CABLE et al v. HOFFMAN et al

Filing 38

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 12/2/2014, recommending that Defendants' Motion for Summary Judgment (Docket Entry 33 ) be granted. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CAROL G. CABLE,
Plaintiff,
v.
FEDEX FREIGHT, INC. and
CORRINE HOFFMAN, in her
capacity as Personal
Representative of the Estate
of GARY N. HOFFMAN, Deceased,
Defendants.

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1:13CV465

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant case comes before the undersigned United States
Magistrate Judge for a recommended ruling on Defendants’ Motion for
Summary Judgment. (Docket Entry 33.) For the reasons that follow,
the undersigned will recommend that the Court grant Defendants’
instant Motion.
BACKGROUND1
The instant case arises from a motor vehicle collision in
Trinity, North Carolina.

(Docket Entry 5, ¶ 8.) At the time of the

incident, John Cable (“Cable”), Plaintiff’s husband, drove a Ford
pickup truck hauling a trailer with a Polaris (a four wheel allterrain vehicle with a dump bed) and a Hustler Zero Turn riding

1

The bulk of the information in this
Plaintiff’s Complaint (Docket Entry 5), or
Plaintiff (Docket Entry 34-5) and her husband
Identification of the proponent(s) of other
section appears alongside such information.

section comes from
the depositions of
(Docket Entry 34-6).
information in this

lawn

mower

(Docket

Entry

34-6

at

7)2

with

Plaintiff

in

the

passenger seat on Rural Paved Road 1558 (Docket Entry 5, ¶ 8).
From Rural Paved Road 1558, Cable entered the travel lane towards
Interstate 85.

(Id.)

At that time, Defendant Hoffman3 drove a

FedEx tractor hauling three other FedEx tractors in a piggyback
manner in the right hand lane of the interstate.
6 at 11-12).

(Docket Entry 34-

According to both Kelley Jackson (“Jackson”), an

accounting manager at J&J Drive-Away, Inc. (“J&J”), and Dona
Caldwell

(“Caldwell”),

an

advisor

for

liability

and

claims

litigation for Defendant FedEx Freight, Inc. (“FedEx”), Defendant
FedEx had hired J&J to haul the tractors from Florida to Maryland,
and J&J contracted with Defendant Hoffman for the job.
Entry 34-1, ¶¶ 9-12; Docket Entry 34-2, ¶¶ 8-9.)

(Docket

Before Cable

entered the interstate, Defendant Hoffman switched from the right
to the center lane, allowing Cable to merge onto the interstate.
(Docket Entry 34-6 at 11-12).
Melanie Taylor (“Taylor”), a witness traveling in another
vehicle,

testified

that

shortly

after

Cable

merged

onto

the

2

Citations refer to the page numbers appended to the
documents in the footer created upon filing via CM/ECF where they
appear.
3

Unfortunately, Gary Hoffman passed away during the pendency
of this case. (See Docket Entry 10.) Corrine Hoffman, his wife
and Personal Representative of his Estate, has replaced him as
Defendant.
(See Text Order dated Aug. 2, 2013.)
However, for
clarity, the undersigned will refer to Gary Hoffman as “Defendant
Hoffman.”
2

interstate, Cable’s trailer began fishtailing.
at 9-10.)

(Docket Entry 34-7

Cable’s truck swerved onto the right shoulder of the

interstate.

(Docket Entry 34-6 at 19.)

Cable then turned his

truck off of the right shoulder, spun counter clockwise, and ended
up stopped in the far left lane facing oncoming traffic.
20, 21.)

(Id. at

Taylor stated that, as Cable swerved, Hoffman moved his

tractor from the center lane to the left lane and “slammed on [his]
brakes.” (Docket Entry 34-7 at 6-7.) However, after Cable’s truck
stopped, Plaintiff looked over the hood of the truck and saw
Defendant Hoffman’s tractor less than two car lengths away from
her.

(Docket Entry 34-5 at 11-12.)

As documented by the motor

vehicle accident report, Hoffman then hit Cable’s truck causing the
piggybacked tractors to flip over Cable’s truck and into the
median.

(Docket Entry 34-8 at 3.)

As a result of the collision, Plaintiff, her husband, and
Defendant Hoffman each reported serious injuries.
Entry 5, ¶¶ 16-17; Docket Entry 8 at 8.)

(See Docket

In addition, Plaintiff

has stated that Cable’s truck has a dent above the driver side rear
wheel well that did not exist before the incident.
34-5 at 13.)

(Docket Entry

Plaintiff contends that the mud flap support bar4 on

Defendant Hoffman’s tractor hit Cable’s truck causing the dent.
(See Docket Entry 36 at 4.)

According to Plaintiff, that dent

4

The parties interchangeably use the terms “mud flap bar,”
“mud flap bracket,” “mud flap support,” and “mud flap support bar.”
(See, e.g. Docket Entry 34 at 12; Docket Entry 36 at 7, 10.)
3

forms the basis for her assertion that Defendant Hoffman caused the
collision.

(Docket Entry 34-5 at 13.)

Plaintiff, along with Cable, subsequently filed suit against
Defendants Hoffman and FedEx alleging negligence.
5.)

