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Terry Burnett, In His Own Right and As Personal Representative of the Estate of v. Swift Transportation

February 8, 2011

TERRY BURNETT, IN HIS OWN RIGHT AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANGI BURNETT, DECEASED, AND ON BEHALF OF HIS TWO MINOR CHILDREN, C.B. AND T.B., PLAINTIFF
v.
SWIFT TRANSPORTATION, INC.; SPARKS FINANCE COMPANY, INC.;
JOHN E. JONES; LISA MATTERN; PATRICK C. LUDWIG; DAVIS TRANSFER CO., INC.; JAMES L. WHITE AND LISA EXPRESS,
DEFENDANTS
v.
JAMES OWENS, KEVIN OLVANY AND TERRY BURNETT,
THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

This case relates to a fatal multi-vehicle accident in the foggy morning hours of July 3, 2006 on Interstate 81. Before the court for disposition are the motions for summary judgment of Defendant Lisa Mattern (Doc. 300), Defendants Swift Transportation, Inc., Sparks Finance Company, Inc. and John E. Jones (Doc. 318), and Defendants Davis Transfer Co., Inc. and James White (Doc. 313). The three motions have been fully briefed and are ripe for disposition.

BACKGROUND

In the early morning of July 3, 2006, a Lisa Express tractor trailer*fn1 driven by Defendant Patrick C. Ludwig ("Ludwig") struck another tractor trailer owned by Defendant Swift Transportation, Inc. ("Swift") and driven by Defendant John E. Jones ("Jones") in the southbound lanes of Interstate 81 in Frailey Township, Schuykill County, Pennsylvania.*fn2

(Statement of Material Facts of Def. Lisa Mattern ¶¶ 1, 2 (Doc. 301); Statement of Material Facts of Defs. Swift Transportation Co., Inc., Sparks Finance Company, Inc., and John E. Jones ¶ 1 (Doc. 318)).

Jones had stopped along the interstate to relieve himself, north of a closed scenic overlook. (Jones Dep. (Doc. 318 at 22); Crash Report P1317178 (Doc. 327-3 at 9)). His tractor trailer was parked along the side of the interstate, five or ten feet from the edge of the road. (Jones Dep. (Doc. 327-2 at 32)). The fog was extremely thick. (Doc. 318 ¶ 2). Jones characterized the fog as the thickest he had ever seen in his life. (Jones Dep. (Doc. 327-2 at 30)). After getting back in his vehicle, Jones could not see in his mirror whether vehicles were traveling along the highway behind him, so he canted his tractor forty-five degrees to visually inspect the road behind him. (Jones Dep. (Doc. 327-2 at 31-33)). In addition to looking back down the road, Jones rolled down his window to listen for traffic. (Jones Dep. (Doc. 327-2 at 28)). Jones then proceeded down the shoulder of the road to build speed before putting on his turn signal and merging onto the road. (Jones Dep. (Doc. 327-2 at 6)).

Ludwig was also driving south-bound on Interstate 81 in his Lisa Express tractor trailer that morning. According to Ludwig, the fog that morning was patchy, and that in the thick portions visibility was reduced to two hundred yards. (Ludwig Dep. (Doc. 327-4 at 4)). Ludwig had been traveling at sixty-five miles per hour in the right-hand lane but upon reaching the sections of fog, he moved to the left-hand lane and reduced his speed. (Ludwig Dep. (Doc. 327-4 at 4-5)). As the fog thinned, Ludwig moved back to the right-hand lane. (Id. at 5). Then the fog became very heavy and Ludwig could only see two truck-lengths. (Id. at 6). He began to decelerate and move back to the left-hand lane, but struck Jones's Swift Tractor Trailer as it merged onto the highway. (Id. at 6). According to Lisa Express's safety director, Kimber Benshoff ("Benshoff"), Ludwig was driving fifty-five to sixty miles per hour when reached the fog and began to slow down. (Insurance Summary (Doc. 327-7)). According to Ludwig, Jones's Swift trailer was positioned such that its tractor was in the left-hand lane, its trailer was across the right-hand lane, though the tail of the trailer may still have been on the road's shoulder. (Id. at 8-9). Jones indicated to Trooper Chad Berstler that he was traveling at forty-five miles per hour when Ludwig struck him. (Crash Report P1317178 (Doc. 327-3 at 7)). Ludwig stated that he was traveling approximately sixty-five miles per hour when he struck Jones who had just pulled into traffic. (Id. at 6).

