United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. Markovich, United States Magistrate Judge
Simon Russell filed this action on November 13, 2014 against
Defendants Mauricio Alberto Flores and Werner Enterprises,
Inc. (Doc. 1). Plaintiff later moved to voluntarily dismiss
Defendant Flores, and subsequently filed a new action against
Flores on February 16, 2016, in case number CV-16-00088-RM.
On August 16, 2016, the Court entered an Order granting
Plaintiff's motion to consolidate the two actions.
Plaintiff alleges claims for negligence, negligence per se,
and willful or wanton conduct, based on an auto accident in
which a truck driven by Defendant Flores and owned by
Defendant Werner collided with Plaintiff's vehicle,
causing him injury.
March 15, 2016 Defendant Werner filed a Motion for Partial
Summary Judgment re: Punitive Damages and Negligent Hiring
(Doc. 56), and on May 5, 2016 Defendant Werner filed a second
Motion for Partial Summary Judgment re: Negligent Hiring
(Doc. 74). On August 22, 2016, Defendant Flores filed a
notice of joinder to Defendant Werner's Motion for
Partial Summary Judgment re: Punitive Damages and Negligent
Hiring (Doc. 56). (Doc. 96). The motions have been fully
briefed, and the Court heard oral argument from the parties
on December 22, 2016.
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to Magistrate Judge Markovich for a
Report and Recommendation. For the reasons set forth below,
the undersigned recommends that the District Judge enter an
order granting in part and denying in part Defendant's
Motion for Partial Summary Judgment re: Punitive Damages and
Negligent Hiring (Doc. 56) and granting Defendant's
Motion for Partial Summary Judgment re: Negligent Hiring
FACTUAL AND PROCEDURAL BACKGROUND
evening of May 22, 2014, Plaintiff was driving westbound on
US-70 in his Toyota pick-up truck. (Doc. 1 at 3 ¶ 14).
US-70 is a winding, non-divided, two-lane road, with no
street lights. (Doc. 1 at 4 ¶ 16). Defendant Flores was
driving eastbound on US-70 in a tractor trailer owned by
Defendant Werner. (Doc. 1 at 3 ¶ 13). The parties do not
dispute that Flores crossed the double-yellow line in a
marked no-passing zone and drove in the westbound land,
crashing his tractor trailer into Plaintiff's vehicle.
(Doc. 1 at 4 ¶ 19).
crash occurred at approximately 11:30 p.m. on a dry and clear
night. (Doc. 1 at 4 ¶ 15). Flores testified that at the
time of the crash, there were vehicles behind him and in
front of him. (Doc. 75 Ex. B at 9). He stated that in order
to pass the other vehicles, he would have to go over 65 miles
per hour. Id. However, his truck was governed at 65
miles an hour, and he could not go over that speed.
Id. Flores stated that he was not trying to pass any
other vehicles. (Doc. 110-1 Ex. B at 13). Flores also stated
that he did not remember driving on US-70. (Doc. 75 Ex. B at
9; Doc. 57-1 Ex. B at 13).
told the police officers at the scene that he had a tire
failure and that is why he was in the westbound lane. (Doc.
75 Ex. B at 10-11; Doc. 100-1 Ex. 1 at 7). He remembers
moving into the westbound lane and crossing the double yellow
lines so that he could pull over to the open area and stop
his vehicle because he believed he had a tire failure. (Doc.
75 Ex. B at ¶ 13; Doc. 57-1 Ex. B at 14). Flores does
not remember what type of tire failure. (Doc. 57-1 Ex. B at
19). Officer Benton completed an Arizona Crash Report and
stated that “there were no pre-impact skid marks or
evidence of tire failure on the roadway or on the tires for
either [Plaintiff or Defendant Werner's vehicle.]”
(Doc. 100-1 Ex. 1 at 8). Plaintiff's accident
reconstruction expert, Patrick R. DeJonghe, opined that the
flat to Flores' right front tire resulted from the
collision impact and did not occur before the crash. (Doc.
100-1 Ex. 9 at 86). DeJonghe also opined that Flores was
traveling in the westbound lane for approximately 1 minute
before the crash. (Doc. 100-1 Ex. 10 at 103). An affidavit
from Plaintiff's counsel, Greg Sakall, notes that
Defendants have not disclosed an expert to testify that
Werner's tractor had a pre-impact tire failure. (Doc.
100-1 Ex. 8 at 80).
has no memory of the accident. (Doc. 57-1 Ex. C at 24). He
remembers driving on US-70 prior to the crash, and then the
next thing he remembers is about a week later, being wheeled
into a van to go from UAMC to HealthSouth. Id.
