmond v. Self,90 So. 2d 238 (Ala. 1956)………………………………………………26-27

Rush v. McDonnell,106 So. 175 (Ala. 1925)……………………………………………………26

Salvation Army v. Sec. Roofing Co.,51 So. 2d 513 (Ala. 1951)………………………………………………….26

Thompson v. Havard,235 So. 2d 853 (Ala. 1970)………………………………………………...23

Tipler v. McKenzie Tank Lines,547 So. 2d 438 (Ala. 1989)………………………………………………...13

FEDERAL STATUTES

28 U.S.C. § 1332 (2014)...………………………………………………………...vii

28 U.S.C. § 1291 (2014)...………………………………………………………...vii

Fed. R. Civ. P. 56(a)………………………………………………………………..7

Fed. R. Civ. P. 56(c)……………………………………………………………3, 22

Fed. R. Civ. P. 56(c)(4)………………………………………………………...8, 17

Fed. R. Evid. 702………………………………………………………………….16

STATE STATUTES

Ala. Code § 6-5-120 (2014)……………………………………………………….12

Ala. Code § 28-1-5 (2013)………………………………………………………...27

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Ala. Code § 32-5A-194 (2010)………………………………………………..27-28

Ala. Code § 32-5A-211(b) (2014)………………………………………………...29

OTHER SOURCES

C.J.S. Nuisances § 22……………………………………………………………..14

W. Prosser, Handbook on the Law of Torts § 89 at 591-93 (4th ed. 1971)……….12

viii

STATEMENT OF JURISDICTION

Jurisdiction is proper in the United States District Court for the Middle

District of Alabama, pursuant to 28 U.S.C. § 1332 (2014). Plaintiff, Margo Martin

is a resident of the State of Alabama. (R. 2). Defendant, Clark W. Griswold is a

resident of the State of Georgia. (R. 2). The matter in controversy exceeds,

exclusive of interest and costs, the sum specified by 28 U.S.C. § 1332. (R. 2); 28

U.S.C. § 1332 (2014).

Plaintiff filed a timely notice of appeal on March 5, 2015, from entry of

summary judgment on behalf of the Defendant, which was entered on March 3,

2015. (R. 40). The United States Court of Appeals for the Eleventh Circuit has

appellate jurisdiction to hear all civil cases from final decisions of the United

States District Court for the Middle District of Alabama, pursuant to 28 U.S.C. §

1291. 28 U.S.C. § 1291 (2014).

1

STATEMENT OF THE ISSUES

I. WHETHER THE DISTRICT COURT PROPERLY GRANTEDSUMMARY JUDGMENT FOR CLARK W. GRISWOLD WHEN HISOCCASIONAL FESTIVALS WHICH ARE STRONGLY SUPPORTEDBY THE COMMUNITY HAVE NOT SUBSTANTIALLY INJURED,MATERIALLY INTERFERED WITH OR INCONVENIENCEDAPPELLANT WHO NEVER COMPLAINED TO APPELLEE ABOUTTHE FESTIVALS?

II. WHETHER THE DISTRICT COURT PROPERLY GRANTEDSUMMARY JUDGMENT IN FAVOR OF CLARK W. GRISWOLDBECAUSE ISOLATED INSTANCES AND RUMORS ABOUTJOHNNY JONES CONDUCT ARE NOT ENOUGH TO PROVE THATJOHNNY JONES WAS INCOMPETENT NOR ARE THEY ENOUGHTO PROVE THAT MR. GRISWOLD HAD KNOWLEDGE OFJOHNNY JONES’ ALLEGED INCOMPENTENCY; AND WHEN MR.GRISWOLD IS NOT THE PROXIMATE CAUSE OF APPELLANT’SINJURIES BECAUSE TODD MARTIN UNEXPECTEDLY ANDUNLAWFULLY DARTED INTO THE ROAD IN FRONT OF THETRACTOR?

2

STATEMENT OF THE CASE

a. Procedural History

On January 20, 2015, Appellant, Margo Martin (“Ms. Martin”) filed a

complaint against Appellee, Clark Griswold (“Mr. Griswold”) in the United States

District Court for the Middle District of Alabama pursuant to 28 U.S.C. § 1332. (R.

2-8); 28 U.S.C. § 1332 (2014). The complaint alleged a claim against Mr.

Griswold for nuisance arising out of annual holiday parties hosted by Mr.

Griswold. (R. 2-8). The complaint also alleged a claim for negligent entrustment of

a tractor to Johnny Jones (“Mr. Jones”) when the tractor struck and injured Ms.

Martin’s son Todd Martin (“Todd”) on July 4, 2014. (R. 4-6). With regard to the

nuisance claim, the complaint demanded relief in the form of compensatory

damages for: diminution in value of and stigma to Appellant’s property; loss of the

use and enjoyment of Appellant’s property; annoyance, inconvenience and

discomfort. (R. 5). Further, regarding the nuisance claim, the Appellant demanded

injunctive relief and punitive damages. (R. 5). Regarding negligent entrustment,

Appellant demanded relief in the form of compensatory damages and punitive

damages.

Appellee filed a timely answer on January 27, 2015. (R. 9-14). The answer

included a defense of intervening cause. (R. 13). The answer denied that Appellee

knew or should have known that Mr. Jones was incompetent and denied that Mr.

Jones was incompetent. (R. 12). The answer also denied that the Appellee created

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or maintained a nuisance under Alabama law and that his actions hurt,

inconvenienced, or damaged the Appellant or her property. (R. 11).

