United States Court of Appeals,

Ninth Circuit.

ALBINGIA VERSICHERUNGS A.G., a foreign corporation; Siemens Components Pte.

Ltd., a foreign corporation, Plaintiffs-Appellants,

v.

SCHENKER INTERNATIONAL INC., a corporation, Defendant-Appellee.

Argued and Submitted Oct. 10, 2002.

Filed Sept. 15, 2003.

Before ANDREW J. KLEINFELD and JOHNNIE B. RAWLINSON, Circuit Judges, and JUSTIN L. QUACKENBUSH, [FN*] District Judge.

OPINION

KLEINFELD, Circuit Judge.

This case raises questions about supplemental jurisdiction after removal, and about choice of law in a challenge to a limitation of liability in a waybill.

Facts

Siemens, a German manufacturer, made computer chips in Singapore, and sent them to San Jose, California, for testing. When the cartons containing the boxes of chips came back to Siemens’ factory in Singapore, “one of the three inner boxes in each carton contained a brick instead of circuits.”

Siemens had purchased insurance from Albingia Versicherungs, which paid Siemens about $235,000 for the stolen chips. Albingia brought this subrogation claim against all the firms in the shipping chain. Albingia sued in the California Superior Court for San Francisco County. The complaint stated five causes of action, the first arising under the Warsaw Convention, the other four arising under California state law for negligence, breach of contract, breach of the duty of care by bailee, and conversion. One of the defendants, Eva Air, an international air carrier, removed the case to federal court based on the Warsaw Convention claim.

After discovery, the case was settled as to all defendants but one, Schenker International, a freight forwarder. Schenker operated a warehouse in South San Francisco where the chips had been stored prior to transport on Eva Air back to Singapore. Schenker and Albingia stipulated to facts establishing, basically, that the chips had probably been stolen by Schenker employees while in Schenker’s warehouse.

Siemens’s waybills contained a limitation on liability supplementing the liability limitation in the Warsaw Convention. The contract said that, with exceptions immaterial to this case, liability where the Warsaw Convention did not apply was limited to $20 per kilogram. The waybill says that this amount is designed to be the approximate value of the “250 French gold francs” specified as the Warsaw Convention limit. Thus Schenker’s idea was plainly, “our liability is limited to $20 per kilo if the Warsaw Convention does apply, and also if it doesn’t.”

Schenker’s branch manager and warehouse manager watched a videotape from their closed-circuit security camera to figure out whether the shipment had been weighed when it came in. But somehow all the videotapes made from the security cameras during the whole four days the chips were in Schenker’s care disappeared. The district court presumed that the chips were stolen by employees, for their own benefit and not for Schenker’s benefit. This presumption has not been challenged in this appeal.

The parties filed cross motions for summary judgment on the applicability of the Warsaw Convention and the monetary limitations in the waybill. In its summary judgment motion, Albingia did not raise the issue of the jurisdiction of the federal court over the state law supplemental claims if the court found that the Warsaw Convention did not apply, nor the issue of the exercise of discretion by the court over retention of the supplemental claims. The district court determined that the Warsaw Convention did not apply, that the limitation on the waybill was valid under federal common law, and that Albingia was entitled to summary judgment in the amount of $5394, computed under the waybill limitations. Albingia appeals, to get the rest of the $235,000 plus expenses that it is out of pocket to its insured on the stolen shipment.

Analysis

We review de novo the district court’s grant of summary judgment. [FN1] Albingia argues on appeal that once the district court held that the Warsaw Convention did not apply, the basis of removal–federal question jurisdiction–was gone, as was jurisdiction to consider the remaining state law claims. Albingia therefore argues that the district court should have remanded the state law claims back to the state Superior Court, because it lacked supplemental jurisdiction to rule on them. And Albingia further argues that even if the district court had supplemental jurisdiction, the district court should have applied California law rather than federal common law, and that under California law Albingia would have avoided the $20 per kilogram liability limitation.

A. Jurisdiction

Eva Air properly removed the case from state to federal court, because “[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under … treaties or laws of the United States shall be removable….” [FN2] No party filed a motion to remand upon removal. The complaint was drawn claiming a right to recover under a treaty and federal statute, [FN3] the federal aspect was central to the claim and was not insubstantial or frivolous-for all Albingia knew, the chips were stolen while aboard Eva Air. Therefore, jurisdiction at the time of removal existed regardless of whether the Warsaw Convention ultimately turned out to supply a basis for recovery. [FN4]

There is also no serious question that in its summary judgment order, the district court first determined that the Warsaw Convention did not apply and then determined the state law limitations issue in favor of Schenker. We held in Read Rite Corporation v. Burlington Air Express, Inc. [FN5] that where the loss to the goods occurs outside the airport, the Warsaw Convention does not apply. [FN6] The Convention applies to transportation by air but not everything leading up to transportation by air.

Thus by the time the district court entered judgment in the case at bar, the federal question that justified removal had disappeared. The claim under the Warsaw Convention disappeared once the district court presumed and the parties stipulated that the bricks had been substituted for the chips in Schenker’s South San Francisco warehouse. [FN7]

Albingia argues that once the district court correctly so decided, that should have been the end of the case in federal court. But instead of dismissing the state law claims or remanding them to state court, the district court exercised supplemental jurisdiction over them. Albingia contends that there was no supplemental jurisdiction over the remaining state law claims. As stated, supra, Albingia did not raise this issue until after the district court had ruled against it on its state law claims.

The supplemental jurisdiction statute provides that “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” [FN8] In this case, the district court had a basis of original jurisdiction because of the federal question raised by Albingia’s Warsaw Convention claim. Further, the state law claims plainly form part of the same case or controversy as the federal claim. Just like the Warsaw Convention claim, the state claims are four different theories for getting reimbursed for the $235,000 that Albingia paid Siemens for the stolen chips. The removal was without question proper at the time it was accomplished, because of the Warsaw Convention claim, so the district court plainly had supplemental jurisdiction at that time over the state law claims. [FN9]

The district court, in a single ruling on cross motions for summary judgment, held that because the chips were stolen in Schenker’s off- airport warehouse, the Warsaw Convention did not apply, and the contractual limitation to $20 per kilogram was valid under federal common law. Albingia argues that upon deciding that the Warsaw Convention did not apply, the district court lost jurisdiction to decide that the contractual limitation applied. That contention is incorrect. Where removal was proper, but the federal question claim is defeated on the merits, the district court nevertheless may in its discretion retain supplemental jurisdiction over the state law claims. [FN10] The Supreme Court held in Bell v. Hood that when a well-pleaded complaint states a federal claim, “[j]urisdiction, therefore, is not defeated … by the possibility that the averments might fail to state a cause of action on which the petitioners could actually recover,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.” [FN11] In the case at bar, the federal claim was dismissed on the merits rather than for lack of jurisdiction, because it turned out that the chips were stolen at Schenker’s off-airport warehouse. Jurisdiction existed because the pleading asserted, without frivolousness, that the Warsaw Convention gave Albingia a claim.

