February 2023

RDK NY Inc. dba Green Angel CBD v. The City of New York et al.

United States District Court, E.D. New York.

RDK NY INC. d/b/a GREEN ANGEL CBD, OREN LEVY, and RONEN LEVY, Plaintiffs,

THE CITY OF NEW YORK, RODNEY GREENIDGE, JOSHUA GANSHAW, JOHN DOES, FEDERAL EXPRESS CORPORATION, et al., Defendants.

21-CV-1529(EK)(RER)

Filed 01/20/2023

MEMORANDUM & ORDER

ERIC KOMITEE United States District Judge

*1 Plaintiff RDK NY Inc. is a hemp company owned by Plaintiff Oren Levy. Those two plaintiffs brought this case in state court along with a third plaintiff, Oren’s brother Ronen, against various defendants — Federal Express Corporation (“FedEx”), FedEx Ground Package System, Inc. (“FedEx Ground”), the City of New York (“City”), named and unnamed individual NYPD officers, and an unnamed driver for FedEx Ground.¹ They allege numerous claims, including for negligence, property damage, and civil rights violations. FedEx Ground, with the consent of FedEx and the City, removed the case to federal court in March 2021. Notice of Removal, ECF No. 1. All plaintiffs then moved to remand to state court under 28 U.S.C § 1447. Ronen Levy also moved to sever his claims under Federal Rule of Civil Procedure 21, in the event that remand of the other plaintiffs’ claims was denied. For the reasons that follow, the motions to remand and sever are DENIED in their entirety.

I. Background

RDK NY trades in hemp products. Am. Compl. ¶ 38. Oren arranged for an order of hemp plants to be shipped via defendant FedEx Ground to his brother, Ronen. Id. ¶ 40. Before the hemp reached Ronen, a FedEx Ground driver — defendant John Doe — brought the hemp to an NYPD precinct and reported that he believed the plants to be marijuana. Id. ¶ 43. When Ronen appeared at the police precinct to inquire about the plants, he was arrested by NYPD officers and held overnight. Id. ¶ 80. The officers also “attempted to arrest” Oren. Id. ¶ 53. Plaintiffs allege that the NYPD refused to release the hemp even after learning that it was not, in fact, marijuana, causing Plaintiffs “to be deprived of their business and livelihood.” Id. ¶ 44.

The RDK Plaintiffs assert claims for deprivation of personal property, conversion, trespass, tortious interference with property, and negligence against FedEx Ground and FedEx. Id. ¶¶ 41–43, 51–54, 57, 59, 112–14. Against the City and the NYPD defendants, they assert those same claims and also claims for civil rights violations. Id. ¶¶ 43–44, 51–54, 57–59, 61–63, 66–71. In addition, Ronen asserts claims for emotional distress and negligence against FedEx Ground, id. ¶¶ 96–98, 117–18, and for false arrest, false imprisonment, emotional distress, and civil rights violations against the City and individual NYPD officers, id. ¶¶ 78–85, 92–93, 96–98, 101–05. Both the RDK Plaintiffs and Ronen assert claims for negligent hiring practices against the City, id. ¶¶ 61–64, 88-90, and claims for punitive damages against all defendants, id. ¶¶ 74–75, 108–09.

Plaintiffs initiated this action together in the Supreme Court of New York, Kings County on September 29, 2020, and filed an amended complaint on March 2, 2021. See Ex. A, Compl.; Am. Compl. On March 23, 2021, FedEx Ground filed a timely notice of removal, arguing that RDK Plaintiffs’ and Ronen Levy’s state-law claims against FedEx Ground are preempted by federal law. Notice of Removal ¶¶ 6–8, ECF No. 1. Plaintiffs dispute this preemption claim and seek remand, as noted above. Ronen also moves to sever his claims from those of the RDK Plaintiffs.

II. Discussion

A. RDK Plaintiffs’ Motion to Remand Is Denied

*2 The RDK Plaintiffs move to remand their case on the ground that FedEx Ground’s removal was improper. As set forth below, their motion is denied because their claims against FedEx Ground are preempted by federal law. Given that conclusion, I will also exercise supplemental jurisdiction over the RDK Plaintiffs’ additional state-law claims.

