United States District Court,

M.D. Pennsylvania.

Moira TUCK, Administratrix of the Estate of Andrew G. Tuck, deceased, Plaintiff

v.

Jarred Alan CALHOUN and Knight Transportation, Inc., Defendants

v.

National Freight, Inc.; Mark Cunningham; and Luzerne County, Pennsylvania, Third-Party Defendants.

 

No. 3:08cv2213.

Feb. 2, 2011.

 

MEMORANDUM

JAMES M. MUNLEY, District Judge.

Before the court for disposition are a motion for summary judgment filed by Defendant Luzerne County and a motion for partial summary judgment filed by Defendants Jarred Alan Calhoun and Knight Transportation, Inc. The motions have been fully briefed and are ripe for disposition.

 

Background

The general background facts are largely undisputed by the parties. Plaintiff’s Decedent, Andrew G. Tuck, died in an truck/motorcycle accident on June 12, 2008. On that day, Tuck was operating a 2005 Buell motorcycle. He was stopped on the motorcycle behind a 2008 Peterbilt tractor truck which in turn was stopped at a traffic light on Crestwood Drive, Wright Township, Luzerne County, Pennsylvania. The traffic light was at the intersection of Crestwood Drive and State Route 309. Defendant Jarred Calhoun was operating the tractor for its owner, Defendant Knight Transportation, Inc.

 

A National Freight tractor trailer operated by Third-Party Defendant Mark Cunningham approached the intersection on Route 309 and made a right hand turn at the intersection from Route 309 onto Crestwood Drive. Calhoun put his Peterbilt in reverse gear and backed up, evidently to provide more room for Cunningham to make the turn. In backing up, the Peterbilt tractor rolled over both Tuck and his motorcycle. Tuck sustained fatal injuries.

 

Based upon these facts, the plaintiff filed the instant action raising the following five counts: Count I-negligence against Calhoun and Knight; Count II-negligence against Knight; Count III-punitive damages against Calhoun and Knight; Count IV-wrongful death against Calhoun and Knight; and Count V-a Survival Action against Calhoun and Knight. (Doc. 1, Compl.).

 

On June 9, 2010, plaintiff filed an amended complaint that raises the same causes of action. (Doc. 77, Amended Compl.).

 

Calhoun and Knight then filed a Third-Party Complaint against National Freight, Inc.; Mark Cunningham; Luzerne County, Pennsylvania and Pennsylvania Department of Transportation (hereinafter PennDOT). The Third-Party Complaint raises the following four counts: Count I-negligence against Calhoun; Count II-negligence against National Freight, Inc.; Count III-negligence against Defendant Luzerne County, Pennsylvania; and Count IV-negligence against PennDOT. (Doc. 13, Third-Party Compl.) PennDOT filed a motion for dismissal from the case, which the court granted. (Doc. 48, Court Order dated Oct. 6, 2009).

 

After the close of discovery, Defendant Luzerne County filed a motion for summary judgment with regard to the Third-Party Complaint. (Doc. 54). Defendants Calhoun and Knight filed a joint motion for partial summary judgment (Doc. 60) and Defendants National Freight and Cunningham moved to join in that motion. (Doc. 63). These motions are now ripe for disposition.

 

Jurisdiction

This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. Because we are sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir.2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

 

Standard of review

Granting summary judgment is proper if 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 that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir.1997) (citing FED. R. CIV. P. 56(c)). “[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

 

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party.   Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant’s burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

 

Discussion

As noted above, the original defendants and Third-Party Defendant Luzerne County have filed motions for summary judgment. We will address each separately beginning with Luzerne County’s motion.

 

I. Luzerne County’s Motion for Summary Judgment

Third-Party Defendant Luzerne County raises the following five issues: 1) no record facts establish negligence on its part; 2) no evidence supports the assertion that the subject intersection was improperly designed, constructed and/or maintained; 3) even if Luzerne County breached a duty owed to the plaintiff, such a breach was not the proximate cause of the accident; 4) governmental immunity shields Luzerne County from liability; and 5) the alleged defective condition of the intersection did not cause the fatal injuries at issue. We will address only issue number one as we find it is dispositive.

 

Issue one is intertwined with issues two and three, and thus the court will discuss those topics as necessary to fully analyze the first issue.

 

The Third-Party Complaint filed by Jarred Alan Calhoun and Knight Transportation, Inc., (hereinafter “Third-Party Plaintiffs”) asserts a negligence cause of action against Luzerne County. Luzerne County now argues that judgment in its favor is appropriate as the Third-Party Plaintiffs cannot establish any of the elements of negligence.

 

The original plaintiff asserts no causes of action against Luzerne County.

 

Under Pennsylvania Law, the elements of negligence are: “(1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Grossman v. Barke, 868 A.2d 561, 566 (Pa.Super.Ct.2005).

 

The Third-Party Plaintiffs allege that Luzerne County was negligent in failing to maintain the intersection of Crestwood Drive and State Route 309 in a reasonable and safe condition; failing to use proper engineering and design standards with regard to pavement markings; failing to use reasonable care in ascertaining the danger of the condition created by its failure to use proper engineering and design standards; failing to properly inspect, maintain and/or keep safe the intersection; failing to warn the public of the dangers of the intersection; and failing to remedy the dangerous condition at the intersection. (Doc. 13, Third-Party Compl. ¶ 31).

 

Generally, the Third-Party Plaintiffs assert that Luzerne County was negligent in failing to use proper engineering and design standards with regard to pavement markings in the westbound lane of Crestwood Drive at the intersection of State Route 309. Specifically, they allege that the “stop bar” painted on the roadway lane directing vehicles to stop at a certain point when the traffic signal is red was placed too close to the intersection. According to the Third-Party Plaintiffs, the “stop bar” allowed vehicles to park so close to the intersection that tractor trailers could not safely turn onto Crestwood Drive from Route 309.

 

The law provides that a county has a duty to make its highways reasonably safe for their intended purpose. McCalla v. Mura, 538 Pa. 527, 649 A.2d 646 (Pa.1994). This obligation on the part of the county can extend to placing appropriate traffic-control devices, such as the “stop bar” at issue. Starr v. Veneziano, 747 A.2d 868, 873 (Pa.2000). A plaintiff must demonstrate three elements to establish that a local government agency had a duty to install a traffic control device. Id. These elements are:

 

1) the municipality had actual or constructive notice of the dangerous condition that caused the plaintiff’s injuries;

 

2) the pertinent device would have constituted an appropriate remedial measure; and

 

3) the municipality’s authority was such that it can fairly be charged with the failure to install the device.

 

Id.

 

Third-Party Plaintiffs argue that these elements have been met. We disagree, and our analysis follows.

 

1. Actual or constructive notice

The first issue is whether the county had actual or constructive notice of the alleged dangerous condition; that is, that the stop bar and the lane lines defining the left-turn lane were placed too close to the intersection. Id. The Third-Party Plaintiffs assert that Luzerne County had constructive notice of the dangerous condition. The parties do not dispute that the stop bar and lines at issue had been worn almost completely away by repeated encroachment on the left turn lane by vehicles turning off of Route 309 onto Crestwood Drive. These lines were located on the road maintained by the county. The Third-Party Plaintiffs argue that had they been placed a sufficient distance from the intersection vehicles turning onto Route 309 would not have had to drive over them and the lines would not have worn away. The Third-Party Plaintiffs argue that the county had sufficient opportunity to notice this condition when salting the roadway in the winter. Based upon these facts, a jury could conclude that Luzerne County had constructive notice of the condition at issue.

