Opinion
4:19-CV-3030
2021-06-07
Jaime FORNARI, Plaintiff, v. Jose Miguel Figeredo GUILLEN, et al., Defendants.
MEMORANDUM AND ORDER
The parties and claims in this complex civil case are numerous, but only a sliver of the case is before the Court now: the counterclaim brought by Beco, Inc. against Jaime Fornari. Fornari moves for summary judgment on that claim. Filing 210. The Court will grant Fornari's motion.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id.
In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis Cty. , 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC , 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson , 643 F.3d at 1042.
BACKGROUND
This case arises out of a terrible traffic accident on eastbound Interstate I-80 near Aurora, Nebraska, involving six tractor-trailer rigs and one passenger vehicle. Filing 211 at 2-3. Specifically, the seven vehicles were:
• A tractor-trailer rig reportedly driven by Jose Miguel Figeredo Guillen, an employee of Soler & Soler Hauling.
• A tractor-trailer rig reportedly driven by Tanraj Singh Bookher, an employee of Apple Transport, LTD.
• A tractor-trailer rig driven by Martin Hotton, an employee of Gerry Mercer Trucking, Inc.
• A tractor-trailer rig driven by Jeffrey Clark, an employee of Beco.
• A tractor-trailer rig driven by John Lanz, an employee of A-Plus Trucking, LLC.
• A tractor-trailer rig driven by Shelly Lanz (John's wife), also an employee of A-Plus.
• A silver Jeep Cherokee driven by Fornari.
Filing 211 at 2-3. Fornari's passenger, his fiancé, was killed in the accident. Fornari sued the other drivers involved and their employers for negligence. See filing 52. Cross-claims and counterclaims have also been filed, but the relevant claim is Beco's counterclaim against Fornari, alleging that he
was negligent in the following particulars, including: failing to exercise due
care while operating his motor vehicle on the Interstate Highway; failing to maintain proper control of his vehicle or to avoid impacting the rear of the BECO trailer; failing to operate his vehicle at a safe and a reasonable speed on the date and time at issue.
Filing 58 at 6. Beco alleges that its tractor-trailer "was impacted by the Jeep operated and owned by plaintiff causing damage to the BECO tractor/trailer in an amount to be determined at trial." Filing 58 at 6. Fornari disputes that allegation, and so moves for summary judgment dismissing Beco's counterclaim. Filing 210.
All of the witnesses to the accident were also involved in it, and while their accounts are broadly similar, there is uncertainty on key details. Start with the description in the Nebraska State Patrol investigator's accident report—it sets the stage, even if some of the witnesses didn't fully agree with it. The State Patrol investigator concluded that Figeredo's Soler & Soler truck was driving slowly because of winter weather conditions—everyone agrees the roads were poor on the morning of the accident—and Bookher's Apple Transport rig struck the back of the Soler & Soler trailer. Filing 212-2 at 2. From there, Hotton's Gerry Mercer rig ran into the Apple Transport rig. Filing 212-2 at 2. Fornari's Jeep came to a stop behind those collisions, and according to the accident report, John Lanz's A-Plus rig struck Shelly Lanz's A-Plus rig and then the Jeep. Then Clark's Beco rig, according to the accident report, ran into John's A-Plus rig. Filing 212-2 at 2. The vehicles came to rest, according to the accident report, like this:
?
Filing 212-2 at 2. And that diagram is generally consistent with a photo of the accident scene taken from a nearby traffic camera: ?
Filing 192-1 at 68; see filing 220-3 at 4.
The beginning of the accident report's description of events, at least, is relatively uncontroversial—no one disagrees that the first impact was Apple Transport hitting the back of Soler & Soler. Figeredo didn't remember much about the accident—he just said that he was driving his Soler & Soler rig slowly and something hit his trailer. Filing 212-6 at 10. He didn't even see what hit him. Filing 212-6 at 9, 11. But he didn't lose control of his rig—the first collision of the accident was fairly minor—and he just pulled over onto the shoulder out of harm's way. See filing 212-6 at 12, 18. He saw that there had been more collisions behind him, but he didn't actually see any of them occur. Filing 212-6 at 18. And he never saw the Jeep. Filing 212-6 at 18.