It is arguably an obstacle to this interpretation that the statute governing procedure after removal has subsequently been amended. In pertinent part, the removal statute, section 1447(c), provides that motions to remand for procedural defects must be made within 30 days of removal, but”[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” [FN12] Wright & Miller says that “[a]n interpretive debate has arisen whether the language ‘lacks subject matter jurisdiction’ in the current text of Section 1447(c) refers only to defects existing at the time of removal or takes into account subsequent events.” [FN13] The words “any time” and “lacks,” in the present tense, suggest mandatory remand, but the word “case” suggests that jurisdiction must be lacking over the entire case, not merely a claim within the case.

It was well-settled under the previous version of the removal statute [FN14] that a federal district court retains “the power to hear claims that would not [have been ] independently removable even after the basis for removal jurisdiction is dropped from the proceedings.” [FN15] Our sister circuits that have ruled on the question interpret the statute as amended not to deprive the district court of jurisdiction to decide the related state claims even though the federal claim upon which removal was based is dismissed on the merits. [FN16] Thus, in our post-amendment en banc decision in Acri v. Varian Associates, [FN17] we held that even if all federal claims are dismissed before trial, this “has never meant that they [state law claims] must be dismissed.” [FN18] This interpretation preserves coherence with the new supplemental jurisdiction statute, which provides that where the district court has original jurisdiction over a federal claim, it “shall have supplemental jurisdiction” over related state law claims. [FN19]

The supplemental jurisdiction statute, section 1367, says that district courts “shall have” jurisdiction over the non-federal claims forming part of the same case or controversy, which they “may decline to exercise” under denoted circumstances, [FN20] while the procedure after removal statute, section 1447, says that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” [FN21] Here is how we reconcile the “may decline to exercise” language of the supplemental jurisdiction statute with the “shall be remanded” language of the procedure after removal statute: if state law claims are asserted as part of the same case or controversy with a federal claim, the district court has discretion to exercise supplemental jurisdiction over the remaining state law claims and the mandatory remand provision of the procedure after removal statute does not apply. Under the plain language of the statutes, logically it cannot “appear[ ] that the district court lacks jurisdiction” under 1447(c) if it “shall have” jurisdiction under 1367.

The Second Circuit held in Parker PPA v. Della Rocco, Jr., [FN22] that ” § 1447(c) merely addresses the consequences of a jurisdictional flaw, i.e. it mandates a remand rather than a dismissal.” [FN23] Parker relies on language in a Supreme Court decision, International Primate Protection League v. Administrators of Tulane Educational Fund, [FN24] that, in somewhat different circumstances, reads the new language in section 1447(c) to mean that “a finding that removal was improper deprives that court of subject matter jurisdiction and obliges a remand.” [FN25] That is to say, section 1447(c) does not mean that if the federal claim drops out, the district court must remand; it means that if there is no jurisdiction-federal question, supplemental, diversity, or otherwise-the district court must remand the removed case rather than dismissing it. Our cases already bear this out; now we hold explicitly what, in Acri and other cases, [FN26] we have held implicitly: section 1447(c) means that if it is discovered at any time in the litigation that there is no federal jurisdiction, a removed case must be remanded to the state court rather than dismissed. Section 1447(c) does not mean that if a facially valid claim giving rise to federal jurisdiction is dismissed, then supplemental jurisdiction is vitiated and the case must be remanded. Once supplemental jurisdiction exists, it remains, subject to the discretionary provision for remand in section 1441.

In the case at bar, because Albingia’s state law complaint was properly removed to the district court due to the federal question asserted by Albingia’s Warsaw Convention claim, the district court had supplemental jurisdiction over the state law claims. The district court’s supplemental jurisdiction over the state law claims was not destroyed by dismissal of the Warsaw Convention claim. This is consistent with the long established approach to diversity cases, where even if the damages proved turn out to be less than the jurisdictional amount, the district court nevertheless retains jurisdiction to render a final judgment on the merits. [FN27] Supplemental jurisdiction is not destroyed by elimination of the basis for original jurisdiction.

The only remaining issue relating to jurisdiction is whether, after the federal claim was dismissed, the district court abused its discretion by retaining the case rather than remanding it. [FN28] Our en banc decision in Acri holds that although the district court “may,” under section 1367(c), decline to exercise its supplemental jurisdiction in these circumstances, and ordinarily “should” dismiss the state law claims under United Mine Workers v. Gibbs, that “has never meant that they must be dismissed.” [FN29] Here, considering the Acri factors, [FN30] there was plainly no abuse of discretion, because Albingia waited until the dealer turned up his hole card, in the court’s summary judgment decision, before claiming that the adverse decision should be vacated because federal question jurisdiction had disappeared. We decline to let Albingia take its chips off the table because it didn’t like the dealer’s hand.

B. Choice of Law

Albingia argues that, even if the district court did have jurisdiction and permissibly exercised it, the choice of law decision is erroneous. The parties disagree whether, under California law, the $20 per kilogram limit in the waybill is enforceable. Although the disagreement is arguable, [FN31] we need not resolve the disagreement under California law. Albingia does not dispute that if federal common law applies, the limit is enforceable. We review de novo a district court’s choice of law decision. [FN32]

Two prior Ninth Circuit decisions that came down three weeks apart control the determination of which law applies. Our decision in Read Rite Corp. v. Burlington Air Express [FN33] holds that where the Warsaw Convention is inapplicable because the damage occurred off-airport, federal common law applies to determine the validity of a waybill limitation on liability for damage to goods being shipped in interstate or international commerce by air. [FN34] Under federal common law, the limit on liability is valid and enforceable if the shipper has reasonable notice of it and a fair opportunity to purchase the means to avoid it. [FN35] Purchasing separate insurance on the cargo, as Siemens did from Albingia, satisfies both requirements. [FN36] Read Rite controls the case at bar and establishes, first, because Schenker’s warehouse was outside the airport, the Warsaw Convention did not apply, and second, because Siemens bought insurance on the chips from Albingia, in obvious recognition of the waybill limitation, the $20 per kilogram limit is valid under controlling federal common law.

