Kuebler et al v. Gemini Transportation et al
Filing
39
ENTRY and ORDER granting Motion for Partial Summary Judgment, doc. 23; finding moot Motion to Strike, doc. 31, per doc. 32. Signed by Judge Thomas M Rose on 12/09/2013. (jab)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Ruth Ann Kuebler, et vir.,
Plaintiffs,
v.
Case No. 3:12-cv-114
Judge Thomas M. Rose
Gemini Transportation and Samir Sakanovic,
Defendants.
ENTRY AND ORDER GRANTING DEFENDANTS’
MOTION FOR PARTIAL SUMMARY JUDGMENT, DOC.
23, AND FINDING MOOT DEFENDANTS’ MOTION TO
STRIKE THE AFFIDAVIT OF JAMES B. CRAWFORD.
DOC. 31.
Pending before the Court are Defendants’ Motion for Partial Summary Judgment. Doc. 23
and 31. In the motion for summary judgment, Defendants Gemini Transportation, LLC and
Samir Sakanovic request that the Court enter summary judgment on the negligence claims against
Gemini and on the punitive damages claims against both defendants. The other pending motion
requests that the Court strike a proposed expert’s affidavit for lack of qualifications.
Plaintiffs do not contest the motion for summary judgment with regard to their claim that
Gemini Transport negligently hired and retained Sakanovic, thus this portion of the motion for
summary judgment will be granted. With regard to the punitive damages claims, because there is
no evidence of malice or of ratification or of violations of safety regulations with regard to
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Sakanovic, Defendants’ motion for summary judgment will be granted. Because Plaintiff has
now filed a record of her proposed expert’s credentials with the Court, doc. 32, 32-1, the motion to
strike is moot.
I.
Background
On September 26, 2011, Plaintiff Ruth Ann Kuebler was traveling northbound on I-
75 in the right outside lane. Kuebler Depo. at 34. She was observing the 55 m.p.h. speed limit.
Kuebler Depo. at 31. Traffic was heavy. Kuebler Depo. at 31. Defendant Sakanovic was behind
her in the same lane. Kuebler Depo. at 31. He moved to go around her and as he was changing
lanes, he came into her lane, making contact. In Kuebler’s words, Sakanovic “creamed” her car,
knocking of a mirror and denting the door. Kuebler Depo. at 31, 39. Plaintiff describes Sakanovic
as speeding at the time: “[h]e was flying. I remember thinking at the time that he was driving so
fast and changing lanes so fast to the left...” Kuebler Depo. at 31. Sakanovic did not stop. Kuebler
Depo. at 31.
An independent witness saw the crash, called 911 and gave the police the truck name and
license number. Shockley Aff., Doc. 28-6. Sakanovic was subsequently stopped by the police.
Sakanovic Depo. at 61.
Back at the scene of the accident, after waiting fifteen minutes in hopes that a police officer
would drive by, Plaintiff decided to get back in her car and drive further up I-75 looking for an exit.
Kuebler Depo., at 33–39. As she drove, she noticed a state trooper driving north on I-75. Id. She
signaled to the trooper, and pulled over. Id. The trooper informed her that another officer had a
tractor-trailer pulled over a mile or two up the road which might be the vehicle that made contact
with her car. Id. at 41. Plaintiff followed the trooper to Sakanovic’s tractor-trailer. Id. The
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second officer arrived on the scene with Plaintiff and interviewed Sakanovic. Sakanovic Affidavit,
¶ 6.
After speaking with Sakanovic and Plaintiff, the officers released Sakanovic without
issuing him a citation. Id. at ¶ 7, Sakanovic Depo., at 71. (Exhibit “D”).
Sakanovic denies he was involved in an accident with Plaintiff. He claims he did not feel
her car contact his truck or trailer.
Q: Okay. Is it – is it your testimony today that your trailer
and her car never touched, ever?
A: No. I didn’t feel any touch.
Id. at 63.
He claims he never saw Plaintiff’s car bump into his trailer:
Q: How do you know – let’s say, just hypothetically, that she was in
her lane and came over into your lane and ran into your trailer, how
do you know that didn’t happen, that she never touched you?
A: I could feel it, or I could saw [sic] in my mirror if she do that.
Id. at 64–65. Further, he wasn’t cited by the police when they stopped him and asked him about the
incident. Id. at 71. He denies ever coming into contact with Plaintiff’s car. Sakanovic Depo. at
63.
