2018 WL 6523123

United States District Court, N.D. Ohio, Western Division.
Barry M. Creagan, Jr., et al., Plaintiffs
v.
Wal-Mart Transportation, LLC, et al., Defendants
Case No. 3:16-cv-2788
|
12/12/2018

Jeffrey J. Helmick, United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION
*1 Before me is the motion for summary judgment filed by Defendant Wal-Mart Transportation, Inc. (Doc. No. 156). Filing separately, Plaintiffs Allen and Rita Meadows (collectively, the “Meadows Plaintiffs”) (Doc. No. 201) and Plaintiffs Barry and Lauren Creagan (collectively, the “Creagan Plaintiffs”) (Doc. No. 204) opposed. Wal-Mart filed a collective reply to the oppositions. (Doc. No. 211).

Related to this matter and also before me is the Creagan Plaintiffs’ motion to dismiss Defendant Kirsch Transportation Services, Inc.’s federal preemption affirmative defense. (Doc. No. 172). Kirsch opposed the motion and moved for judgment on the pleading as to the negligence claim filed against it.1 (Doc. No. 183). In response, the Creagan Plaintiffs opposed Kirsch’s motion and replied in support of their own. (Doc. No. 187). Kirsch then replied, in turn. (Doc. No. 193).

II. BACKGROUND
On August 14, 2016, a traffic accident occurred on the Ohio Turnpike in Groton Township, Erie County, Ohio. Due to construction at the time, eastbound traffic was reduced to a single lane, causing traffic to slow below the posted speed limit. Failing to timely recognize the reduced speed of traffic, Defendant Chavan Carter, driving a tractor-trailer, initiated a chain collision involving nine vehicles. Among the nine vehicles were that of the Creagan and Meadows Plaintiffs.

The tractor-trailer Carter was driving was owned by his employer, Defendant Natex Group, Inc. At the time of the collision, Carter was hauling a shipment of birdseed for Wal-Mart pursuant to an arrangement brokered by Kirsch.

Because of this accident, the Creagan Plaintiffs and the Meadows Plaintiffs assert claims of negligence against Wal-Mart and Kirsch. (Doc. No. 58; Case No. 18-344, Doc. No. 1). The essence of these negligence claims is that Kirsch and Wal-Mart, in turn, acted negligently when hiring Natex to transport the shipment.

III. STANDARD OF REVIEW

A. MOTION TO DISMISS AFFIRMATIVE DEFENSE AND MOTION FOR JUDGMENT ON THE PLEADINGS
The same pleading requirements apply to a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and a motion for judgment under the pleadings pursuant to Rule 12(c). Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). The pleadings must demonstrate sufficient factual matter, if taken as true, which state a claim “plausible on its face.” Bell Atl. Corp. v. Twombly 550 U.S. 544, 470 (2007). “A plaintiff falls short if [they] plead[ ] facts ‘merely consistent with a defendant’s liability’ or if the alleged facts do not ‘permit the court to infer more than the mere possibility of misconduct….’ ” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678) cert denied, 562 U.S. 1201 (2011).

On a motion for judgment on the pleadings, all well-pleaded allegations of the non-moving party must be taken as true. Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008). Judgment is granted only where there is no material issue of fact involved and the moving party is entitled to judgment as a matter of law. Paskavan v. City of Cleveland Civil Service Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).

B. MOTION FOR SUMMARY JUDGMENT
*2 Summary judgment is appropriate if the movant demonstrates there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). All evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences are drawn in the nonmovant’s favor. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual dispute is genuine if a reasonable jury could resolve the dispute and return a verdict in the nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if its resolution might affect the outcome of the case under the governing substantive law. Rogers v. O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).

