Court of Appeals of Ohio, First Appellate District, Hamilton County

July 6, 2022, Date of Judgment Entry on Appeal

APPEAL NO. C-210461

Reporter

2022-Ohio-2345 *; 2022 Ohio App. LEXIS 2221 **; 2022 WL 2445490

TERESA ALEXANDER & DANIEL DETERS, Coadministrators of the Estate of Jordan Alexander, Plaintiffs-Appellants, vs. TIFFANY DAVIS, and DAYTON CORRUGATED PACKAGING CORP., Defendants, and Q5 TALENT, L.L.C., and HIRE SOLUTION, L.L.C., Defendants-Appellees.

Notice: THESE ARE NOT OFFICIAL HEADNOTES OR SYLLABI AND ARE NEITHER APPROVED IN ADVANCE NOR ENDORSED BY THE COURT. PLEASE REVIEW THE CASE IN FULL.

Prior History:  [**1] Civil Appeal From: Hamilton County Court of Common Pleas. TRIAL NO. A-1904890.

Disposition: Reversed and Cause Remanded.

Core Terms

leased, regulations, lessee, carrier-lessee, placards, driver, truck, rig, negligent hiring, retention, common-law, displayed, carrier, interstate, parties, courts, irrebuttable presumption, statutory employer, innocent victim, employment relationship, tractor trailer, lessor, time of an accident, contractor, respondeat, trip-lease

Case Summary

Overview

HOLDINGS: [1]-Trial court erred in granting defendant’s motion for summary judgment under the doctrine of statutory employment because did not bar claimants’ claim for negligent hiring and retention against defendant.

Outcome

Reversed and cause remanded.

LexisNexis® Headnotes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > … > Summary Judgment > Summary Judgment Review > Standards of Review

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

Civil Procedure > Appeals > Standards of Review > De Novo Review

HN1  Entitlement as Matter of Law, Appropriateness

Summary judgment is appropriate when there exists no genuine issue of material fact, the party moving for summary judgment is entitled to judgment as a matter of law, and the evidence, when viewed in favor of the nonmoving party, permits only one reasonable conclusion that is adverse to that party. An appellate court reviews a grant of summary judgment de novo.

Administrative Law > Agency Rulemaking > Rule Application & Interpretation

Business & Corporate Compliance > … > Transportation Law > Interstate Commerce > US Interstate Commerce Commission

HN2  Agency Rulemaking, Rule Application & Interpretation

A strict construction of the Interstate Commerce Commission regulations is more straightforward than the minority view and does a better job of advancing the interests of the public at large by compelling lessees to enforce safety standards and removing factual confusion about which party is responsible for damages.

Business & Corporate Compliance > … > Transportation Law > Interstate Commerce > US Interstate Commerce Commission

Evidence > Inferences & Presumptions > Presumptions > Creation

HN3  Interstate Commerce, US Interstate Commerce Commission

Under the Interstate Commerce Commission regulations, liability attaches to a lessee where it is established that at the time of the accident a lease of the vehicle was in effect and the vehicle displayed the lessee’s Interstate Commerce Commission placards. Finally, 49 C.F.R. 1057.12(c)(1) creates an irrebuttable presumption of an employment relationship between the lessee and the driver of a vehicle that displays the lessee’s Interstate Commerce Commission placards.

Business & Corporate Compliance > … > Transportation Law > Interstate Commerce > US Interstate Commerce Commission

HN4  Interstate Commerce, US Interstate Commerce Commission

49 C.F.R. 1057.12 does not eliminate the common-law liability of parties other than the statutory employer.

Headnotes/Summary

Headnotes

SUMMARY JUDGMENT — EMPLOYER – EMPLOYEE — STATUTORY EMPLOYMENT — NEGLIGENCE

Syllabus

The trial court erred in granting defendant’s motion for summary judgment based on the statutory-employment doctrine because that doctrine only applies between the victim and the carrier-lessee whose placards are on the side of the tractor-trailer rig at the time of the vehicle accident.

Counsel: Mezibov Butler, Susan J. Butler and Brian J. Butler, for Plaintiffs-Appellants,.

Reminger Co., L.P.A., Timothy B. Spille, Brian D. Sullivan and Brianna Marie Prislipsky, for Defendants-Appellees.

Judges: CROUSE, Judge. MYERS, P.J., and BOCK, J., concur.

Opinion by: CROUSE

Opinion

Crouse, Judge.

 [*P1]  In October 2017, defendants-appellees Q5 Talent, L.L.C., and Hire Solution, L.L.C., (collectively “Q5”) entered into an agreement with defendant Dayton Corrugated Packaging Corporation (“DCPC”) to provide temporary workers to DCPC. Per the agreement, Q5 would pay the worker and invoice DCPC for the cost. The worker was to be considered an “independent contractor” to DCPC. Tiffany Davis was hired by Q5 and placed in a pool of applicants for open commercial trucking [**2]  positions with DCPC. DCPC selected Davis for a position.

 [*P2]  On August 14, 2018, Davis was assigned by DCPC to drive a route in Cincinnati, Ohio. She was driving a tractor trailer leased by DCPC that displayed DCPC’s Public Utilities Commission of Ohio (“P.U.C.O.”) number and DCPC’s United States Department of Transportation (“D.O.T.”) number. Davis illegally drove the tractor trailer eastbound on Columbia Parkway¹ and allegedly attempted an illegal left turn or U-turn. As Davis was making the turn, Jordan Alexander drove her motorcycle over the crest of a hill eastbound on Columbia Parkway and collided with the tractor trailer. Alexander died of her injuries at the scene.

 [*P3]  Plaintiffs-appellants Teresa Alexander and Daniel Deters, co-administrators of Alexander’s estate, brought claims for wrongful death and survivorship against Davis, DCPC, and Q5, negligent hiring and retention against DCPC and Q5, and negligent supervision against DCPC.

 [*P4]  Q5 moved for summary judgment on all claims against it on the basis that Davis was a statutory employee of DCPC at the time of the crash, and therefore, Q5 could not be held liable pursuant to the Ohio Supreme Court’s decision in Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc., 58 Ohio St.3d 261, 569 N.E.2d 1049 (1991). The trial court granted [**3]  Q5’s motion for summary judgment. Plaintiffs filed a motion for reconsideration regarding their claim for negligent hiring and retention. The court denied the motion and amended its judgment entry to certify that there was no just reason to delay an appeal.

 [*P5]  Plaintiffs have appealed. In their sole assignment of error, they argue that the trial court erred in ruling that Q5 was immune from liability for plaintiffs’ claims for wrongful death, survivorship, and negligent hiring and retention. For the reasons discussed below, the sole assignment of error is sustained. The trial court’s judgment is reversed and the cause is remanded for further proceedings.

Sole Assignment of Error

 [*P6]  HN1 Summary judgment is appropriate when there exists no genuine issue of material fact, the party moving for summary judgment is entitled to judgment as a matter of law, and the evidence, when viewed in favor of the nonmoving party, permits only one reasonable conclusion that is adverse to that party. Hefler v. Remke Mkts., Inc., 1st Dist. Hamilton No. C-200364, 2021-Ohio-2694, ¶ 7. We review a grant of summary judgment de novo. Id.

 [*P7]  Central to the trial court’s holding and this appeal is the Ohio Supreme Court’s decision in Wyckoff, 58 Ohio St.3d 261, 569 N.E.2d 1049. In Wyckoff, the driver of the tractor trailer rig, Clinton Bell, worked for [**4]  Wyckoff Trucking, Inc., (“Wyckoff”), which owned the rig. Id. at syllabus. Wyckoff leased the rig and Bell’s services to C.J. Rogers Trucking Co. (“Rogers”). Per the lease, Rogers had exclusive possession, control, and responsibility of the rig. Id. However, Wyckoff and Rogers had a verbal agreement that the rig could be “trip-leased” to other companies when it was not being utilized by Rogers. Id.