(Docket Entry

Defendants counterclaimed and alleged that Cable negligently

caused the collision.

(Docket Entry 8.)

Since those initial

filings, various parties have settled with each other leaving only
Plaintiff’s claims against Defendant Hoffman for negligence and
Defendant FedEx for vicarious liability.
Docket Entry 36 at 1.)
on two grounds.

(Docket Entry 34 at 2;

Defendants have moved for summary judgment

(Docket 34 at 7.)

First, Defendants argue that

the record contains no evidence that Defendant Hoffman negligently
and proximately caused the collision.

(Id. at 8.)

Second,

Defendants alternatively argue that vicarious liability should not
apply to Defendant FedEx because it neither employed nor had an
agency relationship with Defendant Hoffman.

(Id. at 17.)

ANALYSIS
The Court should grant a motion for summary judgment when
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

A genuine dispute exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

This

standard requires more than a mere scintilla of evidence. American

4

Arms Intern. v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009).

In

considering a motion for summary judgment, the Court must view the
facts and draw reasonable inferences in the light most favorable to
the nonmoving party.

Miller v. Leathers, 913 F.2d 1085, 1087 (4th

Cir. 1990) (en banc).

The Court also must presume the credibility

of all of the nonmovant’s evidence.

Id.

The party seeking summary

judgment has the initial burden to show an absence of evidence to
support the nonmoving party’s case.
U.S. 317, 325 (1986).

Celotex Corp. v. Catrett, 477

The opposing party then must demonstrate

that a triable issue of fact exists; she may not rest upon mere
allegations or denials.

Anderson, 477 U.S. at 248.

A party need

not submit evidence in an admissible form, but the evidence must
otherwise qualify for admission at trial.
at 324.

Celotex Corp., 477 U.S.

Finally:

It is true that because of the peculiarly elusive nature
of the concept of negligence, it is the rare personal
injury case which may be properly disposed of by summary
judgment. But this is not to say that where . . . [an]
unusual case is encountered, a plaintiff must have his
day in court even though there is nothing to be tried.
Bland v. Norfolk & S. R.R. Co., 406 F.2d 863, 866 (4th Cir. 1969)
(internal citations omitted).
For the reasons articulated below, the undersigned recommends
that the Court grant Defendants’ instant Motion because the record
contains insufficient evidence for a reasonable jury to find for
Plaintiff.

Further, the record contains insufficient evidence for

a jury to find Defendant FedEx vicariously liable for Defendant
5

Hoffman’s actions.

Therefore, the Court should grant Defendants’

instant Motion.
A.

Negligence
Plaintiff’s proposed expert, James Norman Poer (“Poer”), does

not satisfy the requirements of Federal Rule of Evidence 702.
Because Poer does not qualify as an expert, Plaintiff cannot use
his testimony to defeat Defendants’ instant Motion.

Absent Poer’s

testimony, the record contains no testimonial or physical evidence
to show that Defendant Hoffman negligently caused the collision or
had the last clear chance to avoid it.
I.

Plaintiff’s Proposed Expert

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
testimony,

the

In considering the admissibility of expert

Court

exercises

a

gatekeeping

function

as

to

reliability and relevance. Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 147 (1999).

“The inquiry to be undertaken by the

district court is ‘a flexible one’ focusing on the ‘principles and
methodology’
reached.”

employed

by

the

expert,

not

on

the

conclusions

Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th

6

Cir. 1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 594-95 (1993)). In determining whether the Court should admit
the expert’s proposed testimony, “the [C]ourt has broad latitude to
consider whatever factors bearing on validity that the [C]ourt
finds to be useful . . . .”

Id.

A review of Poer’s qualifications and deposition confirms that
Poer could not provide relevant expert testimony in this case.5

An

instructive case from the Western District of Texas provides
valuable

insight

reconstructionist.

as

to

testimony

from

an

accident

Moreno v. W.R. Davis Produce, Inc., No. A-06-

CA-012 LY, 2007 WL 1731139, at *2-3 (W.D. Tex. June 14, 2007)
(unpublished).

In Moreno the district court evaluated whether a

state trooper could testify as an expert witness.

Id.

The

district court noted that the trooper did not have a college
degree, had never taught a class on the subject, had not authored
any papers on the subject, and did not make any independent
calculations regarding the accident. Id. at 2. The district court
excluded the trooper’s testimony.

Id. at 3.

According to the

Moreno court, the fact that the trooper’s employer certified him

5

Under the circumstances presented, no need exists for a
hearing on Poer’s qualifications, see Morris v. Florida
Transformer, Inc., 455 F. Supp. 2d 1328, 1332 (M.D. Ala. 2006)
(evaluating expert’s qualifications without hearing for purposes of
summary judgment); Rudd v. General Motors Corp., 127 F. Supp. 2d
1330, 1334 n.3 (M.D. Ala. 2001) (collecting cases), as Plaintiff
aptly stated Poer’s qualifications in her Disclosure of Expert
Testimony (Docket Entry 27) with further information provided in
Poer’s deposition (Docket Entry 37-5).
7

only to investigate accidents and not to reconstruct them clinched
the argument, because the court could not permit the trooper to
perform functions his employer would not.

Id.

Similarly, Poer’s qualifications reflect some capacity to
investigate an accident but not to reconstruct it.

