Estela v. Porter, et al., No. 3:2009cv08179 - Document 65 (D. Ariz. 2011)

Court Description: ORDER granting 39 FirstFleet's Motion for Summary Judgment; granting 49 Porter's Motion for Summary Judgment. The Clerk of the Court shall terminate this action. Signed by Judge G Murray Snow on 6/30/11.(DMT)

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Estela v. Porter, et al. 1 Doc. 65 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 Juan C. Estela, on behalf of the minor) ) children of Decedent, Virgen Estela, ) ) Plaintiff, ) ) vs. ) ) FirstFleet Inc., Ronald Darnell Porter,) John and Jane Does I-Z; ABC) Corporations 1-5; and QRS Limited) ) Liability Companies 1-5, ) ) Defendants. ) ) No. CV-09-08179-PHX-GMS ORDER 17 18 Pending before the Court are the following motions: (1) Defendant FirstFleet Inc.’s 19 Motion for Summary Judgment (Doc. 39); and (2) Defendant Ronald Porter’s Motion for 20 Summary Judgment (Doc. 49). For the reasons stated below, the Court grants both 21 Defendants’ motions. 22 BACKGROUND 23 The facts are essentially undisputed. On May 10, 2008, Decedent Virgen Estela 24 (“Estela”) was a passenger in a tractor-trailer being driven by Defendant Ronald Porter 25 (“Porter”). Porter and Estela’s two minor children, ages 1 and 2, were also in the sleeper 26 portion of the trailer. The tractor-trailer was owned by Defendant FirstFleet, Inc. 27 (“FirstFleet”), Porter’s employer. While Porter was driving the trailer on Interstate 17, he 28 and Estela got into an argument, prompting Estela to open the passenger door of the truck 1 and threaten to jump. Porter took the next available exit. While the passenger door was still 2 open, Porter slowed down as he exited the highway, trying to bring the vehicle to a complete 3 stop. After Porter yelled out to her, “What are you doing?”, Estela proceeded to jump out of 4 the trailer while it was still in motion. Porter then turned the tractor-trailer to the left so that 5 it would not hit her. Porter did not slam on the brakes, but after coming to a complete stop, 6 he exited the truck and discovered Estela lying on the roadway. She had been struck by the 7 trailer tires. There were no witnesses to the accident. However, the parties do not dispute that 8 the physical evidence at the scene, including tire marks, footprints, and hand prints, indicates 9 that after Estela jumped, she took a few steps in roughly the same direction and angle as the 10 trailer was traveling. 11 Plaintiff alleges that Defendant Porter negligently turned the truck in a manner that 12 caused the trailer to run over Estela, causing her death. Plaintiff asserts a negligence claim 13 against Porter for Estela’s wrongful death. Plaintiff also contends that FirstFleet is liable for 14 Porter’s negligence pursuant to the theory of respondeat superior.1 Defendants move for 15 summary judgment on both claims. DISCUSSION 16 17 I. Legal Standard 18 Summary judgment is appropriate if the evidence, viewed in the light most favorable 19 to the nonmoving party, demonstrates “that there is no genuine issue as to any material fact 20 and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c)(2). 21 Substantive law determines which facts are material and “[o]nly disputes over facts that 22 23 1 24 25 26 27 28 In his Complaint, Plaintiff also asserts a negligent entrustment claim against Defendant FirstFleet. Pursuant to Plaintiff’s own Notice of Dismissal of Negligent Entrustment Claim (Doc. 35), the Court entered an Order dismissing that claim on September 27, 2010, (Doc. 36). In response to FirstFleet’s motion for summary judgment, Plaintiff attempts to reassert his negligent entrustment claim because of Defendant’s assertion of an unauthorized passenger defense. (Doc. 51 at 11). Plaintiff failed to amend his complaint within the appropriate time period and cannot reassert a previously withdrawn claim at the summary judgment stage. -2- 1 might affect the outcome of the suit under the governing law will properly preclude the entry 2 of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact 3 issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the 4 nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) 5 (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving party must show that the genuine 6 factual issues “‘can be resolved only by a finder of fact because they may reasonably be 7 resolved in favor of either party.’” Cal. Architectural Bldg. Prods., Inc. v. Franciscan 8 Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250). 