Manier v. Dalpra et al

Filing 328

ORDER GRANTING in part and DENYING in part 287 Motion for Partial Summary Judgment. Signed by Chief Judge Nancy J. Rosenstengel on 1/3/2025. (kss)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES MANIER,
Plaintiff,
v.

Case No. 3:20-CV-00329-NJR

PAGE ETC., INC.,
Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff James Manier formerly worked as a commercial truck driver for
US Foods. (Doc. 289-1, p. 17). On the evening of April 4, 2018, Manier operated a tractor
pulling double trailers travelling northbound on Interstate 57 near Benton, Illinois. (Id.;
Doc. 293-1, pp. 24-25). Another driver shared the same roadway—Mario Dalpra. 1
(Doc. 293-1, p. 24). Dalpra drove for Defendant Page E.T.C., Inc. (“Page E.T.C.”), an
environmental transport company responsible for hauling hazardous waste. (Doc. 289-2,
p. 14; 289-4, p. 5). As Manier slowed down in response to fully stopped traffic and road
construction, Dalpra’s tractor trailer, weighing between 20 and 25 tons, collided with
Manier’s. (Docs. 289-1, pp. 62-63; 293-1, pp. 25, 53-54).
The parties dispute many details of the crash. Dalpra claims to have been steering
around a right-hand curve travelling at the speed limit, posted as 70 miles per hour.

1 The parties advised the Court that Mr. Dalpra passed away during the pendency of this litigation. While

Mr. Dalpra was originally a defendant, Plaintiff Manier recently filed an amended complaint eliminating
all claims against him. (Doc. 310).

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(Doc. 289-2, pp. 28-31). To the contrary, Manier contends that the area leading up to the
crash was flat and straight, with no visual obstruction to other motorists, as corroborated
by dash cam footage. 2 (Doc. 293-12, pp. 64-65). Dalpra highlights that Manier primarily
used his engine brakes, which do not illuminate the brake lights, to slow down. (Doc. 2891, pp. 62-63). Manier only used his pedal brakes, which trigger brake lights, after he
slowed to 10 miles per hour. (Id. at pp. 63-64). But Manier emphasizes that Dalpra
admitted to seeing brake lights when he realized the tractor-trailer in front of him was
decelerating. (Doc. 293-1, p. 35). Manier’s accident reconstruction expert, Dr. Mariusz
Ziejewski, opined that Dalpra proceeded at 68 to 72 miles per hour when he struck
Manier’s trailer. (Doc. 293-3, p. 11). On the contrary, Dalpra estimated that his speed was
about 35 to 40 miles per hour at the moment of impact. (Doc. 289-2, p. 32).
Manier also contends that Dalpra drove distracted while engaging in an hour-long
telephone conversation via his hands-free headset leading up to the collision. (Doc. 293-1,
pp. 38-46). At the time of the crash, Manier was evidently using a hands-free headset to
talk on his phone as well. (Docs. 289-1, p. 84; 293-12, pp. 83-84, 93). A representative of
Page E.T.C., Chris Jorolemon, testified that the company had a policy permitting its
drivers to use hands-free devices while on the road. (Doc. 289-4, pp. 55-56, 59, 66). Dalpra
testified that he understood this to be Page E.T.C.’s policy at the time of the accident.
(Doc. 289-2, pp. 41-42).

2 Manier references dash cam footage in his response and labels it “Exhibit D.” This footage was provided

to the Court for review via email.

