Counsel: [*1] Napoli Shkolnik PLLC, New York, NY (Joseph Napoli and Craig Phemister of counsel), for appellant.
Thomas K. Moore (Andrea G. Sawyers, Melville, NY [Scott W. Driver], of counsel), for respondents.
Judges: FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ. CONNOLLY, J.P., CHRISTOPHER, ZAYAS and GENOVESI, JJ., concur.
Opinion
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated June 28, 2019. The order granted the defendants’ motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
This action arises from a two-vehicle accident which occurred on the morning of November 10, 2016, on the southbound side of Interstate 87, near Exit 14, in Rockland County. The accident involved a car driven by the plaintiff and a tractor-trailer driven by the defendant Nelson S. DeSouza, and owned by DeSouza’s employer, the defendant Virginia Transportation Corp. (hereinafter together the defendants).
Following the close of discovery, the defendants moved for summary judgment dismissing the complaint. In an order dated June 28, [*2] 2019, the Supreme Court granted the defendants’ motion. The plaintiff appeals.
“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” Flores v Westchester County Bee Line, 186 AD3d 676, 676, 126 N.Y.S.3d 922 [internal quotation marks omitted]). “There can be more than one proximate cause of an accident, and, [g]enerally, it is for the trier of fact to determine the issue of proximate cause” (Estate of Cook v Gomez, 138 AD3d 675, 676-677, 30 N.Y.S.3d 148 [citations and internal quotation marks omitted]). “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” (Bermejo v Khaydarov, 155 AD3d 597, 597-598, 63 N.Y.S.3d 107 [internal quotation marks omitted]).
A driver has a duty not to merge into a lane of moving traffic until it is safe to do so, and a violation of this duty constitutes negligence as a matter of law (seeVehicle and Traffic Law §§ 1128[a]; 1142[b]; Edwards v J & D Express Serv. Corp., 180 AD3d 871, 872, 116 N.Y.S.3d 597). Moreover, “[t]he operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring them to yield” (Pei Ru Guo v Efkarpidis, 185 AD3d 949, 951, 127 N.Y.S.3d 545). “Although [**2] a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which [*3] has failed to yield is not comparatively negligent for failing to avoid the collision” (Yelder v Walters, 64 AD3d 762, 764, 883 N.Y.S.2d 290 [citations omitted]).
Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint. They demonstrated, through the deposition testimony of the plaintiff and DeSouza, that the plaintiff was negligent as a matter of law, as he failed to yield the right-of-way and instead increased his speed in an attempt to merge on to the highway ahead of the tractor-trailer (see Yu Mei Liu v Weihong Liu, 163 AD3d 611, 612, 81 N.Y.S.3d 75; Yelder v Walters, 64 AD3d at 764). The defendants also demonstrated that the plaintiff’s actions were the sole proximate cause of the accident (see Jeong Sook Lee-Son v Doe, 170 AD3d 973, 974, 96 N.Y.S.3d 302; Criollo v Maggies Paratransit Corp., 155 AD3d 683, 684, 63 N.Y.S.3d 516).
In opposition, the plaintiff failed to raise a triable issue of fact (see Foley v Santucci, 135 AD3d 813, 814, 23 N.Y.S.3d 338; Heltz v Barratt, 115 AD3d 1298, 1299, affd 24 NY3d 1185). The expert affidavit submitted by the plaintiff was speculative, conclusory, and unsupported by the record (see Galano v ILC Holdings, Inc., 164 AD3d 1315, 1317, 82 N.Y.S.3d 587).
The plaintiff’s remaining contention need not be reached in light of our determination.
CONNOLLY, J.P., CHRISTOPHER, ZAYAS and GENOVESI, JJ., concur.
United States District Court for the Eastern District of Missouri, Eastern Division
April 12, 2022, Decided; April 12, 2022, Filed
Case No. 4:21-cv-00234-SRC
Reporter
2022 U.S. Dist. LEXIS 67371 *; 2022 WL 1091138
JOSEPHINE BURE, Plaintiff(s), v. DISTRIBUTION SOLUTIONS, INC., et al., Defendant(s).
Core Terms
independent contractor, no right, undisputed, time of an accident, summary judgment, vicarious, summary judgment motion, matter of law, products, regular
Counsel: [*1] For Josephine Bure, Plaintiff: Todd R. Nissenholtz, LEAD ATTORNEY, COFMAN TOWNSLEY LLP, Clayton, MO.
