United States District Court, S.D. Ohio, Eastern Division.

Susan P. McNamee-Miller, et al., Plaintiffs,

v.

HMD Trucking, Inc., et al., c/o Beery & Spurlock Co., LPA Defendants.

Case No. 2:22-cv-3389

Filed: 03/10/2023

Magistrate Judge Vascura

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

*1 Susan P. McNamee-Miller (“Ms. McNamee”) and Cody M. McNamee (“Cody”¹, together, “Plaintiffs”) sue HMD Trucking, Inc. (“HMD”) and Brad Coles (“Coles,” together with HMD, “Defendants”) for various state-law claims. Compl., ECF No. 2. HMD now moves for partial judgment on the pleadings. Mot., ECF No. 14. For the following reasons, HMD’s motion is GRANTED IN PART.

I. STATEMENT OF FACTS

Ms. McNamee and Cody, mother and son, are residents of Franklin County, Ohio. They allege they were traveling east on Interstate 270 (“I-270”) in the early evening of November 22, 2020. As Plaintiffs were traveling in the right-hand lane, another vehicle “spun out beside them, forcing Ms. McNamee to apply her brakes to avoid becoming involved with the other vehicle.” Compl. ¶ 17, ECF No. 2. Unfortunately, when Ms. McNamee pressed her brakes, she was rear-ended by a tractor–trailer. Id. ¶ 18. That collision pushed Ms. McNamee’s car “from the rightmost through lane to the center through lane of I-270.” Id. ¶ 19.

Finding herself stranded in the center lane, Ms. McNamee activated the hazard lights on her vehicle. Id. ¶ 20. The driver of the tractor–trailer that rear-ended Plaintiffs “came to a stop in the rightmost lane and partially in the center lane and applied its flashing hazard lights[,]” too. Id. ¶ 21. Other drivers slowed or stopped their vehicles in the left-most lane “with their flashing hazard lights activated to warn any other vehicles of a hazard.” Id. ¶ 23.

Meanwhile, Coles was driving behind Plaintiffs in a different tractor–trailer, hauling goods for HMD. Id. ¶ 9. Coles approached the accident scene more than thirty-five seconds after the accident occurred. Id. ¶ 25. Instead of stopping, Coles “attempted to split the passenger vehicles on the left and the tractor–trailer on the right … in excess of fifty-five (55) miles per hour.” Id. ¶ 25.

Coles hit Plaintiffs’ vehicle, causing “devastating brain injuries” to Ms. McNamee and “serious spinal fractures with spinal cord compression” to Cody. Id. ¶ 26 & Overview.

II. STATEMENT OF JURISDICTION

The Court has diversity jurisdiction over this removed case.

Ms. McNamee and Cody are citizens of Ohio. Compl. ¶ 1, ECF No. 2. At the time the Complaint was filed, HMD was a for-profit corporation organized under the laws of, and with its principal place of business in, Illinois. Notice Removal ¶ 2, ECF No. 1. Coles was a citizen of Virginia. Compl. ¶ 3, ECF No. 2; Notice Removal ¶ 2, ECF No. 1.

Plaintiffs’ state-court Complaint requests more than $25,000 in damages, but given the extent of the injuries alleged to both Plaintiffs, the federal jurisdictional threshold requirement is satisfied. See, e.g., Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 572–73 (6th Cir. 2001) (noting a removing defendant must show by a preponderance of the evidence that a fair reading of the complaint involves damages in excess of $75,000).

III. STANDARD OF REVIEW

*2 “A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) generally follows the same rules as a motion to dismiss the complaint under Rule 12(b)(6).” Bates v. Green Farms Condominium Ass’n, 958 F.3d 470, 480 (6th Cir. 2020) (citing D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (citing JPMorgan Chase Bank v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citations and quotation marks omitted)).

