BUTLER v. ADORNO et al
Filing
75
ORDER granting in part and denying in part 50 Motion for Summary Judgment; granting in part and denying in part 52 Motion for Summary Judgment; denying as moot 57 Motion for Leave to File. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 03/27/2024 (elp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ANTHONY BUTLER,
Plaintiff,
v.
JOSE ALBERTO CRUZ ADORNO,
CTS NATIONAL CORPORATION,
and ACE AMERICAN INSURANCE
COMPANY,
Defendants.
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No. 5:21‐CV‐182 (CAR)
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
AND PLAINTIFF’S MOTION TO AMEND COMPLAINT
This case stems from the collision of two tractor‐trailers. Defendant Jose Alberto
Cruz Adorno, driving a tractor‐trailer under dispatch for Defendant CTS National
Corporation, rear‐ended Plaintiff Anthony Butler, driving a tractor‐trailer for UPS
Ground Freight, Inc.1 Defendant ACE American Insurance Company insured Defendant
CTS. Before the Court are Defendants’ Motions for Summary Judgment. Having read and
considered the Motion, the record in this case, the applicable law, and the parties’
arguments, the Court HEREBY GRANTS in part and DENIES in part Defendants’
Motions for Summary Judgment [Docs. 50, 52] and DENIES as moot Plaintiff’s Motion
1 In his deposition Defendant Adorno is identified using his first surname, “Cruz;” however, because the
relevant motions identify him as “Adorno,” that is how the Court will identify him.
1
to Amend Complaint [Doc. 57].
BACKGROUND
On May 5, 2019, around 11:14pm, Defendant Jose Alberto Cruz Adorno2 rear‐
ended Plaintiff Anthony Butler.3 At the time of the collision, Defendant Adorno was
driving a tractor and hauling an empty tanker‐trailer under dispatch for Defendant CTS
National Corporation,4 and Plaintiff was driving a fully loaded tractor‐trailer under
dispatch for UPS Ground Freight, Inc.5 Defendant ACE American Insurance Company is
the insurer for Defendant CTS National.6
After stopping at a Pilot Travel Center for a few hours, Plaintiff left and entered
the on‐ramp for Interstate 75 North.7 It was dark, and the roads were dry.8 As Plaintiff
merged onto I‐75 at exit 146 he noticed his tractor‐trailer was not picking up speed.9 The
exact speed Plaintiff was driving is in dispute. Defense expert James Hrycay opined
Plaintiff never exceeded 21.7 miles per hour.10 Plaintiff denies he drove 21.7 miles per
2 In his deposition Defendant Adorno is identified using his first surname, “Cruz;” however, because the
relevant motions identify him as “Adorno,” that is how the Court will identify him.
3 Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment [Doc. 52‐1 at 4];
Plaintiff’s Response and Brief in Opposition [Doc. 56 at 1].
4 Defendants’ Statement of Undisputed Material Facts [Doc. 52‐8 ¶¶ 1, 3].
5 Plaintiff’s Complaint [Doc. 1 ¶ 5]; Doc. 52‐8 ¶ 4.
6 Plaintiff’s Deposition Transcript [Doc. 51‐2 at 2].
7 Id. at 66, 76.
8 Adorno’s Deposition Transcript [Doc. 46‐7 at 108]; Doc. 51‐2 at 77.
9 Doc. 51‐2 at 83, 84.
10 James Hrycay’s Expert Report [Doc. 46‐1 at 35].
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hour but admits he was going less than 40 miles per hour.11 Plaintiff testified that by the
time he noticed a problem with the truck’s speed, Adorno had collided into the rear of
his vehicle.12 Thus, Plaintiff contends he had no time to activate his four‐way flashers.13
Adorno testified he was driving 65 miles per hour in the right lane of I‐75 when he saw
Plaintiff’s vehicle in his lane of travel and attempted to avoid it, but could not.14 The
collision happened near mile marker 147, approximately half a mile to one mile from
where Plaintiff entered the interstate.15 Both men were transported to the hospital after
the collision.
I.
