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

August 9, 2022, Decided; August 9, 2022, Filed

Case No. 20-11638

Reporter

2022 U.S. Dist. LEXIS 141562 *; 2022 WL 3213532

TREVOR JOYCE, Plaintiff, v. DAVID RICH ET AL., Defendants.

Core Terms

Trucking, summary judgment motion, trailer, conditions, traffic, tractor trailer, circumstances, shoulder, steered, drove, genuine, sudden emergency, police report, right lane, discovery, breached, hitting, prudent, driver, speed, snow, material fact, duty of care, left lane, entrustment, incompetent, deposition, respondeat, collision, nonmoving

Counsel:  [*1] For Trevor Joyce, Plaintiff: Michael J. Rothstein, Rothstein Law Group, PLC, Southfield, MI.

For David Rich, D Rich Trucking, LLC, Four Star Transportation Co., Defendants: Eric M. Wagman, Karen Libertiny Ludden, Novara Tesija Catenacci McDonald & Baas, Troy, MI.

For Dale White, Defendant: Dale L. Arndt, Bensinger, Cotant, Grand Rapids, MI.

Judges: Honorable Victoria A. Roberts, United States District Judge.

Opinion by: Victoria A. Roberts

Opinion

ORDER:

(1) GRANTING DEFENDANT DAVID RICH, D RICH TRUCKING LLC, AND FOUR STAR TRANSPORTATION CO.’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 36)

(2) GRANTING DEFENDANT WHITE’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 37)

I. Introduction

Trevor Joyce (“Joyce”) brings this action against David Rich (“Rich”), D Rich Trucking LLC, Four Star Transportation Co., and Dale White (“White”) (collectively “Defendants”). This action stems from a motor vehicle accident on a snowy winter day in Michigan involving Joyce, Rich, and White. Joyce alleges that Rich and White drove their respective vehicles in a negligent manner which caused the accident and Joyce’s injuries.

Joyce brings six counts: (I) negligence against Rich; (II) ownership liability against D Rich Trucking LLC; (III) negligent entrustment [*2]  against D Rich Trucking LLC; (IV) respondeat superior against Four Star Transportation Co; and (V) negligence against White.

Defendants filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. The Court GRANTS it in its entirety.

II. Background

On January 29, 2019, Joyce drove a tractor trailer on a two-lane interstate when it began to snow intensely. The parties and police report describe the weather at the time as a “white out” due to blowing snow and icy conditions. (ECF No. 37, PageID.275). While driving in the right lane, Joyce came upon a 24-vehicle collision.¹ As he approached the collision, Joyce applied brakes but the trailer would not stop. (ECF No. 36-2, PageID.234, Dep. of Joyce Pg.51 ¶ 6). To avoid hitting the vehicle in front of him, Joyce steered his trailer onto the right shoulder. (Id., ¶ 18).

Rich, a driver for Four Star Transportation, drove his trailer owned by D Rich Trucking LLC in the right lane directly behind Joyce. After observing Joyce’s vehicle and traffic stopped ahead of him, Rich applied his brakes but was also unable to stop. To avoid hitting Joyce’s trailer on the right shoulder and partially in the right lane, Rich steered his trailer to the left lane and shoulder. [*3]  As Rich’s trailer steered into the left lane, it jackknifed and his trailer hit the rear of Joyce’s trailer.

White, who was driving his 2000 Chevrolet Silverado pick-up truck behind Rich, was unable to stop his vehicle and collided into the back of Joyce’s trailer in the right lane.

According to Joyce, he felt the impact from the vehicles about four to five seconds after he steered onto the right shoulder. (ECF No. 36-2, PageID.236). Joyce claims the impact resulted in significant injuries including but not limited to his head, neck, back, shoulders, arms, legs, knees, feet, and other areas of his body. (ECF No. 39, PageID.432).

All involved vehicles were disabled and were towed from the scene. (Police Rep. ECF No. 36-4, PageID.246-250).

III. Legal Standard

Under Federal Rule of Civil Procedure 56(a), “[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.” The movant bears the initial burden to inform the Court of the basis for her motion and must identify particular portions of the record that demonstrate the absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant satisfies his burden, the [*4]  non-moving party must set forth specific facts showing a genuine issue for trial. Id. at 324. A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Unsupported, conclusory statements are insufficient to establish a factual dispute to defeat summary judgment, as is the mere existence of a scintilla of evidence in support of the non-movant’s position; the evidence must be such that a reasonable jury could find in its favor. Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

In deciding a summary judgment motion, the Court “views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court only needs to consider the cited materials, but it may consider other evidence in the record. Fed. R. Civ. P. 56(c)(3). The Court’s function at the summary judgment stage “is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249.

IV. Analysis

A. Count I — Negligence against Rich

Joyce says Rich was negligent by failing to operate his tractor trailer in a reasonable, careful, and prudent manner. (Pl. Compl. ¶ 14, ECF No. 5, PageID.30). Joyce alleges Rich’s conduct fell below a reasonable [*5]  standard of care because he operated his truck at a speed greater than which permitted him to stop with an assured clear distance, causing a collision; and Rich failed to exercise due regard for the traffic, roadway surfaces and all other conditions existing at the time. (ECF No. 39, PageID.439).

Rich says this claim should be dismissed because Joyce fails to present any evidence that he breached his duty of care. (ECF No. 40, PageID.526). In the alternative, Rich says he is excused from liability due to the sudden emergency doctrine. (ECF No. 40, PageID.528). Rich is correct.

Under Michigan law, a plaintiff must establish (1) duty; (2) breach; (3) causation; and (4) damages. Romain v. Frankenmuth Mut. Ins. Co., 483 Mich. 18, 21, 762 N.W.2d 911, 913 (2009).

As a driver on the road, Rich had a duty to drive with the care and caution of an ordinarily careful and prudent person. Zarzecki v. Hatch, 347 Mich. 138, 141, 79 N.W.2d 605, 607 (1956). The issue is whether sufficient evidence exists for a reasonable jury to find that Rich breached this duty.

