Opinion
1:03CV625LG-RHW.
July 1, 2005
BEFORE THIS COURT are the Motion of Defendants, Billy Barnes Enterprises, Inc. and Michael Johnson, for Summary Judgment [60], and the Plaintiffs' Motion for Leave to Identify Two Expert Witnesses Out of Time [69], filed in the above-captioned cause on April 12, 2005, and May 19, 2005, respectively. The motions are fully briefed. For the reasons set forth below, the Defendants' motion for summary judgment should be granted, and the Plaintiffs' motion for leave to designate witnesses out of time should be denied.
FACTS AND PROCEDURAL HISTORY
On March 29, 2000, Plaintiff James Walker was riding as a passenger in a 1999 Toyota Four-Runner with Defendant Stephen Edward Safran. They were traveling west on I-10 in Harrison County, Mississippi, at a speed of about 75 miles per hour. They were traveling behind a tractor-trailer rig when suddenly a large piece of tire tread came off of a tire on the trailer into the path of the Toyota. Safran attempted to avoid hitting the tire tread and the Toyota overturned, ejecting Walker, who was not wearing a seatbelt. Walker suffered serious injuries as a result of the accident.
The tractor was owned by Defendant Billy Barnes Enterprises, Inc., and was being driven by Defendant Michael Johnson on March 29, 2000. Prior to the accident, Bruce Harris, a maintenance mechanic employed by Barnes, conducted two inspections on the trailer which was being pulled by Johnson on March 29, 2000. On February 8, 2000, Harris conducted an annual inspection during which he checked the tire tread depth, tire inflation, and the side walls of the tires for cuts and dry rot. On March 28, 2000, Harris again inspected the trailer. The inspection included checking the tread depths of the tires, checking the air pressure in the tires with a tire pressure gauge, and checking to make sure that the tires did not have any knots or cuts. On the morning of March 29, 2000, Defendant Johnson conducted a pre-trip inspection before leaving his home. The inspection included a visual inspection of the tires and the use of a thumper. Johnson conducted two additional inspections of the tires that morning before the accident.
The tractor was owned by Barnes, but the trailer was owned by Gates Company. Barnes had a contractual agreement with Gates to pull Gates's trailers.
On March 27, 2003, the Plaintiffs, James Walker and Jane Walker, filed a complaint against numerous defendants, including Johnson and Billy Barnes Enterprises, Inc., in the Circuit Court of Jackson County, Mississippi, alleging negligence claims against Johnson and Barnes. On July 7, 2003, the Defendants removed the case to this Court. Johnson and Barnes filed their motion for summary judgment on April 12, 2005, contending that the Plaintiffs have absolutely no evidence to support their claims against them. The Plaintiffs disagree and contend that genuine issues of material fact exist.
DISCUSSION
STANDARD FOR MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56:FED. R. CIV. P. 56 permits any party to a civil action to move for a summary judgment upon a claim, counterclaim, or cross-claim as to which there is no genuine issue of material fact and upon which the moving party is entitled to prevail as a matter of law. In effect, Rule 56(c) provides that as a matter of law, upon admitted or established facts, the moving party is entitled to prevail. Summary judgment "is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists." Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S.Ct. at 253-54. The non-moving party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the Court must view "the evidence in the light most favorable to the non-movant." Abarca v. Metro. Transit. Auth., 404 F.3d 938, 940 (5th Cir. 2005) (citation omitted). PLAINTIFFS' CLAIMS:
In their response to the summary judgment motion, the Plaintiffs contend that there is sufficient evidence for a jury to find Defendants Johnson and Barnes were negligent under the following theories:
1. The negligence of Defendant Billy Barnes in failing to provide appropriate training for its drivers and other employees with respect to the inspection of tires on its tractor-trailer rigs;
2. The negligence of Defendants Johnson and Billy Barnes (acting by and through Defendant Johnson) in failing to follow the Billy Barnes procedures and protocol for inspecting tires on their tractor-trailer rigs;
3. The negligence of Defendants Johnson and Billy Barnes (acting by and through Defendant Johnson) in operating their tractor-trailer rig, including failing to conduct a thorough inspection of the tire which failed on March 29, 2000, causing Plaintiffs' damages.