9 II. Defendants’ Motions for Summary Judgment Negligence Claim Against Porter2 10 A. 11 To prevail on a claim for negligence, Plaintiff must prove four elements: (1) a duty 12 on the part of Defendant Porter to exercise reasonable care, (2) a breach of that duty, (3) a 13 causal connection between Porter’s negligent conduct and the resulting injury, and (4) actual 14 damages. Gipson v. Kasey, 214 Ariz. 141, 143, 150 P.3d 228, 230 (2007). The existence of 15 a duty is generally a question of law, while the other three elements are factual issues 16 “generally within the province of the jury.” Ritchie v. Krasner, 221 Ariz. 288, 295, 211 P.3d 17 1272, 1279 (App. 2009) (citing Gipson, 214 Ariz. at 143, 150 P.3d at 230). Defendants do 18 not contest that Porter owed Estela the duties imposed upon motorists to operate a vehicle 19 at a reasonable speed and with prudence, and to avoid colliding with pedestrians. (Doc. 57 20 at 2–3). However, Defendants contend that Plaintiff points to no evidence to establish the 21 second or third elements of a negligence claim – breach or causation. (Doc. 39, 49). 22 The moving parties bear the initial burden of showing that there exists no genuine 23 issue of material fact, a burden that can be “discharged by . . . pointing out to the district 24 court . . . that there is an absence of evidence to support the nonmoving party’s case.” Celotex 25 Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Nissan Fire & Marine Ins. Co. v. Fritz 26 27 28 2 Defendant Porter joins with and incorporates co-Defendant FirstFleet’s Motion for Summary Judgment. (Doc. 49 at 1). -3- 1 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (“[T]he moving party [may] . . . show that the 2 nonmoving party does not have enough evidence of an essential element to carry its ultimate 3 burden of persuasion at trial.”). Defendants assert that Plaintiff has presented no evidence 4 that Defendant Porter breached his duty of reasonable care by swerving to the left when 5 Estela jumped out of the passenger seat of the trailer cab or that Defendant Porter’s actions 6 were the cause of Estela’s death. (Doc. 39). It is undisputed that after Estela opened the 7 passenger door of the tractor-trailer and threatened to jump, Defendant Porter took the next 8 available exit off the interstate and slowed down as he exited. It is also undisputed that after 9 Estela jumped, Porter turned the tractor-trailer away from her so as to not hit her. Thus, 10 Defendants assert that Plaintiff has failed to point to any evidence to support Porter’s alleged 11 breach of his duty of reasonable care. 12 Once the moving parties have met their initial burden, as the Defendants have done 13 here, the nonmoving party bears the burden of demonstrating the existence of some genuine 14 issue of material fact, that is, sufficient admissible evidence to support a jury verdict in its 15 favor at trial. Celotex, 477 U.S. at 324, 327. Plaintiff’s only attempt to establish the existence 16 of a genuine issue of material fact with respect to the required breach element is to assert that 17 Porter’s negligence can be inferred by relying on the opinions of “competent accident 18 investigators [who] were on the scene immediately after.” (Doc. 51 at 5). Nevertheless, 19 Plaintiff has not pointed to any evidence from the investigators, medical examiner or anyone 20 else to create a triable issue of fact with respect to this element. In his Initial Disclosure 21 Statement, provided by Plaintiff on February 5, 2010, he disclosed the following about each 22 of the individuals he believes can demonstrate the required elements of his negligence claim: 23 1) Medical Examiner Dr. Philip Keen “will testify regarding the cause of death”, 2) Detective 24 Ross Diskin was one of the responding officers who also attended Estela’s autopsy and “will 25 testify regarding her injuries being consistent with being run over by a trailer”, 3) Detective 26 A. Jaramillo received the drug screen examination of Porter and “will testify regarding the 27 negative test results”, 4) T. Legler was another responding officer who prepared a diagram 28 of the scene documenting tire marks, footprints and other evidence, and “will testify to the -4- 1 scale and accuracy thereof”, 5) M. Yates, O. Thomsen, Sergeant C.J. Myhre, A. Kollmer, J. 2 McDormett, J. Nelson, S. Weber, and Sergeant L. Huante were other responding officers, 3 some of whom prepared supplemental narratives of the incident. However, Plaintiff does not 4 specify what these officers would testify to. 5 Moreover, Plaintiff does not point to any admissible evidence in the several reports 6 of the investigating officers or medical examiner that would suggest that Defendant Porter 7 was negligent in turning the trailer away from Estela upon her jumping out. In fact, the 8 officers and medical examiner would not be qualified to testify as to what action Porter 9 should have taken in operating the tractor-trailer when Estela jumped. Such testimony would 10 be limited to an expert who has specialized knowledge in the area of accident reconstruction 11 and/or the operation of commercial vehicles.3 See Woodward v. Chirco Constr. Co., Inc., 12 141 Ariz. 520, 522, 687 P.2d 1275, 1277 (App. 1984), approved as supplemented by 141 13 Ariz. 514, 687 P.2d 1269 (1984) (Arizona “law requires expert testimony when a layman is 14 not competent to judge whether or not a particular practice is negligent.”); see also Allied 15 Van Lines, Inc. v. Parsons, 80 Ariz. 88, 93, 293 P.2d 430, 433 (1956) (finding that the 16 operation of a Greyhound bus, which was equipped with air brakes, suspended on air bellows 17 instead of springs, and which requires special training, was properly the subject of expert 18 testimony). 