For Distribution Solutions, Inc., Rae Anna Nail, Defendants: Andrew Christopher Tedder, LEAD ATTORNEY, CHILDRESS AHLHEIM LLC, St. Louis, MO; Rebecca A. Cary, LEAD ATTORNEY, CHILDRESS AHLHEIM LLC, St. Louis, MO; Yvette M. Boutaugh, LEAD ATTORNEY, CHILDRESS AHLHEIM LLC, St. Louis, MO.
Judges: STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE.
Opinion by: STEPHEN R. CLARK
Opinion
Memorandum and Order
Josephine Bure claims that truck-driver Rae Anna Nail negligently crashed into her on the highway, and that Distribution Solutions, the trucking company for whom Nail worked, as well as Tyson Foods, whose chicken products Nail hauled, bear vicarious liability for Nail’s negligence. Tyson moves for summary judgment, arguing that the undisputed facts show that Tyson and Nail did not maintain a principal-agent relationship; thus, no theory of vicarious liability permits Bure to hold Tyson liable for the crash. Bure elected not to respond to Tyson’s motion, and the Court concludes that the undisputed facts entitle Tyson to summary judgment.
I. Background
Bure originally filed this case in state court against defendants Distribution [*2] Solutions and Nail, alleging that Nail negligently crashed into Bure and that, because Nail was employed by Distribution Solutions, it was vicariously liable for Nail’s negligence. Doc. 10. Several months after Distribution Solutions and Nail removed the case to this Court, Doc. 1, Bure filed an amended complaint joining Tyson as a defendant, Doc. 28. The amended complaint added a negligence count against Tyson, id. at ¶¶ 19-23, and alleges that, “at all relevant times, Defendant Nail was also an agent of Defendant Tyson and was operating the motor vehicle at issue within the course and scope of her agency with Defendant Tyson,” id. at ¶ 13. Tyson now moves for summary judgment, arguing that the undisputed facts demonstrate that Nail was not its agent. Docs. 57, 58.
Despite the Court’s extending Bure’s time to respond to Tyson’s motion for summary judgment, Bure did not respond to the motion. Doc. 69. Because Bure does not oppose Tyson’s motion for summary judgment and does not specifically controvert the facts Tyson sets out in its statement of uncontroverted material facts, Doc. 59, the Court deems the following facts admitted and “treat[s] the motion as submitted.” Ivy v. Kimbrough, 115 F.3d 550, 552 (8th Cir. 1997); E.D. Mo. L.R. 4.01(E) (“All matters [*3] set forth in the moving party’s Statement of Uncontroverted Material Facts shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.”).
A car accident involving Bure and truck-driver Nail happened on October 22, 2018. Doc. 59 at ¶ 1. While Nail transported Tyson products at the time of the accident, Tyson did not control the route Nail took to deliver Tyson’s products, had no right to fire Nail, had no right to control or direct Nail’s conduct, and had no power of control to enforce orders regarding the manner of performance. Doc. 59 at ¶¶ 2, 4-7; Doc. 59-2 at p. 57:10-24; Doc. 58 at p. 4. Distribution Solutions leased the tractor-trailer involved in the accident from MKI Leasing, and neither Distribution Solutions nor Nail leased the tractor-trailer from Tyson. Doc. 59 at ¶¶ 8-12. Tyson, likewise, did not lease the tractor-trailer from Distribution Solutions. Id. at ¶¶ 13-14. Tyson did not supply equipment, instrumentalities, or tools for Nail’s use and provided no payment to Nail for her time or services as a truck driver. Id. at ¶¶ 15-16.
Moreover, Nail was a regular, full-time employee of Distribution Solutions, which operated [*4] as a business at the time of the accident, and her work was part of the regular business of Distribution Solutions. Id. at ¶¶ 17-19, 30. At the time of the accident, Distribution Solutions was an independent contractor for Tyson, and Distribution Solutions employed Nail to fulfill Distribution Solutions’ duties as an independent contractor for Tyson. Id. at ¶¶ 20-21. Nail was not an employee or agent of Tyson, and neither Distribution Solutions nor Nail had a belief that a master and servant relationship existed between Tyson and Nail. Id. at ¶¶ 22-25. Neither Distribution Solutions nor Nail was a party to a partnership agreement or joint venture with Tyson. Id. at ¶¶ 26-29.
II. Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Even if a motion for summary judgment on a particular claim stands unopposed, the district court must still determine that the moving party is entitled to judgment as a matter of law on that claim.” Interstate Power Co. v. Kansas City Power & Light, Co., 992 F.2d 804, 807 (8th Cir. 1993). In ruling on a motion for summary judgment, even if unopposed, the Court must view the evidence in the light [*5] most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. See AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the initial burden of showing both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Fed. R. Civ. P. 56(a).
