Virgo v. Roberts and GEICO Cas. Co., [Ms. SC-2023-0476, Mar. 29, 2024] __ So. 3d __ (Ala. 2024). The Court (Parker, C.J.; Mendheim and Mitchell, JJ., concur.; Shaw and Bryan, JJ., concur in the result) affirms the Mobile Circuit Court’s judgment dismissing Virgo’s counterclaim against Roberts.
Virgo was pushing a disabled vehicle at night across an oncoming traffic lane on Rangeline Road when Roberts crashed into the vehicle Virgo was pushing. Ms. *2. Both Roberts and Virgo suffered injuries as a result. Roberts sued Virgo, and Virgo filed a counterclaim alleging negligence on the part of Roberts. The circuit court granted Robert’s motion for summary judgment on Virgo’s counterclaim and certified the judgment as final under 54(b). Virgo appealed.
After determining that the Rule 54(b) certification was proper, the Court affirms, holding that Virgo did not present “substantial evidence” of a genuine dispute of material fact in his favor to defeat Roberts’s motion for summary judgment. Ms. *12. Roberts testified that the headlights on the disabled vehicle Virgo was pushing were not on. The Court notes Virgo’s testimony on this point was “‘I don’t recall. I cannot tell,’” and concludes “[t]his is not ‘substantial evidence’ sufficient to create a genuine issue of material fact on this point.” Ms. *16. The Court reiterates that “[m]ere proof of the occurrence of an accident and injury is not legally sufficient to prove negligence,” and holds that Roberts, not Virgo, had the right-of-way as a matter of law. Ms. **17-18.