2018 WL 1515702
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana,
Third Circuit.
Raven BOYANCE, et al.
v.
UNITED FIRE AND CASUALTY COMPANY, et al.
17–876
|
03/28/2018
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, NO. 82216, HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE
Attorneys and Law Firms
David R. Rabalais, The Dill Firm, Post Office Box 3324, Lafayette, Louisiana 70502–3324, (337) 261–1408, Counsel for Defendants/Appellees: Canal Insurance Company, Clodhopper Trucking, LLC, William Caldwell
Kraig Thomas Strenge, Post Office Drawer 52292, Lafayette, Louisiana 70502–2292, (337) 261–9722, Counsel for Defendants/Appellants: Christopher Crain, Louisiana Fresh Produce, LLC, United Fire and Casualty Company
Harry K. Burdette, The Glenn Armentor Law Corporation, 300 Stewart Street, Lafayette, Louisiana 70501, (337) 233–1471, Counsel for Plaintiff/Appellee: Raven Boyance, Raven Boyance o/b/o Rashawn Boyance
Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
Opinion
KEATY, Judge.

*1 **1 This appeal arises out of a three-vehicle collision. Appellants, United Fire and Casualty Company, Christopher Crain, and Louisiana Fresh Produce, LLC (hereafter collectively referred to as the Crain Defendants), appeal a judgment granting summary judgment in favor of defendants, Canal Insurance Company, William Caldwell, and Clodhopper Trucking, LLC (hereafter collectively referred to as the Caldwell Defendants), “finding that William R. Caldwell was without fault in causing the accident giving rise to this litigation.” For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY
Raven Boyance, individually and on behalf of her minor son, Rashawn Boyance (hereafter collectively referred to as Ms. Boyance or Plaintiff), filed a Petition for Damages in January 2015 against the Crain and the Caldwell Defendants. The Petition alleged, in pertinent part, as follows:
3.
On January 9, 2014, [Ms.] Boyance was the driver of a 1999 Dodge Dakota….
4.
Ms. Boyance was traveling westbound on I–10, in St. Martin Parish, State of Louisiana. She was forced to slow to a stop after a 2000 Kenworth Trailer/Truck, driven by WILLIAM R. CALDWELL, and owned by CLODHOPPER TRUCKING, L.L.C., pulled onto the roadway from the shoulder immediately ahead of Ms. Boyance, without notice. Ms. Boyance immediately applied her brakes.
5.
At that time, CHRISTOPHER D. CRAIN, while operating a 2012 Isuzu Truck owned by LOUISIANA FRESH PRODUCE, L.L.C., suddenly, and without warning, violently struck the back of Ms. Boyance’s vehicle. The force of the collision was so severe that it forced Ms. Boyance’s vehicle to rotate clockwise and then be pushed into the 2000 Kenworth Trailer/Truck being operated by Mr. WILLIAM R. CALDWELL. The full force of the collision set off a chain reaction that also forced Ms. Boyance’s vehicle into the rear of **2 the vehicle in front of her, then continue to rotate clockwise until it came to a rest in the middle of the roadway, engulfed in flames. Plaintiff, Rashawn Boyance was a passenger in the vehicle, and was trapped in his car seat in the back seat of the burning car, as his mother watched.
6.
At the time of the accident Mr. WILLIAM R. CALDWELL was an employee and agent of CLODHOPPER TRUCKING, L.L.C. Further, at the time of the accident, Mr. CHRISTOPHER D. CRAIN was an employee and agent of CUSIMANO–CUCCIA, L.L.C. D/B/A LOUISIANA FRESH PRODUCE L.L.C. AND LOUISIANA FRESH FRUITS AND VEGETABLES, D/B/A LOUISIANA FRESH PRODUCE, L.L.C.

The Caldwell Defendants filed a Motion for Summary Judgment (MSJ) on July 26, 2016, asserting that Ms. Boyance would be unable to meet her burden of proving negligence on the part of Mr. Caldwell. After several continuances, the MSJ came for hearing on April 13, 2017. At the conclusion of the hearing, the trial court granted summary judgment in favor of the Caldwell Defendants.

The Crain Defendants now appeal, asserting that1:
1. Opposing counsel for Canal Insurance, Clodhopper and Caldwell failed to make a proper record for summary judgment.
*2 2. The Honorable Louis Pittman, Jr. erred in making a factual finding on ruling on a Motion for Summary Judgment.
3. The Honorable Louis Pittman, Jr. erred in granting plaintiff’s[2] Motion for Summary Judgment.

DISCUSSION
“Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. “The summary judgment procedure is **3 designed to secure the just, speedy, and inexpensive determination of every action…. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). On de novo review, “there is no deference to the trial judge’s legal findings, and we make an independent review of the evidence in determining whether there is no genuine issue of material fact and whether the mover is entitled to judgment as a matter of law under La.Code Civ.P. art. 966.” Bridges v. Cepolk Corp., 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153 So.3d 1137, 1145, writ denied, 14-901 (La. 8/25/14), 147 So.3d 1117. “A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.” Smitko, 94 So.3d at 755.

According to La.Code Civ.P. art. 966(D)(1):
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 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.

Code of Civil Procedure Article 967(B) further provides:
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The basis of the Caldwell Defendants’ MSJ was that Ms. Boyance would be unable to meet her burden of proving that Mr. Caldwell acted negligently and that his negligence caused the harm suffered by her and her son. In support of their **4 MSJ, the Caldwell Defendants attached several excerpts from Ms. Boyance’s deposition.

*3 The Crain Defendants opposed the motion claiming summary judgment was premature because discovery was not complete as they had been unable to locate and depose Mr. Crain and because they and the Caldwell Defendants had hired experts who had yet to be deposed. They further claimed that many genuine issues of material fact remained which precluded the granting of summary judgment in favor of the Caldwell Defendants. The Crain Defendants attached to their opposition the complete depositions of Ms. Boyance and Mr. Caldwell, along with the deposition of State Trooper Timothy Breaux, who investigated the accident.

In a reply memorandum, the Caldwell Defendants pointed out that their MSJ was filed nineteen months after this suit was filed. They alleged that the “only impediment to the motion moving forward” is the inability of the Crain Defendants to produce their insured driver, Christopher Crain, for deposition. The Caldwell Defendants submitted that the so-called questions posed in the Crain Defendants’ opposition were not questions of material fact and as such did not preclude the granting of summary judgment in their favor. In January 2017, the trial court granted the Caldwell Defendants’ request to reset the MSJ for hearing.

