Yoon v. K-Limited Carrier, Ltd. et al
Filing
39
Opinion Order: Defendants' motions for summary judgment 18 , 20 , 33 and 34 be, and the same hereby are granted as to Counts II, IV, V, and VI, and denied as to Counts I and III. Judge James G. Carr on 3/3/2020. Related Case number 3:18cv649 (D,TM)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
OK YEON YOON,
Case No. 3:17CV2517
Plaintiff,
v.
OPINION
K-LIMITED CARRIER, LTD., et al,
Defendants
______________________________________________________________________________
MYONG CHANG,
Case No. 3:18CV649
Plaintiff
v.
OPINION
K-LIMITED CARRIER, LTD., et al,
Defendants
This matter relates to two cases arising from a tractor-trailer crash in South Dakota. The
driver, Guy Haggard, died after he lost control of the tractor-trailer. Plaintiffs Myong Cha Chang
and Ok Yeon Yoon, South Korean citizens and residents, filed nearly identical complaints against
Haggard’s estate and his employer, K-Ltd., alleging negligence against Haggard’s estate, K-Ltd.’s
vicarious liability for Haggard’s actions, negligence per se as to both defendants, strict liability as
to K-Ltd., and negligent hiring as to K-Ltd.
Defendants filed motions for summary judgment. (Docs. 18, 20, 33, 34). The parties have
fully briefed the issues. Based on the analysis below, I grant in part, and deny in part, the
defendants’ motions for summary judgment.
BACKGROUND
1. The Accident
On the morning of July 15, 2016, Guy Haggard was driving K-Ltd.’s tractor-trailer
westbound near mile marker 138 on Interstate 90 North (“I-90N”) in Jackson County, South
Dakota near mile marker 138. Doc. 33-1, PageID 236. He was traveling at 65 mph with the cruise
control on. Doc. 33-6, PageID 370.
As Haggard took the Scenic Overlook exit, he lost control of the tractor-trailer halfway up
the ramp. Doc. 33-1, PageID 236. The tractor-trailer hit a curb, rolled onto its passenger side, and
slid into a Toyota Corolla parked at the north end of the Scenic Overlook parking lot. Id. The
Toyota struck plaintiffs. Id. The tractor-trailer hit another curb and rolled completely before
coming to rest. Id. Life Flight responders transported the plaintiffs to the Rapid City Regional
Hospital. Id.
First responders tended to Haggard. Doc. 33-1, PageID 206. Haggard was not wearing his
seatbelt. Id. at PageID 234. The force of the crash had propelled him into the truck’s sleeper berth.
Id. He was unresponsive and breathing at a rate of 12 breaths per minute. Id. at PageID 207. His
pulse, 64 beats per minute, was barely perceptible. Id.
Extrication was prolonged. Id. Haggard stopped breathing before paramedics were able to
remove him from the vehicle. Using a bag-valve mask, they began suction and ventilation. Id.
They secured Haggard to a backboard with spider straps and lifted him out of the truck. Id.
In the ambulance, he was in asystole rhythm. Id. After receiving a dose of epinephrine,
Haggard’s cardiac rhythm changed to pulseless electrical activity. Id. He received three more doses
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of epinephrine but remained unresponsive. Id. He was pronounced dead at 10:39 AM at Philip
Hospital. Id. at PageID 216.
He was transported to Rush Funeral Home where South Dakota Highway Patrolman Kyle
Mobley drew blood samples at 11:40 AM. Id at PageID 217. Results from the South Dakota Public
Health Lab were negative for alcohol and drugs. Id. at PageID 245, 246.
Trooper Jack Wagoner, also of the South Dakota Highway Patrol, reviewed electronic
driver logs and found that Haggard was not in violation of the 11-hour, 14-hour, or 70-hour
requirements of 49 C.F.R. § 395.3(a) and (b). Doc. 33-1, PageID 237.