Ludwig lost control of the Lisa Express tractor trailer and when it came to rest it was disabled across both southbound lanes. (P1317178 at 9; Ludwig Dep. (Doc. 327-4 at 13)). Jones was able to pull the Swift tractor trailer off of the interstate fifty yards farther south of the initial impact, at the southern end of the closed scenic overlook. (P1317178 at 6, 9).

Shortly after the Lisa Express tractor trailer came to a stop in the roadway, it was struck by a tractor trailer owned by Third-Party Defendant Western Express ("Western Express") and operated by Third-Party Defendant Louis Cirino ("Cirino"). (307 ¶¶ 8, 9). The Western Express trailer came to a stop in the median, but the Lisa Express trailer remained across the southbound lands of the interstate. (307 ¶¶ 9, 10).

A Pontiac Grand Am driven by Third-Party Defendant Kevin Olvany then struck the trailer portion of the Lisa Express trailer before coming to rest in the median between the north and southbound lanes. (Crash Report P1317176 (Doc. 301-7)). A Ford Ranger driven by Third-Party Defendant John Butler struck the cab portion of the Lisa Express trailer and immediately came to rest. (Crash Report P1317177 (Doc. 301-8)).

A tractor trailer with tandem trailers driven by Third-Party Defendant Jeff Ganz and operated by Third-Party Defendant Old Dominion Freight Line, Inc. then struck the Lisa Express trailer, sheering it from the tractor. (Crash Report P1317180 (Doc. 318 at 79)).

A Volkswagon Passat driven by Third-Party Defendant John Owens struck the rear trailer of the Old Dominion vehicle. (Crash Report P1317175 (Doc. 301-10)). A GMC Jimmy, driven by Third-Party Defendant Jerry Rogers, struck the Passat head-on, and came to rest on top of the Passat. (Crash Report P1317174 (Doc. 301-11)). A Landstar Ranger trailerless-tractor driven by Third-Party Defendant David Jordan then struck the rear trailer of the disabled Old Dominion vehicle. (Crash Report P1317173 (Doc. 301-12)).

With the exception of Jones, all of these drivers were issued citations for failing to operate their vehicles at a safe speed for the conditions in violation of 75 PA. CONN. STAT. ANN. § 3361. (Doc. 318 ¶¶ 13 - 21). Each instance of a vehicle impacting another vehicle was documented in its own Crash Report. (Trooper Berstler Dep. (Doc. 327-6 at 5)). Trooper Chad Berstler's indicated that the initial collision between the Swift and Lisa Express tractor trailers occurred at 6:03 a.m. (Crash Report P1317178 (Doc. 327-3)).

Other vehicles were able to stop safely behind-- or among-- this pileup. (Crash Report P1317914; Minchhoff Dep. (Doc. 327-11 at 11)). Corporal Christopher Minchhoff stated that twenty or more vehicles stopped behind the pileup. (Minchoff Dep. (Doc. 327-11 at 11)). Benshoff, who visited the crash site on behalf of Lisa Express, estimated that there were a half-dozen tractor trailers stopped behind the initial pileup. (Benshoff Dep. (Doc. 327-8 at 5)).

Third-Party Defendant Paul Strausner ("Strausner"), driving a tractor trailer owned by Third-Party Defenant Mack Trucks, Inc., was able to stop his truck behind the vehicles in front of him. (Strausner Dep. (Doc. 327-19 at 4)). He indicated that in the worst portions of fog, he was lucky to see seventy-five feet, and that if he had known the conditions he would not have taken his truck up the mountain. (Strausner Dep. (Doc. 304-12 at 3, 5). When he hit the fog he decelerated until he was moving fifteen to twenty miles per hour, with his fog lights on and his hazard lights blinking. (Id. at 6). Strausner heard two reports on his CB radio of a bad accident on I-81 South, below Exit 112, which apparently was the accident described above, and that there were people and debris all over.*fn3 (Id. at 8). When Strausner reached the accidents he came to a stop thirty to forty feet behind the vehicle in front of him, leaving his engine running and his fog and hazard lights on. (Strausner Dep. (Doc. 327-19 at 4).

Defendant James L. White ("White"), operating a Davis Transfer Co., Inc. ("Davis Transfer") tractor trailer, came upon Strausner's stopped truck and struck it from behind. (White Dep. (Doc. 322-3 at 11)). White saw red taillights ahead, but never saw any hazard lights before his accident. (Id. at 10)). White was issued a citation for driving too fast for conditions. (Doc. 318 ¶ 23). White had falsified his logbook entry for the day of the accident because, under federal motor carrier regulations, he had driven too many hours without taking full sleep breaks. (White Dep. (Doc. 323-14 at 2)). White didn't verify if his own hazard lights were on, but recalls activating them. (White Dep. (Doc. 322-3 at 14, 28)). Strausner recalls seeing White's lights on, but states that White's hazard lights were not on. (Strausner Dep. (Doc. 322-7 at 6)). Strausner stated that he was only stopped for several seconds before White collided with him. (Strausner Dep. (Doc. 327-19 at 13)).