On February 17, 2015, the Appellee filed a motion for summary judgment

on the negligent entrustment count set forth in the complaint. (R. 36-37). On

February 28, 2015, the Appellant filed a brief in opposition to the Appellee’s

motion for summary judgment. (R. 38-39). On March 3, 2015, the district court

granted summary judgment to the Appellee on Counts I and II pursuant to Rule

56(c) of the Federal Rules of Civil Procedure. (R. 40-41); Fed. R. Civ. P. 56(c). On

March 5, 2015, Appellant filed a timely notice of appeal. (R. 41).

b. Statement of Facts

This case arises from festivals that Mr. Griswold hosts to entertain the public

and to raise money for the American Cancer Society. (R. 21-22). Each year, Mr.

Griswold hosts events at the Fourth of July, Halloween and Christmas holidays that

each last three to four weeks and are operational from 6:00-11:00 pm nightly. (R.

17). The events featured inflatables, decorations, laser lights, twinkling lights and

music. (R. 17). These events are conducted in memory of Mr. Griswold’s deceased

wife and are strongly supported and embraced by the community. (R. 18). The

events are so well attended that the local police even come to help direct traffic.

(R.22).

4

In Count I of Appellant’s suit against Mr. Griswold, Appellant alleged that

these well liked charity events constituted a private nuisance and as a result: she

can longer enjoy her property; her children are scared; she feels unsafe on her own

property; she cannot maintain her children’s schedules or gain an adequate night’s

sleep due to the noise and lights; that the value of her property has diminished

since purchasing the property; that ingress and egress from her property has been

impaired due to festival crowds; and that festival patrons leave trash on

Appellant’s property. (R. 3-6).

Appellant employed an acoustical engineer, Dr. Robert J. Coker, Ph.D., to

conduct sound studies during Mr. Griswold’s 2014 Christmas festival. (R. 30-32).

Dr. Coker measured sound from the festivals in “A weighted decibels” (dBA) three

times during the festival: outside the house (99, 105 & 110 dBA), inside the home

with the windows open (86, 90 & 91 dBA), and finally, inside with the windows

closed (75, 81 & 84 dBA). (R. 31).

Dr. Coker stated in his affidavit for purposes of comparison, the “A

weighted decibels” (dBA) of several ordinary sound emitting devices. (R. 31) Dr.

Coker gave averages for a washing machine (70 dBA), a food blender (80 dBA), a

power lawn mower (95 dBA), and a motorcycle under maximum acceleration (110

dBA). (R. 31). Dr. Coker also stated that the noise was “at times unbearable in the

Martin’s home”, would “adversely affect the person of average sensibilities”,

5

“injure the Martin’s health and comfort” and that Appellant was “subjected to a

loss which goes beyond the reasonable limit imposed on them by the condition of

living in a residential neighborhood.” (R. 31).

Count two of this lawsuit arises out of an accident that occurred on July 4,

2014 when Appellant’s son Todd Martin was injured after darting into the path of

Mr. Griswold’s tractor. At the time of the accident, the tractor was being operated

by seventeen year old Johnny Jones (“Mr. Jones”). (R. 22). Prior to engaging Mr.

Jones to operate the hayride, Mr. Griswold investigated Mr. Jones’ character and

qualifications by speaking with Mr. Jones’ mother and several local men whom

Mr. Jones had previously worked for. (R. 22). When Mr. Griswold asked if Mr.

Jones ever drank alcohol, Mr. Jones answered in the negative. (R. 27) Mr. Jones

was caught underage drinking on one occasion, was questioned by police, and was

released without charges being pressed. (R. 28). Though Mr. Griswold did not

specifically inquire if Mr. Jones had a driver’s license, Mr. Jones is in fact licensed

to operate a vehicle by the State of Alabama. (R.33).

Prior to allowing Mr. Jones to operate the hayride with passengers, Mr.

Griswold carefully laid out the route for the hayride and required Mr. Jones to

practice operating the tractor. (R. 27). Mr. Jones practiced operating the tractor for

a week, driving up and down the road. (R. 27). Mr. Jones was given thorough

training in responsible operation of the tractor, including such things as:

6

maintaining a slow speed, making turns, and significant emphasis was placed on

how to brake the tractor. (R. 27). During the week of training, Mr. Jones became

acquainted with the tractor and did not experience any accidents. (R. 27).

Before arriving at the Independence Day festival, Mr. Jones spent the

morning hours at the lake with friends. (R. 27). While at the lake, between 10:00

and 11:00 a.m., Mr. Jones consumed no more than two beers. (R. 27). When Mr.

Jones arrived at the festival late, Mr. Griswold noticed that Mr. Jones was looking

“a little funny and was not focused”. (R. 22). Mr. Griswold asked Mr. Jones if he

was fit to operate the tractor and he replied “of course.” (R. 22). Only after this

reassurance was Mr. Jones allowed to operate the tractor. (R. 22).