 

2. Pertinent device was an appropriate remedial measure

The second factor is whether the pertinent device would have constituted an appropriate remedial measure. Starr, 747 A.2d at 873. The “pertinent device” in the instant case is a stop bar and other appropriate road markings placed farther back from the intersection to provide a safe turning radius for trucks turning onto Crestwood Drive. The Third-Party Plaintiffs cite to no expert testimony as to whether a stop bar placed farther from the intersection would have prevented the accident.

 

Instead, the Third-Party Plaintiffs assert that, prior to the accident, PennDOT commissioned an engineering study of the intersection and began a construction project that eventually made it easier for tractor trailer trucks to turn right off of State Route 309 onto Crestwood Drive. The Third-Party Plaintiffs argue that “[t]he intersection drawings utilized by PennDOT’s engineering consultants demonstrate that the Westbound left-turn lane was located too closely to the intersection[.]” (Doc. 66, Brief at 9). Luzerne County, points out, however, that the Third-Party Plaintiffs have presented no relevant evidence that the markings were negligently designed, constructed or maintained. Indeed, the Third-Party Plaintiffs cite to no expert report for this proposition and Steven W. Rickard, expert witness for Defendants National Freight, Inc. and Mark Cunningham, stated that “I find no design fault with the intersection at the accident site that caused or contributed to the occurrence of this accident.” (Doc. 54-4, Rickard Report at 53). Moreover, the Third-Party Plaintiffs’ own expert report fails to indicate that the accident occurred due to improper engineering and design standards relating to pavement markings. Rather, the report indicates that: “The right turn from SR 309 onto Crestwood Drive was evaluated utilizing specifications of typical tractor-trailers…. The engineering analysis indicates that the geometry of the roadway is such that if the tractor-trailer operator makes a turn tight enough, a typical tractor-trailer can negotiate the right turn without encroaching into the exclusive left-turn lane of Crestwood Drive. The tight turn would involve having the right side trailer tires move as close as practical to the right edge of the paved surface.” (Doc. 54-3, Schorr Report at 65, ¶ 28). The Third-Party Plaintiffs also submitted the report of Dennis A. Toaspern regarding the accident. His report does not provide any findings to support the Third-Party Plaintiffs’ claims. (Doc. 54-4, Dennis Toaspern Report at 19-31).

 

The Third-Party Plaintiffs have not presented sufficient evidence for a jury to conclude that the movement of the stop-bar would have been an appropriate remedial measure to prevent the accident. They merely cite to an engineering study by PennDOT which determined that the stop bar would be placed farther back. The Third-Party Plaintiffs cite nothing in the study to indicate that the bar’s initial location was unsafe and the various experts opine that the placement of the stop bar was not the cause of the accident.

 

3. The municipality’s authority to make the changes

The final factor is whether the municipality’s authority is such that it can fairly be charged with the failure to install the lines. Starr, 747 A.2d at 873. The Third-Party Plaintiffs have not presented such evidence. From the evidence presented, it appears that PennDOT, not Luzerne County, was charged with painting and placing the lines.

 

Luzerne County argues that it was not responsible for the design or construction of the subject intersection, therefore, it owed no duty to the plaintiff’s decedent. Luzerne County asserts that the PennDOT bears the duty of erecting and maintaining traffic control devices, including pavement markings on the subject roadway. After a careful review, we agree and find that the Third-Party Plaintiffs have failed to establish that Luzerne County owed a duty to the plaintiff in the instant case.

 

The law provides:

 

Erection of traffic-control devices at intersections

 

The department on State-designated highways including intersections with local highways, and local authorities on intersections of highways under their jurisdiction may erect and maintain stop signs, yield signs or other official traffic-control devices to designate through highways or to designate intersections at which vehicular traffic on one or more of the roadways should yield or stop and yield before entering the intersection.

 

75 PENN. CONS.STAT. ANN.. § 6124.

 

As the accident at issue took place at the intersection of a state-designated highway and a local highway, the state had the authority to erect traffic control devices. Id. The Third-Party Plaintiffs have cited to no authority to indicate that Luzerne County is granted the discretion to do so. Accordingly, they cannot be held to have a duty to the plaintiff to provide safe traffic control devices.

 

In fact, at approximately the time of the subject accident, PennDOT was engaged in a construction project at this intersection which included painting the stop bar on the roadway. Third-Party Defendant Luzerne County was not involved with this construction project. (Doc. 54-2, Luzerne County Ex., Dep. of Jeffrey Novitski, Assistant Construction Manager for PennDOT, at 59). Luzerne County’s Chief Engineer, Joseph Gibbons, indicated that Luzerne County was not involved with this project at all. (Doc. 54-2, Luzerne County’s App. at 58a, Gibbons Dep. at 39).

 

Based upon our review of these factors, we find that Luzerne County did not owe a duty to the plaintiff with respect to the placement of the stop bar. While the jury might conclude that Luzerne County had constructive notice of the condition of the painted bars, Third-Party Plaintiffs have not provided evidence that placing the stop bar farther back would have been an appropriate remedial action in the instant case or that Luzerne County had the authority to make the changes. Thus, judgment will be granted to Luzerne County, and it shall be dismissed from this case.

 

II. Defendant Jarred Alan Calhoun and Knight Transportation, Inc.’s motions for partial summary judgment

The second motion is a motion for partial summary judgment filed by Defendants Jarred Alan Calhoun and Knight Transportation, Inc. These defendants seek summary judgment on plaintiff’s claims for: A) punitive damages; B) negligent training supervision and entrustment on the part of Defendant Knight; C) emotional distress damages and D) “specialized care” damages. We will address these issues in turn.

 

Defendants National Freight and Mark Cunningham filed a motion to join in the motions regarding plaintiff’s damages for emotional distress and for “specialized services.” This motion will be granted.

 

A. Punitive damages

Plaintiff’s complaint seeks punitive damages against the defendants under the survival claim. (Doc. 7, Am.Compl.Ct.III). Defendants seek summary judgment on the punitive damages claim.

 

Under Pennsylvania law, a jury may award punitive damages only where evidence shows that a defendant knows, or has reason to know of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act in conscious disregard of, or indifference to such risk. Burke v. Maassen, 904 F.2d 178, 181-82 (3d Cir.1990) (citing Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 (Pa.1985)). The Pennsylvania Supreme Court has explained as follows:

 

The Pennsylvania Supreme Court has explained the punitive damages standard as follows:

 

The standard governing the award of punitive damages in Pennsylvania is settled. Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful wanton or reckless conduct.

 

Hutchison v. Luddy, 870 A.2d X66, 770 (Pa.2005) (internal citations omitted).

 

Defendants argue that the record fails to establish that Defendant Calhoun acted with the necessary mental state to justify the award of punitive damages. The court disagrees and finds that the plaintiff has presented sufficient evidence to defeat the defendants’ motion on this point.

 

The plaintiff’s evidence includes the following: Defendant Calhoun was a trained professional driver who knew that a blind spot existed behind his truck and that he had an obligation to verify that no one was behind him before backing up. (Doc. 54-3, Pl. Expert Report of Guntharp at 2). As part of his training, Defendant Calhoun had been provided an orientation manual that provides that a driver should walk around a vehicle before backing up. Further the manual provided that the best way to back a tractor trailer is not to do it at all. (Doc. 71-6, Pl.Ex. 4, Calhoun Dep. 20-21, 34). Before the accident, he had been aware that a motorcycle was approaching behind him. (Doc. 54-3, Pl. Expert Report of Guntharp at 2). Regardless, Defendant Calhoun attempted to back down a public road without first checking to ensure that it was safe to do so. (Id.)