IV. DISCUSSION
After deregulating trucking through the Motor Trucking Act of 1980, Congress enacted the Federal Aviation Authorization Administration Act (“FAAAA”) in 1994 in an effort to avoid “a State’s direct substitution of its own governmental commands for ‘competitive market forces’ in determining (to a significant degree) the services that motor carriers will provide.” Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 368, 372 (2008). Mirroring the language of the Airline Deregulation Act (“ADA”)2 enacted years earlier, the FAAAA prohibits States from “enact[ing] or enforce[ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier …, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).3

Interpreting the identical portions of the ADA and the FAAAA in the same manner, the Court held that the FAAAA’s preemption must too be read broadly. Rowe, 552 U.S. at 370. As such, the Court adopted the holding of Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), which
determined: (1) that “[s]tate enforcement actions having a connection with, or reference to,” carrier “ ‘rates, routes, or services’ are pre-empted,”; (2) that such pre-emption may occur even if a state law’s effect on rates, routes, or services “is only indirect,”; (3) that, in respect to pre-emption, it makes no difference whether a state law is “consistent” or “inconsistent” with federal regulation; and (4) that pre-emption occurs at least where state laws have a “significant impact” related to Congress’ deregulatory and pre-emption-related objectives.
Rowe, 552 U.S. at 370-71 (quoting with minor alterations Morales, 504 U.S. at 384, 386-87, 391) (internal citation omitted). But this broad preemption is not unlimited; “federal law does not pre-empt state laws that affect rates, routes, or services in ‘too tenuous, remote, or peripheral a manner.’ ” Rowe, 552 U.S. at 375 (quoting Morales, 504 U.S. at 390).

Not discussed in Rowe are the dissimilarities between the language of the ADA and the FAAAA. Of relevance here is the scope of actors covered by each statute. While the ADA applies to “air carrier[s]” alone, the FAAAA applies to “any motor carrier, broker, or freight forwarder.” Compare 49 U.S.C. § 41713(b)(1) with 49 U.S.C. § 14501(c)(1).

*3 Due in part to this difference between the ADA and the FAAAA, courts are divided on the issue currently before me: whether negligent hiring claims against brokers are preempted by the FAAAA when the alleged negligence results in personal injury.4 Plaintiffs argue that FAAAA preemption does not apply in personal injury cases such as this, relying on precedent of the FAAAA and ADA. But Defendants rely on the reasoning of Volkova to argue a claim of negligent hiring “relates to” the “service” of a broker and must be preempted accordingly. I am persuaded by Defendants’ argument and the supporting case law.

While the FAAAA provides no definition of “services,” it defines transportation to include “services related to th[e] movement [of passengers or property], including arranging for” the transportation of passengers or property. 49 U.S.C. § 13102(23)(B). A broker does just that – “arrange for” the transportation of a shipment by a motor carrier. See 49 U.S.C. § 13102(2). Regardless of whether the broker’s alleged negligence in its choice of motor carrier results in property damage or personal injury, the service remains the same.5 As such, Plaintiffs’ allegation that all personal injury suits are exempt from FAAAA preemption is without merit. Further, because the negligent hiring claim seeks to enforce a duty of care related to how Kirsch (the broker) arranged for a motor carrier to transport the shipment (the service), the claim falls squarely within the preemption of the FAAAA.6

*4 Concluding the claim of negligent hiring does “relate to” the broker “service” provided by Kirsch, the remaining question is whether the safety regulatory exception applies to “save” the claims. The exception provides that FAAAA preemption
shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization.
49 U.S.C. § 14501(c)(2)(A). In support of the argument that the exception applies, the Creagan Plaintiffs argue that to “concern ‘transportation of property’ for application of the preemption provision,” the claim must “concern ‘motor vehicles’ for application of the safety exception.” (Doc. No. 187 at 11). But if this were so, all preempted claims would then be “saved” by the exception. As such, I reject this argument. Because the negligent hiring claim seeks to impose a duty on the service of the broker rather than regulate motor vehicles, I conclude this claim is not within the safety regulatory authority of the state and the exception does not apply. See also Volkova, 2018 WL 741441, at*4; cf. Finley, 2018 WL 5284616, at *6.

Even though the claim is preempted by the FAAAA as it relates to Kirsch as the broker and, through it, Wal-Mart, Plaintiffs are not without judicial recourse. Reading the FAAAA as a whole, it is clear that Natex as the motor carrier may still be liable for negligence here. The FAAAA mandates that to register as a motor carrier, the entity must carry liability insurance in an amount “sufficient to pay… for each final judgment against the registrant for bodily injury to, or death of, an individual resulting from the negligent operation, maintenance, or use of motor vehicles, or for loss or damage to property …, or both.” 49 U.S.C. § 13906(a)(1). The FAAAA does not impose the same requirement on brokers. Not only does this affirmatively establish that a motor carrier may be liable for these types negligence actions, but also the omission of the same language with respect to broker evinces Congressional intent that brokers not be liable for this conduct.