Thereafter, the Crain Defendants filed a supplemental opposition, to which they attached excerpts of the deposition testimony of Brent Munyon, the Forensic Accident Reconstructionist hired by the Caldwell Defendants; the preliminary report written by Mr. Munyon; the transcript of a February 2014 recorded statement of William Caldwell; and the transcript of a January 2014 recorded statement of Joe Robinson, an independent witness who was driving behind Mr. Crain’s truck when the January 9, 2014 accident occurred. According to the Crain Defendants, the exhibits attached to their supplemental opposition **5 “emphasize[d] the numerous factual issues herein,” precluding the appropriateness of utilizing the summary judgment procedure in this matter. In response, the Caldwell Defendants filed an objection to the supplemental opposition and additional documents filed by the Crain Defendants as it was filed only six days in advance of the already several times continued April 13, 2017 hearing, in contravention of the requirement in La.Code Civ.P. art. 966(B)(2) that “[a]ny opposition to the motion [for summary judgment] and all documents in support of the opposition shall be filed and served … not less than fifteen days prior to the hearing on the motion.” Alternatively, the Caldwell Defendants requested that they be allowed to file an accompanying supplemental reply memorandum in support of their MSJ. They attached to the pleading Mr. Munyon’s entire deposition, along with the aforementioned transcribed statements of William Caldwell and Joe Robinson.

Ms. Boyance did not oppose the Caldwell Defendants’ MSJ, nor did she appear when the motion was heard on April 13, 2017. After listening to oral arguments, the trial court stated that it had read the Crain Defendants’ supplemental opposition despite the Caldwell Defendants’ opposition to its having been filing late. Thereafter, the trial court granted summary judgment in favor of the Caldwell Defendants and designated the judgment as final for purposes of immediate appeal.

Did the Caldwell Defendants Make a Proper Record to Support Their MSJ?
In their first assigned error, the Crain Defendants assert that because counsel for the Caldwell Defendants failed to “formally offer his supporting documents into evidence,” the record does not contain evidence to support the granting of summary judgment in their favor. Because our review of this appeal is de novo, we can only consider evidence that was properly offered in support of and in **6 opposition to the MSJ. Accordingly, we must address this assignment of error before considering the merits of the MSJ.

*4 The procedural rules governing summary judgments are found in La.Code Civ.P. art. 966, which at all times relevant to this appeal provided, in pertinent part, as follows:
A. (4) The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions….
….
D. (2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.
Louisiana Code of Civil Procedure Article 966 no longer requires the formal introduction of evidence at a summary judgment hearing. Evans v. Bordelon, 13-888 (La.App. 3 Cir. 3/19/14), 161 So.3d 674. The documents attached to the Caldwell Defendants’ various memoranda in support are the type of documents authorized in La.Code Civ.P. art. 966(A)(4) for a court’s consideration of a MSJ. Moreover, the Crain Defendants failed to object to any of the documents the Caldwell Defendants filed in support of their MSJ. “The intent of Article 966(D)(2) was to make it mandatory that any objection to a document filed in support of or in opposition to a motion for summary judgment must be objected to in a timely filed opposition or reply memorandum.” Adolph v. Lighthouse Prop. Ins. Corp., 16-1275, p. 6 (La.App. 1 Cir. 9/8/17), 227 So.3d 316, 320 (emphasis added). Without addressing the merits, we find that the Caldwell Defendants supported their MSJ in conformity with the procedural dictates of **7 La.Code Civ.P. art. 966. Therefore, the supporting documents filed by the Caldwell Defendants became a part of the record and can be considered by this court on appeal. The Crain Defendants’ first assigned error lacks merit.

Was Summary Judgment Properly Granted?
In their second and third assignments of error, the Crain Defendants insist that the trial court erred in making a factual finding on a MSJ and in granting summary judgment in favor of the Caldwell Defendants. Because the issues raised in these two errors are intertwined, we will discuss them simultaneously.

As stated above, this court must perform “an independent review of the evidence in determining whether there is no genuine issue of material fact and whether the mover is entitled to judgment as a matter of law under La.Code Civ.P. art. 966.” Bridges, 153 So.3d at 1145 (emphasis added). In Phillips v. City of Crowley, 12-1306, pp. 5-6 (La.App. 3 Cir. 6/19/13), 115 So.3d 1240, 1243–44 (citations omitted), writ denied, 13-1718 (La. 11/1/13), 125 So.3d 432, this court explained:
“[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751 (quoting South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992) ). A genuine issue is one in which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Id. Whether a fact is material is determined in light of the relevant substantive law. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.
*5 “We must analyze the substantive law governing the instant matter to determine whether a fact is material.” Leblanc v. Bouzon, 14-1041, p. 3 (La.App. 3 Cir. 3/4/15), 159 So.3d 1144, 1146. Louisiana Revised Statutes 32:81(A), titled “Following vehicles,” provides, that “[t]he driver of a motor vehicle shall not **8 follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” “A following motorist involved in a rear-end collision, therefore, is presumed to have breached this statutory duty.” Bouzon, 159 So.3d at 1146.
[A] legal presumption does exist that a following motorist who collides into the rear end of a leading automobile is at fault. Matherne v. Lorraine, 03-2369 (La.App. 1 Cir. 9/17/04), 888 So.2d 244, 246. The following motorist must exonerate himself or herself from fault before he or she can completely avoid liability. Id. However, notwithstanding the presumption of negligence, a favored motorist can still be assessed with comparative fault if his or her substandard conduct contributed to the cause of the accident. Id. “[O]nce the presumption of negligence attaches to the defendant, the ordinary rules of comparative negligence apply[.”]
Id. at 1147 (quoting Graffia v. La. Farm Bureau Cas. Ins. Co., 08-1480, p. 7 (La.App. 1 Cir. 2/13/09), 6 So.3d 270, 274). “A motion for summary judgment can be granted on the presumption that a following motorist who strikes a leading motorist is negligent.” Lewis v. Old Republic Ins. Co., 17-456, p. 3 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, 559.

