United States District Court for the Southern District of Illinois

March 7, 2022, Decided; March 7, 2022, Filed

Case No. 3:20-cv-1355-JPG

Reporter

2022 U.S. Dist. LEXIS 39945 *; 2022 WL 672460

LERON LEWIS, JR, Plaintiff, v. HIRSCHBACH MOTOR LINES, INC. and ERIC JEROME CAMPELL, SR., Defendants.BRANDON JAMAL MOFFETT, Plaintiff, v. HIRSCHBACH MOTOR LINES, INC. and ERIC JEROME CAMPELL, SR., Defendants/Third Party Plaintiffs, v. BRANDON JAMAL MOFFETT, LERON LEWIS, JR., DATWAY LLC, MOTOR CARRIER CONSULTANTS, LLC., J.B. HUNT TRANSPORT, INC., MCGRIFF TIRE, CO., INC., NAVISTAR, INC., BENDIX, COMMERCIAL VEHICLE SYSTEMS LLC, and BIG TEX TRAILER MANUFACTURING, LLC, Third Party Defendants.

Prior History: Lewis v. Hirschbach Motor Lines, Inc., 2020 U.S. Dist. LEXIS 240965 (S.D. Ill., Dec. 22, 2020)

Core Terms

willful, wanton conduct, motion to dismiss, complaints, respondeat superior, gross negligence, allegations, entrustment, training, negligent hiring, wanton, punitive damages, supervising, misconduct, discovery, retention, motions, courts, cause of action, recitation, semi-truck

Counsel:  [*1] For Leron Lewis, Jr., Plaintiff: Danylo Y. Terleckyj, John A. Stefani, Kenneth H. Levinson, Levinson & Stefani, Chicago, IL.

Judges: J. PHIL GILBERT, DISTRICT JUDGE.

Opinion by: J. PHIL GILBERT

Opinion

MEMORANDUM AND ORDER

I. Introduction

This matter comes before the Court on Defendant Hirschbach Motor Lines, Inc. (“Defendant” or “Hirschbach”) and Eric Campbell (“Defendant” or “Campbell”) (collectively, “Defendants”) Motions to Dismiss against Plaintiff Leron Lewis, Jr. (“Plaintiff” or “Lewis”) and Plaintiff Brandon Moffett’s Complaint (“Plaintiff” or “Moffett”), (collectively, “Plaintiffs”). Defendants have filed two separate motions — a Motion to Dismiss Count III of Lewis’ Complaint (Doc. 52), and Motion to Dismiss Count III and VI of Plaintiff Moffett’s Complaint (Doc. 53)¹ . Moffett and Lewis submitted their joint responses at Doc. 71 and 72, respectively.

II. Background

Plaintiffs allege they were injured in an accident with a semi-truck driven by Defendant Campbell on December 13, 2020, in Franklin County, Illinois on Interstate 57. Plaintiffs allege that they were injured when a tractor-trailer, operated by Defendant Campbell, [*2]  driving within the scope of his employment with Hirschbach, collided with their stopped vehicle on Interstate 57. Lewis alleges he sustained severe injuries to the right side of his body, along with other bodily injuries and suffers pain as a result of this accident. Moffett alleges bodily injury, mental suffering, disfigurement and other damages. Lewis filed this suit eight days after the accident (Doc. 1). Plaintiff Moffett filed suit 22 days after the accident. Their suits were then consolidated (Doc. 25).

In Count I, Lewis asserts a claim against Campbell, alleging he was negligent in operating his semi-truck at a speed too great for conditions, failing to keep a proper lookout, failing to avoid a collision with the vehicle operated by Lewis, striking Lewis’ vehicle, failing to slow or stop, failing to adhere to 49 CFR 300, and failing to maintain his semi-truck. Lewis Compl at ¶ 4. Count II of Lewis’ Complaint asserts a negligence claim against Hirschbach under a theory of respondeat superior. Count III asserts a claim of direct negligence under a theory of negligent hiring, training, supervision, retention, and/or entrustment that Hirschbach allowed Campbell to operate the semi-truck in [*3]  violation of federal regulations, failed to properly train Campbell, failed to ensure he was properly trained to operate the semi-truck, failed to discipline or re-train Campbell when it should have known Campbell failed to comply with rules and regulations, failed to remove Campbell from his duties after it knew Campbell was unfit for the job, failed to supervise Campbell, and failed to train Campbell regarding driving rules, regulations and industry customs. Lewis Compl ¶¶ 7-8. In Count III, Hirschbach admitted Campbell was acting within the scope of his employment and admitted respondeat superior is applicable.

In Count I of Moffett’s Complaint, Moffett alleges the same negligence against Campbell, negligence against Hirschbach in Count II under a theory of respondeat superior, and a claim of direct negligence against Hirschbach for negligent hiring, training, supervision, retention, and/or entrustment. Moffett Compl at ¶¶ 22-26. Count IV alleges that Defendant’s conduct amounts to gross negligence. Moffett Compl at ¶¶ 24-26.