Pls.' Brief in Resp., pp. 2-3, filed May 16, 2005. In support of their response, the Plaintiffs attached copies of the deposition testimony of Defendant Johnson. Plaintiffs also provided the deposition testimony of Donald Henderson and Ned Adams, truck drivers employed by Barnes who were following Johnson on the morning of March 29, 2000; Randy Watson, who was employed by Barnes in the areas of safety and personnel; Bruce Harris, a maintenance mechanic employed by Barnes; and Donnie Barnes and Terry Kilpatrick, co-presidents of Barnes. The Plaintiffs also provided summaries of their interpretation of the testimony of these deponents. Lastly, the Plaintiffs provided a copy of the report of H.R. Baumgardner, President, Tire Consultants, Inc., dated June 6, 2000, which will be discussed below.
The Plaintiffs have not designated Baumgardner as an expert in this case. In their responsive brief, however, the Plaintiffs requested leave to designate H.R. Baumgardner and Keith R. Baumgardner as experts in this case. The Plaintiffs also filed a separate motion requesting leave to designate these experts.
According to the Plaintiffs, they "do not need experts' testimony to attempt to establish the specific reason why the tires were under inflated and why tire tread came off when it did, since the moving Defendants' representatives have testified that they way to prevent things like that from happening is to thoroughly inspect the tires and that a thorough inspection of the tires includes the use of tire pressure gauges, not only during pre-trip inspections by the driver and maintenance personnel, but also when the tractor-trailer rig is out on the road." Pls.' Br. in Resp., pp. 19-20. According to the Plaintiffs, the Barnes's employees' testimony revealed that "the proper method for inspecting the tires involves using a tire gauge, which they did not do." Pls.' Br., p. 21. In addition, the Plaintiffs contend that "the claims involved in the case at bar . . . turn on whether or not the defendant complied with its own procedure . . . to determine whether the tire were in a safe condition and took proper steps to ascertain the condition of the tires." Pls.' Br., p. 21. Further, the Plaintiffs contend that the Defendants' expert testimony conflicts with the testimony of Barnes's employees.
Despite Plaintiffs' assertion to the contrary, they must produce some evidence from which a jury can conclude that the cause of the tire separation was the negligent maintenance and inspection by Barnes and Johnson. As noted by the Defendants, the "Plaintiffs have the burden of proving by a preponderance of the evidence the existence of conventional tort elements of duty, breach of duty, proximate causation and damages." Defs.' Rebuttal, pp. 4-5, filed May 20, 2005, citing Wilkins v. Bloodshaw, 850 So.2d 185 (Miss.App. 2003); Kmart Corp v. Hardy, ex rel., Hardy, 735 So.2d 975 (Miss. 1999). Also as suggested by Defendants, "[t]he Plaintiffs, in their opposition, have presented absolutely no testimony or proof of why the tire separated on the morning of March 29, 2000, or that the tire separation was caused by the actions and/or inactions of Barnes and Johnson." Defs.' Rebuttal, p. 5. In addition, although the Plaintiffs suggest that the Barnes's employees admitted "that the proper method for inspecting the tires involves using a tire gauge," Pls.' Br. in Resp., p. 21, the employees of Barnes actually testified that a tire gauge is more accurate in determining air pressure than using a thumper. The employees did not, however, testify that it is improper to use a thumper. In fact, Defendants' expert, Charles Gold, clearly stated that "[i]t is widely accepted in the truck tire service field that [the use of an air pressure gauge to check the inflation pressures while on a trip] will cause more problems then (sic) it would solve." Charles G. Gold Tire Consultant Report, p. 2, att. as Ex. 9, Defs.' Mot. for Summ. J., filed April 12, 2005. Gold explained that "[a]ll Tire Industry recommendations state that the only time to check the inflation pressure is when the tire is `cold,'" which is when the tire has been "standing for two (2) hours, or more." Gold Report, p. 2. On the other hand, the Plaintiffs have provided no testimony to support their contention that a tire gauge should be used for all tire inspections, including when the tire is not cold, and that the failure of Barnes and Johnson to do so caused the tire to separate on March 29, 2000.
