Schreckengast et al v. Carollo et al

Filing 137

ORDER denying 110 Motion for Reconsideration; granting in part and denying in part 111 Motion for Reconsideration. Signed by Magistrate Judge G. R. Smith on 6/22/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHN PATRICK SCHRECKENGAST, and
ANDREA SCHRECKENGAST
Plaintiff,
v.
CHARLES S. CAROLLO, individually, and
LANDSTAR INWAY, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CV416-038

ORDER
Before the Court in this in this auto wreck, personal-injury case are
plaintiffs’ motions for clarification and reconsideration, plus defendants’
objections to plaintiffs’ trial exhibits and deposition designations.1 Docs.
84, 94, 110, 111. Defendants oppose both of plaintiffs’ motions. Docs.
118, 119.

The Court SUSTAINS as unopposed the portions of the

objections which have been conceded, and DENIES as moot those
objections which have since been withdrawn.2

1

Although the parties filed their objections before the Court issued its previous order
on the parties’ motions in limine, doc. 100, due to clerical oversight, the objections
were not referred to the undersigned. They are, therefore, resolved below.
2

Plaintiffs have conceded several of defendants’ objections. See doc. 87 at 22-23; see
also doc. 95 at 12 (stating “[n]o objection” to withdrawal of exhibits). They have
withdrawn Exhibits Nos. 40, 41, 42, 43. Doc. 87 at 22-23. Defendants have

I.

MOTION FOR CLARIFICATION
Plaintiffs want to bifurcate the trial “to avoid problems with the

collateral

source

rule,

while

still

protecting

[Cannon

Cochran

Management Services, Inc.’s] interests as intervenor.” Doc. 111 at 2.
But the plaintiffs, defendants complain, have yet to accept the Court’s
invitation to confer and attempt to find a mutually agreeable way to
address CCMS’s presence at trial. Doc. 119 at 6. CCMS, for its part,
states that it does not oppose bifurcation, but disputes plaintiffs’
contention that Georgia law governs based on its assertion of a settlement
agreement. Doc. 120.
Plaintiffs’ bifurcation request is untimely.

They have never

objected to CCMS’s intervention in this case, and their in limine motion
raised no objection.

See doc. 119 at 3 (noting “Plaintiffs have not

objected to CCMS’ intervention into this litigation.”); see generally doc.
111. For that matter, the Court (at the pretrial conference and after it
granted CCMS’s intervention motion) advised the parties that there is “no
cause to bifurcate here.”3 Doc. 105 at 23. No one objected at that time,

withdrawn their objections to Exhibits 5 and 8. See doc. 95 at 3-4.
3

The parties’ proposed pretrial order is ambiguous as to the request for bifurcation.
2

and the Court sees no cause to revisit the issue. Plaintiffs’ apparent
settlement with CCMS, meanwhile, only further supports the conclusion
that its participation in the trial will be inconsequential. See doc. 120.
As stated in the Court’s previous Order, the parties remain “free to
confer and stipulate to a mutually satisfactory way to acknowledge CCMS
at trial, though it may not actually appear if its only purpose is to recover
from any plaintiffs’ judgment.” Doc. 100 at 4. The Court’s prior ruling,
granting plaintiff’s motion in limine excluding collateral source evidence
subject to requests to admit particular evidence made outside the presence
of the jury, stands. The Court again encourages the parties to confer -both about the possible presence of CCMS at trial and about CCMS’s
requested stipulation concerning the amount of its lien.4 Doc. 120 at 4.

