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

Alfred A. THORPE, respondent,

v.

AUTOZONE, INC., et al., appellants.

2021–00810

(Index No. 528167/19)

Argued—October 31, 2022

January 25, 2023

Attorneys and Law Firms

Smith Sovik Kendrick & Sugnet, P.C., Syracuse, NY (David M. Katz and Steven Ward Williams of counsel), for appellants.

Abrams Law Group, P.C., Forest Hills, NY (Michael Stea and Melanie Abrams of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

*1 In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated November 30, 2020. The order, insofar as appealed from, denied the motion of the defendant Lease Plan USA, Inc., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, and granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability against the defendant Jonathan Harman.

ORDERED that the appeal by the defendant AutoZone, Inc., is dismissed, as that defendant is not aggrieved by the portions of the order appealed from (see CPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156, 904 N.Y.S.2d 132); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendants Lease Plan USA, Inc., and Jonathan Harman; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On December 10, 2019, the plaintiff, a pedestrian, allegedly was injured when he was struck by a vehicle operated by the defendant Jonathan Harman on Flatbush Avenue in Brooklyn as Harman was making a left-hand turn into a parking lot. The vehicle was owned by the defendant Lease Plan USA, Inc. (hereinafter Lease Plan), and leased to the defendant’s employer, the defendant AutoZone, Inc. (hereinafter AutoZone). The plaintiff thereafter commenced this action to recover damages for personal injuries, alleging, inter alia, that the defendants were negligent in failing to avoid contact with him. Prior to answering the complaint, Lease Plan moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it on the ground that, as the lessor of the vehicle that struck the plaintiff, it was shielded from liability for the plaintiff’s injuries by the Graves Amendment (see 49 USC § 30106). The plaintiff opposed Lease Plan’s motion and cross-moved for summary judgment on the issue of liability. In an order dated November 30, 2020, the Supreme Court, inter alia, denied Lease Plan’s motion on the ground that it was premature and granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability against Harman. The defendants appeal.

“ ‘A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries’ ” (Shah v. MTA Bus Co., 201 A.D.3d 833, 834, 161 N.Y.S.3d 311, quoting Hai Ying Xiao v. Martinez, 185 A.D.3d 1014, 1014, 126 N.Y.S.3d 369; see generally Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366). “A driver is bound to see what is there to be seen with the proper use of his or her senses” (Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 790, 111 N.Y.S.3d 92). Thus, in a pedestrian-vehicle accident case, a plaintiff moving for summary judgment on the issue of liability establishes his or her prima facie entitlement to judgment as a matter of law “by demonstrating, prima facie, that the defendant was negligent in the operation of his [or her] vehicle in striking [the plaintiff]” (Mims v. Hobbs, 191 A.D.3d 870, 871, 138 N.Y.S.3d 906; see Vehicle and Traffic Law § 1146[a]; Marks v. Rieckhoff, 172 A.D.3d 847, 848, 101 N.Y.S.3d 63; Simeone v. Cianciolo, 118 A.D.3d 864, 865, 988 N.Y.S.2d 257).

Here, in support of his cross-motion, the plaintiff submitted his own affidavit, which demonstrated that he was walking on the sidewalk along Flatbush Avenue when he was struck by Harman’s vehicle as it was making a left turn across the sidewalk into an AutoZone parking lot. This evidence was sufficient to establish the plaintiff’s prima facie entitlement to judgment as a matter of law on the issue of liability against Harman (see Mims v. Hobbs, 191 A.D.3d 870, 138 N.Y.S.3d 906; Gaston v. Vertsberger, 176 A.D.3d 919, 920, 111 N.Y.S.3d 314; Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 111 N.Y.S.3d 92; Huang v. Franco, 149 A.D.3d 703, 51 N.Y.S.3d 188; Simeone v. Cianciolo, 118 A.D.3d at 865, 988 N.Y.S.2d 257).

In opposition, Harman failed to raise a triable issue of fact. Although Harman submitted his own affidavit, which conflicted with certain aspects of the plaintiff’s affidavit, Harman’s affidavit established that his vehicle struck the plaintiff as the plaintiff was crossing in front of the vehicle while Harman was pulling into the parking lot—a location in which it could be reasonably expected that a pedestrian might appear—and therefore, Harman failed to “exercise due care to avoid colliding with any … pedestrian” (Vehicle and Traffic Law § 1146[a]; cf. Mancia v. Metropolitan Tr. Auth. Long Is. Bus, 14 A.D.3d 665, 790 N.Y.S.2d 31). Contrary to Harman’s contention, this branch of the plaintiff’s cross-motion was not premature (see CPLR 3212[f]; Sapienza v. Harrison, 191 A.D.3d 1028, 142 N.Y.S.3d 584; Sterling Natl. Bank v. Alan B. Brill, P.C., 186 A.D.3d 515, 518, 129 N.Y.S.3d 151; Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770, 989 N.Y.S.2d 302). Accordingly, the Supreme Court properly granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability against Harman.