In Bouzon, the lead driver in a three-vehicle collision appealed the trial court’s grant of summary judgment in favor of the middle driver in the personal injury lawsuit the lead driver filed against the drivers of the other two vehicles involved in the accident. Upon de novo review, this court affirmed, noting that “[t]he burden of proof remains with the following motorist who must prove that he was not negligent.” Bouzon, 159 So.3d at 1147. Thereafter, we explained:
In order to rebut the objective evidence that [the driver of the first vehicle] and [the driver of the second vehicle] were able to safely stop and avoid a collision, [the driver of the third vehicle] must show that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance prior to rear-ending [the second] vehicle.
Id. at 1149. Because we concluded that the testimony and evidence submitted in favor of and in opposition to the middle driver’s MSJ indicated that the driver of **9 the third vehicle would not be able to rebut the presumption that he was at fault in causing the accident, we affirmed. We rejected the lead driver’s contention that “some of the fault attributed to [the driver of the third vehicle] may be transferred to [the driver of the second vehicle,]” finding no evidence to support the lead driver’s suggestion that the middle vehicle struck her car two times. Id. at 1147. Finally, we found the sudden emergency doctrine inapplicable to the third driver where the drivers of the first two vehicles “stopped their vehicles and avoided a collision despite the heavy traffic.” Id. at 1149.

In the instant case, Ms. Boyance, the driver of the middle car, explained in her deposition that when Mr. Caldwell merged onto I–10 in front of her, she was able to slow down from seventy miles per hour to approximately forty miles per hour because she could see him from a far distance away. She recalled telling her son, “thank God I saw him,” and being rear-ended before she could finish her sentence. She stated that she did not strike Mr. Caldwell’s truck before she was struck from behind. Mr. Robinson, a truck driver who was traveling westbound on I–10 about 150 yards behind Mr. Crain’s “6 wheeler,” gave a recorded statement eleven days after the accident. Mr. Robinson stated that he was able to see Mr. Caldwell’s “18 wheeler” merge onto the highway. He explained that, from what he saw, he “guess[ed] the 6 wheeler might have clipped [Ms. Boyance’s] SUV in the tail end which spun it around which hit the back of the tractor trailer.” Mr. Robinson stated that he told his version of the accident to the investigating state trooper.

*6 Trooper Breaux testified in his deposition that Mr. Crain told him that he was following behind Ms. Boyance’s vehicle on I–10 West, and when he realized that her vehicle was slowing down, he was unable to stop in time to avoid hitting her from behind. Trooper Breaux explained that he found no evidence that **10 Plaintiff’s SUV struck Mr. Caldwell’s truck before she was hit from behind by Mr. Crain. After completing his investigation, Trooper Breaux concluded that Mr. Crain had not maintained a safe, appropriate distance between his vehicle and Ms. Boyance’s vehicle and issued a citation to him for following too close.

The Crain Defendants put great emphasis on the statement in Mr. Caldwell’s deposition that he felt two bumps, the first one of which was very light and the second one which was harder, and they suggest that Mr. Caldwell created a sudden emergency by improperly merging in front of Ms. Boyance. They also point to inconsistencies between the testimonies of Ms. Boyance, Mr. Caldwell, Trooper Breaux, and Mr. Munyon regarding the precise location of the accident, which they claim present a genuine issue of material fact that make the issue of Mr. Caldwell’s liability inappropriate for resolution via summary judgment.

The Caldwell Defendants counter that the Crain Defendants have failed to present any evidence that Mr. Caldwell “merged improperly or illegally” or in an otherwise negligent manner. They refer to Ms. Boyance’s testimony wherein she stated that it “wasn’t in a manner of me just jamming my foot on the brakes” but it also “wasn’t just me slowly as if coming in to a stop sign.” Finally, they submit that the minor discrepancies noted by the Crain Defendants do not amount to genuine issues of a material fact.

We have completed a de novo review of the evidence offered in support of and in opposition to the MSJ, and we conclude that the Crain Defendants failed to rebut the presumption that Mr. Crain was negligent in causing the accident. We are satisfied that no genuine issues of material fact remain in dispute and that the Crain Defendants cannot exonerate Mr. Crain of fault or establish facts sufficient to demonstrate the comparative fault of Mr. Caldwell. Although the initial burden of proof would rest with Ms. Boyance at trial, if she were to succeed in proving **11 Mr. Crain’s fault in causing this accident, the burden would shift to the Crain Defendants, based on their alleged affirmative defense, to prove that Mr. Caldwell was comparatively at fault. Accordingly, the Crain Defendants had to do more than simply “rest on the mere allegations … of [their] pleading” and were required to “set forth specific facts” to show that a genuine issue remained regarding Mr. Caldwell’s liability for causing the subject accident. La.Code Civ.P. art. 967(B). They failed to do so. Because we are convinced that “reasonable persons could reach only one conclusion,” i.e., that Mr. Caldwell did not commit any negligence that resulted in the damages suffered by Ms. Boyance and her son, we conclude that summary judgment was properly rendered in favor of the Caldwell Defendants. Phillips, 115 So.3d at 1244. There is no merit to the Crain Defendants’ second and third assigned errors.

DECREE
For the foregoing reasons, the trial court judgment in favor of Canal Insurance Company, William Caldwell, and Clodhopper Trucking, LLC is affirmed. All costs of this proceeding are assessed against Appellants, Christopher Crain, Louisiana Fresh Produce, LLC, and United Fire and Casualty Company.

AFFIRMED.

Conery, J., dissents and assigns reasons.

Conery, J., dissents and assigns reasons.

**1 I respectfully dissent. After reviewing all the evidence and the trial judge’s reasons, I would find that this “chain reaction collision” is not appropriate for summary judgment.

*7 A review of the summary judgment evidence shows that plaintiff, Ms. Boyance, was driving in the right lane of I–10 W with her son as a passenger. She saw an eighteen-wheeler, driven by Mr. Caldwell, unexpectedly pull into the lane in front of her, requiring her to immediately apply her brakes. Ms. Boyance was then hit from behind by Mr. Crain, propelling her vehicle into Mr. Caldwell’s truck, where she then spun on the road, and her vehicle burst into flames. Ms. Boyance sued Mr. Caldwell, his employer and its insurer, as well as Mr. Crain, his employer and its insurer, claiming the collision and resulting damages were caused by the fault of both drivers.

Nineteen months after suit was filed, the three Caldwell defendants filed a collective motion for summary judgment, which was granted by the trial court.