1. Motion to Remand Legal Standard

Under 28 U.S.C § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” “Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper.” United Food & Com. Workers Union, Loc. 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).²

Generally speaking, removal is permissible “only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). However, even where a complaint does not contain an explicitly federal claim, a court “may uphold removal … where federal law completely preempts a plaintiff’s state-law claim.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998). Complete preemption occurs “when Congress has … completely preempted, or entirely substituted, a federal law cause of action for a state one” such that a “plaintiff cannot avoid removal by declining to plead necessary federal questions.” Romano v. Kazacos, 609 F.3d 512, 519 (2d Cir. 2010); see also Whitehurst v. 1199SEIU United Healthcare Workers E., 928 F.3d 201, 206 (2d Cir. 2019) (“Complete preemption occurs when the pre-emptive force of a statute is so extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.”).³

“Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S. at 393.

2. Claims Against FedEx Ground

Removal was proper here because the RDK Plaintiffs’ state-law claims against FedEx Ground are completely preempted by the Carmack Amendment to the Interstate Commerce Act. The Carmack Amendment established a federal remedy for loss or damage to goods provided to carriers for interstate shipment. 49 U.S.C. § 14706. In enacting the Carmack Amendment, “Congress stepped in to remedy the perceived problem of having many states’ disparate laws potentially apply to interstate shipping.” Lewis Brass & Copper Co. v. ABF Freight Sys., Inc., No. 13-CV-3251, 2014 WL 991726, at *3 (E.D.N.Y. Mar. 13, 2014) (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505–07 (1913)). Thus, as the Supreme Court concluded in Adams Express:

*3 The congressional action has made an end to this diversity, for the national law is paramount and supersedes all state laws as to the rights and liabilities and exemptions created by such transactions. This was doubtless the purpose of the law …. [The legislation] embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it.

Adams Express, 226 U.S. at 505–06. The Carmack Amendment therefore implicates “an area of interstate commerce law that has been fully occupied by Congress’ passage of a statute delineating what remedies are available, leaving no room for additional state or federal common law causes of action.” Cleveland v. Beltman N. Am. Co., 30 F.3d 373, 374 (2d Cir. 1994); see also N. Am. Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 234 (2d Cir. 1978) (concluding complaint set forth a federal-law claim where plaintiff alleged a “loss of goods during interstate transportation by [defendant] as a common carrier for hire”).

Despite the sweeping statements above, district courts have characterized the Second Circuit’s view on Carmack Amendment preemption differently.⁴ Nevertheless, these district courts have held — typically in reliance on the Supreme Court’s decision in Adams Express, supra — that the Amendment does completely preempt state-law claims for damages and losses to property incurred in interstate shipping. See, e.g., Shields v. United Van Lines, No. 21-CV-1287, 2021 WL 5832984, at *2–3 (D. Conn. Dec. 9, 2021) (denying remand in light of complete preemption); Lewis Brass, 2014 WL 991726, at *3; Ash v. Artpack Int’l, Inc., No. 96-CV-8440, 1998 WL 132932, at *4 (S.D.N.Y. Mar. 23, 1998). The Fifth and Ninth Circuits have reached the same conclusion. Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 688 (9th Cir. 2007); Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003).

The Carmack Amendment’s preemptive effect, moreover, covers a range of delivery issues, “embrac[ing] all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination.” New York, P. & N. R. Co. v. Peninsula Produce Exch. of Maryland, 240 U.S. 34, 38 (1916); see also Brody v. Liffey Van Lines, Inc., No. 13-CV-5719, 2014 WL 2450807, at *4 (S.D.N.Y. May 29, 2014) (“Carmack applies both to claims of damage or loss while goods are in interstate transit, but also to related services, including arranging for, receiving, delivering, storing, handling, packing and unpacking such goods.”). This includes claims for damages resulting from “misdelivery,” see Ash, 1998 WL 132932, at *1, *4 (goods not sent to intended destination), as well as a “refusal to deliver,” see Hall, 476 F.3d at 688; see also Shields, 2021 WL 5832984, at *3 (rejecting argument that Carmack Amendment did not preempt claim that “the subject items were stolen”). Here, as in the cases cited above, the claims at issue are covered by the Carmack Amendment because they involve injury or loss to Plaintiffs’ property resulting from FedEx Ground’s failure to deliver the goods, shipped in interstate commerce, to their intended recipient.

*4 The RDK Plaintiffs argue that the Carmack Amendment does not apply because “the FedEx entities did not lose or damage the plaintiff’s hemp packages in the course of its delivery,” but rather engaged in conduct — namely, “falsely reporting” to the NYPD that the packages were illegal — that is “separate and apart from their actual delivery.” Mem. of Law in Supp. of Pls.’ Mot. to Remand (“RDK Pl. Mem.”) 5, ECF No. 19-1. Some courts have held that “claims based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption” under the Carmack Amendment. E.g., Smith v. United Parcel Serv., 296 F.3d 1244, 1249 (11th Cir. 2002) (collecting cases). For example, the Carmack Amendment did not preempt negligence claims arising from an employee’s death while unloading Christmas trees from a trailer. See Koch v. McConnell Transp. Ltd., No. 13-CV-3016, 2015 WL 3470182, at *6 (E.D.N.Y. May 29, 2015). Even though one defendant characterized the snow-covered trees as “damaged goods,” the gravamen of the claims was the defendants’ negligence in packing and unloading the trees — not “that goods were damaged, or lost during transport” — such that the claims were sufficiently “separate and distinct” to escape preemption. Id. at *6–7.

