Lufkin et al v. John R. Reed, Inc. et al

Filing 35

///ORDER denying 24 Motion for Summary Judgment; granting 29 Motion for Summary Judgment. Judgment shall enter for Reed on Count III. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Terry L. Lufkin and Bradley Lufkin,
d/b/a Lufkin’s Service Center
v.

Civil No. 13-cv-269-LM
Opinion No. 2015 DNH 017

John S. Reed, Inc. and
John S. Little, as Administrator
of the Estate of Keith A. Butts

O R D E R
The Plaintiffs, Terry and Bradley Lufkin (“Lufkins”), are
the proprietors of Lufkin’s Service Center (“Service Center”), a
gas station and automotive repair shop located in Whitefield,
New Hampshire.

In December of 2011, a flatbed tractor trailer

truck lost control and careened through the Service Center,
causing damage to a gas pump and the canopy above it.

The truck

came to rest in a ravine beyond the Service Center, and the
truck’s driver, Keith A. Butts (“Butts”), was killed in the
accident.

Because of damage to the Service Center, the Lufkins

were ordered by local authorities to stop selling fuel.
The Lufkins have brought this suit against John R. Reed,
Inc. (“Reed”), a Tennessee corporation that owns the truck, and
John S. Little (“Little” and, together with Reed, “Defendants”),
a Tennessee attorney who has been appointed as the administrator
of Butts’s estate.

The complaint asserts a claim for negligent

operation of a motor vehicle against Little (“Count I”), and
claims for respondeat superior (“Count II”) and negligent
failure to supervise (“Count III”) against Reed.

The Lufkins

seek compensation for damage to the Service Center, including
losses stemming from their ongoing inability to sell fuel.
The Lufkins have filed a motion seeking partial summary
judgment solely as to liability on Counts I and II.
was held on this motion on January 29, 2015.

A hearing

For the reasons

that follow, the Lufkins’ motion for partial summary judgment is
denied.1
Factual Background
In the early morning hours of December 20, 2011, Butts was
driving the truck eastbound on Route 116 in Whitefield, en route
from Tennessee to Vermont with a load of steel girders.

At

approximately 5:50 a.m., Butts descended an incline on Route 116
as he approached the “T” intersection of Route 116 and Route 3.
Butts planned to execute a left turn onto Route 3 in order to
head north.

Reed has moved for summary judgment on Count III,
contending that a claim for negligent failure to supervise is
redundant of Count II, which is for respondeat superior. The
Lufkins did not oppose this motion, and conceded at oral
argument that it should be granted because Reed has stipulated
that Butts was acting within the scope of his employment at the
time of the accident. See Burley v. Hudson, 448 A.2d 375, 37677 (N.H. 1982).
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For reasons that are unclear, Butts proceeded through a
stop sign at the intersection, failed to make the turn onto
Route 3, and hurtled through the Service Center, which is
located directly across from the intersection.

The truck struck

a fuel pump and a support column for the Service Center’s
canopy, finally coming to rest in a ravine with its cab
partially submerged in the Johns River.

Butts was killed when

the steel girders flew forward and breached the rear wall of the
cab.

Footage from security cameras captured the accident from

three different angles.
Legal Standard
“Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.”

Ponte v. Steelcase Inc., 741 F.3d

310, 319 (1st Cir. 2014) (citations omitted); see also Fed. R.
Civ. P. 56(a).

When ruling on a motion for summary judgment,

the court must “view[] the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.”

Winslow v.

Aroostook Cnty., 736 F.3d 23, 29 (1st Cir. 2013) (citations
omitted) (internal quotation marks omitted).
“The object of summary judgment is to pierce the
boilerplate of the pleadings and assay the parties’ proof in
order to determine whether trial is actually required.”
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Dávila

v. Corporación de P.R. para la Difusión Pública, 498 F.3d 9, 12
(1st Cir. 2007) (citations omitted) (internal quotation marks
omitted).

“[T]he court’s task is not ‘to weigh the evidence and

determine the truth of the matter but to determine whether there
is a genuine issue for trial.’”

Noonan v. Staples, Inc., 556

F.3d 20, 25 (1st Cir. 2009) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986)).
Discussion
The Lufkins seek summary judgment as to liability for
Counts I and II, which assert claims against Little for
negligent operation of a motor vehicle, and against Reed for
respondeat superior, respectively.2

The Lufkins contend that the

security camera footage establishes as a matter of law that
Butts operated the truck negligently.

In the alternative, the

Lufkins maintain that Butts was negligent per se in violating at
least two New Hampshire traffic safety laws.

The Defendants

counter that genuine issues of material fact remain regarding

Under the theory 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
plaintiff.” Pierson v. Hubbard, 802 A.2d 1162, 1167 (N.H.
2002). Reed does not dispute that Butts was acting within the
scope of his employment at the time of the accident, but
contends that genuine issues of fact remain regarding whether
Butts acted negligently.
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the road conditions at the time of the accident, precluding
summary judgment.
The court has reviewed the footage from the three security
cameras.

Two of the angles merely show the truck as it barrels

through the Service Center.

The third angle, however, captures

the intersection of Routes 3 and 116 as the truck careens
through the stop sign and toward the Service Center.

Because

the footage was captured at nighttime, is somewhat grainy, and
only shows a small portion of the roadway, it is impossible for
the court to tell whether the truck was skidding at the time
that it ran through the stop sign, or merely ran the stop sign
without attempting to slow down.
I.

Negligence as a Matter of Law
Under New Hampshire law, a driver’s loss of control of his

vehicle is not dispositive evidence of negligence.

