United States District Court for the Western District of Texas, San Antonio Division

May 4, 2022, Decided; May 4, 2022, Filed

SA-20-CV-01102-XR

Reporter

2022 U.S. Dist. LEXIS 97413 *

THERESA ACUNA, ASHLEY ACUNA, Plaintiffs, vs. COVENANT TRANSPORT, INC., CTG LEASING COMPANY, CHARLES JAMES LEACH, Defendants.

Core Terms

summary judgment, recommendations, pleadings, genuine, report and recommendation, district court, non-movant, summary judgment motion, judicial admission, undersigned, invoices, Leasing, parties, entity

Counsel:  [*1] For Theresa Acuna, Ashley Acuna, Plaintiffs: Melissa Robbins, LEAD ATTORNEY, Villareal & Begum Law Firm, San Antonio, TX.

For Covenant Transport, Inc., CTG Leasing Company, Charles James Leach, Defendants: Jose J. Trevino, Jr., LEAD ATTORNEY, Valdez & Trevino, San Antonio, TX; Mathews Jon Metyko, Valdez and Trevino PLLC, San Antonio, TX.

Judges: ELIZABETH S. (“BETSY”) CHESTNEY, UNITED STATES MAGISTRATE JUDGE. Honorable United States District Judge Xavier Rodriguez.

Opinion by: ELIZABETH S. (“BETSY”) CHESTNEY

Opinion

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Xavier Rodriguez:

This Report and Recommendation concerns Defendants’ Motion for Summary Judgment on Improper Party [#165], which was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In making this recommendation, the undersigned has also considered Plaintiffs’ response to the motion [#177] and the arguments of counsel at the live hearing before the undersigned on April 26, 2022. For the reasons set forth below, it is recommended that Defendants’ motion be denied.

I. Background

This is a personal-injury action arising out of a motor vehicle accident between a vehicle operated by [*2]  Plaintiff Theresa Acuna, in which Plaintiff Ashley Acuna was a passenger, and a tractor-trailer operated by Defendant Charles Leach that was allegedly owned or leased by Defendants Covenant Transport, Inc. (“Covenant”), and CTG Leasing Company (“CTG”). Plaintiffs allege they sustained serious injuries from the accident due to the negligence of Defendants. Both Plaintiffs have undergone spinal surgeries, which they claim were necessary treatment for their injuries. The live pleading, Plaintiffs’ Second Amended Complaint [#27], asserts causes of action for negligence against Leach and negligence based on a theory of respondeat superior liability against Covenant and CTG. The District Court previously dismissed all claims against Covenant and CTG based on their direct negligence in entrusting, hiring, training, and supervising Leach, among other theories.

Defendants have filed a motion for summary judgment, which seeks summary judgment on all claims against CTG on the basis that it is not a proper party to this suit. The motion is ripe for the Court’s review.

II. Summary Judgment

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions [*3]  on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only 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 party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). “After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary [*4]  judgment will be granted.” Westphal, 230 F.3d at 174.

III. Analysis

Defendants’ motion for summary judgment argues that CTG is not a proper party to this suit because it was not an employer of Leach so cannot be vicariously liable for his negligence in the car accident underlying this action. In support of this argument, Defendants provide the Court with the following summary judgment evidence: a crash report following the accident referencing Covenant and not CTG as the owner/lessee of the truck at issue [#165-1]; employment records for Leach listing Covenant and not CTG as the company conducting pre-employment screening of Leach [#165-2]; and trip documents and invoices prepared by Covenant and not CTG [#165-3].

Plaintiffs respond that Defendants are judicially estopped from making the argument that CTG was not Leach’s employer because they have admitted in numerous pleadings, court filings, and discovery responses in this case that CTG is the same entity as Covenant and that Leach was an employee of both companies. In addition to providing the Court with the referenced pleadings and discovery responses [#177-1, #177-2, #177-3, #177-4, #177-9], Plaintiffs submitted the following additional summary judgment [*5]  evidence in opposition to Defendants’ motion: Tennessee Department of Revenue Official Vehicle Registration for the truck in the accident at issue listing CTG, not Covenant, as the lessee/registrant [#177-5] and various checkoff lists and repair invoices for the vehicle completed by or invoiced to CTG or reflecting both Covenant and CTG as the same entity, e.g., “Covenant Transport (CTG Leasing)” [#177-6, #177-7, #177-8].