For example,

Poer’s teaching history consists entirely of courses on crash
investigation rather than reconstruction.

(Docket Entry 27 at 7.)

In

that

addition,

Poer’s

deposition

reveals

accounting for his undergraduate degree.

Poer

majored

in

(Docket Entry 37-5 at

11.) Finally, as in Moreno, Poer’s certification only as a traffic
enforcer

and

crash

investigator,

rather

reconstructionist, resolves all doubt.

than

an

accident

(Id. at 25-26.)6

In addition, Poer did not base his testimony on sufficient
facts and data.7
opinion

testimony

According to Poer’s deposition, he derived his
by

looking

at

pictures

of

the

collision,

6

Poer notes that he has testified before as an accident
reconstructionist in state court (Docket Entry 37-5 at 26-28), but
that fact bears no weight, see Moreno, 2007 WL 1731139, at *3 n.1.
7

This analysis poses one interesting wrinkle. In Plaintiff’s
Expert Disclosure, Poer lists the six sources he used in forming
his opinion. (Docket Entry 27 at 6.) However, in his subsequent
deposition, Poer states that in reaching his opinion he referred
only to Cable’s statement, the pictures, and the accident report.
(Docket Entry 37-5 at 38-39, 44-46). Poer specifically denied ever
going to the scene of the accident (id. at 45), looking at the
vehicles involved (id. at 45), or talking or reading a statement
from Plaintiff (id. at 74-75). These statements stand in stark
contrast to the Expert Disclosure submitted by Plaintiff. (See
Docket Entry 27 at 6.) These discrepancies confirm that the Court
should not permit Plaintiff to rely on Poer’s testimony.
8

reviewing the motor vehicle accident report, and considering what
Cable told him.

(Id. at 38-39).

During Poer’s deposition,

Defendants’ counsel questioned Poer on the steps he took to form
his opinion:
Q.

A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

All right.
Did you -- so you didn’t do any
research –- you didn’t look at anything on the
computer, you didn’t pull out any books, you didn’t
pull out any of your accident reconstruction
materials?
No, sir.
Okay. Did you talk to any one besides Mr. Cable,
interview anybody?
No, sir.
All right. He obviously told you that there had
been an accident reconstructionist involved?
Yes, sir.
Did you ask who that was?
No, sir.
Did you call that accident reconstructionist?
No, sir.
Did you call any of the highway patrolmen involved?
No, sir.
Did you go to the scene?
No, sir.
Did you go look at any vehicles?
No, sir.
Did you take any measurements?
No, sir.
Did you do any independent investigation, other
than look at photographs and [the] accident report?
No, sir.
Did you make any determination about skid marks?
No, sir.
Did you refer to any published documentation,
references, journals, or other materials?
No, sir.
Did you review any depositions?
No, sir.

(Id. at 45-46.)
The paucity of facts and data Poer used to form his opinions
undermine the reliability of his proffered opinions.
9

Because

expert testimony can “‘be both powerful and quite misleading,’” the
Court must ensure its reliability.
(quoting Daubert, 509 U.S. at 595).

Westberry, 178 F.3d at 261
Here, Poer did not have

sufficient facts from which to draw his opinions, and the Court
therefore cannot rely on Poer’s analysis.

See Smithers v. C & G

Custom Module Hauling, 172 F. Supp. 2d 765, 771 (E.D. Va. 2000) (“A
valid

scientific

theory

misapplied

because

of

the

lack

of

sufficient factual foundation cannot be admitted because it does
not assist and, indeed, may ultimately confuse the fact finder.”).
Finally, the basis for some of Poer’s opinions do not fall
within the scope of permissible expert testimony.

For example, in

regards to the dent on Cable’s truck, Defendants have hypothesized
that the truck jacknifed8 causing the bumper of the Polaris to
strike the side of the truck when Cable turned from the right hand
shoulder to the far left lane.

(Docket Entry 34-3 at 12.)

In

disputing this theory, Poer stated:
A.

In looking at the pictures, the trailer hitch on
the truck is still intact.
The tongue of the
trailer is still intact.
The safety chains are
still attached. And it’s physically impossible for
the trailer to turn that far with all of those
things still attached. There’s no math that needs
to be done to figure that out.

8

“When a truck jackknifes, the rear wheels of the towing
vehicle skid sideways or the rear of the tractor swings toward the
front. The result is a folding motion that may, within a few
seconds, force the tractor and trailer into a right-angled
relationship to each other.” 66 Am. Jur. Proof of Facts 3d Proof
of Negligence in a Turning Accident or Jackknifing of a Truck § 1
(2002).
10

Q.
A.

Just common-sense?
That’s common-sense.

(Docket Entry 37-5 at 48.)

Poer later repeated that he formed the

foregoing opinion by applying common-sense.

(Id. at 114, 115.)

The Court should admit an expert’s testimony if the testimony “will
help the trier of fact to understand the evidence or to determine
a fact in issue,” Fed. R. Evid. 702(a).
opinion

not

on

“scientific,

Here, where Poer based his

technical,

or

other

specialized

knowledge” but on common-sense, no basis exists to permit Poer to
provide the proffered testimony.

