IN THE UNITED STATES

DISTRICT COURT FOR SAMFORD

THOMAS JONES SMITH, et al. )

)
Plaintiffs, )
) CV-2011-1234
v. )
)
JAMES DRIVER, et al. )
)
Defendants. )

ANSWER AND COUNTERCLAIM

OF DEFENDANTS, JAMES DRIVER and FLORIDA’S BEST FRUITS, INC.

COME NOW Defendants James Driver (“Driver”) and Florida’s Best Fruits, Inc.

(“Florida’s Best”) (hereinafter collectively referred to as “Defendants”), and answer the

allegations of the complaint in the numerical order therein set forth as follows:

1. The allegations contained in paragraph one of Plaintiffs’ complaint are admitted.

I. JURISDICTION

2. The allegations contained in paragraph two of Plaintiffs’ complaint are admitted

as Plaintiffs’ basis for alleged jurisdidiction but the applicability of the referenced laws to this

case is denied.

II. PARTIES

3. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph three, and therefore they are denied and Defendants

demand strict proof thereof.

4. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph four, and therefore they are denied and Defendants

demand strict proof thereof.

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 5. Defendants are without sufficent knowledge or information to form a belief as to

the truth of the averment in paragraph five, and therefore they are denied and Defendants

demand strict proof thereof.

6. The allegations contained in paragraph six of Plaintiffs’ complaint are admitted.

7. The allegations contained in paragraph seven of Plaintiffs’ complaint are

admitted.

III. FACTS

8. The allegations contained in paragraph eight of Plaintiffs’ complaint are admitted.

9. The allegations contained in paragraph nine of Plaintiffs’ complaint are admitted.

10. The allegations contained in paragraph ten of Plaintiffs’ complaint are admitted.

11. The allegations contained in paragraph eleven of Plaintiffs’ complaint are

admitted as to Samantha Smith’s (hereinafter “Samantha”) presence in the vehicle. The

remaining allegations contained in the paragraph eleven of the complaint are denied and

defendant demands strict proof thereof.

12. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph twelve, and therefore they are denied and Defendants

demand strict proof thereof.

13. The allegations contained in paragraph thirteen of Plaintiffs’ complaint are

admitted.

14. The allegations contained in paragraph fourteen of Plaintiffs’ complaint are

admitted.

15. The allegations contained in paragraph fifteen of Plaintiffs’ complaint are

admitted.

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 16. The allegations contained in paragraph sixteen of Plaintiffs’ complaint are denied.

17. The allegations contained in paragraph seventeen of Plaintiffs’ complaint are

denied.

18. The allegations contained in paragraph eighteen of Plaintiffs’ complaint are

admitted with reference to the point of contact between the vehicles being the right rear tires of

Driver’s truck and the front left side of the Plaintiffs’ car. However, Defendants deny that the

collision occurred “[d]espite Thomas’ efforts.”

19. The allegations contained in paragraph nineteen of Plaintiffs’ complaint are

admitted.

20. The allegations contained in paragraph twenty of Plaintiffs’ complaint are

admitted.

21. The allegations contained in paragraph twenty-one of Plaintiffs’ complaint are

admitted.

22. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph twenty-two, and therefore they are denied and Defendants

demand strict proof thereof.

23. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph twenty-three, and therefore they are denied and

Defendants demand strict proof thereof.

24. The allegations contained in paragraph twenty-four of Plaintiffs’ complaint are

admitted.

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 25. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph twenty-five , and therefore they are denied and Defendants

demand strict proof thereof.

26. The allegations contained in paragraph twenty-six of Plaintiffs’ complaint are

admitted.

27. The allegations contained in paragraph twenty-seven of Plaintiffs’ complaint are

admitted.

28. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph twenty-eight, and therefore they are denied and

Defendants demand strict proof thereof.

29. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph twenty-nine, and therefore they are denied and Defendants

demand strict proof thereof.

30. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty, and therefore they are denied and Defendants

demand strict proof thereof.

31. The allegations contained in paragraph thirty-one of Plaintiffs’ complaint are

admitted.

32. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-two, and therefore they are denied and Defendants

demand strict proof thereof.

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 33. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-three, and therefore they are denied and Defendants

demand strict proof thereof.

34. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-four, and therefore they are denied and Defendants

demand strict proof thereof.

35. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-five, and therefore they are denied and Defendants

demand strict proof thereof.

36. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-six, and therefore they are denied and Defendants

demand strict proof thereof.

37. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-seven, and therefore they are denied and Defendants

demand strict proof thereof.

38. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-eight, and therefore they are denied and Defendants

demand strict proof thereof.

39. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph thirty-nine, and therefore they are denied and Defendants

demand strict proof thereof.

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 40. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty, and therefore they are denied and Defendants

demand strict proof thereof.

41. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-one, and therefore they are denied and Defendants

demand strict proof thereof.

42. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-two, and therefore they are denied and Defendants

demand strict proof thereof.

43. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-three, and therefore they are denied and Defendants

demand strict proof thereof.

44. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-four, and therefore they are denied and Defendants

demand strict proof thereof.

45. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-five, and therefore they are denied and Defendants

demand strict proof thereof.

46. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-six, and therefore they are denied and Defendants

demand strict proof thereof.

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 47. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-seven, and therefore they are denied and Defendants

demand strict proof thereof.

48. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-eight, and therefore they are denied and Defendants

demand strict proof thereof.

49. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the averment in paragraph forty-nine, and therefore they are denied and Defendants

demand strict proof thereof.

IV. CAUSES OF ACTION

COUNT I – NEGLIGENCE

50. Defendant reasserts and reincorporates by reference its responses to the

allegations contained in paragraph 1 through 47 of Plaintiffs’ complaint as if set forth in full.

51. The allegations contained in paragraph fifty-one of Plaintiffs’ complaint are

admitted.

52. The allegations contained in paragraph fifty-two of Plaintiffs’ complaint are

denied.

53. The allegations contained in paragraph fifty-three of Plaintiffs’ complaint are

admitted with reference to what happened to Plaintiffs’ car following contact with Driver’s

vehicle. However, Defendants deny that the collision occurred “[b]ecause of Driver’s collision

with Plaintiff’s car.”

54. The allegations contained in paragraph fifty-four of Plaintiffs’ complaint are

denied.

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 55. The allegations contained in paragraph fifty-five of Plaintiffs’ complaint are

admitted.

Defendants deny that Plaintiffs are entitled to any relief requested in its paragraph

beginning with “wherefore” immediately following paragraph 55 of the complaint.

COUNT II - WANTONNESS

56. Defendant reasserts and reincorporates by reference its responses to the

allegations contained in paragraph 1 through 31 of Plaintiffs’ complaint as if set forth in full.

57. The allegations contained in paragraph fifty-seven of Plaintiffs’ complaint are

denied.

58. The allegations contained in paragraph fifty-eight of Plaintiffs’ complaint are

denied.

59. The allegations contained in paragraph fifty-nine of Plaintiffs’ complaint are

denied.

60. The allegations contained in paragraph sixty of Plaintiffs’ complaint are admitted.

Defendants deny that Plaintiffs are entitled to any relief requested in its paragraph

beginning with “wherefore” immediate following paragraph 60 of the complaint.

COUNT III – NEGLIGENT HIRING

61. Defendant reasserts and reincorporates by reference its responses to the

allegations contained in paragraph 1-31 and 48-49 of Plaintiffs’ complaint as if set forth in full.

62. The allegations contained in paragraph sixty-two of Plaintiffs’ complaint are

denied.

63. The allegations contained in paragraph fifty-nine of Plaintiffs’ complaint are

denied.

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 Defendants deny that Plaintiffs are entitled to any relief requested in its paragraph

beginning with “wherefore” immediately following paragraph 63 of the complaint.

AFFIRMATIVE DEFENSES

FIRST DEFENSE

Each count of Plaintiffs’ complaint fails to state a cause of action against Defendants

upon which relief can be granted.

SECOND DEFENSE

Defendants affirmatively allege that any injuries that may have been sustained by

Plaintiff Thomas Jones Smith (hereinafter individually as “Thomas”), as alleged in Plaintiffs’

complaint, occurred as a direct result of Thomas’s negligent failure to exercise ordinary care, in

that Thomas was excessively speeding at the time of the accident and Thomas drifted into the

right lane and struck Driver’s vehicle. Therefore, Thomas’s alleged injuries were caused in

whole or in part, or were contributed to, by Thomas’s own negligence, and not by any negligence

of the Defendants.

THIRD DEFENSE

Defendants affirmatively allege that any injuries that may have been sustained by

Plaintiff Jane Hull Smith (hereinafter individually as “Jane”), as alleged in Plaintiffs’ complaint,

occurred as a direct result of Jane’s failure to exercise ordinary care, in that Jane turned on an

overhead light in the car which created hazardous driving conditions for Plaintiff Thomas.

Therefore, Jane’s alleged injuries were caused in whole or in part, or were contributed to, by

Jane’s own negligence, and not by any negligence of Defendants

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 FOURTH DEFENSE

The negligent conduct of Plaintiffs Thomas and Jane is the sole proximate cause of all-

named Plaintiffs’ alleged injuries.

FIFTH DEFENSE

Defendant Driver acted within the standard of care of a reasonably prudent person

confronted with the same of similar sudden emergency. See Tillis Trucking Co. v. Moses, 748

So. 2d 874, 885 (Ala. 1999). The sudden emergency arose through no fault of Defendant Driver.

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