Defendants move to dismiss Count III of Lewis’ Complaint and Count III and Count IV of Moffett’s Complaint under Federal Rule of Civil Procedure 12(b)(6).

III. Law and Analysis

A Rule 12(b)(6) motion challenges the [*4]  “sufficiency of the complaint.” Berger v. Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The plaintiff “must do more in the complaint than simply recite the elements of a claim.” Zellner v. Herrick, 639 F.3d 371, 378 (7th Cir. 2011). Complaints that offer “[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor [*5]  of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

a. Motion to Dismiss Count III of Lewis and Moffett’s Complaint

Defendants move to dismiss Count III of Lewis and Moffett’s Complaint under Rule 12(b)(6). Specifically, Defendants state that Count III should be dismissed on the grounds it is “duplicative and improper under Illinois law given that Hirschbach has admitted respondeat superior for Mr. Campbell’s relevant acts or omissions.” (Doc. 52, p. 5); (Doc. 53, p. 6). Plaintiffs respond with two arguments. First, they state that Defendants’ motions are not properly brought before the Court under 12(b)(6), because Defendants’ motion relies on material outside of the complaint, namely Defendant’s answer. Additionally, Plaintiffs state that the Court should not dismiss Count III for direct negligence against Hirshbach because Plaintiffs Lewis and Moffett meet the exception of “willful and wanton misconduct.” (Doc. 71, p. 11); (Doc. 72, p. 11).

In Illinois, a plaintiff who is injured in a motor vehicle accident cannot maintain a claim for negligent hiring, negligent retention, or negligent entrustment against an employer where the employer admits responsibility for the conduct of the employee under respondeat superior. Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 928, 264 Ill.Dec. 459, 770 N.E.2d 1155 (2002). The reasoning [*6]  behind this principle is that additional liability should not be imposed on the employer where the employer’s liability “is predicated initially on, and therefore is entirely derivative of, the negligence of the employee” and so “cannot exceed the liability of the employee.” Id.

But an exception exists where a principal’s culpability may be greater than that of the agent. Lockett v. Bi-State Transit Auth., 445 N.E.2d 310, 314, 94 Ill. 2d 66, 67 Ill.Dec. 830 (1983). “Unlike the situation in negligent-entrustment cases, where the misconduct of the defendant-principal is of the same level of culpability as that of the tortfeasor-agent, defendants-principals may be found guilty of willful and wanton misconduct even though the tortfeasors-agents to whom the instrumentality causing the injury was entrusted may have been only negligent.” Id. As a result, “the necessity of proof of the defendant-principal’s misconduct in connection with willful-and-wanton entrustment actions is not eliminated simply because that party acknowledges an agency relationship with the tortfeasor.” Id; see also Neuhengen v. Glob. Experience Specialists, Inc., 2018 IL App (1st) 160322, ¶ 90, 424 Ill. Dec. 718, 109 N.E.3d 832, 852 (“there is no sound reason for such a rule where a plaintiff has pled a viable claim for punitive damages based on allegations of willful and wanton conduct against an employer for its independent [*7]  actions in hiring and retaining an employee or entrusting a vehicle to an unfit employee”).

In order to recover damages based on “willful and wanton conduct,” a plaintiff must plead and prove the basic elements of a negligence claim, i.e., that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was a proximate cause of the plaintiff’s injury, and must additionally allege either a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare. Neuhengen, 2018 IL App (1st) 160322, 109 N.E.3d 832.

Illinois courts have attempted to define “willful and wanton conduct” throughout the years. Papadakis v. Fitness 19 IL 116, LLC, 2018 IL App (1st) 170388, ¶ 23, 148 N.E.3d 648, 653 (“How, precisely, to define that heightened state of mind has proven elusive”). Such conduct can mean “only degrees more than ordinary negligence,” while under other facts, willful and wanton acts may be only “degrees less than intentional wrongdoing.” Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275-76, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994). In addition, the Illinois Supreme Court describes such acts as “a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare.” Jane Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd. of Directors, 2012 IL 112479, ¶ 1, 973 N.E.2d 880, 884 see also Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 518, 136 Ill.Dec. 47, 544 N.E.2d 733 (1989). Further, “utter indifference or conscious disregard can include the failure to take reasonable precautions after knowledge of impending danger.” Barr v. Cunningham, 2017 IL 120751, ¶ 20, 417 Ill.Dec. 667, 89 N.E.3d 315 (internal citations omitted). [*8] 

Plaintiffs first argue that, because Defendants rely on their answer to Plaintiffs’ complaints, motion is improperly brought as a 12(b)(6) and should therefore be dismissed. First, the Court notes that courts view Rule 12(c) and 12(b) motions the same, where “[b]oth motions permit a party to request the district court to dispense a matter at the initial stage of the proceedings.” N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998). The primary difference between these two are that a party may file a 12(b) before its answer. Id. Thus, the Court will not dismiss Defendants’ motions for bringing this claim under a 12(b)(6). The Court will note that federal courts within the Seventh Circuit have also properly addressed similar type motions addressing a dismissal based off a duplicative claim under respondeat superior and direct negligence under a Rule 12(b)(6) standard. Wilson v. City of Springfield, 449 F. Supp. 3d 826 (C.D. Ill. 2020); Love v. City of Chicago, 363 F. Supp. 3d 867 (N.D. Ill. 2019); Doe I v. Bd. of Educ. of City of Chicago, 364 F. Supp. 3d 849, 858 (N.D. Ill. 2019). As such, the Court’s analysis does not change in evaluating Defendants’ and Plaintiffs’ arguments.