2. The Autopsy
On July 18, 2016, three days after Haggard’s death, Donald M. Habbe, M.D. performed an
autopsy. Doc. 33-1, PageID 210. He attributed the death to occlusive coronary artery
atherosclerosis with 80% narrowing of the left anterior descending (LAD) coronary artery and
60% narrowing of the left circumflex artery and right artery. Id. at PageID 211, 210.
As part of the autopsy, Dr. Habbe took blood samples, which revealed blood ethanol at
19mg/dL and hydrocodone at 4 ng/mL Id.
3. Haggard’s Relevant Medical History
Haggard had sleep apnea. Doc. 33-4, PageID 291. He used a continuous positive airway
pressure (“CPAP”) machine, which doctors with the Garden City Hospital Sleep Disorder Center
monitored. Doc. 33-5, PageID 331, 334. Review of periodic downloads showed Haggard’s
compliance with its recommended use. Id. at PageID 353. He confirmed that such was so when,
during his last follow-up appointment on May 13, 2016 he related that he “loves his machine” and
uses it every single night. Id. at PageID 333. The most recent CPAP download from June 3, 2016
to June 19, 2016, also reflects Haggard’s 100% compliance. Doc. 33-2, PageID 267. The medical
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examiner who certified Haggard to drive a commercial motor vehicle reviewed the latest
compliance report as part of the medical examination on June 20, 2016. Id. at PageID 253.
Haggard has never been in a car accident because of sleepiness. Doc. 33-5, PageID 333.
Haggard also had diabetes mellitus. Doc. 33-4, PageID 323.
STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is
proper if the moving party demonstrates that there is no genuine dispute of material fact and that
judgment must follow as a matter of law. Further, I must view all evidence in the light most
favorable to the nonmoving party and draw any justifiable inferences in that party’s favor, United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962), however, I am not required to draw “strained
and unreasonable inferences” in favor of the nonmoving party. Fox v. Amazon.com, Inc., 930 F.3d
415, 425 (6th Cir. 2019).
A dispute over a fact is genuine when a reasonable jury could decide the matter and enter
a verdict in the nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
disputed fact is material if its resolution could affect the outcome of the case. Rogers v. O’Donnell,
737 F.3d 1026, 1030 (6th Cir. 2013).
The showing of evidence necessary at the summary judgment stage changes depending on
whether the moving party has the burden of proof:
When the moving party does not have the burden of proof on an
issue, the moving party need show only that the nonmoving party
cannot sustain its burden at trial. But where the moving party has
the burden, the moving party’s showing must be sufficient for the
court to hold that no reasonable trier of fact could find other than for
the moving party.
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Calderone v. U.S., 799 F.2d 254, 259 (6th Cir. 1986), quoting W. Schwarzer, Summary Judgment
Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 887-88 (1984)
(citations omitted).
If the moving party meets its burden, then the nonmoving party can defeat summary
judgment with fact assertions that create a genuine dispute as to any essential element of the claim
or defense in question. Anderson at 257. For the nonmoving party to succeed, doubts regarding the
material facts must rise above the “metaphysical” level. Matsushita Electric Industries, Co., v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
DISCUSSION
Defendants K-Limited Carrier and Haggard’s estate move for summary judgment on the
basis of the “sudden medical emergency” (SME) doctrine.
A complete defense to a negligence claim, the SME doctrine provides:
Where the driver of an automobile is suddenly stricken by a period
of unconsciousness which he has no reason to anticipate and which
renders it impossible for him to control the car he is driving, he is
not chargeable with negligence as to such lack of control.
Lehman v. Haynam, 164 Ohio St. 595 (1956).
The defendants, who have the burden of proof, must show 1) that he was suddenly stricken
by a period of unconsciousness; 2) that he had no reason to anticipate or foresee; and which 3)
rendered it impossible for him to control his vehicle. See Roman v. Estate of Gotto, 99 Ohio St.3d
260, 272-73 (Ohio 2003).