Plaintiff also brings to the Court’s attention the safety record of Sakanovic’s employer,
Defendant Gemini Transportation.
In the year preceding the crash, Gemini exceeded the
threshold for four of the five safety measurements conducted by the Federal Motor Carrier Safety
Administration. Petkovich Depo. at 45-46.
Moreover, Gemini was cited for repeatedly failing to
conduct random alcohol testing, failing to conduct controlled substance testing, and falsely
reporting records of duty status 53 times. Petkovich Depo., Ex. 7. In fact, just thirteen days before
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this collision Gemini entered into a settlement agreement with the Federal Motor Carrier Safety
Administration where it agreed to pay over $81,000 in fines for 61 violations of the drug and
alcohol regulations and promised to ensure compliance with, and have no further violations of,
federal drug and alcohol testing requirements. Petkovich Depo., Ex. 7. For its part, Gemini
Transport claims to have identified the drivers involved in the Federal Motor Carrier Safety
Administration violations and terminated them. Petkovich Affidavit, ¶10. Sakanovic continues to
work for Gemini.
On April 17, 2012, Ruth Ann Kuebler and Donald Kuebler filed the instant action in this
Court, asserting diversity jurisdiction. The complaint asserts claims for negligence by Samir
Sakanovic, per se negligence by Sakanovic based upon statutory and regulatory violations,
punitive damages against Sakanovic, vicarious liability of Gemini Transport, strict liability of
Gemini transport, negligent hiring and retention by Gemini Transport, statutory violations by
Gemini Transport, punitive damages against Gemini Transport and consortium. Doc. 1.
After the completion of discovery, Defendants filed Motion for Partial Summary
Judgment, doc. 23, asking the Court to enter judgment on the negligence claim against Gemini
Transport, and on the punitive damages claims against both defendants. Plaintiffs opposed the
award of summary judgment on the punitive damages claims, conceding the negligent hiring and
retention, and including among the documents supporting their response an affidavit from James
B. Crawford. Defendants replied and that same day moved the Court to strike Crawford’s
affidavit, asserting that Crawford does not qualify as an expert under the Federal Rules of
Procedure, as, they claim, he failed to file any evidence of his credentials. Plaintiffs responded to
this asserting that his resume was attached to their response, and resubmitting it to the Court.
II.
Summary Judgment Standard
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The standard of review applicable to motions for summary judgment is established by
Federal Rule of Civil Procedure 56 and associated case law. Rule 56 provides that summary
judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). Alternatively, summary judgment is denied “[i]f there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Thus, summary judgment must be entered
“against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, admissions and affidavits which it believes demonstrate the absence of a genuine
issue of material fact. Id., at 323. The burden then shifts to the nonmoving party who “must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S., at 250
(quoting Fed. R. Civ. P. 56(e)).
Once the burden of production has shifted, the party opposing summary judgment cannot
rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to
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go beyond the pleadings” and present some type of evidentiary material in support of its position.
Celotex Corp., 477 U.S., at 324.
In determining whether a genuine issue of material fact exists, a court must assume as true
the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party.
Anderson, 477 U.S., at 255. If the parties present conflicting evidence, a court may not decide
which evidence to believe by determining which parties’ affiants are more credible. 10A Wright &
Miller, Federal Practice and Procedure, § 2726. Rather, credibility determinations must be left
to the fact-finder. Id.
Finally, in ruling on a motion for summary judgment, “[a] district court is not…obligated
to wade through and search the entire record for some specific facts that might support the
nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Thus, in determining whether a genuine issue of material fact exists on a particular issue, the court
is entitled to rely upon the Rule 56 evidence specifically called to its attention by the parties.
Defendants seek summary judgment on Plaintiffs’ claims brought under Ohio law. In
reviewing a claim under Ohio law, this Court must interpret Ohio law consistent with the
interpretations of the Supreme Court of Ohio. Northland Ins. Co. v. Guardsman Prods. Inc., 141
F.3d 612, 617 (6th Cir. 1998). Specifically, this Court must apply the substantive law of Ohio
“‘in accordance with the then-controlling decision of the highest court of the State.”’ Imperial
Hotels Corp. v. Dore, 257 F.3d 615, 620 (6th Cir. 2001) (quoting Pedigo v. UNUM Life Ins. Co.,
145 F.3d 804, 808 (6th Cir. 1998). Also, to the extent that the highest court in Ohio has not
addressed the issue presented, this Court must anticipate how Ohio’s highest court would rule. Id.