Thus, the central question is whether Plaintiff Lewis and Plaintiff Moffett have alleged “willful and wanton conduct” against Hirschbach. Upon review of Plaintiffs’ briefs and Moffett and Lewis’ respective complaints, they do not point to facts which the Court can reasonable infer willful or wanton conduct. Plaintiff [*9]  argue that they have alleged “willful or wanton conduct” by stating that “Defendants conduct, acts/or omissions show an utter indifference and/or wanton or conscious disregard for the Plaintiff’s safety and the safety of others.” Moffett Compl at ¶ 25. The Lewis Complaint does not allege any conduct that the Court can infer as willful or wanton. The Plaintiff admit the Lewis Complaint fails to allege gross negligence. (Doc. 71, p. 12-13). Plaintiffs argue that it does not matter because “Plaintiffs have stated a viable claim of direct negligence against Defendant Hirschbach.” (Doc. 72, p. 13). In short, this is not enough to plead “willful or wanton conduct.” Plaintiffs’ pleading amounts to recitation of elements of a cause of action that this Twombly and Iqbal progeny caution against. Iqbal, 556 U.S. at 678 (“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do”). Reviewing the complaints as a whole, the Court cannot find inference of willful or wanton conduct. The law is clear. Because Plaintiffs’ complaints do not adequately allege willful or wanton conduct, Plaintiffs negligent hiring, negligent retention, or negligent entrustment against Hirschbach [*10]  must be dismissed as duplicative because it admitted responsibility under respondeat superior. Gant, 331 Ill. App. 3d 924, 928, 264 Ill.Dec. 459, 770 N.E.2d 1155.

The Court does not find this situation similar to Swanson. Swanson v. Murray Bros., LLC, No. 19-CV-3220, 2021 WL 782273, at *7 (C.D. Ill. Mar. 1, 2021) (“Stretching Neff and Gant to stand for Defendant’s proposition that an employer can never be found liable for its own independent negligent acts that cause a plaintiff injury is too far reaching”). The Swanson court stated that the Swanson Plaintiffs were suing the employer for negligence outside of “negligent hiring, retention, or entrustment” such as negligent maintenance of the brakes of the truck and negligent inspection. Id. The same is not the case for the complaints by Lewis and Moffett. The Plaintiffs only provide allegations against the employer for negligent hiring, training, supervising, and qualifying Defendant Campbell. Moffett Compl at ¶ 25; Lewis Comp at ¶ 22. Illinois law is clear that once an employer admits liability under respondeat superior, courts prohibit pleading negligent hiring, training, supervising, and retention. Finding that the Plaintiffs insufficiently allege “willful or wanton conduct,” the Court must dismiss Count III of the Lewis and Moffett complaints.

Plaintiffs argue that “Plaintiffs could uncover evidence that [*11]  proves (through the framework of the Complaint) Defendant Hirschbach committed acts of gross negligence or willful and wanton misconduct in hiring, training, supervising, and qualifying Defendant Campbell.” (Doc. 71, p. 12-13). The Court disagrees. It must be the other way around. Once Plaintiffs develop factual allegations that plausibly suggest “willful or wanton conduct,” the Court liberally allows amendments of complaints if Plaintiffs can allege those facts.

The Court also addresses one of Plaintiffs’ points regarding discovery (Doc. 72, p. 14). Like Illinois courts, this Court agrees that “[w]e recognize the practical reality that the plaintiff may be unable to plead sufficient facts alleging willful and wanton conduct when the necessary information is solely within the defendant’s control.” Winfrey v. Chicago Park Dist., 274 Ill. App. 3d 939, 949, 654 N.E.2d 508, 516, 211 Ill. Dec. 46 (1995). However, the Court also acknowledges that there are liberal discovery rules in federal court. Discovery under the federal rules aims to be broad. According to Fed. Rul. Civ. Proc. 26(b)(1), parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Plaintiffs have several tools for getting information — interrogatories, depositions, and requests for admission. [*12]  Also, parties may compel the other party to give them access to documents, real property, and other matters for review or testing. The Court agrees with Plaintiffs that courts favor discovery. (Doc. 72, p. 14-15). However, the Court cannot look at discovery tactics when evaluating a motion to dismiss; the Court will only look at the complaints at hand.