Mr. Jones began to operate the hayride with approximately 18-20 people on

the trailer. (R. 28). Mr. Jones took a short-cut through the woods and merged onto

State Line Road. (R. 28). As Mr. Jones proceeded down State Line Road with the

tractor, Ms. Martin’s son, Todd Martin, was playing in the Martin’s yard chasing

fireflies. (R. 18). Todd darted into the road chasing a firefly and was struck by the

tractor. (R. 18). Todd sustained a broken pelvis and a broken leg. (R. 18). Because

Todd’s presence in the roadway was sudden and unexpected, Mr. Jones was unable

to avoid striking Todd. (R. 28). The police were called to the scene and Mr. Jones

was given a sobriety test. (R. 18). Mr. Jones’ blood alcohol level was .015 but was

7

below the legal limit for a person under 21 years old. (R. 27). Mr. Jones was not

arrested and no charges have been filed against him for the incident. (R. 27).

c. Standard of Review

In reviewing an order granting a Motion for Summary Judgment, this court

must apply “the same legal standards that the […] court [applied] in its summary

judgment decision.” See Herman v. NationsBank Trust Co., 126 F.3d 1354, 1360

(11th Cir. 1997). The reviewing court’s “legal conclusions are subject to de novo

review.” Id. at 1360. The Eleventh Circuit Court held, unless a factual issue is a

material fact to the cause of action, “the mere existence” of the factual issue will

not overturn an order granting summary judgment. Chapman v. Al Transp., 229

F.3d 1012, 1023 (11th Cir. 2000).

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). The party seeking summary judgment “always bears the initial

responsibility” in addressing “the basis for [the party’s] motion.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). The basis for a party’s Motion for Summary

Judgment requires that there be no genuine [dispute] of material fact. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis original).

The burden of proof then shifts from the moving party to the non-moving

party “to go beyond the pleadings” and show “by her own affidavits,” or other

8

materials, that a genuine dispute of material fact does exist. Celotex Corp., 477

U.S. at 324. The materials used by the non-moving party to show a genuine dispure

does exist include affidavits or any declarations, but the materials “must be made

on personal knowledge [and] set out facts that would be admissible in evidence.”

Fed. R. Civ. P. 56(c)(4). The non-moving party cannot rely only on the

“allegations or denials [in the] pleadings.” Anderson, 477 U.S. at 248. The non-

moving party must “go beyond the pleadings and by her affidavits” highlight

certain facts that show there is a genuine and material dispute for trial. Celotex

Corp., 477 U.S. at 324. The Court looks at the evidence and weighs all reasonable

inferences “in the light most favorable to the [non-moving] party.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 Us. 574, 587 (1986).

The Court determines “whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. If the

matter in dispute is so one sided that a reasonable juror could not find in favor of

the non-moving party then summary judgment must be granted to the moving

party. Id. at 252.

9

SUMMARY OF THE ARGUMENT

The case at bar involves claims for nuisance and negligent entrustment. The

nuisance claim arises from beloved charity festivals hosted by Mr. Griswold to

benefit the American Cancer Society. The negligent entrustment claim arises from

an accident involving Ms. Martin’s son and Mr. Griswold’s tractor. The district

court properly granted summary judgment in favor of the Appellee on both claims.

First, the court properly granted summary judgment to the Appellee with

regard to count I, nuisance, because Mr. Griswold’s festivals did not create a

recurring substantial injury, material interfere with or inconvenience the Appellant.

The Appellant’s alleged injury is not substantial because Mr. Griswold’s festivals

only last for a few hours a day for a few weeks out of the year and Appellant’s own

evidence does not establish that she suffered any substantial injury. Moreover,

Appellant’s evidence is inconsistent with Alabama law which requires recurring

acts to be considered a nuisance, and as a result, her claim was properly dismissed

by the district court.

The district court’s grant of summary judgment for Appellee was also proper

because under Alabama law, Mr. Griswold is not liable for the actions of

trespassers, over whom he has no control. The persons that parked on Appellant’s

property, left trash thereon, and physically harmed Appellant’s property were not

10

under the control of Mr. Griswold and therefore he is not responsible for their

trespass and alleged damages resulting therefrom.

Secondly, the court properly granted summary judgment to the Appellee

with regard to count II, negligent entrustment, because the Appellant failed to

present sufficient evidence that Mr. Griswold had knowledge of the entrustee’s

incompetency. Appellant’s evidence does not rise to the level required in Alabama

to prove knowledge because her evidence does not show multiplicity of

incompetent conduct by the entrustee or that the relationship between the entrustor

and the entrustee was long enough or proximate enough for Mr. Griswold to

discover the alleged incompetency.

Furthermore, at the time of the entrustment, Mr. Jones was not incompetent.

Mr. Jones was not a habitual drunkard. The Appellant only produced once singular

incident of underage drinking to prove otherwise. This single incident is not

sufficient to prove incompetency under Alabama law. Additionally, Appellant

offered only the results of field sobriety test to prove that Mr. Jones was

intoxicated and thereby incompetent at the time of entrustment. The field sobriety

test, Appellant’s only evidence, administered after the accident showed that Mr.

Jones had a blood alcohol level (BAL) of .015 percent. The fact that Mr. Jones’

BAL was under the legal limit for a minor in Alabama fails to establish that Mr.

11

Jones was incompetent and as a result, the district court properly concluded that

the Appellant’s claim failed as a matter of law.

Based on the above reasons, the district court properly dismissed both of the

Appellant’s claims by granting the Defendant’s Motion for Summary Judgment.

Given the lack of genuine issues of material fact present in the record, the grant of

summary judgment for the Appellee is due to be affirmed.

12

ARGUMENT

I. THE DISTRICT COURT PROPERLY GRANTED SUMMARYJUDGMENT FOR CLARK W. GRISWOLD WHEN HIS OCCASIONALFESTIVALS WHICH ARE STRONGLY SUPPORTED BY THECOMMUNITY HAVE NOT SUBSTANTIALLY INJURED,MATERIALLY INTERFERED WITH OR INCONVENIENCEDAPPELLANT WHO NEVER COMPLAINED TO APPELLEE ABOUTTHE FESTIVALS.

