Oum v. Dougherty

KEVIN OUM, Plaintiff, v. CAROL DOUGHERTY, et al. Defendants.

CIVIL ACTION No.: 20-cv-1970

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

May 21, 2021

MEMORANDUM

SITARSKI, M.J.

Presently pending before the Court is Defendant's Partial Motion for Summary Judgment (ECF No. 31) and Plaintiff's response thereto (ECF No. 34). For the reasons that follow, Defendant's motion is GRANTED.

I. FACTUAL AND PROCEDURAL HISTORY

This matter arises from a three-vehicle rear-end automobile accident on November 18, 2019, in Plymouth Township, Pennsylvania. (Def.'s Mot. for Partial Summ. J., ECF No. 31, at ¶ 5). Defendant was driving on Sandy Hill Road within the posted speed limit of 35 miles per hour without another vehicle directly in front of her. (Def. Dep. Tr., ECF No. 31-1, at 16:16-20, 17:14-19). She looked away briefly to pull a tissue from a tissue box to her right on top of the center console of the vehicle. (Id. at 16:16-20). When she looked back, a vehicle, driven by Joel Azeff,¹ had stopped in front of her. (See id. at 17:14-20). Defendant braked, but not in time to avoid hitting Azeff's vehicle and pushing it three to four feet into the back of Plaintiff's vehicle. (Id. at 17:24; Azeff Dep. Tr., ECF No. 31-2, at 8:3-6). Azeff characterized his vehicle's contactwith Plaintiff's vehicle as "just a tap." (Azeff Dep. Tr., ECF No. 31-2, at 12:10-13). Azeff inspected the front of his vehicle but saw no scratches, paint transfer or other damage. (Id. at 13:2-10). (Vehicle Photographs, ECF No. 34, at Ex. B). Photographs of the rear of Plaintiff's vehicle show scratches, a loose bumper step pad, and a small crack on the bottom left corner of the bumper.² (Vehicle Photographs, ECF No. 34, at Ex. B). Plaintiff's vehicle's airbags did not deploy. (Pl. Dep. Tr., ECF No. 31, at 22:4-6).

After the accident, Defendant did not approach Azeff or Plaintiff to speak to either. (Pl. Dep. Tr., ECF No. 31, at 18:15-18). She testified that she was afraid to do so and also had extreme pain in her legs. (Id.). She spoke only to first responders. (Id. at 18:11-18).

In a memorandum and order dated March 26, 2021, the Court denied Defendant's partial motion to dismiss any claim of recklessness by Plaintiff.³ (Memo., ECF No. 29; Order, ECF No. 30). Defendant filed the instant partial motion for summary judgment to dismiss any claim of recklessness the same day. (Def.'s Mot. for Summ. J., ECF No. 31). Plaintiff filed his response on April 15, 2021. (Pl.'s Resp., ECF No. 34).

II. LEGAL STANDARD

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Anissue is "genuine" if there is sufficient evidence from which a jury could find in favor of the non-moving party. Id. It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party carries this initial burden, the non-moving party must "come forward with specific facts showing there is a genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 587. The non-moving party must present something more than mere allegations, general denials, vague statements, or suspicions. Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992); Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Instead, the non-moving party must present specific facts and "affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50. If the non-moving party has the burden of proof at trial, then that party must establish the existence of eachelement on which it bears the burden.⁴ Celotex Corp., 477 U.S. at 322-23.

III. DISCUSSION

Defendant moves for summary judgment as to any claim of recklessness by Plaintiff on the basis that he has failed to introduce evidence demonstrating a prima facie case sufficient to establish "recklessness". (Def.'s Memo. in Supp. of Mot. for Partial Summ. J., ECF No. 31, at 15). Defendant acknowledges "no bright line rule" exists, but points to other automobile accident cases in which Pennsylvania courts determined that the evidence of recklessness was sufficient to allow those claims to proceed to a jury. (Id. at 15-16 (citing Kairamanov v. LaFalce, 35 Pa. D. & C.5th 53, 55 (Monroe Com. Pl. Ct. 1997); Focht v. Rabada, 268 A.2d 157 (Pa. Super. Ct. 1970); Livingston v. Greyhound Lines, Inc., 208 A.3d 1122 (Pa. Super. Ct. 2019))). Defendant contrasts the evidence in this case and argues that the evidence here is insufficient to establish recklessness. (Id. at 16-17). In response, Plaintiff does not likenDefendant's conduct to that of the defendant-drivers in her cited cases, nor does he cite any cases in which a court held that conduct similar to Defendant's in this case suffices to establish recklessness. (See generally Pl.'s Memo. in Resp., ECF No. 34). Nonetheless, he argues that "there exists genuine issues of material fact as to whether defendant acted recklessly in this accident." (Id. at 14).

"Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence." Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1200 (Pa. 2012). The Pennsylvania Supreme Court has approved the Restatement (Second) of Torts' definition of "reckless disregard," as well as its commentary clarifying that definition and how it differs from negligence:

The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

. . . .

[Recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.

. . . .

Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man . . . . The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessaryto make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500 & cmts. a, g (1965)).

"Pennsylvania precedent analyzing the parameters of wanton or reckless conduct has customarily done so in connection with challenges to the viability of punitive damages claims." Freethy v. Goike, No. 11 CV 530, 2011 WL 7177007 (Lackawanna Com. Pl. Ct. Sept. 9, 2011) (citing Daniel v. Wyeth Pharms. Inc., 15 A.3d 909, 928-931 (Pa. Super. Ct. 2011); Hutchison ex rel. Hutchison v. Luddy, 896 A.2d 1260, 1265-66 (Pa. Super. Ct. 2006)). Unlike negligence, recklessness may permit a party to recover punitive damages. "To support a claim for punitive damages under Pennsylvania law, the plaintiff must demonstrate that the defendant acted outrageously due to either the defendant's 'evil motive or his reckless indifference to the rights of others.'" Taylor v. Lemus, No. 16-5407, 2017 WL 952344, at *4 (E.D. Pa. Mar. 10, 2017) (quoting Phillips v. Cricket Lighters, 883 A.2d 179, 188-89 (Pa. 2005)).

Under Pennsylvania law, "[p]unitive damages claims have been permitted against motorists in narrow sets of circumstances indicating unreasonable actions by defendants in conscious disregard of known or obvious risks which pose a high probability of harm to others." Rockwell v. Knott, 32 Pa. D. & C.5th 157 (Lackawanna Com. Pl. Ct. 2013) (collecting cases). These circumstances include driving while intoxicated, Focht, 268 A.2d at 160; Kairamanov, 35 Pa. D. & C.5th at 55; Schwab v. Bates, 12 Pa. D. & C.4th 162, 167-68 (Westmoreland Com. Pl. Ct. 1991); driving a truck with an unevenly distributed load and obscured side mirror while speeding and changing lanes without signaling, Dillow v. Myers, 916 A.2d 698, 702 (Pa. Super. Ct. 2007), appeal denied, 594 Pa....