2021 WL 5999279

United States District Court, S.D. Texas, Houston Division.
Chan INTHAVONG, Plaintiff,
v.
Nick ROOSA and Northwest Concrete Products Inc. d/b/a Northwest Logistics Heavy Haul, Defendants.
Civil Action No. 4:21-cv-00366
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Signed 12/20/2021
Attorneys and Law Firms
John M. Padilla, Padilla & Rodriguez, L.L.P., Jose Moises Cedillos, Cedillos Law Firm, PLLC, Houston, TX, for Plaintiff.
John Patrick Abbey, Taunton Snyder & Parish, Houston, TX, for Defendants.

Opinion and Order Denying Partial Motion to Dismiss
Charles Eskridge, United States District Judge
*1 The motion by Defendants to dismiss the gross negligence claims and request for punitive damages is denied. Dkt 12.

1. Background
Plaintiff Chan Inthavong was working on top of a scissor lift in July 2019 when a tractor trailer struck the scissor lift, causing him to fall onto the concrete floor beneath. Dkt 8 at ¶¶ 9–10. He was rendered unconscious for approximately five to ten minutes and began bleeding from his head. Id. at ¶¶ 11–13.

Inthavong brought action in December 2020 in Texas state court against Defendants Nick Roosa and Northwest Concrete Products Inc., doing business as Northwest Logistics Heavy Haul. Dkt 1-2 at 2–7. Roosa was driving the tractor trailer that struck the scissor lift, and Inthavong alleges that Roosa was working in the scope of his employment with Northwest Concrete Products at the time of the accident. Id. at ¶¶ 14–25. He seeks compensatory and exemplary damages along with costs. Id. at ¶ 38.

Roosa and Northwest Concrete Products removed the action in February 2021. Dkt 1. They then immediately moved to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt 2. That motion was stricken for failure to comply with Section 17(b) of this Court’s procedures. Dkt 3.

Inthavong filed an amended complaint in March 2021, asserting the same causes of action. Dkt 8. Roosa and Northwest Concrete Products now move pursuant to Rule 12(b)(6) to partially dismiss the gross negligence claims and “associated claims of punitive and exemplary damages.” Dkt 12 at 1. They don’t move to dismiss the negligence and negligence per se claims.

2. Legal standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff’s complaint to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) allows the Defendant to seek dismissal if the plaintiff fails “to state a claim upon which relief can be granted.”

Read together, the Supreme Court has held that Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v Iqbal, 556 US 662, 678 (2009), quoting Bell Atlantic Corp v Twombly, 550 US 544, 555 (2007). To survive a Rule 12(b)(6) motion to dismiss, the complaint “must provide the plaintiff’s grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v Taylor, 503 F3d 397, 401 (5th Cir. 2007), quoting Twombly, 550 US at 555.

A complaint must therefore contain enough facts to state a claim to relief that is plausible on its face. Twombly, 550 US at 570. A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 US at 678, citing Twombly, 550 US at 556. This standard on plausibility is “not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 US at 678, quoting Twombly, 550 US at 557.

*2 Review on motion to dismiss under Rule 12(b)(6) is constrained. The reviewing court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Walker v Beaumont Independent School District, 938 F3d 724, 735 (2019). But “courts ‘do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.’ ” Vouchides v Houston Community College System, 2011 WL 4592057, *5 (SD Tex), quoting Gentiello v Rege, 627 F3d 540, 544 (5th Cir. 2010). The court must also generally limit itself to the contents of the pleadings and its attachments. Brand Coupon Network LLC v Catalina Marketing Corp, 748 F3d 631, 635 (5th Cir. 2014).

3. Analysis
Roosa and Northwest Concrete Products argue that Inthavong must “prove by clear and convincing evidence” that their acts or omissions were grossly negligent under Texas law. Dkt 12 at 5, citing Tex Civil Practice & Remedies Code § 41.001(2) & (11); Perez v Arredondo, 452 SW3d 847, 864 (Tex App—San Antonio 2014, no pet). They further argue that a “corporation cannot be held liable for gross negligence unless the corporation itself commits the gross negligence.” Id. at 6, citing Mobil Oil Corp v Ellender, 968 SW2d 917, 921 (Tex 1998). And they assert that Inthavong “does not mention, much less allege, any facts supporting any conduct that would rise to the heightened level required for a claim of gross negligence and the recovery of exemplary or punitive damages.” Id. at 6.