(quoting Bailey Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191 (6th Cir. 1994)).
III.
Analysis
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A.
Punitive Damages Against Sakanovic
Because Plaintiff filed this case under 28 U.S.C. § 1332, “state law governs the substantive
issues and federal law governs the procedural issues . . . .” V & M Star Steel v. Centimark Corp.,
678 F.3d 459, 465 (6th Cir. 2012), citing Gass v. Marriott Hotel Svcs., Inc., 558 F.3d 419, 425-26
(6th Cir. 2009). Under Ohio law, punitive damages may be awarded in tort claims only upon a
finding of actual malice, fraud, or insult on the part of the defendant. Ohio Rev. Code §2315.21;
Roberts v. Mason, 10 Ohio St. 277 (1859); Estate of Beavers v. Knapp, 889 N.E. 2d 181, 190 (Ohio
App. 2008). In this case, there is no allegation of fraud or insult and, as such, any punitive
damage award must necessarily rest on the presence of actual malice. Regarding “actual malice,”
the Ohio Supreme Court instructs that:
[A]ctual malice, necessary for an award of punitive damages, is (1)
that state of mind under which a person’s conduct is characterized
by hatred, ill will or a spirit of revenge, or (2) a conscious disregard
for the rights and safety of other persons that has a great probability
of causing substantial harm. In the latter case, before submitting
the issue of punitive damages to the jury, a trial court must review
the evidence to determine if reasonable minds can differ as to
whether the party was aware his or her act had a great probability of
causing substantial harm. Furthermore, the court must determine
that sufficient evidence is presented revealing that the party
consciously disregarded the injured party’s rights or safety.
Preston v. Murty, 336, 512 N.E.2d 1174, 1176 (Ohio 1987). Plaintiffs rest their claim for punitive
damages upon the latter requirement of Preston, i.e., a “conscious disregard for the rights and
safety of other persons that has a great probability of causing substantial harm.” Thus, the Court
must determine “if reasonable minds can differ as to whether [Sakanovic] was aware that . . . his
[manner of driving] had a great probability of causing substantial harm”; and then determine
whether there is sufficient evidence that he consciously disregarded Plaintiff’s safety – while
bearing in mind that “something more than mere negligence is always required.” Id. at 335.
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Moreover, Plaintiffs must demonstrate actual malice with “clear and convincing
evidence.” Baby Tenda v. Taft Broadcasting, 63 Ohio App.3d. 550, 553 (Ohio App. 1989) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). As the Ohio Supreme Court stated:
[A]ctual malice requires consciousness of the near certainty (or
otherwise stated “great probability”) that substantial harm will be
caused by the tortious behavior. Any less callous mental state is
insufficient to incur that level of societal outrage necessary to justify
an award of punitive damages. Therefore, it is evident that a
reckless actor, who only has knowledge of the mere possibility that
his or her actions may result in substantial harm, is not behaving
maliciously.
Motorists Mut. Inc. Co. v. Said, 590 N.E.2d 1228, 1234 (1992), overruled on other grounds by
Zoppo v. Homestead Ins. Co., 644 N.E.2d 397 (1994). The focus is on the actor’s conscious
disregard of an almost certain risk of substantial harm. This distinguishes “malicious” from
“non-malicious” conduct.
Defendants focus on a claim that Sakanovic was unaware that he had struck Kuebler as
evidence of absence of malice. The inquiry, however is upon an awareness of the probable
consequences of his action prior to hitting Kuebler.
Plaintiff’s expert, an eyewitness and Sakanovic all testify that if he hit her, he should have
felt it. And there is independent testimony that he hit her. Thus, he should have felt it and
stopped. Gemini’s safety manager believes Sakanovic would have felt the impact if it had
occurred. Petkovich Depo. at 20. Defendants concede it did occur, thus it is possible for a jury
to infer Sakanovic decided not to stop. Plaintiff asks that the Court allow a jury to infer malice
from Sakanovic’s decision not to stop.
Plaintiffs assert the instant case is analogous to the case of Estate of Beavers v. Knapp, 889
N.E.2d 181 (Ohio App. 2008), in which a truck started to make a left turn in front of a motorcycle.
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The motorcyclist attempted to avoid the truck and spilled onto the roadway. The truck driver then
panicked and fled the scene, crushing the motorcycle driver, killing him.
