Degraffenriedt v. United States of America

Filing 102

ORDER denying 85 Motion for Summary Judgment; denying 87 Motion for Partial Summary Judgment; and granting 91 Motion to Amend. The decision of the United States Magistrate Judge is AFFIRMED. Signed by District Judge Terrence W. Boyle on 10/17/2016. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-218-BO
CHARLES DEGRAFFENRIEDT,

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Plaintiff,

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v.

ORDER

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UNITED STATES OF AMERICA,
Defendant.

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This cause comes before the court on cross-motions for partial summary judgment. The
appropriate responses and replies have been filed and the matters are ripe for ruling. Also before
the Court are plaintiffs unopposed motion for leave to file and defendant's appeal of an order of
a United States Magistrate Judge regarding plaintiffs motion for discovery. For the reasons set
forth below, the pending motions for summary judgment are denied, plaintiffs motion for leave
to file is granted, and the decision of the United States Magistrate Judge is affirmed.
BACKGROUND
This action arises under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., under
which plaintiff alleges claims for negligence and gross negligence under North Carolina law. 28
U.S.C. § 1346(b)(1 ). Plaintiff alleges that on July 19, 2011, he was a pedestrian in the United
States Postal Service processing and distribution center in Raleigh, North Carolina when he was
struck from behind by a forklift operated by a Postal Service employee. Plaintiff was working at
the time as an employee of Mail Transport Services, LLC, a contractor with the United States
Postal Service. Plaintiff alleges he suffered serious and painful bodily injuries as well as pain
and suffering as a result of being struck with the forklift.

Plaintiff filed this action on April 11, 2014. Defendant filed its answer, and after a
lengthy period of discovery the instant motions were filed. Plaintiff seeks entry of summary
judgment in his favor on defendant's affirmative defenses sounding in contributory negligence.
Defendant seeks entry of summary judgment in its favor on plaintiffs gross negligence claim.
Defendant further appeals the order of United States Magistrate Judge Swank insofar as it
requires defendant to respond to plaintiffs request for admission 102, which asks defendant to
"admit that defendant had made no determination regarding plaintiffs claim for the incident at
issue in this lawsuit before plaintiff filed the instant suit."
DISCUSSION
I.

MOTIONS FOR SUMMARY JUDGMENT

A motion for summary judgment may not be granted unless there are no genuine issues
of material fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has
been met, the non-moving party must then come forward and establish the specific material facts
in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a
trial court views the evidence and the inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla
of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for
summary judgment; "there must be evidence on which the [fact finder] could reasonably find for
the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Speculative

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or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645,
649 (4th Cir. 2002).
Plaintiff seeks partial summary judgment on defendant's affirmative defenses sounding in
contributory negligence. Under North Carolina law, in order to demonstrate that the plaintiff
acted negligently in contribution to his own injury, a defendant must demonstrate "(1) a want of
due care on the part of the plaintiff; and (2) a proximate connection between the plaintiffs
negligence and the injury." Silverman v. United States, No. 1:08CV155, 2011WL65487, at *8
(M.D.N.C. Jan. 7, 2011) (quoting Whisnant v. Herrera, 166 N.C. App. 719, 722 (2004)). "[A]
plaintiffs right to recover in a personal injury action is barred upon a finding of contributory
negligence." Cobo v. Raba, 347 N.C. 541, 545 (1998) (citation omitted).
Defendant seeks partial summary judgment in its favor on plaintiffs gross negligence
claim. North Carolina defines gross negligence as "wanton conduct done with conscious or
reckless disregard for the rights and safety of others." Yancey v. Lea, 354 N.C. 48, 52 (2001)
(quoting Bullins v. Schmidt, 322 N.C. 580, 583 (1988)). A wanton act is one done with a wicked
purpose or one done needlessly. Id. The difference between gross and ordinary negligence
is not in degree or magnitude of inadvertence or carelessness, but rather is
intentional wrongdoing or deliberate misconduct affecting the safety of others. An
act or conduct rises to the level of gross negligence when the act is done
purposely and with knowledge that such act is a breach of duty to others, i.e., a
conscious disregard of the safety of others.