As to the gross negligence claim against Roosa. To state a claim for gross negligence, a plaintiff must prove by clear and convincing evidence that, first, when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and second, the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. U-Haul International Inc. v Waldrip, 380 SW3d 118, 137 (Tex 2012), citing Tex Civil Practice & Remedies Code § 41.001(11). “Gross negligence is typically a question of fact” and is therefore “not well-suited for summary judgment”—much less for a motion to dismiss. Almazan v CTB Inc., 2000 WL 33348244, *12 (WD Tex); see also Roy v Bethlehem Steel Corp, 838 F Supp 312, 316–17 (ED Tex 1993). And Texas courts also observe, “Negligence and gross negligence are not separable causes of action, but are inextricably intertwined.” Tesoro Petroleum Corp v Nabors Drilling USA Inc., 106 SW3d 118, 126 (Tex App—Houston [1st Dist] 2002, pet denied).

To be sure, the pleading is thin. But even so, Defendants don’t seek to dismiss the negligence claim on this basis. And the alleged facts adequately indicate that Roosa saw Inthavong working on top of the scissor lift before he entered his tractor trailer, set the tractor trailer in motion while observing Inthavong’s location, and only moved approximately two to five feet before hitting the scissor lift. Dkt 8 at ¶¶ 14–16, 21. It may be that Inthavong will eventually fail to meet his burden of proof. But such facts sufficiently support his claim for gross negligence against Roosa.

As to the gross negligence claim against Northwest Concrete Products. Under Texas law, a corporation commits gross negligence “only if it (1) authorizes or ratifies an agent’s malice, (2) maliciously hires an unfit agent, or (3) acts with malice through a vice principal.” Qwest International Communications Inc. v AT&T Corp, 167 SW3d 324, 326 (Tex 2005). Defendants approach this question as to what will (or won’t) eventually be proven at trial. But whether Northwest Concrete Products authorized or ratified Roosa’s alleged gross negligence, was grossly negligent in hiring him, or committed gross negligence itself in some way are all necessarily questions of fact that needn’t be established at this juncture.

*3 Inthavong has sufficiently pleaded facts to support his claim for gross negligence against Northwest Concrete Products.

As to punitive damages. Punitive damages are available to plaintiffs under Texas law when the evidence shows that the defendant acted with fraud, malice, or gross negligence. Tex Civil Practice & Remedies Code Ann § 41.003(a). Inthavong’s request for punitive damages must necessarily go forward because he sufficiently pleaded gross negligence claims against Roosa and Northwest Concrete Products.

4. Conclusion
The motion by Defendants Nick Roosa and Northwest Concrete Products Inc., doing business as Northwest Logistics Heavy Haul, to dismiss the gross negligence claims and request for punitive damages is denied. Dkt 12.

So ordered.

All Citations
Slip Copy, 2021 WL 5999279

2021 WL 6058856
Supreme Court, Richmond County, New York.
Saif El Ezzi, Plaintiff
v.
Domino’s Pizza LLC, RYDER TRUCK RENTAL INC., CHARLES O. ALALE, U-HAUL CO OF ARIZONA, U-HAUL INTERNATIONAL, INC. and MOHAMED S. SULEIMAN., Defendants.
Index No. 15053, Index No. 150530/2020
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Decided on December 17, 2021
Opinion

Catherine M. DiDomenico, J.

