Justice, et al v. Greyhound Lines, Inc., et al
Filing
49
ORDER granting 37 Motion for Partial Summary Judgment - Plaintiffs' prayer for punitive damages, set forth in the third clam for relief and in paragraph three of the prayer for relief, is DISMISSED. Where claims remain for trial, in accordance with the case management order entered May 12, 2016, the case now is ripe for entry of an order governing deadlines and procedures for final pretrial conference and trial. The parties are DIRECTED to confer and file within 1 4 days from the date of this order a joint status report informing of 1) estimated trial length; 2) particular pretrial issues which may require court intervention in advance of trial, if any; and 3) three suggested alternative trial dates. In additi on, the parties shall specify if they wish to schedule a court-hosted settlement conference or additional alternative dispute resolution procedures in advance of trial, and if so the date for completion of such procedures. Counsel should read attached order in its entirety for critical information. Signed by District Judge Louise Wood Flanagan on 3/30/2018. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:16-CV-132-FL
DAVID CHRISTOPHER JUSTICE and
LISA JUSTICE,
Plaintiffs,
v.
GREYHOUND LINES, INC. and J.L.
ROBINSON,
Defendants.
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ORDER
This matter is before the court on defendant’s motion for partial summary judgment (DE 37).
The motion has been fully briefed, and in this posture the issues presented are ripe for ruling. For
reasons noted, the motion is granted.
STATEMENT OF THE CASE
On December 24, 2014, defendant J.L. Robinson (“Robinson”) was driving a passenger bus
in the course of his employment with defendant Greyhound Lines, Inc. (“Greyhound”) along the
route from Atlanta, Georgia, through Raleigh, North Carolina, to Richmond, Virginia. On the same
day, plaintiff David Christopher Justice (“David”) was working as a North Carolina Highway Patrol
trooper in the area of Interstate 40/85 (“I-40/85”) near Mebane, North Carolina and near mile marker
155. David was called to that area to respond to a traffic accident, and, in the course of his response,
David parked his marked Chevrolet Tahoe in the eastbound lane of I-40/85. Just after 10:00 a.m.,
the bus Robinson was driving crashed into David’s Tahoe, injuring David.
Plaintiffs initiated this action in the General Court of Justice, Superior Court Division for
Wake County, North Carolina February 17, 2016. Defendants removed the action to this court on
the basis of diversity jurisdiction March 28, 2016. In the first claim for relief, plaintiff David seeks
compensation for his injuries. In the second claim for relief, plaintiff Lisa Justice (“Lisa”), David’s
wife, seeks compensation for loss of consortium. In the third claim for relief, hinged upon plaintiffs
first and second claims, and as repeated in paragraph three of the prayer for relief, plaintiffs seek
punitive damages premised upon allegation that actions of either or both defendants were willful or
wanton. Plaintiffs seek recovery on all claims against both defendants.
After a period of discovery, defendants filed the instant motion for partial summary judgment
directed against plaintiffs’ asserted entitlement to punitive damages. In support, defendants rely
upon depositions of plaintiff David, defendant Robinson, Michael Maddox, and Ernest Warren
(“Warren”); Rule 30(b)(6) deposition of defendant Greyhound given via Paulette Banks and Alan
Smith; and training materials used by Greyhound including Greyhound’s 2014 Fall “Stay Sharp”
classroom materials, Greyhound safety bulletins, and “Prepared for Work” policy. In opposition,
plaintiffs rely upon the same evidence, and, in addition, Robinson’s daily logs and calculation of
driving hours; a vehicle examination report created by the North Carolina State Highway Patrol;
expert report of William Kluge; an affidavit executed by Warren; excerpts from Robinson’s
personnel file; an onboard video captured by cameras mounted in the bus; and a transcript of
Robinson’s guilty plea in a related criminal matter to charges of failure to reduce speed, reckless
driving to endanger, and failure to move over for a stopped emergency vehicle causing injury.