Finally, because the negligent hiring claim is preempted by the FAAAA, I do not find it necessary to address Wal-Mart’s arguments regarding duty of care and the Federal Motor Carrier Safety Regulations.

V. CONCLUSION
For the foregoing reasons, I conclude the negligent hiring claims7 against broker Kirsch and through it, Wal-Mart, are preempted by the FAAAA. Therefore, Wal-Mart’s motion for summary judgment (Doc. No. 156) and Kirsch’s motion for judgment on the pleadings (Doc. No. 183) are granted, as a matter of law. The Creagan Plaintiffs’ motion to dismiss affirmative defense (Doc. No. 172) is denied, in turn.

*5 So Ordered.
s/ Jeffrey J. Helmick

United States District Judge
All Citations
Slip Copy, 2018 WL 6523123

Footnotes

1
Wal-Mart also opposed the motion to dismiss. (Doc. No. 184).

2
The ADA states that, “a State…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1).

3
Included in “other provision having the force and effect of law” is state common law. See Northwest, Inc. v. Ginsberg, 572 U.S. 273, 281-84 (2014) (interpreting the identical language in the ADA).

4
No circuit court has ruled on this issue. But the district courts who have encountered the issue have diverged on not only conclusion, but also reasoning used to arrive at the conclusion. Compare Volkova v. C.H. Robinson Co., No. 16 C 1883, 2018 WL 741441, at *3-*4 (N.D. Ill. Feb. 7, 2018) (holding negligent hiring claims in the context of personal injury are preempted because the claim relates to the “service” of brokers), and Krauss v. IRIS USA, Inc., No. 17-778, 2018 WL 2063839, at *5-*6 (E.D. Pa. May 3, 2018) (same citing Volkova), with Finley v. Dyer, No. 3:18-cv-78, 2018 WL 5284616, at *5 (N.D. Miss. Oct. 24, 2018) (same citing Volkova and Krauss, but holding the claim “saved” by the “safety regulatory” exception). And compare Volkova, Krauss, and Finley (holding negligent hiring claims with the general preemption as related to the service of brokers), with Mann v. C.H. Robinson Worldwide, Inc., Nos. 7:16-cv-102, 104, 140, 2017 WL 3191516, at *7 – *8 (W.D. Va. July 27, 2017) (holding the claim was not preempted because there was very little if any connection between the personal injury claim and the service of the broker and stating even if it was preempted, the claim would be saved by the safety regulatory exception); Montes de Oca v. El Paso-Los Angeles Limousine Exp., Inc., No. CV 14-9230, 2015 WL 1250139, at *1-*3 (C.D. Cal. Mar. 17, 2015) (holding “a state’s police power for ensuring safety is not preempted by the Act, and traditional tort actions are still within a state’s jurisdiction.”); Owens v. Anthony, No. 2-11-0033, 2011 WL 6056409, at *3-*4 (M.D. Tenn. Dec. 6, 2011) (citing ADA case law to hold personal injury negligence claims are not preempted by the FAAAA, but instead under the state’s regulatory authority of highway safety issues).

5
See ASARCO LLC v. England Logistics Inc., 71 F. Supp. 3d 990, 1006-07 (D. Ariz. 2014) (holding negligent hiring claim relates to the services of a broker, by definition, in the context of property claim); Georgia Nut Co. v. C.H. Robinson Co., No. 17 C 3018, 2017 WL 4864857, at *3 -*4 (N.D. Ill. Oct. 26, 2017) (same); Volkova, 2018 WL 741441, at *3 (holding negligent hiring claim relates to the services of a broker, by definition, in the context of property claim); Krauss., 2018 WL 2063839, at *5-*6 (same); Finley, 2018 WL 5284616, at *5 (same). But see Mann, 2017 WL 3191516, at *7-*8 (distinguishing personal injury from property damage suits without discussion of the actual services performed by the broker); Montes de Oca, 2015 WL 1250139, at * 3 (same).