 [*P8]  On the day of the accident, Bell completed delivery of a shipment for a company not involved in the suit. Id. Bell then telephoned Marsh Brothers Trucking Service, Inc., (“Marsh”) to inquire about trip-leasing the rig to pick up a shipment for Marsh. Marsh directed Bell to pick up a shipment from Armco Steel and then come to Marsh’s office in Dayton in order to complete the paperwork for the trip-lease. Id. On his way to Armco Steel, Bell’s rig collided with a vehicle driven by the plaintiff, Thomas Howard. Id. Rogers’s Interstate Commerce Commission (“I.C.C.”)² and P.U.C.O. placards were displayed on the side of the rig. Id.

 [*P9]  Howard sued Bell, Rogers, Wyckoff and other parties. Bell and Wyckoff requested a declaratory judgment to determine whether Rogers and Marsh, along with their insurance [**5]  companies, were required to defend and indemnify them. Id. The court of appeals, citing respondeat superior principles and the Ohio Supreme Court’s decision in Thornberry v. Oyler Bros., Inc., 164 Ohio St. 395, 131 N.E. 2d 383 (1955), held that Marsh was jointly and severally liable with Wyckoff for the injuries and Rogers was not liable because Bell was not acting in the business of Rogers at the time of the crash. Wyckoff at syllabus.

 [*P10]  The Ohio Supreme Court reversed. Wyckoff, 58 Ohio St.3d at 264, 569 N.E.2d 1049. It noted that the I.C.C. rule that formed the basis of its decision in Thornberry had been amended, putting Thornberry’s viability in doubt. Id. The amended rule, codified at 49 C.F.R. 1057.12(c)(1) (the “control regulation”), provided that the carrier-lessee “shall have exclusive possession and control of the vehicle and shall assume complete responsibility for the operation of the vehicle” and shall display its I.C.C. placards on the vehicle. Id. at 264-265. This rule was enacted in response to perceived “abuses” by carriers that “threatened the public interest and the economic stability of the trucking industry,” such as the use of leased vehicles to avoid safety regulations. Id. at 264. The use of leased vehicles had also led to “public confusion as to who was financially responsible for accidents caused by those vehicles.” Id.

 [*P11]  The court stated, [**6]  “The determinative issue in this appeal is whether a carrier-lessee of a motor vehicle engaged in interstate commerce is liable under [I.C.C.] regulations for any accidents caused by the negligence of the driver while the lease is in effect and while the motor vehicle displays the carrier-lessee’s I.C.C. placards or identification numbers, even though the driver is not the lessee’s employee.” Id. at 264.

 [*P12]  The court considered two options. Under the minority approach, where a lease was in effect at the time of the accident and the lessee’s I.C.C. placards were displayed on the vehicle, a rebuttable presumption of an employment relationship between the driver and the carrier-lessee existed. Id. at 265. This meant that the lessee’s liability was ultimately determined using common-law doctrines, such as respondeat superior. Id. The majority approach provided that 49 C.F.R. 1057.12(c)(1) created an irrebuttable presumption (“statutory employment”) of an employment relationship between the driver and carrier-lessee displaying its I.C.C. placards. Id. The majority view “essentially states that if the driver is negligent, the carrier-lessee is liable as a matter of law for accidents that occur while a lease is still in effect and its [**7]  I.C.C. placards are displayed on the vehicle.” Id.

 [*P13]  The court adopted the majority approach. HN2 “[A] strict construction of the I.C.C. regulations is more straightforward than the minority view and does a better job of advancing the interests of the public at large” by compelling lessees to enforce safety standards and removing factual confusion about which party is responsible for damages. Wyckoff, 58 Ohio St.3d at 266, 569 N.E.2d 1049. This relieves the burden on innocent victims and forces the trucking companies to allocate indemnification agreements among themselves. Id. “Once liability is fixed on the statutory employer, it is the statutory employer who must seek contribution or indemnification from other potentially responsible parties, not the innocent victim.” Id. Furthermore, the majority approach clears up confusion in situations such as the one present in Wyckoff, where Bell was on his way to pick up a trip-lease load for Marsh, but at any time prior to the actual pick-up of Marsh’s goods on a trip-lease, Rogers could have demanded use of Bell’s rig under the terms of the lease. Id. The “bright-line” guidelines of the majority viewpoint “unmistakably fix liability for the accident instead of essentially forcing the innocent victim [**8]  to sue everyone in order to redress his injuries and damages.” Id.

 [*P14]  The court held, “[I]n tort causes of action involving leased vehicles of interstate motor carriers, primary liability shall be determined with regard to Interstate Commerce Commission regulations rather than the common-law doctrines of respondeat superior, master-servant, independent contractor and the like.” Id. HN3 Under the I.C.C. regulations, liability attaches to a lessee where it is established that at the time of the accident a lease of the vehicle was in effect and the vehicle displayed the lessee’s I.C.C. placards. Id. Finally, the court held that 49 C.F.R. 1057.12(c)(1) creates an “irrebuttable presumption of an employment relationship” between the lessee and the driver of a vehicle that displays the lessee’s I.C.C. placards. Id. at 266-267.

 [*P15]  Justice Brown concurred in the judgment, but wrote separately to “emphasize that there is nothing in our opinion which precludes an injured plaintiff from directly suing parties other than the statutory employer, under common-law principles, if the plaintiff so desires. HN4 As other courts have recognized, Section 1057.12, Title 49, C.F.R. does not eliminate the common-law liability of parties other than the statutory employer.” [**9]  Id. at 267 (Brown, J., concurring).

 [*P16]  Plaintiffs challenge the trial court’s judgment on three grounds. They argue that (1) Wyckoff does not apply to protect Q5 in the present case, (2) Wyckoff is no longer good law, and (3) Wyckoff does not apply to the claim for negligent hiring and retention filed against Q5.

I. The Scope of Wyckoff

 [*P17]  Plaintiffs acknowledge that DCPC has primary liability pursuant to Wyckoff because the truck bore DCPC’s P.U.C.O. and D.O.T. placards. But, they argue, the trial court improperly extended Wyckoff when it held that Q5 cannot be liable because DCPC is primarily liable. Plaintiffs argue that the purpose of Wyckoff was to benefit the victim and the public at large and that the holding in Wyckoff should not be extended to allow defendants such as Q5 to avoid liability.

 [*P18]  Q5 argues that Wyckoff established an irrebuttable presumption of employment for a carrier-lessee that supersedes all common-law doctrines of employment and liability. As a result, Q5 contends that it is not Davis’s employer, and therefore, there is no relationship between Davis and Q5 through which liability might flow.

 [*P19]  We hold that while Wyckoff establishes that DCPC is primarily liable, it does not establish that DCPC is exclusively liable or that Q5 is not liable. [**10] 

 [*P20]  The Wyckoff court held, “[I]n tort causes of action involving leased vehicles of interstate motor carriers, primary liability shall be determined with regard to Interstate Commerce Commission regulations rather than the common-law doctrines of respondeat superior, master-servant, independent contractor and the like.” (Emphasis added.) Wyckoff, 58 Ohio St.3d at syllabus, 569 N.E.2d 1049. Significantly, Justice Brown stated in his concurrence that the Wyckoff holding should not be interpreted as eliminating the common-law liability of parties other than the statutory employer. Id. at 267 (Brown, J. concurring).

