Jenks et al v. New Hampshire Motor Speedway, Inc. et al
Filing
144
ORDER denying 112 Motion for Summary Judgment by Melissa Jenks. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Melissa Jenks, Individually
and as g/n/f of Roderick Jenks
v.
Civil No. 09-cv-205-JD
Opinion No. 2012 DNH 006
New Hampshire Motor Speedway, et al.
v.
Textron Financial Corporation
and A.B.L. Inc.
O R D E R
Melissa Jenks, as the guardian and next friend of her
husband, Roderick Jenks, and on her own behalf, sued New
Hampshire Motor Speedway, Breann Thompson, and Textron, Inc.,
alleging negligence claims against Thompson and the Speedway and
product liability claims against Textron.
Textron brought cross
claims against Thompson and the Speedway for contribution and
indemnification, and Thompson and the Speedway brought thirdparty claims against Textron Financial Corporation and A.B.L.
Inc.1
Jenks moves for summary judgment on the defendants’
1
Summary judgment was granted in Textron Financial
Corporation’s favor on the third-party claims against it.
affirmative defenses of comparative fault and on vicarious
liability.
Standard of Review
Summary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
A party opposing summary judgment “must set forth
specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The
court considers the undisputed facts and all reasonable
inferences from those facts in the light most favorable to the
nonmoving party.
Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.
2011).
Background
Roderick Jenks worked at the New Hampshire Motor Speedway on
July 16, 2006, as part of a program in which the Speedway donates
money to a charity in exchange for the work done by individuals
who volunteer to participate.
Jenks worked that day on behalf of
a nonprofit organization called Fishin’ for Kids.
Jenks, along
with several other Fishin’ for Kids workers, was assigned to work
providing security in the track infield.
2
After receiving their assignments, Jenks and his fellow
Fishin’ for Kids workers, Bruce Ottman, Marc MacAlpine, and John
Horgan, began walking toward their work assignment at the Busch
garage.
Jenks and MacAlpine stopped to use the restroom while
Ottman and Horgan continued toward the garage.
As Jenks and
MacAlpine left the restroom, a Speedway employee, Breann
Thompson, drove by on a golf car.2
MacAlpine asked Thompson if
he and Jenks could have a ride, and she agreed.
The golf car had seats for two people in front and a
platform on the back, where golf bags would be carried.
MacAlpine got into the seat next to Thompson.
Jenks climbed onto
the platform on the back of the car and rode standing up.
As the golf car approached Horgan and Ottman on the way
toward to the garage, Horgan stuck out his leg, lifted his pant
leg, and put his thumb up, pretending to hitchhike.
swerved away from Horgan.
Thompson
Jenks fell off of the back of the car
and hit his head on the pavement.
Because of Jenks’s injuries in the fall, his wife, Melissa
Jenks, serves as his guardian and next friend for purposes of
this case.
Melissa also brings a claim of loss of consortium on
her own behalf.
Therefore, Melissa Jenks, serving as the
2
The parties all refer to the vehicle as a “golf car” not a
“golf cart.”
3
plaintiff in this case on behalf of Rod and herself, is referred
to as “Jenks,” while her husband is referred to as “Rod.”
Discussion
Jenks alleges that the Speedway and Thompson were negligent,
which caused the injury to Rod.
She brings product liability
claims against Textron, alleging that the golf car, which was
designed and manufactured by Textron, was unreasonably dangerous
and lacked warnings that it was dangerous to operate the car with
a passenger riding on the back.
Jenks seeks summary judgment on
the defendants’ affirmative defenses asserting comparative fault
and misconduct by Rod and that the Speedway is vicariously liable
for the negligence of Rod’s fellow workers, MacAlpine and Horgan.
I.
Affirmative Defenses
Thompson and the Speedway asserted an affirmative defense
that Rod’s injuries were caused at least in part by his own
negligence.
Textron asserted an affirmative defense that Rod’s
misconduct contributed to cause his injuries.
A.
Comparative Fault - Speedway and Thompson
Under New Hampshire law, which governs the claims in this
case, a plaintiff’s fault that contributed to cause his injuries
4
does not bar his claim, as long as the plaintiff’s fault is less
than the defendants’ fault.
RSA 507:7-d.
The recoverable
damages, however, are reduced by the plaintiff’s proportion of
the fault, if any.
Id.
A comparative fault defense “is triggered by a plaintiff’s
negligence.”
Broughton v. Proulx, 152 N.H. 549, 558 (2005).
“A
plaintiff’s negligence involves a breach of the duty to care for
oneself” that is not obviated by others’ obligations to use due
care.
Id.
“The right to rely upon the care of another is only
one of the circumstances in the light of which the duty to
exercise due care for oneself is to be determined, because full
reliance may not be placed upon another’s care when it is
unreasonable to do so.”
Id.