6
Although Wal-Mart is a shipper rather than a broker, the negligent hiring claim against Wal-Mart stems entirely from Kirsch’s broker services. Because the claim against Wal-Mart indirectly attempts to regulate broker services, it must be preempted as well. See Rowe, 552 U.S. at 372 (holding a regulation preempted because even though “it [told] shippers what to choose rather than carriers what to do,” the effect of the regulation was on carriers).

7
Plaintiffs also bring claims of vicarious liability against Kirsch, stating it is vicariously liable for the acts of Defendant Chavan Carter, as an employee, agent, servant, or independent contractor of Kirsch. (Doc. No. 58 at 11, 19-20, 27-28; Doc. No. 61 at 7-8, 13). But there are no facts alleged which establish any connection between Kirsch and Carter, other than Kirsch’s selection of Natex, Carter’s employer, to transport the goods. Therefore, these claims fall within the preemption of the FAAAA, as well.

2018 WL 6567724

United States District Court, N.D. Ohio, Eastern Division.
Theressa Frank, Plaintiff,
v.
FAF, Inc., et al., Defendants.
CASE NO. 1:17 CV 2437
|
12/13/2018

PATRICIA A. GAUGHAN, United States District Judge, Chief Judge

Memorandum of Opinion and Order

INTRODUCTION
*1 This matter is before the Court upon the Motion for Partial Summary Judgment of Defendants FAF, Inc. and Matthew E. McRedmond (Doc. 43). Also pending is Plaintiff’s Motion in Limine Regarding Marijuana Use and Possession (Doc. 48). This is a wrongful death action stemming from a traffic accident involving a tractor-trailer. For the reasons that follow, both motions are GRANTED.

FACTS
Plaintiff, Theressa Frank, individually and as the Administratrix of the Estate of Andre C. Elliott, brings this lawsuit against defendants, FAF, Inc. and Matthew E. McRedmond, alleging wrongdoing in connection with a traffic accident. Plaintiff alleges that on July 7, 2017, defendant McRedmond was operating a tractor-trailer on behalf of defendant FAF, Inc. in the right hand lane of Interstate 76. McRedmond drove into the left hand lane, causing the motorcycle operated by Elliott to crash. Elliott died as a result.

Thereafter, Frank brought this lawsuit alleging ten “claims” for relief. Counts one through three are asserted against McRedmond and allege negligence, “statutory violations,” and “punitive damages,” respectively. Counts four through eight assert claims for vicarious liability, strict liability, negligence, “statutory violations,” and “punitive damages” as to FAF, Inc. Count nine is a claim for wrongful death and count ten, which is erroneously labeled as a second count nine, is a “survival action.”

During the pendency of this matter, the parties entered the following stipulation with regard to liability:
By agreement of Plaintiff…and Defendants…, it is hereby stipulated that on July 7, 2017, Mr. McRedmond, while operating a tractor-trailer within the course and scope of his duties pursuant to an independent contractor operating agreement with Defendant FAF, Inc., negligently and proximately caused a collision involving Mr. McRedmond’s vehicle and a motorcycle being operated by decedent Andre C. Elliott. Defendant FAF, Inc. is liable for Mr. McRedmond’s negligence pursuant to the doctrine of respondeat superior.

Defendants now move for summary judgment with respect to count six, count ten, and plaintiff’s claims for punitive damages. Plaintiff opposes the motion in part. Also pending is plaintiff’s motion to exclude, which defendants oppose.

STANDARD OF REVIEW
Summary Judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits,” if any, which it believes demonstrates the absence of a genuine issue of material fact.
*2 Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56 (c)). A fact is “material only if its resolution will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may not simply rely on its pleading, but must “produce evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).

The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is “merely colorable” and not “significantly probative,” the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).

ANALYSIS
1. Punitive damages and count six (negligent hiring/retention claim against FAF, Inc.)