The Appellant did not suffer a recurring substantial injury or material

interference from Mr. Griswold’s festivals and her claim was properly dismissed

by the district court. The standard in Alabama for nuisance, which Appellant has

failed to meet is “anything that works hurt, inconvenience or damage to another.”

Ala. Code § 6-5-120 (2014). “The essence of private nuisance is an interference

with the use and enjoyment of the land […] so long as the interference is

substantial and unreasonable, and such as would be offensive or inconvenient to

the reasonable person, virtually any disturbance may amount to a nuisance.”

Crouch v. North Alabama Sand & Gravel, LLC., No. CV-06-306, 2015 WL

1388139, at *6-7 (Ala. 2015) (citing Morgan Concrete Co. v. Tanner, 374 So. 2d

1344, 1346 (Ala. 1979); W. Prosser, Handbook on the Law of Torts § 89 at 591-93

(4th ed. 1971)).

For an activity to be considered a nuisance, it must cause substantial injury

to the property of another or produce material annoyance or inconvenience to the

occupants of adjacent dwellings to render then physically uncomfortable. Baldwin

13

v. McClendon, 288 So. 2d 761 (Ala. 1974); Coleman v. Estes, 201 So. 2d 391 (Ala.

1967). Additionally, “[t]he inconvenience complained of must not be fanciful or

nuisance is such as would affect one of a fastidious taste, but should be such as

would affect a reasonable man.”Tipler v. McKenzie Tank Lines, 547 So. 2d 438,

440 (Ala. 1989) (citing Lauderdale Cnty. Bd. of Educ. v. Alexander, 110 So.2d 911

(Ala. 1959). Moreover, if the evidence of annoyance and discomfort is “so lacking

in substance that the law will refuse to recognize it, applying the maxim de minimis

non curat lex —the law does not concern itself with trifles.” Jones v. Newton, 454

So. 2d 1345, 1348 (Ala. 1984) (citing Borland v. Sanders Lead Co., 369 So. 2d

523, 529 (Ala. 1979)).

Occasional acts do not constitute a nuisance because “the term nuisance

involves the idea of recurrence of the acts causing the injury…” K-Mart v. Stewart,

29 So. 3d 887, 893 (Ala. Civ. App. 2009) See also Banks v. Corte, 521 So. 2d 960,

961 (Ala. 1988). In proving a nuisance, the plaintiff must still present evidence

which proves “the classical tort concepts of duty and causation.” Tipler, 547 So. 2d

at 440.

A. Noise from the Appellee’s festivals does not constitute a nuisance underAlabama law when the noises are occasional and have not produced asubstantial injury to, materially interfered with, or inconvenienced theAppellant.

The district court properly granted summary judgment to the Appellee

because the occasional noise that Appellant complains of did not cause a

14

substantial injury to, materially interfere with, or inconvenience the Appellant. “It

is undisputed that noise may constitute a nuisance.” Acker v. Protective Life Ins.

Co., 353 So. 2d 1150, 1152 (Ala. 1977) (citing Alabama Power v. Stringfellow,

153 So. 629 (Ala. 1934); Harris v. Randolph Lumber Co., 57 So. 453 (Ala. 1912);

66 C.J.S. Nuisances § 22). “It is not every unpleasant noise, however, which

creates a cause of action; and for this reason, some injury must obtain.” Acker, 353

So. 2d at 1152. For noises to constitute a nuisance, the Court in Stringfellow held:

“Noise must produce substantial injury. Trifling oroccasional noises dependent on ordinary use of propertyor in pursuance of an ordinary trade or calling will notconstitute a nuisance. The noise must be such as materiallyto interfere with and impair the ordinary comfort ofexistence on the part of ordinary people. The injury mustbe a substantial one. ‘A merely sentimental disturbance isnot an element of injury for which recovery can be had.”

Stringfellow, 153 So. at 631-32.

In Stringfellow, the court upheld a jury verdict where the noises from a

power generation station located eighty-five feet from the plaintiff’s home caused

injury of a “permanent and continuous character”. Id. The Court went on to state

that the loss of sleep by the Plaintiff was not an element of damages, but was a

“circumstance going to the nature and extent of the noise and whether it constituted

a nuisance.” Id. After finding that the continuous and ongoing noises from the

power generations station constituted a nuisance, the court held that the proper

15

measure of damages in Stringfellow was the difference in value of the home after

the erection of the power station. Id.

Unlike Stringfellow, Appellant’s house is one half mile from Mr. Griswold’s

house. (R. 24). Mr. Griswold’s events were only held at the Christmas, Fourth of

July and Halloween holidays and lasted from 6-11 p.m. for only three to four

weeks each. (R. 17). Appellant also offers as evidence that her friend, a realtor,

speculates that Appellant’s property value has decreased as a result of the festivals.

(R. 18). Because Mr. Griswold’s festivals were not continuous and ongoing, and

because the only evidence of diminution of property values is too speculative,

Appellant has not suffered a substantial injury and accordingly, her claim was

properly dismissed by the district court.

Appellant improperly places too much reliance on the testimony of an

acoustical engineer and urges that his findings constitute a nuisance. First,

Appellant relies on the acoustical engineer’s findings that the sound level inside

the Appellant’s home during the festival of 75, 81 and 84 “A weighted decibels”

(dBA) constitutes a nuisance. (R. 31). The court in Patterson found the owners of a

racetrack liable in nuisance when noises from the track exceeded a level of 78 dBA

on the plaintiff’s property. Patterson v. Robinson, 620 So. 2d 609, 611 (Ala. 1993).