That case law, however, is of little help here. While the RDK Plaintiffs characterize FedEx Ground’s conduct as unrelated to delivery, see RDK Pl. Mem. 5, that characterization is belied by the allegations they make and the remedy they request: namely, damages for the loss of their hemp. The operative complaint alleges, among other things, that FedEx Ground “committed the acts of trespass, conversion and tortious interference … by refusing to release the packages of the products purchased by the plaintiffs,” Am. Compl. ¶ 54; that the negligence of all defendants resulted in the “loss and conversion of property, specifically hemp, in the amount of $100,000,” id. ¶ 59; and that FedEx Ground’s negligence in “surrendering the packages assumed of illegal products … caused [the RDK Plaintiffs] to be deprived of their business and livelihood,” id. ¶¶ 113–14. Because these claims arise from, and RDK Plaintiffs seek damages for, FedEx Ground’s alleged non-delivery, the claims fall within the Carmack Amendment’s preemptive reach. See, e.g., Shields, 2021 WL 5832984, at *3–4 (Carmack Amendment completely preempted state-law claims, including conversion, arising from the loss of jewelry during an interstate move); Smith, 296 F.3d at 1248–49 (Carmack Amendment preempted fraud, negligence, wantonness, and outrage claims arising from UPS’s failure to deliver packages to the plaintiff’s home).

In sum, the RDK Plaintiffs’ negligence and property tort claims against FedEx Ground seek a remedy for FedEx Ground’s failure to deliver their hemp to the intended recipient. Accordingly, the RDK Plaintiffs’ state-law claims are completely preempted by the Carmack Amendment, and this action was therefore properly removed under Section 1441(a) because it raises a federal question.

3. Claims Against Other Defendants

The RDK Plaintiffs do not challenge this Court’s jurisdiction over their state-law claims against defendants other than FedEx Ground. Still, “federal courts are under an independent obligation to examine their own jurisdiction” before adjudicating a claim asserted under state law. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). Because supplemental jurisdiction is appropriate over RDK Plaintiffs’ state-law claims against defendants FedEx, FedEx Ground driver John Doe, the City of New York, and its employee NYPD officers, I decline to remand these claims as well.

District courts “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). “[T]he federal claim and state claim must stem from the same common nucleus of operative fact; in other words, they must be such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding.” Montefiore Med. Ctr. v. Teamsters Loc. 272, 642 F.3d 321, 332 (2d Cir. 2011). “[A] sufficient relationship will be found if the facts pertinent to the federal and state claims substantially overlap or if presentation of the federal claim necessarily would bring the facts underlying the state claim before the court.” BLT Rest. Grp. LLC v. Tourondel, 855 F. Supp. 2d 4, 10 (S.D.N.Y. 2012). District courts should also “balance the values of judicial economy, convenience, fairness, and comity” in determining whether supplemental jurisdiction is appropriate. Klein & Co. Futures v. Bd. of Trade of City of NewYork, 464 F.3d 255, 262 (2d Cir. 2006).

*5 Here, the RDK Plaintiffs’ other claims — against FedEx, FedEx Ground driver John Doe, the City of New York, and its employees — arise from the common nucleus of facts as their claims against FedEx Ground. FedEx Ground driver John Doe is the individual who actually brought the hemp to the NYPD, and the claims against the other defendants arise from their refusal to return the hemp to the RDK Plaintiffs after FedEx Ground’s alleged misdelivery. The values of judicial economy, convenience, fairness, and comity also weigh in favor of retaining jurisdiction, as the “evidence pertinent to the federal claim is likely to overlap substantially with the evidence relevant to the state-law claims, and hence the joint adjudication of these claims will promote judicial and cost efficiency.” BLT Rest. Grp. LLC, 855 F. Supp. 2d at 13.

For these reasons, jurisdiction over the RDK Plaintiffs’ correctly-removed claims against FedEx Ground and their supplemental state-law claims is proper.