As with a 12(b)(6) motion, a claim survives a motion for judgment on the pleadings if it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted). This standard “calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [unlawful conduct].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A pleading’s “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the [pleading] are true (even if doubtful in fact).” Id. at 555 (internal citations omitted). The court “must construe the complaint in the light most favorable to the [non-moving party.” Engler v. Arnold, 862 F.3d 571, 574 (6th Cir. 2017). However, the non-moving party must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

IV. ANALYSIS

Plaintiffs sue HMD for vicarious liability (Count II), “direct negligence” (Count III), and punitive damages (Count IV). Compl., ECF No. 2. HMD moves for judgment on the pleadings only as to Counts III and IV. Mot. 1, ECF No. 14.

A. Direct Negligence Against HMD

In Count III, Plaintiffs allege that both Ohio law and the Federal Motor Carrier Safety Regulations (“FMCSR”), at 49 C.F.R. § 309.11, imposed on HMD a “non-delegable duty to assure that the load was transported in a reasonably safe manner, including compliance with all applicable traffic laws, ordinances, regulations, and other reasonable safety requirements.” Compl. ¶ 45, ECF No. 2. Plaintiffs further allege that HMD breached its duties under both Ohio law and under the FMCSR “through the negligence and reckless conduct of its hired driver, Defendant Coles.” Id. ¶ 46.

HMD argues that Count III must fail because, to the extent it is based on the breach of a duty imposed by Ohio law, it is duplicative of Plaintiff’s claim for vicarious liability for Cole’s negligence, which is pled in Count II. Mot. 4–5, ECF No. 14. Further, HMD asserts, there is no independent cause of action for strict liability against a motor carrier for an alleged violation of the FMCSRs. Id.

In response, Plaintiffs clarify that Count III does not allege a strict liability claim under the FMCSR. Resp. 4, 7, ECF No. 16. Rather, they assert, Counts II and III are alternative Ohio-law claims against HMD based on vicarious liability: Count II asserts vicarious liability and applies in the event Coles was HMD’s employee, and Count III seeks to hold HMD vicariously liable for Cole’s breach of HMD’s nondelegable duty, in the event Coles was an independent contractor. Id.

*3 “Whereas an employer is liable for the negligent acts of its employees committed within the scope of employment, an employer of an independent contractor generally is not liable for the negligent acts of the independent contractor.” Pusey v. Bator, 94 Ohio St. 3d 275, 278 (Ohio 2002) (citations omitted). There are some exceptions to this general rule that employers are not liable for the negligent acts of their independent contractors, and “several of [those exceptions] stem from the nondelegable duty doctrine.” Id. at 279. Under that doctrine, if a nondelegable duty applies, “the employer may delegate the work to an independent contractor, but he cannot delegate the duty.” Id. “[I]f the independent contractor’s negligence results in a breach of the [nondelegable] duty,” the employer is not insulated from liability. Id.

Thus, Plaintiffs are correct that Coles’ relationship to HMD will be an important factor in this case as it will inform which legal framework governs HMD’s potential liability for Coles’ actions. The typical “scope of employment” framework will apply if Coles was an employee, and the nondelegable duty framework will apply if Coles was an independent contractor. Indeed, Plaintiffs explain that Counts II and III were pled in the alternative because Plaintiffs were unsure at the time the Complaint was filed whether Coles was an employee or independent contractor of HMD.

HMD’s Answer, however, “admit[s] that Brad D. Coles was an employee of HMD Trucking, Inc. and was within the course and scope of his employment/agency at the time of the subject incident.” Answer ¶ 23, ECF No. 5; see also Reply 3, ECF No. 18 (“Defendant HMD admitted that Defendant Coles was acting within the course and scope of his employment/agency at the time of the subject accident, so that Defendant HMW would be responsible for the purported negligence of Defendant Coles related to his operation of the subject commercial vehicle (the existence of which Defendants specifically deny).”). Despite the Answer’s various references to “employment/agency,” the above factual admission that Coles “was an employee of HMD Trucking, Inc.” is unambiguous and binding. Kay v. Minacs Grp. (USA), Inc., 580 F. App’x 327, 331 (6th Cir. 2014) (“Factual assertions in pleadings …, unless otherwise amended, are considered judicial admissions conclusively binding on the party who made them.” (internal quotation marks and citation omitted)). As such, Count III—which was pled only to apply in the event Coles was an independent contractor—can be dismissed without prejudice.²

B. Punitive Damages Against HMD

Count IV seeks punitive damages against both HMD and Cole.