1. Sudden, Unforeseeable Medical Emergency
The defendants here have set forth facts that establish that Haggard was stricken by a
sudden cardiac event that he had no reason to anticipate and that rendered him unable to control
the vehicle.
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The coroner, Donald Habbe, M.D., determined that Haggard died from occlusive coronary
artery atherosclerosis, in part based on his finding of significant narrowing in the left anterior
descending (LAD) coronary artery. Doc. 33-1, PageID 211. He also determined that Haggard had
an enlarged heart, or cardiomegaly. Id. at PageID 215. According to Dr. Habbe, either one of those
conditions were sufficient to have caused Haggard’s sudden cardiac death. Id at PageID 169.
At the time of the autopsy, Dr. Habbe was unaware that Haggard had sleep apnea. Doc. 331, PageID 171. He testified that knowledge of Haggard’s sleep apnea at the time of the autopsy
would not have changed his opinion that Haggard died of a sudden cardiac event. Id. at 176.
Dr. Stephen Factor, FCAP, FACC, the defendants’ expert, confirmed some of Dr. Habbe’s
findings. Dr. Factor reviewed the microscopic slides prepared by Dr. Habbe during the autopsy.
Doc. 33-7. He found that the left ventricle showed “acute subendocardial confluent ischemia with
congested vessels adjacent to the ischemia, some of which contain neutrophils (PMNs) with focal
adherence to endothelial cells.” Doc. 33-7, PageID 380. The PMNs were found in the capillaries
of the endothelial cells. Id. 381. He noted that the coronary artery was an incomplete section, and
therefore was unable to estimate the percentage of narrowing but found “a fibrofatty plaque
involving most of the section, with focal fresh red blood cells adherent to endothelial cells (EC)
overlying the plaque, with a few of the EC sloughed off.” Id. at 380.
Dr. Factor concluded that Haggard suffered a myocardial infarction (MI), based on the
presence of “confluent hypereosinophilia (more intense staining with the red dye eosin used to
stain the tissues) in the innermost layers of the ventricle (the subendocardium), extending across
the wall,” approximately one to two hours before, and suffered a fatal ventricular arrythmia
moments before, the collision. Id.at 381.
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He explained that all MIs begin in the subendocardium and progress across the ventricle
toward the epicardium. Id. The presence of PMNs in the left ventricle is significant:
[PMNs] are acute inflammatory cells that are attracted to the dead
myocardium by the release of chemicals in the blood. They migrate
to the capillaries, and then begin a series of events leading to the
organization of the MI over time. Once they are present in the
adjacent capillaries the PMNs begin to adhere to the capillary
endothelial cells usually within the first two hours of the MI. Hence,
the MI in Mr. Haggard was about 1-2 hours old because there were
PMNs that focally adhered to capillary endothelial cells, in addition
to the confluent hypereosinophilia of the myocardium and
subendocardium.
Id.
The atherosclerotic plaque in the LAD coronary artery caused ventricular arrythmia. Id.
Dr. Factor explained that ventricular arrythmia is most commonly in the form of ventricular
fibrillation, pulseless electrical activity, or asystole. Id. The arrythmia causes a “cessation of left
ventricular pumping and a sudden lack of blood flow to the brain which results in unconsciousness
within seconds. Id.
The defendants have also shown that Haggard’s sudden cardiac death was not foreseeable.
Testimony from Haggard’s family physician, David J. Everingham, M.D., established that he was
not a smoker, Doc. 33-4, Depo. Tr. 35:10-12, did not drink, Id. at 35:13-14, did not have a family
history of heart disease or coronary artery disease, Id at 35:15-18, did not have a family history of
cardiac or cardiovascular issues, Id at 35:19-21, did not have a history of high blood pressure, Id.
at 35:22-24, did not have a history of high cholesterol, Id. at 35:25-36:1, and had normal EKGs in
2014 and 2015. Id. at 36:7-16.