2
STATEMENT OF THE UNDISPUTED FACTS
The undisputed facts viewed in the light most favorable to plaintiffs may be summarized as
follows. On December 24, 2014, a series of traffic accidents occurred on eastbound I-40/85, which
required emergency assistance. (Defs.’ Ans., DE 7 ¶ 10). On that day, plaintiff David arrived at the
scene in his marked North Carolina State Highway Patrol Chevrolet Tahoe. (DE 39 ¶ 1). David
parked his Tahoe in the far right lane. (Id. ¶ 2).
That same morning, defendant Robinson, in the course of his employment with defendant
Greyhound, was driving a Greyhound bus on the route from Atlanta, Georgia, through Raleigh,
North Carolina, to Richmond, Virginia. (DE 7 ¶ 17). Just after 10:00 a.m., as the bus neared
Mebane, North Carolina, Robinson was traveling in the far right lane of eastbound I-40/85, and
crashed into David’s Tahoe. (Id. ¶ 25).
The posted speed limit at the accident scene was 65 miles per hour. (DE 7 ¶ 26). At the time
of accident, defendant Robinson was speeding by driving with cruise control set to 68 miles per
hour. (Banks Dep., DE 44-2 at 57:21). In its internal review of the accident, defendant Greyhound
assessed that the accident was preventible, and that factors including road conditions, weather,
speed, and other distractions contributed to the accident. (Id. at 50:22–24). In adverse weather
conditions, Greyhound’s “standard is to decrease speed by 25 percent” relative to the posted speed
limit. (DE 44-3 at 36:16–21).
Although defendants concede that weather conditions contributed to the accident, defendants
do not concede specifically that it was raining nor that defendant Robinson was driving too fast for
conditions. Upon the court’s review of the dash cam video, which captures the moment of accident
itself and approximately 10 seconds before and after, it is readily apparent from observable total
3
cloud cover and obvious presence of water droplets on the camera lens that it was raining either at
the time of accident or shortly before, but the video’s resolution is limited and the camera partially
is obfuscated by water droplets. (See DE 44-15). Although Banks states at deposition that
defendant Robinson informed her of “heavy rains[,]” Banks’s discussion of Robinson’s account of
the weather does not disclose any specific admission by Robinson that it was raining at the time and
location of accident. (DE 44-2 at 50:14–17). No discussion of rain appears in excerpts of
Robinson’s deposition testimony presented to the court. (See Robinson Dep., DE 40-4; 44-4).
At the time of accident, defendant Robinson was driving in violation of a rule promulgated
under the Federal Motor Vehicle Carrier Act (“FMCA”) limiting driving time for a commercial bus
driver to no more than 70 hours in any eight-day period (“70-hour rule”). (DE 39 ¶ 5). Robinson’s
violation of the 70-hour rule is traceable to a mathematical error entered on Robinson time log
December 4, 2014, whereby Robinson failed to record 3.75 hours of driving.
(Id. ¶¶ 6, 7).
Robinson was not in violation of another rule promulgated under the FMCA regulating the number
of driving hours allowable in a single day. (DE 43 ¶ 10).
Finally, defendant Greyhound requires all drivers to undergo fatigue management training
at least every two years, and Greyhound maintains a program called “Stay Sharp” that addresses
driver fatigue. (DE 43 ¶ 12). Greyhound has prepared a “Prepared for Work” policy and issues
safety bulletins to its drivers that also address fatigue issues. (Id. ¶ 14). Defendant Robinson had
undergone his bi-annual “Stay Sharp” training in October or November of 2014. (Id. ¶ 15).
Greyhound receives periodic reports on the rate of accuracy of its driver’s logs, which disclose
consistently that more than 99 percent of driver logs accurately reflect a driver’s hours. (Id. ¶ 16).
4
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate where “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). The party seeking summary judgment “bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
Once the moving party has met its burden, the non-moving party must then “come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (internal quotation omitted). Only disputes
between the parties over facts that might affect the outcome of the case properly preclude entry of
summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding
that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only
if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).
“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id.
at 249. In determining whether there is a genuine issue for trial, “evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in [non-movant’s] favor.” Id. at 255; see
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to
be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must
be viewed in the light most favorable to the party opposing the motion.”).
5
Nevertheless, “permissible inferences must still be within the range of reasonable probability,
. . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary
inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v. SherwinWilliams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter
of law is warranted where “the verdict in favor of the non-moving party would necessarily be based
on speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir.