 

Based on this evidence, a jury could conclude that Defendant Calhoun acted sufficiently wilfully, wantonly and recklessly so as to impose punitive damages. Therefore, it is inappropriate to grant summary judgment to the defendants on this issue.

 

B. Negligent training, supervision and entrustment on the part of Defendant Knight

Plaintiff’s complaint seeks damages from Defendant Knight, the trucking company, on the basis that Knight negligently hired, trained and retained Defendant as a driver and negligently inspected, maintained and released for use the truck at issue. Defendant argues for summary judgment on these claims on that basis that plaintiff has presented no evidence to support them. Defendant Knight also argues that plaintiff may not proceed on a theory of direct liability against the trucking company because it would be vicariously liable for Defendant Calhoun’s negligence.

 

Specifically, the amended complaint alleges Defendant Knight’s negligence as follows:

 

a) In then and there failing to properly train the Defendant, Jarred Calhoun, for over the road driving, especially in the “city-like” conditions, where reversing from traffic lights is necessary;

 

b) In then and there failing to enforce the Department of Transportation regulations concerning the amount of hours and distances which its drivers may be on the road, specifically with regard to Defendant, Jarred Calhoun;

 

c) In then and there failing to enforce its own procedures concerning the amount of hours and distances which its drivers may be on the road, specifically with regard to the Defendant, Jarred Calhoun;

 

d) In then and there maintaining the Defendant, Jarred Calhoun, as a driver, despite his adverse driving history;

 

e) In then and there providing the Defendant, Jarred Calhoun, with a vehicle which was in an unsafe condition;

 

f) In then and there failing to inspect or enforce Department of Transportation and/or internal safety regulations and procedures for the tractor;

 

g) In then and there permitting the Defendant, Jarred Calhoun, to operate the Defendant’s over the road equipment, when he was not qualified to do so;

 

h) In then and there failing to enforce Department of Transportation and/or internal safety regulations and procedures for operation of the tractor over public highways.

 

(Doc. 77, Am.Compl.¶ 18).

 

First, the original defendants allege that because it is conceded by Defendant Knight that Calhoun was acting in the course and scope of his duties at the relevant time, Knight would be vicariously liable for Calhoun’s negligence. In this situation, because Knight can be vicariously liable, evidence of direct liabilityfor negligent supervision and monitoring of its driveris inadmissible and plaintiff may not proceed on such claims directly against Knight.

 

In support of this position, Calhoun and Knight cite to two cases which bear examination. The first case is Holben v. Midwest Emery Freight System, 525 F.Supp. 1224 (W.D.Pa.1981). The facts of Holben are similar to the instant case. The plaintiff was involved in an automobile accident with a truck. Id. The trucking company admitted that the truck driver was acting within the course of his employment with them. Thus, the truck company would be vicariously liable. Id. The plaintiff sought to amend his complaint to add a negligent entrustment claim against the trucking company. Id. The court found that the direct claim against the truck driver and the vicarious liability claim against the trucking company should not proceed simultaneously. The court reasoned that to allow them both to proceed would lead to introduction of evidence in the case of the trucking company of prior accidents of the driver which would be very prejudicial, irrelevant and inadmissible in the case against the driver. Id. at 1225.

 

The court, however, did not dismiss the negligent entrustment claim because it also included a viable claim for punitive damages. This claim would not have been included in a suit solely against the driver. Id. at 1225. Therefore, the court left the independent claim against the trucking company in the case so as not to dispose of the plaintiff’s punitive damages claim against the trucking company.

 

The second case cited by the defendants is Vargo v. Coslet, No. 3:02cv676, slip op. (M.D.Pa.Kosik, J., Dec. 20, 2002). This case applies an analysis similar to that used in Holben. The Vargo court found, however, that no viable punitive damages claim had been plead. Accordingly, the court granted summary judgment on the negligent entrustment claim. (Id. at 3-4).

 

In the instant case, the defendant has alleged punitive damages against Defendant Knight. As set forth above, the punitive claim remains viable. Therefore, judgment on the separate claims against Knight is not appropriate.

 

Defendant Knight also claims that the tort claims directed at it are flawed because plaintiff has no evidence to suggest that Knight was negligent with regard to hiring, training and retaining Defendant Calhoun and in inspecting, maintaining or releasing its truck for use on the highway.

 

Plaintiff, however, points to evidence that Defendant Calhoun falsified his driving records in order to operate more hours than permitted by federal regulations. Plaintiff’s expert Walter A. Guntharp indicates as follows:

 

7. Mr. Calhoun’s logs were routinely falsified so that he could operate in excess of the hours of service re ulations published in the Federal Motor Carrier Salety Regulations (FMCSR).

 

8. Mr. Calhoun as an experienced driver, was aware that the FMSCR were published to promote safe operation and minimize the effects of driver fatigue on safety. However, in spite of this knowledge, Mr. Calhoun purposely chose to falsify federal documents and operate while fatigued in order to haul additional load and generate more revenue.

 

9. Knight Transportation had an obligation to monitor Mr. Calhoun’s logs and prevent the type of unsafe operation that falsification created.

 

However, in spite of having records to compare to the logs, Kni ht failed to check the logs or to control the actions o1 Mr. Calhoun. This failure is a violation of the requirements set forth in the FMSCR.

 

(Doc. 71-11, Report of Guntharp at 3). Knight, according to plaintiff’s expert, had an obligation to monitor Calhoun’s driving logs and prevent the unsafe operation caused by the falsification. (Id.) In sum, plaintiff’s evidence is that the driver falsified his logs in order to drive more miles than allowed by federal law. Defendant Knight had an obligation to monitor his logs, and the jury could find that it did not. A jury could conclude that Knight’s failure to monitor the logs allowed Calhoun to drive while fatigued and that his fatigue was the cause of him not getting out of the truck and checking behind him before backing up. Accordingly, summary judgment on this issue is not appropriate.

 

Plaintiff has not presented evidence that Calhoun’s vehicle was unsafe. Therefore, judgment will be granted to the defendants with regard to any allegations that Knight was negligent in allowing the use of an unsafe vehicle.

 

C. Plaintiff’s damages claims for emotional distress or anguish, bereavement and grief

Next, Defendants Calhoun and Knight move for summary judgment on plaintiff’s claims for emotional distress or anguish, bereavement and grief. As noted above, plaintiff asserts a cause of action for the benefit of the decedent’s children under the Pennsylvania Wrongful Death Act, 42 PENN. CONS.STAT. ANN.. § 8301. Under the Wrongful Death Act, surviving children are entitled to damages to compensate them for the loss of services, maintenance and gifts that the deceased father would have provided them. Included in “services” are matters such as companionship, comfort, society, guidance, solace and protection according to the plaintiff. Defendant seeks judgment on any claims that the plaintiff have made for emotional distress or anguish, bereavement and grief on behalf of the decedent’s children.

 

Defendants seek judgment with regard to the damages sought under the Wrongful Death Act on behalf of the decedent’s wife. The Amended Complaint, however, makes it clear that the Wrongful Death Act claim is asserted solely for the benefit of the decedent’s children. (Doc. 77, Am.Compl.¶¶ 22-23). The defendant’s motion on this issue, therefore, will be denied as moot.