 [*P21]  Furthermore, this court narrowly interpreted Wyckoff’s holding in Tolliver v. Braden, 112 Ohio App.3d 86, 677 N.E.2d 1249 (1st Dist.1996). In Tolliver, Donald Brady was driving a tractor trailer rig home from a social visit with the rig’s owner, Robert Braden, when he hit and killed another motorist. Id. at 87. Brady was not hauling any freight or pulling a trailer at the time. Prior to the accident, Braden had leased the truck to J&W Express and the truck bore J&W’s I.C.C. placards at the time of the accident. Id.

 [*P22]  Brady argued that, pursuant to Wyckoff, he was the statutory employee of J&W at the time of the accident, and therefore, J&W’s insurance provider was required to defend him against the suit brought by the decedent’s estate. Id. at 87-88. This court [**11]  rejected Brady’s argument. The court stated:

[T]he intent of the court’s holding in Wyckoff is to protect the public at large; it only applies between the ‘innocent victim’ and the interstate carrier whose placard appears on the vehicle. Wyckoff does not prevent the carrier deemed to be the statutory employer from seeking indemnification or contribution, nor does it nullify contracts between parties who are not members of the protected class and who are in a position to determine the relationships among the parties.

Id. at 88. Brady was not operating the truck with J&W’s permission or furthering its business at the time of the accident. Id. at 89. Therefore, pursuant to the terms of the insurance policy, Brady was not covered by the policy. Id.

 [*P23]  The Tolliver court held that Wyckoff only applies between an innocent victim and the carrier-lessee whose placards are on the side of the rig, and the intent of Wyckoff is to protect the public at large. Id. at 88. Therefore, Wyckoff does not apply where it is the truck driver who seeks to invoke the statutory-employment doctrine in order to obtain insurance coverage. See id. at 88-89.

 [*P24]  This interpretation of Wyckoff and Tolliver is supported by other cases. See Republic W. Ins. Co. v. Williams, D.S.C. No. 9:04-0449-23, 2005 U.S. Dist. LEXIS 55472, *15 (Aug. 15, 2005), citing Tolliver at 88 (“a number of Ohio courts have limited Wyckoff‘s application [**12]  and have found that its ‘irrebuttable presumption’ rule was intended to protect injured third-party victims in their suits against motor-carriers, not the driver of the leased vehicle or a sophisticated entity like his insurer.”); Diamond State Ins. Co. v. Ranger Ins. Co., 47 F.Supp.2d 579, 588-589 (E.D.Pa.1999), citing Gilstorff v. Top Line Express, Inc., 6th Cir. No. 96-3081, 1997 U.S. App. LEXIS 780, *10 (Jan. 14, 1997), citing Tolliver, 112 Ohio App.3d at 86, 677 N.E.2d 1249 (“[Some] Ohio appellate courts, and an unpublished Sixth Circuit decision, have ‘limited Wyckoff to its literal application as between the innocent victim and an interstate carrier-lessee whose I.C.C. number appears on the vehicle, because Wyckoff itself indicates that the statutory employer may seek contribution and/or indemnification from other potentially responsible parties.'”); Carolina Cas. Ins. Co. v. Panther II Transp., Inc., 402 Fed.Appx. 62, 66 (6th Cir.2010) (“Wyckoff’s language also strongly suggests that the Ohio Supreme Court never intended to extend the irrebuttable presumption to anyone other than the victims of truck accidents.”); Harco Natl. Ins. Co. v. Am. Inter-Fidelity, 6th Dist. Lucas No. L-93-313, 1994 Ohio App. LEXIS 4461, *6 (Sep. 30, 1994) (Wyckoff only applies between carrier-lessee and innocent victim); Balez-Pierce v. Price & Boyce, Inc., 86 Ohio App.3d 119, 122, 619 N.E.2d 1194 (5th Dist.1993) (“Wyckoff allocates responsibility as it applies to the public. It does not affect the interpretation of any contracts among the various parties-defendant.”); Roseberry v. Balboa Ins. Co., 90 Ohio App.3d 33, 36, 627 N.E.2d 1062 (12th Dist.1993) (“The irrebuttable presumption set forth in Wyckoff was intended for the benefit of the public at large, not for the driver of the leased vehicle.”).

 [*P25]  But see Gulick v. Costain Coal, Inc., 5th Dist. Coshocton No. 95-24, 1996 Ohio App. LEXIS 4739, *3 (Oct. 9, 1996); Canal Ins. Co. v. Brogan, 93 Ohio App.3d 765, 771, 639 N.E.2d 1219 (10th Dist.1994) (“Although Wyckoff emphasizes the [**13]  benefit to the public from the scheme for determining liability espoused therein, Wyckoff is clearly also meant to settle issues of liability as to the carrier-lessee, the lessor, and their respective insurers.”); Ohio Cas. Ins. Co. v. United S. Assur. Co., 85 Ohio App.3d 529, 620 N.E.2d 163 (2d Dist.1993) (same).

 [*P26]  We hold that Wyckoff does not foreclose plaintiffs from pursuing claims against Q5 based on the common-law principle of respondeat superior. By establishing primary liability for one defendant through the statutory-employment doctrine, Wyckoff did not foreclose the possibility of liability for other defendants through common-law principles. See Zamalloa v. Hart, 31 F.3d 911, 916 (9th Cir.1994) (holding that the Wyckoff court had not addressed the issue of whether multiple carrier-lessees could be liable at the same time). Furthermore, it is questionable whether Wyckoff is still good law after the 1992 amendment to the regulation upon which its holding was based, 49 C.F.R. 1057.12(c).

II. Is Wyckoff Still Good Law?

 [*P27]  In 1992, the I.C.C. renumbered and amended 49 C.F.R. 1057.12(c). It added subsection (4), which provides:

Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies [**14]  with 49 U.S.C. 14102 and attendant administrative requirements.

49 C.F.R. 376.12(c)(4) (originally codified at 49 C.F.R. 1057.12(c)(4)).

 [*P28]  The I.C.C. explained the purpose of the amendment in its proposal to amend the regulation:

The purpose of the amendment is to give notice to the courts and workers’ compensation or other administrative tribunals who have ruled otherwise that, in requiring that a lease provide for the lessee’s “exclusive possession, control, and use” of the equipment provided by the lessor, it is not the intention of the Commission’s regulations to define or affect the relationship between a motor carrier lessee and an independent owner-operator lessor. * * * [T]he type of control required by the regulation does not affect “employment” status and * * * it is not the intention of the regulations to affect the relationship between a motor carrier lessee and the independent owner-operator lessor.

Petition to Amend Lease and Interchange of Vehicle Regulations, 57 Fed.Reg. 32905 (July 24, 1992); accord Petition to Amend Lease & Interchange of Vehicle Regulations, 8 I.C.C.2d 669, 671 (1992).

 [*P29]  Multiple federal courts have interpreted the amendment as removing the control regulation from the employment-status analysis altogether, nullifying the interpretation relied upon by the court in Wyckoff. See, e.g., UPS Ground Freight, Inc. v. Farran, 990 F.Supp.2d 848, 860 (S.D.Ohio 2014) (holding that the Wyckoff court [**15]  misinterpreted the I.C.C. regulations and that the amendment abrogated the doctrine of statutory employment); Edwards v. Cardinal Transport, Inc., 821 Fed.Appx. 167, 173 (4th Cir.2020) (discussing how federal courts have interpreted 49 C.F.R. 376.12(c)(4) since the 1992 amendment).

 [*P30]  For the most part, Ohio courts have followed Wyckoff’s holding, even after the 1992 amendment. In Cincinnati Ins. Co. v. Stacey, 12th Dist. Clinton No. CA2008-06-019, 2008-Ohio-6761, ¶ 23, the Twelfth District held that the 1992 amendment did not abrogate Wyckoff. The opinion relied on other courts that have continued to follow Wyckoff after the amendment, although none of the cases cited discuss the 1992 amendment. See id. at ¶ 24.

