United States District Court, W.D. Louisiana,

LAKE CHARLES DIVISION.

LAUREN BERTRAM, ET AL

v.

PROGRESSIVE SOUTHEASTERN INSURANCE CO ET AL

CASE NO. 2:19-CV-01478 LEAD

01/25/2023

MEMORANDUM RULING

JAMES D. CAIN, JR. UNITED STATES DISTRICT JUDGE

*1 Before the Court is a “Motion for Summary Judgment” (Doc. 154) filed by Defendant, Convermat Corporation (“Convermat”), who moves to dismiss all claims asserted by Plaintiffs.

FACTUAL STATEMENT

The lawsuit involves a vehicle accident that occurred on July 16, 2019. Defendant, Justin Chong was operating a Freightline tractor towing a trailer loaded with paper rolls. The tractor experienced a blow-out of the front driver’s side tire causing Chong to lose control of the tractor, which crossed the solid yellow line and struck a vehicle driven by Stephen Bertram in the oncoming lane. Mr. Bertram did not survive the accident.

Plaintiffs allege that the unsecured paper rolls shifted during transport and caused or contributed to the tractor-trailer collision.

Plaintiffs have named Convermat as one of several Defendants. Plaintiffs allege that Convermat was negligent in hiring Mallory International, LLC (“Mallory”) to provide freight-forwarding services and brokerage services.¹ Plaintiffs have consented to the dismissal of this claim. Plaintiffs allege that Mallory is the agent of Convermat, and thus Convermat is vicariously liable for the actions or inactions of Mallory.² Convermat, contracts with Mallory to warehouse and load its paper rolls for transportation from Mallory’s facility. Mallory is a licensed freight-forwarded/broker.³

Defendant, Blue Grace Logistics, LLC (Blue Grace) is a licensed freight broker and Defendant, Empire National, Inc. (“Empire”) was at all relevant times a licensed motor carrier.⁴ Justin Chong at all relevant times was a licensed commercial vehicle operator.⁵

Convermat did not receive any instructions regarding cargo securement for the paper rolls from Blue Grace or from any other third-party logistics provider.⁶ The Warehousing Agreement between Convermat (identified therein as “Depositor”) and Mallory (identified therein as “Warehouseman”) includes the following relevant provision:

It is hereby agreed and understood that WAREHOUSEMAN is entering into this Agreement as an independent contractor and that all of WAREHOUSEMAN’S personnel engaged in work to be done under the terms of this Agreement are to be considered as employees of WAREHOUSEMAN and under no circumstances shall they be construed or considered to be employees of DEPOSITOR. WAREHOUSEMAN shall supervise the performance of its own employees in providing services for DEPOSITOR and shall have control over the manner and means by which its services are performed, subject to the terms of this Agreement as well as any written and mutually agreed upon amendments thereto. Nothing in this Agreement will be interpreted as creating a relationship of principal and agent, partnership or joint venture between the parties. Neither DEPOSITOR nor WAREHOUSEMAN will represent in any manner to any third party that WAREHOUSEMAN is an agent of, or affiliated with, DEPOSITOR in any capacity other than as an independent contractor, and nothing in this Agreement shall be construed to be inconsistent with such status.⁷

*2 Convermat did not train Mallory’s employees on how to perform the warehousing operations provided by Mallory pursuant to the Warehousing Agreement.⁸

Convermat retained Blue Grace as a broker to arrange for the transport of paper rolls from Mallory’s warehouse in Texas to Convermat’s customer in North Carolina.⁹ Blue Grace, as the broker, was responsible for retaining a qualified motor carrier, and it retained Empire to serve as the motor carrier for the transport in question.¹⁰ At the time Convermat entered into the Warehousing Agreement with Mallory, the proposed scope of work estimated that Mallory would handle the loading and unloading of approximately 200 trailers per month on behalf of Convermat.¹¹

SUMMARY JUDGMENT STANDARD

A court should grant a motion for summary judgment when the movant shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. The party moving for summary judgment is initially responsible for identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the motion for summary judgment if the movant fails to meet this burden. Id.

If the movant makes this showing, however, the burden then shifts to the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted). This requires more than mere allegations or denials of the adverse party’s pleadings. Instead, the nonmovant must submit “significant probative evidence” in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).