A defendant asserting the defense
of comparative fault bears the burden of proving “the existence
or amount of fault attributable” to the plaintiff.
RSA 507:7-d.
Jenks asserts that the defendants lack any evidence of Rod’s
fault in causing his fall and, therefore, that the jury could
find comparative fault only based on conjecture and speculation.
The Speedway and Thompson contend that Rod’s decision to ride
standing on the back of the golf car was negligent and
contributed to cause his fall.
They also provide evidence that
Rod did not ask Thompson to drive slowly, that he was “hooting
5
and hollering,” and that he may not have been holding on with
both hands.
Jenks cites two cases in which the court granted the
plaintiff summary judgment on comparative fault defenses, Copp v.
Atwood, 2005 WL 139180 (D.N.H. Jan. 24, 2005), and Bartlett v.
Mutual Pharm. Co., 731 F. Supp. 2d 184 (D.N.H. 2010).
defendants explain, neither case is pertinent here.
As the
Jenks also
analogizes this case to an accident case decided in 1930, Piatek
v. Swindell, 84 N.H. 402, 151 A. 262 (1930), which is not
persuasive.3
In Copp, the court concluded that under the bizarre
circumstances of that accident, where the defendant abruptly
stopped on I-89, turned across two lanes of traffic, crossed the
median, and drove into Copp, Copp’s speed was not a contributing
factor in the accident.
2005 WL 139180, at *3.
In this case,
Rod chose to ride on the back of the golf car under circumstances
that are disputed and fell when the car swerved.
Unlike the
situation in Copp, the circumstances that led to Rod’s fall and
3
Jenks further relies on Nepstad v. Randall, 152 N.W. 2d 383
(S.D. 1967), which considered the doctrine of assumption of the
risk under South Dakota law in the context of a golf cart
accident. The court does not find the analysis persuasive in the
context of the circumstances and legal standards in this case.
6
his injuries were not so far beyond his control and expectation
that comparative fault is not an issue.
In Bartlett, the plaintiff asserted product liability claims
based on side effects she experienced caused by a medication
manufactured by the defendant.
731 F. Supp. 2d at 186-87.
The
defendant asserted that the plaintiff was negligent in continuing
to take the medication after experiencing some symptoms, but the
defendant lacked expert opinion evidence that earlier cessation
would have made her injuries less severe.
Id. at 188.
The court
ruled that without expert opinion evidence the defendant could
not show that the plaintiff’s actions contributed to cause her
injuries.
Id. at 188-89.
Here, Rod has not shown that missing
expert opinion is necessary to show a causal link between Rod’s
decision to ride on the back of the car, including his actions
while riding, and his fall.
Jenks further asserts that Rod had no reason to foresee the
danger of falling, relying on Piatek.
Piatek involved the
application of contributory fault in a traffic accident that
occurred more than eighty years ago.
There, the plaintiff was
sitting on the floor of the passenger side of a pickup truck with
his leg extending to the running board, and the defendant, who
was speeding, hit the truck at an intersection.
151 A. at 263.
The court noted the obligation to take proper precautions against
7
dangers that are likely to be encountered and that it was not
careless to encounter danger that could not anticipated.
263-64.
Id. at
The court also stated that “[i]t is not negligent for
one to assume that another will do his duty when there is no
occasion to assume otherwise
. . . .”
Id. at 264.
The court
concluded that the plaintiff was not careless because he had no
reason to anticipate the defendant’s excessive speed.
Piatek is inapposite to this case.
Id.
Under the more modern
version of comparative fault, as is explained above, “[t]he right
to rely upon the care of another is only one of the circumstances
in the light of which the duty to exercise due care for oneself
is to be determined, because full reliance may not be placed upon
another’s care when it is unreasonable to do so.”
N.H. at 558.
Broughton, 152
The facts in this case are disputed as to whether
Rod should have anticipated the danger of riding on the back of
the golf car and whether he took proper precautions while doing
so.
Contrary to Jenks’s argument, the defendants presented
evidence that Rod’s choice to ride on the back of the golf car
and his actions while riding may have contributed to cause his
fall which resulted in his injuries.
Whether Rod should have
anticipated the danger of riding on the back is disputed.
Jenks
has not shown that she is entitled to judgment as a matter of law
8
on the comparative fault defense asserted by the Speedway and
Thompson.
B.
Misconduct - Textron
Under New Hampshire law, a comparative fault defense also
applies in claims of strict product liability, although the
defense in that context is known as plaintiff misconduct or
misuse of the product.
Thibault v. Sears, Roebuck & Co., 118
N.H. 802, 810-13 (1978); see also Chellman v. Saab-Scania AB, 138
N.H. 73, 81 (1993); Kathios v. Gen. Motors Corp., 862 N.H. 944,
948 (1988); McNeil v. Nissan Motor Co., Ltd., 365 F. Supp. 2d
206, 210-11 (D.N.H. 2005).
