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Fakes v. Terry

United States District Court, W.D. Pennsylvania

March 19, 2018

ALLAN FAKES, et al., Plaintiffs,
v.
BILLY J. TERRY, et al., Defendants. SPARTA INSURANCE COMPANY, et al, Plaintiffs,
v.
BILLY J. TERRY, et al, Defendants.

          OPINION

          Mark R. Hornak, United States District Judge

         Plaintiffs Allan Fakes and his wife Ann Fakes bring this diversity action against Defendants Billy Terry, Allen Sherrod, and their employer Carolina Cargo of Rock Hill ("Carolina Cargo") (collectively, "Defendants") following a truck accident that occurred in the early morning of November 24, 2013. This personal injury case was consolidated with a separate property damage case brought by Coastal Carriers, Inc., Allan Fakes's employer at the time of the accident, and Sparta Insurance Company as subrogee of Coastal Carriers, Inc. ("Consolidated Plaintiffs"), against the same Defendants. See Sparta Ins. Co. v. Terry, No. 15-cv-1655 (W.D. Pa.).

         Defendants filed a Motion for Summary Judgment on all claims. (Defs.' Mot. for Summ. J., ECF No. 44.) For the reasons that follow, Defendants' Motion for Summary Judgment, ECF No. 44, is granted in part and denied in part.

         I. BACKGROUND

         Defendant Terry was operating Carolina Cargo's tractor trailer on Interstate 70 eastbound with fellow driver Defendant Sherrod also in the truck. (Defs.' Concise Statement of Material Facts ("CSMF") 10, ECF No. 46.) There is no dispute that both men were acting within the course and scope of their employment with Carolina Cargo. (Id.) At some point prior to 6:15 AM on November 24 2013, the Carolina Cargo tractor ceased operation as it pulled out of a rest stop, leaving the Carolina Cargo truck stopped in place somewhere between the merging lane and the right lane of traffic.[1] At some point between one and twenty minutes later, at approximately 6:15 AM, Fakes, operating his semi-tractor trailer and proceeding in the right lane of traffic eastbound on Interstate 70, rear-ended the stationary Carolina Cargo truck. (Defs.' CSMF 3, 5, 15, ECF No. 46; Pis.' CSMF 15, ECF No. 52; Pis.' Br. in Opp., ECF No. 53, at 2.)

         All parties agree that Fakes saw the Carolina Cargo truck before he rear-ended it. (Defs.' CSMF 1, ECF No. 46; Pis.' CSMF 1, ECF No. 52.) Fake's testimony provides various measurements of distance[2] as to when he first saw the Carolina Cargo truck, but Plaintiffs maintain that Fakes, whenever he first perceived the Carolina Cargo truck, believed the truck to be in forward motion since there were no warning devices placed behind the stopped truck to indicate to upcoming drivers that the truck was in fact stopped. (Pis.' CSMF 1, ECF No. 52.) Fakes maintains that by the time he was able to see that the truck was actually at a halt, it was too late to make any evasive maneuvers. (Id.) Fakes also testified that he was coming out of a "blind corner, " on an uphill turn going downhill. (Defs.' CSMF 2, ECF No. 46).

         Allan Fakes allegedly suffered significant personal injuries as a result of the collision, giving rise to his personal injury claims and his wife's claims for loss of consortium. (Compl. ¶¶ 16, 77, ECF No. 1-2.) Consolidated Plaintiffs allege significant monetary damages in the payments for property damage and insurance deductibles, giving rise to their corresponding property damage claims. (Case No. 15-cv-1655, Compl. ¶ 17, ECF No. 1 ("Consolidated Complaint").) While the pled damages are different, both the Complaint and the Consolidated Complaint assert the same numerated negligence-based claims, with the exception of Mrs. Fakes's additional claims for loss of consortium.

         Count I states a claim for negligence against Terry on the basis that Terry negligently failed to place emergency warning devices behind his stalled truck to warn approaching motorists and negligently failed to pull the Carolina Cargo truck off the traveled roadway and onto the shoulder. Count II states a claim for negligent training and supervision against Sherrod for failing to train and/or supervise Terry. Count III states a claim for negligent entrustment against Carolina Cargo for entrusting its truck to Terry. Count IV states a claim for negligent maintenance against Carolina Cargo for failing to inspect, repair, and/or maintain the truck in question pursuant to 49 C.F.R. § 396.3(a). Count V states a claim for negligence/negligence per se against Carolina Cargo. Count VI also pleads a claim for negligence against Carolina Cargo, asserting vicarious liability/respondeat superior on the basis of Terry's status as an employee acting within the scope of his employment to Carolina Cargo. Count VII pleads the same as Count VI but with respect to Sherrod. Count VIII pleads a claim for negligent selection/hiring/retention against Carolina Cargo with respect to Terry. Count IX pleads the same with respect to Sherrod. Mrs. Fakes then brings claims X, XI, and XII against various Defendants for loss of consortium.

         II. LEGAL STANDARD

         A party is entitled to summary judgment if it can show that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "A genuine issue of material fact is one that 'affects the outcome of the suit under the governing law' and could lead a reasonable jury to return a verdict in favor of the nonmoving party." Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Initially, the moving party bears the burden of demonstrating that the evidentiary record presents no genuine issue of material fact. Willis, 808 F.3d at 643. If it does so, the burden shifts to the nonmoving party to "identify facts in the record that would enable them to make a sufficient showing on essential elements of their case for which they have the burden of proof." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "If, after adequate time for discovery, the nonmoving party has not met its burden ... the court must enter summary judgment against the nonmoving party." Willis, 808 F.3d at 643. Inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. ANALYSIS

         Defendants argue in their Motion for Summary Judgment that each and every claim should be dismissed. A federal court exercising diversity jurisdiction is generally obliged to apply the substantive law of the state in which it sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). There is no conflict of law issue here, as the accident occurred in Washington County, Pennsylvania, and both parties agree that Pennsylvania substantive law applies to all of the common law state claims in this consolidated case. See Defs.' Br. in Supp., ECF No. 45; Pis.' Br. In Opp., ECF No. 53.

         A. Count I: Negligence Against Terry and Derivative Claims

         According to the Plaintiffs, Terry had a duty to place warning devices behind his disabled vehicle to warn approaching vehicles that the truck was at a halt and potentially creating a road block. Pis.' Br. in Opp., ECF No. 53, at 10-11. Plaintiffs point to commercial motor vehicle regulations to show such failure demonstrates negligence per se.[3] Defendants admit no warning devices were so placed, but point to the fact that Fakes admittedly saw the truck prior to impact, which they say ...


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