Opinion
Civil Action No. 01-2609-GTV
February 14, 2003
MEMORANDUM AND ORDER
Plaintiff Tracy Joyce brings this diversity negligence action seeking recovery for injuries sustained when he was hit by a pipe that fell off a tractor-trailer truck while it was being loaded. Plaintiff brought suit against the truck driver, Steve Pedersen, and the company for which Defendant Pedersen was hauling the pipe, Smithway Motor Xpress, Inc. Both Defendants moved for summary judgment (Doc. 31). Defendants' arguments can be grouped into three categories: (1) Defendant Pedersen owed no duty to Plaintiff; (2) Defendant Pedersen's actions were not the proximate cause of Plaintiff's injuries; and (3) Defendant Smithway Motor Xpress, Inc., cannot be held vicariously liable for Defendant Pedersen's actions because Defendant Pedersen was an independent contractor. For the reasons stated below, the court rejects Defendants' arguments and denies their motion for summary judgment.
Also before the court is Plaintiff's motion to strike certain uncontroverted facts, which is embedded in Plaintiff's response to Defendants' summary judgment motion (Doc. 37). Although Plaintiff's "motion" is not one contemplated by the Federal Rules of Civil Procedure, the parties appear to have reached an agreement as to the disposition of the motion, and it is therefore denied as moot.
I. FACTUAL BACKGROUND
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to the non-moving party's case. Immaterial facts and facts not properly supported by the record are omitted.
On February 24, 2000, employees of the Bennett Rogers Coating Company were loading pipes onto Defendant Pedersen's tractor-trailer truck with a forklift. Witnesses testified that one or more pipes slipped off the end of the forklift and struck Plaintiff's legs. The accident occurred on Bennett Rogers property, and Plaintiff was an employee of Bennett Rogers.
Defendant Pedersen had been hauling various sizes of pipes for over thirteen years, and was familiar with the practices of loading pipe on a trailer. However, he had not been to the Bennett Rogers facility before the date of the accident.
As the truck driver, Defendant Pedersen's role in the loading process was to indicate where the pipe should go on the trailer, making sure the pipe was not too far forward or off center. Matt Meyerhoff, Plaintiff's expert witness, testified in deposition that Defendant Pedersen was the "captain of the ship" during the loading process and the person most knowledgeable of the tractor-trailer. Champ Bennett, President of Bennett Rogers, testified in deposition that truck drivers often tell you where they want the load "and [are], to some degree, part of the loading effort." Grant Bennett, the person responsible for managing the outside laborers, testified in deposition that while he did not recall that his company had asked Defendant Pedersen for assistance or guidance in loading the pipe, "[m]ost drivers will tell you how they want it loaded."
A Bennett Rogers employee directed Defendant Pedersen where to park his tractor-trailer truck and advised him that they would load the pipe from the driver's side only. Pedersen had always observed loading from both sides of the truck, but he did not protest Bennett Rogers's loading procedure even though he regarded the procedure as "inappropriate" and "clumsy."
While the pipe was being loaded, Defendant Pedersen was standing close to Plaintiff. Two witnesses testified in deposition that they saw Defendant Pedersen talking with Plaintiff before the pipe fell, although Plaintiff himself testified that he was not paying any attention to Defendant Pedersen. Plaintiff was putting cardboard between the pipes and boards on the tractor-trailer while the pipe was being loaded. Defendant Pedersen was doing nothing. Mr. Meyerhoff testified in deposition that Plaintiff was standing in a position that was a "very obvious hazard to anyone." When the pipe began to roll, Plaintiff and Defendant Pedersen both ran toward the rear of the tractor-trailer, where Plaintiff alleges that they collided with one another. At least one witness asserts that Defendant Pedersen blocked Plaintiff's escape route. The accident happened "very quickly," in what one Bennett Rogers employee estimated to be three seconds. Plaintiff testified in deposition that "something" knocked him down, but that he does not know that it was Defendant Pedersen. He testified that he knows only that he "ran into somebody trying to get out of the way."