See United States v. Harris, 995

F.2d 532, 534 (4th Cir. 1993) (“Exercising its discretion, the
court should consider whether the testimony is within the common
knowledge

of

the

jurors.

This

type

of

evidence,

almost

by

definition, can be of no assistance to a jury.” (internal citation
omitted)); 29 Charles Alan Wright & Victor James Gold, Federal
Practice and Procedure: Evidence § 6264 n.8 (1997) (collecting
cases).
In
testimony

sum,

the

undersigned

inadmissible,

and

finds

thus

of

Poer’s
no

proffered

value

in

expert

contesting

Defendants’ instant Motion.
II.

Evaluating the Merits

Plaintiff alternatively asserts that Defendant Hoffman either
negligently caused the collision or had the last clear chance to
avoid the collision.

(Docket Entry 36 at 1.)

In North Carolina,

negligence requires: “1) legal duty; 2) breach of that duty; 3)
11

actual and proximate causation; and 4) injury.”

Mabrey v. Smith,

144 N.C. App. 119, 122, 548 S.E.2d 183, 186 (2001).
chance

doctrine

requires

that:

“(1)

The last clear

[P]laintiff,

by

her

own

negligence put herself into a position of helpless peril; (2)
Defendant discovered, or should have discovered, the position of
the [P]laintiff; (3) Defendant had the time and ability to avoid
the injury; (4) Defendant negligently failed to do so; and (5)
Plaintiff was injured as a result of the [D]efendant's failure to
avoid the injury.”

McDevitt v. Stacy, 148 N.C. App. 448, 459, 559

S.E.2d 201, 210 (2002) (internal quotation marks omitted).

The

undersigned will address each theory in turn.
a.

Initial Impact Theory

Plaintiff

asserts that

Defendant

Hoffman

negligently

hit

Cable’s truck with Defendant Hoffman’s tractor causing Cable’s
truck

to

spin

out

and

ultimately

to

collide

with

Defendant

Hoffman’s tractor (Docket Entry 5, ¶ 12), a theory which Defendants
have dubbed the “initial impact theory” (Docket Entry 34 at 10).
Plaintiff

contends

that

she

has

“conclusively

evidence of the initial impact . . . .”

establishe[d]

(Docket Entry 36 at 10.)

However, Defendants argue that the record lacks any evidence to
support the initial impact theory.

(Docket Entry 34 at 10.)

Specifically, Defendants argue that no witnesses ever testified to

12

an initial impact, and that the physical evidence does not support
Plaintiff’s initial impact theory.
i.

(Id. at 10-12.)9

Testimonial Evidence

Three witnesses (Taylor, Cable, and Plaintiff) have testified
regarding

the

incident.

Taylor

observations in a deposition.
to

Taylor,

immediately

recounted

her

(See Docket Entry 34-7.)

before

the

collision,

she

first-hand
According
drove

on

Interstate 85 in the far left lane while Defendant Hoffman’s
tractor occupied the center lane and Cable’s truck occupied the far
right lane.

(Id. at 18.)

Taylor described the vehicles as

traveling in a diagonal line, giving her a view of each lane and
vehicle. (Id.) Further, Taylor averred that, after Cable’s pickup
merged onto the highway, it began to swerve.
stated

that,

at

the

time

Cable’s

(Id. at 4-5.)

truck

started

Taylor

swerving,

Defendant’s tractor remained behind and to the left of Cable’s
truck. (Id. at 5.) Taylor’s testimony reflects that Cable’s truck
then swivelled, and made a 180-degree turn in front of Defendant
Hoffman’s tractor.

(Id.)

Taylor testified that Defendant Hoffman

then slammed on his brakes and swerved his tractor to the left lane
to avoid Cable’s truck, but the two still collided.

(Id. at 6-7.)

Finally,

tractor

Taylor

denied

that

Defendant

9

Hoffman’s

ever

Defendants also addressed a third issue Plaintiff had argued
relating to a possible paint transfer from Defendant Hoffman’s
tractor to Cable’s trailer (Docket Entry 34 at 13-14), but
Plaintiff did not address the issue in her response brief (see
Docket Entry 36), so the undersigned will treat it as abandoned.
13

contacted Cable’s truck, and asserted that all vehicles maintained
their lanes prior to Cable’s truck going onto the shoulder.

(Id.

at 6.)
According to Cable’s testimony, as he moved onto the entrance
ramp and towards Interstate 85, he looked to his left and saw
Defendant Hoffman in the far right lane.
11.)

(Docket Entry 34-6 at 10-

As Cable continued onto the ramp and towards the interstate,

Defendant Hoffman moved to the center lane to give Cable room to
merge.

(Id. at 11.)

Cable testified that sometime after he moved

into the right-hand lane he felt pushed to the right and went off
the road.

(Id. at 16.)

Cable clarified that “it felt like the

wind came off of us, like we were pushed.”

(Id. at 17.)

On

further elaboration, Plaintiff said:
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Have you ever driven beside a tractor-trailer and
the air moves between you two —
Many times.
— and you get pushed? I felt like I got pushed.
Did you feel like there was any impact?
I felt as if I went this way.
(Witness
indicating.)
Went to your right?
I went to my right, and my body went like this.
(Witness indicating.)
And my question is, did you feel any impact between
the vehicles, or did you just feel like that – you
said to me that the air between the vehicles —
I felt turbulence.
You felt turbulence?
I felt turbulence.