*1 Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion

Sequence Numbers 001 & 002 Numbered
Notice of Motion to Amend by Plaintiff (001, NYSCEF No.25), 1
Affirmation in Opposition to 001 by Defendant (NYSCEF #49), 2
Affirmation in Reply to 001 by Plaintiff (NYSCEF #83), 3
Notice of Motion for Summary Judgment (002, NYSCEF #33), 4
Supplemental Affirmation in Support of 002 (NYSCEF #45), 5
Second Supplemental Affirmation in Support of 002 (NYSCEF #55), 6
Affirmation & Affidavit in Opposition to 002 by Plaintiff (NYSCEF #76), 7
Affirmation in Opposition to 002 by Co-Defendant (NYSCEF #58), 8
Affirmation in Reply to Co-Defendant (NYSCEF #79), 9
Affirmation in Reply to Plaintiff (NYSECEF #80) 10
Supplemental Reply Affirmation (NYSECEF #82), 11
”Dash Cam” Video of Incident, 12
Stipulation of Partial Discontinuance Resolving Seq. No. 003 (NYSCEF #87), 13
Order of Consolidation (NYSCEF #86). 14
Upon the foregoing cited papers, the Decision and Order of the Court is as follows:

Procedural History
The present personal injury action was commenced with the filing of a Summons and Complaint on or about March 12, 2020. The action arises out of a motor vehicle “accident” which occurred on November 6, 2019 in the westbound lanes of the Staten Island Expressway. At the time of the incident Plaintiff Ezzi was a passenger in a rented U-HAUL pickup truck which was operated by Defendant Suleiman. Defendant Alale was driving a tractor-trailer during the course and scope of his employment with Defendant Domino’s Pizza LLC (”Domino’s”). Defendant Dominos leased the tractor-trailer involved in the incident from Defendant Ryder Truck Rental, Inc (”Ryder’). Plaintiff alleges that he sustained serious injuries as a result of the November 6th incident, and that the Defendants are jointly and severally liable for his injuries.

By So Ordered Stipulation dated June 18, 2021 the present action was consolidated with a related action under Richmond County Index Number 152455/2020. Defendant Suleiman is the Plaintiff in that action, while the Defendants remain the same. The consolidation was limited to purposes of joint discovery and a joint trial. By a second So Ordered Stipulation dated June 18, 2021 the parties agreed to discontinue both consolidated actions as they pertained to Defendants Ryder Truck Rental, Inc. and U-Haul pursuant to the “Graves Amendment.” See 49 USC § 30106.

Present Motions / Relevant Facts
On or about January 5, 2021, Plaintiff filed a motion (Seq. No. 001) which seeks to amend his Complaint to add “Domino’s Pizza Inc.” as a Defendant in this action. Plaintiff argues that as part of his investigation into the matter, he has determined that “Domino’s Pizza Inc.” is an additional insured party under the insurance policy held by Defendant Domino’s Pizza LLC. As such, he wishes to add them to this action. In opposition, Defendant Domino’s Pizza LLC. argues that any claim asserted against Domino’s Pizza Inc. would be frivolous, as they are a special purpose corporation with no employees. Thus, as Mr. Alale was employed by Defendant Domino’s Pizza LLC., any vicarious liability would flow to that entity, not to Domino’s Pizza Inc.

*2 On or about January 22, 2021, Defendants Alale & Domino’s (”The Moving Defendants”) filed a motion (Seq. No.002) which seeks an order granting them summary judgment dismissing Plaintiff’s Complaint on the ground that there are no triable issues of fact regarding how this incident occurred. The Moving Defendants argue that contrary to the position taken by Plaintiff that this was a typical “hit in the rear” accident, this incident was actually “staged” and was intentionally caused by Defendant Suleiman, with or without the knowledge of Plaintiff. The Moving Defendants further request that they be granted the right to add an affirmative defense of the “emergency doctrine” to their Verified Answer if summary judgment is not granted.

The Moving Defendants allege in a sworn affidavit by Defendant Alale that the vehicle operated by Defendant Suliman, in which Plaintiff was a passenger, suddenly swerved into their established lane of traffic and then aggressively applied its brakes with the intention of causing a collision. The Moving Defendants further allege that Defendant Suleiman swerved into their lane, in the middle of a four-lane expressway, without signaling. In opposition, Plaintiff and Defendant Suliman both allege that traffic conditions necessitated the abrupt lane change, and the sudden stop. Arguably this assertion by Plaintiff contradicts his negligence causes of action against Defendant Suliman, as Plaintiff’s counsel asserts that “Defendant Suleiman has provided a non-negligent explanation for how the crash occurred” (Pl aff. in opp. ¶18). However, Defendant Suleiman has not filed a motion for summary judgment.