On this record, Defendants have not established as a matter of law that CTG is not a proper party to this lawsuit. The parties agree that Texas law governs this diversity action. The doctrine of respondeat superior liability imposes liability on an employer for the tortious acts of its employees when the employee’s negligence, while acting with the course and scope of his employment, is the proximate cause of injury to another. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). To defeat a claim of vicarious liability, Defendants must establish as a matter of law either that: (1) Leach was not an employee; (2) no negligent act occurred; or (3) Leach was not acting within the course and scope of his employment at the time of the collision. See Drooker v. Saeilo Motors, 756 S.W.2d 394, 396 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (citing Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972)).

Defendants’ assertion that Leach was not an employee of CTG [*6]  is a fact issue that is not resolved by Defendants’ proffer of discrete summary judgment evidence. Defendants’ evidence, such as the crash report, employment records, and trip documents and invoices reflecting Covenant and not CTG merely establish that Covenant is Leach’s employer. These documents do not establish that CTG is not also Leach’s employer. Plaintiffs’ summary judgment evidence—the Tennessee Department of Revenue Vehicle Registration and trip checklists and repair invoices referencing CTG and Covenant/CTG collectively—raise a genuine issue of material fact as to the status of CTG as Leach’s employer precluding summary judgment.

Additionally, the undersigned agrees with Plaintiffs that Defendants are judicially estopped from taking the position at this stage in the proceedings that CTG is not an employer of Leach. In the Notice of Removal filed by Defendants, Defendants refer to Covenant and CTG collectively as “Covenant” and expressly state that “CTG Leasing Company is the same entity as Covenant” multiple times throughout the filing, including in the jurisdictional allegations regarding Covenant’s and CTG’s citizenship. (Notice of Removal [#177-1], at 1, 2.) Subsequently, [*7]  in an early motion to dismiss, Defendants reiterate that “CTG Leasing Company is Covenant, they are the same entity.” (Mtn. to Dismiss [#177-2], at 1.) Moreover, Defendants have collectively admitted in their discovery responses that Leach was their employee at the time of the accident and that they entrusted the vehicle driven by Leach for their benefit and the scope and purpose of employment with both companies. (Resps. to Requests for Admission [#177-3], at 3.) These representations to the Court are binding, and Defendants are judicially estopped from contradicting these admissions.

“Judicial estoppel is an equitable doctrine that prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.” Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir. 2008) (internal citation and quotation omitted). Moreover, “[a] judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them. Although a judicial admission is not itself evidence, it has the effect of withdrawing it from contention.” Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001) “[F]actual assertions in pleadings . . . are considered to be judicial admissions conclusively binding [*8]  on the party who made them.” White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983). A party therefore may not rebut a judicial admission made in its pleadings with new evidence or testimony. See Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987).

This is precisely what Defendants are attempting to do here after years of litigation representing to the Court and Plaintiffs that Covenant and CTG are one and the same entity. Accordingly, the motion for summary judgment should be denied not only due to the failure of Defendants to carry their summary judgment burden on the fact question of employer status but also because Defendants’ own judicial admissions throughout the pleadings and discovery in this case preclude them from taking a contrary position on the eve of trial.

IV. Conclusion and Recommendation

Having considered Defendants’ motion, Plaintiffs’ response, the summary judgment evidence, and the arguments of counsel at the live hearing, the undersigned recommends that Defendants’ Motion for Summary Judgment on Improper Party [#165] be DENIED.

V. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered [*9]  as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party’s failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal [*10]  conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED this 4th day of May, 2022.

/s/ Elizabeth S. (“Betsy”) Chestney

ELIZABETH S. (“BETSY”) CHESTNEY

UNITED STATES MAGISTRATE JUDGE

End of Document

United States District Court for the Eastern District of Pennsylvania

May 25, 2022, Decided; May 25, 2022, Filed

CIVIL ACTION NO. 21-1387-KSM

Reporter

2022 U.S. Dist. LEXIS 93629 *

JASMINE BROWN, Plaintiff, v. HARRY WHITE, et al., Defendants.

