(Doc. 50 at 11). In her objections, the Plaintiff also claims that the magistrate judge erred by relying on the analysis of the Alabama Supreme Court in D.A.C. v. Thrasher, 655 So. 2d 959 (Ala. 1995), which she contends is factually distinguishable from the present case. (Doc. 50 at 11-14).
In their reply brief, Principal Collins and Ms. Kaiser make a new argument as to why the state-law claims against them should be dismissed. See Doc. 54 at 3-4 (citing D.A.C. v. Thrasher, 655 So. 2d 959 (Ala. 1995)). The court ordinarily does not consider arguments raised for the first time in reply.
[9] In a wrongful-death action predicated on theories of negligence and wantonness, a plaintiff must establish that the defendantโs tortious conduct proximately caused the decedentโs death. See Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994) ("Proximate cause is an essential element of both negligence claims and wantonness claims."); DA.C. ex rel. D.D. v. Thrasher, 655 So. 2d 959, 961 (Ala. 1995) ("It is well settled in this state that damages claims cannot be presented to a jury in the absence of sufficient evidence of an unbroken sequence of cause and effect, i.e., evidence that the act complained of was the proximate cause of the injury." (citing Alabama Power Co. v. Bryant, 226 Ala. 251, 146 So. 602 (1933))).
Under Alabama law, the court cannot give the case to a jury to speculate about the real cause of Nobles' fall. See D.A.C. By and Through D.D. v. Thrasher, 655 So.2d 959, 961 (Ala. 1995) ("[W]hen the evidence leaves it uncertain as to whether the cause of the injury was something for which defendant was responsible, or something for which it was not responsible, there is a failure of proof, and the jury cannot be permitted to guess at the real cause. And the mere possibility that the negligence of the defendant caused the injury without evidence thereof, is not sufficient to carry the case to the jury, or to support a verdict.")
Alabama law does not permit such speculation. See generally K.D. ex rel. J.D. v. Wooten, 2015 WL 1138492, at *8 (N.D. Ala. Mar. 13, 2015) (citing D.A.C. ex rel. D.D. v. Thrasher, 655 So. 2d 959, 962 (Ala. 1995)) (theory of proximate causation failed at summary judgment when it required speculation about what the Birmingham Board of Education would have done with information that it did not receive). Therefore, because Mr. Hume has failed to demonstrate by substantial evidence a genuine dispute of material fact on the issue of whether Mills-Conoly's failure to recommend warning signs or a protective cover for the subject enclosure was the proximate cause of Mr. Hume's injuries, the Court concludes that Mills-Conoly is entitled to summary judgment on Mr. Hume's negligence and wantonness claims.
The record does not explain why defendant Payne did not report plaintiff's RSH's allegations of child sexual abuse to the police. Additionally, relying on D.A.C. v. Thrasher, 655 So.2d 959 (Ala. 1995), defendant Payne asserts that it is unnecessary for this court to consider whether Payne is entitled to qualified immunity because there is not enough sufficient evidence for a jury to find that Payne's failure to abide by the school board's policy was the proximate cause of RSH or CC's injuries. (Doc. 109, p. 11-3).
However, C W's argument is misplaced because the question facing the court is not whether Lott's evidence of causation is sufficient to carry the case to the jury, or to support a verdict in his favor, where such considerations are relevant. See D.A.C. By and Through D.D. v. Thrasher, 655 So.2d 959, 961 (Ala. 1995) ("[W]hen the evidence leaves it uncertain as to whether the cause of the injury was something for which defendant was responsible, or something for which it was not responsible, there is a failure of proof, and the jury cannot be permitted to guess at the real cause. And the mere possibility that the negligence of the defendant caused the injury without evidence thereof, is not sufficient to carry the case to the jury, or to support a verdict.") (quotation marks and citations omitted). Rather, here the court must determine the admissibility, not the sufficiency, of Dr. Riddell's testimony.
We note, however, that in order to determine the personal liability of the defendants for McGee's sexual abuse of the student plaintiffs, the student plaintiffs must establish that the defendants, by action or inaction, demonstrated deliberate indifference toward the student plaintiffs' constitutional rights and thereby proximately caused the violation of those rights. See D.A.C. v. Thrasher, 655 So.2d 959 (Ala. 1995); Dothard v. Alabama State Department of Human Resources, 613 So.2d 353 (Ala. 1993); Doe v. Taylor Independent School District, supra; Stoneking v. Bradford Area School District, supra; see also City of Canton v. Harris, 489 U.S. 378, 381, 388, 109 S.Ct. 1197, 1200-01, 1204, 103 L.Ed.2d 412, 421-22 (1989), a case in which the United States Supreme Court held that a municipality's violation of the plaintiff's rights under the Due Process Clause of the Fourteenth Amendment depended on a showing of a deliberate indifferent policy of training its employees that was the closely related cause of the violation of the plaintiff's federally protected right, explaining that "[t]o adopt lesser standards of fault and causation" would result in de facto respondeat superior liability." Id., 489 U.S. at 392, 109 S.Ct. at 1206, 103 L.Ed.2d at 428.