*2 The Supreme Court also properly denied Lease Plan’s motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, in effect, for failure to state a cause of action, albeit we affirm that determination on a ground different from that relied upon by the court. Contrary to the court’s determination, Lease Plan’s motion, which had not been converted into a motion for summary judgment, was not premature (see id. §§ 3211[d]; 3212[f]). Nonetheless, the motion was properly denied. “Pursuant to the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” (Harewood v. Zip Car, 189 A.D.3d 1192, 1193, 134 N.Y.S.3d 264; see Cukoviq v. Iftikhar, 169 A.D.3d 766, 767, 93 N.Y.S.3d 710). Here, by submitting an affidavit from its chief commercial officer, Ricardo Fonzaghi, Lease Plan demonstrated that it was the owner of the vehicle that Harman was driving and it was engaged in the business of leasing motor vehicles (see Cukoviq v. Iftikhar, 169 A.D.3d at 767, 93 N.Y.S.3d 710; Aviaev v. Nissan Infiniti LT, 150 A.D.3d 807, 808, 55 N.Y.S.3d 297). However, to the extent that the plaintiff’s theory of negligent maintenance or mechanical malfunction was supported by factual allegations, Lease Plan failed to establish, through the submission of documentary evidence, that the allegations were not facts at all (see CPLR 3211[a][7]; Harewood v. Zip Car, 189 A.D.3d at 1193, 134 N.Y.S.3d 264).

DILLON, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.

All Citations

End of Document

United States District Court, N.D. Texas, Dallas Division.

La Wanda GRAHAM, Plaintiff,

v.

Jemarcus LEWIS, et al., Defendants.

Civil Action No. 3:21-CV-1274-D

Signed January 9, 2023

Attorneys and Law Firms

Jibraeel Zaidi, Shelly Greco, Witherite Law Group, Dallas, TX, for Plaintiff.

Zach T. Mayer, Van Trey Parham, III, Mayer LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, SENIOR JUDGE

*1 In this removed action arising from a vehicle accident, defendants Jemarcus Lewis (“Lewis”) and KLLM Transport Services, LLC (“KLLM”) move for partial summary judgment, seeking to dismiss plaintiff LaWanda Graham’s (“Graham’s”) claims against KLLM for negligent hiring, negligent retention, negligent entrustment, and any other claims that assert that KLLM is derivatively liable for Lewis’ action through KLLM’s own alleged ordinary negligence. For the reasons that follow, the court grants the motion.

I

This lawsuit arises from a vehicle accident that occurred in 2020 in Lancaster, Texas.¹ As defendant Lewis was changing lanes, the tractor-trailer he was operating collided with a vehicle being driven by plaintiff Graham, injuring Graham. KLLM has stipulated that, at the time of the accident, “Lewis was operating a commercial motor vehicle as an agent of KLLM Transport Services, LLC, in the course and scope of his employment.” Ds. Stip. as to Course and Scope (ECF No. 41) at 1.

Graham sued defendants in state court, alleging that Lewis was negligent and grossly negligent in operating the tractor-trailer. She also asserted that KLLM was vicariously liable for Lewis’ negligence; that KLLM acted negligently in hiring, retaining, and entrusting operation of the tractor-trailer to Lewis; and that KLLM was grossly negligent. After defendants removed the case to this court, Graham amended her complaint² and abandoned her claims of gross negligence. Defendants now move for partial summary judgment, contending that KLLM’s stipulation to vicarious liability renders Graham’s direct negligence claims against KLLM inadmissible. Graham has not responded to the motion,³ and it is ripe for decision.

II

Although Graham’s failure to respond to defendants’ motion does not permit the court to enter a “default” summary judgment, see, e.g., Tutton v. Garland Independent School District, 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.), “[a] summary judgment nonmovant who does not respond to the motion is relegated to her unsworn pleadings, which do not constitute summary judgment evidence,” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). Moreover,

*2 [i]f a party fails … to properly address another party’s assertion of fact as required by Rule 56(c), the court may … (2) consider the fact undisputed for purposes of the motion; [and] (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it[.]

