IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

MARIE TOOLE and CHRIS TOOLE, )

)

Plaintiffs, )

)

v. ) CASE NO. 2:06-cv-00652-MHT

)

MATTHEW CHUPP; DON BRAMLETT)

and ALFA INSURANCE COMPANY )

and fictitious defendants A-F, )

)

Defendants. )

COME NOW Matthew Chupp and Don Bramlett, two of the Defendants in the above-styled

cause, who submit the following Brief and Evidentiary Submission in support of their pending

Motion for Summary Judgment.

I. STATEMENT OF THE CASE

This case originated with the filing of Plaintiff’s Summons and Complaint on June 20, 2006,

in the Circuit Court of Barbour County, Alabama. In said complaint Plaintiffs Marie Toole and

Chris Toole averred that they had been injured in an automobile accident involving a car owned by

Defendant Don Bramlett and driven by Defendant Matthew Chupp. Based thereon, Plaintiffs have

made claims for: 1) Negligence; 2) Wantonness; and, 3) Loss of Consortium against Defendants

Chupp and Bramlett; Plaintiffs also seek UIM/UM benefits from their own insurer, Defendant Alfa

Insurance Company. After removal of this case from the Circuit Court of Barbour County to this

Court, the Defendants have all filed Answers to Plaintiff’s Complaint and have denied the

allegations contained therein. (A copy of Plaintiff’s Complaint is attached hereto as Exhibit A). 

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II. STATEMENT OF UNDISPUTED FACTS

Attached as Exhibit B to this Brief and Evidentiary Submission are excerpts of the

Deposition testimony of Marie Toole, one of the Plaintiffs in this cause. Mrs. Toole testified that

she was traveling south on Highway 431 in Eufaula when she came upon a highway construction

zone on the road. The normal speed limit on the road in question was fifty-five miles per hour. Mrs.

Toole was flagged to come to a complete stop by a road construction worker and she did so. While

she was stopped her vehicle was hit from behind by a red pickup truck which she saw approaching

her vehicle. (Exhibit B, p. 31, lines 11-20; p. 35, lines 18-21; p. 37, lines 4-22; p. 40, lines 10-14;

42-46, entire pages). 

Matthew Chupp testified by deposition; excerpts of the same are attached hereto as Exhibit

C. Chupp testified that he was driving down Highway 431 behind Mrs. Toole when he entered a

construction zone; while traveling bumper to bumper through the zone he looked down for a second

and then looked up, inadvertently hitting Mrs. Toole’s vehicle, which had come to a stop in front

of him. Chupp estimated at the time of impact he was traveling approximately twenty-five miles

per hour; he also testified that at the time of impact he was not talking upon either a cellphone or a

Nextel. (Exhibit C, pp. 18-19 (entire pages); p. 24, lines 3-11). 

Don Bramlett testified by deposition; certain excerpts of Mr. Bramlett’s testimony are

attached hereto as Exhibit D. It is undisputed that Mr. Bramlett was not the driver of the vehicle

which ran into Mrs. Toole at the time the accident occurred. (Exhibit D, p. 5, lines 24-25). While

Mr. Bramlett initially testified that he thought that he was the owner of the pickup truck being driven

by Matthew Chupp at the time of the accident with Mrs. Toole, he later corrected this testimony and

stated that the truck in question was actually titled in the name of his wife, Lucinda Janelle Bramlett,

at the time of the accident. (Exhibit D, p. 6, lines 18-23; p. 26, lines 4-9). 

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III. STANDARDS GOVERNING SUMMARY JUDGMENT

Summary judgment is appropriate when “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...the moving party is entitled to a judgment as a matter of

law.” Rule 56(c), Federal Rules of Civil Procedure; See also Hill v. Clifton, 74 F.3d 1150, 1152

(11th Cir. 1996). “The moving party bears the initial burden of informing the court of the basis for

its motion and of identifying those materials that demonstrate the absence of a genuine issue of

material fact.” Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1294 (11th Cir.