I. Rich drove as a reasonably prudent person would under the circumstances.

Joyce testified during his deposition that “there was a complete whiteout, you couldn’t see sh*t.” (ECF No. 36-2, PageID.232 ¶ 15-18). Not only was visibility bad, but Joyce’s testimony revealed that the road itself [*6]  was slick. When Joyce recognized the vehicle in front of him was stopping, he applied his brakes but his tractor trailer would not stop. (Id., ¶ 24).

The police report description of the interstate is consistent with Joyce’s. As documented in the police report, there was blowing snow and icy roads. (ECF No. 36-4, PageID.246). Importantly, the reason Joyce suddenly stopped his tractor trailer was to avoid running into a 24-vehicle-collision.

Rich was faced with the same conditions as Joyce and the other drivers on the road. In his affidavit, Rich says:

“I braked but, by the time I was able to see the stopped traffic in the whiteout conditions, I did not have enough room to stop. I attempted to avoid colliding with the stopped vehicles by steering my truck over the left lane and onto the left shoulder. As I did so, my trailer jackknifed and caught the rear of the trailer that was on the shoulder and partially in the right lane. There was nothing more I could have done to prevent that from happening; the only other available option was would [sic] have been to continue straight into the stopped traffic.”

(Affidavit of David Rich, ECF No. 36-3, PageID.243 ¶ 6).

Rich’s conduct was almost identical [*7]  to Joyce’s under the same conditions. Rich applied his brakes but his truck would not stop. He had three options: continue to go straight down the right lane, potentially hitting Joyce’s trailer and other vehicles; steer onto the right shoulder and hit Joyce’s trailer; or steer into the left lane to avoid hitting any vehicles. Rich decided to steer into the left lane.

According to the police report: Rich appeared normal; he was not distracted; and he was not under the influence of alcohol or drugs. The report makes no mention of speeding or traffic violations. The responding state troopers did not issue Rich a citation. (ECF No. 36-4, PageID.246). Joyce attached the police report as an exhibit but does not point to any portion of it as evidence that Rich breached his duty of care.

“‘[T]he happening of [an] accident alone is not evidence of negligence … negligence may be established by circumstantial evidence, and … where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts’ a prima facie case is made.” Billops v. Target Corp., No. 12-15395,  2014 U.S. Dist. LEXIS 25834, 2014 WL 806850, at *2 (E.D. Mich. Feb. 28, 2014) (citing Whitmore v. Sears, Roebuck & Co., 89 Mich.App. 3, 9, 279 N.W.2d 318, 321 (1979)).

Joyce fails to present any evidence — direct or circumstantial — indicating [*8]  that Rich was negligent.

Joyce is correct that violation of a Michigan statute creates a rebuttable presumption of negligence. Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270 (1976). Among the statutes cited to, Joyce primarily relies on MCL 257.627(1):

“An individual operating a vehicle on a highway shall operate that vehicle at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface, and width of the highway and of any other condition existing at the time. An individual shall not operate a vehicle upon a highway at a speed greater than that which will permit a stop within the assured, clear distance ahead.”

To counter this presumption, Rich relies on the sudden emergency doctrine: “[t]here was nothing more that he could have done to avoid the collision, but, even if there was, the sudden emergency doctrine precludes liability.” (Rich’s Br. ECF No. 36, PageID.224).

The sudden emergency doctrine applies “when the person chooses one reasonable, non-negligent course of action over another reasonable, non-negligent course of action that would have resulted in a more favorable outcome when viewed in hindsight.” White v. Taylor Distrib. Co, Inc, 275 Mich.App. 615, 623, 739 N.W.2d 132, 137 (2007). The doctrine applies only when the circumstances are unusual or unsuspected [*9]  and not of the defendants’ own making. Vander Laan v. Miedema, 385 Mich. 226, 232, 188 N.W.2d 564 (Mich.1971). The doctrine is not an affirmative defense, but is instead a factor to consider in determining whether a person acted reasonably under the circumstances. Szymborski v. Slatina, 386 Mich. 339, 341, 192 N.W.2d 213, 214 (1971).

Joyce does not present witness testimony, affidavit, police findings, or any other support that Rich was anything other than careful and prudent under the circumstances. In his affidavit, Rich says he was neither speeding nor driving too fast for the conditions. (ECF No. 36-3, PageID.244 ¶ 7). No facts or evidence contradict Rich’s affidavit.

In his response brief, Joyce included deposition testimony from Darcey Markwart (“Markwart”), a non-party who drove a vehicle involved in the accident. Markwart testified:

Q: Was it particularly heavy snow that day or was it — how would you describe it?

A: There was some blowing snow. In the morning, it was not any worse than it had been for a week. So, no, it really was just a snowy winter day in Michigan, you know, a normal January.

(ECF No. 38, PageID.391 ¶ 20-25).

…

Q: Would you describe the conditions as whiteout at the time of the accident?

A: See, I don’t recall that now.

(Id., PageID.392 ¶ 12-14).

During cross examination, Markwart testified:

Q: So if [*10]  others describe or if there are other reports that describe that these were whiteout conditions that occurred suddenly, unexpectedly and preventing them from seeing traffic around them, you wouldn’t necessarily disagree with that, would you?

A: No, I can’t

(Markwart’s Dep. ECF No. 40, PageID.535 ¶ 1-6).

Markwart later testified, “I have a hard time recalling if it was snowing or not.” (ECF No. 40, PageID.536 ¶ 12).

In light of Markwart’s inability to recall the weather conditions, query whether she has personal knowledge of the events, the relevancy of her testimony, and whether it would be helpful to a jury.

Nonetheless, Joyce did not offer Markwart’s testimony to argue that Rich drove in an unreasonable manner. Joyce uses the testimony to undermine Rich’s alternative argument that he faced a sudden emergency. (ECF No. 38, PageID.345). Although the level of care may change if it were a sudden emergency, Joyce must still present evidence of Rich’s conduct for a jury to assess its reasonableness under the circumstances; a blanket negligent claim is insufficient. There is no evidence that speaks to, for example, whether Rich was distracted or how fast he was driving.