B. Ronen Levy’s Motions to Remand and Sever Are Denied

After bringing his claims together with the RDK Plaintiffs in state court, Ronen now moves to sever and remand his claims under both 28 U.S.C. § 1441(c) and Rule 21. These motions are denied.

1. Motions to Sever Legal Standard

A party seeking to sever its claims from those of other litigants in a removed action may pursue two paths. First, 28 U.S.C § 1441(c) mandates that “[u]pon removal of an action … the district court shall sever from the action all claims” that are “not within the original or supplemental jurisdiction of the district court.” Severance under Section 1441(c) is provided to covered parties as a matter of right. But the scope of this provision is “limited to the subset of removed cases involving both federal and state claims in which the Court would not have supplemental jurisdiction over the state claims.” Gold Town Corp. v. United Parcel Serv., Inc., 519 F. Supp. 3d 169, 177 (S.D.N.Y. 2021). Federal courts are under no obligation to sever and remand a party’s claims when they possess original or supplemental jurisdiction over the claims at issue.

Second, a party may move to sever its claims under Rule 21. See Fed. R. Civ. P. 21 (“On motion or on its own, … the court may [ ] sever any claim against a party.”). Under this rule, “[t]he decision whether to grant a severance motion is committed to the sound discretion of the trial court.” New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir. 1988). In determining whether to sever a set of claims, courts consider the following factors: “(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims.” Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 580 (E.D.N.Y. 1999).

2. Application

Severance is not warranted under either Section 1441(c) or Rule 21. First, Section 1441(c) — which governs motions to remand for lack of subject matter jurisdiction — does not apply to Ronen’s claims because the court has supplemental jurisdiction over them. Section 1441(c) mandates severance of claims that are “not within the original or supplemental jurisdiction of the district court.” Here, however, the court does have supplemental jurisdiction over Ronen’s claims because they arise from the same nucleus of facts as the claims over which this Court has federal jurisdiction. For example, Ronen’s claim for emotional distress against FedEx Ground arises from the same delivery failure at the heart of the RDK Plaintiffs’ claims against FedEx Ground, see Am. Compl. ¶ 96, and his false arrest, false imprisonment, and negligence claims against the City and NYPD arise from the same hemp confiscation and Plaintiffs’ attempts to retrieve their hemp product, see id. ¶¶ 79–81, 92–93, 117. For the same reasons as RDK Plaintiffs’ supplemental state-law claims, the factors of judicial economy, convenience, fairness, and comity also favor hearing Ronen’s claims along with those of the RDK Plaintiffs. Klein & Co. Futures, 464 F.3d at 262.

*6 Second, and for similar reasons, I decline to sever Ronen’s claims under Rule 21. Ronen’s claims emerge out of the same transaction or occurrence as the RDK Plaintiffs’ claims, and they present common questions of law and fact. At the heart of his claims, as with the RDK Plaintiffs’ claims, are questions concerning the actions of FedEx Ground and driver John Doe in reporting the hemp as marijuana and delivering it over to the NYPD, and the actions of the NYPD after the hemp reached its precinct. For example, in resolving both Ronen’s and the RDK Plaintiffs’ claims, the court may be asked to determine questions such as whether the NYPD reasonably believed the hemp to be marijuana, and whether the NYPD acted reasonably in refusing to release the hemp plants. There is sufficient overlap in the records required to substantiate the respective plaintiff’s allegations that “judicial economy would not be served by maintaining two separate actions, with separate motion practice and separate trials.” Navar v. Walsh Constr. Co. II, LLC, No. 18-CV-10476, 2019 WL 7599890, at *2 (S.D.N.Y. Aug. 13, 2019).

The factors of convenience, fairness, comity, and judicial economy are particularly difficult for Ronen to meet given that he originally chose to join his claims with the RDK Plaintiffs’ in the state-court action. Moreover, severance of Ronen’s claims risks the prospect of inconsistent verdicts concerning the actions of the NYPD. This risk counts strongly against severance. See Lutz v. Buono, No. 05-CV-4879, 2009 WL 3364032, at *1 (S.D.N.Y. Oct. 16, 2009) (“Given the specific factual issues in this case, a joint trial is prudent in order to avoid the potential problem of inconsistent verdicts.”). In sum, the severance under Rule 21 is not warranted here.

III. Conclusion

For the reasons stated above, RDK NY and Oren Levy’s motion to remand is DENIED. Ronen Levy’s motions to remand and sever are also DENIED.

SO ORDERED.

All Citations

Footnotes

1 Plaintiffs name, as “John Doe” defendants, additional unidentified NYPD police officers and the individual FedEx Ground driver. See Ex. A, Am. Compl. ¶¶ 35–36, ECF No. 1-1.