Our decision three weeks after Read Rite in Insurance Company of North America v. Federal Express Corporation, [FN37] concluded that state law applied. But it is distinguishable on its facts. In Federal Express, as in the case at bar, computer chips were stolen out of a warehouse by employees. The difference, though, is that in Federal Express the warehouse was within the airport. The Warsaw Convention applies once the goods are within the airport. [FN38] In Federal Express we read Article 25 of the Warsaw Convention to refer us to state law to determine whether willful misconduct by a shipper’s employee invalidates the limit on liability. [FN39]

Federal Express and Read-Rite come out differently because the Warsaw Convention applies in the former but not the latter. It may seem nonintuitive that state law controls once the shipment is at the airport because an international treaty governs the commercial relationships, while federal common law controls when the shipment is sitting within the state, is outside the airport at a South San Francisco warehouse and beyond the scope of the Warsaw Convention. [FN40] But that’s the way it is, under our controlling authority.

AFFIRMED.

FN* The Honorable Justin L. Quackenbush, Senior United States District Judge for Eastern Washington, sitting by designation

FN1. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002).

FN2. 28 U.S.C. § 1441(b).

FN3. Convention and additional protocol between the United States of America and other powers relating to International Air Transportation (Warsaw Convention), 49 Stat. 3000, (Oct. 29, 1934), codified at note following 49 U.S.C. § 40105.

FN4. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

FN5. 186 F.3d 1190 (9th Cir.1999).

FN6. Id. at 1194(holding that damage occurring to goods outside of Heathrow Airport is not covered by the Warsaw Convention).

FN7. See id.

FN8. 28 U.S.C. § 1367(a).

FN9. See 28 U.S.C. § 1441.

FN10. 28 U.S.C. § 1367(c); Acri v. Varian Assn., 114 F.3d 999, 1000-01 (9th Cir.1997) (en banc).

FN11. Bell, 327 U.S. at 682.

FN12. 28 U.S.C. § 1447(c).

FN13. Wright & Miller, Federal Practice and Procedure: Jurisdiction and Related Matters 3d, § 3739 at 435.

FN14. Prior to 1988, the comparable subsection to the removal statute in question provided that “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case.”

FN15. See Harrell v. 20th Century Ins., Co., 934 F.2d 203, 205 (9th Cir.1991) (internal quotation omitted); see also Carnegie Mellon University v. Cohill, 484 U.S. 343, 355 n. 11, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (discussing that the pre 1988 version of section 1447(c) “do [es] not apply to cases over which a federal court has pendent jurisdiction. Thus, the remand authority conferred by the removal statute and the remand authority conferred by the doctrine of pendent jurisdiction overlap not at all.”)

FN16. See Parker PPA v. Della Rocco, Jr., 252 F.3d 663, 666 (2d Cir.2001).

FN17. 114 F.3d 999 (9th Cir.1997) (en banc).

FN18. Id. at 1000.

FN19. 28 U.S.C. § 1367(a).

FN20. 28 U.S.C. § 1367(c).

FN21. 28 U.S.C. § 1447(c).

FN22. 252 F.3d 663 (2d Cir.2001).

FN23. Id. at 666.

FN24. 500 U.S. 72, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991), superseded by statute on unrelated grounds, as explained by Dalrymple v. Grand River Dam Authority, 145 F.3d 1180, 1184 n. 6 (10th Cir.1998).

FN25. Id. at 87.

FN26. See, e.g., Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802 (9th Cir.2001) (holding that the exercise of supplemental jurisdiction over nonfederal claims was improper where there was never a valid basis for removal under federal admiralty jurisdiction); Duncan v. Al Stuetzle, 76 F.3d 1480, 1491 (9th Cir.1996) (holding that the district court was required to remand to state courts for lack of subject matter jurisdiction under section 1447(c) where the state court complaint failed to state a federal question under the Lanham Act as it only raised state law issues). Compare with, Acri, 114 F.3d at 1000-01(holding that properly removed nonfederal claims need not be remanded even where the district court dismissed the claim on which removal was based).

FN27. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Singer v. State Farm Mutual Auto. Ins. Co., 116 F.3d 373, 375 (9th Cir.1997).

FN28. See Bryant v. Adventist Health, 289 F.3d 1162, 1169 (9th Cir.2002).

FN29. Acri, 114 F.3d at 1000 (emphasis in original) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)).

FN30. See 28 U.S.C. § 1367(c)(discussing factors to consider in evaluating whether to remand); Acri, 114 F.3d at 1001 (holding that considerations of fairness, judicial economy, convenience to the parties, and comity sometimes indicate a federal court should retain jurisdiction).

FN31. Compare California Civil Code § 2175(liability limitation seemingly invalid), with HIH Marine Ins. Serv., Inc. v. Gateway Freight Serv., 96 Cal.App.4th 486, 116 Cal.Rptr.2d 893 (2002) (liability limitation valid).

FN32. Torre v. Brickey, 278 F.3d 917, 919 (9th Cir.2002).

FN33. 186 F.3d 1190 (9th Cir.1999).

FN34. See also Kesel v. United Parcel Serv., Inc., 339 F.3d 849, 2003 WL 21782526 n. 2 (9th Cir. Aug.4, 2003) (“We agree with the district court that the Warsaw Convention … does not apply to [plaintiff’s] claims. [Plaintiff] alleges that the package disappeared, not during the flight from Odessa to the United States, but after it arrived at UPS’s Kentucky warehouse. Federal common law governs liability limits on shipments by air within the United States.” (internal citations omitted)).

FN35. Id. See Read Rite, 186 F.3d. at 1198.

FN36. Read Rite, 186 F.3d at 1198.

FN37. 189 F.3d 914 (9th Cir.1999).

FN38. Read Rite, 186 F.3d at 1194.

FN39. Federal Express, 189 F.3d at 917-21.

FN40. See id. at 923-28 (W.Fletcher, J., concurring) (arguing that federal common law should have been applied by the majority in Federal Express ).

United States District Court,

S.D. New York.

Patricia A. MARCOUX, Plaintiff,

v.

FARM SERVICE AND SUPPLIES, INC., Hribar Truck & Equipment Corp. and Bradley

Jones, Defendants.

Sept. 12, 2003.

OPINION AND ORDER

CONNER, Sr. D.J.

Plaintiff Patricia Marcoux brings this action against defendants Farm Service and Supplies, Inc. (“Farm Service”), Hribar Truck & Equipment Corp. (“Hribar”) and Bradley J. Jones (“Jones”). [FN1] In her first claim for relief, she alleges that Jones, an employee of Farm Service, negligently operated a tractor-trailer truck, the trailer of which was owned by Hribar and leased to Farm Service, thereby causing a motor vehicle accident in which she was injured. In her second claim for relief, plaintiff alleges that defendants’ actions were “wanton, reckless and malicious,” and demands punitive damages. Defendants have moved pursuant to FED. R. CIV. P. 56(b) for partial summary judgment dismissing plaintiff’s second claim for relief. For the reasons set forth herein, we grant defendants’ motions for partial summary judgment.

