Tomaskovic v. River City Glass, Inc

Filing 108

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 5/292014 - 40 Motion for Summary Judgment is DENIED. cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-00681-TBR

JOHN TOMASKOVIC

Plaintiff,

v.
RIVER CITY GLASS, INC. d/b/a
McANDREWS WINDOWS AND GLASS

Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the Motion for Partial Summary Judgment of
Plaintiff John Tomaskovic.

(Docket No. 40).

Defendant River City Glass, Inc., d/b/a

McAndrews Windows and Glass, (“McAndrews”), has responded, (Docket No. 46), and
Tomaskovic has replied, (Docket No. 51). Fully briefed, this matter stands ripe for decision. For
the reasons set forth below, Tomaskovic’s Motion will be DENIED.
Factual Background
Tomaskovic’s personal injury negligence action arises from an accident that occurred on
April 17, 2012, when a heavy stack of plate glass windows crashed onto him. Tomaskovic, a
truck driver, had delivered approximately seventy-two windows to a downtown worksite in
Louisville, Kentucky. (McAndrews Dep., at 15:17-20.) They were strapped to the inside of his
trailer in stacks of ten each, with each weighing approximately four-hundred pounds.
(McAndrews Dep., at 52:5-6, 63:4-5, 67:6-7.) Tomaskovic, an employee of Blue Thunder
Transportation/T&T Expediting, was not expected to help unpack the windows at the delivery
site, as McAndrews had been contracted to unload and install them. (McAndrews Dep., at
44:10-18.)
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That morning, Brendan McAndrews, co-owner of the company, and five employees
arrived at the worksite to perform a job safety analysis. They considered how to avoid the
potential hazards presented by the job, assigning the responsibilities of each team member and
agreeing to change course if the circumstances so demanded. (McAndrews Dep., at 60:19 –
61:21.) At deposition, Mr. McAndrews explained the unloading process he formulated: one
employee would unstrap the windows from the inside of the truck; another would place his hands
against the stack of windows, stabilizing them; and two others would grasp the windows with
suction cups to move them. (McAndrews Dep., at 42:19-24, 52:8-18.) Other McAndrews
employees testified that the plan required two employees, not one, to stabilize the windows
before they were unloaded. (McGee Dep., at 19:7-9; Clifton Dep., at 17:7-25.)
Although McAndrews’ plan neither sought nor accounted for Tomaskovic’s help, he
nonetheless contributed throughout the process, unlatching ratchet straps and bracing windows.
(McGee Dep., at 24:11-21; Clifton Dep., at 24:11-24.)

Immediately before the accident,

Tomaskovic and McAndrews employee Russell Clifton were alone in the truck, holding a stack
of windows that had yet to be unstrapped. Tomaskovic released a ratchet strap on his side and
began walking the strap toward Clifton. (Clifton Dep., at 28:8-15.) With Clifton alone bracing
the windows as Tomaskovic walked, (Clifton Dep., at 33:1-3, 35:21 – 36:3), the four-thousand
pound stack of windows began to fall. Although Clifton attempted to stop them, the windows
nonetheless crashed onto Tomaskovic, trapping him under their weight. (Clifton Dep., at 28:1722.) Tomaskovic suffered numerous injuries as a result, undergoing two surgeries and a ten-day
hospital stay.

He lives with a permanent work restriction and has incurred thousands of dollars

in medical expenses. (Docket No. 40-1 at 4.)