See doc. 68 at 36. However, defendants contend that the apparent ambiguity is
merely the result of a typographical error and that the parties “had no intent to
bifurcate the trial.” Doc. 118 at 10 n. 3. Plaintiffs’ ambiguous reference to
bifurcation also appears in their response to defendants’ motion in limine. See doc.
89 at 12 (conditionally contending relevance of Defendant Landstar’s financial status
“[t]o the extent there is bifurcation of liability and compensatory phases . . .”).
4

CCMS’s response to plaintiff’s motion for clarification “requests this Court to hold
that South Carolina’s workers’ compensation statutes apply to CCMS’s subrogation
lien at issue in this action.” Doc. 120 at 4. However, the record before the Court is
not sufficiently established to support such a holding. CCMS contends that plaintiffs
are judicially and equitably estopped from contending that Georgia law applies, based
on a purported agreement to settle the claim under South Carolina’s workers’
compensation statute. Doc. 120 at 2-4. Yet, they have failed to introduce any
evidence of such an agreement. Id. at 1 (asserting agreement only “upon information
3

Absent such agreement, determination of the admissibility of any
particular collateral source evidence is DEFERRED to the district judge.
II.

MOTION FOR RECONSIDERATION
A.

Negligent Hiring Evidence
The Court previously deemed inadmissible certain evidence that

plaintiffs contend is relevant to their claim for negligent hiring,
entrustment, supervision, training, and retention (for brevity, the
“negligent hiring claim”). See doc. 100. Plaintiffs move to reconsider.
Doc. 110. The difficulty the Court faces in resolving this issue is that
plaintiffs’ claim appears deficient as a matter of law, yet defendants have
not sought summary disposition. Given that atypical status, the Court
balanced the probative value of the evidence against the risk of prejudice
and determined that it should be excluded. See doc. 100 at 11-12.
Under Georgia law, “subjecting a defendant to vicarious liability
through respondeat superior precludes a redundant claim of negligent
hiring or retention against the same defendant.” Coleman v. Avery, 2015
WL 12851557 at * 6 (N.D. Ga. May 7, 2015). “In cases alleging both
respondeat superior and negligent hiring, supervision, retention, training
and belief”). Accordingly, CCMS’s request is DENIED.
4

and entrustment against an employer for the acts of its driver where no
punitive damages are sought, the Georgia Court of Appeals has stated that
a defendant employer’s admission of liability under respondeat superior
establishes the liability link necessary to proceed against the employer on
its employee’s negligence.

[Cit.].

This is so because of the

countervailing problems inherent in protecting the employee from
prejudicial evidence of his prior driving record and general character for
recklessness in driving while admitting the proof necessary for the
negligent entrustment case to proceed.” Homestate County Mut. Ins. Co.
v. Logicorp Enters., LLC, 2014 WL 12647766 at * 4 (N.D. Ga. July 22,
2014) (cites omitted).
Plaintiffs argue that this principle no longer applies, given Georgia’s
adoption of an apportionment-of-fault statute, replacing the old regime of
joint and several liability. See doc. 132. That argument is creative, and
in fact is supported by Little v. McClure, 2014 WL 4276118 at * 2-3 (M.D.
Ga. Aug. 29, 2014).

But federal courts have continued to follow the

established Georgia rule. See, e.g., Downer v. Boyer, 2017 WL 1093167 at
* 2 (N.D. Ga. Mar. 23, 2017) (“Under Georgia law, respondeat superior
and negligent hiring, training, and supervision are mutually exclusive
5

theories of liability.”); Coleman, 2015 WL 12851557 at * 6. The Court
could not find, and plaintiffs have not cited, any case since Little adopting
its reasoning. The Court is also not convinced that the Georgia Supreme
Court’s opinion in Zaldivar v. Prickett, 297 Ga. 589 (2015), extends as far
as plaintiffs claim.5 Thus, the Court is not willing to buck the prevailing

5

Zaldivar held that Georgia’s apportionment statute allowed a defendant to argue
that the plaintiff’s employer was, under a theory of negligent entrustment, partly at
fault for plaintiff’s injuries. See 297 Ga. at 604. However, the Court still rejects the
inference that Zaldivar always authorizes plaintiffs’ to advance a negligent hiring
claim when respondeat superior is conceded.

