Poe v. Cook et al
Filing
66
OPINION AND ORDER: The Court DENIES plaintiff's Motion for Partial Summary Judgment regarding Defendant's Affirmative Defenses 43 . (See 11-page opinion for more information.) Signed on 8/14/19 by Magistrate Judge Patricia Sullivan. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
NORMAN POE, an individual,
Case No. 2:17-cv-00062-SU
Plaintiff,
OPINION
AND ORDER
v.
RYAN COOK, an individual; and
OLD DOMINION FREIGHT LINE,
INC., a Virginia corporation,
Defendants and
Third-Party Plaintiffs,
v.
SWIFT TRANSPORTATION
COMPANY OF ARIZONA, a
foreign corporation; and ZAKEE
WATSON, an individual,
Third-Party Defendants.
_________________________________________
Page 1 – OPINION AND ORDER
SULLIVAN, United States Magistrate Judge:
This case concerns a multi-vehicle accident on Interstate 84. Plaintiff Norman Poe, an
employee of third-party defendant Swift Transportation Company of Arizona (“Swift”), has
brought a negligence action against another trucker, defendant Ryan Cook, and his employer,
Old Dominion Freight Line, Inc. (“Old Dominion”). Compl. (Docket No. 1). Defendants have
filed a Third-Party Complaint against Swift and another Swift employee, Zakee Watson, a
trucker trainee under Poe’s supervision. Ans. (Docket No. 14). Plaintiff has moved for partial
summary judgment on two of defendants’ affirmative defenses. (Docket No. 43). Defendants
oppose. (Docket No. 44). The Court heard oral argument on May 22, 2019 (Docket Nos. 55,
61), after which it received supplemental briefing (Docket Nos. 58-60, 65).1 For the following
reasons, the Court DENIES plaintiff’s Motion for Partial Summary Judgment.
FACTUAL BACKGROUND
Because plaintiff’s Motion considers the viability of defendants’ affirmative defenses as a
matter of law, and does not dispute the facts or evidence underlying them, the Court lays out the
following facts, which the parties have largely agreed upon in their submissions (Docket Nos. 1,
14, 43, 44, 49, 51, 58-60), as background to its analysis of the legal questions presented.
On January 17, 2015, Ryan Cook was driving an Old Dominion semi-truck, pulling two
trailers, driving eastbound on Interstate 84 near Baker City, Oregon. Compl. ¶ 6. Cook was an
Old Dominion employee. Id. Behind Cook’s truck, Zakee Watson was driving a Swift semitruck/trailer combination, in which Norman Poe, Watson’s trainer, was a passenger. Ans. ¶ 3.
Watson, a trainee, and Poe were Swift employees. Id.
1
At the hearing, the Court also considered plaintiff’s Motion to Bifurcate (Docket No. 45),
which it denied (Docket No. 57).
Page 2 – OPINION AND ORDER
Road conditions were hazardous that day due to dense fog and ice. Compl. ¶ 7. Cook
lost control of the semi-truck/trailer and it jackknifed, blocking the highway’s eastbound lane.
Id. ¶ 8. Watson’s truck collided with Cook’s. Id. Several other semi-trucks then struck Watson
and Poe’s truck. Def. Opp’n, at 3 (Docket No. 49). Poe was seriously injured. Compl. ¶ 11.
Because Poe’s injuries occurred during the course of his employment, he was covered by and
received benefits from Swift’s workers’ compensation. Pl. MPSJ, at 2 (Docket No. 58).
PROCEDURAL BACKGROUND
In their Answer, defendants state three affirmative defenses, including:
FIRST AFFIRMATIVE DEFENSE
(Comparative Negligence)
5.