Fed. R. Civ. P. 56(e)(2), (3).

III

Defendants contend that, as a matter of state law, Graham cannot recover on her ordinary negligence claims against KLLM both directly and based on vicarious liability.

A

Texas tort law, as the “governing law,” dictates what facts are material to the instant matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Texas courts have held that “[w]here only ordinary negligence is alleged, the case law supports [the] contention that negligent hiring or negligent entrustment and respondeat superior are mutually exclusive modes of recovery.” Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App. 2002, pet. denied). Put differently,

[i]n cases where the plaintiff was relying upon the theory of negligent entrustment of a motor vehicle, the courts have refused to permit the plaintiff to proceed with this separate ground of recovery against the owner where the derivative liability of the owner has already been established by an admission or stipulation of agency or course and scope of employment.

Arrington’s Est. v. Fields, 578 S.W.2d 173, 178 (Tex. App. 1979, writ ref’d n.r.e.); see also Perez v. Boecken, 2020 WL 3452990, at *5 (W.D. Tex. June 23, 2020); FTS Int’l Servs., LLC v. Patterson, 2020 WL 5047913, at *4 (Tex. App. 2020, no pet. h.) (mem. op.). Thus if the defendant-employer admits vicarious liability, by definition the employer “assumes liability for any negligence on the part of [the employee] … and, consequently, Plaintiff’s direct negligence claims against [the employer] are irrelevant.” Fuller v. Werner Enters., Inc., 2018 WL 3548886, at *2 (N.D. Tex. July 24, 2018) (Toliver, J.) (citing Rosell, 89 S.W.3d at 654).⁴

Where, as here, the court is exercising diversity jurisdiction, it is Erie-bound⁵ to apply the law as would a Texas court. See, e.g., Allstate Ins. Co. v. Shelby, 672 F. Supp. 956, 958 (N.D. Tex. 1987) (Fitzwater, J.). When there is no binding decision of the Supreme Court of Texas on a question, this court must make an “Erie-guess,” i.e., a prediction of how that court would resolve the issue if presented with the same case. See, e.g., Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 954 (5th Cir. 2009)). “While decisions of intermediate state appellate courts provide guidance, they are not controlling. If a state’s highest court has not ruled on the issue in question, a federal court must determine, to the best of its ability, what the highest court of the state would decide.” United Tchr. Assocs. Ins. Co. v. Union Lab. Life Ins. Co., 414 F.3d 558, 565-66 (5th Cir. 2005) (citations omitted). Based on the court’s review of Texas law, it predicts that the Supreme Court of Texas would hold that where, as here, the employer has stipulated to agency and course and scope of employment, the plaintiff cannot recover on her direct ordinary negligence claims against the employer as a matter of law.

B

*3 In light of the foregoing rule, the relevant facts for the purpose of deciding defendants’ motion for partial summary judgment are whether Graham alleges gross negligence or only ordinary negligence and whether KLLM has stipulated that Lewis was operating the tractor-trailer as the agent of KLLM in the course and scope of his employment. There is no dispute regarding these facts. Graham’s second amended complaint alleges only ordinary negligence. And KLLM has stipulated that Lewis was acting within the course and scope of his employment, as an agent of KLLM, when the accident allegedly occurred. Accordingly, defendants have established that there are no genuine issues of material fact with respect to whether Graham’s direct negligence claim against KLLM can proceed under Texas law, and that KLLM is entitled to summary judgment as a matter of law. The court therefore grants defendants’ motion for partial summary judgment and dismisses Graham’s claims against KLLM for negligent hiring, negligent retention, negligent entrustment, and any other claims that assert that KLLM is derivatively liable for Lewis’ action through KLLM’s own alleged ordinary negligence.

* * *

For the foregoing reasons, defendants’ motion for partial summary judgment is granted.

SO ORDERED.

All Citations

Footnotes

1 The court recounts the facts in the light most favorable to Graham, as the summary judgment nonmovant, and draws all reasonable inferences in her favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.).

2 Graham amended her state-court original petition once while the case was still in state court. She then amended her complaint a second time after the case was removed to this court. Her operative complaint is her second amended complaint.

3 Graham’s response was due January 6, 2023. See N.D. Tex. Civ. R. 7.1(e) (“A response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.”). Because of the impending trial setting, the court is not awaiting a possible tardy response from Graham before entering a ruling.

4 The Texas legislature has likewise endorsed this rule, albeit after the instant suit was filed. Tex. Civ. Prac. & Rem. Code Ann. § 72.054 (West 2021).

5 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

End of Document