HMD argues that Plaintiffs’ “claim”³ for punitive damages against it must be dismissed because Plaintiffs’ Complaint lacks any factual allegations that would, if true, support an award of punitive damages against HMD. Mot. 5–6, ECF No. 14.

*4 In response, Plaintiffs propose to voluntarily dismiss their “claim” for punitive damages against HMD without prejudice. Resp. 4, ECF No. 16.

HMD acknowledges Plaintiffs’ proposal but reiterates its request for a dismissal with prejudice. Reply 1, 4, ECF No. 18.

Based on Plaintiffs’ agreement to dismiss Count IV without prejudice, the Court GRANTS IN PART this aspect of HMD’s motion. Because HMD has shown only that the current Complaint lacks sufficient factual allegations to support an award of punitive damages—not the legal unavailability of the same—Count IV is DISMISSED WITHOUT PREJUDICE and only as it relates to HMD.

V. CONCLUSION

For the above reasons, HMD’s motion for partial judgment on the pleadings is GRANTED IN PART. Counts III and IV against HMD are DISMISSED WITHOUT PREJUDICE. The Clerk shall terminate ECF No. 14 as a pending motion.

IT IS SO ORDERED.

All Citations

Footnotes

1. Although Ms. McNamee-Miller’s name is hyphenated, the Court refers to her as “Ms. McNamee,” as that is the name used in the Complaint. Further, the Court refers to Cody McNamee as “Cody” instead of “Mr. McNamee” simply to avoid any possible confusion in the familial relationship between Ms. McNamee and Cody.  
2. HMD’s reliance on Baker v. Swift Transp. Co. of Arizona, LLC, No. 2:17-cv-909, 2018 WL 2088006 (S.D. Ohio May 4, 2018) is misplaced. That case is inapposite because, there, the plaintiff alleged both a vicarious liability claim and a strict liability claim. The Baker court dismissed the strict liability claim on the alternative grounds that it, inter alia, was duplicative of the existing vicarious liability claim or, to the extent it was not duplicative, was unsupported by the law because the FMCSR’s do not contain an independent cause of action for strict liability. Id. at 2–3. Here, Plaintiffs clarified they are not seeking any form of strict liability in Count III, and Count III is the vicarious liability claim that applies if Coles was an independent contractor. Thus, it is not duplicative of Count II, which was Plaintiffs’ vicarious liability claim only in the event Coles was an employee.  
3. The Court notes that “Ohio law does not recognize a stand-alone cause of action for punitive damages.” E.g., Baker, 2018 WL 2088006 at *5 (citation omitted). Rather, punitive damages are a remedy. Because the Court dismisses Count IV on other grounds, it need not dismiss the “Count” on this ground

End of Document

United States District Court, W.D. Virginia,

Lynchburg Division.

Judy M. PAUL, et al., Plaintiffs,

v.

WESTERN EXPRESS, INC. et al., Defendants.

Case No. 6:20-cv-51

Signed March 23, 2023

Attorneys and Law Firms

Gregory Lee Lyons, Joanna Marie Meyer, John Eric Lichtenstein, Lichtenstein Law Group, PLC, Roanoke, VA, Paul Rice Thomson, III, Thomson Law Firm, PLLC, Roanoke, VA, Stephen Christopher Huff, Crandall & Katt, Roanoke, VA, for Plaintiffs.