A court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court is also required to view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

LAW AND ANALYSIS

Plaintiffs allege that Mallory was grossly negligent in breaching its duty to properly secure the load of paper inside the trailer attached to the tractor operated by Chong.¹² The securement of the load was investigated by Louisiana State Police Trooper Timothy Guinn, a Commercial Vehicle Enforcement officer.¹³ Specifically, Trooper Guinn, found that the subject load violated 49 CFR § 393.122(B), the Federal Motor Carrier Safety Regulation specific to the securement of paper rolls transported with eyes vertical in a sided vehicle.¹⁴ Trooper Guinn determined that no securement devices were used on the paper rolls.¹⁵

*3 Plaintiffs assert that Mallory employees were solely responsible for loading the paper rolls at issue into the trailer owned and operated by Defendant Empire.¹⁶ Plaintiffs argue that Mallory was acting on behalf of Convermat as an agent when it loaded the trailer with paper rolls.¹⁷

Plaintiffs maintain that because Mallory was Convermat’s agent, Convermat is vicariously liable for the acts of its agent.

Under Louisiana law, the doctrine of vicarious liability, or respondeat superior, is expressed in Louisiana Civil Code art. 2320, which states that “[m]asters and employers are answerable for the damage occasioned by servants and overseers, in the exercise of the functions in which they are employed.” Urbeso v. Bryan, 583 So. 2d 114, 116–18 (La. Ct. App. 1991). Under LSA-C.C. art. 2985, a principal may be liable for its agent’s actions; however, a principal is not liable for any actions by an independent contractor. Urbeso, 583 So.2d at 116; citing Williams v. Gervais F. Favrot Company, 499 So.2d 623 (La.App. 4th Cir.1986). In determining whether vicarious liability will attach under Louisiana law, it must be determined whether an agency (i.e. master-servant or employer-employee) relationship or an independent contractor relationship exists. Id.

In general, “[t]he right of control and supervision, selection and engagement, payment of wages, and the power of dismissal determines whether an ‘employee’ status exists.” Id. at 116-17, citing Ermert v. Hartford Insurance Co., 559 So.2d 467 (La.1990). An employee/agent has a close relationship and is subject to control by the employer or principal. However, agency is never presumed. Instead, “it must be clearly established.” Id.

In Louisiana, “an agency relationship is created by either the express appointment of a mandatory under Civil Code Article 2985, or by some implied appointment which traces to apparent authority.” Administrators of Tulane Educ. Fund v. Biomeasure, Inc., 687 F. Supp. 2d 620, 629–30 (E.D. La. 2009). “Implied or apparent agency exists if the principal has the right to control the conduct of the agent and the agent has the authority to bind the principal.” Urbeso, 583 So.2d at 116. “Apparent agency arises when the principal has acted so as to give an innocent third party a reasonable belief that the agent had the authority to act for the principal … and the third party reasonably relies on the manifested authority of the agent.” Barrilleaux v. Franklin Found. Hosp., 96-0343 (La. App. 1 Cir. 11/8/96), 683 So. 2d 348, 354. Liability of a principal for the acts of an agent does not exist unless the agent is a servant who “has a close economic relationship and is subject to control by the principal” Id. (Emphasis supplied.) “A servant offers personal services for a price and must submit to the control of his physical conduct and time.” Id.

Furthermore, Louisiana courts have held that “the mere existence of an agency relationship does not impose vicarious liability on the principal for the physical torts of a non-servant agent.” Miller v. Universal Underwriters Insurance Co., 308 So.2d 842 (La. App. 2 Cir. 1975). “The determination of whether a party may be held vicariously liable for the torts of another depends on whether the tortfeasor is characterized as a servant.” Wetstone v. Dixon, 616 So.2d 764 (La. App. 1 Cir. 1993). A master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a non-servant agent. Price v. North, 21-0236 (La. App. 1 Cir. 10/18/21), 331 So.3d 959, 970 “A servant is defined as one employed to perform services in the affairs of another and who is subject to the other’s control or right to control with respect to the physical conduct in the performance of the services.” Id. A servant may possess the qualities of an agent, but all agents do not qualify as servants, and the master-servant relationship cannot be equated with the principal-agent relationship. Aupied v. Joudeh, 96-202 (La. App. 5 Cir. 4/9/97), 694 So.2d 1012, 1016.

*4 Converse to an agency relationship, an independent contractor relationship exists when the following can be established according to these factors:

1. There is a valid contract between the parties;

2. The work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;

3. The contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered;

4. There is a specific price for the overall undertaking; and

5. Specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.38

“The most important test involves the employer’s control over the work.” It is not whether the principal/employer exercises control or supervision, but whether the right to exercise control exists. Id. citing Tardo v. New Orleans Public Service Inc., 353 So.2d 409 (La.App. 4th Cir.1977).