Mere allegations alone [*11]  are insufficient to establish a genuine dispute of material fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (“In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts.”). The nonmoving party must present “concrete evidence supporting [his] claims.” Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989). Summary judgment is appropriate if the moving party points out that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

In his response brief to the Motion for Summary Judgment, Joyce says “the facts and circumstances surrounding the collision and parties’ negligence must be investigated further. Any argument regarding the distribution of negligence would be premature as discovery is ongoing.” (ECF No. 39, PageID.447). Not only does this appear to be a concession that there is insufficient evidence, but Joyce is wrong about the status of discovery. According to the docket, discovery was to be completed by August 9, 2021. On July 15, 2021, the Court adjourned this date to December 9, 2021. Defendants timely filed Motions for Summary Judgment on January 7, 2022, after discovery closed. [*12]  Joyce had sufficient time for discovery.

Rich has met his summary judgment burden; he established that there is no genuine issue of material fact; no material evidence supports that he breached his duty of care. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986).

The Court GRANTS Rich’s Motion for Summary Judgment of Count I.

B. Count II — Ownership Liability of D Rich Trucking LLC

Joyce says D Rich Trucking LLC, as the owner of the tractor trailer Rich drove, is liable and responsible for all damages pursuant to MCL 257.401 et. seq. (Pl. Compl. ECF No.5, PageID.33 ¶ 24-25).

MCL 257.401(1) provides in relevant part: “The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law. The owner is not liable unless the motor vehicle is being driven with his or her express or implied consent or knowledge.”

D Rich Trucking LLC cannot be liable if Rich, the operator of the vehicle, was not negligent. As noted above, Joyce failed to present any evidence to show that Rich breached his duty of care.

The Court GRANTS D Rich Trucking LLC’s Motion for Summary Judgment of Count II.

C. Count III — Negligent Entrustment [*13]  Against D Rich Trucking LLC

Joyce says D Rich Trucking LLC entrusted Rich with the vehicle and knew or should have known that Rich was not a reasonably prudent driver. (Pl. Compl. ECF No. 5, PageID.34 ¶ 27).

A plaintiff in a negligent entrustment action has the burden to prove “that the motor vehicle was driven with the permission and authority of the owner; that the entrustee was in fact an incompetent driver; and that the owner knew at the time of the entrustment that the entrustee was incompetent or unqualified to operate the vehicle, or had knowledge of such facts and circumstances as would imply knowledge on the part of the owner of such incompetency.” Hendershott v. Rhein, 61 Mich.App. 83, 88, 232 N.W.2d 312 (1975).

Joyce has not satisfied this burden; he presented no facts or evidence to show that Rich was an incompetent driver. Moreover, Joyce’s briefing fails to address how D Rich Trucking LLC knew or could infer that Joyce was incompetent. See (Pl. Resp. ECF No. 39, PageID.448-49).

The Court GRANTS D Rich Trucking LLC’s Motion for Summary Judgment of Count III.

D. Count IV — Respondeat Superior Against Four Star Transportation

Joyce says Rich negligently operated the tractor trailer as an employee, servant, and/or agent of Four Star Transportation [*14]  Co. (Pl. Compl. ECF No. 5, PageID.35 ¶ 32). Because Rich operated the tractor trailer during the course of his employment, Joyce says Four Star Transportation Co. is liable under the respondeat superior doctrine.

Under respondeat superior, “[a]n employer is generally liable for the torts its employees commit within the scope of their employment.” Hamed v. Wayne County, 490 Mich. 1, 803 N.W.2d 237, 244 (2011). Since Rich did not commit a tort, respondeat superior is inapplicable.

The Court GRANTS Four Star Transportation Co.’s Motion for Summary Judgment of Count IV.

E. Count V — Negligence Against White

Joyce brings a negligence claim against White. (Pl. Complaint. ECF No. PageID.36-40 ¶ 36-47). White also drove behind Joyce’s tractor trailer as Joyce came to a stop. According to White, he could not avoid colliding into Joyce. (ECF No. 37, PageID.274-75). In his Motion for Summary Judgment, White says it is not enough for Joyce to simply allege that White “could have should have [sic] done something different.” (ECF No. 37, PageID.275).

Similar to the claim against Rich, Joyce fails to present evidence that White breached his duty of care. Joyce attached the same five exhibits that he attached to his response to Rich — traffic crash report; excerpts [*15]  from Joyce’s deposition testimony; excerpts from Markwart’s deposition testimony; excerpts of medical records; and MRIs of Joyce’s spine and knee.

The police report notes that White appeared normal; he was not distracted; and he was not under the influence of alcohol or drugs. The report makes no mention of speeding or traffic violations. The responding state troopers did not issue White a citation. (ECF No. 37-2, PageID.289).

For the reasons mentioned in the claim against Rich, Markwart’s deposition testimony is not evidence that White’s conduct fell below a reasonable standard of care.

A reasonable jury could not return a verdict against White. Street, 886 F.2d at 1479. The Court GRANTS White’s Motion for Summary Judgment of Count V.

V. Conclusion

For the reasons mentioned above, the Court GRANTS Defendants David Rich, D Rich Trucking LLC, and Four Star Transportation Co’s Motion for Summary Judgment. (ECF No. 36).

The Court GRANTS Defendant White’s Motion for Summary Judgment. (ECF No. 37).

IT IS ORDERED.

/s/ Victoria A. Roberts

Victoria A. Roberts

United States District Judge

Dated: August 9, 2022

JUDGMENT

Consistent with the Court’s Order entered on August 9, 2022:

The Court ORDERS that Judgment enter in favor of [*16]  Defendants — David Rich, D Rich Trucking LLC, Four Star Transportation Co., and Dale White.