The Court hereby GRANTS Defendants’ Motion to Dismiss Count III of Lewis and Moffett’s Complaints.

b. Motion to dismiss Count IV for gross negligence

Defendants argue that Count IV of Plaintiff Moffett’s Complaint fails to state a claim upon which relief can be granted because “gross negligence” is not a recognized cause of action in Illinois (Doc. 53, p. 8). Plaintiff argues that Illinois law allows ordinary negligence and willful and wanton conduct to be plead as separate counts. (Doc. 72, p. 16); McCoy v. Iberdrola Renewables, Inc., No. 11 C 592, 2013 U.S. Dist. LEXIS 110960, 2013 WL 4027045, at *3 (N.D. Ill. Aug. 7, 2013); see also McQueen v. Green, 2020 IL App (1st) 190202, ¶ 55, 178 N.E.3d 700, 714, appeal allowed, 444 Ill. Dec. 164, 163 N.E.3d 727 (Ill. 2021) (“Willful and wanton conduct is not an independent tort and is considered an aggravated form of negligence”). The Court agrees. Pleading ordinary negligence and gross negligence as separate counts is not detrimental to Plaintiffs’ claims. The Court sees the “gross negligence” claim as “no more than a supplemental [*13]  allegation of negligence.” Id.

While the amount of punitive damages is a question of fact, the issue of whether the particular facts of a case justify punitive damages is a question of law. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 359 (Ill.1978). When a corporate defendant’s liability “is predicated upon a theory of respondeat superior, the imposition of punitive damages is narrowly circumscribed.” Kennan v. Checker Taxi Co., 250 Ill.App.3d 155, 189 Ill.Dec. 891, 620 N.E.2d 1208, 1212 (Ill.App.Ct.1991) (citation omitted). In Illinois, punitive damages “may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others[.]” Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 359 (Ill.1978).

Finding that Plaintiffs have insufficiently alleged “willful or wanton conduct”, the Court cannot allow punitive damages to move forward at this juncture. In light of the fact the Court found that Plaintiffs have failed to allege willful or wanton conduct, their claim of gross negligence cannot move forward. The Court hereby GRANTS Defendants’ Motion to Dismiss Count VI of Plaintiff Moffett’s Complaint.

IV. Conclusion

The Court hereby GRANTS Defendants’ Motion to Dismiss Count III of Lewis’ Complaint (Doc. 52), and GRANTS Defendants’ Motion to Dismiss Count III and [*14]  VI of Plaintiff Moffett’s Complaint (Doc. 53). Count III of Lewis’ Complaint and Count III and Count IV of Moffett’s Complaint is DISMISSED.

IT IS SO ORDERED.

Dated: March 7, 2022

/s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE

End of Document

---

¹ Lewis v. Hirschbach Motor Lines, Inc. et. al. was consolidated with Moffett v. Hirschbach Motor Lines, Inc. et. al., Case No. 21-cv-00001-JPG. The complaint in the Moffett’s case is at Doc. 1. The complaints by Lewis and Moffett will be referred to as “Lewis Complaint” and “Moffett Complaint,” respectively.

Court of Appeals of Georgia, Third Division

March 4, 2022, Decided

A21A1269, A21A1270.

Reporter

2022 Ga. App. LEXIS 116 *

GOLDEN PEANUT COMPANY, LLC et al. v. MILLER et al.; and vice versa.

Disposition: Judgment affirmed in Case No. A21A1270. Judgment reversed in Case No. A21A1269.

Core Terms

Peanut, trial court, trailer, summary judgment, lease, tractor, right to control, right of way, investigating, vicariously, collision, drivers, picking

Case Summary

Overview

HOLDINGS: [1]-In a case arising out of a collision between a tractor-trailer and a passenger vehicle, the motion for summary judgment of the trailer’s owner and its parent company was improperly denied as, under O.C.G.A. § 51-2-4, neither of them had any right to control defendant driver’s work because his sole proprietorship owned the tractor involved in the collision; the trailer owner did not tell him the specific routes to take; while the owner of the trailer occasionally requested that loads be picked up or delivered at specific times, it had no control over the driver’s work schedule; and no lease existed regarding the tractor; [2]-As officer concluded that the driver had already established his lane of travel by the time the decedent’s vehicle came into view, his conclusion that the driver had the right of way was admissible as an assessment of fact and not a legal conclusion.

Outcome

Judgment affirmed in case no. A21A1270; judgment reversed in case no. A21A1269.

LexisNexis® Headnotes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > Appeals > Summary Judgment Review > Standards of Review

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Judgments > Summary Judgment > Burdens of Proof

 Entitlement as Matter of Law, Appropriateness

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and an appellate court views the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Evidence > Admissibility > Procedural Matters > Rulings on Evidence

 Standards of Review, Abuse of Discretion

An appellate court reviews a trial court’s evidentiary decisions for an abuse of discretion.