There is some ambiguity in the record about whether Figeredo was actually driving the rig. Two of the rigs—the Soler & Soler rig and the Apple Transport rig—had co-drivers in the cab, and there was some confusion as to who was actually driving each rig at the time of the accident. See filing 212-2 at 1; filing 212-6 at 15. Both Apple Transport drivers were deposed, and it seems like that was a simple miscommunication with police at the scene of the accident. See filing 212-8 at 6. But the Court doesn't have a deposition from Figeredo's co-driver, and Figeredo's inability to recall the details of the accident along with log entries indicating that he wasn't the driver are reason to at least question who was driving. But it doesn't matter much at this point, when addressing the dispute between Fornari and Beco, who was actually driving the Soler & Soler rig.
Bookher, the Apple Transport driver, described that impact much the same way, although he claimed that it had happened because the Soler & Soler rig braked abruptly. Filing 212-7 at 12. But he admitted striking the back of the Soler & Soler trailer. Filing 212-7 at 12. After that, he felt an impact from behind, then another, and then a third impact to the driver's side of his truck that occurred significantly later. Filing 212-7 at 15, 25. In fact, the third impact happened so much later that Bookher's co-driver, who had been asleep in the sleeper berth, had already woken up and gotten out of the truck. Filing 212-7 at 15; see filing 212-8 at 5-6. Neither of them ever saw the Jeep, even after the accident. Filing 212-7 at 19-20; filing 212-8 at 7-10. Bookher's tractor and trailer ended up in the right-hand lane of the Interstate. Filing 212-7 at 24. Hotton's Gerry Mercer rig was the next into the pile-up: Hotton said the Apple Transport trailer had come across the road in front of him so he "had nowhere to go." Filing 212-4 at 8. So far as he was aware, the only vehicle he collided with (or that collided with him) was the Apple Transport rig. Filing 212-4 at 11, 23. But he was also "just hanging on" given the situation, and might not have felt a separate impact because he was sliding off the right side of the road into the ditch. Filing 212-4 at 25. The Beco rig eventually came to rest up against the right-hand side of Hotton's trailer, but he hadn't seen it before the accident and had no idea how it had been damaged. Filing 212-4 at 11, 15. Hotton, too, never saw Fornari's Jeep. Filing 212-4 at 8-9.
It's at this point that the parties really begin disputing the facts, most pertinently about when and how the Beco rig became involved. Start with John Lanz, whose A-Plus rig was, at least according to the State Patrol, the next to collide with another. John was driving in tandem with Shelly, who was in the lead, both in the right lane. Filing 212-3 at 8, 10; see filing 192-1 at 13. He saw Shelly braking (she had seen the accident up ahead, but John didn't know that yet) and she had also activated her four-way emergency flashers. Filing 212-3 at 7, 28. John thought he probably had enough time and distance to stop behind her, but it would be close, so he decided to make sure by moving into the left-hand lane. Filing 212-3 at 9-10, 30. That, it turned out, was a mistake: the left lane was icy. Filing 212-3 at 9. So when he hit the ice, and was braking on ice, his trailer started to "dog track" back into the other lane, and it "snagged" Shelly's trailer. Filing 212-3 at 11. Shelly had, by that time, come to a complete stop. Filing 212-3 at 11.
John thought, at this point, that there were three rigs that he was "sliding up to." Filing 212-3 at 14. But that doesn't seem to have included the Soler & Soler rig, which had pulled onto the shoulder ahead—John said he walked around the other rigs after the accident and "they were all damaged pretty good", which wouldn't describe the Soler & Soler rig. See filing 212-3 at 20. And John later said that he hadn't counted the rig "[w]ay up there in front" as being involved in the accident. Filing 212-3 at 23. John also never saw another tractor-trailer pass him from behind. Filing 212-3 at 13-14. In other words, it's entirely possible from John's testimony that another tractor-trailer—Beco's—crashed into the pile before John got there.