2 Unless otherwise noted, when quoting judicial decisions this order accepts all alterations and omits all citations, footnotes, and internal quotation marks.

3 Federal district courts thus construe completely preempted state-law claims as “arising under” federal law. Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005). The Supreme Court has found only three statutes to have the preemptive force required to support complete preemption: Section 301 of the Labor–Management Relations Act; Section 502(a) of the Employee Retirement Income Security Act; and Sections 85 and 86 of the National Bank Act. See id. Complete preemption is to be distinguished from ordinary preemption — also known as “defensive preemption” — which is far more common. Id. Ordinary preemption “comes in three familiar forms: express preemption, conflict preemption, and field preemption.” Id. at 273.

4 Compare Lewis Brass, 2014 WL 991726, at *3 (noting that “[a]lthough the Second Circuit has not expressly ruled on the matter, other federal courts have relied on” Adams Express to find complete preemption), with Materazzi v. Atlas Van Lines, Inc., 180 F. Supp. 2d 408, 410 (E.D.N.Y. 2001) (“The Second Circuit has previously held that the Carmack Amendment fully occupies its particular field and thus completely preempts state common law.”(citing N. Am. Phillips, 579 F.2d at 233–34)).

End of Document

Pellerin v. Foster Farms, LLC

Court of Appeal of Louisiana, Second Circuit.

Eros PELLERIN, Plaintiff-Appellant

FOSTER FARMS, L.L.C., et al, Defendants-Appellees

No. 54,829-CA

Judgment Rendered January 11, 2023.

Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana, Trial Court No. 60,267, Honorable Monique B. Clement, Judge

Attorneys and Law Firms

PARKER ALEXANDER LLC, By: Chad C. Carter, Counsel for Appellant

HUDSON POTTS & BERNSTEIN, LLP, Monroe, By: Gordon L. James, Donald H. Zeigler, III, Counsel for Appellees Foster Farms, L.L.C. and Chris Shows

Before COX, HUNTER, and MARCOTTE, JJ.

Opinion

MARCOTTE, J.

*1 **1 This devolutive appeal arises from the Third Judicial District Court, Lincoln Parish, Judge Monique B. Clement presiding. Eros Pellerin (“plaintiff” or “appellant”) seeks review of the trial court’s judgment granting summary judgment in favor of defendants, Foster Farms, L.L.C. (“Foster Farms”) and Chris Shows (collectively, “defendants” or “appellees”). The trial court found no genuine issue of material fact exists making defendants liable for injuries plaintiff sustained after his car collided with debris from a blown-out tire used on a trailer operated by Mr. Shows. For the following reasons, we affirm the trial court’s ruling.

FACTS

On May 10, 2018, Mr. Shows was driving a tractor-trailer eastbound on Interstate 20 hauling live chickens for Foster Farms. Plaintiff was also driving his vehicle eastbound on Interstate 20 and was attempting to pass Mr. Shows on the left. As plaintiff maneuvered to pass Mr. Shows, one of the left rear tires on the trailer blew out, resulting in tire and other debris striking plaintiff’s vehicle, causing plaintiff harm.

On March 8, 2019, plaintiff filed a petition against Mr. Shows and Foster Farms seeking personal injury damages. Plaintiff claimed that the accident was Mr. Shows’ fault, and that Mr. Shows was acting within the course and scope of his employment with Foster Farms, rendering Mr. Shows and Foster Farms jointly liable.

On April 8, 2019, defendants filed an answer to the petition wherein they denied liability for the accident and asserted that the tire did not blow out due to any fault on their part. Defendants maintained that the trailer and tires were properly maintained and that the blowout occurred despite all **2 reasonable efforts on their part. Defendants further asserted that “blowouts” occur for a multitude of reasons beyond the control of the owner and driver, including road debris, which cannot be reasonably detected when driving on an interstate.

On October 24, 2019, defendants filed a motion for summary judgment claiming that there was an absence of any factual support that defendants knew, or in the exercise of reasonable care should have known, of any issues with the tire that blew. Defendants pointed to the deposition testimony of Mr. Shows wherein he testified that he inspected the tire in question prior to leaving the yard with his truck. Mr. Shows testified that he inspected the tire for cuts and damage as well as tread depth and separation. He also used a “strike bar” to check the tire for air pressure. Mr. Shows testified that nothing in his inspection revealed any issues with the tire.