Evidence > … > Testimony > Expert Witnesses > Qualifications

 Expert Witnesses, Qualifications

With regard to the qualification of a witness as an expert, the question of whether a witness is qualified to give his opinion as an expert is one for the trial court. Its determination will not be disturbed except that it be manifestly abused.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

Torts > … > Employers > Scope of Employment > Place & Time

 Employment Relationships, Independent Contractors

An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer. O.C.G.A. § 51-2-4. In the absence of evidence of actual control, the test distinguishing an employee from an independent contractor is whether the employer assumed the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract. The right to control the time means the employer has assumed the right to control the person’s actual hours of work. The right to control the manner and method means the employer has assumed the right to tell the person how to perform all details of the job, including the tools he should use and the procedures he should follow.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

Torts > … > Employers > Scope of Employment > Place & Time

 Employment Relationships, Independent Contractors

To the extent that a delivery schedule may impose parameters involving the time within which work must be executed, such is not sufficient to raise an issue as to the nature of the relationship between a distributor and an independent hauler.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

 Common Carrier Duties & Liabilities, State & Local Regulation

Under the statutory-employment theory, a lessee motor carrier is strictly liable under the Federal Motor Carrier Safety Regulations (FMCSRs) for the operation of the equipment for the duration of the lease. The existence of a lease between the lessee and the owner of the vehicle involved in an accident is the defining element in creating a statutory employment relationship under the FMCSRs.

Evidence > … > Testimony > Expert Witnesses > Qualifications

 Expert Witnesses, Qualifications

As to the expertise required of an expert witness, generally nothing more is required to qualify an expert than that he has been educated in a particular trade or profession; and that special knowledge may be derived from experience as well as study and mental application. Specifically, it has long been recognized that a police officer with investigative training and experience on automobile collisions is an expert, although of course the credibility and weight to be given his testimony is for the jury. Such an officer is an expert even if he is not trained to reconstruct traffic accidents; and, as an expert, the investigating officer is allowed to testify about what he observed at the accident scene and to give his conclusions from those observations about what happened (as opposed to which party was at fault).

Civil Procedure > Trials > Jury Trials > Province of Court & Jury

Evidence > Types of Evidence > Testimony > Expert Witnesses

 Jury Trials, Province of Court & Jury

The trial court may not exclude an otherwise sufficient expert opinion simply because it believes that the opinion is not – in its view – particularly strong or persuasive. The weight to be given to admissible expert testimony is a matter for the jury.

Evidence > Types of Evidence > Testimony > Expert Witnesses

Torts > Transportation Torts > Motor Vehicles > Particular Actors, Circumstances, & Liabilities

 Testimony, Expert Witnesses

Where the investigating officer’s opinion is based on his examination of physical evidence at the scene, and not solely on statements of witnesses, and where he does not opine as to the ultimate issue of a party’s negligence, his opinion on the cause of the accident is admissible as an assessment of fact and not a legal conclusion or a conclusion constituting a mixture of law and fact. Thus, an investigating officer may testify that one of the drivers was the sole cause of the accident; that the light was red; or that both drivers lost control.

Transportation Law > Commercial Vehicles > Traffic Regulation

 Commercial Vehicles, Traffic Regulation

While O.C.G.A. § 40-6-73 requires a driver entering a roadway to yield to approaching vehicles, the statute places no duty on the driver entering the roadway to yield to even properly approaching vehicles if they are not visible to the driver of the entering vehicle.

Headnotes/Summary

Headnotes

Georgia Advance Headnotes

GA(1) (1)

Torts.  > Vicarious Liability.  > Independent Contractors.

In a case arising out of a collision between a tractor-trailer and a passenger vehicle, the motion for summary judgment of the trailer’s owner and its parent company was improperly denied as they were not vicariously liable for defendant driver’s conduct as a matter of law because neither of them had any right to control the driver’s work because the driver’s sole proprietorship owned the tractor involved in the collision; the trailer owner did not tell the driver the specific routes to take; while the owner of the trailer occasionally requested that loads be picked up or delivered at specific times, it had no control over the driver’s work schedule; and no lease existed regarding the tractor.

GA(2) (2)

Evidence.  > Witnesses.  > Expert Testimony.

Based on the police officer’s extensive experience and training and the fact that the officer was the lead investigator in reconstructing the wreck, the trial court did not manifestly abuse its discretion in finding that the officer was qualified to give the officer’s conclusion.

GA(3) (3)

Evidence.  > Procedural Considerations.  > Rulings on Evidence.

Officer’s conclusion that the decedent was distracted by something and that the decedent did not see the trailer for unknown reasons was admissible as plaintiffs’ arguments went to the weight, and not the admissibility, of the officer’s testimony.

GA(4) (4)

Evidence.  > Witnesses.  > Expert Testimony.

Based on the police officer’s extensive experience and training and the fact that the officer was the lead investigator in reconstructing the wreck, the trial court did not err by permitting the officer to testify about which driver had the right of way because, based on the physical evidence and calculations the officer had performed, the officer concluded that defendant driver had already established the driver’s lane of travel by the time the decedent’s vehicle came into view; and the officer’s conclusion that the driver had the right of way was admissible as an assessment of fact and not a legal conclusion.

Judges:  [*1] REESE, Judge. Doyle, P. J., and Brown, J., concur..

Opinion by: REESE

Opinion

Reese, Judge.

This case arises out of a collision between a tractor-trailer driven by Defendant Lloy White and a passenger vehicle driven by Kristie Miller (“Miller”), which resulted in the death of Miller and serious injuries to her son. Ross Miller, individually and as Miller’s estate administrator, and related parties (“Plaintiffs”) filed suit against various defendants, including White, Golden Peanut Company, LLC (the owner of the trailer that White was transporting), and Archer Daniels Midland Company (“ADM”) (Golden Peanut’s parent company).