 

Plaintiff asserts that no damages for emotional distress or anguish, bereavement and/or grief are sought. Rather, only damages available under the Wrongful Death Act are sought, including, compensation for loss of companionship, comfort and solace. Defendant replies that damages for “solace” are not available under the Pennsylvania Wrongful Death Act. Accordingly, the court must determine which damages are allowed under the Pennsylvania Wrongful Death Act.

 

A Wrongful Death Action is not meant to compensate the decedent, but rather to compensate the decedent’s survivors for the damages they suffered due to the decedent’s death. Machado v. Kunkel, 804 A.2d 1238, 1245 (Pa.Super.Ct.2002). With regard to damages the statute specifies as follows: “Special damages.-In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 PENN. CONS.STAT. ANN.. § 8301(c). Included in these damages are the value of the services the decedent would have provided to the family such as guidance, tutelage and moral upbringing.   Machado, 804 A.2d at 1246. The Pennsylvania Superior Court has also referred to these damages as damages for “the loss of companionship, comfort, society and guidance[.]” Id. at 1245.

 

Defendants’ position is that damages for solace, or solatium damages, are not permissible under the Wrongful Death Act. “Solatium, or solace, describes a type of monetary damages awarded the decedent’s survivors to recompense them for their feelings of anguish, bereavement, and grief caused by the fact of the decedent’s death.” Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 675 n. 3 (Pa.1979). Such damages are not available under the Wrongful Death Act. Id., Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672, 679 (Pa.1986); Keller v. Feasterville Family Health Care Center, 557 F.Supp.2d 671, 687 (E.D.Pa.2008). Accordingly, the defendants’ motion for summary judgment will be granted to the extent that the plaintiff’s amended complaint seeks solatium damages as defined above.

 

D. Plaintiff’s economic expert/specialized care

Plaintiff has retained Andrew Verzilli, PhD to serve as an economic expert. He computes “potential specialized care” services that the deceased may have provided to his two autistic children at $3,259,256.00 each for a total of $6,518,512.00. The Defendants move for judgment on the issue of Verzilli’s report. We find that defendants do not truly argue for judgment on this matter. Rather, they argue the weight that the jury should give this evidence. For example, the defendant challenges the amount of hours that the decedent would have utilized in caring for the children and the number of years that such care would be provided. Accordingly, we find defendants’ position is better suited for cross-examination and argument, than for a motion for summary judgment. The motion for summary judgment on this issue will thus be denied.

 

Conclusion

For the reasons set forth above Third-Party Defendant Luzerne County’s motion for summary judgment will be granted, and Luzerne County will be dismissed from the case. The motion for summary judgment filed by Defendants Jarred Alan Calhoun and Knight Transportation will be granted in part and denied in part. It will be granted to the extent that plaintiff seeks solatium damages under the Wrongful Death Act, as defined above, and it will be granted with regard to the allegations that Defendant Knight allowed Defendant Calhoun to drive an unsafe vehicle. The motion will be denied in all other respects including: punitive damages, negligent training supervision and entrustment on the part of Defendant Knight and plaintiff’s economic expert/specialized care. Remaining in the case, therefore, are the following: plaintiff’s negligence causes of action, except for the claim that Defendant Knight allowed Defendant Calhoun to drive an unsafe vehicle; plaintiff’s claim for punitive damages; the Wrongful Death Action and the Survival Action. An appropriate order follows.

 

ORDER

AND NOW, to wit, this 2nd day of February 2011, it is hereby ORDERED as follows:

 

1) Third-Party Defendant Luzerne County’s motion for summary judgment (Doc. 54) is GRANTED;

 

2) Defendants Jarred Alan Calhoun and Knight Transportation, Inc.’s motion for summary judgment is GRANTED to the extent that plaintiff seeks solatium damages under the Wrongful Death Act, as defined in the body of the attached memorandum, and with regard to the allegations that Defendant Knight allowed Defendant Calhoun to drive an unsafe vehicle. The motion is DENIED in all other respects including: punitive damages, negligent training supervision and entrustment on the part of Defendant Knight and plaintiff’s economic expert/specialized care.

 

3) Third-Party Defendants National Freight, Inc. and Mark Cunningham’s motion (Doc. 63) to join in the original defendants’ motion for summary judgment motion with regard to the emotional distress, anguish, bereavement and grief issue and the specialized services issue is GRANTED. The court’s ruling with respect to these issues applies equally to the defendants and the third-party defendants.

United States District Court,

S.D. Ohio,

Eastern Division.

Heather GRUENBAUM, Plaintiff,

v.

WERNER ENTERPRISES, INC., et al., Defendants.

 

No. 09-cv-1041.

Feb. 2, 2011.

 

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court on Plaintiff Heather Gruenbaum’s Motion for Partial Summary Judgment on the Issues of Liability and Causation (ECF No. 43), Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment (ECF No. 88), the Reply in Support of Plaintiff Heather Gruenbaum’s Motion for Partial Summary Judgment (ECF No. 118), Defendants’ Motion for Summary Judgment (ECF No. 51), the Opposition of Plaintiff Heather Gruenbaum to Defendants’ Motion for Summary Judgment (ECF No. 72), and Defendants’ Reply in Support of their Motion for Summary Judgment (ECF No. 119). For the reasons that follow, the Court DENIES Plaintiff’s Motion for Partial Summary Judgment and GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment.

 

I. Background

The following facts are uncontroverted.

 

Defendant Werner Enterprises, Inc. (“Werner”) is a transportation and logistics company engaged primarily in hauling truckload shipments of general commodities in both interstate and intrastate commerce. Defendant Jeremy Harpst was hired by Werner as a commercial truck driver in November 2007.

 

On February 11, 2009, at approximately 3:45 a.m., Harpst picked up a load of goods from the Staples Distribution Center in London, Ohio. He then traveled to the Staples Distribution Center in Romulus, Michigan, arriving at approximately 7:15 a.m. on February 11, 2009. Once Harpst’s truck was unloaded, he began his return trip to the Staples Distribution Center in London, Ohio. At approximately 9:00 a.m. he stopped to rest at the Petro Truck Stop in North Baltimore, Ohio. Harpst slept in the sleeper cab of the vehicle for several hours. Before leaving the truck stop at 8:15 p.m., Harpst checked “Weatherbug” on his cellular telephone to ascertain the weather conditions for London, Ohio. Weatherbug indicated that wind was in the forecast that evening.

 

After leaving the truck stop, Harpst was driving north on Route 42 when the wind blew over his empty tractor-trailer. The trailer fell onto Plaintiff’s husband’s 2008 Chevrolet Silverado truck that was traveling south on Route 42. The impact crushed the passenger compartment of the truck killing Plaintiff’s husband (“Plaintiff’s decedent”) instantly. Although Harpst does not recall seeing Plaintiff’s decedent’s Silverado prior to the collision, Harpst does not believe that Plaintiff’s decedent did anything to cause the collision.

 

Plaintiff filed this wrongful death action against Werner and Harpst on November 17, 2009.

 

II. Standard

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c) (2). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party’s case. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

 

The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions” of the record that demonstrate “the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). The Court must view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in favor of that party. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir.2003). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Muncie Power Prods., Inc., 328 F.3d at 873 (quoting Anderson, 477 U.S. at 248). Consequently, the central issue is “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52).