The defendants have provided evidence sufficient to establish that they are entitled to
judgment as a matter of law. Now, the plaintiffs must point to facts in the record that create a
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genuine issue of material fact as to the defendants’ affirmative defense, sudden medical
emergency.
Plaintiffs contend that the evidence shows Haggard was fatigued and sleepy while driving
and that the combination of fatigue, alcohol, and drugs in Haggard’s system caused him to lose
control of the vehicle. See generally Doc. 35.
Plaintiffs have introduced an expert report from a forensic pathologist and
neuropathologist, Dr. L.J. Dragovic, FCAP, FAAFS that disagrees with the findings of Dr. Habbe
and Dr. Factor. Dr. Dragovic opined that Haggard died from positional/compression asphyxia after
becoming entrapped in the tractor-trailer’s sleeper berth. Doc. 35, PageID 745. He also stated that
those with sleep apnea suffer from excessive daytime sleepiness and that alcohol and hydrocodone
contributed to that sleepiness. Id.
The report is noteworthy for its strong use of inference. Dr. Dragovic made note that
extrication of Haggard was prolonged, Id. at 743, inferred that the extrication was prolonged
because Haggard was “entrapped” in the sleeper berth, and further inferred that Haggard was
entrapped in such a position that he died from position/compression asphyxia with a naso-oral
blockage component. Id. at 745.
Dr. Dragovic could not substantiate the coroner’s autopsy findings and deduced from there
that sleep apnea, “the most serious clinical condition Mr. Haggard was suffering from,” was the
only “reasonable and rational explanation for him losing the control of his semi trailer (sic).” Id.
He further opined that “[o]ne should always bear in mind that the most pervasive manifestation of
sleep apnea is excessive daytime sleepiness.” Id.
Dr. Dragovic also offered an observation that sleep apnea and a combination of minute
amounts of hydrocodone and ethanol could affect a person’s central nervous system. He provides
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that “[i]n this complex situation one must not cavalierly dismiss the potential for known central
nervous system depressants present in Mr. Haggard’s circulation in their active pharmacologic
form (alcohol and hydrocodone) to contribute to the daytime somnolence mentioned above.” Id.
This is the extent to which Dr. Dragovic discusses sleep apnea and the potential
pharmacological effects of trace amounts of hydrocodone and ethanol. It appears that Dr. Dragovic
cherry-picked his facts, completely ignoring the negative test results from a blood sample drawn
one hour after Haggard’s death, preferring instead to credit results from a blood sample drawn
three days post-collision.
A trial judge, faced with a proffer of expert testimony, must determine whether the expert
is proposing to testify to scientific knowledge that will assist a trier of fact to understand or
determine a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-91
(1993).
In Daubert, the Supreme Court held that trial judges are required to make an initial
determination “of whether the reasoning or methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”
Id. at 592-93. This inquiry requires me to assess the relevance and reliability of the expert’s
testimony. The relevance requirement ensures that there is a fit between the testimony and the
issue to be resolved. Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir. 1999).
As the Supreme Court has stated, “nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997).
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The Sixth Circuit has held that expert testimony “is inadmissible when the facts upon which
the expert bases his testimony contradict the evidence.” Lee v. Smith & Wesson Corp., 760 F.3d
523, 525 (6th Cir. 2014) (quoting Greenwell v. Boatwright at 497).
Here, Dr. Dragovic relies on an unsupported assumption that a person diagnosed with sleep
apnea will certainly suffer from excessive daytime sleepiness. Prior to making his conclusions, Dr.
Dragovic reviewed Haggard’s prior medical records, including records related to his sleep apnea
diagnosis and treatment. Doc. 35-3, PageID 741. The undisputed facts established from those
medical records show that just two months prior to the collision Haggard complied with the use of
his CPAP machine, he did not feel sleepy when driving, and had never had a car accident because
of sleepiness. Doc. 33-5, PageID 333.