We granted Golden Peanut’s and ADM’s application for interlocutory appeal from the trial court’s denial of their motions for reconsideration and for clarification following the denial of their motions for summary judgment (Case No. A21A1269). Plaintiffs cross-appeal from the denial of their motion to exclude portions of the investigating officer’s testimony (Case No. A21A1270). For the reasons set forth infra, we affirm in Case Number A21A1270 and reverse the denial of summary judgment in Case Number A21A1269.

Viewed in the light most favorable to the Plaintiffs, as the non-movants on the [*2]  motions for summary judgment,¹ the record shows the following. At approximately 8:15 p.m. on September 27, 2017, after picking up a load of green peanuts from a farm to take to Golden Peanut’s drying facility in Camilla, White made a left turn to head Northbound onto a two-lane road. Miller’s vehicle, which was traveling Southbound, collided with the side of the trailer. Sergeant Chad Fallin of the Georgia State Patrol’s Specialized Collision Reconstruction Team (“SCRT”) did a walk-through of the crash site that night, and was the lead investigator of a SCRT team that performed a number of tests and issued a SCRT report.

The Plaintiffs filed suit against various defendants, asserting, inter alia, that White was negligent and that Golden Peanut and ADM were liable under theories of common-law vicarious liability and as a statutory employer under the Federal Motor Carrier Safety Regulations (“FMCSRs”). The trial court denied Golden Peanut’s and ADM’s motions for summary judgment and denied the Plaintiffs’ motion to exclude portions of Fallin’s testimony and SCRT report. These appeals followed.

  to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.²

court. Its determination will not be disturbed except that it be manifestly abused.”⁴ With these guiding principles in mind, we turn now to the parties’ claims of error.

Case No. A21A1269

1. Golden Peanut and ADM argue that the undisputed evidence demonstrated as a matter of law that neither of them had any right to control White’s work. We agree.

  to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.”⁶ “The right to control the time means the employer has assumed the right to control the person’s actual hours of work. The right to control the manner and method means the employer has assumed the right to tell the person how to perform all details of the job, including the tools he should use and the procedures he should follow.”⁷

(a) The GA(1) (1) evidence showed that Lloy White Trucking, White’s sole proprietorship, owned the tractor involved in the collision. White paid for his own expenses in maintaining the tractor, including taxes and insurance. Through his sole proprietorship, White contracted with Larry Wood Trucking, which issued White an IRS form 1099 for tax purposes, and paid White a flat rate after taking a commission for its brokerage service.

During the harvest season, Golden Peanut engaged Larry Wood Trucking as a broker. Larry Wood Trucking had White contact Billy Benton at the Golden Peanut facility in Camilla. Benton gave White the contact information for farmers who had loads of peanuts ready for pickup. Each [*5]  day, Benton “dispatched out” where the drivers needed to go and what they needed to do. White coordinated the pickups directly with the farmers, who gave him directions on where to pick up the peanuts.

According to White, Golden Peanut did not tell him the specific routes to take when driving the peanuts. After picking up the peanuts using the specialty trailer with tarp, White hauled the peanuts to Golden Peanut’s facility in Camilla, where he worked with Golden Peanut employees to ensure the trailer was hooked up to a dryer. Golden Peanut did not provide any instruction to White on these tasks. While Golden Peanut occasionally requested that loads be picked up or delivered at specific times, it had no control over White’s work schedule.

We conclude that these facts are not enough to create a genuine issue as to the vicarious liability of a manufacturer or distributor of goods.⁸ .”⁹

Golden Peanut employees did give instructions [*6]  to White on where to park to unload the peanuts when he got to the facility and to hook up to a dryer to ensure the peanuts would not rot, but “merely taking steps to see that the contractor carries out his agreement, … is not such interference and assumption of control as will render the employer liable.”¹⁰ Further, although White was hauling a specialized trailer owned by Golden Peanut and he rolled or unrolled a tarp when picking up the peanuts, this did not convert him from an independent contractor to an employee.¹¹

(b) Based on our conclusions in Division 1 (a), supra, and the lack of evidence in the record of any relationship between White and ADM (Golden Peanut’s parent company), we need not address ADM’s argument that the trial court erred by conflating it with Golden Peanut.

2. Golden Peanut and ADM argue that the trial court erred in denying summary judgment based on the statutory-employer doctrine under the FMCSRs.

(a) As an initial matter, Golden Peanut and ADM argue that the statutory-employment theory is no longer legally viable.

