BAKALI v. JONES et al
Filing
50
MEMORANDUM OPINION & ORDER denying 46 Motion for Reconsideration re 45 Memorandum Opinion & Order Denying 37 Defendants' Motion for Leave to File a Third-Party Complaint and Motion for Oral Argument filed by EAGLE EXPRESS LINES, INC, GLENN A. JONES. Signed by Magistrate Judge Robert C. Mitchell on 7/11/2018. (spc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ABDUR RAUF BAKALI, as administratrix of
of the estate of OSMAN M. BAKALI,
Plaintiff,
vs.
GLENN A. JONES, et al.,
Defendants.
)
)
)
)
)
)
)
)
Civil Action No. 17-1162
MEMORANDUM OPINION AND ORDER
Presently before the Court is Defendants’ motion for reconsideration (ECF No. 46) of this
Court’s June 22, 2018 Memorandum Opinion and Order (ECF No. 45) which denied Defendants’
motion for leave to file a Third-Party Complaint (ECF No. 37). The motion has been fully
briefed. For the reasons that follow, the motion will be denied.1
Plaintiff, Abdur Rauf Bakali, as administrator of the estate of Osman M. Bakali,
deceased, brings this negligence action against Defendants, Glenn Jones and Eagle Express
Lines, Inc. (“Eagle Express”), arising out of a July 16, 2016 automobile accident in which Osman
Bakali (“Bakali”) was killed when he stepped out of his vehicle and was struck by a truck owned
by Eagle Express and driven by Jones. In their motion, Defendants proposed to name three
Third-Party Defendants: Shamaas Nyazee and Daoud Ahmed Kahn, the other two passengers
who were in the car with Bakali; and Zarqa Nyazee, the mother of one of these passengers, who
had rented the vehicle in which they were driving. The Third Party Complaint proposed to assert
claims against these individuals for negligence and negligent entrustment. On June 22, 2018, a
Memorandum Opinion and Order was entered which denied the motion.
1
Defendants also request oral argument, but the Court concludes that it is not necessary.
Standard of Review
The Court of Appeals has stated that:
“The purpose of a motion for reconsideration,” we have held, “is to correct
manifest errors of law or fact or to present newly discovered evidence.” Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a judgment
may be altered or amended if the party seeking reconsideration shows at least one
of the following grounds: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court granted the
motion for summary judgment; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice. See North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “It is
improper on a motion for reconsideration to ask the Court to rethink what [it] had already
thought through rightly or wrongly.” Glendon Energy Co. v. Borough of Glendon, 836 F. Supp.
1109, 1122 (E.D. Pa. 1993) (internal citation and quotes omitted). In this case, Defendants cite
no intervening change in the law or availability of new evidence, so the motion raises only a
claim that the Court committed a “clear error of law or fact.”
Plaintiff made numerous arguments in opposition to Defendants’ motion for leave to file
a Third Party Complaint. However, the Court addressed only two of them: 1) there was no
business purpose for the trip and therefore no “joint venture” was formed for purposes of the
negligence claim against Shamaas Nyazee and Daoud Ahmed Kahn; and 2) the negligent
entrustment claim would require that Zarqa Nyazee had knowledge of incompetency at the time
of entrustment but even if she was aware that three individuals would be sleep deprived at the
time she allowed her son to drive the car that does not create a situation of knowledge of
2
incompetency, nor does the fact that the three individuals were not permitted drivers under the
rental agreement, and breach of duty requires actual causation but here no one (including the
decedent) was actually operating the vehicle at the time of the accident.
In the motion for reconsideration, Defendants argue that: 1) to establish a joint
undertaking, “something more” must be shown than that the parties were riding together, and
here they have alleged that two men accepted a ride from a third and “there may well have been
some exchange of consideration in this venture, some benefit in terms of cost savings, etc., that
established a joint venture under Pennsylvania law”; and 2) the Court erred in considering
statements made in an affidavit and, without those statements, a negligent entrustment claim has
been stated based on: a) Bakali’s “use” of the vehicle, which could include his act of unsafely
stopping it partially in the lane of travel of an extremely busy interstate, and b) Zarqa Nyazee’s
act of allowing a person under the age of 25 to drive a car, which would have been impermissible
under the rental agreement.2
Plaintiff responds that: 1) Defendants cite no authority that would support finding a joint
venture under the circumstances described in this case; and 2) the Court did not rely solely on the
affidavit of Shamaas Nyazee, but rather identified three additional bases for finding that
Defendants could not state a claim for negligent entrustment: the facts as pleaded provide no
basis for concluding that Zarqa Nyazee had knowledge of the three men’s incompetency, the fact
2
Defendants also reiterate arguments about timeliness and other factors, but since the Court did
not address these arguments in the Memorandum Order denying the motion for leave to file a
Third Party Complaint, it is not proper to address them on a motion for reconsideration.
3
that they may not have been listed as authorized drivers under the rental agreement does not
mean that they were incompetent drivers, and there was no causation between the alleged
negligent entrustment and the Bakali’s death.