"Pipe stakes," which are metal stakes that are stuck into holes in the trailer bed to help prevent pipes from rolling off the trailer, were not used in the loading process, but could have prevented the accident. Grant Bennett testified in deposition that Defendant Pedersen denied having pipe stakes to use at the time of loading, and that it was Bennett Rogers's decision to proceed without using them.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. DISCUSSION
Plaintiff claims that Defendant Pedersen was negligent in several ways: (1) he engaged Plaintiff in conversation, distracting Plaintiff so that Plaintiff was slow in reacting to the falling pipe; (2) he failed to observe the falling pipe and warn Plaintiff of it; (3) he positioned himself in a dangerous location, blocking Plaintiff's escape route; (4) he collided with Plaintiff as Plaintiff attempted to escape; (5) he did not provide pipe stakes or demand their use; (6) he failed to suggest or demand that his tractor-trailer be parked in an open area where it could be loaded from either side of the trailer; and (7) he failed to object to the loading process of Bennett Rogers.
In order to prevail on any of his negligence claims, Plaintiff must offer evidence establishing that Defendant Pedersen owed a duty to him, that Defendant Pedersen breached that duty, that Plaintiff was injured, and that a causal connection existed between the duty breached and the injury sustained. See Napell v. Aten Dep't Store, Inc., 115 F. Supp.2d 1275, 1278 (D.Kan. 2000).
A. Duty
Defendants first claim that they are entitled to summary judgment because Defendant Pedersen did not have a duty to prevent Plaintiff from being harmed. Whether a duty exists is a question of law. Major by through Major v. Castlegate, Inc., 935 P.2d 225, 230 (Kan.Ct.App. 1997) (citing Durflinger v. Artiles, 673 P.2d 86, 91 (Kan. 1983)). The Kansas Supreme Court has indicated when it will recognize a duty:
The probability of injury by one to another is the basis for the creation of the duty to avoid injury, and every person is under a duty to exercise his senses and intelligence in his actions to avoid injury to another, and it is no excuse that the one who created the peril did not intend or expect an injury to result. . . . If the circumstances are such that a person of ordinary common sense who thought about it would recognize at once that if he did not use ordinary care in his own conduct with regard to those circumstances, his act would place another in danger, the duty to use ordinary care to avoid the danger arises. If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to take such care is negligence.
Rowell v. City of Wichita, 176 P.2d 590, 595 (Kan. 1947) (citations omitted).
Defendant Pedersen was involved in a situation where heavy pipes were being loaded onto his tractor-trailer truck. Mr. Meyerhoff acknowledged that loading pipes in the manner they were loaded in this case was "obvious[ly] hazardous." The court concludes that such a situation is one where Defendant Pedersen should have realized "that if he did not use ordinary care in his own conduct with regard to those circumstances, his act would place another in danger." See id. Based on the evidence before it, the court concludes that Defendant Pedersen had the duty to act with ordinary care.
What constitutes "ordinary care" is an issue for the jury. The summary judgment record includes evidence that Defendant Pedersen was a veteran in the trucking industry and considered the pipe-loading approach employed by Bennett Rogers workers to be "inappropriate" and "clumsy." There is also testimony suggesting that Defendant Pedersen had some role to fulfill in the loading process. Furthermore, there is evidence suggesting that Plaintiff was standing in a position that was a "very obvious hazard to anyone." All of this evidence is sufficient to create an issue of fact for the jury as to whether Defendant Pedersen acted with ordinary care.
The court acknowledges Defendants' arguments that any injury to Plaintiff was not foreseeable; that any danger was "obvious," eliminating any duty by Defendant Pedersen to warn Plaintiff; and that Defendant Pedersen was acting in the face of an emergency. All of these issues are proper for resolution by a jury, not by the court.
The court determines that, based on the evidence before it, Defendant Pedersen had a duty to act with ordinary care, but that the definition of "ordinary care" is an issue for the jury. The court denies summary judgment on this issue.
B. Proximate Cause
Defendants next argue that Defendant Pedersen's actions, as a matter of law, were not the proximate cause of Plaintiff's injuries. Again, Defendants argue, correctly, that Plaintiff's injuries must be reasonably foreseeable. Calwell v. Hassan, 925 P.2d 422, 428 (Kan. 1996). They also submit that Plaintiff's own actions (i.e., running into Defendant Pedersen) were an intervening cause of the accident. Plaintiff has presented enough evidence, however, to create an issue of fact for the jury as to whether his injuries were foreseeable. The court denies summary judgment on this issue.