FN1. This matter is before this Court pursuant to its diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff is a New York resident, while Jones is a Wisconsin resident, Farm Service is an Illinois corporation and Hribar is a Wisconsin corporation.

BACKGROUND [FN2]

FN2. Hribar’s Local Rule 56.1 Statement lacks the required citations to admissible evidence in the record, rendering it of little assistance to the Court in deciding this motion. Accordingly, whenever possible and appropriate, we rely instead on the Rule 56.1 Statements of plaintiff, Farm Service and Jones.

On the rainy day of June 6, 2002, at approximately 4:50 p.m., a motor vehicle accident occurred on Route 100 near Seven Bridges Road in Yorktown, New York, between plaintiff, who was driving northbound in her 1998 Honda sedan, and Jones, [FN3] who was driving a tractor trailer in the southbound lane. Jones was driving a 1996 International semi-tractor, owned by Farm Service, that was connected to an unloaded flatbed trailer owned by Hribar and leased to Farm Service. At the location of the accident, Route 100 is a two-lane roadway with a double yellow line that separates northbound from southbound traffic. In addition, although Route 100 is generally a north-south highway, at the scene of the accident, the roadway runs east-west; it curves generally to the right for westbound traffic and to the left for castbound traffic. (Def. Farm Service Rule 56.1 Stmt. ¶¶ 1-5; Pl. Rule 56.1 Stmt. ¶¶ 1-5.) At the time of the accident, the roadway was wet because it was raining. (Def. Farm Service Rule 56.1 Stmt. ¶ 7.)

FN3. By way of background, Robert Market, president of Farm Service, testified at his deposition that he checked and reviewed Jones’s driving record during the hiring process. (Pl. Affm., Ex. H at 6, 36 .) An examination of Jones’s driving record did not reveal any accidents, but does indicate that his license was suspended in November 1996 and January 2001, for failure to pay forfeitures. Between 1996 and 2002, Jones received five speeding tickets, two tickets for failure to keep the required drivers’ log book, three tickets for failure to fasten his safety belt and equipment violations for improper tire equipment, a defective speedometer and lack of required reflective tape. Jones also received tickets for failure to have his license on his person and for driving with expired license and registration. Finally, he has received two written warnings, one for an overweight axle and the other for speeding. (Pl. Mem. Opp. Partial Summ. J. at 11; Pl. Affm., Exs. H at 36-38, J.)

Immediately before the accident occurred, plaintiff had been proceeding northbound and Jones had been proceeding southbound. Jones drove the truck around the curve towards the intersection with Seven Bridges Road, thus changing his course of travel to westbound. Approaching the intersection, [FN4] he applied the truck’s brakes, but was unable to stop in time on the wet pavement. Jones steered the truck to the right and struck the right-side guardrail with the tractor. The trailer swung out slightly into the opposing traffic lane, and its rear wheels struck plaintiff’s car. (Def. Farm Service Rule 56.1 Stmt. ¶ 8; Pl. Rule 56.1 Stmt. ¶ 8.) The tractor came to rest after the accident a few hundred feet from the intersection with Seven Bridges Road. Plaintiff sustained serious injuries as a result of the accident.

FN4. Jones told the investigating police officers that when he drove the truck around the curve, he saw five cars stopped at a traffic light, waiting for the lead car to make a left turn onto Seven Bridges Road. He stated that he had to drive the tractor into the guardrail in order to avoid striking them. (Def. Farm Service Rule 56.1 Stmt. ¶ 11.) We note that plaintiff disputes this assertion, and claims that there were no other vehicles ahead of Jones’s truck and no vehicles planning to make a left turn onto Seven Bridges Road. (Pl. Rule 56.1 Stmt. ¶ 6.) For purposes of deciding this motion, we will draw all inferences in plaintiff’s favor, and assume without deciding that there were no other vehicles at the intersection. See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242. 255 (1986).

Thereafter, Yorktown Police Officers Richard Finn [FN5] and Timothy Tausz [FN6] investigated the accident. [FN7] They did not interview any person who claimed to have witnessed the accident. (Def. Farm Service Rule 56.1 Stmt. ¶ 10; Pl. Rule 56.1 Stmt. ¶ 10.) The investigating officers also did not observe any skid marks at the scene of the accident. (Def. Farm Service Rule 56.1 Stmt. ¶ 13.) While at the scene, Finn inspected the tractor- trailer. (Def. Farm Service Rule 56.1 Stmt. ¶ 15.) He found that the trailer itself was over the double yellow line, and that it had been operated at an unreasonable speed because its driver was unable to control it on the wet road surface. (Def. Farm Service Rule 56.1 Stmt. ¶ 19.) Subsequently, Finn issued five traffic tickets to Jones, two of which were for unsafe trailer tires. [FN8]

FN5. The parties dispute Finn’s qualifications with respect to accident investigation and reconstruction. Plaintiff claims that Finn has training in accident reconstruction (Pl. Rule 56.1 Stmt. ¶ 25) while defendants claim that he has not had any such training, with the exception of the basic police academy class in assessing road and weather conditions and taking operator statements. (Def. Farm Service Rule 56.1 Stmt. ¶ 31; Def. Farm Service Affm., Ex. 9 at 36.)

FN6. Tausz has been a police officer for twenty-three years and presently holds the rank of detective. (Pl. Rule 56.1 Stmt. ¶ 38; Def. Farm Service Affm., Ex. 10 at 6-7.) He has a degree in police science from Rockland Community College and has training from the New York State Division of Criminal Justice Services in accident reconstruction at the basic, intermediate and advanced levels. (Pl. Rule 56.1 Stmt. ¶ 38.) He also has received training in commercial vehicle accident reconstruction at the University of Arkansas at Jonesboro and is a New York State certified weighmaster. (Id.) Tausz also teaches accident investigation and reconstruction to other officers. (Id.) Tausz, however, does not have a bachelor’s or other degree in automotive engineering, specifically in brake and tire systems. (Def. Farm Service Rule 56.1 Stmt. ¶¶ 39-40.)

FN7. Sergeant Gullery, the supervisor of Finn and Tausz, also participated in the investigation. (Def. Farm Service Rule 56.1 Stmt. ¶ 12.)

FN8. The other tickets issued to Jones were for crossing a double yellow line, driving at an unreasonable speed and failing to affix the required highway use tax sticker to the tractor’s front bumper. (Def. Farm Service Affm., Ex. 9 at 22-23.)