19 The Court’s Case Management Order (Doc. 21) states that the Plaintiff “shall provide 20 full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C)” and that 21 “[d]isclosures under Rule 26(a)(2)(A) must include the identities of treating physicians and 22 other witnesses who have not been specially employed to provide expert testimony in this 23 case, but who will provide testimony under Federal Rules of Evidence 702, 703, or 705.” 24 (Doc. 21 at 2–3). The Order further provides that “[a] Rule 26(a)(2)(B) report is required for 25 any opinion of such witnesses that was not developed in the course of their treatment or other 26 27 28 3 Plaintiff did not disclose any experts by the extended expert disclosure deadline of September 30, 2010. (Doc. 31). -5- 1 factual involvement in this case.” (Id. at 3). Thus, while Plaintiff did not need to provide a 2 Rule 26(a)(2)(B) report for the eleven investigating officers and medical examiners because 3 their opinions were developed in the course of their involvement with the accident, Plaintiff 4 had to disclose these individuals as experts if he intended for them to testify under Rules 702, 5 703, or 705. 6 Having failed to disclose these individuals as experts pursuant to Rule 26(a)(2)(A), 7 Plaintiff is limited to relying on their lay testimony pursuant to Rule 701. Rule 701 explains 8 that lay testimony is limited to opinions or inferences which are “rationally based on the 9 perception of the witness” and “not based on scientific, technical, or other specialized 10 knowledge.” (emphasis added). The Advisory Committee’s Note to the 2000 Amendments 11 further explains that the amendment incorporates the following distinctions: “lay testimony 12 ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results 13 from a process of reasoning which can be mastered only by specialists in the field.’” FED. R. 14 EVID. 701 advisory committee’s note (quoting Tennessee v. Brown, 836 S.W.2d 530, 549 15 (Tenn. 1992)). Testimony regarding the operation and maneuvering of a commercial carrier, 16 which requires a specialized license and training, would not be “‘common enough’” to 17 require only a “limited amount of expertise.” United States v. Figueroa-Lopez, 125 F.3d 18 1241, 1245–46 (9th Cir. 1997) (quoting United States v. VonWillie, 59 F.3d 922, 929 (9th 19 Cir. 1995)). Because the investigating officers and medical examiners were not disclosed as 20 experts, they can only testify as lay witnesses within the scope of Rule 701, thereby 21 precluding them from offering any technical or specialized knowledge about Porter’s 22 maneuvering of the trailer after Estela jumped out, and whether the decision to turn the trailer 23 away from Estela fell below the standard of care. 24 The Ninth Circuit’s unpublished decision in Burnham v. United States does not effect 25 this conclusion. No. 09-16581, 2010 WL 4069088 (9th Cir. Oct. 18, 2010). Burnham 26 involved a two-car collision in which the driver of one car died in the accident and the other 27 was knocked unconscious and had no recollection of what had transpired. There were no 28 other witnesses to the accident. This Court held that the observations of the decedent’s friend, -6- 1 who visited the scene of the car accident the day after it occurred, provided no basis for a 2 jury to conclude whether defendant had caused the accident. 2009 WL 2169191 (D. Ariz. 3 July 20, 2009). The Ninth Circuit reversed, in part, holding that while the District Court did 4 not err in excluding the friend’s proposed expert testimony, the friend’s lay testimony 5 regarding the scene of the accident, in particular his visual observations that there was debris 6 and a gouge in the asphalt on the decedent’s side of the road, was admissible and could 7 support an inference by the trier of fact that the collision occurred on decedent’s side of the 8 road, and therefore an inference of negligence on the part of the defendant. 