Defendants reallege paragraphs 1-4 of their answer and further allege that,
at all material times, plaintiff Poe was employed by Swift Transportation as a
driver/trainer and supervised Swift Transportation employee Watson, a
driver/trainee. Plaintiff Poe was aware of the adverse weather and road
conditions in sufficient time to prevent the Swift Transportation semi-truck and
trailer from colliding with the [Old Dominion] trailer(s). Any injuries and
damages he sustained were caused by his own negligence in one or more of the
following ways:
a) In failing to instruct trainee Watson to slow down sufficiently to bring the
Swift Transportation tractor-trailer to a stop before the collision;
b) In failing to instruct trainee Watson to promptly pull the Swift
Transportation tractor-trailer over to the shoulder of the road prior to the
collision;
c) In failing to instruct trainee Watson to refrain from down-shifting the Swift
Transportation tractor-trailer instead of applying its brakes, resulting in the
collision with the [Old Dominion] trailer(s);
d) In failing to secure himself with a safety harness once he was aware of the
adverse weather and road conditions.
and
THIRD AFFIRMATIVE DEFENSE
(Fault of Others)
7.
Plaintiff’s injuries and damages were caused by the fault of others,
including Watson.
Page 3 – OPINION AND ORDER
Ans., at 3-4 (Docket No. 14).2
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The
burden is on the moving party to point out the absence of any genuine issue of material fact; once
the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the
production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In opposing summary judgment, a party may not rely on
mere allegations or denials in pleadings, but must set forth specific facts supported by competent
evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Far Out Prods., Inc. v.
Oskar, 247 F.3d 986, 997 (9th Cir. 2001). On a motion for summary judgment, the evidence is
viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th
Cir. 1999). “A fact issue is genuine if the evidence is such that a reasonable [fact finder] could
return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1061 (9th Cir. 2002) (quotation omitted). “The non-moving party has failed to meet its burden if
the record taken as a whole could not lead a rational trier of fact to find for the non-moving
party.” Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991)
(quotation omitted). The substantive law governing a claim or defense determines whether a fact
is material. Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). In
evaluating a motion for summary judgment, the court must draw all reasonable inferences in
favor of the nonmoving party, and may neither make credibility determinations nor perform any
weighing of the evidence. Anderson, 477 U.S. 242, 248 (1986).
2
The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C.
§ 636. (Docket Nos. 12, 27, 40, 42).
Page 4 – OPINION AND ORDER
ANALYSIS
I.
First Affirmative Defense: Comparative Negligence
Defendants’ first affirmative defense, comparative negligence, asserts that Poe’s injuries
were caused in part by his own negligence, specifically in his failing to properly instruct or to
train Watson, and in failing to secure himself with a safety harness.
Plaintiff’s argument against this defense goes as follows: First, workers’ compensation is
an employee’s exclusive remedy against an employer for injuries arising in the course of
employment, and so an employer who provides workers’ compensation is immune from liability
to an injured employee. Or. Rev. Stat. § 656.018(1)(a); Nancy Doty, Inc. v. WildCat Haven, Inc.,
297 Or. App. 95, 97 (2019). Because Poe worked for Swift, Swift could not be liable in tort for
Poe’s injuries; Poe could recover only through workers’ compensation. Second, “the exemption
from liability given an employer under this section is also extended to the . . . employees . . . of
the employer . . . .” Or. Rev. Stat. § 656.018(3). Watson, the driver and a Swift employee,
would also be immune from civil liability as to Poe. Third, plaintiff argues, because Poe too is a
Swift employee, the immunity from liability that Swift and Watson enjoy must also extend to
Poe. Finally, because Or. Rev. Stat. § 31.600(2) provides that “there shall be no comparison of
fault with any person: (a) Who is immune from liability to the claimant,” plaintiff, because he is
immune from liability, cannot have his fault compared with defendants’, i.e., cannot be subject to
a comparative negligence defense.