Convermat asserts that it is not a licensed motor carrier, freight-forwarder, or broker, and it relies on third-party logistic providers to select qualified motor carriers to haul paper rolls to its customers. Convermat asserts that Mallory was responsible for unloading, storing, and subsequently re-loading the paper rolls onto the trailer operated by Chong for delivery to Convermat’s customer in North Carolina.

Convermat argues that the Warehousing Agreement between Convermat and Mallory establishes that Mallory is an independent contractor as opposed to a principal/agency relationship. Convermat relies on the following provision contained in the Warehousing Agreement:

ARTICLE XVI. INDEPENDENT CONTRACTOR

It is hereby agreed and understood that [Mallory] is entering into this Agreement as an independent contractor and that all of [Mallory’s] personnel engaged in work to be done under the terms of this Agreement are to be considered as employees of [Mallory] and under no circumstances shall they be construed or considered to be employees of [Convermat]. [Mallory] shall supervise the performance of its own employees in providing services for [Convermat] and shall have control over the manner and means by which its services are performed, subject to the terms of this Agreement as well as any written and mutually agreed upon amendments thereto. Nothing in this Agreement will be interpreted as creating any relationship of principal and agent, partnership or joint venture between the parties. Neither [Convermat] nor [Mallory] will represent in any manner to any third party that [Mallory] is an agent of, or affiliated with, [Convermat] in any capacity other than as an independent contractor, and nothing in this Agreement shall be construed to be inconsistent with such status.¹⁸

The Warehousing Agreement also provided that Mallory would furnish sufficient personnel, equipment, and other accessories necessary to perform “efficiently and with safety” the services requested by Convermat, including receiving, unloading, reloading, storage, trailer inspections, and warehouse storage of products.¹⁹ Convermat also asserts that the Warehousing Agreement requires that Mallory “comply with all laws, ordinances, rules and regulations of Federal, State, municipal and other governmental authorities and the like in connection with the safeguarding, receiving, storing and handling of goods.²⁰ Thus, Convermat posits that Mallory was an independent contractor because Mallory maintained the right and obligation to control the manner and means by which all services to Convermat were to be performed by Mallory’s employees.

*5 To buttress its position, Convermat provides the deposition testimony of Tom Kaden, Mallory’s corporate representative, who acknowledged that Convermat did not control the work performed by Mallory at its warehouse, provide training to any of the Mallory employees, instruct Mallory’s employees on the manner in which trailers were loaded, or otherwise dictate who Mallory would hire.²¹

Convermat argues that the Warehousing Agreement expressly states that the relationship between Convermat and Mallory is that of an independent contractor. Convermat further argues that Plaintiffs cannot establish through evidence that either apparent or implied authority existed between these parties.

Plaintiffs maintain that there are genuine issues of material fact regarding (1) Mallory’s status as Convermat’s agent of independent contractor and (2) that Convermat is liable because it retained control over load securement, and (3) approved Mallory’s unsafe work practice of loading paper rolls without the required load securement.

Plaintiffs assert that Convermat knew or should have known of the law regarding load securement. Specifically, Plaintiffs refer to the Federal Motor Carrier Safety Regulation, part 393,²² which states, in pertinent part, that “[c]argo must be contained, immobilized or secure in accordance with this subpart to prevent shifting upon or within the vehicle to such an extent that the vehicle’s stability or maneuverability is adversely affected.”²³

The minimum requirements of cargo securement (load securement) applicable to jumbo paper rolls are covered in 49 CFR § 393.122. The applicable provisions are provided below:

Each roll must be prevented from forward movement by contact with vehicle structure, other cargo, blocking or tiedowns. (2) each roll must be prevented from rearward movement by contact with other cargo, blocking, friction mats or tiedowns.

§ 393.122 What are the rules for securing paper rolls?

(a) Applicability. The rules in this section apply to shipments of paper rolls which, individually or together, weigh 2268 kg (5000 lb) or more. Shipments of paper rolls that weigh less than 2268 kg (5000 lb), and paper rolls that are unitized on a pallet, may either be secured in accordance with the rules in this section or the requirements of §§ 393.100 through 393.114.

(b) Securement of paper rolls transported with eyes vertical in a sided vehicle.

(1) Paper rolls must be placed tightly against the walls of the vehicle, other paper rolls, or other cargo, to prevent movement during transit.

(2) If there are not enough paper rolls in the shipment to reach the walls of the vehicle, lateral movement must be prevented by filling the void, blocking, bracing, tiedowns or friction mats. The paper rolls may also be banded together.