Adorno’s Employment with CTS
Defendant Adorno had two periods of employment with Defendant CTS. Adorno
first worked for CTS from August 2018 until December 2018.16 Adorno owned the tractor
he drove while employed at CTS, so he could not work when it was inoperable for
maintenance reasons.17 Thus, when his motor blew in December 2018, he did not return
until it had been repaired.18 Adorno then returned to CTS at the end of April of 2019 and
worked for approximately six days until the accident occurred.19 After the accident,
11 Plaintiff’s Response to Defendants’ Statement of Undisputed Material Facts [Doc. 60 ¶ 9]; Doc. 51‐2 at
87.
12 Doc. 51‐2 168–69.
13 Id.
14 Deposition of Defendant Jose Alberto Cruz Adorno [Doc. 73 at 118].
15 Doc. 51‐2 at 82.
16 Doc. 73 at 84; Defendant CTS’s 30(b)(6) Deposition [Doc. 46‐9 at 104].
17 Doc. 46‐9 at 104–05; Doc. 73 at 89.
18 Doc. 46‐9 at 104–05; Doc. 73 at 89.
19 Doc. 46‐9 at 104, 117.
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Adorno’s tractor was totaled, and he did not return to work for CTS.20
CTS employs a third‐party company that performs background checks and
verifies past employment for prospective hires. 21 CTS also obtains and reviews a motor
vehicle report going back seven years.22 Before hiring Adorno in August 2018, Adorno’s
records revealed two incidents: one ticket in 2015 for speeding in a non‐commercial
vehicle and one citation in 2017 for hauling a trailer with an inoperative slack adjuster.23
CTS reviewed these violations and found they did not disqualify Adorno from the
position.24 Adorno had also been involved in one previous accident in 2008 while
employed by CPC Logistics, where he rear‐ended a vehicle that passed him then stopped
in front of him to turn left.25 But the 2008 accident was not on the motor vehicle record
CTS reviewed, and they did not know about it until after this subject accident.26
CTS requires its drivers to have two years of driving experience, and it provides
training which includes a written test on the Federal Motor Carrier Safety Regulations,
training using the Smith System, and a road test.27 When Adorno came back to work for
CTS in April 2019, CTS re‐ran his background check but did not require him to redo his
20 Id. at 55, 117.
21 Doc. 46‐9 at 15, 102, 149–150.
22 Id. at 102.
23 Declaration of David Phillips [Doc. 52‐2 ¶ 6]; Doc. 46‐9 at 102; Doc. 73 at 141–42.
24 Doc. 46‐9 at 102; Doc. 52‐2 ¶¶ 6, 7.
25 Doc. 73 at 44–45.
26 Doc. 46‐9 at 102.
27 Id. at 14–15.
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initial training because it was less than one year from when he initially received it.28
II.
State Court Litigation
In July 2020, Adorno filed a lawsuit against Plaintiff, Plaintiff’s employer UPS, and
UPS’s insurer in the State Court of Gwinnett County, Georgia for his injuries arising from
the accident.29 Plaintiff’s attorney answered and moved to dismiss for improper venue or,
in the alternative, to transfer to the State Court of Houston County.30 On September 9,
2020, Gwinnett County State Court entered a consent order finding venue was improper
and granting the motion to transfer to Houston County.31 The Gwinnett Order further
required Adorno to “pay all accrued court costs within 20 days of mailing or delivery of
the cost bill,” lest the action be automatically dismissed without prejudice pursuant to
Uniform State Court Rule 19.1(F) and Uniform Transfer Rule 10.32 On September 22, 2020,
Adorno dismissed his claims with prejudice in the Gwinnett County case.33 There is no
evidence in the record that Adorno ever paid the court costs required to transfer, or that
the transfer to Houston County was ever effectuated. Thus, when Adorno voluntarily
dismissed the case before the payment deadline, the case ended.
28 Id. at 118.
29 Ex. 3 to Motion for Summary Judgment, Prior Complaint [Doc. 52‐5 at 1].
30 Ex. 4 to Motion for Summary Judgment, Prior Answer [Doc. 52‐6 at 1]; Ex. A to Response to Motion for
Summary Judgment, Motion to Transfer [Doc. 60‐1 at 1].
31 Ex. B to Response to Motion for Summary Judgment, Consent Order [Doc. 60‐2 at 1].
32 Id. at 2.
33 Ex. 5 to Motion for Summary Judgment, Dismissal [Doc. 52‐7 at 1].
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III.