2005). By contrast, when “the evidence as a whole is susceptible of more than one reasonable
inference, a [triable] issue is created,” and judgment as a matter of law should be denied.
Id. at 489-90.
B.
Analysis
Under North Carolina law, “punitive damages may be awarded . . . to punish a defendant for
egregiously wrongful acts and to deter the defendant and others from committing similar wrongful
acts.” N.C. Gen. Stat. § 1D-1. “Punitive damages may be awarded only if the claimant proves that
the defendant is liable for compensatory damages and that [fraud, malice, or willful or wanton
conduct] was present and was related to the injury for which compensatory damages was
awarded[.]” Id. § 1D-15(a).
“The claimant must prove the existence of [fraud, malice, or willful or wanton conduct] by
clear and convincing evidence.” Id. § 1D-15(b). “The clear and convincing standard requires
evidence that should fully convince.” Scarborough v. Dillard’s, Inc., 363 N.C. 715, 721 (2009)
(internal quotations omitted). In the context of punitive damages, “whether the evidence is clear and
convincing” is not solely a question for the jury. Id. Rather, “courts must determine whether the
[plaintiff] produced clear and convincing evidence from which a jury could reasonably find [willful
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or wanton conduct].” Id. at 721–22 (emphasis added). “Evidence that is only more than a scintilla
cannot as a matter of law satisfy that nonmoving party’s threshold statutory burden of clear and
convincing evidence.” Id. at 722.
In the instant matter, plaintiffs assert no fraud or malice; rather, they claim entitlement to
punitive damages based upon defendants’ alleged “willful or wanton conduct.” “ ‘Willful or wanton
conduct’ means the conscious and intentional disregard of and indifference to the rights and safety
of others, which the defendant knows or should know is reasonably likely to result in injury,
damage, or other harm.”
“Traditionally, under North Carolina law, the North Carolina Supreme Court has often used
the terms ‘willful and wanton conduct’ and ‘gross negligence’ interchangeably to describe conduct
that falls somewhere between ordinary negligence and intentional conduct.” F.D.I.C. ex rel. Co-op
Bank v. Rippy, 799 F.3d 301, 314 (4th Cir. 2015) (quoting Yancey v. Lea, 354 N.C. 48 (2001)
(internal quotation marks omitted). However, in the context of determining availability of punitive
damages, “ ‘[w]illful or wanton conduct’ means more than gross negligence[,]” Id. § 1D-5(7); see
F.D.I.C., 799 F.3d at 315 (“[T]o the extent that the enactment of N.C.G.S. § 1D–5(7) signaled the
abrogation of the common law definition of gross negligence, it did so only in the context of cases
where a plaintiff seeks punitive damages.”).
No decision of which the court is aware addresses the distinction, instituted by N.C. Gen.
Stat. § 1D-5(7), between gross negligence and willful or wanton conduct as it applies to determining
availability of punitive damages. To illuminate the distinction, it is useful to consider the traditional
definition of gross negligence as a starting point. This court has defined “gross negligence” outside
the context of punitive damages as follows:
7
Under North Carolina law, “gross negligence” is defined as willful or wanton
conduct “done with conscious or reckless disregard for the rights and safety of
others.” F.D.I.C. ex rel. Co-op. Bank v. Rippy, 799 F.3d 301, 314 (4th Cir. 2015)
(citing Yancey v. Lea, 354 N.C. 48, 52 (2001)). An act is willful “when it is done
purposely and deliberately in violation of law or when it is done knowingly and of
set purpose, or when the mere will has free play, without yielding to reason.” Foster
v. Hyman, 197 N.C. 189, 191 (1929) (internal citations omitted). Similarly, “[a]n act
is wanton when it is done of wicked purpose, or when done needlessly, manifesting
a reckless indifference to the rights of others.” Yancey, 354 N.C. at 52 (quoting
Foster, 197 N.C. at 191). However, gross negligence only requires a willful or
wanton act, as opposed to a willful injury, the latter of which is the defining feature
of an intentional tort. See Yancey, 354 N.C. at 53 (“An act or conduct moves
beyond the realm of negligence when the injury or damage itself is intentional.”).