(3) When any void behind a group of paper rolls, including that at the rear of the vehicle, exceeds the diameter of the paper rolls, rearward movement must be prevented by friction mats, blocking, bracing, tiedowns, or banding to other rolls.

(i) If a paper roll is not prevented from tipping or falling sideways or rearwards by vehicle structure or other cargo, and its width is more than 2 times its diameter, it must be prevented from tipping or falling by banding it to other rolls, bracing, or tiedowns.

(ii) If the forwardmost roll(s) in a group of paper rolls has a width greater than 1.75 times its diameter and it is not prevented from tipping or falling forwards by vehicle structure or other cargo, then it must be prevented from tipping or falling forwards by banding it to other rolls, bracing, or tiedowns.

*6 (iii) If the forwardmost roll(s) in a group of paper rolls has a width equal to or less than 1.75 times its diameter, and it is restrained against forward movement by friction mat(s) alone, then banding, bracing, or tiedowns are not required to prevent tipping or falling forwards.

(iv) If a paper roll or the forwardmost roll in a group of paper rolls has a width greater than 1.25 times its diameter, and it is not prevented from tipping or falling forwards by vehicle structure or other cargo, and it is not restrained against forward movement by friction mat(s) alone, then it must be prevented from tipping or falling by banding it to other rolls, bracing or tiedowns.

(5) If paper rolls are banded together, the rolls must be placed tightly against each other to form a stable group. The bands must be applied tightly, and must be secured so that they cannot fall off the rolls or to the deck.

(6) A friction mat used to provide the principal securement for a paper roll must protrude from beneath the roll in the direction in which it is providing that securement.

Plaintiffs also submit that the Warehousing Agreement, which expressly states that Convermat maintained the right to control the manner in which its products are shipped. Plaintiffs rely on the following pertinent provisions:

ARTICLE IX. DELIVERY REQUIREMENTS

(A) No goods shall be delivered or transferred except upon receipt by [MALLORY] of complete instructions properly signed by [CONVERMAT].

….

ARTICLE X. EXTRA AND SPECIAL SERVICES

(A) Warehouse labor required for services other than ordinary handling and storage must be authorized by [CONVERMAT] in advance. Rates and charges will be provided for herein or as mutually agreed by the parties hereto (see Schedule “A”).

…

(C) Dunnage, bracing, package materials or other special supplies such as straps, mats, etc. used in shipping are chargeable to [CONVERMAT] and may be provided at a mutually agreed upon charge (see Schedule “A”).

….

ARTICLE XVII. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS

(A) [MALLORY] shall comply with all laws, ordinances, rules and regulations of Federal, State, municipal and other governmental authorities and the like in connection with the safeguarding, receiving, storing and handling of goods.

(B) [CONVERMAT] shall be responsible for advising [MALLORY] of all laws, ordinances, rules and regulations of Federal, State, municipal and other governmental authorities and the like relating specifically to the safeguarding, receiving, storing and handling of [CONVERMAT’S] products.

ARTICLE XXIX. ACCURATE INFORMATION

[CONVERMAT] will provide [MALLORY] with information concerning the goods covered by this Agreement which is accurate, complete and sufficient to allow [MALLORY] to comply with all laws and regulations concerning the storage, handling and transporting of those goods…²⁴

Plaintiffs argue that even though Mallory provided the personnel, equipment, and facility to perform the services requested by Convermat, Mallory looked to Convermat for specific instructions regarding the shipping of its products. Thus, Convermat was contractually responsible for instructing Mallory on any delivery requirements for authorizing labor and devices for securement and advising Mallory on rules/regulations specific to transporting paper rolls.

*7 In addition, Plaintiffs submit Mallory’s corporate representative deposition, which they argue creates issues of fact regarding (1) Mallory’s agency status and (2) Convermat’s right to control load securement. The Mallory Corporate representative, Tom Kaden, testified that Convermat is the shipper and Mallory acts “as an agent on behalf of the client.”²⁵ He further explained, “In general, we don’t act as a shipper, so we act as an agent for the shipper. The shipper normally is our customer.”²⁶

Plaintiffs submit Mr. Kaden’s testimony explaining language contained in the bill of lading, (“Mallory Alexander International, agents for Convermat.”)²⁷ When asked to explain, Mr. Kaden testified:

Q. “Okay. So he’s signing on behalf of Convermat. That’s the language that states he’s the agent; is that right?

A. Yes.²⁸

Mr. Kaden also testified that Convermat was responsible for instructing Mallory on load securement. In other words, all instructions for load securement were received from and/or given by Convermat, and Mallory relied upon its client (Convermat) to advise it of any special loading requirement.²⁹ Mr. Kaden testified that Convermat gave no instructions regarding the securement for the subject load.³⁰