This argument is unsuccessful, as it misconstrues the nature of the comparative
negligence affirmative defense. At its core, plaintiff’s argument is that because that plaintiff is a
Swift employee, he is immune from liability to himself, due to workers’ compensation. That is,
plaintiff could not seek recovery from himself, only from workers’ compensation. Such a
Page 5 – OPINION AND ORDER
conclusion is both peculiar and incongruous. “[T]he purpose of” workers’ compensation is “is to
promote workers’ compensation coverage, not to create technicalities . . . .” Robinson v. Omark
Indus., 46 Or. App. 263, 611 (1980). Defendants, in their first affirmative defense, argue that
plaintiff’s own negligence, in part, caused plaintiff’s claimed injuries and that defendants are not
entirely at fault for plaintiff’s injuries. While it makes sense that the workers’ compensation
structure would prevent plaintiff from otherwise recovering against Swift, or against his
coworker Watson, it makes no sense that it would preclude defendant from arguing that a
plaintiff is partially at fault for his injuries. Workers’ compensation immunity is not enacted to
shield an employee from his own negligence. Although plaintiff cites broad legal principles
about workers’ compensation exclusivity, he offers no legal authority for the premise that
workers’ compensation absolves an individual from his own negligence or precludes an
affirmative defense of comparative negligence.3
That three of the bases for the alleged comparative negligence are Poe’s alleged failure to
instruct trainee Watson (although, notably, the fourth basis is not; it is Poe’s alleged “failing to
secure himself with a safety harness”) does not undermine this conclusion. Plaintiff argues that a
negligent supervision claim “is merely another way of saying that both Watson and Swift were
negligent, and this effort to convince the jury to find Poe at fault for the liabilities of his immune
employer and co-employee should not be allowed.” Pl. MPSJ, at 5 (Docket No. 43). This
argument is not well taken. Defendants’ argument is that plaintiff, in part, caused his own
injuries, by failing to train Watson properly. This is not a disguised claim against Watson or
Swift, but rather a claim about Poe’s actions (or inactions), that is, a duty plaintiff would have
3
For instance, in the recent Oregon Supreme Court case of Vasquez v. Double Press
Manufacturing, Inc., 364 Or. 609, 614 (2019), comparative negligence served to reduce
plaintiff’s damages by 40% despite the presence of workers’ compensation in that matter.
Page 6 – OPINION AND ORDER
owed to others, including those on the road, to prevent injuries that his trainee could have
caused. Any negligence by Watson for how he drove, or any negligence by Swift as the
employer of Watson or plaintiff, is distinct from the argument that plaintiff himself, through his
own actions, partially caused his injuries.4
Although Or. Rev. Stat. § 31.600(2) provides that “there shall be no comparison of fault
with any person: (a) Who is immune from liability to the claimant,” it does not make sense to
read the statute as saying a plaintiff cannot be charged with comparative negligence.
More
importantly, the statute also reads, “The trier of fact shall compare the fault of the claimant with
the fault of any party against whom recovery is sought . . . .” Id. (emphasis added). Thus,
Oregon law is mandatory that the fault of plaintiff as “the claimant” must be compared with
those of defendants, i.e., those “against whom recovery is sought”.5
Lyons v. Walsh & Sons Trucking Co., 183 Or. App. 76, 78 (2002), supports this
conclusion. Plaintiff Lyons was a passenger in an Oregon State Police (“OSP”) Jeep driven by
Sergeant Rector. Defendant Walsh owned a tractor-trailer that struck the Jeep and killed both
Lyons and Rector. Lyons sued Walsh. Walsh sought to introduce evidence of Rector’s potential
4
Plaintiff argues that because he was acting as Swift’s agent, he enjoys the same immunities as
Swift, his principal. However, this self-reflexive argument fails for the same reasons as the
workers’ compensation immunities argument. It would be highly anomalous if Swift’s immunity
from liability shielded plaintiff from his own negligence. See also Vaughn v. First Transit, Inc.,
346 Or. 128, 140 (2009) (discussing when a principal may be liable for actions of agent
employee despite principal’s immunity); Johnson v. Gibson, 358 Or. 624, 633 (2016) (same).