Dated at Detroit, Michigan on August 9, 2022.

Approved:

/s/ Victoria A. Roberts

Victoria A. Roberts

United States District Judge

End of Document

---

¹ There were numerous news outlets covering the multi-vehicle accident. The Ottawa County Undersheriff, Valerie Weiss, described the weather on the interstate where the accident occurred as “treacherous.” “The blowing snow is the biggest issue.” https://www.mlive.com/news/grand-rapids/2019/01/whiteout-conditions-swamp-west-michigan-with-pileups-interstate-shutdowns.html

United States District Court for the District of Maryland

August 1, 2022, Decided; August 1, 2022, Filed

Civil Action No. GLR-21-3132

Reporter

2022 U.S. Dist. LEXIS 137048 *; 2022 WL 3027859

ESTATE OF MARY JEAN GRILLO, by Anthony Grillo, Personal Representative of the Estate of Mary Jean Grillo, et al., Plaintiffs, v. TRAMAINE MARKEE THOMPSON, et al., Defendants.

Core Terms

Crash, contributory negligence, summary judgment, Plaintiffs’, discovery, intersection, material fact, Counts, gross negligence, genuine dispute, summary judgment motion, nonmovant, lose consciousness, last clear chance, damages, driver, traveling, reasons, defense of contributory negligence, speculation, speed

Counsel:  [*1] For Estate of Mary Jean Grillo, by Anthony Grillo, Personal Representtative of the Estate of Mary Jean Grillo, Anthony Grillo, Individually and as Personal Representative of the Estate of Mary Jean Grillo, Monica Anne Grillo, Jeanne Marie Grillo, Anne Marie Grillo, John Grillo, Plaintiffs: Kevin M Leach, LEAD ATTORNEY, Turbitt, O Herron, & Leach, PLLC, Burke, VA.

For Tramaine Markee Thompson, Individually, and as Agent, Contractor, Employee, Representative, or Servant of P and S Transporation, LLC, P and S Transportation, LLC, Defendants: Andrew T Stephenson, LEAD ATTORNEY, Franklin and Prokopik PC, The B and O Bldg, Baltimore, MD; Joshua T Carback, Franklin & Prokopik, Baltimore, MD.

Judges: George L. Russell, III, United States District Judge.

Opinion by: George L. Russell, III

Opinion

MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants P&S Transportation, LLC and Tramaine Markee Thompson’s Motion to Dismiss (ECF No. 13). The Motion is ripe for disposition and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021).¹ For the reasons discussed below, the Court will grant the Motion, which the Court construes as a motion for summary judgment.

I. BACKGROUND

A. Factual Background

Plaintiffs in this case are the Estate [*2]  of Mary Jean Grillo (“Grillo”), her husband Anthony Grillo, Individually and as Personal Representative of the Estate of Mary Jean Grillo, and Grillo’s children, Monica Anne Grillo, Jeanne Marie Grillo, Anne Marie Grillo, and John Grillo. (Compl. at 1, ¶ 4, ECF No. 1-4). On the afternoon of February 4, 2019, Grillo was driving her 2005 Honda Element eastbound on Annapolis Road in Anne Arundel County, Maryland. (Id. ¶¶ 7, 9). Grillo was stopped at a red light at the intersection of Annapolis Road and Route 301. (Id. ¶ 9). At that same time, Defendant Tremaine Markee Thompson, in his capacity as an employee of Defendant P&S Transportation, LLC (“P&S”), was traveling on Route 301 in a 2013 Freightliner tractor pulling a loaded forty-eight-foot flatbed trailer. (Id. ¶¶ 9, 10). As Thompson “approached the intersection on a yellow signal,” Grillo “inadvertently entered the intersection.” (Id. ¶ 9). Thompson struck Grillo’s vehicle in his tractor-trailer and caused her death (the “Crash”). (Id. ¶ 12).

As he traveled the 8,766 feet prior to the Crash, Thompson was moving somewhere between 59.5 and 66.5 miles per hour (“mph”), in excess of the fifty-mph speed limit. (Id. ¶ 11; Forensic Crash [*3]  Reconstruction Report [“ATI Report”] at 2, ECF No. 17-1).² Plaintiffs posit that if Thompson had been travelling “at the posted speed limit” over the course of this distance prior to the Crash, “the truck would have been 1,802 feet from the crash location when Ms. Grillo entered the intersection.” (Id. ¶ 12). As a result, Plaintiffs allege, “[n]ot only would the crash not have occurred, but Mr. Thompson would not have been in a position to even see [Grillo’s] Honda at the intersection.” (Id.).

The official police report of the Crash (the “Police Report”) stated that Grillo’s vehicle “started pulling into the intersection against the red signal as [Thompson’s vehicle] was entering the intersection on the yellow signal.” (Anne Arundel Cnty. Police Report [“Police Report”] at 3, ECF No. 13-5). A driver behind Thompson’s vehicle stated that “had a yellow light and he made it with time to spare.” (Id. at 16). Video footage from Thompson’s vehicle shows that Grillo’s vehicle did not enter the intersection until, at the earliest, 1.75 seconds before the Crash. (Id. at 18-23). An eyewitness described herself as “shocked” that Grillo entered the intersection because they “had been sitting there [*4]  for a minute” before Grillo’s vehicle “just slowly went through the red light.” (Id. at 15). The Anne Arundel County Police Department determined that Thompson’s vehicle was traveling “as much [as] 15 mph over the posted 50 mph speed limit approximately 22 seconds prior to the collision.” (Id. at 36). The police nevertheless found that the “primary cause” of the Crash was Grillo’s failure to obey the traffic signal. (Id. at 35).