John also reported seeing other trucks behind him, one of which was passing the other, and a "little grey vehicle"—Fornari's Jeep—in front of Shelly in the left lane. Filing 212-3 at 10, 20. John didn't see the brake lights or turn signal illuminated on the Jeep. Filing 212-3 at 14. John decided that to avoid the Jeep, he needed to go into the median ditch. Filing 212-3 at 12, 20, 24. He ended up there, against a cement wall. Filing 212-3 at 12, 20. John thought, oddly, that "it looked like the Jeep was bouncing back towards me, or moving backwards slowly, or something, as I went by." Filing 212-3 at 20-21.
John's truck came to rest in the ditch. John never felt another vehicle impact his. Filing 212-3 at 13. John didn't think his tractor or trailer hit Fornari's Jeep. Filing 212-3 at 13. But parts of his trailer, he thought, could have hit the Jeep because his trailer's axles had been torn out from under his trailer by the collision with Shelly's trailer. Filing 212-3 at 13. And he couldn't say for sure his trailer hadn't hit anything else. Filing 212-3 at 21. He couldn't say what hit the Jeep, though, because he didn't see it happen. Filing 212-3 at 13, 20. He did say that Shelly didn't hit the Jeep. Filing 212-3 at 13. And something had torn John's trailer apart, spilling his load of potatoes onto the median and road. See filing 212-9 at 23-27.
Shelly agreed she didn't hit the Jeep, although she didn't see who did. Filing 220-2 at 17, 37-38, 45-46, 52. She explained that the first thing she had seen about the accident was an "explosion of snow" in front of her on the Interstate, so she braked hard, not wanting to "get involved" in whatever was happening. Filing 220-2 at 15. Then she "noticed a little vehicle"—Fornari's Jeep—in front of her, but moving. Filing 220-2 at 16. She said she was in the right lane, and the Jeep was moving to the left. Filing 220-2 at 17. It was, the last time she saw it until after the accident, "straddling" the lane divider. Filing 220-2 at 30. According to Shelly, the Jeep's brake lights weren't illuminated, nor was the turn signal. Filing 220-2 at 36-37, 45. She said she was specifically paying attention to the brake lights. Filing 220-2 at 36. Shelly said she was thinking, about the Jeep, "don't move from in front of me" because she thought she had it "protected." Filing 220-2 at 36.
As the snow ahead of her settled, Shelly also saw "a bunch of trucks sitting sidewards in the road." Filing 220-2 at 17, 44. Then, Shelly saw John's tractor in her rear-view mirror, coming up beside her in the left lane. Filing 220-2 at 20. She had come to a complete stop by that point. Filing 192-1 at 34; filing 220-2 at 51. John's trailer struck her trailer, pushing her forward a few feet, and John's rig jackknifed into the median. Filing 192-1 at 16, 39-40; filing 220-2 at 23-24, 51. John's rig, from what Shelly saw, came "in contact" with the other rigs already at rest in the median—there were, according to Shelly, "a couple of them." Filing 220-2 at 24. (It may be relevant to note that only John's truck and the Beco truck eventually ended up in the median—the Apple Transport and Gerry Mercer trucks came to rest on the right side of the road, not the left—although given the effect of several collisions, what Shelly saw at this point might not reflect any of the trucks’ final resting points.)
Contrary to the State Patrol accident report, Shelly never saw another rig come into contact with John's. Filing 220-2 at 25. And she was, understandably, watching her husband's rig, not Fornari's Jeep, so she didn't really see what happened to the Jeep—only that it ended up ahead of her and to the right, while John's rig was ahead and to the left. Filing 220-2 at 25. She also said she saw three other tractor-trailer units at rest, but didn't know whose they were. Filing 220-2 at 25; see filing 192-1 at 27. (Again, it's not clear whether the Soler & Soler rig would have been included in that count.)
Shelly didn't see what tore apart John's trailer, although she thought it was the collision between his trailer and hers. Filing 192-1 at 18; filing 220-2 at 28. She didn't believe John's tractor struck the Jeep, because the front of his truck had been headed for the inner median. Filing 220-2 at 29. But she couldn't say John's trailer hadn't hit the Jeep. Filing 220-2 at 30. And she didn't see any other vehicle hit the Jeep. Filing 220-2 at 45-46. She also didn't see any other tractor-trailer pass her and come to rest in front of her. Filing 220-2 at 48-49, 52. (Again, Shelly's testimony seems to suggest the Beco rig might have collided with the others before John's did.)
