Wheeler v. Estes Express Lines

53 F.Supp.3d 1032

Willard WHEELER, et al., Plaintiffs

v.ESTES EXPRESS LINES, et al., Defendants.

Jeffrey Rogge, Plaintiff

v.Estes Express Lines, et al., Defendants.

Case Nos. 3:13CV1174

3:13CV1227.

United States District Court, N.D. Ohio, Western Division.

Filed Oct. 16, 2014.

Michael J. Leizerman & Rena M. Leizerman, Toledo, OH, Jan H. Stamm, Barer, Karper, Stamm & Robinson, Wauseon, OH, for Plaintiff, Jeffrey Rogge.

Brad A. Everhardt, Mark P. Seitzinger, Ritter, Robinson, McCready & James, Michael J. Leizerman & Rena M. Leizerman, Toledo, OH, Jan H. Stamm, Barer, Karper, Stamm & Robinson, Wauseon, OH, Stephen M. Gurstein, Gurstein, Koltonow, Gursten, Christensen & Raitt, Farmington Hills, MI, for Plaintiffs, Willard Wheeler and Terrolyn Cambell–Wheeler.

Bradley A. Wright, Randall J. Moore, Ronald B. Lee, Tiffany M.H. Sovik, Roetzel & Andress, Akron, OH, Amy L. Butler, Roetzel & Andress, Toledo, OH, for Defendants, Estes Express Lines & Kendall Ray.

ORDER

JAMES G. CARR, Senior District Judge.

These consolidated personal-injury cases arise out of an accident involving a disabled truck, a tow truck assisting the disabled truck, and a passing semi-truck on the Ohio Turnpike.

Plaintiffs Willard Wheeler, driver of the disabled truck, and Jeffrey Rogge, tow truck operator, allege that, while their trucks were on the Turnpike shoulder, defendant Kendall Ray drove his semi-truck onto the shoulder, where its trailer side-swiped Wheeler's truck. Wheeler's truck then shot forward, striking Wheeler and pinning Rogge between his tow truck and Wheeler's truck.

Plaintiffs allege Ray's negligent driving caused them severe, permanent injuries, necessitating—in Rogge's case—the amputation of both his legs. They contend defendant Estes Express Lines, Ray's employer, is vicariously liable for his negligence.

Jurisdiction is proper under 28 U.S.C. § 1332(a)(1).¹

Pending is the plaintiffs' motion for partial summary judgment. (Doc. 32).² For the following reasons, I grant the motion in part and deny it in part.

Background

A. The Crash

The accident occurred on August 14, 2012, shortly before midnight. Wheeler, driving a GMC Topkick truck eastbound on the Turnpike, ran out of gas. He pulled out of the right-hand lane and completely onto the shoulder, where he activated his hazard lights. However, Wheeler did not place reflective triangles behind his vehicle, as an applicable federal regulation required him to do.³

An Ohio Highway Patrol trooper noticed Wheeler's disabled vehicle and pulled over to help. After calling for a tow truck, the trooper left.

About forty-five minutes after Wheeler had pulled onto the shoulder, Rogge arrived in his tow truck. The truck was white and had bright, reflective paint or tape on its sides.

Rogge worked for a company having a contract with the Ohio Turnpike Commission to service disabled vehicles. Rogge's employer had received documents from the Commission instructing tow-truck drivers to: 1) “if possible ... use your vehicle as a barrier vehicle when working on the turnpike”; and 2) park the “tow vehicle 100 feet behind [the] work area.” (Doc. 37–4 at 20).⁴

Because Rogge was expecting to tow a disabled truck, he parked in front of Wheeler's truck. Rogge then activated his flashers and the bright emergency lights on the top of his truck. He did not place reflective triangles behind his or Wheeler's truck.

Roughly fifteen minutes passed between Rogge's arrival and the accident.

Shortly before the accident, Ray was eastbound in the left-hand lane of traffic. Ray testified that, after passing two vehicles, he started merging into the right lane when he saw Wheeler's truck:

Q: And did you see the truck on the shoulder before you actually began the merge, before you physically turned the steering wheel?

A: Yeah. I started to merge in when I saw that truck was sitting there on the shoulder.

Q: Did you turn your steering wheel first, see the truck first, or do they both happen about the same time?

A: About the same time.

(Doc. 32–1 at 8).

Although Ray saw Wheeler's truck before or at the same time he started his merge, he did not consider remaining in the left lane. However, Ray claimed if he had “seen triangles or anything like that sitting out there, I never would have merged over in that lane.” (Id. ). This was so, Ray explained, because the triangles would have signified a “broke-down truck” on the shoulder. (Id. ).