Grigas v.

Merrimack Farmers’ Exch., 50 A.2d 230, 233 (N.H. 1946)
(“[S]kidding in and of itself, when not due to carelessness on
the part of the operator of an automobile, is not evidence of
negligence.”).

This is particularly true where there is

evidence of poor road conditions.

Burns v. Cote, 164 A. 771,

772-73 (N.H. 1933) (“It is a matter of common knowledge that a
car may skid on a slippery road without fault either on account
of the manner of handling the car or on account of its being
there.”) (citations omitted) (internal quotation marks omitted).
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Here, there are a series of factual questions related to
Butts’s operation of the truck and the road conditions at the
time of the accident.
summary judgment.

These questions preclude the entry of

As an initial matter, the stretch of Route

116 leading to the intersection is described in a police report
as a “steep [downward] grade.”

What is more, eyewitnesses to

the accident described the road as being “slippery” and “ice
covered” at the time.

While there is some evidence that the

road may have been recently treated with salt and gravel, a New
Hampshire state trooper described the roadway as having portions
that were “covered with ice.”
The New Hampshire Supreme Court has recognized that the
question of whether road conditions are to blame for a traffic
accident is one of fact.

See Wiggin v. Kingston, 20 A.2d 625,

625-26 (N.H. 1941) (“Unexplained skidding does not indicate
negligence, but when there are conditions within the driver’s
control which may be found accountable for it, careless control
becomes causal of the loss of control. . . . Whether the
defendant in the exercise of care should have anticipated that
the speed at which she was driving on a road made slippery by
soft wet snow was unreasonably dangerous, was an issue of
fact.”).

While the security footage plainly shows the truck

careening through the stop sign and onto the premises of the
Service Center, the Defendants have demonstrated the existence
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of genuine issues of material fact regarding whether the
downward slope of the road and icy conditions were such that it
was impossible for Butts to stop the truck’s momentum and avert
a collision.3
This is precisely the type of factual inquiry best left to
a jury.

Presented with the videotapes, the eyewitness accounts,

and the reports of the responding officers, jurors will be able
to resolve the dispositive factual dispute of whether Butts was
operating the truck negligently at the time of the accident.
II.

Negligence Per Se
The Lufkins contend that even if the court were to hold

that the security footage is inadequate to find the Defendants
liable as a matter of law, liability may still be premised on
the basis of negligence per se.

“[T]he negligence per se

doctrine may define the standard of conduct to which a defendant
will be held as that conduct required by a particular statute,
either instead of or as an alternative to the reasonable person
standard.”

Mahan v. N.H. Dep’t of Admin. Servs., 693 A.2d 79,

85 (N.H. 1997).

The court has reviewed the two cases cited by the Lufkins
at oral argument regarding the duty of drivers to appropriately
account for slippery road conditions. See Nilsson v. Bierman,
839 A.2d 25 (N.H. 2003); Patterson v. Corliss, 298 A.2d 586
(N.H. 1972). Contrary to the Lufkins’ contention, neither case
stands for the proposition that a driver’s liability is
appropriately resolved as a matter of law on summary judgment.
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The Lufkins maintain that Butts violated N.H. Rev. Stat.
Ann. §§ 265:31(II) and 265:44, which pertain to the requirement
to stop at marked stop signs, and to safely execute turns,
respectively.4

The Lufkins argue that a finding of liability may

be premised on these statutory violations.
This argument, however, overlooks the possibility that
Butts was exercising due care at the time of the accident, and
that his loss of control was the result of poor driving
conditions.

Though New Hampshire state courts have not yet had

occasion to parse the relevant section of the Restatement
(Third) of Torts, the court finds it persuasive.

There, in

discussing negligence per se, the authors write that “[a]n
actor’s violation of a statute is excused and not negligence if
the actor exercises reasonable care in attempting to comply with
the statute.”

Restatement (Third) of Torts: Liability for

Physical and Emotional Harm § 15(b).

In the comments that

follow, the authors note:
[T]he common law recognizes that [a] person can rebut
negligence per se by showing that the person made a
reasonable effort to comply with the statute.
For
example . . . . if a statute imposes a strictliability obligation on motorists to remain on the
right side of the road, the motorist whose car crosses
the middle of the road because of a sudden tire
In relevant part, § 265:31(II) provides that “every driver
of a vehicle approaching a stop intersection indicated by a stop
sign shall . . . stop at a clearly marked stop line . . . .”
Also in relevant part, § 265:44 provides that “[n]o person shall
turn a vehicle . . . upon a roadway unless and until such
movement can be made with reasonable safety.”
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deflation is excused from negligence per se if the
tire deflates despite the motorist’s reasonable
efforts to prevent this result.
Id. at cmt. c.

For the reasons described above, the Defendants

have proffered sufficient evidence to demonstrate the existence
of genuine issues of material fact regarding whether the
accident was the result of Butts’s negligence, or whether the
road conditions prevented him from stopping at the intersection
despite his diligent efforts to do so.
Conclusion
In these circumstances, it is premature to enter judgment
for the Lufkins on the issue of Butts’s negligence, and
therefore similarly premature to find Reed liable for the
actions of its employee based on respondeat superior.

Thus, the

Lufkins’ motion for partial summary judgment (doc. no. 24) must
be DENIED.

Reed’s motion for partial summary judgment (doc. no.

29) is GRANTED, and judgment shall enter for Reed on Count III.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
February 4, 2015
cc:

Daniel Duckett, Esq.
Thomas Kincaid mcCraw, Jr., Esq.
Keith L. Miller, Esq.

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