Similar to Stringfellow, the race track’s operation in Patterson was continuous and

ongoing holding races and practices 2 days a week for nine months out of the year.

16

Patterson, 620 So. 2d at 611; Stringfellow, 153 So. at 630. Also similar to

Stringfellow, where the plaintiff’s property was in close proximity to the alleged

nuisance, the plaintiff’s property in Patterson was only 1200 feet from the

racetrack. Unlike both Patterson and Stringfellow, Appellant’s house is one half

mile from Mr. Griswold’s house. (R. 24). Furthermore, Mr. Griswold’s events

were only held at the Christmas, Fourth of July and Halloween holidays and lasted

from 6-11 p.m. for only three to four weeks each. (R. 17). Because occasional

instances of loud noises from Mr. Griswold’s festivals does not constitute ongoing

and continuous acts, the Appellant has not stated a claim for nuisance.

Appellant’s expert testimony supports only that the sound level inside her

home was above the sound level of an earlier nuisance case, not that a substantial

injury existed. Dr. Coker has a Ph.D. in acoustical engineering. Nowhere in his

affidavit does he set forth his qualifications as a medical doctor, real estate expert,

urban planner, psychologist, or any other qualifications as an expert that would

allow him to render testimony under Federal Rule of Evidence 702 that the noises

“injure the Martin’s health and comfort” and that Appellant is “subjected to a loss

which goes beyond the reasonable limit imposed on them by the condition of living

in a residential neighborhood.” Fed. R. Evid. 702; (R.31). These statements, made

beyond Dr. Coker’s knowledge as an expert in acoustical engineering, do not show

a genuine dispute as to a material fact and nothing about Dr. Coker’s testimony

17

establishes the existence of a nuisance, or that the Appellant suffered a substantial

injury. Fed. R. Civ. P. 56(c)(4) (2010).

One instance of sound levels exceeding 78 dBA does not constitute a

substantial injury and thereby does not constitute a nuisance. See K-Mart;

Stringfellow. Noting the differences between this case between and both Patterson

and Stringfellow, this Court must find, as the District Court found, that Appellant

did not suffer a substantial injury. Id. Without a substantial injury, the Appellant’s

claim fails as a matter of law and was properly dismissed by the District Court.

B. Lights from the Appellee’s festivals do not constitute a nuisance underAlabama law when the lights are occasional and would not affect anordinary reasonable person.

Appellant’s contention that lights from Mr. Griswold’s festivals constituted

a nuisance was properly dismissed because the evidence in the record does not

establish a substantial or recurring injury to the Appellant. Light shining into

residences can constitute a nuisance. See Parker v. Ashford, 661 So. 2d 213, 217

(Ala. 1995); Downey v. Jackson, 65 So. 2d 825, 826 (Ala. 1953); Drennan v.

Mason, 133 So. 689, 691 (Ala. 1931). The court in Parker upheld an injunction

against the construction of a racetrack because, inter alia, the 1500 watt lights

would shine directly on the plaintiff’s residence from April through October.

Parker, 661 So. 2d at 217. In Drennan, the court refused to grant an injunction

against the construction of a lighted nighttime golf course because the plaintiff

18

failed to prove that the lights would shine directly on the residence. Drennan, 133

So. at 691. Drennan and Parker establish that lights must shine directly on the

home of the complainant, and Alabama nuisance law further requires “recurrence

of the acts causing the injury”. K-Mart 29 So. 3d at 893; Parker, 661 So. 2d at 217;

Drennan, 133 So. at 691.

Even though the Appellant briefly stated in her deposition that the lights do

shine inside her home, as discussed above, a nuisance “involves the idea of

recurrence of the acts causing the injury…” K-Mart 29 So. 3d at 893. Both

Drennan and Parker concern lights constantly shining inside and illuminating the

residence of the plaintiff for a substantial amount of time. Parker, 661 So. 2d at

217; Drennan, 133 So. at 691. Mr. Griswold’s festivals only last three to four

weeks. (R. 17). The Appellant complains that the laser lights flash inside her

windows like a “strobe light” (R. 17). Appellant’s evidence only shows that

occasionally during festivals, strobe lights from Mr. Griswold’s charity events are

noticeable in Appellant’s home. Appellant’s alleged annoyance is so occasional

and lacking as would not bother a person of ordinary sensibilities that the district

court properly granted summary judgment for Appellee.

C. Increased neighborhood traffic does not establish the existence of anuisance; and Appellant failed to go beyond the pleadings as requiredunder Celotex in presenting evidence that cars blocked ingress and egressfrom the property.

19

Mr. Griswold’s charity events are loved and draw large crowds, however the

increased traffic from the crowds does not constitute an actionable nuisance under

Alabama law. Fugazzoto v. Brookwood One, 325 So. 2d 161, 162-63 (Ala. 1976).

“The noises of increased automobile traffic, the stopping, starting and shifting

gears, incident to the rightful use of a public street, cannot be regarded in this day

as a substantial cause for injunctive relief which deprives the citizen of the use of

his property.” Drennan, 133 So. at 691. Additionally, “increased traffic may be one

element of a nuisance claim […][however] increased traffic alone cannot be

regarded as a substantial invasion of the property owner’s right to the enjoyment of

[her] property.” Fugazzoto, 325 So. 2d at 162-63. Furthermore, Alabama law

requires recurring acts that cause injury. K-Mart 29 So. 3d at 893. Both Drennan

and Fugazzoto involved increased traffic resulting from the establishment of

permanent businesses. Drennan, 133 So. at 691; Fugazzoto, 325 So. 2d at 162-63.