C. Vicarious Liability
Finally, Defendants argue that because Defendant Pedersen is an independent contractor, Defendant Smithway Motor Xpress, Inc. is not responsible for his actions or inaction. Defendants cite common law principles of vicarious liability and respondeat superior in support of their argument. They attach a copy of their "Independent Contractor Agreement," which specifies that Defendant Smithway Motor Xpress, Inc. leased the tractor-trailer truck at issue from Defendant Pedersen and that the parties intended to create a carrier/independent contractor relationship. Plaintiff responds summarily, stating only that "[u]nder FMCSR 390.5, an Independent contractor is an employee for purposes of the Federal Motor Carrier Safety Regulations." 49 C.F.R. § 390.5 eliminates the common law distinction between employees and independent contractors for drivers of commercial motor vehicles, Consumers County Mut. Ins. Co. v. P.W. Sons Trucking, Inc., 307 F.3d 362, 366 (5th Cir. 2002), defining an employee as:
any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.
Defendants submit that § 390.5 only makes an independent contractor an employee for purposes of "following safety regulations." The court disagrees. The court's research has revealed several cases that have applied the statutory employment concept in other instances. See, e.g., Consumers County Mut. Ins. Co., 307 F.3d at 366 (holding that the parties intended for the § 390.5 definition of employee to apply in insurance policy procured by trucking company). The court determines that, based on the evidence presently before it, federal law may impose a statutory employment relationship on Defendants. Although Plaintiff failed to direct the court to any relevant case law on the matter, the court's research has revealed the following body of law.
In the 1950s, trucking companies customarily used independent truck drivers as independent contractors. Fuller v. Riedel, 464 N.W.2d 97, 101 (Wis.Ct.App. 1990) (citing Wilson v. Riley Whittle, Inc., 701 P.2d 575, 578-79 (Ariz.Ct.App. 1984)); Wilson, 701 P.2d at 578. The drivers would lease their tractor-trailer trucks to a trucking company, and then drive the trucks for the company. By structuring the relationship in such a way, the trucking companies could insulate themselves from liability for the drivers' negligent acts. Empire Fire Marine Ins. Co. v. Guar. Nat'l Ins. Co., 868 F.2d 357, 362 (10th Cir. 1989); Fuller, 464 N.W.2d at 101 (citing Wilson, 701 P.2d at 578-79); Wilson, 701 P.2d at 579. To thwart this practice, Congress enacted 49 U.S.C. § 304(e), which was later reenacted as § 11107 and, most recently, § 14102. Empire Fire Marine Ins. Co., 868 F.2d at 362; Fuller, 464 N.W.2d at 101 (citing Wilson, 701 P.2d at 578-79); Wilson, 701 P.2d at 578-79. This statute and its regulations were "intended to put the use and operation of leased equipment on a parity with the use of equipment owned by the authorized carrier and operated by its own employees, in effect making the driver of the leased unit a statutory employee of the lessee." Transp. Indem. Co. v. Carolina Cas. Ins. Co., 652 P.2d 134, 136 (Ariz. 1982).
Although it appears that under Tenth Circuit law, there may be an instance where a trucking company would not be held strictly liable for the actions of its drivers, Dietrich v. Coast to Coast Moving Storage Co., No. 94-2103, 1995 WL 355246, at *8-9 (10th Cir. June 14, 1995), there is at least a rebuttable presumption of a statutory employment relationship between a trucking company and its drivers. Id.; Rodriguez v. Ager, 705 F.2d 1229, 1233-36 (10th Cir. 1983). But see Parker v. Erixon, 473 S.E.2d 421, 423-24 (N.C.Ct.App. 1996) (classifying Rodriguez as a case that held that there is an irrebuttable presumption of a statutory employment relationship and reviewing majority and minority views on statutory employment relationship); Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc., 569 N.E.2d 1049, 1052-53 (Ohio 1991) (same); Patrick Phillips, Note, Common Law Respondeat Superior Versus Fed. Regulation of Motor Carrier Leases: Court Interpretation of the Interstate Commerce Comm'n Regulations of Motor Carrier Lease Requirements, 24 Okla. City U. L.Rev. 383, 394, 393-411 (1999) (same). Defendants have neither expressly argued nor met their burden of showing that such a relationship does not exist in this case.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' motion for summary judgment (Doc. 31) is denied.
IT IS FURTHER ORDERED that Plaintiff's motion to strike (Doc. 37) is denied as moot.
Copies of this order shall be transmitted to counsel of record.