Clark, the Beco driver, described his first view of the accident much like Shelly did—he cleared an overpass and saw "a big snow whiteout" ahead of him. Filing 212-5 at 17, 42. Then, he said, as the snow settled in front of him he saw that "trucks had jackknifed and blocked the interstate," and he couldn't stop even though he (at least in his opinion) was driving at a reasonable speed. Filing 212-5 at 17, 25, 29. He saw that the right side of the Interstate was blocked so he moved to the left, thinking perhaps he could get past. Filing 212-5 at 17. He took his foot off the accelerator and tapped the brakes gently to try and slow down. Filing 212-5 at 42, 46. But as he got closer he saw that the entire Interstate was blocked so he headed for the median. Filing 212-5 at 17. He hit his brakes, he slid, he hit a trailer that was blocking the Interstate, and then ended up in the median. Filing 212-5 at 17, 22. He didn't know which trailer he hit. Filing 212-5 at 61. Clark said he never saw a silver Jeep, and didn't collide with a Jeep because, he said, "if I had hit – I had struck a Jeep, I would have known it." Filing 212-5 at 19, 21, 26, 31.
Clark said that after he came to rest, a few seconds later, something else struck his truck: he said it sounded "like a truck came apart or something and a trailer slammed me in the rear of my cab," from the left side, but he was admittedly dazed and might even have briefly lost consciousness. Filing 212-5 at 20, 28, 40. He was quite clear, however, that whatever struck his truck did so after his rig had come to a stop. Filing 212-5 at 20. And he later said that the potatoes on the road came from the rig that struck him after he'd stopped, which would make it John's A-Plus rig. Filing 212-5 at 32-33, 36.
So, to summarize: the State Patrol investigator reported that Bookher's Apple Transport rig struck Figeredo's Soler & Soler rig, then Hotton's Gerry Mercer rig struck Apple Transport, then John Lanz's A-Plus rig struck Shelly Lanz's A-Plus rig and Fornari's Jeep, then Clark's Beco rig ran into John's rig. See filing 212-2. But that's disputed, and it's not even clear whether the investigator spoke to all the witnesses about how the accident happened. See filing 212-3 at 12-13; filing 212-5 at 31; filing 212-7 at 16; filing 220-2 at 31. In fact, based on the witness testimony before the Court, the most consistent version of the narrative—although not conclusively established—seems to be that after Apple Transport struck Soler & Soler and Gerry Mercer struck Apple Transport, it was the Beco rig that hit Gerry Mercer next, and then John Lanz's rig crashed into the pile.
Of course, none of the testimony described above shows what happened to Fornari's Jeep in the middle of all that—which is primarily why the parties to this motion disagree. Fornari's deposition, if it's been taken yet, isn't in the record, but his declaration avers that he saw the collisions ahead of him and slowed down, then collisions from behind him resulted in his Jeep being struck "violently from the rear." Filing 212-10 at 2. Fornari avers, somewhat conclusorily, that he wasn't negligent, and that he was traveling at a reasonable speed, safe distance, and in full control of his vehicle before he was struck from behind. Filing 212-10 at 2.
Finally, an accident reconstruction expert prepared a report to counsel for Fornari's fiancé’s estate. See filing 192-1 at 65. The accident reconstructionist reviewed the State Patrol report; photographs from the scene; the depositions described above; engine control module data retrieved from the Soler & Soler, Apple Transport, Beco, and John Lanz's A-Plus trucks; and airbag control module data retrieved from Fornari's Jeep. Filing 192-1 at 67. His report agrees more with the State Patrol's conclusions. Compare filing 212-2 at 2, with filing 192-1 at 83.
The estate is separately pursuing claims on behalf of Fornari's fiancé in case no. 8:19-cv-565, which has been consolidated with this case. But because Beco didn't counterclaim against the estate, no motions are pending in that case.
