United States District Court, W.D. Pennsylvania
R. Hornak United States District Judge.
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.).
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.
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. 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.)
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 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).
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.
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.
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
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.
Count I: Negligence Against Terry and Derivative
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
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 ...