 

III. Discussion

A. Oral Argument

In their motions for summary judgment, Plaintiff and Defendants request oral argument. Pursuant to the Local Rules for the Southern District of Ohio, a court ma grant oral argument if “oral argument is deemed to be essential to the fair resolution of the case because of its public importance or the complexity of the factual or legal issues presented.” S.D. Ohio Civ. R. 7.1(b)(2). Whether to grant or deny oral argument is left to the sound discretion of the trial court. See Whitescarver v. Sabin Robbins Paper Co., Case No. C-1-03-911, 2006 U.S. Dist. LEXIS 51524, *5-6 (S.D.Ohio July 27, 2006).

 

Here, the Court does not deem oral argument essential to the fair resolution of this case. Accordingly, the Court DENIES the parties’ requests for oral argument.

 

B. Cross Motions for Summary Judgment

Plaintiff alleges claims for relief against Harpst and Werner based upon Harpst’s alleged negligence in causing the accident that killed Plaintiff’s decedent. Plaintiff also filed a claim against Werner for Werner’s alleged negligence in training and supervising Harpst. Plaintiff and Defendants request summary judgment on the liability and causation elements of these claims. Defendants also move for summary judgment on Plaintiff’s punitive damages claim.

 

1. Claims based upon Defendant Harpst’s alleged negligence

Plaintiff claims that there are no issues of material fact that Harpst, while acting within the course and scope of his employment, negligently caused the death of Plaintiff’s decedent for which Harpst is directly liable and for which Werner is responsible through respondeat superior. Defendants, however, argue that these claims are barred by the “act of God” affirmative defense, and that even if they were not barred, Plaintiff cannot make a showing sufficient to establish the existence of elements that are essential to her case.

 

Defendants do not dispute that at the time of the accident that killed Plaintiff’s decedent, Harpst was acting within the course and scope of his employment with Werner.

 

The parties rely on the law of Ohio, as that is the State where the accident occurred. See Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 342, 474 N.E.2d 286 (1984) (“a presumption is created that the law of the place of the injury controls unless another jurisdiction has a more significant relationship to the lawsuit”). To sustain an action based upon negligence under Ohio law, a plaintiffs must show “(1) the existence of a duty owing to the plaintiffs; (2) a breach of that duty; and (3) proximate causation.” Moncol v. Bd. of Ed., 55 Ohio St.2d 72, 75, 378 N.E.2d 155 (Ohio 1978) (citations omitted).

 

a. Harpst’s duty

The parties disagree as to the standard of care Harpst owed to Plaintiff’s decedent. Defendants argue that Harpst had a duty to exercise “reasonable care” to avoid causing injury and Plaintiff contends that Harpst had the duty to exercise “extreme caution” because of the hazardous conditions in which he was driving the night of the accident.

 

The parties agree that the United States Department of Transportation, through the Federal Motor Carrier Safety Regulations, has implemented Safety Regulations (“Safety Regulations”) for drivers of commercial motor vehicles. See 49 U.S.C. § 31144, the Motor Carrier Safety Act of 1984 (regulations found in Title 49 of the Code of Federal Regulations were promulgated pursuant to this statute). Ohio has specifically adopted the Safety Regulations. See Ohio Admin. Code § 4901:2-5-02(A); B & T Express, Inc. v. Pub. Util. Comm., 145 Ohio App.3d 656, 662, 763 N.E.2d 1241 (2001). The Safety Regulations provide in part:

 

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated….

 

49 C.F.R. § 392.14.

 

Plaintiff argues that this regulation “provides the minimum standard of care [and that] it is in fact a heightened standard when compared with ordinary care.” (ECF No. 43 at 10.) Plaintiff relies upon two cases, one from a state court in California and one from a state court in Virginia, which both applied this regulation in the way in which Plaintiff asks this Court to apply it. See Weaver v. Chavez, 133 Cal.App.4th 1350, 1356-57, 35 Cal.Rptr.3d 514 (Cal.Ct.App.2005) (concluding that trial court erred in giving “reasonable person” instruction, rather than instructing on “extreme caution”); Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665, 668-69 (Va.2002) (noting that 49 C.F.R. § 392.14 creates an “expanded duty of care for the operation of commercial motor vehicles”).

 

Defendants do not disagree that the regulation sets forth a higher standard than Ohio law provides. Defendants, however, argue that this regulation is inapplicable here because the weather conditions were not such that Harpst’s visibility or his truck’s traction was affected. Specifically, Defendants contend that the “extreme caution” duties in the regulation were not “triggered in this case because up until the very moment of impact, Mr. Harpst never encountered any hazardous conditions that affected his visibility or his vehicle’s traction.” (ECF No. 88 at 2.) Instead, relying on Ohio law, Defendants argue that the standard of care applicable to Harpst on the night of the accident is “reasonable care.” See e.g. Somogyi v. National Engineering & Contracting Co., No. 68694, 1996 Ohio App. LEXIS 64, at(Ohio App. Jan. 11, 1996) (“The truck driver has the duty to use reasonable care” to avoid causing injury to another).

 

Defendants are correct regarding the standard of care in Ohio. See id.; see also Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (Ohio 1989) (“The existence of a duty in a negligence action is a question of law for the court to determine.”). That is, “the common-law duty of due care is that degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to exercising, under the same or similar circumstances.” Mussivand, 45 Ohio St.3d at 318, 544 N.E.2d 265 (citation omitted). “A person is to exercise that care necessary to avoid injury to others.” Id. at 319, 544 N.E.2d 265 (citing 70 Ohio Jurisprudence 3d (1986) 62, Negligence, Section 19). Defendants and Plaintiff, however, are incorrect as to the impact of the Safety Regulations. In Ohio, a violation of an administrative rule is admissible evidence of negligence. See Chambers v. St. Mary’s Sch., 82 Ohio St.3d 563, 568, 697 N.E.2d 198 (1998); Lillie v. Meachem, NO. 1-09-09, 2009 Ohio App. LEXIS 4171 at * 14, 2009 Ohio 4934, ¶ 19 (Ohio Ct.App. Sept.21, 2009) (regulatory standards that establish safety procedures are admissible evidence of negligence); Earley v. United Airlines, No. 2:05-cv-0835, 2006 U.S. Dist. LEXIS 70439, at (S.D.Ohio September 28, 2006) (“the violation of a Federal Aviation Administration regulation, which is an administrative rule, is only evidence of negligence”); see also Tavorn v. Anthony Ulderico Cerelli & Redford Bldg. Supply, No. 268311, 2007 Mich.App. LEXIS 1860, at *10-11 (Mich.Ct.App. July 31, 2007) (in Michigan, violation of the hazardous conditions regulation, 49 C.F.R. § 392.14, is evidence of negligence); Labbee v. Roadway Express, 469 F.2d 169 (8th Cir.1972) (“Missouri is one of those states where violation of a [regulation] of this kind [i.e., Safety Regulations, 49 C.F.R. § 392.14] is evidence of negligence in a civil action.”). Accordingly, the Court concludes that, while the Safety Regulations do not establish a heightened standard of care in Ohio, evidence of a violation of the Safety Regulations may be considered by the trier of fact as evidence of negligence.

 

b. Did Harspt breach his duty to Plaintiff’s decedent?

The question of breach of duty is generally a question of fact. As an Ohio appellate court explained in detail:

 

“The question whether a defendant is guilty of actionable negligence is ordinarily one of fact for the jury, it being left to them to determine under proper instructions from the court whether or not the defendant acted with reasonable care under the particular circumstances of the case.” 57 American Jurisprudence 2d 425, Negligence, Section 75.