Core Terms

cell phone, punitive damages, reckless, reasonable jury, summary judgment, recklessly, Partial, driving, time of an accident, tractor trailer, usage

Counsel:  [*1] For JASMINE BROWN, Plaintiff: KEVIN CLANCY BOYLAN, RYAN D. HURD, LEAD ATTORNEYS, MORGAN & MORGAN, PHILADELPHIA, PA.

For HARRY WHITE, GREYHOUND LINES, INC., FIRSTGROUP AMERICA, Defendants: JUSTIN A. BAYER, KANE PUGH KNOELL TROY & KRAMER LLP, NORRISTOWN, PA.

Judges: KAREN SPENCER MARSTON, J.

Opinion by: KAREN SPENCER MARSTON

Opinion

MEMORANDUM

MARSTON, J.

Defendant Harry White was driving a Greyhound bus down the Pennsylvania Turnpike when he crashed into a tractor trailer. (Doc. No. 32-2 ¶ 1.) Unfortunately, the accident caused Plaintiff Jasmine Brown, a passenger on the bus, to suffer injuries. (Doc. No. 1-1 ¶ 33.) Ms. Brown brings suit against Mr. White, alleging that his negligence and/or recklessness caused the accident. (Id. ¶ 31-43.) Ms. Brown also asserts claims against Defendants Greyhound Lines, Inc. (“Greyhound”) and FirstGroup America (“FirstGroup”), Mr. White’s employers at the time of the accident, arguing that they are vicariously liable for Mr. White’s negligence and/or recklessness and that they were negligent and/or reckless in hiring, retaining, and supervising Mr. White. (Id. ¶¶ 44-56.) Ms. Brown seeks compensatory and punitive damages from all Defendants on all counts. (Id. at 16-25.)

Presently before [*2]  the Court is Defendants’ Motion for Partial Summary Judgment on Ms. Brown’s punitive damages request. (Doc. No. 30.) For the reasons that follow, Defendants’ motion is denied.

I. BACKGROUND

A. Factual Background

Viewing the evidence in the light most favorable to Ms. Brown, the relevant facts are as follows.

Early in the morning of August 1, 2020, Ms. Brown boarded an overnight Greyhound bus from New York to Pittsburgh. (Doc. No. 32 at 5.) Mr. White drove the bus for the entirety of the trip, including at the time of the accident. (Doc. No. 32-2 ¶ 8.) Ms. Brown spent most of the trip sleeping, but she woke up twice when the bus veered onto rumble strips on the edge of the road. (Id. ¶ 6.) Ms. Brown was awoken again at 4:45 a.m. when the bus rear-ended a tractor trailer ahead of it. (Id. ¶ 1.) The tractor trailer was illuminated and clearly visible; however, Mr. White did not see it until immediately before impact. (Id. ¶¶ 28-30.) The bus was traveling at 72 miles per hour,¹ and, by the time Mr. White realized he was about to hit the tractor trailer, it was too late for him to apply the brakes. (Id. ¶¶ 28-30.)

Because Ms. Brown had been asleep in the moments leading up to the accident, she [*3]  was not able to testify about what may have caused the accident, but cameras on the bus’s dashboard captured footage of Mr. White driving the bus in the moments leading up to the accident. (Doc. No. 32-3, Ex. C.) Although Mr. White was awake at the time of the accident, the dashcam video appears to show him looking down at a glowing device in his lap just before the collision. (Id.) The video also appears to show that Mr. White’s left hand did not grab onto the wheel until the moment of the impact. (Id.)

In discovery, Ms. Brown sought to download data from Mr. White’s cell phone detailing his cell phone usage at the time of the accident. (Doc. No. 32-2 ¶ 11.) Her expert was unable to do so due to “equipment issues”; however, he was able to complete a “partial download.” (Id.) The partial download revealed that Mr. White did not make any phone calls or send any text messages from 12:00 a.m. to 6:00 a.m. on August 1 but used 79878.0 KB of “mobile data” from 12:00 a.m. to 3:00 a.m. and 121.54 MB of “mobile data” from 3:00 a.m. to 6:00 a.m. (See Doc. No. 30-7 at 3.) Because the expert was only able to conduct a partial download, the records do not detail how Mr. White used the data, only [*4]  that he used the data.² (Doc No. 32-2 ¶ 11.)