Mr. Griswold’s events only lasted for a few weeks a few times a year. (R.

17). Because Alabama law does not recognize increased traffic as a nuisance, and

because the increased traffic is not continuous, Appellant’s claim was properly

dismissed by the district court. K-Mart 29 So. 3d at 893; Fugazzoto, 325 So. 2d at

162-63.

Appellant’s contention that cars blocked ingress and egress from Appellant’s

property was pleaded in the complaint, however Appellant failed to “go beyond the

20

pleadings and by her affidavits” highlight certain facts that show there is a genuine

and material dispute for trial. Celotex Corp., 477 U.S. at 324. There is no mention

of blocked ingress or egress from Appellant’s property beyond the pleadings in the

record, and as a result, summary judgment was properly granted by the district

court.

D. Litter dropped on Appellant’s property was dropped by trespassers notunder the control of Appellee and was not so continuous as to constitute anuisance.

Appellant’s own evidence that trash was left by trespassers on her land

demands the conclusion that Mr. Griswold is not responsible for the same. The

accumulation of trash on the property of another has narrowly been defined as a

nuisance in Alabama. Birmingham News v. Little, 148 So. 398, 398 (Ala. 1933). In

Little, the court found that the “evidence tended to show that [plaintiff’s] yard was

constantly and continuously littered with paper either thrown, or negligently

permitted to escape, by those charged with the handling of the defendant’s papers.”

Id. More recently in Parker, the trial court recognized that patrons of the racetrack

may throw trash along the way to and from the track. Parker, 661 So. 2d at 216.

However when listing the reasons why injunctive relief was proper, the Parker trial

court did not revisit whether trash alone constituted a nuisance. Id.

Assuming that Alabama does recognize litter as an actionable nuisance

under Little, Mr. Griswold’s case differs materially. Unlike Little, where the

21

plaintiff’s property was constantly and continuously littered with trash by

employees of Birmingham News, Mr. Griswold had no employment relationship,

agency or any other type of control over the trespasser’s on Appellant’s land by

which Mr. Griswold could be held vicariously liable for their acts. Mr. Griswold

never put trash on Appellant’s land or even set foot on her property. (R. 23).

Finally, Mr. Griswold’s events also only lasted for a few weeks a few times each

year. (R. 17). Because Mr. Griswold had no control over the trespassers that left

trash on Appellant’s land, and because the injury complained of is not constant and

continuous, the district court properly dismissed the Appellant’s claims.

II. THE DISTRICT COURT PROPERLY GRANTED SUMMARYJUDGMENT IN FAVOR OF CLARK W. GRISWOLD BECAUSEISOLATED INSTANCES AND RUMORS ABOUT JOHNNY JONESCONDUCT ARE NOT ENOUGH TO PROVE THAT JOHNNY JONESWAS INCOMPETENT NOR ARE THEY ENOUGH TO PROVE THATMR. GRISWOLD HAD KNOWLEDGE OF JOHNNY JONES’ALLEGED INCOMPENTENCY; AND WHEN MR. GRISWOLD ISNOT THE PROXIMATE CAUSE OF APPELLANT’S INJURIESBECAUSE TODD MARTIN UNEXPECTEDLY AND UNLAWFULLYDARTED INTO THE ROAD IN FRONT OF THE TRACTOR.

The District Court properly granted summary Judgment to the Appellee

when it determined that this negligent entrustment action is void of a material

dispute for trial because the record taken as a whole fails to establish the essential

ingredients for a cause of action. Alabama law requires the plaintiff in a negligent

entrustment action to prove “(1) an entrustment; (2) to an incompetent; (3) with

22

knowledge that he is incompetent; (4) proximate cause; and (5) damages.” Halford

v. Alamo Rent-A-Car, LLC, 321 So. 2d 409, 412 (Ala. 2005) (quoting Mason v.

New, 475 So. 2d 854, 856 (Ala. 1985)). The record demonstrates that the Plaintiff

has failed to provide evidence, that when viewed in the light most favorable to her,

raises genuine disputes as to material facts. Fed. R. Civ. P. 56(c).

The Appellant did not meet the requirements set forth in Alabama law

because Appellant’s only evidence that Mr. Griswold knew or should have known

consists of an isolated instance of drinking and rumors that do not meet the

Alabama standard for knowledge. See Dunaway v. King, 510 So. 2d 543, 546 (Ala.

1987). Similarly, Appellant’s only evidence with regard to Mr. Jones’ past conduct

also fails to rise to the level of incompetency because an isolated incident of

underage drinking does not render Mr. Jones a habitual drunkard. Furthermore, Mr.

Jones was not intoxicated at the time of the accident, and was not incompetent

under Alabama law. Finally, because Todd Martin darted into the road after Mr.

Griswold’s alleged negligent act; Todd’s actions were unforeseeable and were

sufficient to be the sole cause in fact of Todd’s injuries, Mr. Griswold was not the

proximate cause of the Appellee’s injuries and cannot be held liable under

Alabama law. See Miller v. Cleckler, 51 So. 3d 379, 383 (Ala. Civ. App. 2010).

A. Mr. Griswold had no knowledge of Mr. Jones incompetency because anisolated remote instance of underage drinking and rumors do not meet thestandard for knowledge under Alabama law.