With respect to the trailer’s tires, the tickets were issued for excessive wear and tear on the right-outer tire on the fourth axle and the right-outer tire on the fifth axle. (Def. Farm Service Rule 56.1 Stmt. ¶¶ 21, 25.) Finn based his determination that the tires were unsafe on a visual assessment of the tires, and their wear and tear, but he did not actually measure the tread depth of the tires. [FN9] (Def. Farm Service Rule 56.1 Stmt. ¶¶ 22-23; Pl. Rule 56.1 Stmt. ¶ 26.) In his post-accident investigation, Tausz determined that three or four of the trailer’s eight tires were unsafe, and that the tire tread on those tires was less than 1/32″ at the point of measurement, although he does not recall which specific tires were unsafe other than those two that were the subject of the citations issued by Finn. (Pl. Rule 56.1 Stmt. ¶¶ 22-24; Def. Farm Service Rule 56.1 Stmt. ¶ 42.) Tausz also determined that the truck was traveling at an unreasonable speed based on road and weather conditions, as well as the fact that the trailer entered the oncoming lane; he did not, however, actually calculate the speed of either vehicle or the “critical curve speed” [FN10] as part of his investigation. (Def. Farm Service Rule 56.1 Stmt. ¶ 45.) Tausz concluded that adequate tread depth is necessary on all of the trailer’s tires in order to maintain traction and prevent skidding, and that the inadequate tread depth combined with the unreasonable speed to cause the trailer’s skid into the oncoming lane and the resulting accident. [FN11] (Pl. Rule 56.1 Stmt. ¶ 45.)

FN9. Finn does not carry a tire tread depth gauge as part of his regular equipment. (Def. Farm Service Rule 56.1 Stmt. ¶ 24.)

FN10. The “critical curve speed” is the speed, dependent on vehicle and road conditions, at which a vehicle being driven through a curve will go out of control under all circumstances. (Def. Farm Service Affm., Ex. 10 at 38.)

FN11. Defendants have proffered an expert who has arrived at a contrary conclusion with respect to the effect of the trailer’s worn tires. Dr. Christopher Shapley, an automotive engineer, stated in his report that, in his opinion to a reasonable degree of engineering certainty, the worn tires did not affect the outcome of the accident because the trailer’s movement was caused by “trailer swing.” Trailer swing occurs when all of the trailer tires lock up, a frequent occurrence with truck air brakes on wet pavement, especially with a light, unloaded trailer. Shapley opined that once lockup occurs, tire tread depth is irrelevant to cornering traction. Indeed, Shapley noted that even those tires that had adequate tread had locked up as well. (Def. Farm Service Affm., Ex. 15.)

Another expert proffered by defendants is James Gardner, a mechanical engineer who specializes in tire design and construction. Gardner reviewed photographs of the truck’s tires. He concluded that none of the tires showed wear substantially beyond the normal removal point of 2/32″ of remaining tread depth, and also that none of the tires showed wear into its steel fabric. He stated that all of the truck’s tires retained visible grooves in the tread area. (Id., Ex. 18.)

The trailer was owned by Hribar, who leased it to Farm Service. [FN12] (Def. Farm Service Rule 56.1 Stmt. ¶ 47.) Farm Service maintains all of its tractors and trailers regularly, whether owned or leased. (Id. ¶ 64.) It relies on its head mechanic Bryant Griffin, an experienced truck mechanic who is certified by the United States Department of Transportation, to perform federally-mandated inspections of tractors and trailers. (Id. ¶ 63.) Each trailer, including the one at issue in this case, is returned to the Farm Service terminal yard in Marengo, Illinois every two weeks for inspection and maintenance by Griffin. (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶¶ 3-4.) Griffin stated that he personally inspects, inter alia, each vehicle’s tires, brakes, lights and air suspensions . [FN13] (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶¶ 3-4.) Indeed, Griffin last inspected the trailer at issue in the instant case, including its tires, on May 28, 2002, less than two weeks prior to the accident. (Def. Farm Service Rule 56.1 Stmt. ¶ 66; Def. Farm Service Affm., Ex. 13 ¶ 5.) He “aired up” the tires, but did not find them in need of replacement at that time. (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶¶ 12-13.) Moreover, Griffin performed a full federal inspection of the trailer on April 8, 2002, completed the required report and certified that it, including the tires, passed inspection in accordance with 49 C.F.R. § 396. [FN14] (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶ 12.) After the accident, Hribar repaired the trailer and leased it to another customer, although we note that the record remains unclear as to whether the tires at issue were changed prior to the subsequent lease. (Pl. Rule 56.1 Stmt. ¶ 11; Pl. Affm., Ex. O at 22-36, 52.)

FN12. Defendant Hribar delivered the trailer at issue to Farm Service on February 16, 2001, and did not regain possession of the trailer until after the accident in June 2002. Prior to delivery, Hribar had inspected the trailer and its tires on February 15, 2001 and found them to be in good condition. After delivery, the lease agreement required Farm Service to perform the mandatory annual inspection, or to return the trailer to Hribar who would do the inspection at no charge to Farm Service. The lease agreement also required Hribar to provide tires for the trailer, but Farm Service was responsible for actually changing and repairing the tires. Additionally, an oral agreement between Farm Service and Hribar required that only new and not recapped tires would be used for replacements. (Def. Hribar Rule 56.1 Stmt. ¶¶ 10-17; Def. Hribar Affm., Exs. B at 16, D ¶ 2, F at 17, G at 38, H.)

FN13. Griffin stated that “if a tire on a tractor or trailer has insufficient tread, I replace the tire. I do not knowingly allow any vehicle to leave the Farm Service yard if it is not in the proper condition as required by the United States Department of Transportation.” (Def. Farm Service Affm., Ex. 13 ¶ 3.)

FN14. The Department of Transportation’s inspection requirements are prescribed under 49 C.F.R. § 396. With respect to inspections performed pursuant to that chapter, the minimum safety requirements for tires are prescribed by 49 C.F.R. § 393.75, which provides that “[n]o motor vehicle shall be operated on any tire that (1) has body ply or belt material exposed through the tread or sidewall, (2) has any tread or sidewall separation, (3) is flat or has an audible leak, or (4) has a cut to the extent that the ply or belt material is exposed.” 49 C.F.R. § 393.75(a). Tires on the “front wheels of a bus, truck, or truck tractor shall have a tread groove pattern depth of at least 4/32 of an inch when measured at any point on a major tread groove. The measurements shall not be made where tie bars, humps, or fillets are located.” 49 C.F.R. § 393.75(b). Other tires, such as those on the trailer at issue in the instant case, “shall have a tread groove pattern depth of at least 2/32 of an inch when measured in a major tread groove. The measurement shall not be made where tie bars, humps or fillets are located.” 49 C.F.R. § 393.75(c).

DISCUSSION

I. Summary Judgment Standard

Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson, 477 U.S. at 247- 50. The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson, 477 U.S. at 248. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See id. at 255. To defeat summary judgment, the nonmovant must go beyond the pleadings and “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court’s role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994).