Knapp saw Beavers fall from the motorcycle and tumble toward his
truck. Knapp admitted that as he saw Beavers coming toward him,
he could have stopped. Instead, however, Knapp panicked,
accelerated, and left the scene. Moreover, in the process of leaving
the scene, Knapp knew that he had hit something when he felt the
truck's rear wheels raise. Despite his awareness of Beavers's fall,
knowledge of Beavers and the motorcycle sliding toward the trailer,
and the realization that he had hit something, Knapp decided to
continue toward his destination. Additionally, Knapp admitted
thinking that he should not be leaving the scene of the accident.
From such evidence, the jury could have found a positive element of
conscious wrongdoing by Knapp. Furthermore, similar to the
evidence the Supreme Court found relevant to prove actual malice
in Cappara, evidence of Knapp's request for the shipper to misstate
his arrival time on his delivery documents, in hopes of creating an
alibi, was relevant to the determination of malice.
Estate of Beavers v. Knapp, 889 N.E.2d 181, 193 (Ohio App. Dist. 2008). In a word, the
defendant in Beavers did much more than just flee the scene, and his decision to flee caused injury,
death—facts not wholly on all fours with the case at bar.
Plaintiff also relies upon the Ohio Supreme Court’s decision in Cappara v. Schibley, 85
Ohio St. 3d 403 (1999), a case in which the court was “confronted…with the issue of whether a
person's record of DUI convictions, subsequent in time to an earlier accident, is admissible to
prove that person's state of mind, i.e., malice or conscious disregard for the rights and safety of
other persons, at the time of the earlier accident.” Cappara v. Schibley, 709 N.E.2d 117, 119-20
(Ohio 1999). While the court stated that evidence of the defendant’s fleeing from the accident
scene and subsequent failure to disclose his involvement in the accident was admissible in
attempting to establish a punitive damages award, this was dicta, and even in that capacity, fell
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short of stating that this evidence alone sufficed to allow a jury to find a basis for awarding
punitive damages.
Similarly, when Plaintiff draws the court’s attention to Clark v. Torres, 956 F.2d 263, 1992
WL 35793 (4th Cir. 1992), Plaintiff highlights that Torres’s flight from the scene was a factor that
can be considered when determining whether to give a punitive damages instruction, but fails to
mention that Defendant Teresa Torres had admitted consuming two beers, and that her van had
struck the motorcycle broadside, tearing off a portion of her bumper and grill and denting her hood
before she fled the scene. Thus, this case does not stand for the proposition that flight alone
warrants a punitive damages instruction.
Plaintiff’s final case on this point is Randazzo v. Grandy, 2011 WL 1811221 (M.D. Pa.
2011), in which defendant “was stopped at a stop sign …[and f]or reasons unknown to the
Plaintiff…put his vehicle in reverse and collided with the Plaintiffs’ vehicle numerous times,
ultimately driving it approximately thirty…feet in the opposite direction on East Grove Street.”
Randazzo v. Grandy, 2011 WL 1811221, 1 (M.D. Pa. 2011). According to Plaintiff, this case
stands for the proposition that “Defendant’s truck backing into Plaintiff then leaving the scene is
sufficient evidence for jury to determine whether defendant exhibited reckless, willful and wanton
behavior[.]” Plaintiff does not give a pinpoint citation, and, in the Court’s eyes, the case does not
appear to boil down to this nugget. Indeed, the authoring judge repeatedly emphasized the
dangerous decision of an experienced driver to back up his truck on a residential street. Id. at *9 .
(“the best way to back a tractor trailer is not to do it all”).
In order to prevail on the claim for punitive damages against Sakanovic, Plaintiff’s burden
is to adduce evidence regarding Sakanovic’s state of mind prior to the accident. The only
evidence Plaintiff has is a string of evidence from which one could possibly conclude that
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Sakanovic knowingly fled the scene after the accident. Standing alone, this is insufficient. It is
admissible at trial to allow a jury to conclude Sakanovic acted willfully if combined with other
evidence. As Magistrate Judge Litkovitz noted while analyzing the significance of evidence
regarding intoxication and fleeing the scene of an accident, “as the degree of impairment by their
voluntary consumption of alcohol increases, the need for other aggravating circumstances [such as
flight] lessens; and vice versa.” MacNeill v. Wyatt, 917 F. Supp. 2d. 726 (S.D. Ohio 2013)(citing
Cabe v. Lunich, 640 N.E.2d 159, 163 (Ohio 1994). Had defendant fled possibly to allow the
alcohol in his blood to dissipate, as in Torres, or had defendant admitted to fleeing because of the
initial impact, and fatally crushed the victim of the accident while fleeing, as in Grandy,
defendant’s flight would be momentous; standing alone, it is nothing.