The trial judge carefully weighed all of the evidence and concluded in his oral reasons that when Ms. Boyance saw Mr. Caldwell’s eighteen-wheeler enter her traffic lane, “she (Ms. Boyance) did moderate braking. She didn’t say she slammed on her brakes, she said moderate braking and the fact that rains crystal clear to me that Louisiana Fresh Produce (Mr. Crain’s vehicle) was the vehicle that struck her first.” The conscientious trial judge in this case carefully reviewed all the evidence and obviously made factual findings as to when Ms. Boyance first saw Mr. Caldwell’s vehicle attempt to merge, whether she forcefully applied her brakes, the relative speeds of the three vehicles and whether to accept Mr. Caldwell’s testimony that he felt two impacts. Had all of this same evidence been **2 submitted for a decision on the merits, I would likely agree to affirm, as at a trial on the merits, the trial judge has the duty and obligation to weigh the evidence, assess credibility, make factual findings, and render a decision in accordance with the law and the evidence.

However, I would find that the well-meaning trial judge improperly weighed the evidence and made factual findings and conclusions that are inappropriate for summary judgment based on the conflicting evidence in this case. See Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3 Cir.), writ denied, 302 So.2d 308 (La.1974) (“the weighing of conflicting evidence on a material fact has no place in summary judgment procedure”). I would submit that at the very least, there is a genuine issue of material fact as to whether but-for Mr. Caldwell’s manner of merging into traffic on I–10, this accident would not have occurred. While I agree that the Crain vehicle was following too closely and/or driving without due regard as to the safety of the preceding vehicle driven by Ms. Boyance, there are genuine issues of material fact as to Mr. Caldwell’s comparative fault for improperly merging onto I–10 from the shoulder or the merge lane from the weigh station.

The majority affirmed the trial court’s judgment finding no genuine issues of material fact to defeat the Caldwell defendants’ motion. The majority opinion explores the law on following too closely and the presumption that a second driver, Mr. Crain, who rear-ends the driver in front of him, Ms. Boyance, is presumed to be at fault, and the Crain defendants did not properly show the existence of genuine issues of material facts. The majority finds that the trial court was correct to apply the presumption of negligence against Mr. Crain, his employer and its insurer, and grant the Caldwell defendants’ motion for summary judgment exculpating the driver of the eighteen-wheeler, Mr. Caldwell, from fault.

**3 However, it is undisputed that Mr. Caldwell’s Kenworth eighteen-wheeler tractor trailer attempted to merge onto I–10, a heavily traveled interstate at approximately 8:00 am during peak traffic time. Ms. Boyance then saw the eighteen-wheeler and immediately applied her brakes. Mr. Crain’s truck then struck her from the rear, propelling her into Mr. Caldwell’s eighteen-wheeler. The record evidence shows that when Mr. Caldwell entered onto I–10 in Ms. Boyance’s lane of travel, the distance from the truck weigh station, the distance between the three vehicles and the relative speed of the vehicles are all in dispute.

*8 Ms. Boyance clearly stated in her deposition that Mr. Caldwell pulled onto I–10 from the shoulder of the road unexpectedly and without warning or turn signals: “once I saw him merger, I immediately just hit my brakes.” When asked whether she gradually slowed down on seeing the eighteen-wheeler “merge on”, she stated: “I wouldn’t say gradual…. I mean I seen him on the side of the road but his merge on was unexpected. I had to kind of hesitate a little bit, but I didn’t actually have to slam it (meaning her brakes) and tires burning, it wasn’t that extent. But it was enough for me to have to quickly react.”

She further testified that she would have had to continue to brake to avoid hitting Mr. Caldwell’s truck. At the very least Ms. Boyance’s deposition testimony leaves open an interpretation of the evidence that Mr. Caldwell “unexpectedly” and improperly merged into Ms. Boyance’s lane of traffic, causing her to “react quickly” and “immediately just hit my brakes”, causing Mr. Crain then to strike her vehicle from the rear, propelling her into Mr. Caldwell’s eighteen-wheeler.

Louisiana Revised Statutes 32:124 (the statute governing motorists entering highways from private driveways), provides, “[t]he driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle … and shall yield the right of way to all approaching vehicles so **4 close as to constitute an immediate hazard.” In Sholar v. U.S. Fire Ins. Co., 261 So.2d 327 (La.App. 1 Cir. 1972) the court held that a motorist who enters the highway from the shoulder is held to the same standard of care as a motorist entering the highway from a private driveway.

A panel of our court in Loveday v. Travelers Ins. Co., 585 So.2d 597 (La.App. 3 Cir.); writ denied 590 So.2d 65 (La.1991) stated in a case similar to the case at bar:

It is clear from the testimony and evidence that Jowers breached the duty set for the under LSA—R.S. 32:64(B) by failing to accelerate his speed sufficiently prior to attempting to re-enter the interstate from the shoulder. This negligence was a cause in fact of the accident.

[6] Also, under LSA—R.S. 32:124 Jowers had a duty, in attempting to enter the interstate from the shoulder, to yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. A motorist attempting to enter the highway from the shoulder of the road is held to the same standard of care as the motorist entering a highway from a private driveway. The motorist entering a highway from a private driveway has the primary duty to avoid a collision. Sholar v. U.S. Fire Ins. Co., 261 So.2d 327 (La.App. 1st Cir. 1972). Also, Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972); Boutte v. Rig Hammers, Inc., 303 So.2d 805 (La.App. 3d Cir.1974); Bates v. Lagars, 193 So.2d 375 (La.App. 2d Cir.1966), writ refused, 250 La. 267, 195 So.2d 146 (1967).

[7] This duty becomes more onerous as the hazards increase and requires a motorist to use every reasonable means available to ascertain that his entry onto the highway may be made in safety. Further, such a driver is required to keep a lookout for vehicles upon the highway and to desist from entering until it is **5 apparent to a reasonable prudent person that such can be done in safety. Soileau v. LaFosse, 558 So.2d 294 (La.App. 3d Cir.1990); Wells v. Allstate Insurance Co., 510 So.2d 763 (La.App. 1st Cir.,) writ denied, 514 So.2d 463 (La.1987); Hardee v. St. Paul Fire and Marine Ins. Co., 445 So.2d 771 (La.App. 3d Cir.1984).