II. New York Law Re: Punitive Damages

We conclude that, even resolving all ambiguities and drawing all permissible inferences in her favor, under well established principles of New York law, [FN15] plaintiff has not offered sufficient evidence to sustain a reasonable jury verdict awarding her punitive damages. Indeed, “[t]he standard for an award of punitive damages in New York is a demanding one. Plaintiff must show the defendant’s conduct to be ‘so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others’ and that the conduct demonstrates a ‘high degree of moral culpability.” ‘ West v. Goodyear Tire & Rubber Co., 973 F.Supp. 385, 387 (S.D.N.Y.1997) (citing Rinaldo v. Mashayekhi, 185 A.D.2d 435, 585 N.Y.S.2d 615 (3d Dep’t 1992)). Indeed, “New York courts have used a variety of phrases to describe the ‘moral culpability’ that will support punitive damages for nonintentional torts including ‘utter recklessness,’ Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282, 296 (1872); ‘reckless and of a criminal nature, and clearly established,’ Cleghorn v. New York Cent. & H.R.R.R., 56 N.Y. 44, 48 (1874); ‘wanton or malicious, or gross and outrageous,’ or ‘a design to oppress and injure,’ Powers v. Manhattan Ry., 120 N.Y. 178, 182, 24 N.E. 295 (1890); ‘conscious indifference to the effect of his acts,’ Gostkowski v. Roman Catholic Church of the Sacred Hearts of Jesus & Mary, 262 N.Y. 320, 323, 186 N.E. 798 (1933); action ‘committed recklessly or wantonly, i.e., without regard to the rights of the plaintiff, or of people in general,’ Soucy v. Greyhound Corp., 27 A.D.2d 112, 276 N.Y.S.2d 173, 175 (3d Dep’t 1967).” West, 973 F.Supp. at 387. Indeed, as Judge Owen of the Southern District of New York observed in West, in New York, “even where there is gross negligence, punitive damages are awarded in singularly rare cases such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public.” Id. (citing Karen S. v. Streitferdt, 172 A.D.2d 440, 568 N.Y.S.2d 946, 947 (1st Dep’t 1991) (citations omitted, internal quotation marks omitted)). Indeed, the Southern District has held that a plaintiff seeking punitive damages in New York must prove the existence of these factors by a preponderance of the evidence. See Greenbaum v. Svenska Handelsbanken, NY, 979 F.Supp. 973, 982-83 (S.D.N.Y.1997) (identifying and resolving conflicting standards for the punitive damages burden of proof).

FN15. “A federal court sitting in diversity must apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir.1989)…. In the instant case, both parties have assumed that New York law governs, as evidenced, for example, by reliance on New York law to support their respective contentions. [Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 137 (2d Cir.1991) ]. See also Walter E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50, 52 (2d Cir.1984) (under New York law, “in the absence of a strong countervailing public policy, the parties to litigation may consent by their conduct to the law to be applied.”); M.H. Segan Ltd. P’ship v. Hasbro, Inc., 924 F.Supp. 512, 522 (S.D.N.Y.1996) (same). We likewise assume that New York law governs this dispute.” Coastal Aviation, Inc. v. Commander Aircraft Co., 937 F.Supp. 1051, 1059-60 (S.D.N.Y.1996) (Conner, J.), aff’d, 108 F.3d 1369 (2d Cir.1997).

III. Claims for Punitive Damages Against Farm Service and Jones

We first consider plaintiff’s claims for punitive damages against Farm Service and Jones. Defendants contend that plaintiff has, as a matter of law, failed to establish that they acted with the degree of moral culpability requisite for the imposition of punitive damages, and that she has at most proven their ordinary negligence. (Def. Farm Service Mem. Supp. Partial Summ. J. at 15-16.) Indeed, they cite Farm Service’s regular maintenance program, Jones’s appropriate experience and qualifications for operating the tractor- trailer and Jones’s conduct in attempting to avoid the accident by crashing the tractor into a guardrail as evidence of their lack of moral culpability. (Id. at 15-16.) Plaintiff, in response, claims that defendants were aware of the tires’ condition because of their inspections and that it was reckless to put the trailer on the road with worn tires. (Pl. Mem. Opp. Partial Summ. J. at 6-7.) Plaintiff also cites the unreasonable speed ticket given to Jones after the accident, and claims that it was wanton and reckless for Farm Service to employ him and allow him to drive the truck in light of his driving record, which plaintiff claims demonstrates Jones’s “disregard for public safety and applicable rules and regulations.” See also supra note 3. (Pl. Mem. Opp. Partial Summ. J. at 8-11.) We agree with defendants, and we conclude as a matter of law that their actions do not evidence the degree of recklessness and wantonness requisite for an award of punitive damages. [FN16]

FN16. Plaintiff devotes a large section of her brief to an attack on Farm Service’s hiring practices, namely claiming that it wantonly and recklessly failed to investigate Jones’s driving record, as required by Department of Transportation regulations, prior to and during the course of his employment as a Farm Service driver. (Pl. Mem. Opp. Partial Summ. J. at 9-15.) Defendants claim in response that this is an alternate theory of liability that is superfluous and prejudicial because Farm Service remains vicariously liable for compensatory damages incurred as a result of Jones’s ordinary negligence. (Def. Farm Service Reply Mem. Supp. Partial Summ J.at 8-9.) Plaintiff’s complaint, however, alleges clearly that Farm Service’s hiring of and entrustment of a truck to Jones were wanton and reckless. (Complt.¶¶ 44-45.) We, therefore, address these claims because “[g]enerally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee’s negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention…. This is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training…. [A]n exception exists to this general principle where the injured plaintiff is seeking punitive damages from the employer based on alleged gross negligence in the hiring or retention of the employee.” Karoon v. New York City Transit Authority, 241 A.D.2d 323, 324, 659 N.Y.S.2d 27 (1st Dep’t 1997) (citations omitted).

Beyond the general hornbook principles discussed supra, a brief review of the cases addressing when punitive damages are warranted in the context of motor vehicle accidents is instructive because it illuminates just how truly wanton and outrageous a defendant’s conduct must be to justify their imposition. We begin with Soucy, which warrants discussion because it is heavily cited by all parties. In Soucy, the Appellate Division, Third Department affirmed the Supreme Court’s order allowing the plaintiff leave to file an amended complaint with an added claim seeking exemplary, or punitive, damages. 27 A.D.2d at 113. Soucy arose out of a motor vehicle accident in which a bus between Albany and New York rolled over on the New York Thruway. Id. at 112. The plaintiffs alleged that the bus was old, and was pressed into service for the trip when the regularly scheduled bus was filled. Id. Indeed, the plaintiffs’ allegations in Soucy presented a grim picture; they alleged that the bus had over 600,000 miles on the odometer, that its tires were so worn that the fabric was exposed, that it was speeding, that the clutch and gear shift were defective to the point that the bus could not be operated in reverse gear and that it did not have functioning windshield wipers. Id. at 112-13. The Appellate Division held that these factual allegations, if proven, would create a jury question as to whether the requisite wantonness and recklessness existed to justify the imposition of punitive damages, particularly in light of the bus company’s status as a common carrier, with the accompanying highest duty of care that it owed to its passengers. Id. at 113. Thus, on the basis of these facts, the court affirmed the trial court’s order allowing the plaintiffs to amend their complaint and seek exemplary damages.