The report particularly notes the severe damage sustained by the Beco tractor, all the way up to the sleeper berth on the cab and the wind deflector on top, which the report says was consistent with hitting an object tall enough to produce that damage. Filing 192-1 at 74. The amount of damage, the report says, is consistent only with the Beco tractor colliding with John's trailer, because John's trailer was the only other object that sustained a comparable amount of damage. Filing 192-1 at 74.
Also significant was the Jeep airbag control module data, which indicated that the Jeep sustained three impacts in quick succession: two severe impacts from the rear, then a less severe impact to the front. Filing 192-1 at 75, 80-82. That was also consistent with the severe damage to the back of the Jeep, and relatively minor damage to the front. See filing 192-1 at 75. The Jeep, according to the report, had almost come to a stop before the first impact, traveling at only 4 miles per hour. Filing 192-1 at 81. The first impact to the rear, then the second only 1.52 seconds later, propelled the Jeep forward into a third, front-end collision 1.36 seconds after that. Filing 192-1 at 81-82.
Taking the evidence together, the accident reconstructionist opined that the sequence of events was:
• The Soler & Soler rig braked and was struck from behind by the Apple Transport truck.
• Soler & Soler pulled to a controlled stop on the shoulder, while Apple Transport slid into the right-hand ditch and was blocking both lanes of the Interstate.
• The Gerry Mercer rig collided with Apple Transport, both rigs slid into the right-hand ditch, and both rigs were blocking the Interstate.
• Shelly Lanz's A-Plus rig and Fornari's Jeep stayed under control and held up short of the accident.
• John Lanz's A-Plus rig swerved to avoid Shelly's, struck her trailer, and then drove into the median.
• Beco's rig struck Shelly's trailer, then John's trailer, passing Shelly and crashing through John's trailer, breaking it in two.
• Beco struck Fornari's Jeep twice from the rear, propelling it into the ditch and the Gerry Mercer trailer.
• Beco glanced off the Gerry Mercer trailer before coming to rest.
Filing 192-1 at 83.
DISCUSSION
Fornari's argument, in a nutshell, is that there's no evidence he did anything negligent and no evidence his Jeep ever struck the Beco trailer. See filing 211 at 13-14. So, he says, there's no evidence that he could be liable for any damages to Beco. Filing 211 at 16. Beco argues, though—and this much is correct—that there's at least some evidence the Beco rig might have struck the Gerry Mercer rig before John Lanz's rig ran into the pile. See filing 219 at 3. So, Beco suggests the Jeep might have been struck by John's broken trailer, throwing the Jeep backwards where the rear of the Jeep hit the rear of the Beco trailer. Filing 219 at 10. Then the Jeep bounced off and came to rest against the Gerry Mercer trailer. Filing 219 at 10. Again, there may be evidence supporting that—and if that's what happened, Beco says, it's possible that Fornari's Jeep damaged Beco's trailer. See filing 219 at 11-13.
Beco's argument, however, is presented as if the question is which vehicle impacted which vehicle, causing what damage. But the parties to this case aren't vehicles, and this isn't a high school physics test. Rather, the parties are drivers and their employers, and the question is which driver's negligence was the legal cause of which party's damages.
A simple hypothetical will illustrate the difference: Suppose a driver negligently runs a stop sign, and a second driver who is legally crossing the intersection broadsides the first. The second driver is the one who actually impacted the first, but the first driver's negligence is the legal cause of the accident. See Chlopek v. Schmall , 224 Neb. 78, 396 N.W.2d 103, 108 (1986) ; see also Krul v. Harless , 222 Neb. 313, 383 N.W.2d 744, 750 (1986). Now suppose—to bring the hypothetical a little closer to a possible scenario in this case—both drivers careen out of control after the first collision and impact other vehicles. Again, in that scenario, the first driver's negligence is still the legal cause of all the damage, regardless of which vehicles impacted which.
That's not to say that Fornari did anything as obviously negligent as running a stop sign, or that he's even potentially a cause of the accident. Given the evidence described above, there's more than enough potential negligence to go around. But it does illustrate why the issue on summary judgment isn't strictly whether there's evidence that Fornari's Jeep impacted Beco's trailer. Rather, the issue is whether there's evidence from which a jury could conclude that (1) Fornari was negligent, at least in part, and (2) Fornari's negligence proximately caused at least some of Beco's damages.