Current Litigation
Plaintiff filed suit in the Superior Court of Peach County against Defendants
alleging negligence claims against Adorno; vicarious liability claims and direct liability
claims for negligent hiring, retention, training, supervision, and failure to ensure proper
maintenance against CTS; and a direct‐action claim against ACE American. Defendants
properly removed to this Court and now seek summary judgment on all claims.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”34 A genuine issue of material
fact only exists when “there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.”35 Thus, summary judgment must be granted if
there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving
party or, in other words, if reasonable minds could not differ as to the verdict.36 When
ruling on a motion for summary judgment, the court must view the facts in the light most
favorable to the party opposing the motion.37
The moving party “always bears the initial responsibility of informing the district
34 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
35 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
36 See id. at 249–52.
37 Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
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court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact” and that entitle it to a judgment as a matter of law.38 If the moving party discharges
this burden, the burden then shifts to the nonmoving party to go beyond the pleadings
and present specific evidence showing that there is a genuine issue of material fact.39 This
evidence must consist of more than mere conclusory allegations or legal conclusions.40
DISCUSSION
The Court first addresses Defendants’ argument that Plaintiff’s negligence claims
against Defendant Adorno and his vicarious liability claims against Defendant CTS are
barred by the compulsory counterclaim rule. Second, the Court examines Plaintiff’s direct
liability claims against Defendant CTS for negligent hiring, retention, training, and
supervision, and failing to ensure proper maintenance. Third, the Court evaluates
Plaintiff’s claim against Defendant ACE American under Georgia’s direct‐action statute.
Finally, the Court addresses whether Plaintiff was negligent per se.
I.
Plaintiff’s Claims Against Adorno and His Vicarious Liability Claims
Against CTS Are Not Barred by the Compulsory Counterclaim Rule
Defendants argue they are entitled to summary judgment on Plaintiff’s negligence
38 Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).
39 See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324–26.
40 See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
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claims against Adorno and Plaintiff’s vicarious liability claims against CTS because they
are compulsory counterclaims he failed to assert in his previous state court lawsuit. The
Court disagrees.
“[A] party may not raise issues arising out of the same transaction which should
have been pled as a compulsory counterclaim in another separate suit. If the first suit is
completed, then res judicata serves to bar proceeding with the second action.”41 Georgia’s
statute on compulsory counterclaims states:
A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises
out of the transaction or occurrence that is the subject matter of the
opposing partyʹs claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction. But
the pleader need not state the claim if . . . the claim is not within the
jurisdiction of the court.42
“When [a court is] asked to give res judicata effect to a state court judgment, [the court]
must apply the res judicata principles of the law of the state whose decision is set up as a
bar to further litigation.”43 Because Defendants contend a Georgia case bars Plaintiff’s
claims against Defendant Adorno and the vicarious liability claims against Defendant
CTS, Georgia res judicata principles apply. Georgia’s res judicata statute states:
A judgment of a court of competent jurisdiction shall be conclusive between
the same parties and their privies as to all matters put in issue or which
under the rules of law might have been put in issue in the cause wherein
41 Allstate Ins. Co. v. Welch, 259 Ga. App. 71, 73 (2003) (quoting First Fed. Sav. & Loan Ass’n of Detroit v.
I.T.S.R.E., Ltd., 159 Ga. App. 861, 863 (1981).
42 O.C.G.A. § 9‐11‐13(a)(3).
43 Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006)
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the judgment was rendered until the judgment is reversed or set aside.44
The three requirements for res judicata to apply are: (1) identical causes of action, (2)
identical parties or their privies, and (3) previous adjudication on the merits by a court of
competent jurisdiction.45
Plaintiff’s counterclaims were not compulsory because venue was improper in
Gwinnett County. Under Georgia law, when venue as to defendants is improper, “the
court is without personal jurisdiction to enter a binding judgment on the merits against
the nonresident defendants.”46 “[A] counterclaim is not compulsory when there is no
jurisdiction.”47 The judge in the Gwinnett County case granted Plaintiff Butler’s motion
to transfer venue and ruled “venue for this case cannot lie in Gwinnett County . . . .”48
Because the state court lacked jurisdiction over Plaintiff Butler, he was not required to
assert his counterclaims. Thus, the Gwinnet County case is not a previous adjudication
on the merits by a court of competent jurisdiction, and res judicata does not bar Plaintiff’s
claims against Adorno or CTS.49
44 O.C.G.A. § 9‐12‐40.
45 Coen v. CDC Software Corp., 304 Ga. 105, 109 (2018).
46 Exum v. Melton, 244 Ga. App. 775, 776 (2000).
47 EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 78 (2008) (citing Lester v. Goodyear Tire & Rubber Co., 156 Ga.