Potts v. Benjamin, 882 F.2d 1320, 1326-27 (8th Cir.1989), is another example of the truly wanton and outrageous conduct that justifies the rare imposition of punitive damages. Potts was a case wherein a tractor-trailer truck had two other trucks “piggybacked” onto it, and that truck ultimately collided with cars on an interstate highway, injuring many people and killing a child. Id. at 1321. The Eighth Circuit concluded that sufficient evidence existed to warrant sending the plaintiffs’ punitive damage claims to the jury under Arkansas law, noting that there was evidence that the defendants, who included the seller of the truck, had “knowingly rendered the brakes on the two ‘piggy-backed’ trucks inoperative.” Id. at 1327. The Eighth Circuit also noted that one of the defendants had stated expressly before the jury that he felt no personal responsibility for the safety of the public when he put a truck on the road. Id. at 1327 n.10. The court concluded that “[t]he jury was entitled to find that in these circumstances defendants knew or ought to have known that their placing the three-truck unit onto an interstate freeway system is conduct that will naturally and probably result in injury when, as happened here, the driver requires maximum braking power in the face of a hazard of the road, and that they nevertheless did so with reckless disregard for the consequences.” Id. at 1327. Thus, it distinguished the case from another truck accident wherein the trucking company had a regular inspection policy and affirmed the judgment of the district court awarding punitive damages to the plaintiffs. See also Austin v. C & L Trucking, Inc., 610 F.Supp. 465, 472-73 (D.Nev.1985) (holding in truck accident case that there was sufficient evidence to support a jury verdict awarding punitive damages when the driver knowingly drove a tractor-trailer with defective brakes).

Another illustrative pair of cases comes from Indiana. In Purnick v. C.R. England, Inc., 269 F.3d 851, 852-54 (7th Cir.2001), a tractor-trailer driver rear-ended the plaintiff’s car. Id . at 852. Pursuant to the relevant federal regulations, truck drivers may not spend any more than ten continuous hours on duty; the driver was approaching his tenth hour. Id. The evidence at trial showed that the driver had falsified his written trip logs and had driven beyond the limit several times in the week preceding the accident; he admitted that he was ” ‘mesmerized’ by the road [at the time of the accident], did not brake until after impact, and could not recall when he first saw the vehicle.” Id. The district court granted the defendants’ motion to dismiss the plaintiff’s punitive damages claim, and the Seventh Circuit affirmed, concluding that under Indiana’s punitive damages standard, which is similar to that of New York, [FN17] “[e]ven assuming that [plaintiff] has shown that [the driver] falsified his logs, drove beyond the ten-hour limit several times in the week preceding the crash and was fatigued when he hit her car, she presents no evidence that Belgrade actually knew that his misconduct would probably result in injury.” Id. at 853.

FN17. “A court will impose punitive damages under Indiana law if a defendant knew of, but consciously disregarded, the likely injurious consequences of his course of conduct.” Purnick, 269 F.3d at 853-54 (internal quotation marks omitted). The Court is aware, however, that Indiana imposes a higher evidentiary burden than New York’s preponderance of the evidence standard, and requires the plaintiff to prove her entitlement to punitive damages by “clear and convincing evidence that the defendants subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.” Id. at 854 (internal quotation marks omitted); see also Greenbaum, 979 F.Supp. at 982-83 (New York burden of proof).

Another instructive case from Indiana is Wanke v. Lynn’s Transp. Co., 836 F.Supp. 587 (N.D.Ind.1993), another truck accident, wherein the district court granted the defendants’ motion for partial summary judgment and dismissed the plaintiff’s claim for punitive damages. Id. at 606. In Wanke, the defendant trucking company had: (1) failed to inquire about the driver’s record (which showed multiple suspensions); (2) failed to follow its own policy by hiring a less experienced driver; (3) falsely certified to the Department of Transportation that the driver had taken a driving test, and also helped the driver cheat on the required written test; and (4) cancelled the driver’s drug test immediately after his accident, even though he was acting strangely. Id. at 601-05. Moreover, the defendant driver had been speeding by entering a curve in a 35 mile-per-hour zone at 60 miles per hour. Id. at 605. Nevertheless, the court concluded that these factors, even if taken as true, did not even in concert “constitute clear and convincing evidence of heedless indifference,” and granted the defendants’ motion for partial summary judgment on the issue of punitive damages. Id.

Finally, New York’s treatment of a driver’s intoxication with respect to punitive damages is instructive because it demonstrates just how high the punitive damages threshold is. Although driving while intoxicated by itself constitutes a crime, and thus seemingly would satisfy the requirement that the defendant’s actions be “reckless and of a criminal nature, and clearly established,” Cleghorn, 56 N.Y. at 48, this is not the case. In New York, it is well established that “[e]vidence that a defendant was driving while intoxicated will not by itself justify the imposition of punitive damages.” Parkhill v. Cleary, 305 A.D.2d 1088, 1090, 759 N.Y.S.2d 262 (4th Dep’t 2003). The requisite showing of “wanton or reckless conduct” requires more than intoxication; the plaintiff must prove conduct of that nature, in addition to intoxication, in order to present a jury question. Id. (concluding that defendant’s prior DWI conviction and conviction arising out of that accident, as well as the fact that he was speeding and passed through a stop sign when he collided with plaintiff’s vehicle, created an “issue of fact whether defendant’s conduct was so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others” (internal quotation marks omitted)); see also Arumugam v. Smith, 277 A.D.2d 979, 716 N.Y.S.2d 518 (4th Dep’t 2000) (holding that trial court properly denied the defendant’s partial summary judgment motion because his driving at an excessive speed while intoxicated presented a question of fact for the jury on the plaintiff’s punitive damages claim). In any event, we view the proposition that the dangerous and socially abhorrent act of driving while intoxicated does not, by itself, justify the imposition of punitive damages as illustrative of the extraordinarily high barrier that the plaintiff in the instant case must surmount in order to present this claim to the jury.