In response to the proponent’s showing, the opponent’s burden is to “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). Rule 56(c) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
III. Discussion
As mentioned, Bure attempts to hold Tyson vicariously liable for Nail’s alleged negligence on a respondeat-superior theory. Doc. 28 at ¶¶ 19-23. “[A]n employer is liable under the theory of respondeat superior for damages attributable to the misconduct of an employee or agent acting within the course and scope of the employment or agency.” McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. 1995) (citing Burks v. Leap, 413 S.W.2d 258, 266 (Mo. 1967)). However, employers generally do not bear vicarious liability for the acts [*6] of their independent contractors. Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 66 (Mo. Ct. App. 2003). Whether an individual is an agent or an independent contractor is a question of fact, but when the facts are undisputed and “only one reasonable conclusion can be drawn” from the facts, the question can be decided as a matter of law. Huggins v. FedEx Ground Package Sys. Inc., 592 F.3d 853, 857 (8th Cir. 2010) (applying Missouri law).
The Court considers many factors to distinguish between agents and independent contractors, including:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the [*7] relation of master and servant; and (j) whether the principal is or is not in business.
Keller v. Mo. Baptist Hosp. of Sullivan, 800 S.W.2d 35, 38 (Mo. Ct. App. 1990) (quoting Restatement (Second) of Agency, § 220(2) (1958)). The first factor, the right to control, is the “pivotal factor.” Leach v. Bd. of Police Comm’rs of Kansas City, 118 S.W.3d 646, 649 (Mo. Ct. App. 2003). “If there is no right to control, there is no liability because no master-servant relationship exists.” Hougland v. Pulitzer Publ. Co., 939 S.W.2d 31, 33 (Mo. Ct. App. 1997) (citing Wilson v. St. Louis Area Council, Boy Scouts, 845 S.W.2d 568, 570 (Mo. Ct. App. 1992)). While Bure alleged “[u]pon information and belief, at all relevant times, Defendant Nail was also an agent of Defendant Tyson and was operating the motor vehicle at issue within the course and scope of her agency with Defendant Tyson,” Doc. 28 at ¶ 13, the undisputed facts before the Court support “only one reasonable conclusion”—that Nail was an independent contractor for Tyson, not its agent.
While Nail transported Tyson products at the time of the accident, Tyson did not control the route Nail took to deliver Tyson’s products, had no right to fire Nail, had no right to control or direct Nail’s conduct, and had no power of control to enforce orders regarding the manner of performance. Doc. 59. at ¶¶ 2, 4-7; Doc. 59-2 at p. 57:10-24; Doc. 58 at p. 4. Tyson did not supply equipment, instrumentalities, or tools for Nail’s use and provided no payment to Nail for her time or services as a truck driver. [*8] Doc. 59 at ¶¶ 15-16.
Moreover, Nail was a regular, full-time employee of Distribution Solutions, which operated as a business at the time of the accident, and her work was part of the regular business of Distribution Solutions. Id. at ¶¶ 17-19, 30. At the time of the accident, Distribution Solutions was an independent contractor for Tyson, and Distribution Solutions employed Nail to fulfill Distribution Solutions’ duties as an independent contractor for Tyson. Id. at ¶¶ 20-21. Neither Distribution Solutions nor Nail was party to a partnership agreement or joint venture with Tyson. Id. at ¶¶ 26-29. Importantly, Nail was not an employee or agent of Tyson, and neither Distribution Solutions nor Nail had a belief that a master and servant relationship existed between Tyson and Nail. Id. at ¶¶ 22-25.
Applying these undisputed facts to the factors set out in the Restatement, see Keller, 800 S.W.2d at 38, the Court finds that Tyson had no right to control Nail and that Nail was an independent contractor for Tyson. Thus, Bure’s vicarious-liability claim against Tyson fails as a matter of law. See Hougland, 939 S.W.2d at 33 (“If there is no right to control, there is no liability because no master-servant relationship exists.”).
IV. Conclusion [*9]
In sum, the undisputed facts show that no principal-agent relationship existed between Nail and Tyson; thus, Bure cannot hold Tyson Foods vicariously liable for Nail’s alleged negligence. The Court grants Tyson’s [57] motion for summary judgment on Count 2 of Bure’s amended complaint and directs the Clerk to terminate Tyson Foods, Inc. as a party to this suit.