(Id. at 17-18.)

As for Plaintiff, when asked about whether she

felt any impact from another vehicle, she stated “I didn’t – no, I

14

don’t know that I could – I wasn’t sure what happened.”

(Docket

Entry 34-5 at 4.)
Defendants believe that these depositions provide no evidence
to support the initial impact theory.

(Docket Entry 34 at 10-11.)

Plaintiff counters that Cable’s own words establish the existence
of an initial impact.

(See Docket Entry 36 at 10.)

In that

regard, Plaintiff cites Cable’s statement “[w]e got pushed off to
the right,” and that his body shifted to the right.

(Id.)

Plaintiff also attempts to discredit Taylor’s account. (See id. at
6, 10.)
Plaintiff’s arguments fail.
testimony out of context.

First, Plaintiff cites Cable’s

As more fully quoted above, Cable made

clear that his comment regarding feeling “pushed” referenced a
change in airflow, not impact.

Despite multiple opportunities,

Cable never said he felt contact with Defendant Hoffman’s tractor.
Under these circumstances, reading Cable’s testimony as saying, “I
felt the tractor strike my truck,” does not constitute a reasonable
construction of the evidence.
Second, Plaintiff’s attack on Taylor’s testimony does not
advance Plaintiff’s position.

Plaintiff claims that Taylor could

not have seen Cable’s truck or any contact between Cable’s truck
and Defendant Hoffman because she occupied the far left lane,
Defendant Hoffman’s sizeable tractor occupied the middle lane, and
Cable occupied the far right lane.

15

(Id. at 10-11.)

Although

Taylor may not have seen whether the mud flap support bar impacted
Cable’s truck, that fact does not tend to establish that any impact
occurred.10
In sum, Defendants have adequately shown that Plaintiff lacks
any testimonial evidence of an initial impact by which Defendant
Hoffman caused the collision.
ii.

Physical Evidence

In regards to physical evidence, Plaintiff relies on a dent on
Cable’s truck above the driver’s side rear wheel well to show that
Defendant Hoffman’s tractor’s mud flap support bar hit the side of
Cable’s truck, causing the collision.
The

record

does

not

contain

(Docket Entry 34-5 at 13.)

sufficient

evidence

to

support

Plaintiff’s contention.
Plaintiff states, uncontested, that the dent did not exist
before the crash.

(Id.)

Plaintiff argues, through Poer, that

Defendant Hoffman’s tractor could have created the dent when it
collided with Cable’s truck in the initial impact; although Poer
does

not

state

who

hit

whom.

(Docket

Entry

37-5

at

73.)

Defendants’ expert witness contends that the dent on Cable’s truck

10

For similar reasons, it matters not that Taylor failed to
advise the highway patrol about the absence of contact between
Defendant Hoffman’s tractor and Cable’s truck prior to the latter
spinning out. In other words, where neither Cable nor Plaintiff
actually testified to feeling an initial impact, no testimonial
evidence would permit a fact-finder to conclude an initial impact
occurred, without regard to any alleged grounds for impeaching
Taylor’s report on this point.
16

occurred when Cable turned from the shoulder back onto the freeway,
causing the trailer to jackknife and the Polaris to strike the
truck.

(Docket Entry 34-3 at 12.)

Defendants’ expert states that

the height of the Polaris’s bumper matches the height of the dent.
(Id. at 10.)

Defendants’ expert disputes Plaintiff’s theory that

Defendant Hoffman’s tractor’s mud flap support bar caused the dent
on Cable’s truck (id. at 12) because, according to Defendants’
expert, the height of the mud flap support bar and dent do not
match (id. at 10).
Defendants’

expert

further

opines

that

the

loading

configuration of the equipment on the trailer caused the collision.
(Id. at 11.)

The trailer had the heavier lawnmower on the back of

the trailer, behind the axles, and, according to Defendants’
expert, this configuration could create lifting forces.

(Id.)

Defendants’ expert states that those lifting forces combined with
Cable driving at highway speeds caused Cable to lose control of the
truck.

(Id.)

Plaintiff’s

response

to

Defendants’

expert

falls

short.

Plaintiff relies entirely on Poer’s newly attached affidavit to
counter Defendants’ expert’s analysis.

(See Docket Entry 36-1.)

However, as mentioned, Poer lacks the necessary qualifications to
testify as an expert, and thus, Plaintiff cannot rely on Poer’s
newly attached affidavit to defeat Defendants’ instant Motion.
Plaintiff argues Cable’s testimony, cited below, that he did not

17

see the trailer in his mirror matches her theory that Defendant
Hoffman struck Cable’s truck on the side.

(Docket Entry 36 at 9.)

However, Defendants’ expert asserts that in order for the mud flap
support bar to contact Cable’s truck, the front of Defendant
Hoffman’s tractor would have to extend four feet in front of
Cable’s front bumper.

(Docket Entry 34-3 at 10.)

Plaintiff

disputes Defendants’ expert’s measurements, stating that “this does
not accurately reflect the testimony of John Cable and other
evidence.”