In other words, “North Carolina law . . . require[s] a showing of intentional
wrongdoing in order to sustain a claim of gross negligence.” Rippy, 799 F.3d at 314.
On the one hand, a claim of simple, or “ordinary” negligence rests on the assumption
that the defendant “should have known the probable consequences of his act.”
Akzona, Inc. v. S. Ry. Co., 314 N.C. 488, 496 (1985); accord Ray v. N.C. Dep’t of
Transp., 366 N.C. 1, 13 (2012). On the other hand, gross negligence “rests on the
assumption that [the defendant] knew the probable consequences [of his act], but was
recklessly, wantonly or intentionally indifferent to the results.” Akzona, 314 N.C.
at 496 (quoting Wagoner v. N.C. R.R. Co., 238 N.C. 162, 168 (1953)); accord Ray,
366 N.C. at 13. Thus, a claim for “gross negligence” will lie where the defendant
either deliberately or recklessly shirked his known duty.
Garcia v. United States, No. 4:15-CV-88-FL, 2016 WL 916432 (E.D.N.C. Mar. 10, 2016).
To avoid circularity in defining willful or wanton conduct for purposes of determining
availability of punitive damages, it is necessary to disregard any references to the terms “willful”
or “wanton” where those terms appear within the quoted definition of gross negligence. See
Yancey; 354 N.C. at 52; Foster, 197 N.C. at 191. Stripped of such references, the notion of “gross
negligence” that remains is an intentional act of conduct that works a breach of a known duty. See
Akzone, 314 N.C. at 496. Accordingly, willful or wanton conduct is “more” than gross negligence
in the sense that willful or wanton conduct requires, in addition to breach of a known duty, an
aggravating factor. Indeed, N.C. Gen. Stat. § 1D-5(7) specifies that the pertinent aggravating factor
8
is the state of mind described in the statute as “conscious and intentional disregard of and
indifference to the rights and safety of others.” In this manner, willful or wanton conduct lies
between, on one hand, gross negligence, and, on the other, an intentional tort where the tortfeasor
intends injury. Yancey, 354 N.C. at 53. Finally, where the case law defining gross negligence
outside the context of punitive damages invokes various terms of disapprobation to describe willful
or wanton conduct, such as “recklessness,” ‘deliberate violation of law,” “free play of the will,” and
“wicked purpose,” see e.g., Yancey, 354 N.C. at 52; Foster, 197 N.C. at 191, to any extent those
terms mean something other than “conscious and intentional disregard of and indifference to the
rights and safety of others[,]” they do not survive application of N.C. Gen. Stat. § 1D-5(7) as part
of any analysis relevant to determining availability of punitive damages.
In light of these principles, the court turns its address to application of law to the undisputed
facts.
1.
Claims Against Defendant Robinson
Plaintiffs have forecast evidence that defendant Robinson was speeding with cruise control
set three miles per hour over the posted limit, (see DE 7 ¶ 26 (posted speed limit was 65 miles per
hour); Banks Dep., DE 44-2 at 57:21 (“[Robinson’s] cruise control was set at 68”), failed to reduce
speed despite defendant Greyhound’s policy to reduce speed by 25% in adverse weather conditions,
(DE 44-3 at 36:16–17 (“[O]ur standard is to decrease speed by 25 percent [in rainy weather].”)); (DE
44-15 (video captured from dash showing rainy conditions)); and was driving while fatigued.
(Warren Aff., DE 44-10 ¶¶ 3, 14). For reasons that follow, this conduct evinces, at most, gross
negligence.
9
Regarding defendant Robinson’s driving speed, the court finds instructive Yancey v. Lea,
wherein the North Carolina Supreme Court surveyed motor vehicle negligence cases and observed
“that gross negligence issue has been confined to circumstances where at least one of three rather
dynamic factors is present: (1) defendant is intoxicated; (2) defendant is driving at excessive speeds;
or (3) defendant is engaged in a racing competition.” 354 N.C. 48, 53–54 (2002) (citations omitted).