 

However,

 

“[W]here the facts are undisputed and are susceptible of only one inference, the question is one of law for the court and the court should withdraw the question from the jury. Whether only one inference may be drawn from the evidence necessarily must rest ultimately with the court.” 57 American Jurisprudence 2d 489, Negligence, Section 137.

 

“So, if different minds can reasonably arrive at no other conclusion than that of the non-existence of the defendant’s negligence, or if all the material facts touching the alleged negligence are undisputed and admit of but one rational inference, the question becomes one of law merely, and the court should so charge the jury.” 39 Ohio Jurisprudence 2d 824, Negligence, Section 196.

 

“It does lie within the province of the court, however, to determine whether different minds could reasonably arrive at different conclusions in raising such inference.” 39 Ohio Jurisprudence 2d 827, Negligence, Section 196.

 

Keister v. Park Centre Lanes, 3 Ohio App.3d 19, 443 N.E.2d 532, 537 (Ohio Ct.App.1981).

 

Here, the Court has little difficulty determining that whether Harpst breached his duty of care is a determination for the jury.

 

Defendants present evidence from Harpst that he encountered no adverse weather until he turned from Route 33 onto Route 42, at which time he noticed that “the winds had picked up.” (Harpst Dep. at 179-83, July 1, 2010.) With regard to violation of the Safety Regulations, Defendants posit that Harpst’s testimony is clear that he did not encounter any hazardous conditions that adversely affected his visibility or traction until the moment of the accident. Defendants also present evidence related to the effect the weather conditions that night had, and windy conditions in general have, on trucks with empty tractor-trailers, e.g., Defendants’ expert opined that it would take a wind gust in excess of 70 miles an hour from the west-southwest direction to cause Harpst’s Werner tractor-trailer to blow over. Finally, Defendants offer evidence of Harpst’s actions that support fulfillment of his duty to exercise reasonable care, such as checking the weather program “WeatherBug” before leaving New Baltimore the night of the accident.

 

Conversely, Plaintiff presents evidence that indicates that Harpst did encounter adverse weather conditions prior to the accident, including Harpst’s own written report of the accident, made the night of the accident, in which he stated it had “been windy since [he] started so” he traveled at a reduced rate of speed and that “[i]t started to get really windy as [he] was coming into Plain City.” (Harpst Dep. Ex. 12, July 1, 2010.) Plaintiff also presents evidence from their expert that an empty tractor-trailer can be blown over by winds of 40 miles per hour. Finally, Plaintiff presents evidence that the National Weather Service had forecast high wind advisories and warnings for the area in which Harpst was driving and that those advisories had been forecast for 41 hours prior to the accident.

 

The weight and credibility to be given to Harpst’s seemingly incongruent testimony and to the other witnesses’ and expert witnesses’ conflicting testimony related to the weather conditions the night in question and the behavior of tractor-trailers in windy weather conditions are not appropriate summary judgment determinations. See Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.2005) (“In reviewing a summary judgment motion, credibility judgments and weighing of the evidence are prohibited.”) Consequently, the Court concludes that whether Harpst failed to exercise reasonable care the night of the accident “presents a sufficient disagreement to require submission to a jury.” Anderson, 477 U.S. at 251-52. Furthermore, it is for the jury to determine whether Harpst violated the Safety Regulations, which they may consider, together with all other evidence, in deciding whether Harpst was negligent.

 

c. Did Harpst’s alleged breach proximately cause the accident?

Defendants argue that Plaintiff cannot establish the proximate cause element of her negligence claim because they are entitled to the act of God affirmative defense and/or because Plaintiff’s decedent’s was legally intoxicated. Resolution of the question of whether a party’s negligence proximately caused an accident is ordinarily a question of fact. See Keister, 443 N.E.2d at 537; see also Kellner v. Budget Car & Truck Rental, Inc., 359 F.3d 399, 407 (6th Cir.2004) (proximate cause is to be determined by the jury, “unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome”).

 

i. act of God defense

Defendants contend that the injuries sustained by Plaintiff’s decedent were the result of an act of God and, therefore, not chargeable to the alleged negligence of Defendants. Plaintiff, however, contends that the act of God affirmative defense is not applicable because the negligence of both Defendant Harpst and Defendant Werner directly and proximately caused the collision.

 

Ohio courts have long held that “if the act of God, such as an extraordinary flood, was so overwhelming and destructive as to produce the injury, whether the defendant had been negligent or not, his negligence cannot be held to be the proximate cause of the injury.” Piqua v. Morris, 98 Ohio St. 42, 120 N.E. 300, paragraph 3 of the syllabus (Ohio 1918). The parties do not dispute that a windstorm could constitute an act of God. For the windstorm to qualify legally as an act of God, and therefore to be available as an affirmative defense, the windstorm “could not have been reasonably anticipated, guarded against or resisted.” Id. at 48, 120 N.E. 300.

 

In the case sub judice, the parties disagree as to the meaning of the alleged negligence of Harpst and Werner as it relates to the act of God defense. In this regard, the Ohio Supreme Court explained:

 

The proximate cause of a result is that which in a natural and continued sequence contributes to produce the result, without which it would not have happened. The fact that some other cause concurred with the negligence of a defendant in producing an injury, does not relieve him from liability unless it is shown such other cause would have produced the injury independently of defendant’s negligence.

 

Id. at paragraph one of syllabus. Plaintiff asserts that the act of God defense is inapplicable here because “the high winds the night of February 11, 2009, would not have been sufficient, on their own, to cause Mr. Gruenbaum’s death.” (ECF No. 72 at 32-33.) Instead, Plaintiff contends that the negligence of Harpst in failing to exercise ordinary caution while pulling an empty trailer in high winds and the negligence of Werner in failing to properly train its employees, including Harpst, as to the dangers posed by high winds, and by failing to ensure compliance with regulatory requirements, were the proximate cause of the accident.

 

This issue, however, like the other two elements of Plaintiff’s negligence claim, “presents a sufficient disagreement to require submission to a jury.” Anderson, 477 U.S. at 251-52. The Ohio Supreme Court case of Bier v. City of New Philadelphia is instructive. 11 Ohio St.3d 134, 464 N.E.2d 147 (1984). In that case, the plaintiffs were picnicking at a public park when a thunderstorm approached. Trying to pack-up the picnic supplies before the storm struck, all the plaintiffs were either under the cover of a picnic shelter that had a metal roof or beside the edge of the shelter. Lightning struck the shelter, resulting in the death of one individual and injury to several others. The plaintiffs brought a lawsuit against the City of New Philadelphia and the New Philadelphia Park and Recreation Board, contending that the defendants were negligent in failing to install a lightning protection system. The defendants moved for summary judgment, based upon the act of God defense. The trial court granted the defendants’ motion, and the court of appeals affirmed. The Ohio Supreme Court, however, reversed, finding that reasonable minds could differ as to whether the plaintiffs’ injuries were the result of an act of God, and therefore, not chargeable to the alleged negligence of the defendants.

 

Like in Bier, in this case it is Defendants’ contention that the injuries sustained by Plaintiff’s decedent were the result of an act of God and, therefore, not chargeable to the alleged negligence of Defendants. The parties, however, have provided conflicting evidence not only as to whether Defendants were negligent, as discussed supra, but also as to whether that negligence, if found, is a concurrent cause of Plaintiff’s decedent’s injuries. Id. at 136, 464 N.E.2d 147 (“Therefore, in the instant case, the defendants could be found liable if a trier of fact were to find that the negligence of the defendants, in not installing a lightning protection system on the metal-roofed picnic shelter, is a concurrent cause of the plaintiffs’ injuries.”). Consequently, the Court finds that it is for the jury to determine the proximate cause of the accident and whether the act of God defense applies to prevent any found negligence on Defendants’ part from legally constituting the proximate cause of Plaintiff’s decedent’s injuries.