Plaintiffs include with their Opposition several exhibits relating to Grillo’s health in the weeks leading up to the Crash. For example, Plaintiffs provide a January 28, 2019 report from Grillo’s primary care physician reflecting that she “ha[d] been struggling now with palpitations for the last 4-6 weeks.” (M. Skinner Report at 1, ECF No. 17-1).³ Grillo’s physician suspected that Grillo’s blood pressure was “not very well controlled.” (Id.). Grillo was equipped with a body guardian heart monitor at the time of the visit. (Autopsy Report at 1, ECF No. 17-1).⁴ The Autopsy Report, however, suggests that Grillo’s cardiovascular system was in good condition at the time of the Crash. (Id. at 2-3).

B. Procedural History

Plaintiffs filed their Complaint with the Circuit [*5]  Court for Anne Arundel County, Maryland, on August 19, 2021. (ECF No. 1-4). Defendants removed the case to this Court on December 8, 2021. (ECF No. 1).

Plaintiffs’ seven-count Complaint alleges: wrongful death (Count I); survival action (Count II); negligence (Count III); respondeat superior (Count IV); negligent entrustment (Count V); negligent hiring and retention (Count VI); and punitive damages (Count VII). (Compl. ¶¶ 16-63). The Complaint seeks five million dollars in economic and non-economic damages, compensatory damages, punitive damages, costs, and pre-and post-judgment interest. (Id. at 15-16).

On December 21, 2021, Defendants filed the instant Motion to Dismiss (ECF No. 13). Plaintiffs filed an Opposition on February 4, 2022, (ECF No. 17), and on February 17, 2022, Defendants filed a Reply (ECF No. 20).⁵

II. DISCUSSION

A. Standard of Review

1. Conversion

Defendants request in the first paragraph of their Motion “that the Court convert their motion to dismiss into a motion for summary judgment and grant summary judgment in Defendants’ favor on all counts.” (Mem. Supp. Mot. Dismiss [“Mot.”] at 1, ECF No. 13-1). “A motion styled in this manner implicates the Court’s discretion [*6]  under Rule 12(d)[.]” Pevia v. Hogan, 443 F.Supp.3d 612, 625 (D.Md. 2020). Rule 12(d) provides that when “matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The Court “has ‘complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.'” Wells-Bey v. Kopp, No. ELH-12-2319, 2013 U.S. Dist. LEXIS 54839, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2012 Supp.)).

The United States Court of Appeals for the Fourth Circuit has articulated two requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: (1) notice and (2) a reasonable opportunity for discovery. See Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013). When the movant states in the first paragraph of its motion that it seeks to convert the motion to one for summary judgment and submits matters outside the pleadings for the court’s consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur. See Davidson v. Md. Parole Comm’n, No. JFM-13-250, 2013 U.S. Dist. LEXIS 61541, 2013 WL 1830097, at *1 (D.Md. Apr. 30, 2013). The Court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

Ordinarily, summary judgment is inappropriate when “the parties have not had an opportunity for reasonable [*7]  discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.'” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To satisfactorily raise the issue that more discovery is needed, the non-movant must typically file an affidavit or declaration under Rule 56(d), explaining the “specified reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of discovery.” Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011). A Rule 56(d) request for discovery is properly denied when “the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Ingle ex rel. Est. of Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995)).

The Fourth Circuit has warned that it “‘place[s] great weight on the Rule 56[d] affidavit’ and that ‘a reference to Rule 56[d] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for a Rule 56[d] affidavit.'” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). Failing to file a Rule 56(d) affidavit “is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.” [*8]  Id. (quoting Evans, 80 F.3d at 961). Nevertheless, the Fourth Circuit has indicated that there are some limited instances in which summary judgment may be premature notwithstanding the non-movants’ failure to file a Rule 56(d) affidavit. See id. A court may excuse the failure to file a Rule 56(d) affidavit when “fact-intensive issues, such as intent, are involved” and the nonmovant’s objections to deciding summary judgment without discovery “serve[] as the functional equivalent of an affidavit.” Id. at 244-45 (quoting First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1380, 267 U.S. App. D.C. 27 (D.C. Cir. 1988)).

Here, both requirements for conversion are satisfied, and the Court will not excuse Plaintiffs’ failure to file a Rule 56(d) affidavit. Defendants stated in the first paragraph of their Motion that they sought to convert it to a motion for summary judgment. See Davidson, 2013 U.S. Dist. LEXIS 61541, 2013 WL 1830097, at *1. Thus, Plaintiffs were on notice that the Court might resolve Defendants’ Motion under Rule 56. While Plaintiffs filed an Opposition, they did not include a Rule 56(d) affidavit. Rather, Plaintiffs, in conclusory fashion, describe the motion for summary judgment as “[p]remature” and request that the Court “allow plaintiff the opportunity to engage in discovery and try her case on the merits.” (Mem. Supp. Pl.’s Obj. Defs.’ Mot. Dismiss [“Opp’n”] at 14-15, ECF No. 17-1). Plaintiffs reference [*9]  unanswered discovery requests, (id. at 15), but do not describe what evidence those requests sought or why that evidence would create a genuine dispute of material fact. Plaintiffs’ request, without more, does not “put the district court on notice of the reasons why summary judgment [is] premature.” See Harrods, 302 F.3d at 245; see also id. at 244 (“[A] reference to Rule 56[d] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for a Rule 56[d] affidavit.” (quoting Evans, 80 F.3d at 961)). The Court will therefore treat the Motion as one for summary judgment.

2. Summary Judgment

In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor. Ricci v. DeStefano, 557 U.S. 557, 586, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)). Summary judgment is proper when the movant demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials,” 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), (c)(1)(A). Significantly, [*10]  a party must be able to present the materials it cites in “a form that would be admissible in evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be made on personal knowledge” and “set out facts that would be admissible in evidence,” Fed.R.Civ.P. 56(c)(4).