The Yancey court cites with approval Baker v. Mauldin, wherein the North Carolina Court of
Appeals observed that where “immediately prior to the accident defendant was driving 100 miles
per hour[,] [t]his is some evidence to support plaintiff’s allegation that defendant’s conduct was
willful and wanton.”1 82 N.C.App. 404, 408 (N.C. Ct. App. 1986).
Applying the Yancey factors, it is undisputed that defendant Robinson was neither
intoxicated nor engaged in a racing competition. Moreover, driving three miles per hour over the
posted speed limit is not “excessive” in light of Baker. See id. Although a jury reasonably could
find that Robinson was driving too fast for conditions and should have reduced speed by 25% in
accordance with defendant Greyhound’s policy, see (DE 44-3 at 36:16–21), such a finding fails to
establish a basis from which a jury reasonably could infer willful or wanton conduct. That is,
although Greyhound’s policy to reduce speed by 25% in adverse weather conditions constitutes a
sufficient basis for the jury to conclude that defendant was grossly negligent in driving too fast for
conditions, see Akzona, 314 N.C. at 496, any further inference that, at some relevant time, Robinson
deliberated about the rights of other motorists and made the “conscious and intentional” choice to
disregard those rights and adopt an attitude of “indifference” toward them, must rest on speculation
1
In context, the Baker court used the term “willful and wanton” as a synonym for “grossly negligent,” where
the issue of punitive damages was not before that court.
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about Robinson’s mental state that is not supported by any evidence of record. See Lovelace, 681
F.2d at 241.
This conclusion is bolstered where the record is devoid of any direct evidence, such as a
statement by defendant Robinson, evincing conscious disregard for the rights and safety of others.
The only circumstantial evidence of Robinson’s mental state is Robinson’s driving speed itself and
the fact that, on plaintiff’s view of the facts, it was raining. However, allowing the jury to infer from
the facts constituting gross negligence that Robinson’s mental state rose to the level of willful or
wanton conduct would run afoul of the precept that willful or wanton conduct is “more” than gross
negligence. See N.C. Gen. Stat. § 1D-5(7). Relatedly, any inference by the jury from observation
of Robinson’s driving speed to conclusion about Robinson’s mental state would constitute an
arbitrary judgment call, where the jury equally could find that Robinson’s driving speed was the
result of mere negligence rather than “conscious and intentional disregard of and indifference to the
rights and safety of others.” See id. In this manner, plaintiffs have proffered, at most, a mere
scintilla of evidence that Robinson’s conduct was willful or wanton, which is not a sufficient
showing to support award of punitive damages under the pertinent “clear and convincing evidence”
standard. See N.C. Gen. Stat. § 1D-15(b); see Scarborough, 363 N.C. at 721–22.
Second, regarding fatigue, although it is undisputed that defendant Robinson was driving in
excess of his allowable hours under the 70-hour rule, there is no genuine dispute that Robinson’s
mathematical error, made 20 days before the accident, was the root cause of that violation. (DE 39
¶ 6; DE 43 ¶ 6).2 Certainly, mathematical error is no categorical excuse to violate the law.
2
In their statement of material facts, plaintiffs concede only that Robinson “testified” that his violation of the
70-hour rule was caused by a mathematical error. (DE 43 ¶ 6). However, plaintiff proffers nothing to rebut Robinson’s
testimony or testimony of Smith, wherein Smith demonstrates the manner in which Robinson’s error on December 4,
2014, led to his violation of the 70-hour rule on December 24, 2014. (See DE 44-3 at 44:9–25). In this manner, there
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However, on the facts of this case, any inference that Robinson’s mathematical error was part of a
scheme to withhold recording 10 driving hours on December 4, 2014, to enable Robinson to drive
three extra hours on December 24, 2014, while concealing the violation from Greyhound, all
accompanied by Robinson’s “conscious and intentional disregard of and indifference to the rights
and safety of” other motorists, is entirely speculative. See Lovelace, 681 F.2d at 241. Therefore,
plaintiffs’ assertions of willful or wanton conduct cannot rest on this basis, either. See id.