Ashley Walker Winsky, Jeffrey Paul Miller, Hailey Ann Wilkes, John Patrick Brown, Gentry Locke, Richmond, VA, for Defendants Western Express, Inc., Ervin Joseph Worthy.

MEMORANDUM OPINION & ORDER

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

*1 Plaintiffs Paul and Le Doux sue Defendants Western Express, Inc. and Worthy to collect damages for the injuries they sustained during a multi-vehicle accident on Interstate 81. Worthy and Le Doux have filed cross motions for summary judgment on Plaintiffs’ punitive damages claim based on Worthy’s alleged willful and wanton negligence. Defendants have also moved for summary judgment, claiming that Le Doux was contributorily negligent for the accident. For the following reasons, the Court will deny all the motions.

Background

On August 11, 2018, Paul, Le Doux, Roger Hiatt,¹ and Worthy were driving their respective vehicles on southbound Interstate 81 in Rockbridge County, Virginia when they were involved in a multi-vehicle accident. Paul was operating a 2012 Kia Soul and Le Doux was operating a Ford van with Kenneth Murphy riding as a passenger in his van. Dkt. 190-2 at 2; Dkt. 190 at 2. Roger Hiatt was operating a Honda Odyssey minivan. Dkt. 190-3 at 3. The son of Plaintiff Le Doux, Forrest Le Doux, was also driving his respective vehicle on southbound Interstate 81 with Eric Bernocco-Donahue riding in the front passenger seat of his vehicle. Dkt. 190-1 at 4. Forrest Le Doux was not involved in the accident.

Prior to the accident, the weather conditions shifted from a light rain to a heavy downpour. Dkt. 190-2 at 3; Dkt. 190-3 at 4. Either due to traffic or the weather, some motorists came to stop on the roadway. Dkt. 190-1 at 2–3. Paul, Le Doux, and Hiatt were then involved in a car accident. See Dkt. 190-3 at 5–6. Defendants claim that Le Doux’s Ford first struck Paul’s Kia and then Hiatt’s Honda struck Le Doux’s Ford. Dkt. 190 ¶¶ 19–22. Le Doux disagrees and contends that Hiatt’s Honda hit the rear of Le Doux’s van, which caused his van to hit Paul’s Kia.² Dkt. 229 at 6. Following the car accident, Hiatt’s Honda spun off to the left side of the interstate and onto the median. Dkt. 190-3 at 6. Paul drove her Kia off the roadway into the grassy median while Le Doux’s Ford came to a stop on the roadway. Dkt. 223, Ex. G; Dkt. 190-8 at 10.

Worthy, operating Western Express’s tractor–trailer, was using cruise control, and driving at 65 mph in the right lane of the interstate. See Dkt. 223, Ex. G; Dkt. 233 ¶ 12. The posted speed limit was 70 mph. Dkt. 223-6 at 4. Upon seeing Le Doux’s stopped vehicle as well as other stopped motorists in front of him on the interstate, Worthy stepped on his brakes and swerved into the left lane, resulting in his vehicle hitting the back of Le Doux’s Ford. Dkt. 190-2 at 5; Dkt. 190-8 at 39; see Dkt. 223, Ex. G. After hitting Le Doux’s Ford, Worthy’s tractor–trailer continued onto the grassy median and hit the back of Paul’s Kia. Dkt. 223, Ex. G. According to Murphy, Worthy’s collisions with Le Doux and Paul occurred approximately two to three seconds after Le Doux’s collisions with Hiatt and Paul. See Dkt. 190-2 at 5.

*2 Le Doux and Paul have filed amended complaints, which are virtually identical to one another. Dkt. 98; Le Doux, No. 6:20-cv-52, Dkt. 46. They allege negligence and willful and wanton negligence against Worthy. Id. They also claim that Western Express is vicariously liable through respondeat superior for Worthy’s negligence because he was acting in the course and scope of his employment. Dkt. 98 ¶¶ 24–27; Le Doux v. Western Express, Inc., No. 6:20-cv-52, Dkt. 46 ¶¶ 24–27. They seek $10 million in compensatory damages against Worthy and Western Express and $350,000 in punitive damages for Worthy’s alleged willful and wanton negligence. Id.