Once a motion for summary judgment is properly made and supported, the burden shifts to the nonmovant to identify evidence showing there is a genuine dispute of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The nonmovant cannot create a genuine dispute of material fact “through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

A “material fact” is one that might affect the outcome of a party’s case. Anderson, 477 U.S. at 248; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (“The existence of an alleged factual dispute between the parties will not defeat a properly supported motion for summary judgment, unless the disputed fact is one that might affect the outcome of the litigation.”). Whether a fact is considered to be “material” is determined by the substantive law. Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). A “genuine” dispute concerning a “material” fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s favor. Anderson, 477 U.S. at 248. If the nonmovant fails to make a sufficient showing on an essential [*11]  element of his case where he has the burden of proof, “there can be ‘no genuine [dispute] as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

B. Analysis

1. Negligence and Related Claims (Counts I-III)

Defendants argue that Plaintiffs’ negligence, survivor action, and wrongful death claims must fail because Grillo was contributorily negligent to the Crash. At bottom, the Court agrees and will dismiss Counts I-III on this basis.

Maryland recognizes the doctrine of contributory negligence. See Kiriakos v. Phillips, 448 Md. 440, 139 A.3d 1006, 1026 n.38 (Md. 2016). “[C]ontributory negligence bars a plaintiff’s recovery” for negligence when the injury that the defendant caused “is also a result of the plaintiff’s own failure to exercise due care.” Id. Critically, “a plaintiff who fails to observe ordinary care for his own safety is contributorily negligent and is barred from all recovery, regardless of the quantum of a defendant’s primary negligence.” Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md. 442, 456 A.2d 894, 898 (Md. 1983) (emphasis added). “That is to say, even if the plaintiff is determined to be only one percent negligent in an accident and the defendant ninety-nine percent negligent, the plaintiff [*12]  is still denied recovery.” Meyers v. Lamer, 743 F.3d 908, 914 (4th Cir. 2014).

On the face of the Complaint, it appears beyond dispute that Grillo was contributorily negligent: in the moments immediately prior to the Crash, she entered the intersection against a red light in violation of Maryland Traffic Code. See Md. Code Ann., Transp. § 21-202(h); Ford v. Bradford, 213 Md. 534, 132 A.2d 488, 491-92 (Md. 1957) (“[T]he violation of a statutory regulation is evidence of negligence, and if such violation causes or contributes to the injuries complained of it constitutes negligence.”); see also Duncan v. United States, No. L-10-2097, 2011 U.S. Dist. LEXIS 74665, 2011 WL 2746291, at *1, *3 (D.Md. July 11, 2011) (granting summary judgment in favor of the defendant upon finding that the plaintiff was contributorily negligent as a matter of law in failing to keep a proper lookout in entering an intersection). Thus, on the face of the Complaint and the documentary evidence before the Court, there appears to be no genuine dispute as to whether Grillo was at least one percent responsible for the Crash.

In their Opposition, Plaintiffs rely on three arguments to contest Defendants’ argument that Grillo was contributorily negligent: (1) Grillo may have suffered a medical event that caused her to lose consciousness prior to the Crash and, therefore, she was not contributorily negligent, (Opp’n at 6-9); (2) Defendants may not rely on a contributory negligence [*13]  defense because Thompson was grossly negligent, (id. at 9-13); and (3) contributory negligence is not a bar to Plaintiffs’ claims because Thompson had or should have had a “last clear chance” to avoid the Crash, (id. at 13-14). The Court will address each argument in turn.

First, Plaintiffs argue that the evidence they attach to their Opposition indicating that Grillo had certain preexisting health conditions suggests that she may have fainted prior to the Crash. Plaintiffs cite Moore v. Presnell, 38 Md. App. 243, 379 A.2d 1246 (Md.Ct.Spec.App. 1977), for the “defense of unanticipated unconsciousness,” i.e., the idea that “where the driver of a motor vehicle suddenly and unforeseeably becomes physically or mentally incapacitated, he is not liable for injury resulting from the operation of the vehicle while so incapacitated.” Id. at 1248-49.

The issue with Plaintiffs’ unanticipated unconsciousness defense is that a party opposing summary judgment must identify a genuine dispute as to a material fact. The idea that Grillo may have suffered some medical event that caused her to lose consciousness—a theory, incidentally, entirely absent from the Complaint—is, at best, conjecture. See Hartford Fire Ins. v. Adcor Indus., Inc., 158 F.App’x 430, 432 (4th Cir. 2005) (“[S]peculative inferences and conclusory assertions are not enough to create a genuine [*14]  issue of material fact.”); Othentec Ltd., 526 F.3d at 140 (holding that the nonmovant cannot create a genuine dispute of material fact “through mere speculation or the building of one inference upon another” (quoting Beale, 769 F.2d at 214)). It is a post-hoc rationalization for what may have caused Grillo’s vehicle to enter the intersection and, to be sure, it is theoretically possible. But a party cannot create a genuine dispute of material fact by imagining a set of circumstances under which a decedent was not contributorily negligent. And there is no actual evidence here to support that Grillo lost consciousness. For example, Plaintiffs have introduced no evidence that Grillo lost consciousness in the weeks or months leading up to the Crash, or that any eyewitnesses to the Crash saw her head or body slump prior to the Crash. Indeed, it appears from the Autopsy Report that Grillo’s cardiovascular system was in good condition at the time of the Crash. (See Autopsy Report at 2-3). A single physician’s report referencing heart palpitations, without more, is insufficient to create a genuine dispute of fact as to whether Grillo passed out before the Crash.

Further, Plaintiffs’ argument that Grillo’s loss of consciousness may have been [*15]  caused by medication she was taking—another idea introduced for the first time in Plaintiffs’ Opposition—is similarly unsupported by any specific reference to those medications and their possible side effects. Plaintiffs’ reliance on eyewitness testimony that Grillo’s vehicle had stopped prior to entering the intersection to support the position that Grillo had lost consciousness is also speculative. In sum, Plaintiffs ask the Court to make the inference that Grillo lost consciousness because she may have had a heart condition of some kind, she was taking blood pressure medication, and she entered the intersection after stopping her car. The Court cannot make such a speculative logical leap without supporting evidence when evaluating a motion under Rule 56.