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Manier further alleges that Dalpra was an incompetent and unqualified
commercial driver and Page E.T.C. knew or should have known as much. (Doc. 310,
pp. 2-3). Manier emphasizes Dalpra’s lack of training and general knowledge of
fundamental commercial driving principles pointing to Dalpra’s deposition testimony
and a report by Manier’s trucking expert, Michael Napier. (Doc. 293-1, pp. 72-88). Napier
opined that Dalpra failed to demonstrate the required knowledge, skills, and safety
techniques, consistent with commercial motor vehicle safety standards, to maintain
control and avoid the collision. (Doc. 293-4, pp. 26-27). Of course, Manier attributes this
lack of baseline knowledge to Page E.T.C.’s failure to train Dalpra properly.
In addition, Manier criticizes Page E.T.C. for its ignorance of “red flags” in
Dalpra’s application process. According to Manier, Dalpra listed an Indiana address on
his application but presented a Kentucky commercial driver’s license (“CDL”).
(Doc. 293-4, p. 47). Jorolemon testified that the issue would have been discussed with
Dalpra at orientation, and to his knowledge, Dalpra used two residences of family
members—one in Indiana and one in Kentucky—for mailing purposes, but mainly lived
on the road. (Doc. 293-5, p. 147). Page E.T.C. was satisfied that he possessed only one
CDL, which was valid, and updated his address to the Kentucky address. (Id.).
In the 10 years prior to applying at Page E.T.C., Dalpra worked at two companies,
U.S. Bulk and T & T Leasing. (Doc. 293-4, pp. 148-49). Evidently, Dalpra was discharged
from his most recent employer, T & T Leasing, related to two recent, non-DOT recordable
accidents. (Docs. 293-4, pp. 147-49; 293-13, pp. 269-70; 293-18). Both accidents occurred in

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early 2017—one accident involved changing lanes and striking another car with no
fatalities, tow away, or hazardous materials, and the other involved backing into a pole.
(Doc. 293-18). According to Napier, these undisclosed accidents and termination deemed
Dalpra a high-risk applicant. (Doc. 293-4, p. 50).
Page E.T.C. received permission to run pre-employment screening as to Dalpra,
which may have revealed maintenance violations, hours of service violations, or other
infractions, but Page E.T.C. declined to do so. (Doc. 293-5, pp. 150-51). Now, Page E.T.C.
runs this screening as to every applicant, but at the time of Dalpra’s hiring, it was
discretionary. (Id.). Dalpra also had multiple criminal violations related to operating with
an expired or suspended CDL. (Docs. 293-8; 293-9; 293-10; 293-11). These violations
occurred in Ohio and Indiana in the 1990s and early 2000s. (Id.).
During his deposition, Dalpra was pressed as to his knowledge of basic driving
principles. (Doc. 293-1, pp. 63-93). For example, when asked how many feet it would take
to stop a tractor-trailer at the weight of his truck and a speed limit of 70 miles per hour,
Dalpra testified that he could not remember. (Id. at p. 88). And when asked further
whether the appropriate distance would be 50 versus 100 feet or more, Dalpra responded,
“I don’t know.” (Id. at pp. 88-89). Based on Dalpra’s testimony and his inability to respond
and slow down to the traffic ahead of him resulting in the motor vehicle accident at issue,
Napier opined that Dalpra lacked the required knowledge, skills, and safety techniques
to adequately perform the job. (Doc. 293-4, pp. 27-28). On the contrary, Page E.T.C.’s
transportation compliance expert, Dennis Burke, opined that Dalpra was qualified to

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operate a commercial motor vehicle, Page E.T.C. reasonably hired him, and Page E.T.C.
had an adequate training program. (Doc. 289-10, pp. 4-6).
In this suit, Manier proceeds against Page E.T.C. on three claims: Count I for
negligence, Count II for negligence per se, and Count III for respondeat superior liability.
(Doc. 310). Manier seeks punitive damages based on his theories of distracted driving,
Page E.T.C.’s failure to adequately train Dalpra, and Page E.T.C.’s improper hiring and
failure to screen Dalpra’s application with the appropriate caution and investigation.
Page E.T.C. filed a motion for partial summary judgment regarding the availability of
punitive damages given the facts surrounding the underlying motor vehicle accident. 3
(Doc. 287). Manier opposes the motion. (Doc. 292).
LEGAL STANDARD
A court should grant summary judgment “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.” FED. R. CIV. P. 56(a). Assertions that a fact cannot be or is genuinely disputed
must be supported by materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials. FED. R. CIV. P. 56(c)(1). Once the moving party
sets forth the basis for summary judgment, the burden then shifts to the nonmoving party
who must go beyond mere allegations and offer specific facts showing that there is a
genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317,
3 Due to the subsequently filed amended complaint, the Court will consider the pending motion for partial

summary judgment only as to the arguments regarding Defendant Page E.T.C.