It is clear that Dr. Dragovic’s opinion is not based on the factual record but rather on the
unsupported assumption that a person diagnosed with sleep apnea will be excessively sleepy or
fatigued, regardless of the severity of the condition and the treatment provided. This extraordinary
leap, without any consideration or analysis of the actual circumstances of Haggard’s condition,
leaves too great a gap between the data and Dr. Dragovic’s opinions, especially given that Dr.
Dragovic is not a medical sleep specialist or a doctor who diagnoses and treats patients with sleep
apnea.
Further, Dr. Dragovic’s observation, that one should not “cavalierly dismiss the potential”
for alcohol and hydrocodone to contribute to sleepiness stemming from sleep apnea, is just that –
an observation, not a Daubert-qualified opinion. He offers no reasoning or analysis to form an
opinion on whether alcohol and hydrocodone, in minute amounts and of uncertain time of ingestion
would, to a reasonable degree of physiological certainty, have any effect on Haggard’s alertness
as he headed up the exit ramp to the Scenic Overlook.
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As such, I find that Dr. Dragovic’s report and testimony stemming therefrom would not be
admissible at trial. The conclusory opinion that sleep apnea combined with alcohol and
hydrocodone caused Haggard to lose control of his semi-trailer is entirely too speculative to pass
Daubert muster.
2. Negligence of Haggard (Count I) and
K-Ltd.’s Vicarious Liability (Count III)
Plaintiffs allege in Count I that Haggard was negligent when he lost control of his vehicle,
thereby seriously injuring the plaintiffs. They allege in Count III that K-Ltd. is vicariously liable
for Haggard’s negligence. Count III is dependent on the outcome of Count I; if Haggard’s actions
were not negligent, K-Ltd. cannot be negligent.
The defendants have established that they can show, as a matter of law, a sudden medical
emergency caused the accident and plaintiffs’ injuries.
To overcome this showing, the plaintiffs must establish a genuine issue of material fact
that precludes summary judgment on the basis of that defense.
Here, plaintiffs have pointed to their accident reconstruction expert’s report to present a
genuine issue of material fact:
The most likely cause of the failure to detect and respond
appropriately to the hazard posed by the parking area at the top of
the ramp was some adverse psychophysical condition which
hindered his ability to respond as a normally alert driver. However,
based on the control inputs that Mr. Haggard made as he approached
the area of the crash it was clear that he was still able to manipulate
the vehicle controls, albeit not in a normally alert manner. The
evidence in this case was consistent with the driver experiencing an
adverse psychophysical condition which diminished the driver’s
ability to remain normally alert, but there was no evidence of a
sudden disability causing loss of control of the vehicle.
Doc. 35-1, PageID 666.
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The defendants’ accident reconstruction expert, after analysis of the same Engine Control
Module (ECM) data, also determined that Haggard’s actions were inconsistent with normal driving
characteristics but found that Haggard’s actions were consistent with the coronary artery
atherosclerosis emergency. Doc. 33-6, PageID 374.
Were the jury to credit plaintiffs’ expert’s opinion, based on objective data in the module,
that the data shows inappropriate responses to the vehicle’s movement approaching and after
hitting the curb, that could lead a jury to reject the sudden medical emergency defense, which, in
turn, would make K-Ltd. vicariously liable.
I therefore deny, pending further proceedings, the defendants’ motion for summary
judgment as to Counts I and III.
2. Negligence per se: Counts II, VI
Counts II and VI allege negligence per se for violations of state and federal statutes and
Federal Motor Carrier Safety Regulations under 49 C.F.R. §§ 350-399. (Doc. 1, ¶¶ 18, 34). The
complaint did not reference any specific statutes and alleged only unspecified violations in general
under the Code of Federal Regulations. Id.
As to claims of negligence per se, the Ohio Supreme Court, in Chambers v. St. Mary’s Sch,
82 Ohio St. 3d 563 (1998), distinguished duties arising from statutes from those arising from
administrative rules.