To create a genuine issue of material fact, Plaintiffs also submit the Convermat corporate deposition testimony of Samuel Moon. Mr. Moon testified Convermat was responsible for informing Mallory as to any special instructions, including rules, ordinances, laws and regulations, that concerned load requirements of the subject paper rolls, but Convermat failed to do so.³¹

Convermat maintains that the driver and/or the motor carrier are responsible for ensuring the load is properly secured. However, Mr. Moon testified that he was not certain if Convermat communicated to Mallory or Blue Grace that the driver had the authority to incur additional services as described in the Warehousing Agreement.³² The driver, Mr. Chong, testified that he was instructed to stay in his vehicle and was not allowed to enter the loading dock due to safety concerns.³³

Plaintiffs submit the report of Randy Phares, an expert in the field of packaging, distribution, and shipping, wherein Mr. Phares opined that Convermat was contractually obligated to notify Mallory of the applicable load securement rules.³⁴

Louisiana courts have explained that the “existence of an independent contractor agreement is not necessarily dispositive,” and that courts must “inquire as to the real nature of the relationship and the degree of control exercised. Henderson v. Atmos Energy, 509 F. Supp. 3d 625, 634 (E.D. La. 2020), aff’d sub nom. Henderson v. Atmos Energy Corp., 2022 WL 3657191 (5th Cir. Aug. 25, 2022) citing Arroyo v. E. Jefferson Gen. Hosp., 956 So. 2d 661, 664 (La. App. 5 Cir. 2007).

The Court finds that Plaintiffs have submitted summary judgment evidence to create an issue of material fact for trial as to whether or not a principal/agency relationship existed between Convermat and Mallory. The Court further finds that even if there is an independent contractor relationship between Convermat and Mallory, there is a genuine issue of material fact for trial as to whether or not Convermat is liable for failing to give Mallory proper instructions regarding the securement requirements for transportation of the paper rolls, thus authorizing an unsafe work practice. See Echeerry v. Jazz Casino Co., LLC, 988 F.3d 221, 233 (5th Cir. 2021) (court finds that the evidence was sufficient for a reasonable jury to conclude that the principal authorized the unsafe work practices of its contractor, when it authorized the contractor’s movement of a manlift on the Casino’s premises without a flagman. The casino was found liable for the tortious acts of its contractor).

CONCLUSION

*8 For the reasons set forth herein, the Motion for Summary Judgment (Doc. 154) filed by Defendant, Convermat Corporation is DENIED.

THUS DONE AND SIGNED in Chambers on this 25th day of January, 2023.

All Citations

Footnotes

1 Doc. 88, ¶ 41.

2 Id.

3 Defendant’s exhibit 4, Tom Kaden deposition, pp. 28-29;187.

4 Defendant’s exhibit 6, Sergey Korolchuk deposition, pp. 26-27.

5 Defendant’s exhibit 2, Justin Chong deposition, p. 26.

6 Defendant’s exhibit 1, Sam Moon deposition, p. 76.

7 Defendant’s exhibit 3, pp. 6-7.

8 Defendant’s exhibit 3, pp. 185, 187, 196.

9 Defendant’s exhibit 4, p. 76.

10 Defendant’s exhibit 8, pp. 98-100.

11 Defendant’s exhibit 4, p. 47.

12 Plaintiffs’ Third Amended Complaint, ¶ 42.

13 Plaintiffs’ P-5, Trooper Timothy Guinn, p. 8.

14 Id. p. 25:12, 14, 15.

15 Id. p. 25:20.

16 Id.

17 Id. ¶ 41.

18 Defendant’s exhibit 3, pp. 6-7.20 Id. p. 7.

19 Id. p. 1.

20 Id. p. 7.

21 Defendant’s exhibit 4, pp. 185, 187, 196.

22 49 CFR § 393.100.

23 Id.

24 Defendant’s exhibit 3, Warehousing Agreement (emphasis added) Doc. 154-5.

25 Plaintiffs’ exhibit P-1, p. 55:4-5.

26 Id. p. 55:18-20.

27 Id. pp. 111,115.

28 Id.

29 Id. pp. 64, 168.

30 Id. p. 162.

31 Plaintiffs’ exhibit P-2, pp. 33, 55, 60, 62.

32 Id. p. 70.

33 Plaintiffs’ exhibit P-3, Chong deposition, pp. 61-80.

34 Plaintiffs’ exhibit P-4, pp. 7-8.

End of Document

Supreme Court, Appellate Division, Fourth Department, New York.