It is undisputed that Defendant Suleiman was arrested at the scene and charged with a violation of Vehicle and Traffic Law § 511(3) for the “aggravated unlicensed operation of a motor vehicle in the first degree.” Notably, this charge does not directly relate to the manner in which Defendant Suleiman operated his vehicle and rather relates to the fact that he did not possess a valid driver’s license at the time and place of occurrence. In support of his motion the Moving Defendants have offered a copy of the MV104 Police Accident Report prepared by the arresting officer, however the report contains inadmissible hearsay and therefore cannot be considered. See De Diaz v. Klausner, 2021 NY Slip Op 05624 (1st Dept. 2021).

In addition to sworn affidavits in support of the motion for summary judgment, the Moving Defendants have submitted a “dash-cam” video of the incident in question. This split-screen video depicts a view of the inside of the tractor trailer’s cab, and a view in front of the vehicle. The video is clear, has sound, and displays the speed of the Moving Defendants’ vehicle. To date, no party has raised an objection to the submission of the video or challenged its accuracy. Rather, Plaintiff and Defendant Suleiman argue that the motion is premature, and that the video in question is “inconclusive” and insufficient to support the granting of summary judgment.

Applicable Law
The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. See Otty Cab Corp. v. Nazir, 72 N.Y.S.3d 517 (2d Dept. 2017). A movant’s burden can be satisfied by the submission of sworn affidavits in proper evidentiary form. See Charlie Fox, Inc. v. Diallo, 48 N.Y.S.3d 264 (2d Dept. 2016). That burden may also be satisfied by the submission of dashboard camera video evidence. See Alston v. Irizarry, 195 AD3d 578 (2d Dept. 2021). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving party or parties to raise a material issue of fact. See Ubillus-Tambini v. Ischakov, 36 N.Y.S.3d 410 (2d Dept. 2016). Generally, unsworn motor vehicle accident reports do not constitute evidence in admissible form for the purposes of supporting, or defeating, a summary judgment motion. See Hegy v. Coller, 262 AD2d 606 (2d Dept. 1999).

*3 Decision
Here, the moving Defendants have met their initial burden of establishing their entitlement to summary judgment as a matter of law. The affidavit of Defendant Charles Alale establishes that the vehicle he was operating was traveling at a safe rate of speed and at a safe distance from the vehicle ahead of him. Defendant Alale states that contact between the vehicles at issue in this case occurred when Defendant Suleiman’s vehicle suddenly and unexpectedly swerved into his lane of travel and immediately applied its brakes. Defendant Alale indicates that while he attempted to apply the brakes of his vehicle, there was no way for him to stop a tractor trailer given the unexpected proximity of the Suleiman vehicle.

Defendant Alale’s testimony is supported by dashboard camera video evidence of the incident, which clearly shows that the moving Defendants were traveling at 17-18 miles per hour, in moderate traffic conditions just before the incident. The video further shows that the moving Defendants were established in their lane of travel and were maintaining a safe distance of at least three and a half to four car lengths away from the vehicle traveling ahead of them in compliance with VTL § 1129(a). At the five second marker of the video Defendant Suleiman’s U-haul truck comes into frame and abruptly changes lanes into the space directly in front of the Alale vehicle, at a distance of two or three feet. When the Suleiman vehicle enters Alale’s lane, there are at least 3 and a half car lengths between it and the vehicle ahead of it, but despite this distance, the Suleiman vehicle abruptly slams on the brakes, causing the Alale vehicle to strike it in the rear. It appears from the video that this accident was likely “intentionally staged” as argued by the Moving Defendants. It is against the public policy of this state for a plaintiff to recover in a case where he engaged in unlawful conduct. See Oriental v. U-Haul Co. of Ariz., 130 AD3d 702 (2d Dept. 2015); Manning by Manning v. Brown, 91 NY2d 116 (1997).