Standard of Review

Summary judgment is appropriate where “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). “A dispute is genuine if a reasonable [fact finder] could return a verdict for the nonmoving party,” and “[a] fact is material if it might affect the outcome of the suit under the governing law.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018).

The moving party bears the burden of establishing that summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If the moving party meets this burden, the nonmoving party must set forth specific, admissible facts to demonstrate a genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-movant may not rest on allegations in the pleadings; rather, he must present sufficient evidence such that a reasonable fact finder could find by a preponderance of the evidence for the non-movant. See Celotex Corp., 477 U.S. at 322–24; Sylvia Dev. Corp. v. Calvert Cnty, Md., 48 F.3d 810, 818 (4th Cir. 1995). The district court must “view the evidence in the light most favorable to the nonmoving party” and “refrain from weighing the evidence or making credibility determinations.” Variety Stores, Inc., 888 F.3d at 659.

When cross-motions for summary judgment are before a court, a court must “consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Defs. of Wildlife v. N.C. DOT, 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir. 2007) (internal quotation marks omitted)).

Discussion

A. Defendants’ Summary Judgment Motion on Plaintiff Le Doux’s Purported Contributory Negligence

Defendants move for summary judgment based on Le Doux’s purported contributory negligence. Dkt. 189.

A driver of a motor vehicle has a duty to exercise ordinary care in maintaining a proper lookout and keeping their vehicle under proper control, meaning that the “driver is required to use ordinary care to observe other vehicles on the highway, to see what a reasonable person would have seen, and to react as a reasonable person would have reacted under the circumstances to avoid a collision.” Litchford v. Hancock, 352 S.E.2d 335, 336–37 (Va. 1987). Virginia applies the contributory negligence doctrine—meaning a plaintiff’s negligence will bar recovery if it “is a proximate cause of the accident.” Id. Generally, “contributory negligence and proximate cause are factual issues for resolution by a jury.” Id. Such issues become legal questions for a court to resolve “only when reasonable minds cannot differ about the result.” Karim v. Grover, 369 S.E.2d 185, 186 (Va. 1988).

In their summary judgment motion, Defendants argue Le Doux was negligent (1) by continuing to drive on Interstate 81 despite having limited visibility due to the heavy rain, (2) for following too closely to Paul’s Kia prior to his collision with Hiatt’s Honda, and (3) by failing to use hazard lights when he reduced his speed and stopped his Ford on Interstate 81 prior to being hit by Worthy. See Dkt. 190.

*3 The record reflects a genuine dispute of material fact regarding Le Doux’s alleged negligence. Defendants, as the moving parties, fail to offer undisputed evidence to support their claims that Le Doux had limited visibility when he continued to drive on Interstate 81 during the heavy rain or that Le Doux was following too closely to Paul’s Kia.³ Additionally, the evidence in the record indicates that Le Doux was slowing the speed of his van prior to the accident, which raises a genuine dispute as to whether he was exercising reasonable care while driving in the heavy rain. See, e.g., Dkt. 190-2 at 1840 (Murphy, the passenger in Le Doux’s van at the time of the accident, testified that Le Doux’s Ford was “slowing down, about to stop because everyone was stopping” before Hiatt’s Honda hit the rear of Le Doux’s Ford.). Moreover, it is a jury issue whether Le Doux had enough time to move his van after he collided with Hiatt and Paul before Worthy hit his van.