1998)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265

(1986). That burden may be satisfied either by demonstrating that there is no evidence of a dispute

of material fact or by demonstrating that the nonmoving party has failed to make a showing

“sufficient to establish the existence of an element essential to the [nonmovant]’s case, and on which

that party will bear the burden of proof at trial.” See Celotex, supra, 477 U.S. at 322. It is wellsettled that the Court, in passing on a motion for summary judgment, must view all evidence and

resolve all reasonable inferences in favor of the nonmoving party. Zipperer v. City of Fort Myers,

41 F.3d 619, 622 (11th Cir. 1995).

Once the movant has met its burden under Rule 56(e) by showing that there are no genuine

issues of material fact or that the nonmovant lacks an essential element, the burden then shifts to the

nonmovant to show the existence of a genuine issue of material fact. Clark v. Coats & Clark, Inc.,

929 F.2d 604,608 (11th Cir. 1991). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986), the Supreme Court noted further “[t]hat the mere existence of a

scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence

on which the jury could reasonably find for the plaintiff.” In the event the nonmovant fails to

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advance sufficient evidence to support a jury finding for the nonmovant, the Court may properly

grant summary judgment. Id. at 249-50.

IV. ARGUMENTS AND CONCLUSIONS OF LAW

In their complaint, Plaintiffs have made claims against Defendants Matthew Chupp and Don

Bramlett for: 1) Negligence; 2) Wantonness; and, 3) Loss of Consortium. (See Exhibit A, Counts

II-VI of plaintiff’s complaint.) However, an examination of these claims, even when viewed in a

light most favorable to the Plaintiffs, reveals that Matthew Chupp and Don Bramlett are entitled to

the entry of summary judgment. 

1. Matthew Chupp is Entitled to the Entry of Summary Judgment as to Plaintiff’s

Claims of Wantonness.

A review of the undisputed evidence presented in this cause, even when viewed in a light

most favorable to the Plaintiffs, reveals that Matthew Chupp is due the entry of summary judgment

in his favor as to Plaintiffs’ claims of wantonness. The Alabama Supreme Court has repeatedly

emphasized that the tort of wantonness is not simply an aggravated form of negligence:

Wantonness is not merely a higher degree of culpability than negligence.

Negligence and wantonness, plainly and simply, are qualitatively different tort

concepts of actionable culpability. Implicit and wanton, willful or reckless

misconduct is an acting, with knowledge of danger, or with consciousness, that the

doing or not doing of some act with likely result in injury. . . .

Negligence is usually characterized as inattention, thoughtlessness, or heedlessness,

and lack of due care, whereas wantonness is characterized as an act which cannot

exist without a purpose or design, a conscious or intentional act. ‘Simple negligence

is the inadvertent omission of duty; and wanton or willful misconduct is

characterized as such by the state of mind with which the act or omission is done or

omitted. McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913).

Willful and wanton conduct has a well-defined meaning at law. It is sometimes

Case 2:06-cv-00652-MHT-WC Document 19 Filed 01/05/2007 Page 4 of 8
expressed in terms of ‘reckless disregard of the safety of another.’ Willful and

wanton conduct should not be confused with negligence. It has been correctly stated

that the two concepts are as ‘unmixable as oil and water.’ 

".........

Willfulness and wantonness imports premeditation, or knowledge and consciousness

that the injury is likely to result from the act done or from the omission to act, and

strictly speaking, is not within the meaning of the term "negligence,"which conveys

the idea of inadvertence, as distinguished from premeditation or formed intention."

Ex parte Anderson, 682 So.2d 467, 470 (Ala. 1996). 

A review of all of the evidence in this cause, even when viewed in a light most favorable to

the Plaintiffs, reveals no evidence to suggest an issue of fact as to wanton behavior on the part

Matthew Chupp. The evidence is instead that Chupp rear-ended Mrs. Toole after she had stopped

on the road when flagged to do so by a road construction worker. Chupp testified that while

traveling in the construction zone behind Mrs. Toole he looked down for a second and then looked

up, inadvertently hitting Mrs. Toole’s vehicle, which had come to a complete stop; he estimated at

the time of impact he was traveling approximately twenty-five miles per hour. (Exhibit C, p.19

(entire page); p. 24, lines 3-11). There is no evidence that Chupp was on a cellphone, or a Nextel,

at the time of the accident, or that he was intoxicated and/or driving recklessly at the time of the

accident. (Exhibit C, p. 18 (entire page). Even when viewed in a light most favorable to the

Plaintiffs, the foregoing evidence, which is undisputed, suggests at best an issue of fact as to simple

negligence, and as such Matthew Chupp is due the entry of summary judgment as to Plaintiffs’

claims of wantonness as a matter of law, on the grounds that there is simply no evidence at all to

suggest an issue of fact as to such a claim. 

2. Don Bramlett is Entitled to the Entry of Summary Judgment as to Plaintiff’s

Claims of Negligence and/or Wantonness.