Finally, plaintiffs proffer direct evidence that defendant Robinson was fatigued, independent
of any violation of the 70-hour rule. In particular, by affidavit and deposition testimony, Warren
describes his personal observation of Robinson’s fatigue-related behavior before and during the
December 24, 2014, drive. (See DE 44-10 ¶¶ 3, 14). Accordingly, if it credits Warren’s testimony,
a jury may find that Robinson was fatigued at the time of accident. Moreover, if Robinson was
fatigued, the jury may infer that Robinson had actual knowledge of his own fatigue. Finally, the
record contains sufficient evidence to support a finding that Robinson was trained by defendant
Greyhound, and therefore knew, that driving while fatigued is not allowed. (See e.g., DE 40-7 at
12 (Greyhound “Stay Sharp” classroom materials directing fatigued drivers to “call dispatch and
book off your assignment.”); DE 39 ¶ 15 (Robinson had undergone his bi-annual “Stay Sharp”
training . . .”)). These facts support conclusion that Robinson intentionally drove the bus with
knowledge that such action violated a duty to refrain from driving while fatigued, which conduct
may amount to gross negligence. See Akzona, 314 N.C. at 496. However, for the same reasons
pertinent to Robinson’s violation of the 70-hour rule, Robinson’s fatigue does not constitute clear
and convincing evidence that Robinson’s state of mind rose to the level of “conscious and
is no genuine dispute that Robinson’s mathematical error caused his violation of the 70-hour rule. See Anderson, 477
U.S. at 24–48.
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intentional disregard of and indifference to the rights and safety of others.” See N.C. Gen. Stat. §§
1D-5(7), 1D-15(b). That is, any theory that, prior to departure or during the trip, Robinson
recognized his fatigue, deliberated about it, and consciously chose to disregard the safety of other
motorists, is entirely speculative, and cannot survive a motion for summary judgment. See
Lovelace, 681 F.2d at 241.
In sum, plaintiffs have not demonstrated the existence of a genuine dispute of material fact
as to defendant Robinson’s willful or wanton conduct; therefore, plaintiffs’ prayer for punitive
damages against Robinson cannot survive the instant motion. See Fed. R. Civ. P. 56(a).
2.
Claims Against Defendant Greyhound
“Punitive damages may be awarded only if . . . in the case of a corporation, the officers,
directors, or managers of the corporation participated in or condoned the conduct constituting the
aggravating factor giving rise to punitive damages.” N.C. Gen. Stat. § 1D-15(c). In certain cases,
“a corporation may be subject to punitive damages based on a theory of direct liability where the
corporation’s acts or policies constitute the aggravating factor.” Everhart v. O’Charley’s Inc., 200
N.C. App. 142, 153 (N.C. Ct. App. 2009) (holding that corporate policy requiring restaurant
manager to gather evidence for use in litigation prior to helping any injured or sick customer unless
said customer is “convulsing, passed out on the floor” or “bleeding profusely” constituted basis for
jury to conclude that such policy “recklessly disregards customers’ safety and well-being in order
to begin the process of protecting [the restaurant] against potential litigation.”).
Here, the undisputed evidence establishes that neither defendant Greyhound’s officers,
directors, nor managers participated in nor condoned any willful or wanton conduct. As noted, none
of defendant Robinson’s conduct was willful or wanton, and, furthermore, Greyhound did not
13
condone even Robinson’s negligent conduct. In particular, it is undisputed that Greyhound does not
authorize drivers to exceed the posted speed limit, (DE 44-13 (“Buses are not to be operated in
excess of the posted speed limit.”)), it directs drivers to reduce speed further in rainy weather
conditions, (Id.; DE 40-8 (instructing drivers to reduce speed in adverse weather)), and it does not
permit drivers to violate the 70-hour rule nor drive while fatigued. (DE 40-7 at 12 (“If you are
fatigued and cannot pull your assignment, call dispatch and book off your assignment.”). Although
drivers who violate these are rules are not always subject to suspension, Greyhound may “coach”
a driver who is known to speed or otherwise drive unsafely, and Robinson was so coached. (Pls.’s
Br., DE 42 at 5). Accordingly, Greyhound did not condone any act of Robinson’s negligent or
grossly negligent conduct. See N.C. Gen. Stat. § 1D-15(c). Plaintiffs do not contend that
Greyhound condoned anyone else’s willful or wanton conduct, and the evidence of record supports
no such theory. Accordingly, punitive damages are not available against Greyhound on this basis.