Robert MILLER, Plaintiff-Respondent,

v.

SILVAROLE TRUCKING INC., Joshua Davis, Defendants-Appellants, et al., Defendants.

804

CA 21-01770

Entered: December 23, 2022

Synopsis

Background: Pedestrian who was struck by a tractor-trailer brought action against trailer driver and driver’s employer. The Supreme Court, Monroe County, Craig J. Doran, J., granted pedestrian’s motion for summary judgment on the issue of negligence and denied defendants’ cross-motion for summary judgment on the issues of pedestrian’s alleged comparative negligence, defendants’ alleged gross negligence, and punitive damages. Defendants appealed.

Holdings: The Supreme Court, Appellate Division, held that:

^[1] driver was negligent in his operation of the trailer;

^[2] emergency doctrine did not apply to preclude a finding of negligence on part of driver;

^[3] defendants failed to establish that driver’s conduct did not constitute gross negligence and, thus, did not establish their prima facie entitlement to judgment as a matter of law on issue of gross negligence; and

^[4] evidence submitted by defendants was insufficient to establish their prima facie entitlement to judgment as a matter of law on issue of pedestrian’s alleged comparative negligence.

Affirmed as modified.

[1] Negligence

Driver of tractor-trailer was negligent in his operation of the trailer, as a required element for pedestrian to recover damages for injuries allegedly sustained when he was struck by the trailer, where driver drifted out of the lane of travel and struck pedestrian while he was walking along the side of the road.

[2] Negligence

Emergency doctrine did not apply to preclude a finding of negligence on part of driver of tractor-trailer that drifted out of lane of travel and struck pedestrian while he was walking along the side of the road, absent showing that the purported emergency was not of driver’s own making; driver placed a drink bottle in center console cup holder that fell from the holder to the floor of the cab, where it became lodged underneath accelerator pedal, and driver was only person in the vehicle.

[3] Negligence

The “emergency doctrine” recognizes that when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.

[4] Negligence

The emergency doctrine is only applicable to preclude a finding of negligence when a party is confronted by a sudden, unforeseeable occurrence not of their own making.

[5] Negligence

The emergency doctrine has no application to preclude a finding of negligence where the party seeking to invoke it has created or contributed to the emergency.

[6] Judgment

On motion for summary judgment in negligence action arising from accident in which tractor-trailer left lane of travel and struck pedestrian, trailer driver and his employer failed to establish that driver’s decision to look for and retrieve bottle that had fallen beneath accelerator pedal while trailer was still in motion, despite fact that brakes were in working order, did not constitute gross negligence and, thus, did not establish their prima facie entitlement to judgment as a matter of law on the issue of gross negligence; driver did not aver that he reacted instinctively when bottle fell below accelerator, but driver did establish that he had enough time to apply the brake and begin to slow trailer before removing his eyes from the roadway.

[7] Damages

Because the standard for punitive damages is a strict one and punitive damages will be awarded only in exceptional cases, the conduct justifying such an award must manifest spite or malice, or a fraudulent or evil motive on the part of the defendant, or such conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton.

[8] Damages

Punitive damages may be awarded based on intentional actions or actions that, while not intentional, amount to gross negligence, recklessness, or wantonness, or conscious disregard of the rights of others, or for conduct so reckless as to amount to such disregard.

[9] Judgment

Where different conclusions can reasonably be drawn from evidence, motion for summary judgment should be denied.

[10] Damages

Punitive damages are generally unavailable under a theory of vicarious liability.

[11] Judgment

On motion for summary judgment on issue of alleged comparative negligence of pedestrian struck by tractor-trailer, in the form of violation of statutes requiring pedestrians to use sidewalks when safely available and to walk along left side of road when sidewalks were not available, photographs and other evidence submitted by trailer driver and driver’s employer were insufficient to establish their prima facie entitlement to judgment as a matter of law; evidence indicated that pedestrian made right-hand turn onto road on which accident occurred, heading northbound on east side of road, despite sidewalk available on west side, but photographs demonstrated that there was no crosswalk or traffic signal that would have allowed pedestrian to safely cross to west side before accident location. N.Y. Vehicle and Traffic Law § 1156(a, b).

[12] Negligence

The question of a plaintiff’s comparative negligence almost invariably raises a factual issue for resolution by the trier of fact.

[13] Negligence

Unexcused violation of Vehicle and Traffic Law constitutes negligence per se. N.Y. Vehicle and Traffic Law § 100 et seq.