Case 2:06-cv-00652-MHT-WC Document 19 Filed 01/05/2007 Page 5 of 8
1

Plaintiffs have not pled a claim for negligent entrustment against Bramlett, but, to the extent

that Plaintiffs attempt to raise such a claim, Bramlett would also be entitled to summary judgment

as 1) he is demonstrably not the owner of the pickup truck and 2) there is no evidence to suggest that

Matthew Chupp was an incompetent driver, other than possibly his youth, which is insufficient as

a matter of law. See Thedford v. Payne, 813 So.2d 905, 911 (Ala. Civ. App. 2001) (Liability for

negligent entrustment will not be imposed upon the parents of a young driver involved in an

accident, based solely upon the driver’s youth; trial court reversed for denying defendant’s motion

for judgment as a matter of law as to this issue). 

A further review of the undisputed evidence reveals that Defendant Don Bramlett is due the

entry of summary judgment as to all of Plaintiffs’ claims, even when all of the evidence concerning

the same is viewed in a light most favorable to the Plaintiffs. Plaintiffs have averred that Bramlett

was negligent and/or wanton in his conduct towards them1

. Negligence is the failure to do what a

reasonably prudent person would have done under the same or similar circumstances, or the doing

of something that a reasonably prudent person would not have done under the same or similar

circumstances. Elba Wood Products, Inc., v. Brackin, 356 So.2d 119 (Ala. 1978). To recover under

a negligence action, the plaintiff must establish 1) that the defendant owed a duty to the plaintiff;

2) that the defendant breached that duty; 3) that the plaintiff suffered a loss or injury; and 4) that the

defendant’s negligence was the actual and proximate cause of that loss or injury. Lollar v. Poe, 622

So. 2d 902 (Ala. 1993). 

A review of the undisputed evidence here, even when viewed in a light most favorable to the

Plaintiffs, reveals that Don Bramlett is entitled to the entry of summary judgment as to the Plaintiffs’

claims of negligence. Don Bramlett testified in his deposition that he did not own the vehicle which

was being driven by Matthew Chupp at the time of the accident - his wife did - and the evidence is

also undisputed that Bramlett was not driving the vehicle in question at the time of the accident. See

(Exhibit D, p. 5, lines 24-25; p. 6, lines 18-23; p. 26, lines 4-9). Accordingly, there is no issue of

fact as to whether Bramlett owed a duty to the Tooles, or whether he breached any duty, or whether

Case 2:06-cv-00652-MHT-WC Document 19 Filed 01/05/2007 Page 6 of 8
any breach of a duty by Bramlett proximately caused injury to the Tooles in any way, even when

all of the evidence is viewed in a light most favorable to the Tooles. Also, as previously discussed

at length, there is simply no evidence whatsoever that any actions by Bramlett in this cause could

constitute wanton behavior, let alone negligent behavior and thus Bramlett is due the entry of

summary judgment as to any such claims, even when all of the evidence is viewed in a light most

favorable to the Plaintiffs. 

V. CONCLUSION

Based upon the foregoing, it is clear that both Alabama precedent and the undisputed

evidence presented in this cause mandate the entry of summary judgment in favor of Matthew

Chupp as to Plaintiffs’ claims of negligence, and in favor of Don Bramlett as to Plaintiffs’ claims

of both negligence and/or wantonness, on the grounds that there are no genuine issues of material

fact and that these Defendants are entitled to judgment as a matter of law. 

Respectfully Submitted this 5th day of January, 2007.

 /s/ Randall Morgan 

RANDALL MORGAN [MOR037]

DOY LEALE MCCALL, III [MCC087]

Attorneys for Defendants Matthew Chupp and

Don Bramlett

OF COUNSEL:

HILL, HILL, CARTER, FRANCO,

COLE & BLACK, P.C.

425 South Perry Street

P.O. Box 116

Montgomery, AL 36101-0116

(334) 834-7600

(334) 263-5969 - FAX

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing has been duly served by electronic filing and by placing

a copy of same in the U.S. Mail, properly addressed and first class postage prepaid this the 5th of

January, 2007 upon the following:

Jim S. Calton, Jr., Esq.

CALTON & CALTON

226 East Broad Street

P O Box 895

Eufaula, AL 36072

FAX - 334-687-3564

www.attorneycalton.com

Courtney R. Potthoff, Esq.

Joel P. Smith, Jr., Esq.

WILLIAMS, POTTHOFF, 

 WILLIAMS & SMITH, LLC

125 South Orange Avenue

Eufaula, Alabama 36072

 /s/ Randall Morgan 

OF COUNSEL

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