23

The undisputed facts in the record establish that Summary Judgment was

properly granted to the Appellee because as a matter of law, he did not know or

have reason to know that Johnny Jones was incompetent. In order for the Appellant

to recover, she must demonstrate by substantial evidence that “the defendant knew

or by the exercise of reasonable care, would have known that the entrustee was

incompetent.” Dunaway, 510 So. 2d at 546. “[T]he manifestation of the

incompetence of the user is an essential element to the gravamen of the negligent

entrustment action.” Cooter v. State Farm Fire & Cas. Co., 344 So. 2d 496, 497

(Ala. 1977). In other words, knowledge of an entrustee’s incompetence cannot be

inferred to the entrustor, but must be based on actual manifestations of

incompetence by the entrustee. Id.

The Appellant’s only evidence that Mr. Griswold knew or should have

known of Mr. Jones’ incompetency is a remote instance of underage drinking

which does not meet the standard for knowledge in Alabama. Dunaway, 510 So.

2d at 546. The Alabama Supreme Court has recognized several manifestations as

evidence that the defendant knew or had reason to know of the entrustee’s

incompetence, inter alia: the entrustee’s reputation for reckless and intoxicated

driving, the entrustee’s numerous citations for moving violations in an automobile,

the entrustee’s habitual negligence, knowledge of the entrustee’s heavy drinking in

the months before the accident, and the entrustee’s three driving under the

24

influence (DUI) convictions. Edwards v. Valentine, 926 So. 2d 315, 322 (Ala.

2005); Thompson v. Havard, 235 So. 2d 853, 857-58 (Ala. 1970); McGowin v.

Howard, 36 So. 2d 323, 325 (Ala. 1948); Crotwell v. Cowan, 184 So. 195, 199

(Ala. 1938); Gardiner v. Solomon, 75 So. 621, 623 (Ala. 1917). The above cited

cases illustrate that the standard for determining whether the entrustor had

knowledge is multiple manifestations of incompetent conduct by the entrustee.

The Appellant’s assertion that Mr. Jones was known to the community to be

a delinquent and was caught drinking on one previous occasion does not meet the

Supreme Court’s clear requirement for multiple manifestations of incompetent

conduct by the entrustee. In Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 52

(Ala. 1995), the court affirmed summary judgment for the defendant after finding

that the entrustee’s driving record, including a DUI charge and two speeding

tickets failed to present substantial evidence that the defendant had any knowledge

or reason to know of the entrustee’s incompetency. See also Day v. Williams, 670

So. 2d 914, 916 (Ala. 1995) (entrustor’s knowledge of entrustee’s “several” prior

tickets for driving without a license was insufficient to prove knowledge of

incompetency). Unlike Pryor, Mr. Jones had no criminal record, no adverse

driving record and was never arrested. Id. Furthermore he was only caught

underage drinking once. (R. 28). The precedent established in Pryor and the

Supreme Court’s clear requirement of multiple manifestations of incompetent

25

conduct demands that the Appellant’s claim fail as a matter of law because the

Appellant’s scant evidence is not sufficient to prove knowledge under Alabama

law.

Additionally, cases in which the Supreme Court determined that the

entrustor had knowledge can also be distinguished by the quality of the

relationship between the entrustor and entrustee. The Supreme Court, has not

created a bright line rule for the quality of the relationship between entrustee and

entrustor that is required, but precedent favors a lengthy or proximate relationship.

See McGowin, 36 So. 2d at 325 (long-time employee); Pryor, 674 So. 2d at 49

(entrustee used company vehicle for thirty months prior to accident); Dunaway,

510 So. 2d at 546 (father did not have knowledge of 20 year old son’s violent

propensities); Edwards, 926 So. 2d 315, 315 (entrustee was brother-in-law). Unlike

McGowin and Edwards, where the entrustors had reason to know by way of their

long term and proximate relationship with the entrustee, Mr. Griswold and Mr.

Jones met just before the accident. (R. 27). Mr. Griswold looked into Mr. Jones’

past, and found nothing. (R. 26). Unlike any of the above cited cases, Mr. Griswold

did not know Mr. Jones for long enough, nor was he close enough to discover Mr.

Jones’ alleged incompetency.

The Appellant did not prove knowledge because the evidence in the record

does not meet the requirement for multiple manifestations of the entrustee’s

26

incompetent conduct. Additionally, Mr. Griswold lacked knowledge or reason to

know because the relationship between Mr. Griswold and Mr. Jones lacks the

quality of relationship between entrustor and entrustee that is clearly discernable

from precedent negligent entrustment cases. The district court properly found a

lack of knowledge, without such there can be no negligent entrustment.

B. Mr. Jones was not incompetent because under Alabama law he was neither ahabitual drunkard, nor was he intoxicated at the time of the accident.

Appellant’s so called “evidence” that Mr. Jones was incompetent is not

supported by one instance of underage drinking months before the accident and is

not supported by the breathalyzer test given to Mr. Jones after the accident.

“Incompetence comprehends various kinds of unfitness…” Rush v. Mc Donnell,

106 So. 175, 178 (Ala 1925). Alabama courts have held on numerous occasions

that a habitual drunkard is an incompetent driver. E.g., Edwards, 926 So. 2d at

322; McGowin, 36 So. 2d at 325. Furthermore, an entrustor that knows or has

reason to know that the entrustee is intoxicated and thereby incompetent may be

held liable for damages proximately resulting. See Dunaway, 510 So. 2d at 546

(Ala. 1987); Brown v. Vanity Fair Mills, Inc., 277 So. 2d 893, 896 (Ala 1973);

Salvation Army v. Sec. Roofing Co., 51 So. 2d 513, 515 (Ala. 1951).