Appeal from an order of the Supreme Court, Monroe County (Craig J. Doran, J.), entered December 10, 2021. The order granted in part the motion of plaintiff for summary judgment and denied the cross motion of defendants Silvarole Trucking Inc. and Joshua Davis seeking, inter alia, partial summary judgment.

Attorneys and Law Firms

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ROBERT P. CAHALAN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

MCMAHON, MARTINE & GALLAGHER, LLP, BROOKLYN (TIMOTHY D. GALLAGHER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.

MEMORANDUM AND ORDER

*1 It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the cross motion in part and dismissing the claim for punitive damages against defendant Silvarole Trucking Inc., and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he was struck by a tractor-trailer driven by defendant Joshua Davis in the course of his employment with defendant Silvarole Trucking Inc. (Silvarole) (collectively, defendants). Plaintiff moved for summary judgment on the issue of negligence and gross negligence, and defendants cross-moved for, inter alia, summary judgment on the issue of plaintiff’s alleged comparative negligence and dismissing the complaint to the extent that it alleged gross negligence and sought punitive damages. Supreme Court granted the motion insofar as it sought summary judgment on the issue of ordinary negligence and denied the cross motion. Defendants appeal.

^{[1] [2] [3] [4] [5]}We conclude that the court properly granted the motion with respect to the issue of negligence. Plaintiff met his initial burden on the motion of establishing as a matter of law that Davis was negligent in his operation of the tractor-trailer inasmuch as Davis drifted out of the lane of travel and struck plaintiff while he was walking along the side of the road (see generally Strassburg v. Merchants Auto. Group, Inc., 203 A.D.3d 1735, 1736, 166 N.Y.S.3d 87 [4th Dept. 2022]; Bush v. Kovacevic, 140 A.D.3d 1651, 1652-1653, 33 N.Y.S.3d 623 [4th Dept. 2016]). Contrary to defendants’ contention, they failed to raise an issue of fact whether the emergency doctrine applies here (see Watson v. Peschel, 188 A.D.3d 1693, 1694-1695, 135 N.Y.S.3d 736 [4th Dept. 2020]; Aldridge v. Rumsey, 275 A.D.2d 897, 897, 713 N.Y.S.2d 393 [4th Dept. 2000]). The emergency doctrine “recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” (Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 [1991], rearg denied 77 N.Y.2d 990, 571 N.Y.S.2d 916, 575 N.E.2d 402 [1991]; see Dalton v. Lucas, 96 A.D.3d 1648, 1648, 947 N.Y.S.2d 285 [4th Dept. 2012]). However, “[t]he emergency doctrine is only applicable when a party is confronted by [a] sudden, unforeseeable occurrence not of their own making” (Watson, 188 A.D.3d at 1695, 135 N.Y.S.3d 736 [internal quotation marks omitted]). The “emergency doctrine has no application where … the party seeking to invoke it has created or contributed to the emergency” (id. [internal quotation marks omitted]). Here, Davis averred that he placed a drink bottle in the center console cup holder and that, through no action on his part, the bottle fell from the cup holder to the floor of the cab, where it became lodged underneath the accelerator pedal. Nevertheless, the record also establishes that Davis was the only person in the vehicle, and defendants did not submit evidence that any other person was responsible for the alleged emergency (see id. at 1696, 135 N.Y.S.3d 736). Thus, we conclude that defendants failed to demonstrate that the emergency encountered was not of Davis’s own making, “i.e., that [Davis] did not create or contribute to it” (id.; see Sweeney v. McCormick, 159 A.D.2d 832, 833, 552 N.Y.S.2d 707 [3d Dept. 1990]).