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323-24 (1986).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the non-movant. Bennington v.
Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). On summary judgment a court may not make credibility
determinations or weigh the evidence, because these are tasks for a factfinder. See
Anderson, 477 U.S. at 255. In evaluating a motion for summary judgment, “[t]he court has
one task and one task only: to decide, based on the evidence of record, whether there is
any material dispute of fact that requires a trial.” Waldridge v. American Hoechst Corp.,
24 F.3d 918, 920 (7th Cir. 1994).
DISCUSSION
In each count, Manier asserts that Page E.T.C.’s conduct was willful and wanton
exhibiting a reckless disregard or indifference for the safety of others. (Doc. 310). As such,
Manier believes this conduct entitles him to punitive damages. Among other things,
Manier asserts that Page E.T.C. had a duty to assess whether Dalpra lacked the required
ability, fitness, and qualifications to operate a commercial vehicle and to properly train,
educate, and monitor its drivers so they would operate tractor-trailers in a reasonably
safe fashion. Manier claims that Page E.T.C. acted willfully and wantonly in failing to
fulfill these duties. Page E.T.C. moves for summary judgment arguing that no reasonable
trier of fact could find Page E.T.C. acted willfully, with actual malice, or with such gross
negligence as to indicate a wanton disregard for the rights of others, as is required for a

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punitive damages award.
In Illinois, punitive damages represent a type of relief as opposed to an
independent cause of action. Brummel v. Grossman, 121 N.E.3d 970, 998 (Ill. App. Ct. 2018).
“Punitive damages serve to punish the offender and to deter that party and others from
committing similar acts of wrongdoing in the future.” Fogt v. 1-800-Pack-Rat, LLC, 74
N.E.3d 186, 202 (Ill. App. Ct. 2017); see also Neuhengen v. Global Experience Specialists, Inc.,
109 N.E.3d 832, 861 (Ill. App. Ct. 2018). Ordinary negligence, such as mere inadvertence
or mistake, does not justify an award of punitive damages. Fogt, 74 N.E.3d at 202. Rather
“[t]he conduct must be outrageous” and involve “some element of outrage similar to that
usually found in crime.” Id. (quoting Loitz v. Remington Arms Co., 563 N.E.2d 397, 415-16
(Ill. 1990)). “Such damages may be awarded when, among other things, the defendant
acts willfully or with such gross negligence as to indicate a wanton disregard of the rights
of others.” McQueen v. Green, 202 N.E.3d 268, 282 (Ill. 2022).
While imposition of punitive damages is a decision for the jury, the initial
determination of whether punitive damages may be awarded in a particular case is a
matter of law for the trial judge to decide. Abrams v. FedEx Ground Package Sys., Inc., 585
F. Supp. 3d 1131, 1145-46 (S.D. Ill. 2022). To do so, the trial court must first determine as
a matter of law whether the cause of action generally and the facts of the case particularly
provide sufficient proof of aggravated circumstances to warrant submitting the issue to
the trier of fact. Id. at 1145. “If the facts of the case legally justify an award of punitive
damages, the issue is then submitted to the trier of fact.” Id. (quoting Wolinsky v. Kadison,

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987 N.E.2d 971, 989 (Ill. App. Ct. 2013)).
i.

Distracted Driving

Page E.T.C. first moves for summary judgment on Manier’s punitive damages
claim regarding Dalpra’s distracted driving—primarily, talking on his cell phone for at
least an hour leading up to the crash. Page E.T.C. contends that the Federal Motor Carrier
Safety Regulations allow tractor-trailer operators to use hands-free devices for cellular
telephone use, citing Sections 392.80 and 392.82 of Title 49 of the Code of Federal
Regulations, which prohibit texting or use of a handheld device while driving a
commercial vehicle. In addition, Page E.T.C. asserts that it maintains a cell phone policy
for its drivers in alignment with the federal regulations, and Dalpra was not only aware
of the policy, but in compliance with it. Page E.T.C. also points out the hypocritical nature
of this argument given that Manier was also using a hands-free device to talk on the
phone at the time of the accident.
Manier claims that the lethal danger of distracted driving is well-known and
understood. This danger, according to Manier, is also compounded by the fact that
Dalpra operated a large, heavy tractor-trailer hauling hazardous materials and remained
on the phone for a long and continuous period. Manier argues that Dalpra wantonly
disregarded this danger by engaging in distracted driving rather than taking care to
remain alert and attentive. Manier also charges Page E.T.C. with taking a careless position
towards distracted driving and failing to uphold effective policies and procedures for
proper communication, including failure to set reasonable prohibitions against unlimited