(Docket Entry 36 at 9.)

However, Plaintiff does not

provide a citation to the record to demonstrate that Defendants’
expert incorrectly calculated the lengths of Defendant Hoffman’s
tractor and Cable’s truck.

(See id. at 9-12.)

When asked whether Cable saw Defendant Hoffman’s tractor reenter the far right travel lane, Cable said:
A.
Q.
A.

Q.
A.

No, sir.
All right.
I didn’t see anything in my mirror. Again, I’ve
claimed –- I’ve already looked in my mirrors. I’m
looking forward. There was no reason to look in my
mirrors. [Plaintiff] and I were talking, like we
always do, and just we were going forward, and then
in a matter of just a few seconds we’re going this
way. (Witness indicating.)
Well, if the FedEx truck is beside you, I take it
you can see it. Did you see the FedEx truck beside
you?
He never come [sic] up to my pillar.

(Docket Entry 34-6 at 18 (emphasis added).) Cable’s testimony thus
makes it clear that Defendant Hoffman’s tractor never made it far

18

enough forward for the mud flap support bar to make the dent on
Cable’s truck.
In sum, Defendants have established that the record lacks any
physical

evidence

to

show

that

Defendant

Hoffman

caused

the

collision, and therefore Plaintiff’s initial impact theory fails as
a matter of law.
b.

Last Clear Chance Theory

“The doctrine [of last clear chance] contemplates a last
‘clear’ chance, not a last ‘possible’ chance, to avoid the injury;
it must have been such as would have enabled a reasonably prudent
man in like position to have acted effectively.”

Culler v.

Hamlett, 148 N.C. App. 372, 379, 559 S.E.2d 195, 200 (2002).
[T]he doctrine of last clear chance is invoked ‘only in
the event it is made to appear that there was an
appreciable interval of time between the plaintiff’s
negligence and his injury during which the defendant, by
the exercise of ordinary care, could or should have
avoided the effect of plaintiff’s prior negligence.’
Where there is no evidence that a person exercising a
proper lookout would have been able, in the exercise of
reasonable care, to avoid the collision, the doctrine of
last clear chance does not apply.
Watson v. White, 309 N.C. 498, 506, 308 S.E.2d 268, 273 (1983)
(quoting Mathis v. Marlow, 261 N.C. 636, 639, 135 S.E.2d 633, 635
(1964)). Moreover, the doctrine of sudden emergency “provides that
one who is faced with a sudden emergency is not required to
exercise the same standard of care as he might be required to
exercise if he had more time to respond to the danger before him.”

19

Casey v. Fredrickson Motor Express Corp., 97 N.C. App. 49, 56, 387
S.E.2d 177, 181 (1990).
Defendants challenge Plaintiff’s last clear chance claim.
(See Docket Entry 34 at 14-17.) According to Defendants, Plaintiff
offers no evidence to show that Defendant Hoffman had sufficient
time and ability to avoid the collision.

(Id.)

In response,

Plaintiff points to Defendant Hoffman’s statement to the highway
patrol that he “saw [Cable] come onto [the] interstate [and] saw
trailer start fish tailing [which] threw [Cable] off to right of
rd.

[Whereupon Cable] overcorrected and came back across [the]

interstate [and] then [Cable’s truck] started to roll.”
Entry 36-2 at 45.)

(Docket

However, the statement does not say when

Defendant Hoffman saw Cable fishtail or how much time passed from
the initial fishtailing until Cable overcorrected.
Plaintiff thus has not demonstrated that Defendant Hoffman had
the “last clear chance” to avoid the collision because Plaintiff
has not put forth a time line to show when Defendant Hoffman should
have known of Cable’s troubles, when Defendant Hoffman should have
reacted, and whether Defendant Hoffman could have reacted in time.
In other words, Plaintiff has not provided evidence that Defendant
Hoffman

could

have

avoided

the

collision.

See

generally,

Annotation, 135 A.L.R. 1404, Opinion Evidence As to Distance Within
Which Automobile Can Be Stopped, § III (1941) (collecting cases
where courts allowed either experts or people very familiar with

20

the vehicles to testify regarding their stopping capabilities).
The undisputed evidence shows that Defendant Hoffman swerved
his tractor into the far left lane - away from the right lane where
Cable drove. (Docket Entry 34-7 at 11.) Further, Taylor testified
that she saw Defendant Hoffman’s brake lights activate before she
drove into the median to avoid Defendant Hoffman’s tractor.
at 24.)

(Id.

Plaintiff’s testimony similarly shows that Defendant

Hoffman had little opportunity to avoid the collision. By the time
Cable maneuvered the truck off of the right shoulder, turned back
onto the road, and spun counter clockwise to stop in the far left
lane, less

than

two

car

lengths

separated

Cable’s

Defendant Hoffman’s tractor before they collided.

truck

and

(Docket Entry

34-5 at 11-12.)
Under these circumstances, Plaintiff has failed to produce
evidence sufficient to establish that Defendant Hoffman could have
avoided the collision and that he negligently failed to do so.

As

a result, Plaintiff’s last clear chance theory fails as a matter of
law.
B.