Duties arising from statutes legislatively enacted and reflect public policy. Administrative
agencies implement those public policies via the duties contained in administration rules and
regulations. Id. at 564, 566-67.
In Chambers, the Court recognized that allowing violation of administrative rules to
constitute negligence per se would “in effect bestow upon administrative agencies the ability to
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propose and adopt rules which alter the proof requirements between litigants. Altering proof
requirements is a public policy determination more properly determined by the General
Assembly.” Id.
The Court ultimately held that “the violation of an administrative rule does not constitute
negligence per se.” Id. at 568. The Sixth Circuit concurs. See Parker v. Miller, 2018 WL 3743981,
*7 (2018): “Ohio does not recognize negligence per se based on the violation of an administrative
regulation.”
Ohio federal district courts have held that in Ohio, a violation of a federal regulation is
admissible as evidence of negligence only. See, e.g., Gruenbaum v. Werner Enters., 2011 WL
563912, *4 (S.D. Ohio 2011) (“While the Federal Motor Carrier Safety Regulations do not
establish a heightened standard of care in Ohio, evidence of a violation of the Safety Regulations
may be considered by the trier of fact as evidence of negligence.”); Earley v. United Airlines, 2006
WL 2794971 (S.D. Ohio 2006) (“the violation of a Federal Aviation Administrative regulation,
which is an administrative rule, is only evidence of negligence”).
In response to defendants’ motions for summary judgment, plaintiffs only stated that they
had shown Haggard had used narcotics and alcohol, and consequently was, in conjunction with his
sleep apnea, fatigued while driving, all violations of the Federal Motor Carrier Safety Regulations.
Contrary to assertions made in the complaint, plaintiffs have not pointed to or referenced any
violations of a statute that would support a finding of negligence per se.
Therefore, I grant defendants’ motion as to Counts II and VI.
3. Strict Liability of K-Ltd. (Count IV)
The fourth claim in the complaint states that K-Ltd. is responsible for Haggard’s actions
because the truck displayed a placard showing that K-Ltd. is the registered owner of the vehicle.
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Doc. 1, ¶ 25. Defendants addressed this claim in the motion for summary judgment, Doc. 33,
PageID 161, plaintiffs failed to defend the claim in their reply brief.
The Sixth Circuit holds that plaintiffs who do not respond to meritorious arguments about
a claim have abandoned that claim. E.g., Brown v. VHS of Michigan, Inc., 545 Fed.Appx. 368, 372
(6th Cir. 2013). See Hicks v. Concorde Career Coll., 449 Fed.Appx. 484, 487 (6th Cir.2011)
(holding that a district court properly declines to consider the merits of a claim when a plaintiff
fails to address it in a response to a motion for summary judgment); Clark v. City of Dublin, 178
Fed.Appx. 522, 524–25 (6th Cir. 2006) (failure to respond to arguments in a motion for summary
judgment constitutes abandonment of the claim).
So it is here. Therefore, I decline to address the issue on the merits and grant partial
summary judgment on this claim.
4. Negligent Hiring by K-Ltd. (Count V)
In Count V, plaintiffs allege that K-Ltd. negligently in hired, instructed, trained,
supervised, and retained Haggard. Doc. 1, ¶ 27. To prevail on this claim, plaintiffs must establish:
1) the existence of an employment relationship; 2) the employee’s incompetence; 3) the
employer’s actual or constructive knowledge of that incompetence; 4) the employee’s act or
omission that caused plaintiff’s injuries; and 5) the employer’s negligent in hiring, retaining,
training, or supervising the employee proximately caused the plaintiff’s injuries. Watson v. City of
Cleveland, 202 Fed.Appx.844, 857 (6th Cir. 2006) (citing Linder v. Am. Nat’l. Inc. Co., 155 Ohio
App.3d 30, 798 N.E.2d 1190, 1197 (2003).