To be sure, there is reason to think that Zaldivar affects the relationship between
negligent hiring and respondeat superior liability. See Michael David Alfano, Jr.,
Employer Escape Hatch Closed in Georgia: How the Interpretation of Georgia’s
Apportionment Statute in Zaldivar Prohibits Employers from Using Respondeat
Superior to Eschew Direct Negligence Claims, 50 GA. L. REV. 1233 (2016). To that
end, the apportionment statute requires the fact finder “to divide responsibility for an
injury among all of those who ‘contributed to’ it -- parties and nonparties alike -according to their respective shares of the combined ‘fault’ that produced the injury.”
Zaldivar, 297 Ga. at 690. Thus, the determination that additional parties are
potential contributors to an injury is vitally important, because the apportionment
statute requires the fact finder to assign them some portion of responsibility, even if
they are protected against liability by an immunity or affirmative defense. Id. at 697.
But that reasoning does not imply that a party must be allowed to pursue
redundant theories of responsibility against any given party. The assignment of fault
to a particular responsible party is not, necessarily, a simple matter of calculating the
total number of negligent acts which contributed to the injury, attributing those acts
to responsible parties, and assigning fault by percentages. After all, a party who is
negligent in three different ways is not necessarily more at fault for an injury than a
party that was negligent in only one way. It seems perfectly consistent with the
apportionment statute’s purpose (and command) that a fact finder could easily, upon
assessing the ways in which negligent conduct flowed and converged upon the
plaintiff-victim, assign greater fault to the single-tortfeasor than to the
multiple-tortfeasor, or vice-versa. The evidentiary presentation (how a Palsgrafian
sequence unfolded and impacted the victim) drives the result. Simply put, the
6

trend and find that plaintiffs’ negligent hiring claim is not surplus, given
Landstar’s concession of respondeat superior.
Plaintiffs do not dispute the evidence’s prejudicial character. Doc.
110 at 3-4. In fact, plaintiffs suggest bifurcating the liability phase of this
number of torfeasors, and the number of torts they commit, must be analyzed by the
fact finder during deliberations.
If Zaldivar does not imply what plaintiffs contend that it does, there is still the
question of whether this Court should follow Little. After all, the mere fact that
numerous courts have decided the issue one way does not necessarily mean they were
right. However, the reasoning in Little does not assuage the Court’s concern that
there is an important distinction between who is potentially subject to apportionment
of fault and manners of negligence. Little reasoned that “a defendant is only liable for
the percentage of a plaintiff’s damages attributable to his apportioned fault, so the
employee’s negligence (for which the employer would be liable by virtue of respondeat
superior) would be apportioned separately from the employer’s independent
negligence.” Little, 2014 WL 4266118 at * 3. But that reasoning seems to ignore the
fact that there may be only one injury (and thus one total amount of damage) on which
to affix liability. Apportioning responsibility among tortfeasors separately based on
the torts they commit ignores the fact that the plaintiff’s recovery, whether there is
one tort or a thousand, is limited by his injury.
Illustration of the point, given the facts of the present case, make the redundancy
of the additional claim clear. Carollo was allegedly negligent. If plaintiffs prevail, he
will be responsible for some portion of the proven damages. Assuming that plaintiffs
proceed on their negligent hiring claim and prevail, Carollo’s employer (defendant
Landstar) would be independently responsible for some portion of those same proven
damages. Schreckengast was, after all, only injured once, albeit seriously and with
various consequences (i.e. the loss of consortium his wife suffered). However, the
outcome doesn’t change if there is no independent basis for Landstar’s liability. In
that case, Carollo is the sole liable party, but, under respondeat superior, his entire
liability is attributable to his employer, Landstar. See, e.g. Little, 2014 WL 4276118
at *3 (recognizing that employer is liable for all of employee’s negligence under
respondeat superior). Either way, any liability attributable to Carollo or Landstar is
transformed into Landstar’s liability; regardless of whether that liability is the result
of primary or imputed fault. That constitutes the very essence of redundancy.
Thus, when the potential prejudice of the negligent-hiring evidence is recognized,
exclusion of that evidence is warranted.
7

trial (despite, as discussed above, their concession at the pretrial
conference that bifurcation was not appropriate) and claim that “[t]he
risk of prejudice of not allowing plaintiff to present any evidence on these
pending claims is paramount.” Id. at 6. They do not explain, however,
how they would be prejudiced by not being allowed to offer proof of a
redundant claim.