In Maylen v. Great West Casualty Company, 15–484, (La.App. 3 Cir. 11/4/15), 178 So.3d 302, another panel of our court found that because the facts were not in dispute in that case, summary judgment was appropriate. While recognizing the duty of the merging motorist to yield the right of way, the uncontroverted facts in that case indicated that once the defendant driver merged, the second and third vehicles following him were able to slow their vehicles and avoid a collision. “Neither was forced to make a complete stop or travel off of the shoulder of the road.” The court stated: “Accordingly, the summary judgment evidence shows that David (the merging vehicle) did not fail to yield to the approaching vehicles so close as to constitute an immediate hazard. Thus David did not breach his duty.” Id. at p. 306.

*9 I would submit that the driver of an eighteen-wheeler entering traffic on a heavily traveled Interstate Highway during peak traffic hours from a highway weigh station or shoulder has an exceptionally high duty of care when attempting to merge onto that busy interstate highway. Loveday v. Travelers Ins. Co., supra. I would find that in this case there are genuine issues of material fact as to whether Mr. Caldwell improperly merged onto I–10, which action contributed to this “chain reaction collision.” I would reverse the summary judgment and remand the case to the trial court for a full trial on the merits.

All Citations
— So.3d —-, 2018 WL 1515702, 2017-876 (La.App. 3 Cir. 3/28/18)

Footnotes

1
For ease of discussion, we renumbered the Crain Defendants’ assignments of error.

2
The Crain Defendants’ assignment of error is factually incorrect as the MSJ at issue in this appeal was filed by the Caldwell Defendants rather than by Plaintiff. We note that Plaintiff did not file any pleadings in response to the Caldwell Defendants’ MSJ.

2018 WL 1517191

United States District Court, S.D. New York.
Thierno D. BAH, Plaintiff,
v.
EVERLAST LOGISTICS, LLC, Everlast Transport, LLC, and Sealand a/k/a Sealand Terminal Corporation, and Grespania S.A., Defendants.
14 Civ. 1393 (RWS)
|
Signed 3/26/2018
Synopsis
Background: Warehouse worker brought personal injury action in state court against Spanish ceramic tile manufacturer arising from injuries worker sustained when boxes of ceramic tiles fell on him form a pallet while he was unloading a delivery. After removal, manufacturer moved for summary judgment.

Holdings: The District Court, Sweet, J., held that:

[1] manufacturer was not liable to worker for negligence under New York law, and

[2] plaintiff’s expert witness’s affidavit was not admissible.

Motion granted.

West Headnotes (4)

[1]
Federal Civil Procedure

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Fed. R. Civ. P. 56(c).
Cases that cite this headnote

[2]
Negligence

To succeed on a negligence claim under New York law, plaintiff must establish the following elements: (1) duty; (2) breach of duty; (3) proximate causation; and (4) damages.
Cases that cite this headnote

[3]
Federal Civil Procedure

Spanish ceramic tile manufacturer’s palletization, warehousing, and cargo loading procedures for shipping boxes of ceramic tiles were in compliance with industry standards and performed with reasonable care, and therefore manufacturer was not liable to warehouse worker for negligence under New York law arising from injuries worker sustained when boxes of ceramic tiles from a pallet fell on him while he was unloading a delivery.
Cases that cite this headnote

[4]
Witnesses

Plaintiff’s expert witness’s affidavit submitted in opposition to a motion for summary judgment in negligence action was not admissible as plaintiff did not comply with the Federal Rules of Civil Procedure, even if expert was an expert in the field of forensic science; nothing in affidavit qualified expert to opine on the practices and standards of shipping and transportation industries, plaintiff did not disclose the expert and the time to do so expired, the deadline to exchange expert reports was extended at plaintiff’s request and he used it to disclose another expert’s report only, no copy of expert’s curriculum vitae (CV) was included as was required by the Rule governing discovery, and the affidavit was conclusory, based on plaintiff’s allegations, and bore no independent or scientific analysis. Fed. R. Civ. P. 26(a)(2)(B), 37(c) (1).
Cases that cite this headnote

Attorneys and Law Firms
JEFFREY J. SHAPIRO & ASSOCIATES, LLC, 675 Third Avenue, Suite 3005, New York, New York 10017, By: Steven E. Millon, Esq., Attorneys for Plaintiff.
BIEDERMANN HOENIG SEPREVIVO, One Grand Central Place, 60 East 42nd Street, Suite 660, New York, New York 10165, By: Joseph Kim, Esq., Attorneys for Defendants.
Opinion

OPINION
*1 Sweet, D.J.
Defendant Grespania S.A. (“Grespania” or the “Defendant”) has moved pursuant to Federal Rule of Civil Procedure 56 for summary judgment to dismiss the complaint (the “Complaint”) filed by Plaintiff Thierno Bah (“Bah” or the “Plaintiff”). This is a personal injury action arising from a workplace accident that occurred on April 11, 2013. Based on the facts and conclusions set forth below, Defendant’s motion for summary judgment is granted, and the Complaint is dismissed with prejudice.

I. Prior Proceedings
Plaintiff commenced this action in the Supreme Court, County of the Bronx on November 11, 2016. Plaintiff alleges that he suffered personal injuries arising out of an accident that occurred on April 11, 2013 as he unloaded boxed tiles from a shipping container alleged to have been negligently loaded by Grespania (the “Container”). The action was removed to this Court on March 3, 2014. (See Dkt. No. 2.) Plaintiff filed a first amended complaint on December 12, 2014, (see Dkt. No. 15), and a second amended complaint on February 10, 2016, (see Dkt. No. 38). Meanwhile, discovery proceeded.

Grespania’s instant motion for summary judgment was heard and marked fully submitted on February 7, 2018.

II. The Facts
The facts have been set forth in Defendant’s Local Rule 56.1 Statement, (see Dkt. No. 74) and Plaintiff’s Local Rule 56.1 Statement, (see Dkt. No. 67) and are not in dispute except as noted below.

Defendant Grespania is a manufacturer of ceramic tiles, based in Spain, which sells its products internationally, including in the United States. Defendant loads approximately 3,640 shipping containers per year, and uses the same practice and procedure to load all containers, as described below (the “Procedure”). Plaintiff denies that the Container he was unloading on April 11, 2013 was so loaded.