In Redmond v. Self, 90 So. 2d 238, 238 (Ala. 1956), proof of the entrustee’s

incompetence was based on two instances of driving while intoxicated (the

accident in suit included) and the testimony of the entrustor that the entrustee was a

27

drunkard. Similarly in Edwards, there was evidence of three instances of the

entrustee driving under the influence of alcohol or a controlled substance (accident

in suit included) in addition to testimony by the entrustor that the entrustee was

known to drink a lot. Edwards, 926 So. 2d at 325.

Unlike both Edwards and Redmond, Mr. Jones has no prior driving under

the influence convictions. Edwards, 926 So. 2d at 325; Redmond, 90 So. 2d at 238.

In fact, the only evidence that the Appellant offers is that Mr. Jones was found

drinking in the woods several months prior to this accident. (R. 18). Relying on

Edwards and Redmond, this singular incident of drinking is not sufficient to prove

that Mr. Jones was a habitual drunkard. Edwards, 926 So. 2d at 325; Redmond, 90

So. 2d at 238. Furthermore, in Edwards and Redmond both entrustors knew of the

entrustee’s drinking. Edwards, 926 So. 2d at 325; Redmond, 90 So. 2d at 238. Mr.

Griswold did not know that Mr. Jones drank. (R. 27). The undisputed facts in the

record that Mr. Jones was caught underage drinking once is not enough to prove

that Mr. Jones was a habitual drunkard. Without proof of the entrustee’s

incompetency, Appellant’s claim fails as a matter of law and was properly

dismissed by the District Court.

The Appellant also failed to prove that Mr. Jones was intoxicated and

thereby incompetent. In Alabama, a person must be twenty-one years old to

purchase, possess, or consume alcohol. See Ala. Code § 28-1-5 (2013). A person

28

under twenty-one can be convicted of driving under the influence if the presence of

alcohol in their blood exceeds .02 percent. See Ala. Code § 32-5A-194 (2010). The

police administered a blood alcohol test to Mr. Jones, a minor, immediately after

the accident. (R. 27). Mr. Jones’ blood alcohol level was .015. (R. 35). The police

did not arrest Mr. Jones for driving under the influence. (R. 27); Ala. Code § 32-5-

194 (2010). Mr. Jones was clearly not intoxicated and therefore was not

incompetent. Appellant’s evidence shows only that Mr. Jones was caught underage

drinking once and that Mr. Jones blood alcohol level was .015, neither of which

prove incompetency.

C. Mr. Griswold is not the proximate cause of Todd Martin’s injuries whenTodd Martin’s actions constituted an efficient intervening cause because hisactions came into operation after Mr. Griswold’s alleged negligent act, wereunforeseeable and were sufficient to be the sole cause in fact of theAppellant’s injuries.

Mr. Griswold was entitled to Summary Judgment because he was not the

proximate cause of the Appellant’s injuries. Todd Martin’s actions constitute an

efficient intervening cause, severing proximate cause and Mr. Griswold’s liability

because Todd’s actions came into active operation after Mr. Griswold’s alleged

negligent act, were unforeseeable, and were sufficient to be the sole cause in fact

of his injuries.

The injury complained of must have been the proximate result of the

servant’s incompetency. See Dean v. Johnston, 206 So. 2d at 613. In defining an

29

intervening cause, the Court of Civil Appeals explained that “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.” Miller, 51 So. 3d at 383. In Miller the Court of Civil Appeals further

explained that:

[A] cause is not an intervening cause […] unless it comesinto active operation after the tortfeasor has acted… Inorder to be an intervening cause, a subsequent cause alsomust have been unforeseeable and must have beensufficient in and of itself to have been the sole 'cause infact' of the injury.

Id. (citations omitted).

In a negligent entrustment action, the negligent act is at the time of the

entrustment. See McDermott v. Hambright, 238 So. 2d 876, 878 (Ala. 1970). Todd

Martin darted into the road after Mr. Griswold’s alleged negligent act of

entrustment (R. 18). Todd Martin’s presence in the roadway was unlawful and as a

result, unforeseeable at the time of the negligent act. See Ala. Code § 32-5A-

211(b) (2014). Finally, Todd Martin’s actions were sufficient to be the sole cause

in fact of his injuries because but-for Todd Martin darting into the roadway, the

accident would not have occurred. Mr. Griswold cannot be held responsible for

Appellant’s injuries when an intervening cause severed proximate cause and

relieved Mr. Griswold of any liability.

30

CONCLUSION

Based on the above reasons, the district court properly dismissed the

Appellant’s claims for nuisance and negligent entrustment. Given the lack of

genuine disputes of material fact present in the record, Mr. Griswold is due to have

his judgment affirmed by this honorable Court.

Therefore, Clark W. Griswold respectfully requests the Eleventh Circuit

Court of Appeals Affirm the United States District Court for The Middle District

of Alabama’s grant of Summary Judgment for Appellee.

RESPECTFULLY SUBMITTED this 7th Day of April, 2015.

__________________________Stephen K. Weaver

The Prestige Firm800 Lakeshore Drive

Birmingham, AL 35209Telephone: (205) 222-2107Facsimile: (205) 222-8475

31

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing on the counsel of

record for this cause by placing a copy of same in the U.S. Mail, First Class

postage pre-paid, on this 7th day of April, 2015, addressed to Andrea Shaw, The

Shaw Firm, 800 Lakeshore Drive, Birmingham, Alabama 35209.

__________________________Stephen K. Weaver

The Prestige Firm800 Lakeshore Drive

Birmingham, AL 35209Telephone: (205) 222-2107Facsimile: (205) 222-8475