Defendants further asserted that there was no evidence that any Foster Farms employee should have known of any defect with the tire prior to the incident. Defendants claimed that, to the contrary, the evidence showed that Foster Farms and its employees exercised reasonable care through numerous, meticulous, and regular inspections. Defendants claimed that the inspection records they produced in discovery show the significant effort Foster Farms undertook **3 to inspect the trailer and its tires, including the subject tire. Finally, defendants asserted that the inspection records indicate that on the morning of the accident, the tires were checked and no problems with them were noted. Whether plaintiff proceeds under a theory of general negligence under Louisiana Civil Code article 2315 or strict liability under Louisiana Civil Code article 2317.1, defendants claimed that the result is the same since there are no facts which support plaintiff’s allegation that defendant knew, or in the exercise of reasonable care should have known, of defects in the tire that blew. Due to this lack of factual support, defendants claimed that summary judgment was appropriate.

*2 On October 13, 2021, plaintiff filed an opposition to defendants’ motion for summary judgment and a cross motion for partial summary judgment. Plaintiff claimed that defendants were liable under a theory of negligence per se due to alleged violations of various regulations and safety rules relating to tire inspections and reports. Plaintiff claimed that defendants did not properly inspect the trailer tires and failed to properly report problems with the tires. Plaintiff also claimed that Foster Farms had no way of knowing how many miles each live haul trailer tire had on it at any given time. Plaintiff pointed out that certain rules, **4 regulations, and recommendations apply such as are found in the Federal Motor Carrier Safety Regulations.

Specifically, plaintiff relied on 49 CFR §§ 396.3 and 396.11. 49 CFR § 396.3 prohibits a motor vehicle from being operated in a condition likely to cause an accident or breakdown and holds that no commercial vehicle may be driven unless the driver is satisfied that the vehicle’s parts and accessories are in good working order. 49 CFR § 396.11 involves requirements for the commercial driver’s post-trip inspection reports known as the Driver Vehicle Inspection Report (“DVIR”). The DVIR must include an inspection of the trailer as well as all defects in the parts and accessories that were discovered by or reported to the driver during that day. Plaintiff claimed that the DVIR had to contain all required information and signatures and that these things were not properly adhered to. In addition, plaintiff cited La. Admin. Code tit. 55, part III, § 813, which sets forth Louisiana’s annual vehicle inspection procedures. Plaintiff claimed that defendants did not comply with this provision of the Louisiana Administrative Code either.

Regarding the cause of the blowout, plaintiff claimed that the amount of heat within the live haul trailer’s tires was to blame and that the amount of heat in the tires was 100% controllable by Foster Farms had it used proper maintenance and inspection procedures. Plaintiff argued that this claim is **5 supported by a statement made by Kelly Patrick, a mechanic employed by Foster Farms. At Mr. Patrick’s deposition, he testified that the likely cause of the accident was internal heat in the subject trailer tire.

Finally, plaintiff claimed that defendants failed to frequently and accurately check the tire pressure in the tires of its live haul trailers and failed to record what live haul trailer tires were replaced, when they were replaced, and how many miles were on each tire.

On November 29, 2021, the trial court held a hearing on the motions for summary judgment before taking the matter under advisement. On March 2, 2022, the trial court entered a judgment granting defendants’ summary judgment and denying plaintiff’s cross motion for partial summary judgment. This appeal by plaintiff followed.

DISCUSSION

On appeal, plaintiff claims that the trial court erred in finding that defendants were not responsible for his damages through negligence per se. In support of this claim, appellant argues that defendants’ violations of various motor carrier safety standards are proof of liability because the violations were the cause-in-fact and legal cause of the accident in question. Appellant also claims that defendants are responsible for his damages under general Louisiana negligence law. Appellant claims that by failing to frequently **6 and accurately check the air pressure in the tires of its live haul trailers, and by failing to record what live haul trailer tires were replaced, when they were replaced, and how many miles were on each tire, Foster Farms breached its duty of reasonable care.

Appellant argues that genuine issues of material fact exist as to Foster Farms’ inspection of the subject tire and the training of its employees on proper tire inspection procedures. Appellant further argues that genuine issues of material fact exist concerning the sufficiency of Mr. Shows’ pre-trip inspection of the subject tire. Finally, appellant claims that defendants had constructive notice of the defect that caused his damages and that his motion for partial summary judgment should have been granted by the trial court.

*3 Appellees claim that the trial court correctly ruled that plaintiff failed to satisfy the element found in La. C.C. art. 2317.1 which requires that Foster Farms knew of a defect with the subject tire prior to the accident. Appellees claim that plaintiff failed to prove that in the exercise of reasonable care Foster Farms should have known of a defect with the subject tire prior to the accident. Appellees also claim the trial court correctly ruled that plaintiff failed to demonstrate a defect with the tire.