Finally, the Court notes that if Grillo knowingly operated her vehicle with a medical condition that created the potential for her to lose consciousness, that would bar her unanticipated unconsciousness defense. See Moore, 379 A.2d at 1248 n.4 (“If the driver of the vehicle knew that he was subject to attacks in the course of which he was likely to lose consciousness, and an accident occurs because of the fact that the driver suffered a fainting spell, such loss [*16]  of consciousness does not constitute a defense . . . .” (quoting 28 A.L.R.2d 12 § 3(2) (1953))). For all these reasons, the Court finds that Plaintiffs’ speculation that Grillo may have lost consciousness prior to the Crash is insufficient to create a genuine issue of material fact as to her contributory negligence.

Plaintiffs next argue that Defendants cannot rely on a defense of contributory negligence because Plaintiffs have introduced evidence showing that Thompson was grossly negligent. Plaintiffs rely on a host of cases outside of the state of Maryland to support the position that gross negligence precludes a defense of contributory negligence. (See Opp’n at 11-12). These cases, however, do not reflect Maryland law. As the Fourth Circuit has explained:

Maryland never has held that contributory negligence does not bar gross negligence. To the contrary, many cases have suggested just the opposite in dicta. See, e.g., Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 451, 456 A.2d 894, 898 (1983) (observing that it is “the well-established law of this State that a plaintiff who fails to observe ordinary care for his own safety is contributorily negligent and is barred from all recovery, regardless of the quantum of a defendant’s primary negligence”); Stancill v. Potomac Elec. Power Co., 744 F.2d 861, 865 n. 21, 240 U.S. App. D.C. 237 (D.C.Cir.1984) (noting that “[n]either party, [*17]  however, has directed us to any Maryland case expressly so holding, and our own review of Maryland caselaw might lead us to the conclusion that contributory negligence defeats claims based upon gross negligence, as well as those based upon simple negligence”); Ladnier v. Murray, 572 F.Supp. 544, 547 (D.Md.1983) (applying Maryland law to the effect that “contributory negligence is an absolute bar to recovery in a negligence case”), rev’d in part, vacated in part, on other grounds, 769 F.2d 195 (4th Cir.1985).

Ramos v. S. Md. Elec. Co-op., Inc., 996 F.2d 52, 54-55 (4th Cir. 1993); see also Est. of Saylor v. Regal Cinemas, Inc., No. WMN-13-3089, 2016 U.S. Dist. LEXIS 122008, 2016 WL 4721254, at *14 n.10 (D.Md. Sept. 9, 2016) (“[T]he question as to whether contributory negligence can be a bar to a gross negligence claim is an unsettled question under Maryland law.”), aff’d sub nom., Est. of Saylor v. Rochford, 698 F.App’x 72 (4th Cir. 2017); Rockwell v. Rawlins, No. RDB-13-3049, 2014 U.S. Dist. LEXIS 150858, 2014 WL 5426716, at *5 (D.Md. Oct. 23, 2014) (“[T]here is no definitive Maryland case law explaining the relationship between gross negligence and contributory negligence, and it appears that the United States Court of Appeals for the Fourth Circuit has determined that the Maryland would reject the Restatement’s rule.”).

The Court is unaware of any Maryland decision post-dating Ramos in which an appellate court has held that gross negligence on the part of a defendant precludes a defense of contributory negligence. Thus, as this Court held in Rockwell, “[i]n light of the death of any more recent guidance from Maryland courts, this Court is compelled [*18]  to follow the Fourth Circuit’s construction of Maryland law.” 2014 U.S. Dist. LEXIS 150858, 2014 WL 5426716, at *5. As a result, the Court need not consider whether Thompson was grossly negligent, because even if Plaintiffs were able to establish such gross negligence, it would not obviate Grillo’s own contributory negligence under Maryland law.

Finally, Plaintiffs argue that notwithstanding Grillo’s contributory negligence, Thompson remains liable under the “last clear chance” doctrine. In Maryland, the “last clear chance” doctrine “allows a contributorily negligent plaintiff to recover damages from a negligent defendant when ‘the plaintiff makes a showing of something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence.'” Saravia v. De Yue Chen, 527 F.App’x 254, 256 (4th Cir. 2013) (quoting Wooldridge v. Price, 184 Md. App. 451, 966 A.2d 955, 961 (Md.Ct.Spec.App. 2009)). “But ‘[w]here the negligence of the plaintiff and defendant are concurrent in time or where the lack of a fresh opportunity is caused by the defendant’s preexisting negligence, the defendant has no last clear chance,’ and the doctrine is inapplicable.” Id. (quoting Kassama v. Magat, 368 Md. 113, 792 A.2d 1102, 1114 n.12 (Md. 2002)).

According to Plaintiffs, the Forensic Crash Reconstruction Report prepared by Accident Technology, Inc., established that Thompson was [*19]  8,766 feet from the Crash location one minute and forty-four seconds prior to the Crash and traveling at an unlawful speed for the period leading up to the Crash. (ATI Report at 2). Plaintiffs argue that had Thompson been traveling at a legal speed for those 104 seconds, he would have been far enough away from Grillo at the time of the Crash that he would have had a “last clear chance” to avoid the Crash. (Opp’n at 14). But this argument and these facts are almost the precise opposite of what is required to establish a “last clear chance” argument. Plaintiffs do not argue that Thompson encountered “something new or sequential, which afford[ed] [Thompson] a fresh opportunity (of which he fail[ed] to avail himself) to avert the consequences of his original negligence.” Saravia, 527 F.App’x at 256 (quoting Wooldridge, 966 A.2d at 961). Rather, Plaintiffs argue that if Thompson had been going slower earlier, he would then have had a “last clear chance” to avoid the Crash. In other words, Plaintiffs argue that “the lack of a fresh opportunity [was] caused by the defendant’s preexisting negligence.” Id. (quoting Kassama, 792 A.2d at 1114 n.12). This is precisely the sort of situation in which the Fourth Circuit and the Maryland Court of Appeals found that the last clear [*20]  chance doctrine does not apply. Accordingly, the Court rejects Plaintiffs’ argument that they may proceed despite Grillo’s contributory negligence under the last clear chance doctrine.