The video evidence submitted in support of the present motion establishes that there was no objectively identifiable reason for the Suleiman vehicle to have abruptly changed lanes or to have stopped suddenly. Moreover, it is clear that the lane change was “unsafe” in violation of VTL § 1128(a). See Castro v. Hatim, 174 AD3d 464 (1st Dept. 2019). Considering both the affidavit of Defendant Alale together with the dashcam video, the moving Defendants have met their burden of establishing that the unsafe lane change was the sole proximate cause of this incident. See Raza v. Gunik, 129 AD3d 700 (2d Dept. 2015); Reyes-Diaz v. Quest Diagnostic Inc., 123 AD3d 790 (2d Dept. 2014). Defendant Suleiman had a duty not to enter a lane of moving traffic until it was safe to do so, and his failure to heed this duty constitutes negligence per se. See Sanchez v. Oxcin, 157 AD3d 561 (1st Dept. 2018).

As the Moving Defendants have established their entitlement to summary judgment as a matter of law, the burden shifts to the non-moving parties, in this case Plaintiff Ezzi and Defendant Suleiman, to raise a material question of fact. See Paula v. City of New York, 249 AD2d 100 (1st Dept. 1998). The non-moving parties have failed to meet their burden. Both Plaintiff and Defendant Suleiman argue that traffic conditions necessitated both the lane change, and the sudden application of brakes, but the video evidence submitted shows otherwise. There is no indication in the video that the vehicles traveling ahead of the incident were stopping, and even if they were, the vehicles were traveling at such a slow rate of speed such that Defendant Suleiman could have easily stopped in his lane of travel without incident if conditions necessitated him to do so. Moreover, once he changed lanes there was absolutely no reason for him to “slam on his brakes,” as there was a considerable amount of space ahead of his vehicle, but little to no space behind it. The affidavits offered by the non-moving parties are self-serving, contradicted by the video evidence, and insufficient to raise a triable issue of fact. See Weber v. Monsey New Sq. Trails Corp., 191 AD3d 929 (2d Dept. 2021); see also Tardio v. Saleh, 193 AD3d 901 (2d Dept. 2021). There is no evidence in the record that the Moving Defendants in any way contributed to the happening of the incident or could have done anything to avoid it. See Ming v. Grossman, 133 AD3d 742 (2d Dept. 2015). Thus, summary judgment is warranted under the facts presented. See Leonard v. Pomarico, 137 AD3d 1085 (2d Dept. 2016).

*4 Generally, this Court requires motions for summary judgment to be filed after the close of discovery. However, in this case, specific authority was granted for the filing of the present motion. Thus, the non-moving parties’ argument that the motion is premature, standing alone, is without merit. To establish that a motion for summary is premature, the non-moving parties are required to “demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively the knowledge and control of the movant.” Everhome Mtge. Co. v. Aber, 195 AD3d 682 (2d Dept. 2021). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.” Toltchelnikova v. Cmty. Recycling, 197 AD3d 677 (2d Dept. 2021); see also Cajas-Romero v. Ward, 106 AD3d 850 (2d Dept. 2013). Here, the non-moving parties have not established that additional discovery would lead to relevant evidence.

For the detailed reasons set forth above, motion sequence number 002 is hereby granted in its entirety. All causes of action asserted by Plaintiff are hereby dismissed with prejudice. In light of this Court’s decision on the motion for summary judgment the Plaintiff’s motion to amend his Summons and Complaint to add a party is hereby denied as moot. Similarly, Defendant’s motion to amend his Answer to assert an “emergency doctrine” defense is hereby denied without prejudice as academic, although the facts presented would arguably be sufficient to satisfy the doctrine, as the Moving Defendants were faced with an unexpected emergency situation not of their own making. See Penaranda v. Tesoriero, 195 AD3d 633 (2d Dept. 2021).

This constitutes the Decision and Order of the Court on all issues raised in relation to

motion sequence numbers 001 and 002. As summary judgment has been granted to the Moving Defendants, the matter shall only proceed against Defendant Suleiman. Plaintiff’s attorney in the consolidated action is hereby granted 10 days from service of this motion to consider withdrawing that action. In the event that he fails to do so, the Defendants in that action are authorized to file a motion for summary judgment in accordance with this Decision.
Dated: December 17, 2021
All Citations
— N.Y.S.3d —-, 2021 WL 6058856, 2021 N.Y. Slip Op. 21348