 [*P31]  In Bookwalter v. Prescott, 168 Ohio App. 3d 262, 2006-Ohio-585, 859 N.E.2d 978, ¶ 16 (6th Dist.), the Sixth District recognized that “there may be a question regarding the status of Wyckoff’s irrebuttable presumption” following the 1992 amendment. But it distinguished Wyckoff factually, and therefore, chose not to resolve the issue. Id.

 [*P32]  There is a question as to Wyckoff’s viability following the 1992 amendment to 49 C.F.R. 376.12(c). However, we do not reach that issue definitively because we hold that Wyckoff does not insulate Q5 from potential liability for the derivative wrongful-death and survivorship claims.

III. Does Wyckoff apply to plaintiffs’ claim for negligent hiring and retention against Q5?

 [*P33]  Plaintiffs argue that Wyckoff does not bar their claim for negligent hiring and retention against Q5 because that [**16]  claim is a direct claim based on Q5’s negligent acts/omissions. Specifically, plaintiffs allege that Q5 knew or should have known that Davis was incompetent to drive a tractor trailer and that Q5’s negligence in hiring and retaining Davis was the proximate cause of Alexander’s death.

 [*P34]  Q5 does not dispute that a claim for negligent hiring and retention is a direct claim or that Wyckoff does not control direct claims. Rather, Q5 contends that under the doctrine of statutory employment, DCPC is Davis’s sole employer as a matter of law. Therefore, it argues that plaintiffs cannot satisfy the first element of a claim for negligent hiring and retention—the existence of an employment relationship between Q5 and Davis. See Linder v. Am. Natl. Ins. Co., 155 Ohio App. 3d 30, 2003-Ohio-5394, 798 N.E.2d 1190, ¶ 31 (1st Dist.) (discussing the elements of an action for negligent hiring and retention).

 [*P35]  As discussed above, Wyckoff definitively establishes an employment relationship between DCPC and Davis, but not to the exclusion of an employment relationship between Davis and Q5.

 [*P36]  Q5 also contends that it surrendered any control over Davis when it entered into a contract to provide Davis’s services to DCPC. This argument misses the point of plaintiffs’ claim for negligent hiring and retention against Q5. Q5’s [**17]  alleged negligence occurred prior to Davis’s alleged actions in causing the accident. Plaintiffs claim that Q5 was negligent in hiring Davis and placing her in the pool of drivers from which she was chosen by DCPC.

 [*P37]  Therefore, Wyckoff does not bar plaintiffs’ claim for negligent hiring and retention against Q5.

Conclusion

 [*P38]  The holding in Wyckoff does not shield Q5 from liability for any of the claims in this case. Furthermore, the viability of the Wyckoff decision is questionable based on the 1992 amendment to 49 C.F.R. 376.12(c). The sole assignment of error is sustained. The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

Myers, P.J., and Bock, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

End of Document

---

¹ Cincinnati Municipal Code 506-66 prohibits any vehicle containing more than two axles and four wheels from driving on Columbia Parkway from Fifth and Pike Streets to Delta Avenue.

² The I.C.C. was dissolved in 1996, but its regulations continue to exist under the purview of the D.O.T.

United States District Court for the Eastern District of Michigan, Southern Division

July 11, 2022, Decided; July 11, 2022, Filed

Civil Case No. 21-11021

Reporter

2022 U.S. Dist. LEXIS 121786 *

SAHAR ODISHO, as Personal Representative of the Estate of ANTHONY WARDIA, Plaintiff, v. YAHAYA YACOUBA, BEST CARRIER, INC., and TURBO TRUCK & AUTO SALES, INC., Defendants.

Core Terms

truck, tractor trailer, trailer, tractor, video, summary judgment, inspection, driver, fault, no evidence, foreseeable, genuine, drive, door, autopsy report, violations, nonmoving, proximate, loading, summary judgment motion, reasonable juror, safety violation, surveillance, causation, detected, arrived, reasons, parked, brake, drove

Counsel:  [*1] For Sahar Odisho, Personal Representative of the Estate of Anthony Wardia, Plaintiff: Lawrence Aniss Kajy, LEAD ATTORNEY, Kajy Law Firm, PLLC, Farmington Hills, MI.

For Yahaya Yacouba, Best Carrier, Inc., Turbo Truck & Auto Sales, Inc., Defendants: Denise L. Mitcham, Conklin Benham, P.C., Bingham Farms, MI.

Judges: Honorable LINDA V. PARKER, UNITED STATES DISTRICT JUDGE.

Opinion by: LINDA V. PARKER

Opinion

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 16, 33) AND DENYING AS MOOT DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO PROHIBIT PLAINTIFF FROM CALLING EXPERT WITNESSES (ECF NO. 26)

This is a negligence action arising from a fatal motor vehicle accident involving pedestrian Anthony Wardia and a tractor-trailer driven by Yacouba Yahaya, who is incorrectly named in the Complaint. (See Yahaya Aff., ECF No. 33-4 at Pg ID 790, ¶¶ 3-4.) Mr. Wardia’s mother and the personal representative of his estate, Sahar Odisho (hereafter “Plaintiff”), initiated the action in State court against the following: (1) Mr. Yahaya; (2) Best Carrier, Inc., which owned the tractor and engaged Yahaya as a contract driver; and (3) Turbo Truck & Auto Sales, Inc. (“Turbo”), which owned the trailer.

The [*2]  matter is presently before the Court on several motions:

• Turbo’s Motion for Summary Judgment, filed September 13, 2021 (ECF No. 16);

• Defendants’ Motion to Dismiss or, in the Alternative, to Prohibit Plaintiff from Calling Witnesses at Trial for Purposes of Giving Opinion Testimony, filed February 24, 2022 (ECF No. 26); and

• Yahaya and Best Carrier’s Motion for Summary Judgment, which is joined by Turbo, filed April 25, 2022 (ECF No. 33).

The motions are now fully briefed.¹ (ECF Nos. 25, 27, 28, 30, 34, 35.) Finding the facts and legal arguments adequately presented in the parties’ submissions, the Court is dispensing with oral argument with respect to the motions pursuant to Eastern District of Michigan Local Rule 7.1(h). For the reasons that follow, the Court concludes that Defendants are entitled to summary judgment. The Court is therefore denying as moot Defendants’ motion to dismiss.

I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate “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.” Fed. R. Civ. P. 56(a). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided [*3]  that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party’s case and on which that party bears 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).

The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323. Once the movant meets this burden, the “nonmoving party must 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) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252. The court must accept as true the non-movant’s evidence and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby, 477 U.S. at 255.

“A party asserting that a fact cannot be or is genuinely disputed” must designate specifically the materials in the record supporting the assertion, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other [*4]  materials.” Fed. R. Civ. P. 56(c)(1). The trial court is not required to construct a party’s argument from the record or search out facts from the record supporting those arguments. See, e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034, 274 U.S. App. D.C. 340 (D.C. Cir. 1988)) (“the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact”); see also InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied 494 U.S. 1091, 110 S. Ct. 1839, 108 L. Ed. 2d 967 (1990) (“A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.”). The parties are required to designate with specificity the portions of the record such that the court can “readily identify the facts upon which the . . . party relies[.]” InterRoyal Corp., 889 F.2d at 111.