To begin, customers’ purchase orders are sent to Defendant’s “area manager” and his administrative assistant. Once the purchase order is received, a document called a “commercial pro forma” is created and sent to the client for confirmation. After the client confirms the order, the client also confirms which transportation company it will use. Upon confirmation of all details, Grespania’s cargo procedure is initiated, and a cargo order is sent to Grespania’s warehouses and assigned to warehouse personnel who prepare the order for pick-up. Defendant has two warehouses-one in Castellon, Spain, which stocks floor tiles (the “Castellon Warehouse”), and a second in Nules, Spain, which stocks wall tiles (the “Nules Warehouse”).

When Grespania receives an order for a U.S. customer, the requested product is taken from one or both warehouses; the product is not specifically manufactured for the customer. Grespania’s goods are palletized at Grespania’s warehouses. Defendant’s entire process of palletizing its products has been automatic since the late 1980s. The machines used today have been in use since 2008. The goods are loaded onto pallets by an automatic packing machine called “Falcon,” produced by the company System Ceramics.

*2 Next, pursuant to its Procedure, Grespania applies anywhere between four and eight plastic belts on each pallet to keep the boxes of tiles affixed to the pallets. If a plastic belt is applied with insufficient pressure, or if there is a box that is not aligned, an alarm rings and the production line is halted until the non-conformity is corrected. Grespania uses plastic shrink wrapping technology at both of its warehouses, although the method of application differs. At the Castellon Warehouse, the plastic shrink wrap is applied as a bag, and then a machine circles the pallet while shrinking it down. At the Nules Warehouse, the plastic shrink wrap is applied in sheets to the pallets in a tunnel system.

Once a particular order is ready, an independent truck driver, selected by the customer, brings an empty shipping container to Grespania’s warehouse and opens the container. Shipping containers are of standardized dimensions, generally coming in lengths of 20 or 40 feet. The width and height of these containers is always the same. Pursuant to its Procedure, Grespania loads its containers so that pallets are as low to the ground and as evenly distributed as possible to minimize the possibility of damage to cargo should any of the contents shift or fall during transport.

Next, warehouse workers load pallets onto each container using a “Hyster model H2.5FT” forklift. Grespania requires that its workers receive training and licensing prior to being allowed to operate forklifts. According to the Procedure, stacks of pallets are placed against the walls of the container such that a walkway wide enough for workers to navigate within the containers remains between the pallet stacks. Workers use this walkway to allocate airbags throughout the container. The warehouse manager then ensures that the cargo is properly loaded and secured in the containers.

Next, the truck driver seals the container, and the loaded truck is weighed on a scale. The truck driver verifies a document called the “albaran,” or “new cargo confirmation,” and Grespania creates a “bill of lading” document. Grespania’s palletization, warehousing, and cargo loading process is subject to regular audits and is certified by the International Organization for Standardization (“ISO”). Grespania was ISO certified during the time period covering the underlying incident.

Once the container is sealed and taken by the customer’s chosen trucking company, Grespania has no further control over it. Grespania maintains no practice or custom of instructing, inspecting, approving, supervising, or even inquiring about the container unloading practices of its customers. As such, Grespania generally assumes that its customers know how to competently unload their containers.

Plaintiff was employed by Quality Tile Corporation in Bronx, New York, as a warehouse worker for approximately one year at the time of the alleged April 11, 2013 accident. He did not receive any training, written materials, or instructions on how to unload containers during that time. Quality Tile did not have a loading dock or any ramps for loading/unloading shipping containers. In order to unload containers, Quality Tile’s workers place a pallet jack under the bottom-most pallet in a stack, jack it up off the floor, and then connect a cord from the handle of the pallet jack to the forklift. The forklift operator then backs up the forklift to drag the pallet jack carrying the stack of pallets to the container opening. The pallets are then removed by the forklift at the edge of the container-first lifting off one pallet, and then the remaining two pallets.

Plaintiff’s only role in unloading the Container was to insert the pallet jack under a stack of pallets, to jack the load up and off the ground, to attach the cord running from the forklift to the pallet jack, and then to get out of the way of the forklift operator. This was the only ‘procedure’ for unloading a container that Plaintiff knew. Plaintiff and his coworker, friend, and fellow countryman Diallo were aware that their work was dangerous, and that regularly conversed with each other about the dangers of their job and warned each other to be careful prior to the accident.

*3 Here, the Container bound for Quality Tile (No. FCIU3336616) was a “20 foot” container, meaning that it was 20 feet long with an exterior width of 8 feet and an exterior height of 8.5 feet, and an interior width of 7 feet 8 inches (92 inches). The Container first went to the Castellon Warehouse, was partially loaded, then went to the Nules Warehouse for the remainder of the order. The goods to be loaded into the Container were pulled from the warehouses and set aside for loading on the day prior to pick up. The Container was the only container delivered to Quality Tile on the date of the accident.

According to Grespania, it loaded the Container, and all the pallets within it, in accordance with its Procedure, such that there were 10 total stacks of pallets, each stacked 2 pallets high, except for the stack furthest away from the Container’s opening, which was stacked 3 pallets high, for a total of 21 pallets. Contrarily, Bah testified that the Container was loaded to the doors with approximately 5 rows of pallets, each row being 3 pallets across and 3 pallets high for a total of 45 pallets. The net weight of the Container was 20,650 kilograms (“kg”), which Grespania takes to mean that each of the alleged 21 pallets weighed approximately 1,000 kg. Bah denies that the pallets were loaded as described, and asserts that the top pallet that fell on him was not as full as the other pallets.

At the time of the April 11, 2013 accident, Plaintiff had been working two full-time jobs-a security guard job through Maximum Security Investigations, and his warehouse job at Quality Tile. The night before the accident, Plaintiff worked the nighttime shift at his security job and then walked down the street directly to Quality Tile at 8 a.m. to start his daytime shift.

At approximately 12:00 p.m., a truck pulling the Container parallel-parked in front of the main entrance to Quality Tile’s Merritt Avenue warehouse (“Merritt Avenue Warehouse”) in the Bronx. While Bah did not see the opening of the Container’s doors, immediately after the doors were opened he did see that the Container was packed up to the edge of the opening, and that the stacks of pallets visible to him were all standing. After the Container door was opened, Quality Tile’s forklift operator, Ila, offloaded the row of three pallets closest to the door by way of his hi-lo forklift machine. After one or two rows had been removed, Bah, Diallo, and a manual pallet jack were lifted up on the forks of the forklift and into the Container to assist with unloading the container in the previously described manner.