Defendants, in the alternative, assert that “either nobody was to blame[,] or everyone was negligent to some degree” for the multi-vehicle accident. Dkt. 190 at 11. They claim that the sudden wall of rain either caused the multi-vehicle accident or negated Le Doux’s, Worthy’s, and the other drivers’ negligence for continuing to drive in the rain since they were all equally negligent. Id. at 10. However, the Court is unpersuaded by such an argument. Le Doux and Worthy both had a duty to operate his respective motor vehicle as a reasonable person would under the same or similar circumstances. Putting aside the disputed issue of whether Le Doux and Worthy were operating under the same weather conditions at all times—a separate and material factual issue on which there is conflicting evidence requiring resolution by the jury—Worthy’s tractor–trailer needed more distance to stop than Le Doux’s Ford traveling at the same speed. Because of this key difference, the Court is of the opinion that Le Doux and Worthy were not operating their vehicles under the same circumstances, and thus, the issue of whether the weather conditions may have equally negated the alleged negligence of Le Doux and Worthy is also a question of fact for the jury.

Accordingly, at this stage of the litigation, the Court does not find as a matter of law that Le Doux acted negligently while driving his van. See Variety Stores, Inc., 888 F.3d at 659. Thus, Defendants’ summary judgment motion on Le Doux’s contributory negligence will be denied.

B. Defendant Worthy’s Summary Judgment Motion on Plaintiffs’ Punitive Damages Claim

Worthy moves for summary judgment on Plaintiffs’ punitive damages claim, which would result in the dismissal of Plaintiffs’ willful and wanton negligence claim against Worthy. Dkt. 165.

Virginia allows punitive damages “only in limited circumstances and require[s] truly egregious conduct in order to qualify.” Lester v. SMC Transp., LLC, No. 7:15-cv-00665, 2016 WL 7439424, at *2 (W.D. Va. Dec. 22, 2016); see Bowers v. Westvaco Corp., 419 S.E.2d 661, 668 (Va. 1992). A plaintiff may recover punitive damages upon a showing of willful and wanton negligence. See Booth v. Robertson, 374 S.E.2d 1, 3 (Va. 1988). Willful and wanton negligence means “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Harris v. Harman, 486 S.E.2d 99, 101 (Va. 1997) (internal quotation marks and citation omitted). It is the type of conduct that goes “beyond that which shocks fair-minded people.” Id. Unlike gross or ordinary negligence, willful and wanton negligence “requires an actual or constructive consciousness that injury will result from the act done or omitted.” Alfonso v. Robinson, 514 S.E.2d 615, 618 (Va. 1999). Whether a defendant’s conduct amounts to willful and wanton negligence “must be determined on its own set of facts.” Huffman v. Love, 427 S.E.2d 357, 360 (Va. 1993). However, the Supreme Court of Virginia has provided that the “intentional violation of a traffic law, without more, will not support a finding of willful and wanton negligence.” Alfonso, 514 S.E.2d at 618.

*4 In his opposition to Worthy’s summary judgment motion, Le Doux claims that Worthy, as a professional truck driver, received specialized training and education instructing him how to operate his tractor–trailer in hazardous conditions. Dkt. 231 at 10–11 (citing Dkt. 233-1 at 33–35, 52). Worthy also received specialized training from Western Express on how to use the Bendix Adaptive Cruise Control, including being instructed by the Bendix Wingman Fusion Operator’s Manual that cruise control “must never be used on roads where you can not [sic] drive safely at a steady speed, including … poor road conditions (such as gravel or dirt), ice or wet surfaces (wet surfaces may increase the risk of hydroplaning) …” Dkt. 231-2 at 4. Le Doux further claims that Worthy received specialized training from Western Express on the appropriate following distance while operating a tractor–trailer. Id. Despite this training, Le Doux claims that Worthy used cruise control in the rain and operated his vehicle at 65 mph with 15 to 20 feet of impaired visibility⁴ prior to his collisions with Le Doux’s and Paul’s vehicles. Dkt. 231 at 11–12. Le Doux further claims that Worthy’s forward vision was limited by his personal computer tablet being mounted on the windshield of the tractor–trailer. Id. at 3, 13.