Viewed in light of the foregoing cases, we conclude that the conduct of Farm Service and Jones does not, as a matter of law, rise to the level of wantonness and moral culpability required for the imposition of punitive damages. First and foremost, the trailer in the instant case, even with its worn tires, does not approach the dangerous level of decrepitude exhibited by the bus in the Soucy case; indeed, the worn tires on the trailer have visible, although shallow, tread grooves, while the Soucy bus’s tires were worn entirely to the fabric. Moreover, as defendants point out, before and during his employment with Farm Service, Jones’s driving record, while not pristine, was nevertheless devoid of accidents and reckless driving convictions. Furthermore, plaintiff has not presented evidence of wantonness rising to the level of Potts and Austin, wherein the defendants knowingly operated tractor-trailers with defective and plainly inadequate brakes. Given the high degree of wantonness, malice and conscious disregard for the rights and safety of others needed for the imposition of punitive damages in New York, and the fact that we cannot say that defendants’ conduct rises even to the level of recklessness and conscious disregard for public safety found in the aforementioned Indiana cases wherein punitive damages were not awarded, we conclude that the instant case is not one of the “singularly rare” situations wherein punitive damages are legally sustainable. West, 973 F.Supp. at 387.

IV. Claims for Punitive Damages Against Hribar

We next consider plaintiff’s claim for punitive damages against defendant Hribar, the owner of the trailer. Hribar, relying primarily on Ingle v. Mark, 58 Misc.2d 895, 896, 296 N.Y.S.2d 664 (Sup.Ct. Queens Co.1969), claims that N.Y. VEH. & TRAFF. LAW § 388, which imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his permission, does not provide a basis for an award of punitive damages. (Def. Hribar Mem. Supp. Partial Summ. J. at 7-8.) Hribar also contends that the evidence establishes that it did not commit any act of negligence, let alone the “outrageous” conduct needed for the imposition of punitive damages. (Id. at 16-17.) In response, plaintiff claims that Hribar ratified the use of unsafe tires on the trailer after the accident and recklessly failed to inspect the trailer or determine whether Jones was a fit driver, as was provided under its contract with Farm Service. (Pl. Mem. Opp. Partial Summ. J. at 4, 15-17.) We agree with Hribar, and grant its motion for partial summary judgment dismissing plaintiff’s punitive damages claims against it.

We conclude that N.Y. VEH. & TRAFF. LAW § 388 does not subject Hribar to punitive damages for any conduct by its lessee Farm Service, or the lessee’s employee Jones, because Ingle remains good law. See Poulard v. Papamihlopoulos, 254 A.D.2d 266, 268, 678 N.Y.S.2d 383 (2d Dep’t 1998) (citing Ingle for the proposition that “because Papamihlopoulos cannot be held liable for punitive damages based on Papas’s operation of her vehicle, the plaintiff’s motion [to amend her complaint to add a punitive damages claim] should have been denied.”). Thus, “the owner of the vehicle is under no liability for the operator’s negligence save that which is imposed on him by the provisions of the Vehicle and Traffic Law. Since the statute is in derogation of the common law, it may not be presumed to make any innovation upon the common law further than is required by the mischief to be remedied. If the Legislature had intended to subject an owner to liability for punitive damages because of the driver’s conduct, it would have included such a provision in said statute.” Ingle, 58 Misc.2d at 896 (internal quotation marks omitted). We, therefore, follow Ingle and the more recent Poulard decision, and we conclude that N.Y. VEH. & TRAFF. LAW § 388 does not subject Hribar to punitive damages for any conduct by its lessee Farm Service, or the lessee’s employee, Jones. Accordingly, we now turn to plaintiff’s claims of actual recklessness on the part of Hribar.

We first address plaintiff’s claim that Hribar’s “reckless post-accident ratification of the use of the unsafe tires on the trailer warrants an award of punitive damages.” (Pl. Mem. Opp. Partial Summ. J. at 15.) Even if we assume without deciding that this allegation is true, it is irrelevant for the purpose of determining whether punitive damages are warranted. See Boykin v. Mora, 274 A.D.2d 441, 442, 711 N.Y.S.2d 904 (2d Dep’t 2000) (holding that defendant’s flight from accident scene may not be considered in support of punitive damages because while “it might be considered reprehensible, such conduct did not proximately cause any of the plaintiff’s injuries”); Camillo v. Geer, 185 A.D.2d 192, 194, 587 N.Y.S.2d 306 (1st Dep’t 1992) (holding in products liability action, “it was clearly improper for the trial court to allow plaintiffs to argue, and the jury to consider, evidence of FMC’s post-accident recall of the aluminum sheaves and the alleged inadequacies of that recall in determining whether defendant’s conduct was so outrageously culpable as to warrant the imposition of punitive damages.”). We, therefore, conclude that Hribar’s post-accident actions with respect to the trailer are irrelevant for the purpose of determining whether its conduct warrants the imposition of punitive damages.

We next turn to plaintiff’s claims that Hribar recklessly failed to investigate Jones’s qualifications to operate a truck as was provided under the contract with Farm Service, [FN18] and that Hribar recklessly failed to inspect or order the annual inspection of the trailer until three months after it was due. (Pl. Mem. Opp. Partial Summ. J. at 16.) Plaintiff also claims that Hribar’s decision to not check Griffin’s qualifications before allowing Farm Service to inspect the truck was reckless and that the inspection that Hribar performed on the truck in 2001 prior to delivery was reckless because it contained subjective terms such as “OK” and “good,” rather than actual tire measurements. (Id. at 16-17.) We conclude that when viewed in light of the existing case law governing the imposition of punitive damages in the context of motor vehicle accidents, plaintiff’s allegations with respect to Hribar, taken as true, simply do not meet the high degree of wantonness and conscious disregard for the rights of others that is required. The evidence offered in support of plaintiff’s claims proves at most that Hribar was negligent in certain of its business practices. As a matter of law, it fails to prove that Hribar undertook those actions with the requisite high degree of moral culpability; that is, with malice, utter wanton negligence and with a conscious disregard of the harm that its actions would cause to others. We therefore grant Hribar’s motion for partial summary judgment and we dismiss plaintiff’s claim for punitive damages against it.

FN18. The relevant contract provision provides: “DRIVERS. Customer shall cause each vehicle to be operated solely by a safe and careful licensed driver, at least 25 years of age and selected by and under the order directions, employment, pay and control of the Customer. The Customer shall cooperate with Hribar in making such drivers operate such vehicle with reasonable care. Upon written complaint from Hribar specifying any reckless, careless, or abusive handling of any vehicles leased hereunder, Customer shall remove such driver or drivers, substitute careful and safe drivers as soon as is reasonably possible.” (Def. Hribar Affm., Ex. D ¶ 11.)

CONCLUSION

For all of the foregoing reasons, we grant defendants’ motions for partial summary judgment dismissing plaintiff’s punitive damages claims.

SO ORDERED.