Plaintiffs’ argument that Fed. R. Evid. 403 rarely

provides a reason to exclude otherwise relevant evidence, id. at 4-6,
depends on Fed. R. Evid. 401’s definition of “relevance” as conditioned on
whether “the fact [the evidence would tend to prove] is of consequence in
determining the action.”

Fed. R. Evid. 401(b).

Since plaintiffs’

negligent hiring claim is redundant, although it remains pending,6 the
probative value of any evidence supporting it must be vanishingly small.
Thus, the unrebutted risk of prejudice identified by defendants is
sufficient to outweigh it. Their motion for reconsideration (doc. 110),
therefore, is DENIED in part.
B.

Defendant Carollo’s Traffic Ticket
Plaintiffs also request that the Court reconsider its ruling on the

6

The Court also notes that the parties’ proposed pretrial order, which requires the
“party bearing a burden of proof [to] list each and every act of negligence . . . relied
upon,” doc. 68 at 13, does not list negligent hiring as either an alleged act of negligence
or imputable negligence, id. at 13-15.
8

admissibility of defendant Carollo’s traffic ticket for following too closely,
issued as a result of the wreck at issue in this case. Doc. 110 at 7-9.
Generally, “[e]vidence of traffic citations is only admissible in a
subsequent civil proceeding if the defendant voluntarily and knowingly
entered a plea of guilty.” Rangel v. Anderson, 2016 WL 6595600 at * 3
(S.D. Ga. Nov. 7, 2016) (internal quotes and cite omitted). But Carollo
didn’t plead guilty; he merely forfeited his bond.

Doc. 110-1 at 2.

Plaintiffs contend that bond forfeiture can be construed as an admission
of guilt.

See doc. 110 at 8 (citing O.C.G.A. § 40-13-58).

Defendants

oppose and cite defendant Carollo’s deposition testimony to further
support the conclusion that he did not knowingly plead guilty to the
offense charged. Doc. 96 at 8-12.7
In their reconsideration motion plaintiffs present a new citation,
Highsmith v. Tractor Trailer Service, where the Northern District of
Georgia accepted a bond forfeiture as evidence of negligence per se. 2005
WL 6032882 at * 7 (N.D. Ga. Nov. 21, 2005). Based on Highsmith, the
7

Defendants have not responded to plaintiffs’ arguments in their motion for
reconsideration on this issue. See doc. 118. Thus, they have not explained the effect
of Highsmith on their contention that “[i]n the federal system, evidence of traffic
citations is only admissible in a subsequent civil proceeding if the defendant
voluntarily and knowingly entered a plea of guilty.” Doc. 96 at 11 (citing, inter alia,
Rangel, 2016 WL 6595600 at * 2-3).
9

Court concludes that Carollo’s traffic ticket is admissible, though Carollo
may, as plaintiffs concede, provide an explanation in his defense. See
doc. 89 at 19 (“Plaintiffs recognize that Defendant Carollo can attempt to
rebut the presumption of guilt by presenting evidence that he was not
negligent despite the documented bond forfeiture, and/or evidence that
the charge was reduced to “Too Fast for Conditions” based soeley on his
testimony . . ., and the jury can choose to agree or not agree with his
testimony.”). The Court, therefore, GRANTS in part plaintiffs’ motion
for reconsideration, doc. 110, VACATES in part its prior Order, doc.
100, and replaces it with the above analysis.
III.

OBJECTIONS
Defendants have objected to several of plaintiffs’ exhibits and

deposition designations.

Docs. 84 & 94.

Plaintiffs oppose several of

defendants’ objections to their exhibits. See doc. 95. They have not,
however, responded to defendants’ objections to their deposition
designations.

Normally, a motion to which no response is filed is

construed as unopposed.

See S.D. Ga. L. Civ. R. 7.5.

In this case,

however, the substance of defendants’ objections is linked to disputes that
the parties have fully briefed.

See doc. 94 (incorporating specific
10

arguments from defendants’ motions in limine). Thus, the Court will
construe the briefing to reflect that plaintiffs oppose defendants’
objections on the same bases as stated in those briefs.
A.