**7 Appellees further claim that plaintiff failed to set forth negligence per se. In support of this claim, appellees aver that none of the statutes or regulations identified by plaintiff require pre-trip or post-trip inspection of tire air pressure, nor do any of the statutes or regulations identified by plaintiff require recording tire mileage, location, or length of service. Appellees further claim that there are, in fact, reports showing that worn tires were replaced. Finally, appellees argue that plaintiff’s claims fail under the duty-risk analysis. Appellees ask this court to affirm the trial court’s ruling.

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So. 2d 880. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for **8 summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

To reverse the trial court’s decision, this court would have to find on de novo review that the record reveals a genuine issue of material fact which precludes summary judgment as a matter of law. White v. Louisiana Dep’t of Transp. & Dev., 18-741 (La. App. 3 Cir. 3/13/19), 269 So. 3d 1031, writ denied, 19-0572 (La. 5/28/19), 273 So. 3d 311. A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Maggio v. Parker, 17-1112 (La. 6/27/18), 250 So. 3d 874.

Plaintiff alleges that liability should be imposed upon defendants based on general principles found in La. C.C. arts. 2315 and 2317. **9 La. C.C. art. 2315 states that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2317 states that persons are responsible not only for their own acts, but for those acts of other persons for whom they are responsible, as well as the things over which a person has custody, which may cause harm to others. In regard to damage caused by ruin, vice, or defect in things, La. C.C. art. 2317.1 states the owner or custodian of a thing is answerable for damages occasioned by its ruin, vice, or defect only upon a showing that he knew, or in the exercise of reasonable care, should have known of those defects which caused damage, and yet he failed to exercise reasonable care.

*4 A threshold issue in any negligence action under the duty/risk analysis is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. James v. Eldorado Casino Shreveport Joint Venture, 51,707 (La. App. 2 Cir. 11/15/17), 245 So. 3d 264, writ denied, 17-2091 (La. 2/9/18), 236 So. 3d 1266.

Liability for negligence is determined by applying the duty/risk analysis. Johnson v. Lowe’s Home Centers, LLC, 52,602 (La. App. 2 Cir. 4/10/19), 267 So. 3d 1198. The duty/risk analysis consists of the following four-prong inquiry: (1) Was the conduct in question a substantial factor **10 in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09), 16 So. 3d 1065, citing Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So. 2d 318.

Under a duty/risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. As such, in order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements, namely the duty element, the breach of duty element, the cause-in-fact element, the scope-of-liability or scope-of-protection element, and the damages element. Rando, supra.

Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Id. The scope of protection inquiry asks whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Id.

A defendant’s conduct is actionable under the duty/risk analysis where it is both a cause-in-fact of the injury and a legal cause of the harm incurred. **11 Kovac v. Spraymax, Inc., 40,166 (La. App. 2 Cir. 9/21/05), 911 So. 2d 934. The cause-in-fact test requires that “but for” the defendant’s conduct, the injuries would not have been sustained. The legal causation test requires that there be a “substantial relationship” between the conduct complained of and the harm incurred. Kovac, supra.

Here, the summary judgment evidence, viewed de novo, does not establish, as a matter of law, that defendants’ conduct was the cause-in-fact of plaintiff’s alleged injury. The issue here revolves around the question of whether or not a blowout could occur for any reason other than negligence in either maintaining the tire or in the driving of the vehicle. If a blowout could just as likely occur outside of negligence on the part of defendants’ maintenance, then plaintiff has not demonstrated that any maintenance issue was the cause of the blowout in this case. And though defendants can simply allege an absence of causation, plaintiff cannot simply allege the presence of it. Plaintiff must come forward with credible evidence to support causation.

Plaintiff speculates that the amount of heat within the live haul trailer’s tire was the cause of the blowout and that the amount of heat was 100% controllable by Foster Farms had it used proper maintenance and inspection procedures. No evidence supports this claim, however. Plaintiff argues **12 that this claim is supported by a statement made by the Foster Farms mechanic, Mr. Patrick, who testified in his deposition that the likely cause of the accident was internal heat in the subject trailer tire. However, no foundation was laid or information given to support Mr. Patrick being qualified to give an expert opinion as to the cause of the blowout. Furthermore, it strains credulity for plaintiff to argue on the one hand that Mr. Patrick’s statement establishes the cause of the blowout, and on the other hand to argue that Mr. Patrick was inadequately trained by Foster Farms.