App. 171, 171 (1980)).
48 Consent Order [Doc. 60‐2 at 2].
49 Moreover, even if Plaintiff’s claims against Adorno were barred by res judicata, they would not be
barred against CTS for their liability under the doctrine of respondeat superior. Although a voluntary
dismissal with prejudice acts as an adjudication on the merits, “the effect of a voluntary dismissal does
not extend to any party not named therein.” Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 272 Ga.
209, 212 (2000). Thus, CTS would not be entitled to dismissal of Plaintiff’s claims because CTS was not a
party to the earlier lawsuit.
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II.
Plaintiff’s Direct Liability Claims Against CTS Fail to Raise Genuine Issues
of Material Fact
A. Negligent Hiring and Retention
Under Georgia law, “[t]he employer is bound to exercise ordinary care in the
selection of employees and not to retain them after knowledge of incompetency.”50 Thus,
“an employer may be liable for hiring or retaining an employee the employer knows or
in the course of ordinary care should have known was not suited for the particular
employment.”51 “[L]iability for negligent hiring or retention requires evidence that the
employer knew or should have known of the employee’s propensity to engage in the type
of conduct that caused the plaintiff’s injury.”52 Accordingly, Georgia courts have “granted
summary judgment to employers when there is no evidence that the employer knew of
violations on the employee’s driving record or ignored its own reasonable policy of
investigating such records, and denied summary judgment when there is evidence that
the employer knew of such violations on the employee’s record.”53 “Whether or not an
employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is
dependent upon the unique facts of each case.”54
Plaintiff’s negligent hiring and retention claims fail to raise a genuine issue of
50 O.C.G.A. § 34‐7‐20.
51 Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 862 (2004).
52 Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir. 2001) (citing Alpharetta First United
Methodist Church v. Stewart, 221 Ga. App. 748, 753 (1996)).
53 W. Indus., Inc. v. Poole, 280 Ga. App. 378, 382 (2006).
54 Munroe, 277 Ga. at 864 n.4.
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material fact. There is no evidence that CTS knew Adorno had been in another rear‐end
collision at the time he was hired.55 The 2008 accident was not included on the seven‐year
motor vehicle report, nor did the third‐party company that performed background
checks and verified past employment discover it.56 There is no evidence CTS failed to
follow the minimum requirements set by the Federal Motor Carrier Safety Regulations
(“FMCSRs”), and in fact, there is evidence CTS went beyond them by obtaining Adorno’s
motor vehicle record for the preceding seven years rather than the three years required
by the FMCSRs.57 The FMCSRs only require an employment application to request
information on employers and accidents for the previous three years, which CTS did.58
Thus, even though CTS investigated farther back than was required, it did not uncover
the 2008 accident because it occurred ten years before he was initially hired by CTS.
Plaintiff argues that CTS would have discovered the prior accident if it had called
Adorno’s prior employer, CPC Logistics, but this is speculative. Adorno was last
employed by CPC in 2012, six years before he applied to CTS, and there is no guarantee
that calling CPC would have produced this information. Moreover, without knowing
more information about the 2008 accident, it is unclear whether it would have prohibited
55 Plaintiff’s Response and Brief in Opposition to Defendants’ Motion for Summary Judgment [Doc. 56 at
16–17]; Doc. 52‐2 ¶¶ 5, 6; Doc. 46‐9 at 102.
56 Doc. 46‐9 at 15, 102, 149–150.
57 49 C.F.R. § 391.23(a)(1).
58 49 C.F.R. § 391.21(b)(7), (10); Doc. 52‐2 ¶ 6.