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use of cell phones.
The Court finds that no reasonable jury could find Dalpra’s use of a hands-free cell
phone warrants punitive damages in this case. Certainly, Dalpra’s hands-free cell phone
use is relevant for the underlying claim of negligence and determining liability, but it is
not the type of outrageous or reckless conduct that warrants punitive damages. This type
of cell phone use is permitted by the federal regulations, and without more, cannot
substantiate a claim of punitive damages. Manier urges that the context—the weight and
size of the truck, the nature of carrying hazardous substances, the duration of the phone
call, and the fact that an accident ensued because Dalpra failed to slow down—presents
more, but the Court disagrees. Using a hands-free device is permissible for commercial
vehicle drivers and there is no regulation limiting duration of hands-free cell phone use.
The regulations regarding hands-free devices are no different for drivers handling
hazardous materials. It is also not lost on this Court that Manier was engaged in the same
conduct.
Moreover, the evidence shows Page E.T.C. had a policy regarding cell phone use
at the time. Manier criticizes the policy as merely verbal. Even if Page E.T.C. failed to
enact a written policy at the time of the accident, Dalpra testified that he was aware of
Page E.T.C.’s policy, the requirement of a hands-free device, and consequences of using
a handheld device such as a fine and automatic firing. The Court cannot find that the lack
of a written policy by Page E.T.C. demonstrates its willful and wanton disregard for the
rights of others, especially given that a policy consistent with federal regulations was

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communicated to Dalpra in some form.
Manier also cites to several cases to support the proposition that evidence of cell
phone use is relevant and important for juries to hear. The majority of his cited cases
discuss cell phone use as evidence of negligence and liability—not in relation to punitive
damages. As to his persuasive authority related to wanton conduct or punitive damages,
the cases cited are distinguishable from the situation here. In Tutor v. Sines, the court
explained that mere distracted driving does not constitute substantial evidence of
wantonness. 380 So. 3d 1035, 1040-41 (Ala. 2023). Rather, the court held that distracted
driving in situations of active phone use like texting, browsing the internet, or engaging
with a music app, paired with the fact that the driver was speeding while cresting a hill
and looking at the phone right before impact, could demonstrate wantonness. Id. In
Purdy, the court referenced evidence that the professional driver engaged in cell phone
use with a substantial “data transfer” at the time of the collision, ran a red light, sped,
and drove from the right side of the truck while using cruise control. Purdy as Tr. of
Survivors of Jones v. Metcalf in & for Cnty. of Pima, 252 Ariz. 270, 277-78 (Ariz. Ct. App.
2021). The court held that this evidence of a series of events of deliberate bad faith or
breaches of duty, not merely using a cell phone, could lead a trier of fact to find the
requisite mental state for punitive damages. Id.
As to Dalpra’s distracted driving, Page E.T.C.’s motion for partial summary
judgment related to punitive damages is granted.

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ii.

Knowledge, Retention, Entrustment, Hiring, and Training of Dalpra

Page E.T.C. next moves for summary judgment on Manier’s punitive damages
claim as to its knowledge, retention, entrustment, hiring, and training of Dalpra. Page
E.T.C. argues that it provided Manier with Dalpra’s valid CDL, numerous investigative
forms into Dalpra’s safety performance history revealing only two minor accidents before
his employment with Page E.T.C., multiple documents related to Dalpra’s driving
violations and driving record, Dalpra’s employment application, medical certifications, a
hazardous material endorsement, and signature pages related to orientation and training.
These records, according to Page E.T.C., expose no misconduct by Dalpra or a lack of
fitness to perform the job.
In response, Manier insists that Page E.T.C. failed to implement effective
management controls and systems to ensure the reasonable certification and
qualifications of Dalpra. For example, Dalpra listed an Indiana address as his residence
while holding a Kentucky CDL, and Manier contends that Page E.T.C. failed to inquire
into whether Dalpra had a valid CDL from his home state. Further, Manier asserts that
Page E.T.C. failed to investigate Dalpra’s previous employment and safety performance
history, including his discharge from employment at T&T Leasing, which Dalpra omitted
from his application. According to Manier’s trucking expert, these undisclosed accidents
and termination deemed Dalpra a high-risk applicant.
Additionally, Page E.T.C. purportedly failed to investigate Dalpra’s background,
including receiving permission for, but not inquiring into, a pre-employment screening