Ray testified: 1) he saw Wheeler's tail lights “flashing”; and 2) he could tell the truck on the shoulder “was a big truck.” (Id. at 10, 16). When Ray completed his merge, he “noticed the truck was awful close to the white [fog] line.” (Id. at 9). But Ray ultimately acknowledged Wheeler's and Rogge's trucks were completely on the shoulder.

Ray checked his mirrors to see if he could merge into the left lane, but there were headlights behind him. When Ray turned his attention back to the road, “it was too late” and he “was already on the truck.” (Id. ). Ray admitted “he went off the road and hit the truck,” and he agreed he “shouldn't have hit the truck off the road.” (Id. at 4, 11).

Eyewitness Christopher Sweatt had been driving a semi-truck in front of Ray's truck for ten to twelve miles before the accident. During that time Ray's truck “was kind of all over the road,” was “weaving severely back and forth,” and even veered “off in[to] the grass” adjacent to the right-hand shoulder. (Doc. 32–6 at 9).

After Ray's truck passed him in the left lane, Sweatt saw “bright” lights coming from at least one truck on the right-hand shoulder. (Id. at 14). Sweatt merged into the left lane, but Ray's truck continued traveling in the right lane for fifteen to twenty seconds before it collided with the truck.

Sweatt did not see Ray's brake lights activate until Ray had passed the crash site.

B. Expert Testimony

The parties have retained numerous expert witnesses to opine on, inter alia, what caused the crash.

Accident-reconstruction expert James B. Crawford prepared a report for the plaintiffs.

According to Crawford, the lights on top of Rogge's tow truck would have been in Ray's field of vision as soon as Ray crested a hill “nearly a mile west” of the crash site. (Doc. 32–7 at 13). He also opined “there were no vehicles in the left lane close enough to pose a hazard” and prevent Ray from merging into the left lane before the accident. (Id. ).

Finally, Crawford opined Ray was traveling roughly seventy miles per hour when the crash happened—an unsafe speed, given the two trucks on the shoulder—and did not begin braking until four seconds after the crash.

Plaintiffs also retained James S. Sobek, a conspicuity expert.⁵

Based on his expertise in physics, mathematics, accident reconstruction, and vehicle dynamics, Sobek opined Rogge's lights “were visible from Mr. Ray's perspective from a distance of 5000 feet.” (Doc. 14 at 40).

Sobek also concluded plaintiffs' trucks “had been in Mr. Ray's field of vision for nearly one mile, a period of nearly 49 seconds at the posted speed limit of 70 miles per hour.” (Id. at 41).

For their part, defendants retained experts Andrew Sievers, Charles Veppert, John Miller, and Robert Nocivelli.

As relevant here, these experts opined Wheeler and Rogge had a duty to place reflective triangles behind Wheeler's truck. They testified the triangles would have: 1) specifically alerted drivers there was a disabled commercial vehicle on the shoulder; and 2) provided that warning earlier, thereby permitting a driver like Ray more time to react appropriately.

Nocivelli and Miller also opined Rogge's failure to park behind Wheeler's truck contributed to the crash and the severity of Rogge's injuries.

Discussion

Plaintiffs contend there is no genuine dispute of material fact as to whether: 1) Ray was negligent per se for failing to drive in marked-lanes, maintain an assured clear distance ahead, and comply with Ohio's move-over law; 2) Estes is vicariously liable for Ray's negligence; and 3) Ray's negligence was the sole proximate cause of the accident and resulting injuries.

Defendants respond a jury question exists on these issues.⁶

Besides disputing Ray was negligent per se, defendants argue: 1) Wheeler and Rogge were negligent in failing to place reflective triangles behind Wheeler's truck; 2) Rogge was negligent for parking in front of Wheeler's truck; and 3) each plaintiff's negligence proximately caused the crash and the resulting injuries.

A party is entitled to summary judgment under Fed.R.Civ.P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548.

Once the movant meets that initial burden, the “burden shifts to the nonmoving party [to] set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(e) “requires the nonmoving party to go beyond the [unverified] pleadings” and submit admissible evidence supporting its position. Celotex, supra, 477 U.S. at 324, 106 S.Ct. 2548.

On summary judgment, I accept the non-movant's evidence as true and construe all evidence in its favor. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992).

A. Ray's Negligence Per Se

To prevail on a negligence claim under Ohio law, plaintiffs must establish: 1) a legal duty; 2) breach of that duty; and 3) proximately caused harm. E.g., Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).

“Evidence of negligence may be prima facie or per se. When negligence is prima facie, the evidence of negligence is subject to rebuttal. When there is negligence per se, it is conclusive of that question.” Crosby v. Radenko, 2011–Ohio–4662, ¶ 17, 2011 WL 4124367 (Ohio App.). “Application of negligence per se in a tort action means that the...