However, the record contains no indication that they raised this issue or made this argument before the trial court, and this Court cannot hear [*7]  arguments raised for the first time on appeal.¹²

(b) Golden Peanut and ADM contend that, even if the statutory-employment theory remains viable, the trial court erred by holding they could be vicariously liable as the statutory employers of White under the FMCSRs.¹³

Under the statutory-employment theory, a lessee motor carrier is strictly liable under the FMCSRs for the operation of the equipment for the duration of the lease.¹⁴ The FMCSRs define an “employee” as:

any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle)[.]¹⁵

An “employer” is “any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it[.]”¹⁶ Thus, “the existence of a lease between the defendant and owner of the vehicle involved in an accident is the defining element in creating a statutory employment relationship under the FMCSRs.”¹⁷

Here, the evidence showed [*8]  as a matter of law that no lease existed regarding the tractor.¹⁸ Plaintiffs do not argue that Golden Peanut owned or leased the tractor, but they contend that a lease is unnecessary to establish statutory employer liability because Golden Peanut owned the trailer. “Motor vehicle” is defined as “any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof[.]”¹⁹ The FMCSRs specifically exempt “[a]ny type of trailer not drawn by a power unit leased from the same lessor.”²⁰ Thus, because the Golden Peanut trailer was not drawn by a Golden Peanut tractor, the FMCSRs do not apply.²¹

3. Golden Peanut and ADM argue that, because they are not vicariously liable for White’s conduct, the trial court should have granted summary judgment in their favor on the Plaintiffs’ claims for punitive damages and attorney fees.

For the reasons set forth in Divisions 1 and 2, supra, Golden Peanut and ADM are not vicariously liable for White’s conduct as a matter of law, and the FDCSRs do not apply. The trial court thus should have also granted summary judgment on the Plaintiffs’ derivative [*9]  claims against them for punitive damages, attorney fees, and litigation expenses.²² Accordingly, we reverse the orders denying Golden Peanut’s and ADM’s motions for reconsideration and clarification of their motions for summary judgment.

Case No. A21A1270

4. Plaintiffs filed a cross-appeal, arguing that the trial court erred by refusing to apply the admissibility standard in OCGA § 24-7-702 (“Rule 702”) and Daubert ²³ to consider whether an investigating officer’s expert testimony was reliable and helpful.

In their motion to exclude certain portions of Fallin’s testimony and SCRT report, the Plaintiffs argued that Fallin’s testimony that Miller was distracted by “something” and that Miller did not see the trailer “for unknown reasons” was unreliable because it ignored White’s testimony and because Fallin failed to perform nighttime testing in reaching his conclusions. The Plaintiffs also sought to prohibit Fallin from testifying that White had the right of way at the time of the collision.

The trial court denied the Plaintiffs’ motion, finding that Fallin was presumptively an expert as a police officer and rejecting the Plaintiffs’ argument that a testifying police officer had to meet the additional evidentiary [*10]  burdens of Rule 702 and Daubert. The court found that Fallin’s testimony about the right of way was not a legal conclusion and that the attempt to strike this testimony lacked foundation. The court noted that at his deposition, Fallin stood by the conclusions in the SCRT report that Miller was distracted by “something,” despite acknowledging that there was no evidence that she was distracted at the time of the wreck.

(a) The Plaintiffs argue that because Fallin’s opinions are expert opinions, his testimony is subject to the admissibility standard in Rule 702.

witness, generally nothing more is required to qualify an expert than that he has been educated in a particular trade or profession; and this special knowledge may be derived from experience as well as study and mental application.”²⁴ Specifically,

[i]t has long been recognized that a police officer with investigative training and experience on automobile collisions is an expert, although of course the credibility and weight to be given his testimony is for the jury. Such an officer is an expert even if he is not trained to reconstruct traffic accidents; and, as an expert, the investigating officer is allowed [*11]  to testify about what he observed at the accident scene and to give his conclusions from those observations about what happened (as opposed to which party was at fault).²⁵

GA(2) (2) Based on Fallin’s extensive experience and training and the fact that he was the lead investigator in reconstructing the wreck in this case, the trial court did not manifestly abuse its discretion in finding that he was qualified to give his conclusions.²⁶

(b) The Plaintiffs contend that GA(3) (3) Fallin’s conclusion that Miller was distracted by “something” and that she did not see the trailer “for unknown reasons” was unreliable.

he trial court may not exclude an otherwise sufficient expert opinion simply because it believes that the opinion is not — in its view — particularly strong or persuasive. The weight to be given to admissible expert testimony is a matter for the jury.”²⁷ Accordingly, the trial court did not manifestly abuse its discretion as the Plaintiffs’ arguments go to the weight, and not the admissibility, of Fallin’s testimony.²⁸

(c) The Plaintiffs argue further that the trial court erred by permitting Fallin to testify to an incorrect legal conclusion about which driver had the right of way. Specifically, they rely [*12]  on OCGA § 40-6-73 to argue that Fallin’s conclusion was incorrect as White should have yielded the right of way to Miller, who was approaching on the roadway that White was entering.²⁹

Where the investigating officer’s opinion is based on his examination of physical evidence at the scene, and not solely on statements of witnesses, and where he does not opine as to the ultimate issue of a party’s negligence, his opinion on the cause of the accident is admissible as an assessment of fact and not a legal conclusion or a conclusion constituting a mixture of law and fact. Thus, an investigating officer may testify that one of the drivers was the sole cause of the accident; that the light was red; or that both drivers lost control.³⁰

GA(4)”³¹ and the trial court did not manifestly abuse its discretion in denying the Plaintiffs’ motion to exclude this testimony.