B.
Vicarious Liability for Punitive Damages
Punitive damages can be awarded against an employer in a tort action where either the
employer’s actions directly demonstrated malice or fraud, or the employer authorized, participated
in, or ratified such actions by its employee. Ohio Rev. Code § 2315.21(C)(1). A party seeking
punitive damages must meet the heightened burden of proving entitlement to them by clear and
convincing evidence. Estate of Schmidt v. Derenia, 822 N.E.2d 401, 405 (Ohio App. 2004)(citing
Ohio Rev. Code § 2315.21(C)). Plaintiffs seek punitive damages from Gemini on both bases.
As regards Gemini’s own actions, Plaintiffs have not produced any evidence to show that
Gemini’s own acts or omissions with respect to the hiring and retention of Sakanovic
demonstrated malice. See Estate of Beavers, 889 N.E.2d at 201 (‘‘Even where a plaintiff proves a
claim of negligent hiring, the plaintiff must establish actual malice before he is entitled to recover
punitive damages.’’) (citing Stephens v. A–Able Rents Co., 101 Ohio App.3d 20, 654 N.E.2d 1315
(8th Dist. 1995)). To the contrary, the only evidence introduced by Plaintiffs concerns other
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Gemini employees, whom Gemini terminated for their Federal Motor Carrier Safety
Administration logbook violations. Sakanovic’s driving record and experience shows Sakanovic
was an experienced tractor-trailer driver who had operated large trucks for years.
As for expressly or impliedly ratifying Sakanovic’s actions, since there is no evidence that
Sakanovic acted with malice, Gemini cannot be held liable for punitive damages on the theory it
authorized, participated in, or ratified actions by Sakanovic that demonstrated malice.
Thus, plaintiffs’ evidence fails to support a claim for punitive damages with regard to
Gemini’s hiring and retention of Sakanovic. Gemini is entitled to summary judgment on plaintiffs’
punitive damages claims.
C.
Post-Accident Drug Alcohol Test
Finally, Plaintiffs request that the Court find Gemini negligent in not administering a drug
or alcohol test to Sakanovic, as, Plaintiffs claim, 49 C.F.R. § 382.303 requires. Alternatively,
Plaintiffs request a jury instruction that the jury may infer that Sakanovic was impaired at the time
of the accident for the same reason. However, 49 C.F.R. § 382.303 only requires drug and
alcohol testing if the driver is cited or a fatality occurred, neither of which are true in the instant
case. The case Plaintiffs attempt to cite to for support of their position, Wa[]nke v. Lynn’s
Transportation Co., [836] F. Supp. 587 (N.D. Ind. 1993), could hardly be farther afield. In that
case company policy, not federal regulations, demanded a test which was scheduled and
subsequently cancelled. None of these factors are present here. Gemini was not required to test
Sakanovic under federal, state or company regulations. None was ever scheduled and none was
ever cancelled. Plaintiffs have presented no evidence of negligence on the part of Gemini,
leaving nothing from which a jury could draw an inference.
IV.
Conclusion
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Because Plaintiffs do not contest the motion for summary judgment with regard to their
claim that Gemini Transport negligently hired and retained Sakanovic, summary judgment on this
claim is GRANTED. Because there is no evidence of malice on the part of Sakanovic or Gemini
Transportation, or of ratification of Sakanovic’s action by Gemini, or of violations of safety
regulations with regard to Sakanovic, summary judgment is GRANTED to Defendants on
Plaintiffs’ punitive damages claims. Because Gemini Transport had no duty to test Sakanovic for
drugs or alcohol after his encounter with Ruth Ann Kuebler, summary judgment is GRANTED to
Defendants on Plaintiff’s claim of negligent failure to test. Thus, Defendants’ motion for
summary judgment, doc. 23, is GRANTED. Because Plaintiff has now filed a record of her
proposed expert’s credentials with the Court, doc. 32, 32-1, the motion to strike, Doc. 31, is
MOOT.
DONE and ORDERED in Dayton, Ohio, this Monday, December 9, 2013.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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