 

ii. Plaintiff’s decedent’s intoxication

On the night of the accident, Plaintiff’s decedent had dinner with a client at a Hooters restaurant in Columbus, Ohio, where the two drank at least two pitchers of beer. Plaintiff’s decedent left Hooters less than one hour before the accident that killed him. Plaintiff’s decedent had a blood-alcohol level of 0.122, which exceeds the 0.08 legal limit in Ohio. Defendants argue that Plaintiff’s decedent was intoxicated at the time of the accident that took his life, and therefore, his intoxication was an intervening and superseding cause that, at a minimum, creates a question of fact on the proximate causation issue.

 

Further, Defendants argue that because he was driving with a blood-alcohol level of 0.122, Plaintiff’s decedent was negligent per se, which means that he was contributorily negligent in the accident that took his life. See Mitchell v. Ross, 14 Ohio App.3d 75, 470 N.E.2d 245, 248 (Ohio App.1984) (summary judgment granted in favor of defendant because “no reasonable person could find [plaintiff’s] fault to be less than the alleged negligence of the [defendant]”); Sabbaghzadeh v. Shelvey, No. 98CA007244, 2000 WL 763322 at(Ohio App. Jun. 14, 2000) (“summary judgment may be granted in cases involving issues of comparative negligence where a reasonable person could only conclude that the contributory negligence of the plaintiff was greater than the combined negligence of the defendant or defendants”). Defendants conclude that Plaintiff’s negligence claims are barred as a matter of law because Plaintiff’s decedent’s contributory negligence exceeded any negligence that may be attributable to Defendants. Defendants arguments are not well taken.

 

A violation of the Ohio Revised Code § 4511.19 establishes strict criminal liability. Defendants argue that violation of the statute also constitutes negligence per se. Whether violation of § 4511.19 establishes negligence per se is unclear. Compare Johnson v. Helmus, No. E-86-19, 1987 Ohio App. LEXIS 7287 (Ohio Ct.App. June 5, 1987) (“We are unaware of any Ohio case which provides that violation of [Ohio Rev.Code § 4511.19] constitutes negligence per se.” ) with Erie Ins. Co. v. City of Columbus, No. 79AP-815, 1980 WL 353446 at(Ohio App. Dist. May 8, 1980) (“operation of a motor vehicle while under the influence of alcohol is negligence per se” ).

 

This Court, however, need not determine whether operating a motor vehicle under the influence of alcohol in violation of § 4511.19 is negligence per se or not because negligence per se is not liability per se. Success on any claim of negligence requires a showing of causation. See Bishop v. Munson Transp., 109 Ohio App.3d 573, 672 N.E.2d 749 (Ohio Ct.App.1996) (even though there is evidence that an injured motorist was highly intoxicated, another motorist whose attempted lane change may have been the proximate cause of the accident is not entitled to a directed verdict); see also e.g., Helmus, supra (assigning as error the trial court’s refusal to charge the jury that violation of § 4511.19 “constitute[s] negligence per se for which the defendant is liable for any proximately caused damages”).

 

In evaluating causation in a case like this one, Hoff v. Nicely, No. 90WD084, 1991 Ohio App. LEXIS 4353 (Ohio Ct.App. Sept. 20, 1991), is instructive. In Hoff, the plaintiff’s decedent was a passenger in a car being driven by the defendant. The plaintiff’s decedent died when she jumped out of the moving vehicle. Both the plaintiff’s decedent and the defendant had consumed alcohol before entering the car. The plaintiff argued that the defendant was strictly liable as a result of his violation of § 4511.19, i.e., the defendant should not have been driving at all. The trial court rejected this contention, granting summary judgment to the defendant, which was affirmed on appeal. The appellate court concluded that the sole proximate cause of death was decedent’s removal of herself from the vehicle. Id. at(“Upon consideration of all the evidence that was before the trial court and the law, this court finds that, there remains no genuine issue as to any material fact and, when construing the evidence most strongly in favor of appellant, reasonable minds can only conclude that decedent’s act in jumping from the moving vehicle driven by appellee was not naturally or usually in sequence with or a foreseeable result of any wrongful act of appellee and that appellee is entitled to judgment as a matter of law.”).

 

Unlike the defendant in Hoff, Defendants in the instant action have submitted no evidence indicating that Plaintiff’s decedent contributed in any way to the collision that killed him. There is no evidence that Plaintiff’s decedent was driving erratically or otherwise showed any signs of being intoxicated. Nor is there any evidence that, had Plaintiff’s decedent not consumed alcohol, he could have avoided the collision that took his life. Accordingly, Plaintiff’s decedent’s intoxication does not operate to bar Plaintiff’s negligence claims as a matter of law.

 

d. Conclusion of claims of negligence based upon Harpst’s alleged negligence

The Court concludes that Harpst owed Plaintiff’s decedent a duty to exercise reasonable care, as articulated above. It is for the jury to decide whether Harpst breached that standard of care, including determining whether Harpst violated the Safety Regulations, which may be evidence of his negligence. If the jury determines that Harpst did in fact breach his duty of care to Plaintiff’s decedent, the jury must then further decide whether that negligence was the proximate cause of Plaintiff’s decedent’s death, and whether the act of God defense applies to relieve Harpst of liability.

 

Accordingly, the Court DENIES Plaintiff’s Motion for Partial Summary Judgment and DENIES Defendants’ Motion for Summary Judgment as they relate to Plaintiff’s claims based upon Harpst’s alleged negligence.

 

2. Claim based upon Defendant Werner’s alleged negligence

Initially, the Court notes that Plaintiff’s negligence claims against Werner are contingent upon a finding of negligence on the part of Harpst. An underlying requirement of any negligent training and supervision claim is that an employee is individually liable for a tort or guilty of a claimed wrong against the third person. Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 517 (6th Cir.1999) (citing Strock v. Pressnell, 38 Ohio St.3d 207, 217, 527 N.E.2d 1235 (Ohio 1988)).

 

Plaintiff contends that Defendant Werner was negligent not only under a theory of respondeat superior, but also that it was negligent in its own right because of its breach of its duties set forth in the Safety Regulations governing the employment of commercial vehicle drivers. Specifically, Plaintiff argues that Werner negligently failed to properly train and supervise, (i.e., supervise, inform, and/or warn) Defendant Harpst, which proximately caused the accident that took the life of Plaintiff’s decedent. Werner does not dispute that it has a duty to properly train and supervise its drivers. Werner, however, contends that its actions were at all times reasonable and in compliance with the Safety Regulations. Further, Werner argues that, even if it had negligently trained or supervised Harpst, Plaintiff cannot demonstrate that this negligence proximately caused the accident that resulted in Plaintiff’s decedent’s death.

 

a. Werner’s duty

The Court agrees with the parties that Werner had a duty to train and supervise its commercial vehicle drivers. Werner has a duty under 49 C.F.R. § 392.1 to instruct its drivers to comply with the Safety Regulations and a duty under 49 C.F.R. § 390.11 to “require observance of the driver regulations.” Therefore, as Werner recognizes, Werner had a duty to instruct its drivers on the Safety Regulations, including the “hazardous conditions” regulation discussed supra. That regulation requires drivers to exercise extreme caution when hazardous conditions adversely affect the vehicle’s visibility or traction. Thus, it was Werner’s duty to instruct its drivers to comply with this regulation and to require its drivers to observe this regulation.