II. Factual and Procedural Background²

Mr. Yahaya is professional truck driver, who lives in North Carolina. (Yahaya Dep. at 8, 15, ECF No. 25-2 at Pg ID 417, 419.) On or before June 1, 2020, Best Carrier engaged Mr. Yahaya to drive a tractor trailer from Charlotte, North Carolina to a Chrysler plant in Sterling Heights, Michigan. (Vartanov Aff. ¶ 4, ECF No. 16-6 at Pg ID 281.) The tractor was a 2015 Volvo tractor owned [*5]  by Best Carrier. (Accident Report at 1, ECF No. 16-4 at Pg ID 275; Registration, ECF No. 16-5 at Pg ID 278.) The trailer was a 2012 Wabash trailer owned by Turbo (Cert. of Title, ECF No. 16-7 at Pg ID 284), which is in the business of selling and leasing tractors and parts (Company Info., ECF No. 16-10).

Mr. Yahaya departed North Carolina with the tractor trailer in the late afternoon on June 1. (Yahaya Dep. at 53, ECF No. 25-2 at Pg ID 429.) Before departing, Mr. Yahaya inspected the tractor trailer and completed an electronic inspection form. (Id. at 59-64, Pg ID 430-31.) There is some conflict in Mr. Yahaya’s testimony as to whether he inspected certain brake lamps and the turn signals. (Compare id. at 61-64, Pg ID 431 (indicating that he checked the left and right turn signals and the brake lights) with id. at 67, Pg ID 432 (answering “Correct” to the question: “With respect to the turn signals and the brake lights, those are things, because you were by yourself, that you didn’t inspect for prior to your departure, correct?”).)

Mr. Yahaya arrived in Sterling Heights around 3:00 in the morning on June 2. (Id. at 54, Pg ID 429.) The dispatcher instructed Mr. Yahaya not to take the [*6]  load to Chrysler before it was scheduled to arrive, which was around noon. (Id.) Mr. Yahaya drove to the Chrysler plant and saw that he could not enter the grounds and so he drove to a nearby Target store, which he had passed on the way, to park, pray, and sleep. (Id. at 56, 58, 102, Pg ID 429, 430, 441.)

When Mr. Yahaya first arrived at the Target, he parked along a wall. (Id. at 71, Pg ID 433.) Thinking that he might impede traffic once the store opened, Mr. Yahaya subsequently moved the tractor trailer to the loading dock area. (Id. at 71-73, 90, 102, 105-06, Pg ID 433-34, 438, 441-42.) Mr. Yahaya backed the tractor trailer into a spot in the loading dock area, although he had to pull forward and backward numerous times to successfully do so. (Id. at 72-73, Pg ID 433-34.) Mr. Yahaya did not see any signs prohibiting trucks or trespassing in the area where he parked.³ (Id.) If he had, he would have gone elsewhere. (Id. at 73, Pg ID 434.)

At around 4:30 a.m., Mr. Yahaya exited the tractor’s cab to perform his ablution prior to praying. (Id. at 84, Pg ID 436.) Mr. Yahaya planned to sleep afterward. (Id.) After washing outside the truck, Mr. Yahaya returned to the cab, grabbed his prayer [*7]  rug, and was putting it on the floor when he heard someone—later identified as Mr. Wardia—pounding on the driver’s side door. (Id. at 85, Pg ID 437; see also Police Narrative, ECF No. 33-9 at Pg ID 812.)

Aside from two individuals inside a vehicle that drove away minutes after Mr. Yahaya arrived at the Target, Mr. Yahaya noticed no one before Mr. Wardia appeared at his door. (Yahaya Dep. at 89, 106, ECF No. 25-2 at Pg ID 438, 442.) According to one of Defendants’ experts, who reviewed the Target surveillance video, Mr. Wardia is first seen running through the parking lot and toward the tractor trailer at 4:37:15. (Yaek Report at 4, ECF No. 33-17 at Pg ID 906.)

After Mr. Wardia pounded on the driver door, Mr. Yahaya cracked the window slightly and asked who he was and if he was a security guard. (Yahaya Dep. at 108, ECF No. 25-2 at Pg ID 442.) Mr. Wardia, who was standing on the ground next to the tractor trailer, said “Open the door, open the door, I’m going with you, I’m coming in, open the door.”⁴ (Id. at 85, 108, Pg ID 437, 442.) Mr. Yahaya told Mr. Wardia to “get away” from him. (Id.)

Seeing something dark in Mr. Wardia’s hand and not knowing what it was, Mr. Yahaya acted like [*8]  he was going back to the bunker to get away from Mr. Wardia. (Id.) But because he was scared and the truck was still running, Mr. Yahaya decided to drive away. (Id. at 79, 85, 108-09, Pg ID 436-37, 442-43; Police Narrative, ECF No. 33-9 at Pg ID 812.) Mr. Yahaya sat down in the driver’s seat, put the truck in gear, and began to drive away.⁵ (Yahaya Dep. at 85, 94, ECF No. 25-2 at Pg ID 437, 439.)

Mr. Wardia ran after the truck. (Id. at 85-86, Pg ID 437.) As the truck began to gain speed, Mr. Wardia fell behind; however, when Mr. Yahaya slowed for a stop sign in the lot, Mr. Wardia caught up and it appeared to Mr. Yahaya that Mr. Wardia then jumped or dove between the tractor and trailer, in the area referred to as the “fifth wheel.”⁶ (Id. at 86, Pg ID 437.) The parties’ accident reconstruction experts disagree as to whether Mr. Wardia jumped or dove between the tractor and trailer or successfully climbed onto the fifth wheel but then fell. (See Robbins Report at 29, ECF No. 34-7 at Pg ID 1134; Yaek Report at 13-20, ECF No. 33-17 at Pg ID 915-22.) In any event, Mr. Yahaya was driving straight when this happened. (Id. at 109, Pg ID 443; see also Police Report at 1, ECF No. 16-4 at Pg ID [*9]  275.) Mr. Yahaya applied the brakes but the truck rolled a couple of feet before coming to a stop. (Yahaya Dep. at 86, ECF No. 25-2 at Pg ID 437.)

Mr. Yahaya immediately called 911. (Id. at 76, Pg ID 434) According to the 911 dispatcher, Mr. Yahaya “was very frantic” and stated, “I think he died” and “he jumped on my truck, I think he died.” (Police Narrative, ECF No. 33-9 at Pg ID 812.)

In the meantime, sometime before Mr. Wardia approached Mr. Yahaya, officers from the Sterling Heights Police Department were dispatched to the intersection of Metropolitan Parkway and Park Place Drive, just east of the Target store, to investigate a third-party report that a Jeep Cherokee had crashed into a utility pole. (Police Narrative, ECF No. 33-9 at Pg ID 812.) The caller did not witness the accident. (Id.)

The officers located the Jeep Cherokee but there was no one inside and it appeared to the officers that the driver had fled the scene. (Id.) The officers traced the vehicle to Mr. Wardia, who lived in an apartment complex less than a half mile northeast of the Target. (Id.) The officers went to Mr. Wardia’s address and spoke with his stepfather, Jan Quaryo, who indicated that Mr. Wardia was [*10]  not home and that he did not know where Mr. Wardia was. (Id.) As the officers were speaking with Mr. Quaryo (see Quaryo Dep. at 32, 34, ECF No. 34-4 at Pg ID 1075-76), the 911 dispatcher relayed the call received from Mr. Yahaya and the officers drove to the Target (Police Narrative, ECF No. 33-9 at Pg ID 812.)

When the officers arrived at the Target, they observed Mr. Wardia, who was deceased, near the rear wheels on the driver’s side of the tractor trailer. (Id.; see also Robbins Report at 17, ECF No. 34-7 at Pg ID 1123.) One of the officers spoke with Mr. Yahaya, who was “extremely frantic[,]” “extremely upset[,]” and “having a hard time explaining what happened because he was so shooken [sic] up.” (Police Narrative, ECF No. 33-9 at Pg ID 812.) Eventually, Mr. Yahaya described what happened. (Id.)