*5 Other than the general statement made by Mr. Patrick that the blowout was likely caused by heat and a non-authenticated blog that is cited in plaintiff’s brief regarding the possible build-up of heat being caused by underinflated tires, there is no credible evidence or expert testimony to establish the likely cause of the blowout. Moreover, Mr. Patrick himself pointed out that there were various possible explanations for the accident.

Clearly, considering the unrefuted evidence submitted to the trial court, plaintiff lacks the factual support necessary to show that he would be able to meet the burden of proving the element of cause-in-fact at a trial. As articulated herein and easily seen, his allegations are not grounded in fact, but are merely speculative in nature. Mere speculation is not **13 sufficient to defeat a motion for summary judgment. Scott v. City of Shreveport, 49,944 (La. App. 2 Cir. 6/24/15), 169 So. 3d 770, writ denied, 15-1438 (La. 10/9/15), 186 So. 3d 1149; Gifford v. Arrington, 14-2058 (La. 11/26/14), 153 So. 3d 999; Slade v. State ex rel. Univ. of La. at Monroe, 46,720 (La. App. 2 Cir. 11/9/11), 79 So. 3d 463. Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of genuine issue of material fact. Scott, supra; Slade, supra. Such allegations, inferences, and speculation are insufficient to satisfy the opponent’s burden of proof. Scott, supra; Slade, supra. Plaintiff did not produce any evidence, other than his speculative and conclusory allegations, that the alleged conduct by defendants was the cause-in-fact of his injury. We conclude that such evidence is insufficient to support a finding that defendants’ conduct was the cause-in-fact of his injury.

Additionally, we find that there is no factual support for plaintiff’s assertion that defendants knew, or in the exercise of reasonable care, should have known, of any issues with the tire that blew. Chris Shows, the driver of the truck at issue, testified that he inspected the tire in question prior to leaving the yard with his truck. He testified that there were no issues with the tire, and that if he had concerns of any kind with the tire, he would not have left the yard with the truck. Furthermore, Mr. Shows testified that he inspected all **14 of the tires prior to each trip he made in the Foster Farms tractor-trailer, and that this trip was no different.

Plaintiff makes much of the fact that Mr. Shows did not use a gauge to check tire air pressure. However, plaintiff is unable to point to any regulation that actually requires tire air pressure to be tested with a gauge prior to every trip. Plaintiff was also unable to provide any evidence that any Foster Farms employee should have known of any defect with the tire prior to the incident. In fact, Foster Farms produced voluminous maintenance and inspection records for the trailer at issue. There simply is no evidence for plaintiff’s claim that these records were “pencil-whipped” by defendants.

Plaintiff also argues that defendants are liable under the doctrine of negligence per se. However, Louisiana does not recognize the negligence per se doctrine. Ducote v. Boleware, 15-0764 (La. App. 4 Cir. 2/17/16), 216 So. 3d 934, writ denied, 16-0636 (La. 5/20/16), 191 So. 3d 1071. Louisiana courts have noted that the violation of a statute or regulation does not automatically, in and of itself, impose civil liability, as Louisiana has no negligence per se doctrine. Faucheaux v. Terrebonne Consol. Gov’t, 615 So. 2d 289 (La. 1993). Civil responsibility is imposed only if the act in violation of the statute is the legal cause of damage to another. Id. Accordingly, courts must conduct a duty/risk **15 analysis. BellSouth Telecommunications, Inc. v. Bennett Motor Exp., L.L.C., 13-438 (La. App. 5 Cir. 12/12/13), 131 So. 3d 236. This assumes a violation of a regulation or statute before proceeding to the question of whether such violation was the legal cause of the accident. However, in the case sub judice, plaintiff has failed to show any specific mandatory regulations that defendants breached. As such, the negligence per se claim fails.

*6 Defendants pointed out a sufficient deficiency in plaintiff’s case in chief as it concerns the cause of the blowout and whether or not defendants knew or should have known of a defect in the tire. Furthermore, plaintiff failed to sufficiently rebut defendants’ arguments and demonstrate that causation and constructive knowledge can be proven at trial. Though it is true that the risk of harm encountered by plaintiff falls within the scope of protection of the duty to regularly maintain one’s tires, plaintiff failed to show that defendants’ conduct was a substantial factor in bringing about plaintiff’s harm.

As to plaintiff’s motion, we find that there remain no genuine issues of material fact and that he failed to demonstrate sufficiently that causation can be proven at trial. Thus, the trial court’s grant of defendants’ motion for summary judgment and denial of plaintiff’s motion for summary judgment was appropriate.

**16 CONCLUSION

For the foregoing reasons, we affirm. The costs of the appeal are assessed to the appellant.

AFFIRMED.

All Citations

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