There is perhaps evidence from which a jury could find Fornari negligent in some way. After all, the only witnesses who saw his Jeep before the accident—Shelly and John—said they didn't see active brake lights or turn signals on the Jeep, and Shelly said it was changing lanes. It's also possible, of course, that they were mistaken—or that, being closer, Fornari saw the accident first and had already come to a near-stop before John and Shelly saw him. That also would be consistent with the Jeep's airbag control unit data, at least according to the accident reconstruction report. But regardless, for purposes of summary judgment, there's at least a scintilla of evidence that Fornari could have been negligent in some small respect.
What's missing, though, is any evidence connecting such negligence to any collision with the Jeep, much less any damage to Beco. There isn't, for instance, any testimony from either driver of the two vehicles most likely to have struck the Jeep—John's A-Plus rig or Clark's Beco rig—that they were unable to avoid Fornari's Jeep because it didn't signal a lane change. There's no evidence that Fornari was involved in the accident because he didn't brake when he should have—in fact, all the evidence is that Fornari slowed down appropriately and successfully avoided the accident until something hit him. There's just nothing from which the jury could find that any lapse on Fornari's part caused him to be struck from behind—and without that, there's no evidence Fornari's negligence caused damage to Beco, even if the Jeep ultimately did impact Beco's trailer. It simply wasn't Fornari's fault that his Jeep was struck from behind and propelled out of control.
In arguing to the contrary, Beco focuses on the lane change that Shelly said she saw. Filing 219 at 13. Beco suggests Fornari was negligent because he moved from a place of safety into the path of danger—in Beco's scenario, into the path of John's A-Plus rig—and whether Fornari should have seen John's A-Plus rig coming is a genuine issue of material fact. But it's not. It is true that when a driver in a place of safety sees, or could have seen, the approach of a moving vehicle in close proximity to him and moves from the place of safety into the path of such vehicle, and is struck, his own conduct constitutes contributory negligence. Hayes v. Anderson Concrete Co. , 186 Neb. 771, 186 N.W.2d 477, 479 (1971) ; see McKenzie v. Ladd Trucking Co. , 214 Neb. 209, 333 N.W.2d 402, 404-05 (1983). But there's no evidence that the right lane in front of Shelly's truck was actually a place of safety, or that a reasonable driver in that situation would have thought it was. Shelly thought so briefly—but remember, that was before John ran into her and then jackknifed in front of her. And Fornari had no choice but to come to a stop on the Interstate because the road ahead of him was blocked. Stopping on the Interstate isn't a situation in which the concept of a "place of safety" has a lot of vitality.
The more relevant legal concept might be the "last clear chance": that notwithstanding the previous negligence of an alleged tortfeasor, if at the time the injury was done it might have been avoided by the exercise of reasonable care on the part of the injured party, then the injured party is liable for the failure to exercise such care. See Laird by Laird v. Kostman , 229 Neb. 114, 425 N.W.2d 607, 610 (1988) ; see also Kozeny v. Miller , 243 Neb. 402, 499 N.W.2d 75, 80 (1993). But that doctrine is not applicable where the emergency is so sudden that there is no time to avert the accident—the last clear chance must be a clear one. Laird , 425 N.W.2d at 611 ; see Muirhead v. Gunst , 204 Neb. 1, 281 N.W.2d 207, 209 (1979). There's no evidence here from which a jury could find that Fornari had a last clear chance to avoid whatever struck his Jeep from behind.
In sum, Beco has directed the Court to no authority suggesting that a driver avoiding an accident in front of him can be negligent for failing to anticipate and somehow evade an out-of-control tractor-trailer behind him. Accordingly,
IT IS ORDERED:
1. Fornari's motion for summary judgment (filing 210) is granted.
2. Beco's counterclaim against Fornari is dismissed.
3. Beco is terminated in its role as counterclaimant and Fornari is terminated in his role as counterdefendant.