5
In fact, in the context of plaintiff’s Motion to Bifurcate, plaintiff’s counsel stated at oral
argument:
I believe that the jury would be presented with virtually all of the evidence
regarding the facts of the accident. They would probably be presented subject to
motions in limine, but all of the evidence regarding the potential causes of the
accident, including from the defendants’ side, I think they would be entitled to
present evidence about Mr. Watson’s conduct, for example.
May 22, 2019, Tr. 5:12-18 (Docket No. 61) (emphasis added). This comment recognizes the
possible introduction of evidence of Watson’s own actions in contributing to his injuries, and
suggests the viability of comparative negligence and fault of others as affirmative defenses.
Page 7 – OPINION AND ORDER
fault or negligence in contributing to the accident. Id. at 79. Lyons argued that because workers’
compensation made Rector and OSP immune from suit, Walsh could not introduce evidence of
their potential fault. The Court of Appeals rejected this argument, holding that Or. Rev. Stat.
§ 31.600 (then § 18.470) restricted only the jury’s apportionment of fault, but did not address the
jury’s determination of causation. 183 Or. App. at 83. Thus, Walsh could introduce evidence of
Rector’s conduct despite his immunity from liability.
Although Lyons addressed jury
instructions and the introduction of evidence, and not affirmative defenses, it is nonetheless
instructive because of the parallel facts: a plaintiff passenger seeking to prevent a defendant from
consideration of the passenger’s driver’s conduct, where that driver was immune from liability.
Thus, workers’ compensation, and the immunity it affords Swift and Watson, do not bar
an affirmative defense alleging Poe’s own comparative negligence.
II.
Third Affirmative Defense: “Fault of Others”
Defendants’ third affirmative defense, “fault of others,” alleges that plaintiff’s injuries
“were caused by the fault of others, including Watson.”
Plaintiff argues that Watson is immune from liability under the workers’ compensation
principles discussed above, and thus there cannot be an affirmative defense that considers
Watson’s fault or negligence. If this affirmative defense were merely a way to assign Watson
liability for plaintiff’s injuries or potentially recover damages from Watson, plaintiff might be
correct.
However, this affirmative defense in fact operates differently, not by invoking
comparative negligence as to Watson, and not merely by denying defendants’ liability or alleged
negligence, but by introducing new facts, a new theory, and “new matter” that undermine the
allegation that defendants’ negligence caused plaintiff’s injuries.
That is, it asserts that
defendants did not cause Poe’s injuries, because Watson in fact caused them, wholly or partially.
Page 8 – OPINION AND ORDER
In a diversity action such as this, “the Federal Rules of Civil Procedure provide the
manner and time in which defenses are raised and when waiver occurs.” Healy Tibbitts Const.
Co. v. Ins. Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982). Fed. R. Civ. P. 8(c)(1) states that a
party “must affirmatively state any avoidance or affirmative defense[.]” In a diversity case,
“state law defines the nature of the defenses . . . .” Healy Tibbitts, 679 F.2d at 804. “Under
Oregon pleading rules, evidence which controverts facts necessary to be proved by plaintiff may
be shown under a general denial.” Deering v. Alexander, 281 Or. 607, 613 (1978). “[W]here the
defendant desires to present evidence which does not directly controvert a fact necessary to be
established by plaintiff, it is new matter which must be pleaded as an affirmative defense.” Id.
(italics added).
Watson’s alleged negligence is a “new matter” that defendants must plead as an
affirmative defense. The claim of Watson’s negligence goes beyond defendants merely claiming
that they were not negligent, or that their actions did not cause plaintiff any injury. It introduces
a new theory of liability that Watson engaged in negligent conduct. That workers’ compensation
immunity would prevent plaintiff from assigning liability to Watson does not mean that
defendants may not introduce evidence of Watson’s alleged negligence in order to defeat a claim
of causation or negligence on their part. This affirmative defense does not seek to allow
recovery against Watson, but merely to provide an alternative explanation for the events at issue.