9 As in Burnham, no expert testimony is available to Plaintiff either by retained or non- 10 retained experts about accident reconstruction or the proper standard of care in driving a 11 tractor-trailer or its performance characteristics. However, unlike Burnham, Plaintiff here 12 fails to identify any other lay testimony or evidence from which it can be inferred that 13 Defendant Porter was negligent by swerving to the left when Estela jumped out from the 14 right side of the trailer’s cab. Rather, the parties generally agree to Defendant Porter’s 15 version of the facts. Porter does not dispute that Estela was run over by the tire of the tractor- 16 trailer which he was driving, but where decedent herself jumped from the moving trailer that 17 she was subsequently run over by, that she in fact was run over does not give rise to an 18 inference of negligence in the Defendant. This is especially true because it remains 19 undisputed that after Estela threatened to jump, Porter took the next available exit and slowed 20 the vehicle. Moreover, after she jumped out to the right, Defendant swerved to the left. Estela 21 then took several steps in the same direction and angle as the trailer was moving before the 22 tire rolled over her. Plaintiff’s suggestion that Porter should have stopped immediately also 23 fails to give rise to an inference of negligence where Plaintiff points to no evidence to 24 indicate that had Porter abruptly slammed on the brakes, the tractor-trailer could have 25 stopped in time to avoid striking Estela. Therefore, Burnham is clearly distinguishable from 26 the present case not only because the accidents are factually dissimilar, but also because 27 Plaintiff, unlike Burnham, has failed to provide any evidence from which a reasonable juror 28 could make a possible inference of negligence. -7- 1 Both the undisputed evidence and Plaintiff’s failure to provide any evidence of 2 negligence or even an inference of negligence obliges the Court to conclude that this is one 3 of those rare instances where Plaintiff has failed to identify any evidence from which a 4 reasonable juror could find that Defendant Porter breached his duty of reasonable care. Nor 5 does Plaintiff identify evidence which could support an inference that Porter caused Estela’s 6 death through his negligent conduct.4 7 negligence claim against Porter is proper. Therefore, summary judgment on Plaintiff’s 8 B. Negligence Claim against FirstFleet 9 Plaintiff also asserts a negligence claim against Defendant FirstFleet pursuant to the 10 doctrine of respondeat superior. Under this theory, an employer can be held vicariously 11 liable for the negligent work-related actions of its employees. See Tarron v. Bowen Mach. 12 & Fabricating, Inc., 225 Ariz. 147, 150, 235 P.3d 1030, 1033 (2010); see also Carnes v. Phx. 13 Newspapers, Inc., __Ariz. __, ¶ 9, 251 P.3d 411,__ (App. 2011) (“In Arizona, an employer 14 may be held vicariously liable on the theory of respondeat superior for negligent driving of 15 a vehicle by its employee if the facts establish an employer-employee relationship and the 16 negligence of the employee occurred during the scope of her employment.” (citing State v. 17 Superior Court (Schraft), 111 Ariz. 130, 132, 524 P.2d 951, 953 (1974) (internal citations 18 omitted))). As previously discussed, Plaintiff has failed to establish a negligence claim 19 against Defendant Porter. Accordingly, Plaintiff’s claim against Porter’s employer, FirstFleet, 20 under the theory of respondeat superior also fails as a matter of law. See, e.g., Ford v. Revlon, 21 153 Ariz. 38, 42, 734 P.2d 580, 584 (1987) (“[W]hen the master’s liability is based solely 22 on the negligence of his servant, a judgment in favor of the servant is a judgment in favor of 23 the master.”); Torres v. Kennecott Copper Corp., 15 Ariz. App. 272, 274, 488 P.2d 477, 479 24 (App. 1971). Thus, summary judgment in favor of Defendant FirstFleet is also appropriate 25 26 27 28 4 Although Defendants challenge the causation element, they do not contest that Estela died as a result of the trailer tire running over her. (Doc. 57 at 6). -8- 1 on Plaintiff’s negligence claim.5 CONCLUSION 2 3 To defeat summary judgment, Plaintiff must produce evidence “such that a reasonable 4 jury could return a verdict” in his favor. Anderson, 477 U.S. at 248. Plaintiff has not met this 5 burden with respect to the required breach and causation elements of his negligence claim. 6 Accordingly, summary judgment is proper on Plaintiff’s negligence claim against both 7 Defendants. 8 IT IS ORDERED: 9 1. 10 Defendant FirstFleet’s Motion for Summary Judgment (Doc. 39) is GRANTED. 11 2. Defendant Porter’s Motion for Summary Judgment (Doc. 49) is GRANTED. 12 3. The Clerk of the Court shall terminate this action. 13 Dated this 30th day of June, 2011. 14 15 16 17 18 19 20 21 22 23 24 25 26 5 27 28 Because Plaintiff’s negligence claim against Defendant FirstFleet fails as a matter of law, it is unnecessary to discuss FirstFleet’s alternative unauthorized passenger defense pursuant to the 49 C.F.R. § 392.60 and the company’s passenger policy. -9-

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