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Fortunato v. May

March 16, 2009

JAMES FORTUNATO, DOROTHY FORTUNATO, HUSBAND AND WIFE AND, JENNIFER FORTUNATO, DAUGHTER PLAINTIFFS,
v.
DAVID MAY, NAGLE TOLEDO, INC., NAGLE LINE, INC., NAGLE EQUIPMENT COMPANY, NAGLE TRUCKING, MARK NEWTON DBA SPYDER ENTERPRISES, INC., SPYDER ENTERPRISES, INC., SUN AIRE TRANSPORT CORPORATION, DEFENDANTS, THIRD-PARTY PLAINTIFFS
v.
JOHN A RICHARDSON, D/B/A J&J AMUSEMENTS, INC. THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

In this memorandum opinion, the court considers the motion for partial summary judgment (Doc. No. 56 ("defendants' motion")) filed by defendants David May ("May"), Nagle Toledo, Inc., Nagle Line, Inc., Nagle Equipment Company, Nagle Trucking, Mark Newton d.b.a. Spyder Enterprises, Inc., and Spyder Enterprises, Inc. Plaintiff agreed to dismiss all claims against Nagle Line, Inc., Nagle Equipment Company, and Nagle Trucking. Those parties will be dismissed and the remaining defendants are May, Nagle Toledo, Inc., Mark Newton d.b.a. Spyder Enterprises, Inc., and Spyder Enterprises Inc. (collectively "defendants" or "third-party plaintiffs"). Defendants' motion seeks summary judgment with respect to claims made by plaintiff Jennifer Fortunato*fn1 ("plaintiff" or "Fortunato") against defendants. Plaintiff agreed to withdraw several of the claims and allegations she asserted against defendants in the complaint. After reviewing the complaint, defendants' motion and plaintiff's concessions, the court recognizes that there are three remaining claims against defendants: (1) negligent operation of a motor vehicle against May; (2) negligent supervision*fn2 , and negligent entrustment against Nagle Toledo, Inc., Mark Newton d.b.a. Spyder Enterprises, Inc., and Spyder Enterprises, Inc. and (3) vicarious liability for the negligence of May against Nagle Toledo, Inc., Mark Newton d.b.a. Spyder Enterprises, Inc., and Spyder Enterprises, Inc. In defendants' motion, defendants seek partial summary judgment in their favor with respect to plaintiff's negligent supervision and negligent entrustment claims against Nagle Toledo, Inc., Mark Newton d.b.a. Spyder Enterprises, Inc., and Spyder Enterprises, Inc.

The court will also consider the motion for summary judgment (Doc. No. 53 ("third-party defendant's motion")) filed by third-party defendant John A. Richardson, d/b/a J & J Amusements ("Richardson" or "third-party defendant") with respect to all claims made by the third-party plaintiffs against Richardson. Third-party plaintiffs asserted a claim of negligence against Richardson as the owner of the tractor trailer driven by James Fortunato for allegedly supplying an unsafe vehicle with inoperable lights. Richardson seeks summary judgment in his favor arguing that there has been no competent evidence presented to show that the lights were inoperable or defective at the time of the accident. After considering the joint statements of material facts and the submissions of the parties, the court will grant defendants' motion and enter judgment in favor of Nagle Toledo, Inc., Mark Newton d.b.a. Spyder Enterprises, Inc., and Spyder Enterprises Inc. with respect to plaintiff's negligent supervision and negligent entrustment claims. The third-party defendant's motion for summary judgment will be denied as moot, but the claim against the third-party defendant will be dismissed without prejudice for the reasons set forth herein.

Factual Background

This lawsuit originated from a motor vehicle accident between two tractor trailers on August 5, 2002. (Defs.' facts ¶ 1.) In the early morning hours on August 5, 2002, James Fortunato was operating a tractor trailer with a double trailer on I-80 westbound in Jefferson County, Pennsylvania when a second westbound tractor trailer operated by May rear-ended Mr. Fortunato's vehicle. (Id. ¶ 3; Combined Concise Statement of Facts Regarding Third-Party Defendant's Motion for Summary Judgment (Doc. No. 72) ("Third-party facts") ¶ 1.) At the time of the accident, plaintiff was riding as a passenger in the tractor trailer operated by her father, James Fortunato. (Defs.' Facts ¶ 2.) Plaintiff alleged serious physical and mental injuries as a result of the accident. (Id.)