The record reflects a genuine dispute of material fact concerning Worthy’s conduct before the accident. During his deposition, Worthy testified that his visibility was impaired “15, 20 feet ahead” of him, that he didn’t recall how long it rained on the day of the accident, and that he adjusted his speed right before he “got into” “the heavy rain.” Dkt. 223-1 at 4, 6; Dkt. 233-1 at 69. The Court cannot find as a matter of law how long Worthy was using cruise control and driving at 65 mph with 15 to 20 feet of impaired visibility. To make such a determination, the Court would need to weigh his deposition against other evidence in the record, and would require the Court to make credibility determinations, neither of which is permitted at the summary judgment stage. See Variety Stores, Inc., 888 F.3d at 659. In addition, Le Doux recently filed a motion for sanctions, claiming Worthy intentionally destroyed the data on his computer tablet. Dkt. 283. His motion for sanctions is not yet ripe for decision, and as such, the Court does not know at this time what type of sanction, if any, could be imposed regarding the loss of data on Worthy’s computer tablet. That decision could impact a finding as to Worthy’s degree of negligence.

Ultimately, reasonable persons might differ regarding whether Worthy’s conduct, as alleged by Le Doux, amounted to willful and wanton negligence. And because the record reflects a genuine dispute on Worthy’s conduct before the accident, the Court will deny Worthy’s summary judgment motion on Plaintiffs’ punitive damages claim.

C. Plaintiff Le Doux’s Summary Judgment Motion on Plaintiffs’ Willful & Wanton Negligence Claim

Le Doux moves for summary judgment on Plaintiffs’ willful and wanton negligence claim against Worthy. Dkt. 232. As stated above, reasonable persons might differ regarding whether Worthy’s conduct amounted to willful and wanton negligence, and therefore, the Court will deny Le Doux’s summary judgment motion.

Conclusion

For the above reasons, the Court will deny Defendants’ motion for summary judgment on Le Doux’s purported contributory negligence, Dkt. 189, and the parties’ cross motions for summary judgment on Plaintiffs’ punitive damages claim based on Worthy’s alleged willful and wanton negligence, Dkts. 165, 232.

It is so ORDERED.

All Citations

Footnotes

1. Hiatt settled Plaintiffs’ claim against him and is not a party to this action. See Dkt. 190 at 2.  
2. The record reflects a material dispute on the sequence of the collisions. Kenneth Murphy, the passenger in Le Doux’s Ford at the time of the accident, testified that he saw Hiatt’s Honda push Le Doux’s Ford into Paul’s Kia. Dkt. 190-2 at 4–5. Hiatt, however, testified that he has “no memory of where the Kia was,” and that he did not see Le Doux’s Ford hit Paul’s Kia. Dkt. 190-3 at 4–5. Defendants claim that Bernocco-Donahue’s testimony supports an inference that Hiatt’s Honda struck Le Doux’s Ford after Le Doux’s Ford hit Paul’s Kia. Dkt. 190 ¶ 22 (citing Dkt. 190-8).  
3. In their brief, Defendants assert that “undisputed material evidence in the record establishes that Le Doux was following too closely to Paul’s Kia.” Dkt. 190 at 12. To support this claim, they reference photographs showing that the bumper of Paul’s Kia was attached to the front bumper of Le Doux’s Ford after the collision and that both parties’ experts concurred that Le Doux’s Ford hit Paul’s Kia. Id. at 12–13. They also cite testimony by Bernocco-Donahue, which they claim supports an inference that Le Doux’s Ford hit Paul’s Kia prior to Hiatt’s Honda hitting Le Doux’s Ford. Id. However, this evidence only supports that Le Doux’s Ford hit Paul’s Kia; it does not establish as a matter of law that Le Doux was following too closely to Paul’s Kia.  
4. Defendants contend that Worthy’s testimony supports “that his visibility was reduced to 15 to 20 feet only after he had entered the heavy rain and had already reduced his tractor–trailer’s speed by actively applying the brakes and disengaging cruise control.” Dkt. 223 at 6.  

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