The accident occurred while Bah was unloading a pallet from the third row of pallets. Plaintiff inserted the forks of the manual pallet jack into the left-most stack of pallets in the third row, jacked the load up and off the ground, and attached a cord from the handle of the manual pallet jack to the forklift, and then moved out of the way to the right. The forklift drove backwards 5–6 feet to drag the loaded pallet jack to the opening of the’ Container, and then came to a complete stop, creating a space behind this stack of pallets and the fourth row of pallets behind it. Plaintiff knew that the forklift driver would frequently stop while dragging pallets, although he did not know why. Plaintiff stepped into the space created behind this stack of pallets after it stopped. It was then that Bah noticed that the top pallet on this stack did not appear to be aligned with the bottom pallets. Plaintiff saw that the top pallet was shrink-wrapped, and that there was no damage to the plastic prior to the accident. However, Plaintiff denies that there were any plastic belts, air bags, or bracings that might secure the boxes to the pallets and prevent the load from shifting within the Container.

*4 A few seconds later, this top pallet fell on Plaintiff. Specifically, Plaintiff alleges that the boxes on the top pallet came loose from the plastic wrap and fell on him. According to Bah, the pallets were not loaded so as to be evenly distributed in the Container. Grespania asserts that the Container was loaded in adherence to the Procedure. Bah alleges that he noticed that before the top pallet fell, it was bigger than the two pallets below it, not evenly aligned or centered with the pallets below it, and not evenly loaded with boxes.

At that moment, Plaintiff instructed Diallo and Ila to tie the cord to the pallet that was on top of his left leg and back up the forklift to drag the pallet off of his leg. Plaintiff was then left alone in the Container screaming and crying for up to an hour. During this time, Plaintiff saw the boxes that had fallen on him and he was sure that the words “CERACASA” were written on the boxes through the clear shrink wrap.

Because his co-workers and supervisors neglected to call an ambulance for him, Plaintiff ultimately had to call 911 himself to request an ambulance.

III. The Applicable Standard
[1]Summary judgment is appropriate only where “there is no genuine issue as to any material fact and … the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute is “genuine” 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). The relevant inquiry on application for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52, 106 S.Ct. 2505. A court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. Westinghouse Elec. Corp. v. N.Y.C. Transit Auth., 735 F.Supp. 1205, 1212 (S.D.N.Y. 1990) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). “The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505 (emphasis in original).

IV. The Defendant’s Motion for Summary Judgment is Granted
[2]The Plaintiff alleges a single claim of negligence against Grespania. “To succeed on a negligence claim, plaintiff[ ] must establish the following elements: (1) duty; (2) breach of duty; (3) proximate causation; and (4) damages.” Giuffra v. Vantage Travel Serv., Inc., No. 13-cv-6880, 2015 WL 3457246, at *3 (S.D.N.Y. June 1, 2015). Any duty that Grespania owed to Plaintiff was to exercise reasonable care in loading the Container. See, e.g., Patalano v. Am. President Lines, Inc., 322 F.Supp.2d 293, 296 (E.D.N.Y. 2004), aff’d Patalano v. Am. President Lines, Inc., 250 Fed.Appx. 425 (2d Cir. 2007) (holding that owner of shipping container owed longshoremen “the ordinary negligence duty of reasonable care under the circumstances”); Sinagra v. Atl. Ocean Shipping, Ltd., 182 F.Supp.2d 294, 300 (E.D.N.Y. 2001) (quoting Fed. Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416–17 n.18, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969) ) (internal quotations omitted) (“[T]he vessel is expected to exercise ordinary care in surrendering ‘its equipment and appliances in such a condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise, will be able by the exercise of ordinary care’ to carry on cargo operations ‘with reasonable safety to persons and property.’ ”); Pierce v. Cub Cadet Corp., No. 87-5936, 1989 WL 47446, at *4 (6th Cir. May 9, 1989) (“Only if and when a shipper assumes the responsibility for loading its property on a motor vehicle, does it have the duty to exercise reasonable care to see that the load is properly secured.”).

*5 [3]Here, all of Grespania’s palletization, warehousing, and cargo loading procedures were compliant with industry standards and performed with reasonable care. Grespania’s palletization, warehousing, and cargo loading processes are subject to regular audits and are ISO certified; further, Grespania was ISO certified during the time period covering the alleged incident. Moreover, it is undisputed that when the doors of the container were opened in front of Quality Tile’s warehouse, all stacks of pallets were seen to have remained upright, despite having crossed an ocean, and having further traveled over land by truck.

Plaintiff himself provides that the top pallet was stable until he lifted it with the manual pallet jack. Specifically, Plaintiff testified that the stack of pallets was “stable” after he inserted the forks of the manual pallet jack underneath the stack and lifted it:
Q. You say you use the hand jack to put the forks of the hand jack underneath the pallet and then lift the pallet up to the point where it’s off the floor of the container; correct?
A. Yes, mm-hmm.
Q. From that point, how is that pallet moved? Tell me how that works.
A. Okay, after I finish doing that, everything was stable and I moved away.
(See Bah Tr. 44:13–22, Nov. 5, 2015, ECF No. 70–3.) Plaintiff further testified that the stack of pallets was “completely stable” until after it was dragged. (See id. 101:21–25.) In his opposition papers, Plaintiff admits that he saw that the top pallet “was not stable”, “wasn’t straight”, and “wasn’t properly centered on the stack” only “after he stepped back while it was being moved.” (See Millon Decl. at 3, ECF No. 73.)

Plaintiff also testified that Grespania wrapped the pallets tightly with clear plastic wrap, and that the purpose of this was “to maintain the boxes … tight.” (See Bah Tr. 107:7–108:6, Nov. 5, 2015, ECF No. 70–3.) In his deposition, Plaintiff stated the following:
Q. So every pallet full of boxes had clear plastic wrap on it?
A. Clear plastic wrap.
Q. What is the purpose of the clear plastic wrap?
A. For me, I think, it’s to maintain the boxes, like, tight, to keep tight.
MR. MCGOVERN: Was the plastic wrapping each individual box or was it wrapping the boxes together?
THE WITNESS: No, the whole pallet.
Q. Describe the plastic for me.
A. You know, those are the roll they use in the warehouse to wrap. You know, you unroll it around the pallet to tighten it. That’s the kind of plastic wrap.
Q. Is that, like, shrink wrap?
A. Shrink, yeah.
Q. Did you notice any of the plastic damaged in any way prior to your accident?
A. No.
(See id.)