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program, which may have revealed other infractions by Dalpra. Manier also alleges that
Page E.T.C. failed to obtain Dalpra’s motor vehicle records from states where he lived
and worked including Pennsylvania, Ohio, Tennessee, and Indiana. Another area
allegedly neglected by Page E.T.C. was Dalpra’s criminal background. Apparently,
Dalpra had multiple criminal violations related to operating with an expired or
suspended CDL.
Specific to training, Manier highlights Dalpra’s lack of knowledge of basic driving
principles demonstrated throughout his deposition. Based on his deposition answers and
inability to slow down in time to avoid the underlying accident, Manier’s expert, Napier,
opined that Dalpra lacked the required knowledge, skills, and safety techniques to
adequately perform the job.
On the other hand, Page E.T.C. asserts that all the instances of driving violations
and operating with an expired or suspended CDL occurred over 15 years prior to his
hiring at Page E.T.C. And its transportation compliance expert, Burke, opined that Dalpra
was qualified to operate a commercial motor vehicle, his hiring by Page E.T.C. was
reasonable, and Page E.T.C. had a compliant training program for its drivers.
As to hiring, the Court finds that no reasonable jury could find that Page E.T.C.
acted with an evil motive or with a reckless indifference to the safety of others in hiring
Dalpra. While Dalpra omitted his recent discharge and accidents from his application,
Page E.T.C. sent inquiries to his two former employers. Page E.T.C. discovered the two
recent minor accidents, resolved the address issue between Kentucky and Indiana, and

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determined that Dalpra held a valid CDL with decades of prior experience. A jury may
determine that Page E.T.C. was negligent in hiring Dalpra given his application and
background, but the record does not give rise to an inference of its wanton disregard or
reckless indifference to the safety of others in hiring Dalpra. Moreover, the fact that Page
E.T.C. failed to conduct a pre-employment screening program inquiry and criminal
background investigation at most demonstrates negligence. Dalpra had decades of
commercial driving experience, and his infractions for operating with an expired or
suspended CDL occurred a decade and a half prior to his employment with Page E.T.C.
Because Manier has not shown the intent necessary to submit the issue of punitive
damages to a jury as to hiring, Page E.T.C.’s motion for summary judgment is granted on
this claim.
As to training, the Court declines to foreclose imposition of punitive damages. At
this stage, the Court is bound to view all evidence and reasonable inferences in favor of
Manier. A jury could interpret Dalpra’s deposition testimony regarding basic driving
principles, paired with Manier’s expert opinion evidence and the lack of training records,
as demonstrating Page E.T.C.’s failure to properly train Dalpra in the basic principles of
commercial motor vehicle operations and that such lack of training directly contributed
to his failure to slow down appropriately in response to traffic before the accident. In
doing so, a jury may be able to find gross negligence or wanton disregard on behalf of
Page E.T.C. A jury could just as readily determine that Page E.T.C. provided adequate
training to Dalpra through its orientation program and ongoing training and that

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Dalpra’s testimony merely states that proper driving is situational and invites many
variables. A jury may also deem the fact that Dalpra held a valid CDL and possessed
decades of driving experience in finding no gross negligence or wanton conduct on behalf
of Page E.T.C. But because the Court cannot assess credibility and must view all
inferences in favor of Manier, the Court will let punitive damages move forward as to
training.
CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in part Defendants’
Motion for Summary Judgment (Doc. 287). The Court grants summary judgment as to
punitive damages for cell phone use and hiring. The Court denies summary judgment on
the issue of punitive damages as to training; that issue will go to the jury.
IT IS SO ORDERED.
DATED: January 3, 2025
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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