At the time of the accident, May was working as an agent of Mark Newton. (Id. ¶ 6.) Mark Newton d/b/a Spyder Enterprises, Inc. leased the tractor driven by May from Nagle Toledo, Inc. (Id. ¶ 7.) The tractor trailer May was driving at the time of the accident was being operated under the motor carrier authority of Nagle Toledo, Inc., and May was acting within the course and scope of his employment with Nagle Toledo, Inc., and Mark Newton d/b/a Spyder Enterprises. (Id. ¶ 9.) The trailer driven by James Fortunato at the time of the accident was owned by third-party defendant. (Third-party def.'s facts ¶ 2.)

Following the accident, state trooper Terry Jordan ("Jordan") was called to the scene to investigate. (Id. 11.) Jordan was not an accident reconstructionist. (Id. 12.) Jordan investigated the scene, interviewed May and James Fortunato, and wrote a report. Jordan reported that the running lights on the front trailer of James Fortunato's rig were on and operational when he checked them after the accident. Jordan reported that the tail lights on the rear trailer of James Fortunato's rig were not on when he arrived at the scene. Jordan noted that the left tail light was damaged and pushed in under the trailer by the impact of the collision. Jordan took the cover off the right tail light and inspected the filament. Upon inspection of the filament, Jordan opined that the tail light was not operable at the time of the collision. Jordan noted in his report:

While at the scene I examined the lights on [Fortunato's vehicle.] The lights on the towing vehicle and the first trailer were in working order. Upon looking at the lights on the second trailer evidence would show that the lights were not working on this trailer. Upon opening the lights there was no sign of heat shock to the lights. If the lights would have been working the filament in the lights should have been heated and stretched in the direction of the crash.

(Defs.' facts App. Ex. 2 at 9.) In explaining his heat shock theory, Jordan testified in his deposition:

Normally, if the light's on and it's heated, what will happen in some cases is that when there's an impact made with enough force that it will actually push the filament in the direction the crash was going. (Jordan, Dep. 27 (May 22, 2005).) Jordan testified that he was not sure whether he tested the right brake light or the right turn signal. (Id.) Jordan testified that the accuracy of his conclusion may depend on which light he tested, and he could not be sure of the accuracy. (Id.) Jordan did not conduct any follow up investigation, and the light fixture in question is no longer available for inspection. (Third-party def.'s facts ¶ 18,19 & 24.) Jordan issued a citation to May for failing to maintain a safe speed, and a citation to James Fortunato for failing to conform to general lighting requirements. (Jordan, Dep. 18-20.)

In his deposition, May related the following description of the accident:

I was coming down, oh, probably in the area of the 92, 92 1/2 mile marker. There's a sharp curve there, just before you're coming down. I slowed down. It's a very sharp curve. I started coming up like a little grade there. All of a sudden something is in front of me with no lights. I just clobbered it, whatever it was. I didn't know it was a tractor trailer or whatever it was at the time when it hit. And I came to a dead stop. (May Dep. 123 (April 25, 2006).) May alleges that he did not see any lights on the trailer he struck, and that he was unable to avoid the collision because of the lack of lights:

I didn't -- when I first went around the bend, I didn't see nothing.

Then all of a sudden, there was something right in front of me with no lights at all on it. I thought it was a sign or something. I just had that reaction. It was right there in front of me. I hit the brake right then and there. (Id. 129.) When asked whether there could have been lights on the trailer, May responded:

I would have seen the lights if there were lights on it. I would have had the time. If there were lights on that thing at all, I would have seen them. (Id. 183.) May testified that if there were lights on the trailer, he could have avoided the collision:

Q: Are you telling me, sir, that you weren't sure whether the lights in the back of that trailer were on or off because there was not ample time for you to see anything more than this big orange structure?

A: There was no lights on the back of it because I would have seen it from when I come around the corner. This thing appeared. Probably because it had no lights that I hit it right away. If I would have had some warning, I probably could have done something, beat it out in the left lane or gone into the breakdown lane. I would have seen it.

Q: You would have seen it?

A: Yes.

Q: And you are thinking you would have ample time to have avoided that ...


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