Defendants contend that plaintiffs offer “no facts to support a contention that Haggard was
not properly qualified to drive a tractor-trailer for K-Ltd,” Doc. 33, PageID 160 (citing that
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Haggard had a valid CDL and valid, properly certified Department of Transportation (DoT)
medical certification). Id.
Plaintiffs conceded in their opposition brief that “K-Ltd.’s knowledge of Haggard’s
medical history is not an issue and do not premise their negligent hiring and entrustment claims.”
Doc. 35, PageID 647.
Plaintiffs’ claim for negligent hiring rests on Haggard’s response to K-Ltd.’s preapplication questionnaire “knockout” question, that he had failed a DoT mandated drug test in the
past. Doc. 35, PageID 647-48. Plaintiffs argue that K-Ltd.’s knowledge of Haggard’s past failed
drug test made it reasonably foreseeable that Haggard would violate federal regulations prohibiting
him from driving with alcohol or narcotics in his system. Id. at PageID 648.
The record shows that K-Ltd. requires a prospective employee to submit information about
past employment for ten years, a much more robust investigation than the three-year look-back
required under 49 C.F.R. §§ 391.21 and 391.23. Doc. 35-4, PageID 751. Haggard’s employment
application shows that he provided information regarding past employment beginning in 1999, and
past employment as a commercial driver beginning in 2009.
K-Ltd. requested alcohol and controlled substance information from those previous
employers. See generally, Doc. 35-4. The results from those requests show that Haggard had not
violated the alcohol and controlled substance prohibitions during any prior employment. Id. KLtd. was unable to acquire information about Haggard’s prior employment between January 2010
and May 2010 with Detroit Logistics Company as the company had shut down. Id at PageID 78889.
The record also shows that Haggard’s most recent medical certification, required under 49
C.F.R. §§ 391.43, 391.45, shows that in response to two pertinent questions, “[d]o you currently
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drink alcohol” and “[h]ave you ever failed a drug test or been dependent on an illegal substance,”
Haggard stated “No.” Id. at PageID 808.
According to Ohio law, “[t]he primary issue in a negligent hiring case is whether the
employer knew or should have known of the employee’s criminal or tortious propensities.” Terek
v. Finkbiner, 2015 WL 5542535, *5 (N.D. Ohio 2015) (Knepp, MJ) (citing Byrd v. Faber, 57 Ohio
St.3d 56, 62 (1991)). Then, the issue becomes whether a reasonably prudent person could foresee
the employee’s conduct, such that it should have prevented the employment relationship.” Id.
(internal citations omitted).
Under Ohio law, when a court is to determine the foreseeability of a criminal act, it “must
look at the totality of the circumstances, and only when the circumstances are somewhat
overwhelming can an employer be held liable.” Id. (citing Prewitt v. Alexson Servs., Inc., 2008
WL 3893575) (Ohio App. 2008) (citing Evans v. Ohio State Univ., 112 Ohio App.3d 724, 742
(1997)).
Once again, speculation about the possible effect of drug/alcohol ingestion at some
unspecified time, and without qualified opinion, underlies this claim. On that basis alone it is
unsustainable.
Disregarding that consideration and viewing this claim in a light most favorable to
plaintiffs, the record supporting the alleged negligent hiring is underwhelming. Other than the
single notation that Haggard had, at some unspecified date beyond the three-year FMCSA lookback date, failed a DoT mandated drug test, the record has no support. Further, all responses KLtd. received from Haggard’s prior employers state that he had not violated the alcohol and
controlled substance prohibitions under subpart B of part 392 or 49 C.F.R. part 40.
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Based on the information contained in the record, I can only conclude that no reasonable
juror could find for plaintiffs as to the claim of negligent hiring/entrustment in Count V.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED THAT: defendants’ motions for summary judgment (Docs. 18, 20, 33, 34) be,
and the same hereby are granted as to Counts II, IV, V, and VI, and denied as to Counts I and III.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge
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