An officer thereafter transported Mr. Yahaya, with his consent, to a nearby hospital for a blood draw which was negative for alcohol and drugs. (Id.; Manzella Dep. at 33, ECF No. 33-13 at Pg ID 845.) A blood sample from Mr. Wardia detected 7.4 ng/ml of Delta-9 TCH, and a urine sample was “presump[tively] pos[itive] for cannabinoids. (Autopsy Report at 2, ECF No. 34-6 at Pg ID 1004.) Citing [*11]  to the “autopsy report,” Defendants assert that “a variety of substances” were in [Mr.] Wardia’s system.” (See Br. in Supp. of Mot. at 4-5, ECF No. 33 at Pg ID 754-55 (citing ECF No. 33-10).) Relying on the same “report,” one of Defendants’ experts, Herbert Malinoff, M.D., writes that “[t]oxicology reports identified in the[] records are positive for cannabinoids, as well as multiple other psychoactive/controlled substances” and that some of the levels detected “are fairly substantial, including levels of methadone, cannabinoid, benzodiazepines, fentanyl, as well as phencyclidine.” (Malinoff Report at 1-3, ECF No. 33-11 at Pg ID 817-19.)

However, the exhibit identified by Defendants and presumably relied upon by Dr. Malinoff is not the actual autopsy report but one page of an unidentified 82-page report, on which the medical examiner’s findings are purportedly conveyed. The actual autopsy report lists the various drugs and the specified levels included on the unidentified report but only to convey the compounds searched for and the level at which they would be detected. (Autopsy Report at 41-42, ECF No. 34-6 at Pg ID 1105.) According to the autopsy report, these substances were not [*12]  detected in Mr. Wardia’s urine or blood sample.⁷ (Id. at 11, Pg ID 1103 (listing positive findings).)

Almost two weeks after the accident, on June 15, the Michigan State Police inspected the tractor trailer and noted several violations with respect to the tractor (i.e., a crack on the passenger side of the windshield; three axles out-of-adjustment; and “CMV manufactured after 10/19/94 has an automatic airbrake adjustment system fails to compensate for wear”) and two violations with respect to the trailer (i.e., left and right brake lamp and left turn signal inoperable). (MSP Report, ECF No. 34-5 at Pg ID 1088.) Defendant’s accident reconstruction expert, Jennifer L. Yaek, Ph.D., opines that none of these violations “adversely affect[ed] Mr. Yahaya’s operation of the vehicle or play[ed] any role in the subject incident.” (Yaek Report at 11, 20, ECF No. 33-17 at Pg ID 913, 922.) Plaintiff’s accident reconstruction expert, Timothy P. Robbins, does not conclude differently. (See Robbins Report, ECF No. 34-7.)

On April 1, 2021, Plaintiff filed this lawsuit against Defendants in the Circuit Court for Macomb County, Michigan. (Compl., ECF No. 1 at Pg ID 7-54.) In her Complaint, Plaintiff alleges [*13]  the following claims: (I) negligence against Mr. Yahaya; (II) owner’s liability pursuant to Michigan Compiled Laws § 257.401 against Best Carrier; (III) negligent hiring, retention, and supervision against Best Carrier; (IV) owner’s liability pursuant to § 257.401 against Turbo; and (V) negligent hiring, retention, and supervision against Turbo. (Id.) On May 5, 2021, Defendants removed the action to federal court on the basis of diversity jurisdiction. (Notice of Removal, ECF No. 1.) Defendants subsequently filed the pending motions.

III. Applicable Law and Analysis

Turbo seeks summary judgment as Mr. Yahaya was not its agent and it was not the owner of the tractor he was driving, but only the lessor owner of the trailer which played no role in the subject accident. Turbo also joins Mr. Yahaya and Best Carrier’s summary judgment motion, in which they argue that there is no evidence of negligence by any defendant but, even if there is a question of fact concerning their negligence, Plaintiff is precluded from obtaining damages because Mr. Wardia was more than 50% at fault for the accident.

A. Negligence Generally

Federal courts sitting in diversity apply the substantive law of the forum state. Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996)). To prove a claim of [*14]  negligence under Michigan law, the plaintiff must show that: (1) “the defendant owed a legal duty to the plaintiff,” (2) “the defendant breached or violated the legal duty,” (3) “the plaintiff suffered damages,” and (4) “the breach was a proximate cause of the damages suffered.” Id. (quoting Schultz v. Consumers Power Co., 443 Mich. 445, 506 N.W.2d 175, 177 (Mich. 1993)); see also Case v. Consumers Power Co., 463 Mich. 1, 615 N.W.2d 17, 20 (Mich. 2000). “[T]o establish causation, a plaintiff must prove two elements: (1) cause in fact and (2) proximate cause.” Rupert v. Daggett, 695 F.3d 417, 425 (6th Cir. 2012) (citing Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 475, 479 (Mich. 1994)).

“The cause in fact element generally requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred.” Id. (quoting Skinner, 516 N.W.2d at 479). The Michigan Supreme Court has explained “proximate cause” as follows:

Proximate causation involves examining the foreseeability of consequences and whether a defendant should be held legally responsible for such consequences given his negligent acts or omissions. This Court has defined proximate cause as “a foreseeable, natural, and probable cause.” Such causation is distinct from factual or “but for” causation, and issues of proximate causation thus call for an independent, searching inquiry, the focus of which is whether the result of conduct that created a risk of harm and any intervening causes were foreseeable. [*15]  Probability of harm is thus a relevant consideration to determine whether the defendant’s conduct was foreseeable or if the defendant should be held legally liable in light of the circumstances. Since there are risks that can be foreseen but would not be avoided by a reasonable person, for liability to attach the harm must be of a kind that defendant should have avoided or it must be shown that defendant’s actions presented an unreasonable risk of harm.

Id. at 425-26 (quoting Jones v. Detroit Med. Ctr., 806 N.W.2d 304, 305 (Mich. 2011)). “If an intervening force is not reasonably foreseeable under an objective standard, it constitutes a ‘superseding cause’ which relieves a prior negligent defendant from liability.” Id. at 426 (quoting Ridley v. City of Detroit, 231 Mich. App. 381, 590 N.W.2d 69, 73 (Mich. Ct. App. 1998), remanded on other grounds sub nom. Ridley v. Collins, 463 Mich. 932, 622 N.W.2d 65 (2000)). “While an act of God or the gross negligence or intentional misconduct by the victim or a third party will generally be considered a superseding cause, ordinary negligence by the victim or a third party will not be regarded as a superseding cause because ordinary negligence is reasonably foreseeable.” Id. (quoting People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774, 786 (Mich. 2005) (emphasis in original)).

B. Turbo’s Liability

Plaintiff leaves unchallenged the evidence establishing that Mr. Yahaya was not Turbo’s agent and that Turbo did not own the tractor. (See [*16]  Resp. Br., ECF No. 25.) Plaintiff nevertheless argues that the trailer, which Turbo undisputedly owned, contained safety violations. Plaintiff asserts that Turbo “was negligent by recommending and/or providing a defective trailer for use by [Yahaya and Best Carrier].” (Id. at 1, Pg ID 407.) Plaintiff further asserts that Mr. Yahaya failed to conduct the necessary pre-trip inspection of the tractor and, according to Mr. Yahaya, the trailer would not have travelled to Michigan had he detected the safety violations. (Id. at 2-3, Pg ID 408-09 (citing Yahaya Dep. at 68, ECF No. 25-2 at Pg ID 432).) Plaintiff argues that, had the tractor trailer never left North Carolina, the subject accident would not have occurred. (Id. at 2, Pg ID 408.) There are several reasons why Plaintiff’s arguments fail to demonstrate Turbo’s liability

First, Plaintiff identifies no evidence to show that the trailer was defective when Turbo leased it to Best Carrier. The record does not even reflect how long the trailer was in Best Carrier’s possession before the accident. Therefore, no reasonable juror could conclude that Turbo was negligent in “recommending” or “providing” the trailer to Best Carrier. Second, Plaintiff [*17]  offers no evidence to show that the trailer was defective when Mr. Yahaya took possession of it and left North Carolina. Finally, the record does not establish that the safety violations noted by the Michigan State Police during an inspection two weeks after the accident existed when the accident occurred.