Vicarious Liability
In the alternative, Defendant FedEx asserts that, even if

Plaintiff’s claims against Defendant Hoffman could survive summary
judgment, vicarious liability does not extend to it because it did
not employ nor possess an agency relationship with Defendant
Hoffman.

(Docket Entry 34 at 18-20.)

21

As to that argument,

Plaintiff

first

contends

that

the

inadequacy

of

Defendants’

discovery responses and supporting evidence should preclude them
from arguing that Defendant FedEx did not employ Defendant Hoffman.
(Docket Entry 36 at 7-8.) Second, Plaintiff submits that a genuine
dispute of fact exists as to Defendant FedEx’s relationship with
Defendant Hoffman.
I.

(Id. at 4.)

Objections

Plaintiff objects to Defendants’ cited support for their
contention that Defendant FedEx did not employ Defendant Hoffman.
(Id. at 7-8.)

Plaintiff’s objections encompass two points, first

that Defendants failed to provide certain documentation and proof
of Defendants’ employment relationship in discovery, and second
that Defendants submitted an affidavit from Jackson containing
inadmissible legal conclusions.

(See id.)

As an initial matter,

Plaintiff does not cite or provide any legal basis to support these
arguments.

(See id.)

“It is not the role or responsibility of the

Court to undertake the legal research needed to support or rebut a
perfunctory argument.”

Hayes v. Self-Help Credit Union, No. 1:13-

CV-880, 2014 WL 4198412, slip op. at *2 (M.D.N.C. Aug. 22, 2014)
(unpublished).

Notwithstanding that failure, the undersigned will

review the issues raised by Plaintiff.

22

a.

Discovery Responses

Plaintiff’s contention that the Court should estop Defendants
from

submitting

information

regarding

relationship status falls short.
failed

to

adequately

answer

Defendants’

employment

Plaintiff argues that Defendants

Interrogatories

and

Requests

for

Production regarding the Defendants’ employment relationship. (See
Docket Entry 36 at 7-8.)
assertion.

Plaintiff

However, the record belies such an

attaches

to

her

brief

excerpts

from

discovery, and those excerpts contain responses wherein Defendants
informed

Plaintiff

that

Defendant

Hoffman

did

not

work

for

Defendant FedEx and that Plaintiff should contact J&J for more
information.

(Docket

Entry

36-2

at

16,

38.)

Further,

in

connection with their instant Motion, Defendants produced a more
complete

version

of

their

discovery

responses

wherein

they

repeatedly stated that Defendant FedEx did not employ Defendant
Hoffman and that Plaintiff should contact J&J.
37-2 at 4, 6, 8, 10-11, 12, 13, 16, 27.)
Plaintiff

that

they

should

contact

Defendants also informed
Jackson

regarding Defendant Hoffman’s employment.
15-16.)

(See Docket Entry

for

information

(Docket Entry 37-3 at

Finally, Defendants have stated that they produced the

picture and cargo slip on which they rely as to this part of the
instant Motion.

(See Docket Entry 37 at 3.)

The record demonstrates that Defendants put Plaintiff on
notice that they did not consider Defendant Hoffman an agent of

23

Defendant FedEx, but rather of J&J. Despite that notice, Plaintiff
apparently failed to take further steps to explore the issue.
Additionally,

Plaintiff

has

not

specifically

stated

what

information Defendants allegedly did not produce that they now rely
on.

(See Docket Entry 36 at 7-8.)

Under these circumstances,

Plaintiff has not established grounds to preclude Defendant FedEx
from challenging Plaintiff’s vicarious liability theory.
b.

Legal Conclusions

Plaintiff’s

contention

that

Jackson’s

affidavit

conclusory legal conclusions does have merit.

contains

Legal opinions do

not qualify as facts for purposes of summary judgment, and courts
may disregard such opinions.

See Pfeil v. Rogers, 757 F.2d 850,

862 (7th Cir. 1985); see also Hadeed v. Abraham, 265 F. Supp. 2d
614, 619 n.17 (E.D. Va. 2003) (citing Pfeil, 757 F.2d at 862-63);
10B Charles Alan Wright et al., Federal Practice and Procedure §
2738 (3d ed.) (“Thus, ultimate or conclusory facts and conclusions
of law . . . cannot be utilized on a summary-judgment motion.”);
cf. United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006)
(“[O]pinion testimony that states a legal standard or draws a legal
conclusion

by

applying

law

to

the

facts

is

generally

inadmissible.”).
Jackson’s

affidavit

states:

“[Defendant

Hoffman]

was

an

independent contractor providing truck driving services to J & J.”
(Docket Entry 34-1, ¶ 7.) Under North Carolina law, this statement

24

qualifies as a legal conclusion.
536,

538,

380

S.E.2d

621,

623

Yelverton v. Lamm, 94 N.C. App.
(1989)

(“Whether

one

is

an

independent contractor or an employee is a mixed question of law
and fact.
parties’

The factual issue is: What were the terms of the
agreement?

Whether

that

agreement

establishes

a

master-servant or employer-independent contractor relationship is
ordinarily a question of law.”). Accordingly, the Court should not
consider that paragraph of the affidavit, but the Court need not
strike the entire affidavit, see Evans v. Technologies Applications
& Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (upholding a district
court’s decision to strike portions of an affidavit); Moret v.
Green, 494 F. Supp. 2d 329, 336 (D. Md. 2007) (holding that, “[i]f
portions of an affidavit are inadmissible, the whole affidavit need
not be stricken but only those portions which are deficient”).
II.