John Ship was driving a tractor trailer in front of Defendant
Flores at the time of the accident. There was a long line of
cars behind him, and Ship noticed Flores' truck move
completely into the westbound lane and begin to pass him.
(Doc. 100-1 Ex. 6 at 65). Ship testified that Flores'
truck was gradually passing him and that they were going the
speed limit uphill. (Doc. 110-1 Ex. A at 4). The road was
dark and windy, they were in a no passing lane, and there was
no way to see over the hill. (Doc. 100-1 Ex. 6 at 66). The
front of Flores' truck got up to the front door of
Ship's truck and then Plaintiff's vehicle came over
the hill. (Doc. 110-1 Ex. A at 5). Ship stated it was only
“seconds” from the time Plaintiff's truck
crested the hill to the time of impact. Id. Ship did
not notice Flores in the left lane passing any other vehicles
prior to the accident. Id. at 8. Flores stated that
he did not remember passing Ship's vehicle. (Doc. 75 Ex.
B at 11).
William Richardson was driving a tractor trailer eastbound on
US-70 at the time of the accident. Richardson stated that
traffic was moving along, “[a]nd all of a sudden Werner
decided to jump out across those two yellow lines and
passed.” (Doc. 100-1 Ex. 7 at 73). Richardson stated
that there were “four cars ahead of [Flores] and
another big truck ahead of him.” Id.
Richardson saw Flores pull “all the way into the
westbound lane” and stated that Flores “was
trying to pass all the traffic.” Id.
Richardson did not see the Werner truck make any erratic
movement like there was something wrong with it; it was
“steady and straight.” Id. at 77.
Courtney Schuneman-Patel submitted an affidavit and stated
that she and her husband and daughter were driving eastbound
on US-70 and came up behind the Werner truck. (Doc. 100-1 Ex.
5 at 57). She estimated they were behind the Werner truck for
at least 5 minutes. Id. Schuneman-Patel stated that
it was dark out, there were no overhead lights on the road,
there was traffic, the road was narrow and winding with only
one lane in each direction, and they were driving up and down
hills. Id. at 58. She “saw the Werner truck
pull out a few times into the oncoming lane to see if he
could pass. He would pull out a little ways and then come
back into the eastbound lane. This happened at least a few
times over a few miles.” Id. Schuneman-Patel
recalled that “[w]hen the Werner truck finally pulled
all the way out into the westbound lane and started passing
the 18 wheeler in front of him, . . . we had just passed a
no-passing sign and  there were double yellow lines on the
road.” Id. She “saw the Werner truck
gradually begin overtaking the truck in the eastbound
lane” and “didn't see the Werner truck make
any sudden movements.” Id.
“Approximately 10 seconds after the Werner truck moved
into the oncoming westbound lane and began passing, ”
Schuneman-Patel saw “headlights of a westbound vehicle
come over the hill.” Id. at 59. “Just
before impact, [Schuneman-Patel] saw the Werner truck veer to
the left shoulder and hit the pick-up.” Id.
After the crash, Schuneman-Patel called 911 and then she
assisted Plaintiff until the EMTs arrived and he was
transported into a helicopter. Id. at 59-61. She
stated that while she “was at the collision scene [she]
saw the two Werner drivers standing around” and
“never saw them help or offer to help anyone.”
Id. at 61.
his deposition, Flores stated that “[y]ou cannot cross
any solid yellow lines in any situations . . . it's
against the law, ” and agreed that to do so would be
extremely hazardous and very dangerous in any type of
vehicle. (Doc. 75 Ex. B at 12). He believes that his decision
to go to the opposite side of the road to pull over caused
the crash, and he thought that there was room to safely pull
over to the opposite side of the road. (Doc. 57-1 Ex. B at
21). Jaime Maus, Vice President of Safety and Compliance at
Werner, testified that “Werner drivers are taught to
obey the rules of the road so that they do prevent accidents
on the roadways.” (Doc. 100-1 Ex. 3 at 42). In response
to the questions “Do you have any rules that Werner
truck drivers should not pass other tractor-trailers on
two-lane highways?” and “Do you have any rules
that Werner drivers should not pass other tractor-trailers
while they are going uphill on a two-lane highway?”,
Maus stated that “It's up to the driver and what
they are encountering at that time.” Id. at
46- 47. She explained that they do not have a rule because
“it depends on the speed, it depends on the hill, the
steepness, it just depends on other factors, and it's not
against the law to pass when applicable.” Id.
Werner admits that Flores was acting within the course and
scope of his employment when the accident occurred. (Doc. 7
at 2 ¶ 5). Werner further admits that Flores
“failed to exercise reasonable care and fell below the
standard of care in the operation of the freightliner
truck.” (Doc. 12 at 3 ¶ 19). At oral ...