But even if the safety violations existed when Mr. Yahaya left North Carolina and when the accident occurred, and even if there is a genuine issue of material fact as to whether Mr. Yahaya conducted the necessary pre-trip inspection of the tractor trailer, there is no evidence that the trailer or any of the violations cited by the Michigan State Police played any role in the subject accident. Plaintiff’s expert does not identify the violations as a cause of the accident. (See Robbins Report, ECF No. 34-7.) And Defendants’ expert opines that the violations “did not adversely affect Mr. Yahaya’s operation of the vehicle or play any role in the subject incident.” (Yaek Report at 20, ECF No. 33-17 at Pg ID 922.) Additionally, no reasonable juror could conclude that the accident was a foreseeable consequence of any alleged negligence by Turbo. Nor was it a foreseeable consequence of Mr. [*18]  Yahaya taking the tractor trailer from North Carolina to Michigan with its alleged safety violations.

For these reasons, the Court is granting summary judgment to Turbo.⁸

B. Liability of Mr. Yahaya and Best Carrier

In response to Defendants’ summary judgment motion, Plaintiff argues that the accident would never have occurred if Mr. Yahaya had (1) performed the pre-trip inspection and therefore not travelled from North Carolina to Michigan in the tractor trailer, or (2) “simply remained safely parked in the Target parking lot.” (Resp. Br. at 3, ECF No. 34 at Pg ID 945.) The Court addressed Plaintiff’s pre-inspection argument above. As to Mr. Yahaya’s decision to leave the Target parking lot, Plaintiff fails to show how that conduct was negligent. Plaintiff also fails to show that Mr. Yahaya operated the truck in a negligent manner.

Plaintiff maintains that Mr. Yahaya “caus[ed] his vehicle to move, very fast, back and forth up to 4 times” to knock Mr. Wardia off of it, at which time he was run over. (Resp. Br. at 1-2, ECF No. 34 at Pg ID 955-56.) There is no evidence, however, that Mr. Wardia successfully boarded the tractor-trailer. There also is no evidence that Mr. Yahaya moved the truck [*19]  back and forth at any time after encountering Mr. Wardia or, more specifically, in an attempt to eject Mr. Wardia from the vehicle.

Neither party submitted the Target surveillance video as evidence.⁹ Nevertheless, no one—including Plaintiff’s expert who reviewed it (see Robbins Report at 6-11, ECF No. 34-7 at Pg ID 1112-17)—has suggested that such movement can be seen in the video at any time after Mr. Wardia approached the tractor trailer. Apparently the video shows Mr. Yahaya pulling the tractor trailer forward and backward numerous times when parking it in the loading area (see Yahaya Dep. at 73, ECF No. 25-2 at Pg ID 434); however, this was before Mr. Wardia ever approached the truck (see Yaek Report at 10, ECF No. 33-17 at Pg ID 912).

Plaintiff obtained a video from the surveillance camera of a market located in the same plaza as the Target, which also was not submitted into evidence but was viewed by Mr. Wardia’s stepfather, Mr. Quaryo. (See Resp. Br. at 6, ECF No. 34 at Pg ID 948.) During his deposition, Mr. Quaryo described what he saw in the video: “I saw the truck in the background. He was in the Target parking place. And then he moved once, twice, three, four times, and then [*20]  it stopped.”¹⁰ (Quaryo Dep. at 39, ECF No. 34-4 at Pg ID 1077.) According to Mr. Quaryo, “[t]he movement of the driver was showing clearly that he had somebody that he wanted to get off the truck.” (Quaryo Dep. at 39, ECF No. 34-4 at Pg ID 1077.)

There is no evidence, however, reflecting when these movements occurred or whether it was after Mr. Wardia approached the truck. Mr. Quaryo did not see Mr. Wardia in the video, much less on the truck when Mr. Yahaya allegedly maneuvered the truck in the manner Mr. Quaryo described. As previously mentioned, the Target surveillance video also showed Mr. Yahaya moving the tractor trailer back and forth numerous times; however, as Mr. Yahaya explained, this was when he was backing it into the loading area.

Thus, the Court is left with Mr. Yahaya’s explanation of when and why he maneuvered the tractor trailer back and forth numerous times. In other words, the only evidence in the record is that the tractor trailer was moved back and forth when Mr. Yahaya first parked in the loading area. Plaintiff offers no evidence of timing from the surveillance video Mr. Quaryo observed and admittedly he did not see Wardia on the truck in that video. Mr. Quaryo [*21]  appears to be only speculating or guessing as to why Mr. Yayaha drove the vehicle in this manner.

For these reasons, Plaintiff fails to show that Mr. Yahaya or Best Carrier acted negligently. But even if Plaintiff made this showing, a reasonable juror could only conclude based on the facts presented that Mr. Wardia was more than 50% at fault for the accident.

Michigan’s No Fault Act provides that a person may be “subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.” Mich. Comp. Laws § 500.3135(1). The statute further provides that “[d]amages shall be assessed on the basis of comparative fault, except that damages must not be assessed in favor of a party who is more than 50% at fault.”¹¹ Id. § 500.3135(2)(b) (emphasis added). Like the question of whether the defendant was negligent, “the question of a plaintiff’s own negligence for failure to use due care for his [or her] own safety is a jury question unless all reasonable minds could not differ . . ..” Chivis v. Cass Cnty. Public Transit, No. 351519, 2021 WL 3817770, 2021 Mich. App. LEXIS 5121, at *4 (Mich. Ct. App. Aug. 26, 2021) (quoting Rodriguez v. Solar of Mich., Inc., 191 Mich. App. 483, 478 N.W.2d 914, 918 (Mich. Ct. App. 1991)) (emphasis added). Stated differently, a court may resolve the comparative fault issue [*22]  when “no reasonable juror could find that [the] defendant was more at fault than the [plaintiff] in the accident.” Huggins v. Scripter, 469 Mich. 898, 669 N.W.2d 813 (Mich. 2003). No reasonable juror could conclude that Mr. Wardia was 50% or less at fault for the accident.

At around 4:30 a.m., while it was still dark, Mr. Wardia approached Mr. Yahaya’s truck in an empty parking lot. Mr. Wardia then pounded on the driver door and demanded that he be let inside and allowed to go with Mr. Yahaya. Scared, Mr. Yahaya proceeded to drive away at a slow rate of speed. Rather than moving to a safe distance, Mr. Wardia chased after and alongside the tractor trailer and then either dove in between the tractor and trailer, attempted to climb onto the fifth wheel, or successfully boarded but then fell. Mr. Wardia’s behavior was grossly negligent and he was significantly more at fault, if not completely at fault, for the accident. Plaintiff’s own accident reconstruction expert, Timothy Robbins, opines that the cause of Mr. Wardia’s death was his falling from the tractor trailer, down in front of the tires. (Robbins Report at 18, 25, 28, ECF No. 34-7 at Pg ID 1124, 1131, 1134.) As Mr. Robbins admits, Mr. Wardia was solely responsible for getting himself on [*23]  the fifth wheel. (Robbins Dep. at 16, ECF No. 34-3 at Pg ID 1015.) Plaintiff does not suggest—much less present evidence to show—that Mr. Yahaya engaged in negligent behavior that caused Mr. Wardia to fall from that position.