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Adorno from being hired.59 In fact, Plaintiff’s trucking standards expert Adam Grill had
no criticisms of CTS’s hiring of Adorno.60
Plaintiff criticizes CTS for not investigating Adorno’s prior employment or
accident history when he was re‐hired, but even if CTS ran the background checks on
Adorno anew there is no evidence the outcome would have changed. The 2008 accident
was still too remote to be discovered by CTS’s hiring procedures. Thus, there is no
evidence that CTS knew or should have known about the 2008 accident prior to hiring
him or after retaining him.61 Nor is there any evidence that CTS’s hiring procedures “were
faulty or not reasonable under the circumstances.”62 Thus, the Court GRANTS
Defendants’ Motion for Summary Judgment as to the negligent hiring and retention
claims.
B. Negligent Training and Supervision
“To establish a negligent training claim, a plaintiff must demonstrate that
inadequate training caused a reasonably foreseeable injury.”63 To defeat summary
judgment on negligent supervision, a plaintiff must show “there is sufficient evidence to
59 Doc. 46‐9 at 54.
60 Deposition of Adam Grill [Doc. 51‐9 at 29].
61 See Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241, 245 (2000) (granting summary judgment
when there was no evidence employer knew or should have known of employee’s bad driving record
and there was no evidence employer’s hiring procedures were faulty); Cherry v. Kelly Servs., Inc., 171 Ga.
App. 235, 235 (1984) (denying summary judgment to employer when employer knew of one traffic
violation on employee’s record but did not investigate further).
62 Patterson, 243 Ga. App. at 245.
63 ABM Aviation v. Prince, 366 Ga. App. 592, 598 (2023) (quoting Advanced Disposal Servs. Atlanta, LLC v.
Marczak, 359 Ga. App. 316, 319 (2021)).
12
establish the employer reasonably knew or should have known of an employee’s
tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the
plaintiff.”64
Because Plaintiff fails to raise genuine issues of material fact on his negligent
training and supervision claims, the Court need not decide whether he failed to assert
them in his Complaint.65 Before beginning his employment, CTS required Adorno to take
a written test on the FMCSRs; complete training including on‐road Smith System
defensive driving training in which his performance was “exceptional;” and take a road
test in which his performance was “outstanding.”66 Plaintiff’s expert Adam Grill
identifies areas where CTS inadequately trained Adorno, including night driving and
speed and space management. But as explained in the Court’s Order on the parties’
Daubert motions, Adam Grill’s testimony that CTS inadequately trained Adorno is
excluded because of his lack of reliable data and methodology. Further, there are no
federal regulations or other authority that mandate such training, however helpful it may
be. With Grill’s testimony excluded, Plaintiff is left without any evidence supporting his
negligent training claim. Nor is there sufficient evidence, as discussed above, to
64 Leo v. Waffle House, Inc., 298 Ga. App. 838, 841 (2009) (quoting Alexander v. A. Atlanta Autosave, Inc., 272
Ga. App. 73, 77 (2005)).
65 Defendants argue Plaintiff failed to assert a negligent training or supervision claim in his Complaint.
Plaintiff counters that he is not required to plead every legal theory of recovery under the notice pleading
standard of Federal Rule of Civil Procedure 8 and moves to amend his Complaint [Doc. 57].
66 Doc. 52‐2 ¶ 8; Doc. 46‐9 at 15, 121, 139
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demonstrate CTS knew or should have known about Adorno’s 2008 accident to support
Plaintiff’s negligent supervision claim. Thus, the Court GRANTS Defendants’ Motion for
Summary Judgment as to the negligent training and supervision claims.
C. Failing to Ensure Proper Maintenance
Nothing in the record suggests Defendant CTS was negligent in failing to ensure
the vehicle was properly maintained and inspected.67 There is no evidence the tractor‐
trailer driven by Adorno was defective in any way, nor any evidence that improper
maintenance of the tractor‐trailer caused Plaintiff’s injuries. Thus, the Court GRANTS
Defendants’ Motion for Summary Judgment as to the negligent maintenance and
inspection claim.
III.