Because strict liability does not
consider negligence, however, the defense applies for purposes of
strict liability to “comparative causation” for purposes of
assessing damages.
Bohan v. Ritzo, 141 N.H. 210, 214 (1996).
The foreseeability of a plaintiff’s misuse of the product or
misconduct does not bar the defendant from relying on the
defense.
Cyr v. J.I. Case Co., 139 N.H. 193, 208 (1994).
Jenks makes the same argument against Textron’s defense as
she makes against the defense used by the Speedway and Thompson,
without distinguishing between the nature of the defenses.
Textron raises Rod’s decision to ride on the back of the golf car
and his actions while riding as evidence of his misconduct or
9
misuse of the product.
Textron notes that the cause of the
accident was not limited to Thompson’s driving, as Jenks
suggests, because if Rod had not ridden on the back, he would not
have fallen off.
Therefore, for the reasons explained above,
Jenks has not shown that she is entitled to summary judgment on
Textron’s affirmative defense of product misuse or Rod’s
misconduct.
II.
Vicarious Liability
Jenks seeks a ruling on summary judgment that the Speedway
is vicariously liable for any negligence of Rod’s fellow workers,
Marc MacAlpine and John Horgan.
against either.
Jenks does not allege claims
In response, the Speedway states that it is not
asserting any negligence by MacAlpine, making the issue moot as
to him.
The Speedway contends that it is not vicariously liable
for Horgan’s actions, to the extent his actions contributed to
cause the accident, because he was not acting on behalf of the
Speedway when he pretended to hitchhike as Thompson drove toward
him.
“Under the doctrine of respondeat superior, an employer may
be held vicariously responsible for the tortious acts of its
employee if the employee was acting within the scope of his or
her employment when his or her tortious act injured the
10
plaintiff.”
Tessier v. Rockefeller, 162 N.H. 324, 2011 WL
4133840, at *12 (Sept. 15, 2011) (internal quotation marks
omitted).
“Conduct falls within the scope of employment if:
(1)
it is of the kind the employee is employed to perform; (2) it
occurs substantially within the authorized time and space limits;
and (3) it is actuated, at least in part, by a purpose to serve
the employer.”
Id. (internal quotation marks omitted).
Conduct
is not for the purpose of serving the employer if it “is
motivated solely by individual desires and serves no purpose of
the employer.”
Faragher v. City of Boca Raton, 524 U.S. 775, 794
(1998).
For purposes of summary judgment, the Speedway does not
contest that Horgan would be deemed to be an employee at the time
of the accident.
Horgan’s actions that are the subject of
potential liability are that he stuck his leg out, pulled up his
pant leg, and pretended to hitchhike as the golf car approached
him.4
The Speedway contends that in taking those actions, Horgan
was engaging in a classic “frolic” for the benefit of himself and
his friends and was not acting with a purpose to serve the
Speedway.
4
Horgan described his conduct as a satire on a Three
Stooges’ routine.
11
Jenks does not address the requirement for vicarious
liability that Horgan must have been acting with a purpose to
benefit the Speedway in her motion and memorandum.
The Speedway
points to evidence that taken in the light most favorable to it
could support the argument that Horgan was not acting on its
behalf when he pretended to hitchhike in front of the oncoming
golf car.
In her reply, Jenks argues that Horgan may have had a
mixed motive and argues that joking on the job does not take the
conduct outside the scope of employment.
In Porter v. City of Manchester, 155 N.H. 149, 155 (2007),
the court noted that conduct done at least in part to serve the
employer falls within the employee’s scope of employment.
As a
result, an employee with a mixed motivation, both to serve her
own interests and those of her employer, still acts within the
scope of her employment for purposes of vicarious liability.
Id.
The court held that conflicting evidence about the employee’s
motivation precludes summary judgment.
Id.
Here, the only evidence pertaining to Horgan’s motivation in
pretending to hitchhike suggests that he was simply joking with
his friends.
Although joking and pranks at work may fall within
the scope of employment in some circumstances and for some
purposes, see Maltais v. Equitable Life Assurance Society of the
U.S., 93 N.H. 237 (1944), but see XL Ins. Am., Inc. v. Ortiz, 673
12
F. Supp. 2d 1331, 1343 n.11 (S.D. Fla. 2009), Jenks has not
established that to be true here.
Therefore, the record would
not support judgment as a matter of law that Horgan intended to
serve the interests of the Speedway, at least in part, and was
acting within the scope of his employment.
Jenks has not shown that she is entitled to summary
judgment on her claim that the Speedway is vicariously liable for
the conduct of MacAlpine and Horgan.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
summary judgment (document no. 112) is denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
January 10, 2012
cc:
R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Dona Feeney, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
John A.K. Grunert, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Michael D. Shalhoub, Esquire
William A. Whitten, Esquire
13
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