B. Procedural History

Ms. Brown initiated this action in the Philadelphia County Court of Common Pleas on March 22, 2021 (Doc. No. 1-1), and Defendants timely removed the action to this Court (Doc. No. 1). Upon removal, Defendants moved to dismiss Ms. Brown’s request for punitive damages (Doc. No. 6). The Court denied the motion to dismiss (Doc. No. 18), and the parties conducted discovery for several months.

Following a period of discovery, Defendants moved for summary judgment on Ms. Brown’s punitive damages request. (Doc. No. 30.) Defendants argue that punitive damages are not available because the record evidence shows that Defendants acted, at most, negligently, and punitive damages are only available where a defendant acted intentionally, recklessly, or maliciously. (Doc. No. 30-9 at 5-6.) Ms. Brown opposes the motion, arguing that a reasonable jury could find that Mr. White acted recklessly by using a cell phone while driving a bus with 22 passengers in the middle of the night. (Doc. No. 32 at 18.)

II. LEGAL STANDARD

Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together [*5]  with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is material if it “might affect the outcome of the suit under the governing law.” Id. at 248. “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. “[T]he inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quotation marks and alterations omitted).

III. DISCUSSION

Under Pennsylvania law,³ punitive damages are an “extreme remedy” that may be awarded “only when the plaintiff has established that the defendant has acted in an outrageous fashion due to either the defendant’s evil motive or [*6]  his reckless indifference to the rights of others.” Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 445 (Pa. 2005) (cleaned up). A defendant acts recklessly where “his conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent.” Id. That is, punitive damages are available only where a defendant has acted intentionally, willfully, or recklessly—they are not available where a defendant merely acted negligently. Id. at 445-46.

Here, there are no allegations that Mr. White acted intentionally or willfully, so punitive damages are available only if a reasonable jury could find that Mr. White’s conduct was reckless. Ms. Brown argues that Mr. White’s decision to use his cell phone while operating the bus was reckless. (Doc. No. 32 at 16.)

Although cell phone usage while driving, without more, is typically insufficient to support a finding of recklessness, courts applying Pennsylvania law have held that cell phone usage may rise to the level of recklessness where aggravating factors render the cell phone usage particularly egregious. For instance, in Tjokrowidjojo v. San Lucas, CIVIL ACTION NO. 20-6564, 2021 U.S. Dist. LEXIS 76493, 2021 WL 1561956, at *3 (E.D. Pa. Apr. 21, 2021), the court found that the defendant may have acted recklessly where he used a cell phone while operating a commercial [*7]  freightliner, hit the plaintiff’s car, and continued driving because he was so distracted that he did not realize he hit the car. Likewise, in Simpson v. Buchanan, CIVIL ACTION NO. 20-2583, 2020 U.S. Dist. LEXIS 139433, 2020 WL 4504444, at *1 (E.D. Pa. Aug. 5, 2020), the plaintiff, who was stopped at a red light, noticed that the defendant was about to hit her car. She beeped the horn and inched her vehicle forward, but the defendant was “looking down and was not paying attention to the roadway” and rear ended the plaintiff’s car. Id. The court concluded that a reasonable jury could find the defendant had acted recklessly given the allegations that he was looking down and did not realize he was about to be in an accident despite the plaintiff’s attempts to catch his attention. 2020 U.S. Dist. LEXIS 139433, [WL] at *4. Contra Piester v. Hickey, No. 11-cv-04720, 2012 U.S. Dist. LEXIS 37308, 2012 WL 935789, at *3-4 (E.D. Pa. Mar. 20, 2012) (dismissing the punitive damages request where the complaint alleged that the defendant “‘looked at’ his cellular telephone immediately preceding the accident” but did not allege additional facts making the defendant’s conduct reckless); Xander v. Kiss, No. CV-2010-11945, 2012 Pa. Dist. & Cnty. Dec. LEXIS 1, 2012 WL 168326, at *1 (Pa. Ct. Comm. Pl. Jan. 11, 2012) (“In our view, the allegations in the Amended Complaint do not rise to the level of egregiousness required for a punitive damages claim. . . . [T]he Defendant simply lost control of his vehicle while speaking on his cellular telephone . . . .”).