Further, according to the undisputed facts, Plaintiff acted in violation of industry standards in the moments leading up to the accident, suggesting that his actions, rather than those of Grespania, created the risk of the accident here. According to shipping and transportation industry standards, it is not safe to use a motorized vehicle, such as a forklift, to tow or drag a heavily loaded manual pallet jack when unloading pallets from a shipping container. (See Fields Report at 4.) Any load lifted with a manual pallet jack should remain under manual control only, and should not be towed by another vehicle. (See id.) Indeed, it is dangerous to use a motor vehicle to pull a heavy, stacked load that is on wheels by means of a cord because of the likelihood that one will lose control over that load. (See id.) Starting and stopping while dragging further adds to the danger, because it can contribute to shifting of the pallets being dragged. (See id.)

On the day of the accident, Quality Tile’s forklift operator successfully removed the first two rows of pallets solely by using the forklift. Only after Plaintiff and his coworker, Diallo, were lifted into the Container on the forks of the forklift and started unloading the Container’s contents using the towing method as described above did the pallet fall. To unload the Container, Plaintiff inserted the forks of a manual pallet jack under the left-most stack of pallets in the third row of the subject container, jacked up the pallets and proceeded to attach a cord from the handle of the pallet jack (located inside the Container) to the forklift (located outside the Container). Plaintiff testified that he then moved to the right to a position of safety. The forklift drove backwards 5–6 feet, dragging the loaded pallet jack to the opening of the Container. The forklift came to a complete stop. The dragging of the pallets created a space behind this stack of pallets and the stack of pallets behind it. Plaintiff stepped into the confined space directly behind the stack of pallets being dragged. It was only then that Plaintiff noticed that the top pallet was not aligned with the bottom pallets. A few seconds later, Plaintiff saw this top pallet falling towards him.

*6 As a matter of physics, if the pallets were going to fall, they would fall opposite the direction they were being pulled. (See Fields Report at 5) (“Since every action has an egual and opposite reaction, if the pallets were going to fall, the risk was that they would likely fall in the direction opposite to the direction they were being pulled.”). Therefore, this was the single most dangerous spot to be during this procedure. (See id.) That is where Plaintiff decided to place himself.

[4]Finally, the Plaintiff submitted the affidavit of Robert Genna (“Genna”) as a “forensic consultant.” (See Genna Aff., Ex. 4, ECF No. 75–4.) However, the Genna affidavit (“Genna Affidavit”) is rejected. Pursuant to Federal Rule of Civil Procedure 37, “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37 (c) (1).

Plaintiff did not designate or disclose Genna as an expert witness, and Plaintiff’s time to do so expired on November 30, 2017. (See Order, Oct. 30, 2017, ECF No. 60.) The deadline to exchange expert reports was extended, in part, upon Plaintiff’s own request, see id., and Plaintiff used this extension to disclose his expert orthopedic surgeon Dr. Gabriel L. Dassa on November 6, 2017. Plaintiff did not disclose any other expert.

This Court, under similar circumstances, has declined to consider expert affidavits submitted for the first time in opposition to summary judgment motions. See, e.g., Ebewo v. Martinez, 309 F.Supp.2d 600, 607–08 (S.D.N.Y. 2004); Malaco Leaf, AB v. Promotion in Motion, Inc., 287 F.Supp.2d 355, 376 (S.D.N.Y. 2003); F.D.I.C. v. Wrapwell Corp., No. 93 Civ. 859 (CSH)(KNF), 2000 WL 1576889, at *2–3 (S.D.N.Y. Oct. 23, 2000); Horowitz v. Jacoby Moving & Storage, Inc., No. 99 Civ. 9798 (AJP), 2000 WL 382063, at *4 (S.D.N.Y. Apr. 14, 2000); R.C.M Executive Gallery Corp. v. Rois Capital Co., No. 93 CIV. 8571 (JGK), 1996 WL 30457, at *1–2 (S.D.N.Y. Jan. 25, 1996).

In addition, the Genna Affidavit fails to comply with the disclosure requirements of Rule 26, see Fed. R. Civ. P. 26(a)(2)(B) (listing the requirements of expert reports), as no copy of Genna’s curriculum vitae (“CV”) is included. (See Genna Aff., Ex. 4, ECF No. 75–4.) Further, even assuming Genna is an expert in the field of “forensic science,” nothing in his affidavit qualifies him to opine on the practices and standards of the shipping and transportation industries. See Nimely v. City of New York, 414 F.3d 381, n.13 (2d Cir. 2005) (“[B]ecause a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields.”)

Moreover, the Genna Affidavit is conclusory, based on the Plaintiff’s allegations, and bears no independent or scientific analysis. See Matthews v. Hewlett–Packard Co., No. 15 Civ. 3922 (DAB), 2017 WL 6804075, at *4 (S.D.N.Y. Dec. 22, 2017) (citation omitted) (“In fact, [the expert’s] opinion on causation appears to be based on little more than Plaintiff’s own opinion on this issue, without the benefit of any additional or independent analysis. The Report’s bald repetition of Plaintiff’s beliefs as to the cause of his condition simply does not reflect a methodology reliant upon Dr. Bryant’s specialized knowledge or experience, and thus, cannot be considered reliable.”); Hernandez v. Leichliter, No. 14-CV-5500 (AJN), 2016 WL 684038, at *2 (S.D.N.Y. Feb. 18, 2016) (citations and internal quotation marks omitted) (“To the extent [the expert] merely repeats or recasts the testimony of Plaintiff in order to arrive at a theory of causation, he is not testifying as an expert witness based upon specialized knowledge, but rather is acting as a conduit for another witness’s testimony in the guise of an expert’s opinion.”). Accordingly, no evidence has been submitted to establish negligence on the part of Grespania.

*7 In sum, because Grespania’s Procedure for loading the Container was reasonable, and in the absence a “genuine issue as to any material fact,” Defendant is “entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(c).

V. Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment is granted.

It is so ordered.

All Citations
— F.Supp.3d —-, 2018 WL 1517191