Poe v. Cook

NORMAN POE, an individual, Plaintiff, 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.

Case No. 2:17-cv-00062-SU

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PENDLETON DIVISION

August 14, 2019

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 semi-truck/trailer combination, in which Norman Poe, Watson's trainer, was a passenger. Ans. ¶ 3. Watson, a trainee, and Poe were Swift employees. Id.

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.

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).

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 aconclusion 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 haveowed to others, including those on the road, to prevent...