For all these reasons, the Court finds that Plaintiffs have failed to introduce a genuine dispute of material fact as to whether Grillo’s negligence contributed to the Crash. The Court further finds that Maryland courts would likely find that gross negligence is not a bar to a contributory negligence defense. Finally, the Court finds that the last clear chance doctrine is inapplicable here. Contributory negligence is a complete bar to recovery in Maryland for claims rooted in negligence. Harrison, 456 A.2d at 898; see Wooldridge, 966 A.2d at 961 (“In survival actions and wrongful death actions, contributory negligence of the decedent is a bar to recovery against a negligent defendant.”). Accordingly, the Court will enter judgment in Defendants’ favor on Counts I-III.

2. Negligence by P&S (Counts V, VI)

Plaintiffs bring Counts V and VI against P&S for negligent entrustment and negligent hiring and retention. (Compl. ¶¶ 41-60). Defendants “formally admit that Mr. Thompson was driving a truck within the scope of his employment for P&S at the time the accident [*21]  occurred.” (Mot. at 10). When defendants in an automobile tort action admit that there is an agency relationship between the driver alleged to be at fault and his employer, the court may dismiss the plaintiff’s negligent entrustment and negligent hiring and retention claims. See Houlihan v. McCall, 197 Md. 130, 78 A.2d 661, 665 (Md. 1951) (“[W]hen agency had been admitted it was quite unnecessary to pursue the alternative theory in order to hold the corporate defendant. It was only necessary to prove negligence on the part of the driver.”); see also Brown v. Kahl, No. JMC-18-352, 2018 U.S. Dist. LEXIS 146861, 2018 WL 4108030, at *4 (D.Md. Aug. 29, 2018) (“Because the corporate defendant had already conceded that it was vicariously liable . . . the negligent entrustment claim not only became superfluous, but created a pathway for the potential introduction of unfairly prejudicial evidence against the driver in deciding the issue of his negligence.”). Accordingly, the Court will enter judgment in Defendants’ favor on Counts V and VI.

3. Derivative Counts (Counts IV, VII)

Plaintiffs’ remaining claims, Count IV (respondeat superior) and Count VII (punitive damages), are essentially rooted in Plaintiffs’ negligence claims, Counts I-III. Because Plaintiffs’ negligence claims fail, Counts IV and VII fail. See In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Prod. Liab. Litig., 300 F.Supp.3d 732, 736 n.3 (D.Md. 2018) (“A claim for punitive damages is derivative [*22]  and therefore survives if the plaintiffs’ underlying claims that support it survive.”); Cap. Lighting & Supply, LLC v. Wirtz, No. JKB-17-3765, 2018 U.S. Dist. LEXIS 140711, 2018 WL 3970469, at *15 (D.Md. Aug. 20, 2018) (“[R]espondeat superior is not a standalone claim but a theory of liability under which an employer can be held liable for the tortious conduct of an employee if the employee was acting within the scope of his employment.” (quoting Gibbons v. Bank of Am. Corp., No. JFM-08-3511, 2012 U.S. Dist. LEXIS 3234, 2012 WL 94569, at *5 n.5 (D.Md. Jan. 11, 2012))). Accordingly, the Court will grant Defendants’ Motion as to Counts IV and VII.

III. CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss (ECF No. 13), which it construes as a motion for summary judgment. A separate Order follows.

Entered this 1st day of August, 2022.

/s/ George L. Russell, III

United States District Judge

ORDER

For the reasons stated in the foregoing Memorandum Opinion, it is this 1st day of August, 2022, by the United States District Court for the District of Maryland, hereby:

ORDERED that Defendants P&S Transportation, LLC and Tramaine Markee Thompson’s Motion to Dismiss (ECF No. 13), which the Court construes as a motion for summary judgment, is GRANTED;

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Surreply (ECF No. 28) is DENIED;

IT IS FURTHER ORDERED that judgment is ENTERED in favor of Defendants; [*23]  and

IT IS FURTHER ORDERED that the Clerk shall CLOSE this case.

/s/ George L. Russell, III

United States District Judge

End of Document

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¹ The Court recognizes that Defendants have requested a hearing on the Motion. (See Mot. Dismiss at 3, ECF No. 13). Having determined that no hearing is necessary to understand the issues underlying the Motion, the Court will deny the request.

² Rather than filing the exhibits to their Opposition as separate attachments, Plaintiffs appended the exhibits to their Opposition to the end of the Opposition. Thus, the electronic document accessible at ECF No. 17-1 contains the Opposition and several exhibits thereto. The Forensic Crash Reconstruction Report prepared by Accident Technology, Inc., may be found at pp. 30-33 of ECF No. 17-1. References to exhibit page ranges refer to the pagination of the combined PDF document as it exists on the Court’s Case Management/Electronic Case Files (“CM/ECF”) system.

³ The January 28, 2019 physician’s report may be found at pp. 20-22 of ECF No. 17-1.

⁴ The Autopsy Report may be found at pp. 24-27 of ECF No. 17-1.

⁵ On March 3, 2022, Plaintiffs filed a Motion for Leave to File Surreply (ECF No. 28) along with a proposed Surreply (ECF No. 28-1). Although a district court has discretion to allow a surreply, see Local Rule 105.2(a) (D.Md. 2021), surreplies are generally disfavored in this District. Chubb & Son v. C & C Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D.Md. 2013). A surreply may be permitted “when the moving party would be unable to contest matters presented to the court for the first time in the opposing party’s reply.” Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003), aff’d, 85 F.App’x 960 (4th Cir. 2004). Here, the subject of the proposed Surreply—whether Plaintiffs served Defendants with discovery requests prior to removal—does not bear on the Court’s resolution of this Motion for reasons explained infra in Section II.A.1. Accordingly, the Court will deny the Motion for Leave to File Surreply.