Id. at 53.
There were at least two witnesses to the incident in question, and the record reveals three
distinctly different versions of the facts. Under plaintiffs version, he was standing at the
expediter's desk with Eugene Ball waiting for mail to be loaded onto their trucks. Pl' s Dep. at
139. Plaintiff and Ball were just standing at the desk, and as Ball told plaintiff to "look" or
"watch out" plaintiff was struck with the fork of a forklift in the lower left calf. Id. at 143-44.

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Plaintiff grabbed his leg, turned around, and saw the forklift directly behind him with raised
forks. He also saw the forklift operator stick his head around, "kind of snirting," as if to say
"hey, did I do that?". Id. at 145-46.
Eugene Ball testified that he and plaintiff were standing behind the yellow safety line
talking at the expediter's desk when he saw the forklift operator, Nathan Richardson, come
around the comer operating the forklift. Ball Dep. at 59-60. Nothing was being carried by the
forklift, and Richardson was not engaged in loading or unloading any trucks. Id. at 63. The
forklift veered suddenly and proceeded toward plaintiff and Ball. Ball stated that it looked to
him like Richardson was trying to put the forks between plaintiffs legs just to be funny. Id. at
61. A fork on the lift then struck plaintiff. Ball also stated that in the past Richardson had
weaved at him while driving the forklift, and Ball noted that "anything swerving at me at two
thousand pounds is unsafe, even a notion." Id. at 88-89. Ball testified that after plaintiff was
struck he appeared to be in pain and hobbled around. Ball Dep. at 94.
Richardson contends that just prior to the incident plaintiff asked him to help load a
heavy cart onto his truck using the forklift. Def.'s App'x at 104 [DE 90]. Richardson contends
that plaintiff was positioned at the west edge of the door and was leaning in telling Richardson
where to place the cart. Id. Richardson contends that as he was reversing the forklift out of
plaintiffs trailer, the left fork of the fork lift may have come within approximately one foot of
plaintiffs leg but that it did not make contact. Id. When in reverse, Richardson's forklift would
have sounded a loud beep and emitted flashing strobe lights, presumably to alert pedestrians and
other vehicles to its location. Richardson Dep. at 100. Richardson further contends that Ball
was not standing near plaintiff during the time when plaintiff was allegedly hit. Id. at 105. The
accident report contains a statement by Richardson that he pulled up to the expediter's desk,

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shifted the forks, and that plaintiff advised him that the forks hit him on the leg. [DE 87-6 at 5].
Richardson further reported that plaintiff acted as if nothing was wrong, laughed and talked
normally, and got in his truck and left. Id.
The record therefore does not support an undisputed version of material facts, including
whether Richardson was improperly operating the forklift, where plaintiff was standing when he
was struck by the fork of the forklift, or indeed whether plaintiff was struck at all. Such dispute
precludes a finding on this record as to whether plaintiff engaged in any negligent acts which
may have contributed to his injury and as to whether Richardson was engaged in unsafe
operation of the forklift rising to the level of reckless or wanton conduct. The cross-motions for
partial summary judgment are therefore denied.
II.

PLAINTIFF'S MOTION FOR LEAVE

Plaintiff moves, with consent of defendant, for leave to supplement his motion for partial
summary judgment to conform to this Court's Local Rules. The motion is granted. Plaintiffs
statement of material facts and appendix to his statement of material facts [DE 91-1; 91-2] are
deemed timely filed as of the date of filing of plaintiffs motion for partial summary judgment.
III.

APPEAL OF MAGISTRATE'S ORDER

Any party may appeal from a magistrate judge's order, and the Court shall set aside any
portion of the magistrate judge's order found to be clearly erroneous or contrary to law. Local
Civil Rule 72.4(a). Defendant appeals Magistrate Judge Swank's order directing it to respond to
plaintiffs request for admission 102. The Court has reviewed the Magistrate Judge's ruling and
does not find it to be clearly erroneous or contrary to law. The decision of the Magistrate Judge
is therefore affirmed.

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CONCLUSION
Accordingly, for the reasons discussed above, plaintiffs motion for partial summary
judgment [DE 85] is DENIED, defendant's motion for partial summary judgment [DE 87] is
DENIED, and plaintiffs motion for leave [DE 91] is GRANTED. The decision of the United
States Magistrate Judge is AFFIRMED. The clerk is DIRECTED to refer this matter to the
assigned United States Magistrate Judge for pretrial conference.

SO ORDERED, this

/-l-

day of October, 2016.

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