Objections to Exhibits
Exhibit 2:

Defendants have withdrawn their objection to the

Georgia Traffic Crash Report to the extent that it reflects the reporting
officer’s personal observations.

See doc. 95 at 1.

Their remaining

objection to the portion of the report reflecting Carollo’s citation for
following too closely is DENIED for the reasons explained in § II.B above.
Their objection to the portions of the report that they contend are
inadmissible opinion testimony is DENIED for the reasons explained in
§ II.D of the Court’s prior Order. See doc. 100 at 10-11.
Exhibit 11: Defendants’ objection to Exhibit 11 is DENIED for
the reasons explained in § II.B above.
Exhibits 23, 25, 26, 32, 34, 35, 36, 38, 39: Defendants object to
each of the listed exhibits on the grounds that they are irrelevant, given
Defendant Landstar’s admission of respondeat superior liability. See doc.
84 at 3-5 (incorporating the “[s]ame argument as set forth to Exhibit No.
23,” as objection to each subsequent exhibit); see also doc. 87 at 20-22
11

(incorporating plaintiffs’ “response to Objection No. 23 above as if fully
set forth herein.”).

Plaintiffs advance a creative argument, based on

Georgia’s apportionment-of-fault statute, for the viability of their
negligent hiring claim, including a list of alleged breaches of “the legal
duties owed to Plaintiff, John Schreckengast.”

See doc. 87 at 10-20.

First, the Court again notes that those alleged breaches are not included
in the parties’ proposed pretrial order.

See doc. 68 at 13-15.

And

second, as reiterated above, negligent hiring claims are rendered
redundant when a defendant concedes respondeat superior liability.
Accordingly, Defendants’ objections are SUSTAINED.
Exhibit 49: Exhibit 49 includes “[a]ll documents attached and
referenced in the deposition of [defendant Landstar’s corporate
representative] Mike Cobb.” See doc. 84 at 6. “Defendants object to this
exhibit . . . [because] it is overly broad and catchall in nature.” Id. They
further object that the documents “are hearsay pursuant to Fed. R. Evid.
801(c)(1) and (2)[,]” and for the reasons they objected to Exhibit 23. Id.
Plaintiffs respond by withdrawing one page (Bates 0055) of the included
documents, the “Cancellation Request for Charles Carollo’s services as a
driver, and for his tractor.” Doc. 87 at 24, 26. Defendants appear to
12

withdraw their objection to the notices of Cobb’s deposition. See doc. 95
at 12 (incorporating defendants’ response to Exhibit 23 “with the
exception of Mike Cobb’s Deposition notices.”). Defendants’ objection to
the withdrawn page and the deposition notices are, therefore, DENIED
as moot. The objections to the remaining exhibits, to the extent that they
incorporate the arguments concerning Exhibit 23, are SUSTAINED for
the reasons stated above.
Exhibits 54-55: Defendants object to the admission of accident
reports (within an “accident file”), purportedly prepared by defendant
Landstar, to the extent that they include 911 calls.

Those calls,

defendants contend, are “hearsay pursuant to Fed. R. Evid. 801(c)(1) and
(2).” Doc. 84 at 7. Plaintiffs insist that the exhibits are business records
excepted from the hearsay rule.

Doc. 87 at 27-28.

Further, any

statements they contain made by defendant Carollo or corporate
representatives of defendant Landstar do not constitute hearsay because
they are the statements of an opposing party. See id. at 28-29 (citing Fed.
R. Evid. 801(d)(2)).
Defendants respond that the reports cannot be admitted under the
business-records exception because “Plaintiffs will be unable to show that
13