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Tomaskovic now seeks damages for Clifton’s negligence from McAndrews, grounding
his case in the theory of respondeat superior. In the instant Motion, Tomaskovic requests
judgment as a matter of law regarding liability and causation, arguing that a jury need only
ascertain the amount of damages that McAndrews must recompense. (Docket No. 40-1 at 11.)
Legal Standard
Summary judgment is appropriate where the pleadings, the discovery and disclosure
materials on file, and any affidavits show “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). In determining
whether summary judgment is appropriate, a court must resolve all ambiguities and draw all
reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position; he must present evidence on which the trier of
fact could reasonably find for him. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment:
“[T]he mere existence of a colorable factual dispute will not defeat a properly supported motion
for summary judgment. A genuine dispute between the parties on an issue of material fact must
exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp.,
681 F.3d 312 (6th Cir. 2012).
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Finally, while the substantive law of Kentucky is applicable to this case pursuant to Erie
R.R. v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in diversity applies the standards of
Federal Rule of Procedure 56, not Kentucky’s summary judgment standard as articulated in
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476 (Ky. 1991). Gafford v. Gen. Elec.
Co., 997 F.2d 150, 165 (6th Cir. 1993), abrogated on other grounds by Hertz Corp. v. Friend,
130 S.Ct. 1181 (2010).
Analysis
In order to state a negligence claim under Kentucky law, a plaintiff must establish the
following elements: “(1) a duty on the part of the defendant; (2) a breach of that duty; and (3)
consequent injury.” Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992).
The standard of care applicable to such an action is that which “a reasonably prudent person
would exercise under the circumstances.” Slusher v. Brown, 323 S.W.2d 870, 827 (Ky. 1959).
The question of whether Clifton—and by extension, McAndrews—owed Tomaskovic a
duty of a care is a question of law for the court to decide. Mullins v. Commonwealth Life Ins.
Co., 839 S.W. 2d 245 (Ky. 1992). Tomaskovic points to the “universal duty of care” by which
Kentucky law requires each person to “exercise ordinary care in his activities to prevent
foreseeable injury.” Grayson Fraternal Order of Eagles, Aerie No.3738 v. Claywell, 736 S.W.2d
328 (Ky. 1987). But the Kentucky Supreme Court has recognized that the “universal duty of
care” is not without limits. “The examination must be focused so as to determine whether a duty
is owed, and consideration must be given to public policy, statutory and common law theories in
order to determine whether a duty existed in a particular situation.” Id. at 531 (quoting Grand
Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 849 (Ky. 2005)). Simply put,
Grayson “is most emphatically not a jurisprudential panacea for litigants faced with an uphill
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challenge in establishing the existence of a legal duty of care.” Estate of Vosnick v. RRJC, Inc.,
225 F. Supp. 2d 737, 740 (E.D. Ky. 2002). Kentucky courts perceive no liability without first
finding circumstances creating a relationship; only when such a relationship exists does one
party owe a duty to another. Jenkins v. Best, 250 S.W.3d 680, 691 (Ky. Ct. App. 2007).
The most important factor in determining whether a duty exists is foreseeability.”
Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003). Whether a risk is foreseeable
depends largely upon what the defendant knew at the time of his alleged negligence: which
course would be chosen by one with the “attention, perception of the circumstances, memory,
knowledge of other pertinent matters, intelligence, and judgment” of a reasonable individual? Id.
at 90 (quoting Restatement (Second) of Torts § 289(a)); see also Mitchell v. Hadl, 816 S.W.2d
183, 186 (Ky. 1991) (explaining that negligence liability depends on what the defendant knew at
the time of the alleged negligence, not what he should have known in hindsight). Moreover, in
weighing whether a given harm was foreseeable, the Court must consider the general
foreseeability of harm: “It is enough that injury of some kind of some person within the natural
range of effect of the alleged negligent act could have been foreseen.” Id.
Turning to the facts presented by this case, the parties do not disagree that Clifton owed
some form of duty to Tomaskovic; instead, their conflict revolves around the contours of this
duty. The Court agrees with Tomaskovic that the harm that befell him was foreseeable. Indeed,
McAndrews employees nearly anticipated the precise injury: Clifton testified that the team
members discussed ways to support the windows to prevent them from falling. (Clifton Depo.,
at 16:3-14.) Another McAndrews staffer, William McGee, also recalled that the job safety
analysis noted the potential hazard of falling windows. (McGee depo., at 16:8-12.) Because

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McAndrews foresaw the very risk that transpired, the Court finds that the company owed a duty
to protect Tomaskovic and other foreseeable plaintiffs from any resultant harm.
However, the Court will leave for a jury the question of whether McAndrews breached
this duty. Generally, whether a defendant breached a duty constitutes a factual issue. See Lewis
v. B & R Corp., 56 S.W.3d 432 (Ky. Ct. App. 2001) (citations omitted).

According to

Tomaskovic, McAndrews’ own safety plan effectively established the standard of care; when
Clifton failed to adhere to it, his actions constituted a breach attributable to the company.
(Docket No. 40-1 at 7-8.) The Court cannot agree. The company arguably established an
internal policy, only to fall short of its directives. However, this failure does not automatically
subject it to liability. Such alleged deficiencies do not independently serve as a basis for
actionable negligence. See Morgan v. Scott, 291 S.W.3d 622, 632 (Ky. 2009).
The accident’s proximate cause also presents a jury question, rendering summary
judgment improper. To establish proximate causation, a plaintiff must prove that the defendant’s
negligence was a “substantial factor” in causing his injury. Deutsch v. Shein, 597 S.W.2d 141,
144 (Ky. 1980). The Court may determine causation only when no dispute exists as to the
essential facts, permitting only one reasonable conclusion. Pathways, 113 S.W. at 92 (citing
McCoy v. Carter, 323 S.W.2d 210, 215 (Ky. 1959)).
Tomaskovic himself admitted that he participated in the unloading process without
instruction from McAndrews employees. (Tomaskovic Dep. at 86:24 – 87:7.) Although his
assumed role involved removing the ratchet strips and applying pressure to the glass panes, he
was not supporting the panes when they began to fall on him. (Tomaskovic Dep. at 53:23 –
54:6.) If a jury could accept Tomaskovic’s contention that Clifton negligently failed to stabilize

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the glass, so, too, could it determine that Tomaskovic himself negligently failed to do the same.
Because reasonable minds could differ as to whether Clifton’s conduct was a substantial factor in
causing Tomaskovic’s injuries, causation is properly left for the jury.
Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff John Tomaskovic’s
Motion for Summary Judgment, (Docket No. 40), is DENIED.

May 29, 2014

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