See id.
Plaintiffs also theorize that defendant Greyhound’s officers, directors, or managers instituted
inadequate procedures to prevent accidents, such that this failure demonstrates “conscious and
intentional disregard for and indifference to the rights and safety of others.” N.C. Gen. Stat. 1D5(7). Indeed, hindsight discloses that Greyhound’s procedures did not prevent the accident in issue
here, and a reasonable jury could find that Greyhound was negligent by its failure to implement
stricter procedures. See Martishius v. Carolco Studios, Inc., 335 N.C. 465, 473 (2002) (“Actionable
negligence occurs when a defendant owing a duty fails to exercise the degree of care that a
reasonable and prudent person would exercise under similar conditions, or where such a defendant
of ordinary prudence would have foreseen that the plaintiff’s injury was probable under the
14
circumstances.”) (citations omitted). However, the evidence of record discloses no basis to conclude
that any deficiencies in Greyhound’s procedures were the result of its officers’, directors’, or
managers’ “conscious and intentional disregard of and indifference to the rights and safety of
others[.]” N.C. Gen. Stat. § 1D-5(7). That is, any evidence of negligence by Greyhound’s officers,
directors, or managers does not support the further inference that such actors deliberated about the
rights and safety of other motorists and chose “conscious[ly] and intentional[ly]” to disregard such
rights. See id. Moreover, Greyhound’s implementation of internal driving regulations and training
procedures, inadequate though they may have been, demonstrates that Greyhound did take account
of other motorists’ safety, to at least some degree. Thus, Greyhound’s failure to implement stricter
procedures was not willful or wanton and does not support any award of punitive damages. See
George, 210 N.C. App. at 207–8.
Plaintiffs argue that defendant Greyhound implemented no procedure at all to prevent
violations of the 70-hour rule or driving at excessive speed. Plaintiffs note that Greyhound’s
procedures do not prevent a driver from exceeding the 70-hour rule upon accepting an extra route,
(see Smith Dep., DE 44-3 at 66:25–671); nor does Greyhound “take proactive steps” to ensure that
drivers receive sufficient sleep between shifts, (see id. at 95:8–96:4); nor does Greyhound have any
procedure that makes it impossible for drivers to exceed the speed limit or drive too fast for
conditions. Plaintiffs protest also that defendant Robinson was not subjected to stricter punishment,
such as suspension, for his prior speeding and violations of the 70-hour rule. (See DE 44-2 at
73:14–16 (noting Robinson was not suspended for prior violations)). However, even accepting these
facts as true, they do not support any inference that Greyhound participated in or condoned any
willful or wanton conduct. That is, even if Greyhound’s procedures are insufficient to eliminate
15
some risk, the evidence of record does not disclose any aggravating factor to distinguish such
deficiency from mere failure to discharge that duty of reasonable care which underlies the tort of
negligence. See N.C. Gen. Stat. 1D-5(7). Accordingly, defendants are entitled to summary
judgment on plaintiffs’ prayer for punitive damages against defendant Greyhound.
For these reasons, plaintiffs’ prayer for punitive damages against defendant Greyhound is
dismissed.
CONCLUSION
For the foregoing reasons, defendants’ motion for partial summary judgment is GRANTED.
Plaintiffs’ prayer for punitive damages, set forth in the third clam for relief and in paragraph three
of the prayer for relief, is DISMISSED. Where claims remain for trial, in accordance with the case
management order entered May 12, 2016, the case now is ripe for entry of an order governing
deadlines and procedures for final pretrial conference and trial. The parties are DIRECTED to
confer and file within 14 days from the date of this order a joint status report informing of 1)
estimated trial length; 2) particular pretrial issues which may require court intervention in advance
of trial, if any; and 3) three suggested alternative trial dates. In addition, the parties shall specify if
they wish to schedule a court-hosted settlement conference or additional alternative dispute
resolution procedures in advance of trial, and if so the date for completion of such procedures.
SO ORDERED, this the 30th day of March, 2018.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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