Employment Status

Under the doctrine of respondeat superior, vicarious liability
applies when: (1) the negligence of the tortfeasor injures the
plaintiff, (2) an employer and employee or a principal and agent
relationship existed between the tortfeasor and the party charged
with liability, (3) the negligence of the tortfeasor occurred in
the course of his employment or in the scope of his authority, and
(4) the tortfeasor engaged in the work of the employer/principal at
the time of the injury.

See Estes v. Comstock Homebuilding Co.,

195 N.C. App. 536, 540, 673 S.E.2d 399, 402 (2009).

25

However,

respondeat

superior

does

not

typically

apply

to

independent

contractors in the performance of the contracted work. See Coastal
Plains Utils. v. New Hanover Cnty., 166 N.C. App. 333, 344, 601
S.E.2d 915, 923 (2004).

Further, North Carolina General Statute

Section 20-71.1 provides that the proof of registration for a motor
vehicle constitutes “prima facie evidence of ownership and that
such motor vehicle was then being operated by and under the control
of a person for whose conduct the owner was legally responsible,
for the owner's benefit, and within the course and scope of his
employment.”

Notwithstanding the evidentiary character of the

foregoing rule, see Atkinson v. Lesmeister, 186 N.C. App. 442, 446,
651 S.E.2d 294, 297 (2007), this Court (per now Senior United
States District Judge James A. Beaty, Jr.) has used the statute to
evaluate the existence of an agency relationship, see Shinn v.
Greeness, 218 F.R.D. 478, 483-84 (M.D.N.C. 2003).
With those vicarious liability principles in mind, Defendants
have shown “an absence of evidence to support [Plaintiff’s] case,”
Celotex Corp., 477 U.S. at 325, and Plaintiff has not pointed to
evidence in the record to the contrary.
relied

entirely

on

her

objection

to

Rather, Plaintiff has
the

admissibility

of

Defendants’ attachments for summary judgment - described above - to
refute the vicarious liability portion of Defendants’ instant
Motion.

Although the Court need not scour the record to determine

the disputed facts, see Stephenson v. Pfizer Inc., No. 1:13CV147,

26

2014 WL 4410580, at *1 n.1 (M.D.N.C. Sept. 8, 2014) (unpublished),
the undersigned has reviewed the record to ensure an accurate
recommendation.
Defendants argue that Defendant FedEx had neither an agency
nor

employment

relationship

with

Defendant

Hoffman;

rather,

Defendant Hoffman contracted with J&J who in turn contracted with
Defendant

FedEx.

(See

Docket

Entry

34

at

17.)

Defendants

specifically note that the FedEx tractors driven by Defendant
Hoffman used J&J’s Department of Transportation registrant number
and not Defendant FedEx’s.

(Id.)

Under North Carolina General

Statute Section 20-71.1(b), that fact supports a finding that
Defendant
FedEx’s.

Hoffman

operated

as

J&J’s

agent

and

not

Defendant

See Shinn, 218 F.R.D. at 483.

Furthermore,

Defendants

have

tendered

evidence

from

both

Defendant FedEx and J&J stating that Defendant FedEx had neither an
employment nor agency relationship with Defendant Hoffman. Jackson
averred that Defendant FedEx contracted with J&J to transport the
tractors from Florida to Maryland.

(Docket Entry 34-1, ¶ 9.)

Jackson further swore that, in contracting with J&J, Defendant
FedEx did not have any right to control or direct their operations
or the operations of Defendant Hoffman.
Defendant

FedEx

Jackson.

(Id.)

did

not

pay

Defendant

(Id., ¶ 10.)
Hoffman,

Also,

according

to

In addition, Caldwell submitted an affidavit

similar to Jackson’s.

(See Docket Entry 34-2.)

27

Caldwell declares

that Defendant FedEx contracted with J&J to transport the tractors
and not Defendant Hoffman.

(Docket Entry 34-2, ¶ 6.)

Defendant FedEx paid J&J and not Defendant Hoffman.
These

affidavits

bolster

the

statutory

presumption

Further,

(Id., ¶ 9.)
against

a

finding of vicarious liability for Defendant FedEx.
In sum, Defendants have offered unrebutted evidence that
Defendant

FedEx

neither

employed

relationship with Defendant Hoffman.

nor

possessed

an

agency

Plaintiff has not submitted

any evidence to create a genuine dispute of material fact as to the
relationship between Defendants.

Therefore, the Court should find

that vicarious liability does not apply to Defendant FedEx for
Defendant Hoffman’s alleged negligence.
CONCLUSION
Defendants have shown that the record contains no facts to
support Plaintiff’s argument that Defendant Hoffman caused the
collision, or that Defendant Hoffman had the last clear chance to
avoid the collision.

Further, Defendants have established that

Plaintiff’s vicarious liability theory as to Defendant FedEx fails
as a matter of law.
IT

IS

THEREFORE

RECOMMENDED

that

Defendants’

Motion

Summary Judgment (Docket Entry 33) be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 2, 2014
28

for