Judgment affirmed in Case No. A21A1270. Judgment [*13]  reversed in Case No. A21A1269. Doyle, P. J., and Brown, J., concur.

End of Document

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¹ See Palma v. Ga. Farm Bureau Ins. Co., 270 Ga. App. 333 (606 SE2d 341) (2004).

² Palma, 270 Ga. App. at 333 (citations and punctuation omitted).

³ Clack v. Hasnat, 354 Ga. App. 502, 503 (1) (841 SE2d 210) (2020).

⁴ Id. at 504 (2) (citations and punctuation omitted).

⁵ OCGA § 51-2-4; see also OCGA § 51-2-5 (5) (“An employer is liable for the negligence of a contractor: [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference[.]”).

⁶ Palma, 270 Ga. App. at 335-336 (citation and punctuation omitted).

⁷ Id. at 336 (citation and punctuation omitted).

⁸ See McLaine v. McLeod, 291 Ga. App. 335, 340 (1) (661 SE2d 695) (2008) (affirming that a truck driver was an independent contractor as a matter of law where, although the distributor told the truck driver when and where to pick up and deliver the cargo, “the specific places and times were set by the [customers], not by [the distributor]”); Perry v. Soil Remediation, 221 Ga. App. 386, 387 (1) (471 SE2d 320) (1996) (affirming that a truck driver was an independent contractor where, among other things, the shipping company did not control the routes the truck driver took to or from shipment sites and the truck driver was free to work for other companies).

⁹ Tanner v. USA Today, 179 Ga. App. 722, 723 (1) (347 SE2d 690) (1986).

¹⁰ Slater v. Canal Wood Corp., 178 Ga. App. 877, 881 (1) (345 SE2d 71) (1986) (citation and punctuation omitted); accord Helms v. Young, 130 Ga. App. 344, 351-352 (3) (B) (203 SE2d 253) (1973) (physical precedent only).

¹¹ See Palma, 270 Ga. App. at 336 (regarding practicalities of onion harvest). Similarly, although White performed other work around the Camilla facility after the collision, for which he received some safety policies and procedures from Golden Peanut, a person “can be an independent contractor in one part of his activity and an employee in another.” Id. (citation and punctuation omitted).

¹² AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga. App. 615, 619 (2) (a) (621 SE2d 576) (2005) (“We are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.”) (punctuation and footnote omitted).

¹³ Plaintiffs concede that ADM is not a statutory employer, but argue that ADM is vicariously liable for Golden Peanut’s statutory employer liability as a joint venturer or under an alter ego theory. Because we hold that Golden Peanut could not be White’s statutory employer, we need not address this argument.

¹⁴ PN Express v. Zegel, 304 Ga. App. 672, 675-676 (2) (a) (697 SE2d 226) (2010).

¹⁵ 49 CFR § 390.5T.

¹⁶ Id.

¹⁷ Stubbs Oil Co. v. Price, 357 Ga. App. 606, 611 (1) (848 SE2d 739) (2020).

¹⁸ See Stubbs Oil Co., 357 Ga. App. at 611-613 (1); see also Clarendon Natl. Ins. Co. v. Johnson, 293 Ga. App. 103, 108-109 (1) (a) (666 SE2d 567) (2008) (reversing denial of defendants’ motion for a directed verdict where there was no evidence that the driver had leased himself or his truck to the defendants for the trip involved in the collision).

¹⁹ 49 CFR § 390.5T.

²⁰ 49 CFR § 376.21 (d).

²¹ See id.; see also 49 CFR § 390.3 (a) (1) (“The rules [in the FMCSRs] are applicable to all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce.”).

²² See DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 52 (5) (668 SE2d 737) (2008).

²³ See Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).

²⁴ Clack, 354 Ga. App. at 504 (2) (citation and punctuation omitted).

²⁵ Id. at 505 (2) (a) (citations and punctuation omitted).

²⁶ See id. at 506 (2) (a); see also id. at 504 (2) (citing OCGA § 24-7-702 (b)).

²⁷ Emory Univ. v. Willcox, 355 Ga. App. 542, 543 (1) (844 SE2d 889) (2020) (citation and punctuation omitted).

²⁸ See id. at 544-545 (2).

²⁹  See OCGA § 40-6-73 (“The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.”). But see Jones v. Holland, 333 Ga. App. 507, 508 (773 SE2d 797) (2015) (“While OCGA § 40-6-73 requires a driver entering a roadway to yield to approaching vehicles, the statute places no duty on the driver entering the roadway to yield to even properly approaching vehicles if they are not visible to the driver of the entering vehicle.”) (citation and punctuation omitted).

³⁰ Fortner v. Town of Register, 289 Ga. App. 543, 546 (1) (657 SE2d 620) (2008) (punctuation and footnotes omitted).

³¹ Clack, 354 Ga. App. at 506 (2) (a) (citations and punctuation omitted).