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Russell v. Flores

United States District Court, D. Arizona

January 9, 2017

Simon Russell, Plaintiff,
v.
Mauricio Alberto Flores, et al., Defendants.

          REPORT AND RECOMMENDATION

          Eric J. Markovich, United States Magistrate Judge

         Plaintiff 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.

         On 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.

         Pursuant 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 (Doc. 74).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On the 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).

         The 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).

         Flores 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).

         Plaintiff 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.

         Witness 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).

         Witness 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.

         Witness 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.

         During 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. at 47.

         Defendant 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 ...


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