Lasley v. Combined Transport, Inc., 351 Or. 1 (2011), supports this conclusion. The
plaintiff brought a wrongful death action against two defendants: an intoxicated driver, and a
trucking company. Id. at 4. Plaintiff alleged that the driver defendant was negligent, but did not
allege anything about the driver’s intoxication. Id. at 25. The trucking company defendant
sought to raise the driver’s intoxication as a defense to negligence and to apportion fault. Id. at
Page 9 – OPINION AND ORDER
26. The Oregon Supreme Court held that the proper means for the trucking company to raise the
negligence of a co-defendant was through an affirmative defense, because it was not simply a
denial of its own liability, but introduction of a “new matter,” namely, the wrongful conduct of a
co-defendant and its role in causing the alleged injury. Id. at 22. A defendant who
seeks to avoid paying the full damages that a plaintiff has alleged on the basis that
a codefendant is more at fault in a way that was not alleged by the plaintiff, must
plead the specification of negligence on which the defendant relies as an
affirmative defense in its answer to the plaintiff’s complaint and not in a separate
cross-claim against the codefendant.
Id. at 22-23. Further,
This court has defined “new matter” as consisting of “a statement of facts
different from those averred by the plaintiff and not embraced within the judicial
inquiry into their truth.” When a defendant seeks to avoid liability for the
damages that a plaintiff claims by asserting that a codefendant engaged in more
blameworthy negligent conduct not pleaded by the plaintiff, the defendant relies
for that defensive posture on facts different from those averred by the plaintiff.
Id. at 17 (citation omitted). Although Lasley considered evidence of a co-defendant’s fault, not
that of a non-party as in this case, it nonetheless supports the conclusion that introduction of
another’s negligence or fault in causing the alleged injury, as a theory that falls outside plaintiff’s
allegations, is to be raised by an affirmative defense.6
6
Contrary to plaintiff’s argument, International Longshore & Warehouse Union v. ICTSI
Oregon, Inc., No. 3:12-cv-1058-SI, 2019 WL 267714 (D. Or. Jan. 17, 2019), does not hold
otherwise. The court there distinguished “negative defenses” from “affirmative defenses.” “A
defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative
defense.” Id. at *15 (citation omitted). “An affirmative defense raises matters extraneous to the
plaintiff’s prima facie case . . . . On the other hand, some defenses negate an element of the
plaintiff’s prima facie case; these defenses are excluded from the definition of affirmative
defense in Fed. R. Civ. P. 8(c).” Id. (citation omitted). Here, defendants are not simply arguing
that plaintiff cannot meet his burden of proof, but that even if plaintiff were to succeed in
showing defendants’ causation for negligently causing the accident, the fault of others, including
Watson, should be considered in determining liability.
Page 10 – OPINION AND ORDER
Thus, defendants are entitled to raise the fault of others, including Watson, as an
affirmative defense.7
CONCLUSION
For these reasons, the Court DENIES plaintiff’s Motion for Partial Summary Judgment
re: Defendant’s Affirmative Defenses. (Docket No. 43).
IT IS SO ORDERED.
DATED this 14th day of August, 2019.
/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge
7
For the same reasons, defendants do not misuse the affirmative defense to attribute negligence
to unnamed “others.” Although the jury may assign fault only to defendants and third-party
defendants, Or. Rev. Stat. § 31.600(2), and may not assign fault to non-parties such as “others,”
the defense here is not that comparative fault and liability should be assigned to some other nonparties, but simply that defendants seek to argue that their alleged negligence as a factual matter
must be considered alongside the other individuals’ and entities’. Defendants do not need to join
the “others” as third-party defendants in order to argue that those “others” were negligent in
causing plaintiff’s injuries, because defendants are not trying to apportion fault and liability to
these “others.”
Page 11 – OPINION AND ORDER
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