Plaintiff’s Direct‐Action Claim Against ACE American Does Not Fail as a
Matter of Law
Georgia’s direct‐action statute allows a plaintiff to join both the motor carrier and
insurance carrier in the same action.68 To maintain a cause of action against an insurer,
the plaintiff must have an “actionable injury.”69 “And ‘actionable injury’ means an injury
to a person who could sue the motor carrier and obtain a judgment for his injuries.”70
Defendant ACE American is not entitled to summary judgment on Plaintiff’s
direct‐action claim because actionable claims against the insured party remain. Thus, the
67 Doc. 46‐9 at 121–22.
68 O.C.G.A. § 40‐1‐112(c).
69 Coleman v. B‐H Transfer Co., 290 Ga. App. 503, 508 (2008).
70 Id.
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Court DENIES Defendants’ Motion for Summary Judgment as to Plaintiff’s direct‐action
claim.
IV.
Genuine Issues of Material Fact Remain as to Plaintiff’s Negligence Per Se
Defendants argue Plaintiff was negligent per se because he violated two
provisions of the Georgia Uniform Rules of the Road: O.C.G.A. § 40‐6‐184(a) and
O.C.G.A. § 40‐8‐7(a). O.C.G.A § 40‐6‐184(a) states: “No person shall drive a motor vehicle
at such a slow speed as to impede the normal and reasonable movement of traffic, except
when reduced speed is necessary for safe operation.” O.C.G.A. § 40‐8‐7(a) states: “No
person shall drive or move on any highway any motor vehicle . . . unless . . . the vehicle
is in such safe mechanical condition as not to endanger the driver or other occupant or
any person upon the highway.”
“A violation of the Uniform Rules of the Road prima facie establishes negligence
per se in the absence of a valid defense. The burden then shifts to the defendant to show
that the violation was unintentional and in the exercise of ordinary care.”71 It is clear from
the record that Plaintiff was driving below the minimum speed limit, and Plaintiff’s
vehicle was not in proper working order based on its inability to pick up speed.
Defendants argue this is sufficient to establish Plaintiff was negligent per se.72
71 In/Ex Sys., Inc. v. Masud, 352 Ga. App. 722, 724 (2019) (quoting Harden v. Burdette, 204 Ga. App. 733, 735
(1992)).
72 Plaintiff argues, among other things, that state law is impliedly pre‐empted by FMCSR § 396.7(b).
Because the Court is denying partial summary judgment on negligence per se, it does not address this
argument on the merits. The Court can address any issues with Plaintiff offering evidence on this at trial
through a motion in limine.
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But a genuine dispute exists as to whether Plaintiff has a valid defense for
operating his vehicle on the interstate at those low speeds. Both Plaintiff’s and
Defendants’ trucking experts offer opinions about whether Plaintiff should have
continued driving slowly until the nearest exit or pulled over and parked on the side of
the highway. Thus, a reasonable jury could find Plaintiff had a valid defense and was
justified in continuing. In Robinson v. Metropolitan Atlanta Rapid Transit Authority,73 the
Georgia Court of Appeals affirmed the trial court’s refusal to give a negligence per se
instruction for a violation of O.C.G.A. § 40‐8‐7(a) when the vehicle had been serviced
recently, and the “driver had no reason to suspect that anything was wrong with the
vehicle before it broke down.”74 Here, there is a genuine issue of material fact as to
whether Plaintiff should have known something was wrong with the vehicle before
merging onto the highway based on the conflicting testimony of Plaintiff and Defendants’
expert James Hrycay. Thus, the Court DENIES Defendants’ partial summary judgment
as to Plaintiff’s negligence per se.
CONCLUSION
For the reasons set forth above, the Court HEREBY GRANTS IN PART and
DENIES IN PART the Defendants’ Motions for Summary Judgment [Docs. 50, 52].
Specifically, the Court DENIES summary judgment for Defendants on Plaintiff’s claims
73 197 Ga. App. 628, 629 (1990).
74 Robinson v. Metro. Atlanta Rapid Transit Auth., 197 Ga. App. 628, 629 (1990).
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against Adorno and vicarious liability claims against CTS; Plaintiff’s direct‐action claim
against ACE American; and Plaintiff’s negligence per se; and GRANTS summary
judgment for Defendants on Plaintiff’s direct liability claims against CTS; and DENIES
as moot Plaintiff’s Motion to Amend Complaint [Doc. 57].
SO ORDERED, this 27th day of March, 2024.
s/ C. Ashley Royal ________________
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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