Defendant FAF, Inc. moves for summary judgment with regard to count six. According to defendant, the evidence demonstrates that it conducted a thorough background check prior to hiring McRedmond. In addition, defendant notes that it requires all of its drivers, including McRedmond to partake in a lengthy training seminar and continues to monitor all of its drivers over time. In addition, defendants argue that there is no evidence that either defendant acted with the requisite intent sufficient to support a claim for punitive damages. Alternatively, defendants argue that punitive damages are not available where a decedent died instantly. Plaintiff does not respond in any fashion to these arguments. Upon review, the Court finds that, in the face of defendants’ evidence to the contrary, plaintiff fails to present evidence sufficient to support a claim for negligent hiring, training, or retention. Nor does plaintiff point the Court to any evidence in support of a claim for punitive damages. As such, the Court agrees with defendants that summary judgment is warranted on count six, as well as both punitive damages “claims,” i.e., counts three and eight.

2. Count ten (survival action)

Defendants argue that a survival action is unavailable because Ohio law requires evidence that the decedent experienced conscious pain between the time of impact and death. According to defendants, the evidence demonstrates that Elliott died instantly on impact. In response, plaintiff argues that Elliott was aware of imminent danger because he took corrective action in the form of moving his motorcycle onto the grassy berm. Plaintiff claims that Elliott “flipp[ed] up in the air and slamm[ed] to the pavement before being run over by the trailer.” According to plaintiff, Elliott undoubtedly experienced horror and terror while he tried to avoid the collision. As such, plaintiff claims that Elliott’s estate is entitled to recover damages for the negligent infliction of emotional distress Elliott suffered “as he saw the tractor trailer move into his lane of traffic until the time he was struck, thrown in the air and subsequently killed.” Defendants make two arguments in reply. According to defendants, there is absolutely no evidence of the chronology of events described in plaintiff’s brief. Rather, a witness testified that Elliott rode his motorcycle alongside the trailer, moved into the grassy berm, and drove back onto the roadway whereupon he was struck by the tractor trailer. Another witness testified similarly, adding that Elliott’s body was thrown into the air after the impact with the tractor trailer. In addition, based on the evidence presented by the witnesses, Elliott suffered no emotional harm after the impact as he was killed instantly or within seconds of the impact. Defendants argue that the case law requires the emotional distress to occur in between the impact and death. As such, any emotional distress Elliott suffered prior to being struck is not relevant.

*3 Upon review, the Court finds that defendants are entitled to summary judgment on plaintiff’s survivorship “claim.” In that claim, plaintiff alleges that “Elliott survived the collision for a short period of time and experienced severe emotional distress in the form of pre-death terror, physical pain, and mental anguish up to the time of his death.” (Doc. 1 at ¶ 41). Plaintiff’s request for both physical and mental anguish is akin to a request for “pain and suffering.” Fantozzi v. Sandusky Cement Prod. Co., 597 N.E.2d 474 (Ohio 1992)(“pain and suffering” includes both physical and emotional anguish).

The Court notes that it first must determine whether this claim survives Elliott’s death. Upon review, the Court answers this question in the affirmative. O.R.C. § 2305.21 provides as follows, “[i]n addition to the causes of action which survive at common law, causes of action for…injuries to the person or property…shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.” As at least one Ohio court has held, this provision is not a separate cause of action. Monnin v. Fifth Third Bank of Miami Valley, N.A., 658 N.E.2d 1140 (Oh. Ct. App. 1995). Rather, the statute allows certain causes of action to be asserted even thought the claimant is no longer alive.

On its face, the statute provides that only claims involving injury to the “person or property” survive death. Under Ohio law, emotional distress is considered damage to the “person.” See, e.g., Bowman v. Parma Bd. of Ed., 542 N.E.2d 663 (Ohio Ct. App. 1988)(claim for psychic injury or infliction of serious emotional distress survived death of person upon whom injury or distress was inflicted); see also, Tinney v. Richland County, 2014 WL 6896256 (N.D. Oh. Dec. 8, 2014). Here, plaintiff alleges that Elliott suffered severe emotional distress in the form of “pre-death terror, physical pain, and mental anguish up to the time of his death.” Broadly construed, plaintiff’s “survival action” asserts claims for negligence and negligent infliction of emotional distress. Both of these claims may be asserted notwithstanding Elliott’s death as both involve injury to the “person.”