“A motor vehicle operator owes a duty to pedestrians to exercise due care.” Lawrence v. Schauf, No. 354872, 2022 Mich. App. LEXIS 827, 2022 WL 414265, at *2 (Mich. Ct. App. Feb. 10, 20220 (citing Sweet v. Ringwelski, 362 Mich. 138, 106 N.W.2d 742, 747 (Mich. 1961); Poe v Detroit, 179 Mich. App. 564, 446 N.W.2d 523, 527 (Mich. Ct. App. 1989)). “By the same token, however, a pedestrian ‘must take such care for his own safety as a reasonable, careful, prudent person would do under similar circumstances.'” Id. (quoting Malone v Vining, 313 Mich. 315, 21 N.W.2d 144, 147 (Mich. 1946)) (quotation marks and citation omitted). Even Plaintiff’s expert, Timothy Robbins, agreed that it is unsafe for a pedestrian to chase after a truck and climb or jump onto a moving vehicle. (Robbins Dep. at 12, 17-18, ECF No. 33-15 at Pg ID 888, 890-91.)

IV. Conclusion

For the reasons discussed, the Court holds that Defendants are entitled to summary judgment pursuant to Rule 56. The Court, therefore, finds it unnecessary to decide whether Plaintiff’s claims should be dismissed or whether Plaintiff should be precluded from calling her experts as witnesses pursuant to Rule 26.

Accordingly,

IT IS ORDERED that Defendants’ motions for summary judgment (ECF Nos. 16, 33) are GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion [*24]  to Dismiss or, in the Alternative, to Prohibit Plaintiff from Calling Witnesses at Trial for Purposes of Giving Opinion Testimony (ECF No. 26) is DENIED AS MOOT.

IT IS SO ORDERED.

/s/ Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: July 11, 2022

JUDGMENT

In an Opinion and Order issued on this date, the Court granted summary judgment to Defendants.

Accordingly,

IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

/s/ Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: July 11, 2022

End of Document

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¹ As of January 27, 2022, Plaintiff had not responded to Turbo’s September 13, 2021 summary judgment motion. The Court therefore issued an order requiring Plaintiff to show cause in writing by February 3 as to why Turbo’s motion should not be granted. (ECF No. 22.) More than two weeks after the February 3 deadline, on February 15, Plaintiff filed a motion seeking to file a response. (ECF No. 23.) After the Court granted Plaintiff’s motion (ECF No. 24), she filed her response brief (ECF No. 25).

² In her response to Mr. Yahaya and Best Carrier’s summary judgment motion, Plaintiff’s factual recitation contains not one citation to the record. (See Resp. Br. at 1-2, ECF No. 34 at Pg ID 955-56.) As indicated in the preceding section, Rule 56 provides that “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of material in the record . . ..” Fed. R. Civ. P. 56(c)(1) (emphasis added). Despite having no obligation to do so, the Court has reviewed the record and finds no support for many of Plaintiff’s factual assertions, some of which it will make note of while summarizing the relevant facts.

³ Plaintiff asserts that Mr. Yahaya was illegally parked behind the Target store (Resp. Br. at 1, ECF No. 34 at Pg ID 955). She offers no evidence to support that assertion, however. While it is true that when shown a video of the Target parking lot during his deposition, Mr. Yahaya acknowledged seeing a sign that read “Unauthorized Vehicles Will be Towed.” (Yahaya Dep. at 110-11, ECF No. 25-2 at Pg ID 443.) But Mr. Yahaya testified that the sign was in the area where customers park, not where he parked. (Id. at 111, Pg ID 443.)

⁴ Plaintiff asserts that Mr. Wardia and Mr. Yahaya engaged in “a lengthy discussion,” at which time Mr. Wardia “asked Defendant Yahaya for a ride.” (Resp. Br. at 1, ECF No. 34 at Pg ID 955.) But the record does not support this. Mr. Yahaya estimated that they spoke for “[m]aybe 30 seconds.” (Yahaya Dep. at 94, ECF No. 25-2 at Pg ID 439.) According to Defendants’ expert’s summary of the surveillance video, less than a minute and a half elapsed between the time Mr. Wardia is first seen walking in the Target parking lot and the time Mr. Yahaya drove the tractor trailer away. (Yaek Report at 10, ECF No. 33-17 at Pg ID 912.) Plaintiff’s expert, Timothy Robbins, indicates in his report that “there is unknown communication/contact between Mr. Wardia and Mr. [Yahaya] [b]etween approximately 4:37:27 and 4:38:41 (See Robbins Report at 7, ECF No. 34-7 at Pg ID 1113.) Yet Mr. Robbins indicates that “[t]his is off the view of the camera” (id.) and so it is unclear how he concluded the two were communicating during this period. Additionally, there is no evidence that Mr. Wardia “asked” Defendant Yahaya for a ride. The record only reflects that Mr. Wardia demanded that he be let into the truck and that he was going with Mr. Yahaya.

⁵ The tractor trailer slowly pulled away at approximately 4:38:41, about a minute and thirty seconds after Mr. Wardia was observed running through the parking lot toward the truck. (Robbins Report at 6-7, ECF No. 34-7 at Pg ID 1112-13; Yaek Report at 10, ECF No. 33-17 at Pg ID 912.)

⁶ During his deposition, Mr. Yahaya testified that he did not know the speed at which he drove away. (Yahaya Dep. at 92, ECF No. 25-2 at Pg ID 438.) Defendants’ accident reconstruction expert, Jennifer Yaek, opines that the tractor trailer was travelling less than ten miles per hour before the accident. (Yaek Report at 10, ECF No. 33-17 at Pg ID 912.) While Plaintiff’s expert, Timothy Robbins, believes Ms. Yaek’s speed calculations “are inaccurate and incorrect” and he formed his opinion based on a speed of 10 m.p.h. (see Robbins Report at 24, 26, ECF No. 34-7 at Pg Id 1130, 1132), he fails to explain how he calculated that speed, if he in fact did.

⁷ As Dr. Malinoff’s expert opinion is based on incorrect facts—i.e., that Mr. Wardia tested positive for numerous controlled substances—his opinion is not reliable. The outcome of Defendants’ summary judgment motion, however, is not dependent on that opinion.

⁸ Even if Turbo is not entitled to summary judgment for the reasons discussed already, it would be entitled to summary judgment for the reasons discussed below.

⁹ Although the Court recognizes that the accident occurred just outside the view of the Target surveillance camera. (Robbins Report at 10-11, 16, ECF No. 34-7 at Pg ID 1116-17, 1122.)

¹⁰ Plaintiff’s expert, Timothy Robbins, also reviewed the video. (Robbins Report at 2-3, ECF No. 34-7 at Pg ID 1108-09.) Mr. Robbins did not discuss what he saw in the video in his report, however. Presumably he would have done so if he witnessed what Mr. Quaryo saw and found it relevant.

¹¹ Defendants also rely on Michigan law providing that it “is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual . . . had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance and, as a result of that impaired ability, the individual was 50% or more the cause of the accident or event that resulted in the death or injury.” Mich. Comp. Laws § 600.2955a. Defendants’ expert opines that, due to the many substances in Mr. Wardia’s system, as purportedly found in the autopsy report, he was impaired and, as a result, was 50% or more the cause of the accident. (See Malinoff Report at 3, ECF No. 33-11 at Pg ID 819.) As discussed earlier, however, the toxicology report was positive only for cannabinoids. As Defendants have not offered evidence regarding Mr. Wardia’s impairment consistent with the facts, the Court cannot conclude that § 600.2955a provides an absolute defense in this action.