White and Strausner got out of the cabs of their trucks to check on one another and decided that Strausner would pull forward to separate the trucks. (Strausner Dep. (327-19 at 12)). Strausner then got back in his truck and pulled forward. (Id. at 13). He re-exited his cab and heard the impact of Angi Burnett's car. (Id.) White testified that he did not have time to set out the triangle reflectors with which his truck was equipped before his own truck was hit. (White Dep. (Doc. 322-3 at 17-18)).

At that point, Decedent Angi Burnett, driving a rented Nissan Altima, struck White's Davis Transfer Trailer Truck from behind. (Doc. 318 ¶ 24). White was standing next to Strausner's cab when he heard screeching and the impact of Burnett's vehicle. (White Dep. (Doc. 327-10 at 15); White Dep. (Doc. 304-11 at 3)). The impact was such that the Altima wedged itself under the ICC bar of the Davis Transfer Trailer, and lifted the trailer's rear wheels off of the ground.*fn4 (Strausner Dep. (Doc. 318 at 158); White Dep. (Doc. 318 at 161)). The ICC bar peeled back the Altima's hood and impinged upon the "A pillar" of the front passenger side and continued into the passenger compartment. (Report of George C. Govatos, PhD, PE (Doc. 327-9 at 4); Coroner Dutcavich Dep. (Doc. 327-22 at 3-4)). Angi Burnett was pinned against the ICC bar and, ultimately, asphyxiated. (Certificate of Death (Doc. 327-28) (indicating cause of death as: (a) traumatic compression asphyxia; (b) thoracic compression between seat/steering wheel; (c) compartment intrusion by trailer bumper; and (d) collision into rear of tractor-trailer)). The coroner, David Dutcavich, noted a right handprint on the fabric headliner of Burnett's vechicle, which is the interior roof of the car. (Coroner Dutcavich Dep. (Doc. 327-22 at 4)).

In the car with Angi Burnett were her two sons, C.B. and T.B., respectively ages twelve and nine years old on the date of the crash. (C.B. Medical Records (Doc. 327-30 at 1) (indicating birthdate); T.B. Medical Records (Doc. 327-33 at 1) (indicating birthdate)). C.B. was in the front passenger seat next to his mother. (T.B. Dep. (Doc. 327-32 at 5)). T.B. was asleep in the rear at the time of the impact, while C.B. as awake. (T.B. Dep. (Doc. 327-32 at 3); C.B. Dep. (Doc. 327-29 at 11; T.B. Medical Records (Doc. 327-33 at 11)). Angi Burnett spoke to her two sons and told them she loved them. (C.B. Dep. (Doc. 327-29 at 3). C.B. heard his mother moaning as he was removed from the car. (Id. at 5). T.B. could tell his mother was trying to scream but was not able to. (T.B. Dep. (Doc. 327-32 at 4)). T.B. heard his mother asking for help. (Id.) As C.B. was transferred between ambulances at the scene he saw a blanket over his mother's face and knew she was dead. (Id. at 5, 7).

Trooper Minchoff recorded the time of the Burnett accident as 6:04 a.m., estimating that it occurred one minute after the Davis Transfer vehicle struck the Mack Truck vehicle, based apparently on the statement of Strausner or White that they had just gotten out of their trucks when Angi Burnett hit the Davis Transfer vehicle. (Minchoff Dep. (Doc. 328-16 at 3); Crash Report P1317914 (Doc. 327-12); Crash Report P1317162 (Doc. 318 at 148)).

Corporal Minchhoff estimated that the decedent had been traveling at a speed of seventy miles per hour, based upon the damage sustained by the vehicle. (Corporal Minchhoff Dep. (Doc. 327-11 at 4)). He stated that the decedent had been on the road for four or five hours, having left from Syracuse, New York, by the time of the accident at 6:04 a.m. (Corporal Minchoff Dep. (Doc. 304-13 at 3); Crash Report P1317914 (Doc. 327-12) (noting time of crash as 6:04 a.m.)). Corporal Minchhoff did not see any skid marks behind the Altima. (Doc. 318 ¶ 27). Corporal Minchhoff indicated that the decedent had failed to operate her vehicle at a safe speed for the conditions, in violation of 75 PA. CONN. STAT. ANN. § 3361, though no citation was issued. (Crash Report P1317914 (Doc. 327-12); Minchhoff Dep. at 25, 65).