Defendants argue, however, that because Elliott’s death occurred nearly instantaneously, damages are not recoverable under Ohio’s survival statute. Defendants point to a number of cases in which Ohio courts have held that damages for “pain and suffering” are recoverable only in the event that there is “some evidence of conscious pain and suffering…between the injury inflicted and the resulting death.” Monnin v. Firth Third Bank of Miami Valley, N.A., 658 N.E.2d 1140 (Oh. Ct. App. 1995). See also, Laverick v. Children’s Hospital Medical Center of Akron, Inc., 540 N.E.2d 305, 308 (Oh. Ct. App. 1988)(“one may recover for the pain and suffering endured when there is affirmative evidence to show that the decedent was not completely unconscious during the interval between the injury and death”). As noted above, “pain and suffering” encompasses damages resulting from both physical and emotional injury.

Here, defendants present evidence from medical experts indicating that Elliott died either immediately or within seconds of the impact. Defendants detail the gruesome and extensive injuries to Elliott’s spine and brain. Plaintiff submits no evidence in response. As such, even if Elliott survived for “seconds,” there is no evidence that Elliott was conscious during that time such that he appreciated any pain and suffering as a result of the accident. Accordingly, summary judgment is warranted in favor of defendant with respect to plaintiff’s survival claim.1

*4 3. Motion in limine

Plaintiff moves to exclude evidence of Elliott’s marijuana use at or near the time of the accident. Post-mortem toxicology results showed that at the time of the accident plaintiff’s blood contained nearly four times the per se limit for a driving under the influence charge in Ohio. In addition, Elliott had four ounces of marijuana in his backpack at the time of the accident. Plaintiff, however, argues that defendants stipulated to liability and that evidence of drug possession and drug use on this one occasion is not relevant to a damages calculation. In response, defendants argue that drug use and illegal activity (including drug possession) are relevant to damages in that drug use affects earning potential and the ability to hold down a job. According to defendants, Elliott has not had a steady job history.

Upon review, the Court finds that evidence of Elliott’s toxicology and possession of marijuana are not relevant to a damages calculation. Although arguably such evidence may be relevant if it is tied to work performance, such is not the case here. Plaintiff seeks to exclude only once instance of drug use and possession. Defendants note that Elliott: (1) held his job only for approximately five months prior to the accident; (2) previously worked at Taco Bell for less than six months; (3) worked as a temporary laborer with an inconsistent work history including “for cause” terminations. But there is no indication that any of Elliott’s difficulties with employment relate in any way to drug use. Plaintiff points out that Elliott has never been convicted of any crime related to drug use. Nor does either party cite any evidence demonstrating that Elliott engaged in long-term drug use. Rather, the only evidence at issue is Elliott’s drug use and possession on one occasion. In short, the Court finds that evidence related to Elliott’s drug use and possession on the day of the accident is not relevant to damages.

Even if the evidence could be deemed relevant, the Court finds that the probative value of the evidence is substantially outweighed by the danger of confusion of the issues and unfair prejudice. Here, the jury may confuse the issue of liability and damages. Although defendants stipulated to liability, the jury may erroneously believe that the fact that Elliott’s toxicology reports revealed substantially high levels of marijuana in his blood means that Elliott was at least partially at fault for the accident. Alternatively, the jury may believe that plaintiff is not entitled to damages simply because he used drugs. The danger of confusion and unfair prejudice substantially outweighs any minimal probative value the evidence may have with respect to damages. As such, plaintiff’s motion to exclude is well-taken.

CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment and plaintiff’s motion in limine are GRANTED.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

Chief Judge

Dated: 12/13/18
All Citations
Slip Copy, 2018 WL 6567724

Footnotes

1
Plaintiff argues that Elliott suffered emotional damages prior to the
impact. Plaintiff goes through a series of events, including that plaintiff was “thrown into the air” prior to being struck by the tractor-trailer. But, as defendants point out, plaintiff offers no evidence in support of this factual scenario. And, to the extent plaintiff is claiming that any emotional distress Elliott suffered prior to the impact is recoverable, this argument is wholly inconsistent with plaintiff’s allegations. Plaintiff expressly alleges that “Elliott survived the collision for a short period of time” and thus suffered physical and mental distress prior to his death. (Doc. 1 at ¶ 42)(emphasis added).