As a [*8]  threshold matter, Defendants argue that punitive damages are not available because Ms. Brown “has not produced any evidence to support [her] claim of recklessness through cell phone use.”⁴ (Doc. No. 30-9 at 7.) The Court is not persuaded by this argument—a reasonable jury could find that Mr. White was using his cell phone. The dashcam video from the ten seconds before the accident is admittedly difficult to make out, but it appears to show a glowing light in Mr. White’s lap near his left hand, which a reasonable jury could understand to be his cell phone. (See Doc. No. 32-2, Ex. C.) This conclusion could also be bolstered by the fact that Mr. White’s cell phone records show that he used 121.54 MB of data in the three-hour window around the accident. (Doc. No. 30-7 at 3.) Of course, the jury may find otherwise at trial. But the Court cannot make credibility determinations at this stage, and, viewing the record in the light most favorable to Ms. Brown, a reasonable jury could find that Mr. White was using his cell phone at the time of the accident.

A reasonable jury could also find that Mr. White’s decision to use his cell phone in the moments leading up to the accident was reckless, [*9]  as there are several aggravating factors that could render Mr. White’s cell phone usage particularly egregious: (1) he was driving a large bus with 22 passengers on board through the night; (2) he was driving as fast as the bus could possibly go; (3) he was driving with only one hand on the steering wheel; and (4) he never even tapped the brakes prior to his rear-end collision with the tractor trailer. Although the jury may view the evidence differently, the Court cannot judge the credibility of witnesses and is unable to determine as a matter of law that Mr. White did not act recklessly. See Tjokrowidjojo, 2021 U.S. Dist. LEXIS 76493, 2021 WL 1561956, at *3; Simpson, 2020 U.S. Dist. LEXIS 139433, 2020 WL 4504444, at *4; see also Pennington v. King, Civil Action No. 07-4016, 2009 U.S. Dist. LEXIS 12779, 2009 WL 415718, at *6 (E.D. Pa. Feb. 19, 2009) (holding that a reasonable jury could find that the defendant had acted recklessly where he “was distracted by his cellular phone conversation and was operating his tractor-trailer in a wildly erratic manner”).

Viewing the evidence in the light most favorable to Ms. Brown, a reasonable jury could find that Mr. White was reckless, so punitive damages are available.

IV. CONCLUSION

For these reasons, Defendants’ motion for partial summary judgment is denied.⁵ An appropriate Order follows.

ORDER

AND NOW, this 25th day of May, 2022, upon consideration of Defendants’ Partial Motion for Summary [*10]  Judgment as to Punitive Damages (Doc. No. 30), Plaintiff’s Brief in Opposition to Defendants’ Partial Motion for Summary Judgment (Doc. No. 32), and Defendants’ Memorandum of Law in Reply to Plaintiff’s Opposition to Defendants’ Motion for Partial Summary Judgment (Doc. No. 33-1), it is ORDERED that the motion is DENIED as to Counts I, II, and IV.

IT IS SO ORDERED.

/s/ Karen Spencer Marston

KAREN SPENCER MARSTON, J.

End of Document

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¹ Defendant Greyhound’s corporate designee testified that the bus is “governed” at a speed of 68 miles per hour, so to accelerate the bus to 72 miles per hour, Mr. White would have had to have his foot “fully down on the pedal” while traveling downhill. (Doc. No. 32-3 at 20.)

² It is not clear to the Court how Ms. Brown could use the information obtained from the partial download without an expert report explaining what the “mobile data” represents.

³ The parties agree that Pennsylvania law governs this dispute. (See Doc. No. 30-9 at 5; Doc. No. 32 at 9.)

⁴ Defendants also argue that Ms. Brown “has not produced any evidence to support [her] claim of recklessness through . . . sleep.” (Doc. No. 30-9 at 7.) We agree with Defendants that Mr. White was clearly awake at the time of the accident—even Ms. Brown concedes this. (See Doc. No. 32-2 ¶ 10.)

⁵ As there is no evidence (and the parties do not argue) that Defendants Greyhound and FirstGroup were reckless in hiring, retaining, and supervising Mr. White, the Court finds that punitive damages are not available for Counts III and V.