*2 ^{[6] [7] [8] [9]}We reject defendants’ contention that the court erred in denying that part of their cross motion seeking summary judgment dismissing plaintiff’s cause of action for gross negligence and claim for punitive damages against Davis. “Because the standard for punitive damages is a strict one and punitive damages will be awarded only in exceptional cases, the conduct justifying such an award must manifest spite or malice, or a fraudulent or evil motive on the part of the defendant, or such conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton” (Gaines v. Brydges, 198 A.D.3d 1287, 1287, 154 N.Y.S.3d 340 [4th Dept. 2021] [internal quotation marks omitted]; see Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 511, 964 N.Y.S.2d 69, 986 N.E.2d 903 [2013], rearg denied 21 N.Y.3d 976, 970 N.Y.S.2d 744, 992 N.E.2d 1088 [2013]). Punitive damages may be awarded “based on intentional actions or actions which, while not intentional, amount to gross negligence, recklessness, or wantonness … or conscious disregard of the rights of others or for conduct so reckless as to amount to such disregard” (Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 200, 551 N.Y.S.2d 481, 550 N.E.2d 930 [1990] [internal quotation marks omitted]). Viewing the evidence in the light most favorable to plaintiff, as we must in the context of defendants’ cross motion (see Gaines, 198 A.D.3d at 1288, 154 N.Y.S.3d 340; see generally Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007]), we conclude that defendants failed to meet their initial burden of establishing entitlement to judgment as a matter of law. The record does not support defendants’ contention that Davis acted instinctively in reaching for the bottle. Davis did not aver in his affidavit that he reacted instinctively, nor did he describe how long the bottle was wedged under the accelerator before he took his eyes off of the roadway, how much time passed between when he first noticed that his accelerator pedal was compromised and when he looked down to determine the cause of the obstruction, or how long it took him to retrieve the bottle. Davis did establish, however, that he had enough time to apply the brake and begin to slow the tractor-trailer before removing his eyes from the roadway. Defendants thus failed to meet their initial burden of establishing that Davis’s conduct, specifically his decision to look for and retrieve the obstacle while the tractor-trailer was in motion—despite the fact that his brakes were in working order—did not “amount to gross negligence, recklessness, or wantonness … or conscious disregard of the rights of others” (Home Ins. Co., 75 N.Y.2d at 200, 551 N.Y.S.2d 481, 550 N.E.2d 930 [internal quotation marks omitted]; see also DiNiro v. Aspen Athletic Club, LLC, 173 A.D.3d 1789, 1790, 104 N.Y.S.3d 808 [4th Dept. 2019]; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]). “Where different conclusions can reasonably be drawn from the evidence, the motion should be denied” (Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 555, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [1992]).

^[10]We agree with defendants that the court erred in denying their cross motion with respect to plaintiff’s claim against Silvarole for punitive damages, and we therefore modify the order accordingly. Plaintiff seeks to hold Silvarole liable for punitive damages under a theory of vicarious liability. However, punitive damages are unavailable under such a theory absent limited circumstances not present here (see Dischiavi v. Calli, 111 A.D.3d 1258, 1261-1262, 975 N.Y.S.2d 266 [4th Dept. 2013]; O’Connor v. Kuzmicki, 14 A.D.3d 498, 499, 788 N.Y.S.2d 414 [2d Dept. 2005]).

^{[11] [12] [13]}Finally, we reject defendants’ contention that the court erred in denying their cross motion with respect to plaintiff’s alleged comparative negligence. “[T]he question of a plaintiff’s comparative negligence almost invariably raises a factual issue for resolution by the trier of fact” (Gudenzi-Ruess v. Custom Envtl. Sys., Inc., 212 A.D.2d 952, 953, 622 N.Y.S.2d 833 [3d Dept. 1995]; see Strassburg, 203 A.D.3d at 1736, 166 N.Y.S.3d 87). Here, defendants argued that plaintiff was negligent per se because he failed to use the sidewalk that was available on the west side of the road, in violation of Vehicle and Traffic Law § 1156 (a), and failed to walk along the left side of the roadway, in violation of section 1156 (b). Although an unexcused violation of the Vehicle and Traffic Law constitutes negligence per se (see Habir v. Wilczak, 191 A.D.3d 1320, 1321, 141 N.Y.S.3d 596 [4th Dept. 2021]; Heffernan v. Logue, 40 A.D.2d 1071, 1071, 339 N.Y.S.2d 225 [4th Dept. 1972]), we conclude that defendants failed to establish that plaintiff violated those provisions of the Vehicle and Traffic Law. Section 1156 (a) requires that a pedestrian use an available sidewalk when it “may be used with safety,” and section 1156 (b) requires that a pedestrian walk along the left side of the roadway “when practicable.” Here, the evidence submitted by defendants established that plaintiff made a right-hand turn onto the road on which the accident occurred, heading northbound on the east side. The photographs submitted by defendants show that a sidewalk was available along the west side of the road, but they also demonstrate that there was no crosswalk or traffic signal that would have allowed plaintiff to safely cross to the west side before the location of the accident. Inasmuch as defendants failed to meet their initial burden by establishing prima facie that plaintiff was negligent based on his alleged violation of the relevant statutes, the court did not err in denying the cross motion with respect to plaintiff’s comparative negligence (see Allen v. Illes, 55 A.D.3d 1312, 1313, 865 N.Y.S.2d 801 [4th Dept. 2008]; see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

All Citations

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