Joint Ventures
The Pennsylvania Supreme Court has noted that:
It is only when the driver is the servant or agent of the passenger at the time of the
negligent act and that act is committed within the scope of the servant’s or agent’s
employment, or when the driver and the passenger are business partners and the
operation of the vehicle is in furtherance of the partnership business, that the
negligence of the driver will from the mere relationship of the parties be
imputable to the passenger. In all other cases, the test is ... [whether] the passenger
ha[d] a right to share in the control of the vehicle[.] Responsibility is
commensurate with authority.... Negligence in the conduct of another will not be
imputed to a party if he neither authorized such conduct, nor participated therein,
nor had the right or power to control it.
Rodgers v. Saxton, 158 A. 166, 169 (Pa. 1931). “This court has also noted that, to establish a
joint enterprise, it is not sufficient to prove that parties were merely riding together or that one
had accepted a ride for pleasure or that there existed some common purpose between the driver
and passenger to be served in the use of the vehicle.” Welc v. Porter, 675 A.2d 334, 340 (Pa.
Super. 1996).
According to the proposed Third Party Complaint (as well as the interviews contained in
the police report attached to the Notice of Removal), the incident occurred while three
individuals were riding together in a car returning from a wedding. There is no basis for
concluding that they were involved in a business enterprise or that one employed the others.
Thus, there was no joint venture. Defendants’ attempt to create a joint venture by alleging that
4
the three men were “engaged in a common enterprise” fails as it is contrary to the facts pleaded.
In addition, Defendants cite no authority to support the argument that the scenario described in
this case could constitute a joint venture. Therefore, they have not pointed to a “clear error of
law or fact” in this Court’s Memorandum and Order denying their motion for leave to file a Third
Party Complaint.
Negligent Entrustment
Pennsylvania has adopted the Restatement (Second) of Torts § 308, which provides that:
“[i]t is negligence to permit a third person to use a thing or engage in an activity which is under
the control of the actor, if the actor knows or should know that such person intends or is likely to
use the thing to conduct himself in the activity in such a manner as to create an unreasonable risk
of harm to others.” See Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998). A party seeking to
invoke such a claim must demonstrate that the lender had knowledge of the incompetency of the
person to whom the vehicle was entrusted at the time the vehicle was entrusted. Wertz v.
Kephart, 542 A.2d 1019, 1023-24 (Pa. Super. 1988). In Wertz, the court stated that, if the
plaintiff proved that the defendant was intoxicated when he received the keys and that this was
known, then a claim for negligent entrustment could be maintained.
There is no alleged basis for Zarqa Nyazee to have been aware that her son or the other
two individuals would “use” the car (assuming that “use” includes pulling it off to the side of the
road with a portion of it in the lane of travel on an extremely busy interstate) “in such a manner
as to create an unreasonable risk of harm to others” at the time she entrusted the car to her son to
5
use it. The allegations of the Third Party Complaint are that Zarqa Nyazee entrusted the car to
her son on July 14, 2016 so that he and two other individuals would travel from St. Louis and/or
Indianapolis to pick up Bakali in Cincinnati and travel to Long Island, New York to attend a
wedding on July 15, 2016 and thereafter travel back to Cincinnati to drop off Bakali and then
complete the journey by returning to Indianapolis and/or St. Louis on July 16, 2016. These
allegations do not support a claim that she had knowledge of their “incompetency” to drive the
car at the time she entrusted the car to her son.
First, even if she had been aware of their travel plans and had reason to believe that they
would be driving after having received little sleep, the fact that there were three drivers means
that they could have taken turns sleeping and driving and thus the entrustment of the vehicle to
three individuals for the length and time of travel would not have been unreasonable. Defendants
have cited no authority which would support a claim of negligent entrustment under such
circumstances. Furthermore, the fact that the three individuals were not named as permitted
drivers under the rental agreement does not indicate that they were “incompetent” as drivers, nor
does the fact that the men were under the age of 25 and would not have been authorized drivers
under the rental agreement. Defendants cite no authority to support the argument that the word
“incompetent” can be applied in this fashion. The issue in this case is not whether Zarqa Nyazee
violated the provisions of the rental agreement or whether Bakali, Shamaas Nyazee and Daoud
Ahmed Kahn would have been authorized drivers under the rental agreement, but whether Jones
was negligent when his truck struck Bakali on the highway. Therefore, Defendants they have not
6
pointed to a “clear error of law or fact” in this Court’s Memorandum and Order and their motion
for reconsideration will be denied.
An appropriate order follows.
7
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ABDUR RAUF BAKALI, as administratrix of
of the estate of OSMAN M. BAKALI,
Plaintiff,
)
)
)
)
)
)
)
)
vs.
GLENN A. JONES, et al.,
Defendants.
Civil Action No. 17-1162
ORDER
AND NOW, this 11th day of July, 2018,
IT IS HEREBY ORDERED that Defendants’ Motion for Reconsideration of the
Court’s Order Denying Defendants’ Motion for Leave to File Third Party Complaint, and
Request for Oral Argument (ECF No. 46) is denied.
s/Robert C. Mitchell__________
ROBERT C. MITCHELL
United States Magistrate Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?