these accident reports are made in the regular course of business at
Landstar, and Plaintiffs will be unable to call a witness to attest to the
authenticity of the report.” Plus, defendants further assert, the report’s
statements are themselves based on hearsay, “not from the firsthand
knowledge of the preparer of the reports.” Doc. 95 at 14.
Defendants original objection to “the admission or offering of the
911 call,” can be DENIED as moot, given plaintiffs’ clarification that the
“accident report” and “accident file” are the documents attached to its
response (see doc. 87 at 28-29; doc. 87-3), and they simply do not include
any 911 call. The reports include descriptions of accidents other than the
accident at issue, involving defendant Carollo, that plaintiffs contend are
relevant to their negligent hiring claim. See doc. 87 at 27 (stating “the
prior accidents are relevant to the lack of training and supervision
provided by Defendant Landstar”); doc. 87-3 at 4-6 (recoding accident in
Baton Rouge, Louisiana from 2014). For the reasons explained in § II.A
above (negligent hiring claim is neutralized by respondeat superior
admission), defendants’ objection to the other, prior accidents reports are
SUSTAINED.
Thus, the only question remaining is whether the record of the
14

accident at issue is admissible. Based on the contents of the parties’
briefs, the Court cannot find that the reports are admissible under the
business-records exception. Plaintiffs’ brief does not cite to any other
“business records” evidence in support of its contention. See doc. 87 at
30. It is simply unclear from the face of the reports who prepared them.
See doc. 87-3 at 1-3. Defendants, for that matter, appear to deny that the
reports were prepared by Landstar employees -- they implicitly deny, at
least, that the reports were prepared in the ordinary course of Landstar’s
business. See doc. 95 at 14. Without a sufficient foundation to admit
the reports under the asserted exception, the Court must SUSTAIN
defendants’ objection.
B. Objections to Deposition Designations
Deposition

of

Corin

Clark:

Defendants object to the

designation of Page 49, line 22 to Page 50, line 10 of Clark’s deposition
because they contend “it improperly injects collateral source [sic] into the
case.”

Doc. 94 at 1.

In support of their objection, Defendants

incorporate the argument advanced in their Motion in limine, Section
3(C).

Id. at 2.

That argument was expressly conceded by plaintiffs.

See doc. 89 at 11. Since plaintiffs have not responded to defendants’
15

deposition designation objection, and did not oppose the incorporated
argument, their objection is GRANTED as unopposed.
Deposition of Sgt. Christopher Rodewolt: Defendants object
to several portions of Sgt. Christopher Rodewolt’s deposition based on
their in limine contention that his statements of opinion are inadmissible.
See doc. 94 at 2 (referring to argument “more fully set out” in the motion
in limine). That objection is DENIED for the reasons explained in the
Court’s previous Order, § III.D. See doc. 100 at 10-11. Defendants also
object to a portion of Rodewolt’s deposition based on their argument that
the citation issued to Carollo is inadmissible. See doc. 94 at 2 (referring
to argument “more fully set out” in the motion in limine).

For the

reasons explained in § II.B above, that objection is DENIED.

Their

request to include Page 37, lines 10-13 is GRANTED as unopposed.8
Deposition of Mike Cobb:

Defendants object to the designation

of all portions of the deposition of Mike Cobb on the grounds that
defendant Landstar’s concession of respondeat superior liability renders
8

Since the parties have not filed the deposition transcripts, the Court is unable to
evaluate the substance of defendants’ assertion that the listed lines be included “under
the rule of completeness.” However, since plaintiffs have not responded, the Court
assumes that they do not object to the inclusion. The Court notes that defendants
have filed a “notice of filing” the deposition transcripts, doc. 130, but at the time of
drafting, those transcripts were not available.
16

them irrelevant.

See doc. 94 at 2-3 (incorporating argument from

defendants’ objections to plaintiffs’ Exhibit 23, among others). For the
reasons explained in § II.A above and the Court’s prior Order, see doc. 100
at 9-10, that objection is SUSTAINED.
IV.

CONCLUSION
Plaintiffs’ Motion for Clarification (doc. 110) is DENIED, to the

extent that it requests a bifurcation of the trial, and any dispute about the
admission of specific collateral source evidence not addressed in the
Court’s prior Order or this Order is DEFERRED to the district judge at
trial. Plaintiff’s Motion for Reconsideration (doc. 111) is GRANTED in
part and DENIED in part.
SO ORDERED, this 22nd day of June, 2017.

17