 

To the extent that Plaintiff argues that there is a duty over and above those specifically set forth in the Safety Regulations, that argument is not well taken. As Defendants correctly note, the government has specifically regulated companies that employ commercial vehicle drivers in its promulgation of the Federal Motor Carrier Regulations. The Court will not add to the duties set forth in those regulations.

 

b. Did Werner breach its duty to train Harpst?

Plaintiff claims that Werner failed to provide adequate training to its drivers related to the hazards posed by high winds, particularly when pulling an empty trailer. Plaintiff contends that Harpst should have been instructed as to specific wind speeds that were sufficient to blow over an empty tractor-trailer. Conversely, Defendants argue that they had no duty to instruct Harpst regarding the specific minimum wind speed upon which to cease operations. The parties’ focus of their arguments miss the mark.

 

That is, the question is not whether Werner had a duty to instruct its drivers regarding specific wind speeds at which operation of their semi tractor-trailers should be ceased. Instead, the question is whether Werner’s actions in training its drivers, including its training with regard to the risks high winds posed, were sufficient to meet its duty to instruct its drivers to comply with the Safety Regulations and to require its drivers to observe those regulations.

 

As to that determination, Defendants argue that Werner’s “training with respect to driving in adverse weather conditions mirrors [the hazardous conditions regulation, 49 C.F.R. § ] 3912.14.” (ECF No. 51 at 22.) Defendants offer evidence showing that Harpst was trained through orientation, hands-on driver training program, and quarterly safety reviews where driving in adverse weather conditions was routinely discussed. Plaintiff, however, argues that this training was insufficient to meet Werner’s duty. Specifically, Plaintiff contends that the training was insufficient for a driver to make informed decisions on how to drive an empty tractor-trailer in wind that constitutes hazardous conditions. Plaintiff points out that Harpst was not trained on the wind speeds that would likely blow over an empty trailer. The parties’ experts also disagree as to the training necessary for an employer to meet its duty to properly train its drivers as set forth in the Safety Regulations.

 

The Court finds that there is sufficient disagreement as to whether the training Werner provided to Harpst satisfied Werner’s duty as set forth in the Safety Regulations and, therefore, it is a decision left properly for the jury.

 

c. Did Werner breach its duty to supervise Harpst?

Plaintiff contends that on the evening of February 11, 2009, Werner failed to provide adequate supervision, information, and/or warning to Harpst regarding the danger he faced driving in the windstorm. Particularly, Plaintiff argues, in light of well-documented weather forecasts distributed for 41 hours prior to the accident and the fact that at least one other Werner truck was blown over by the same windstorm. Contrarily, Defendants posit that “[i]n light of the fact that the driver bears the sole responsibility for determining whether to slow or cease operations, Werner had no legal duty to monitor weather and demand that its drivers slow or cease operations.” (ECF No. 51 at 22-23.)

 

The Court finds that, even if it is true that the driver bears the responsibility under the Safety Regulations to slow or cease operations, a proposition with which Plaintiff does not disagree, that responsibility does not relieve Werner of its own duties under the Safety Regulations. As the Court stated above, Werner has a duty to instruct and supervise its drivers to comply with the Safety Regulations. The Safety Regulations do not impose a specific duty upon a commercial trucking company to monitor the weather like those imposed upon other industries. See e.g., 14 C.F.R. § 91.103 (Aviation); 46 C.F.R. § 45.191 (Boating); and, 49 C.F.R. § 228.17 (Railroad). Thus, the issue here is whether Werner’s failure to inform Harpst of the hazardous conditions about which they were aware on the evening of February 11, 2009, breached Werner’s duty to properly supervise Harpst.

 

As to that issue, it is uncontroverted that Werner knew that one of its semi tractor-trailers was blown over on the evening of February 11, 2009 in Indiana. Plaintiff presents evidence that the windstorm responsible for that blow over was the same storm that moved through central Ohio on February 11, 2009. Werner has the ability to pinpoint the exact location of each of its trucks and to engage in two-way communication with the drivers. However, Defendants argue that “Plaintiff provides nothing to show Werner was aware of the Indiana accident with sufficient time to alert Mr. Harpst regarding the high winds in Indiana.” (ECF No. 119 at 27.)

 

The Court finds that, whether Werner’s supervision duty was breached by not informing Harpst of the windstorm that blew over one of its tractor-trailers in Indiana is an issue for the jury. Reasonable minds can differ as to whether Werner’s duty included informing and/or warning its drivers in a situation like this one and as to whether Werner, even if required to so inform, had the ability to do so on the night in question.

 

d. Did Werner’s alleged breach proximately cause the accident?

Defendants argue that Plaintiff cannot demonstrate that any alleged failure to train or supervise Harpst proximately caused Plaintiff’s decedent’s death. Defendants reason:

 

This is because, prior to working for Werner, Mr. Harpst already knew how to handle a semi in adverse weather conditions. In March 2007, Mr. Harpst graduated from Baker College, a technical college in Flint, Michigan, shortly before starting employment with Werner in December 2007. At Baker, Mr. Harpst learned that, when operating a commercial motor vehicle in adverse weather conditions, he should adjust his speed accordingly, maintain proper following distance, and to find the nearest safe haven when unable to maintain control over the vehicle. Even without Werner’s training, Mr. Harpst already knew how to handle a semi in adverse weather conditions. With Werner’s training and prior supervision, he was adequately equipped to drive safely.

 

(ECF No. 88 at 20.)

 

Plaintiff, however, argues that, by failing to properly train and superise its drivers, Werner set up a situation where its drivers could choose to drive in extremely hazardous conditions. This failure, Plaintiff contends, was a direct and a proximate cause of the accident that killed Plaintiff’s decedent.

 

The Court finds that the uncontroverted facts and inferences to be drawn from them do not make it so clear that all reasonable persons must agree on the proper outcome of the proximate cause issue. See Keister, 443 N.E.2d at 537. Therefore, this issue is for the jury, not this Court, to determine.

 

e. Conclusion of Plaintiff’s claim of negligence against Werner

The Court concludes that Werner owed Plaintiff’s decedent a duty to instruct its drivers to comply with the Safety Regulations and to require its drivers to observe the Safety Regulations. It is for the jury to decide whether Werner’s actions in training its drivers, including its training with regard to the risks high winds posed, were sufficient to meet its duty. If the jury determines that Werner breached its duty of care to Plaintiff’s decedent, the jury must then further decide whether that negligence was the proximate cause of Plaintiff’s decedent’s death, and whether the act of God defense applies to relieve Werner of liability.

 

Accordingly, the Court DENIES Plaintiff’s Motion for Partial Summary Judgment and DENIES Defendants’ Motion for Summary Judgment on Plaintiff’s claim against Werner for its alleged negligence.

 

3. Punitive damages

Defendants argue that they are entitled to summary judgment on Plaintiff’s claim for punitive damages because punitive damages are not available in wrongful death cases in Ohio. Plaintiff agrees and does not oppose Defendants’ motion in this regard. Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment as it relates to Plaintiff’s claim for punitive damages.

 

IV. Conclusion

Based on the foregoing, the Court DENIES Plaintiff’s Motion for Partial Summary Judgment (ECF No. 43) and GRANTS Defendants’ Motion for Summary Judgment as it relates to Plaintiff’s punitive damages claim and DENIES it in all other respects (ECF No. 51).

 

IT IS SO ORDERED.