The Swift defendants' expert report by Alfred Cipriani, MSME, P.E., finds (1) that the Swift accidents were distinct from the Burnett accident; (2) that Jones had not pulled into traffic at a low speed, but had built up to forty-five miles per hour at the time he was hit by Ludwig; (3) that Ludwig was traveling too fast for conditions; (4) and that Angi Burnett caused the final accident by traveling too fast for conditions. (SEA, Ltd. Report of June 15, 2010 (Doc. 318 at 31-54)).

The plaintiffs' expert report by Report of George C. Govatos, PhD, PE disputes the estimates of Trooper Minchoff and the Swift defendants experts' estimates of Angi Burnett's speed at the time of her accident with the Davis Transfer trailer. (Report of George C. Govatos, PhD, PE (Doc. 327-9 at 4-14)). Specifically, he contends that there is no accepted means of estimating the force of an impact from the severity of damage where the accident does not involve striking a flat surface like a wall. (Id.) Without a reliable estimate of force, speed cannot be determined. He states that in accidents like Angi Burnett's, where the bumper and front portion of the vehicle "underride" the point of impact, severe damage can be caused even at a speed of thirty-five miles per hour, because force is not distributed through the car's bumper, enginge block, and the car's internal frame. (Id. at 13).

White and Strausner removed the children from the Burnett vehicle. The boys were described as being scared, badly shaken, and crying. (White Dep. (Doc. 327-10 at 13); Strausner Dep. (Doc. 327-19 at 7)). An off-duty paramedic took the boys to her car. (Strausner Dep. (Doc. 327-9 at 8)). When responding paramedics arrived, they checked on the decedent but proceeded on to other vehicles, from which witnesses assumed decedent was dead. (Strausner Dep. (Doc. 327-19 at 9)).

C.B. and T.B. were taken to Good Samaritan Regional Medical Center by ambulance. (Doc. 318 ¶ 30). C.B. had pain in the side of his neck from his seat belt. (C.B. Dep. (Doc. 327-29 at 6)). T.B. had pain in his abdomen from his seat belt, a swollen contusion on his forehead, and nausea. (T.B. Medical Record (Doc. 327-33 at 9, 11, 14)). A CT Scan of T.B.'s abdomen and pelvis was normal and a CT Scan of T.B.'s brain indicated only sinusitis. (Id. at 18-19).

C.B. received psychological treatment from Dr. Isabella Rauh-Ivers over five visits, between September 13, 2006 and March 21, 2007. (Doc. 18 ¶ 32). Rauh-Ivers stated that, according to the father, Terry Burnett, C.B. was reluctant to talk about his mother's death and was afraid of driving near big trucks. (Doc. 327 ¶ 30). Rauh-Ivers indicated that the accident was psychotraumatic for C.B., and that C.B. would only speak tersely about his mother's death. (Doc. 327 ¶ 31). C.B. also received counseling from Copeland Avenue Associates over four visits, between December 15, 2008 and March 5, 2009. (Doc. 327 ¶32). He was diagnosed with adjustment disorder with mixed anxiety and depressed mood and bereavement. (Id.) C.B. did not find any of the treatment sessions helpful. (C.B. Dep. (Doc. 327-29 at 8)).

T.B. also received treatment from Dr. Rauh-Ivers. (Doc. 327 ¶ 35).

T.B., like his brother, could speak tersely about his mother's death and was very reluctant to talk about anything stressful. (Id. ¶ 36). T.B. received counseling from Copeland Avenue Associates over three visits, between December 15, 2008 and March 5, 2009. (Id. ¶ 37). T.B. was diagnosed with adjustment disorder with mixed anxiety and depressed mood as well as bereavement. (Id.) Terry Burnett stated that his sons have no serious health issues. (T.B. Dep.(Doc. 318 at 201)).

Minchoff stated that the distance between the accident sites was 200 yards. (Minchhoff Dep. (Doc. 318 at 140). Experts for the Swift defendants estimate that the accidents were separated by as much as 700 yards. (SEA, Ltd. Report of June 15, 2010 (Doc. 318 at 31-54)). Elizabeth Cominio, who was able to stop within twenty feet of the first accident group estimated that it took two minutes to walk from the first accident group to the Burnett accident, estimating the distance to be one quarter mile, which is 440 yards. (Cominio Dep. (Doc. 327-17 at 9)). Benshoff estimated the distance to be between one quarter and one half of a mile. (Benshoff Dep. (Doc. 327-8 at 5)). Strausner, however, indicated that later in the ...


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