Even assuming that the Plaintiffs' characterization of the testimony of Barnes's employees is accurate, the Plaintiffs have failed to provide any evidence that the tire was underinflated, that the tire was underinflated due to the negligent maintenance and inspection by Barnes and Johnson, and that this underinflation caused the tire tread to separate. In addition, the Plaintiffs have failed to provide any evidence that inspecting the tires with a tire gauge would have prevented the separation. "It is elementary law that in any lawsuit based upon negligence, it is incumbent upon the plaintiff to first prove by a preponderance of the evidence that the defendant was negligent and that such negligence was a proximate cause of the accident." Rudd v. Montgomery Elevator Co., 618 So.2d 68, 73 (Miss. 1993) (citations omitted). "To make a jury issue on liability in this case, it was incumbent upon [Plaintiffs] to establish by competent evidence that [Barnes and Johnson] w[ere] somehow negligent in [their] maintenance and [inspection] of the [tires] and that this negligence caused [the tire] to [separate] [on March 29, 2000]." Rudd, 618 So.2d at 72. The Plaintiffs have failed to do so. Barnes and Johnson may have been negligent in failing to properly maintain and inspect the tires. In addition, their failure to properly maintain and inspect the tires may have resulted in the tire separation on March 29, 2000. The burden is upon the Plaintiffs, however, "to offer something beyond pure speculation that there was negligence of this nature and that it in fact caused the [separation]." Rudd. at 73. Based upon the Plaintiffs' failure to provide any evidence to support their claims against Barnes and Johnson, the Plaintiffs have failed to show the existence of a material fact question. For this reason, Barnes and Johnson are entitled to judgment as a matter of law.
PLAINTIFFS' MOTION FOR LEAVE TO DESIGNATE EXPERT:
As mentioned above, the Plaintiffs have requested leave to designate H.R. Baumgardner and Keith R. Baumgardner of Tire Consultants, Inc., as expert witnesses. The Plaintiffs' deadline for designating expert witnesses was January 6, 2005. The Plaintiffs did not request leave to designate these witnesses until May 16, 2005, after Barnes and Johnson filed their motion for summary judgment, pointing out the deficiencies in Plaintiffs' case. The report provided by the Plaintiffs is dated June 6, 2000. Even though the report predated the filing of the complaint in this case by nearly three years, the Plaintiffs never provided the report to the Defendants in this case until May 16, 2005, when Plaintiff filed their request for leave to designate experts out of time. For these reasons alone, the Court could deny the Plaintiffs' motion. However, even if the Court were to allow the Plaintiffs to designate these experts, the Defendants' motion for summary judgment would be granted. In the report, H.R. Baumgardner opines as follows:
Inspection of the tire indicated that it had been damaged by an impact many miles before the failure. This loosened the belts within the tire and allowed an internal separation to propagate. This separation would not have been visible from the outside.
The separation finally became so large that the tire exploded in the separated area and threw off the tread and outer belt. This would have caused a noise like a cannon going off. The driver should have heard it.
The surface of the tire and the steel belts show abrasion and fraying indicating that the vehicle had been running for several miles after the failure. . . . The tread was most likely several miles back.
. . . .
Based upon their statement the tire would have been running flat before the accident. . . .
Report of H.R. Baumgardner, pp. 1-2 (emphasis added), att. as Ex. A, Pls.' Mot. for Leave to Identify Two Expert Witnesses Out of Time, filed May 19, 2005. As noted above, Baumgardner concludes that the tire was damaged by an impact "many miles" before the failure, but he also states that the separation would not have been visible from the outside. The only conclusion included in his report that could possibly help the Plaintiffs's case is that the tire would have been running flat before the accident. But, he doesn't give an opinion about how long the tire might have been running flat prior to the accident. Clearly, as he concluded, the separation itself would not have been noticeable. In addition, Baumgardner does not give an opinion about whether checking the tire with a tire pressure gauge, as opposed to a thumper or a visual inspection, could have prevented the separation. In fact, he does not give any opinion about what, if anything, Barnes and Johnson could have done differently to prevent the separation. Moreover, curiously, he stated that the tire tread was not recovered and was most likely several miles back. According to the Plaintiffs, however, it was the tread that Defendant Safran was attempting to avoid when he swerved and the vehicle rolled over. For these reasons, Baumgardner's opinion does not assist the Plaintiffs in avoiding summary judgment. The motion for leave to designate experts out of time should therefore be denied.
IT IS THEREFORE ORDERED AND ADJUDGED, that for the reasons stated above, there are no remaining material fact questions. Therefore, the Motion of Defendants, Billy Barnes Enterprises, Inc. and Michael Johnson, for Summary Judgment [60] should be and is hereby GRANTED. IT IS FURTHER ORDERED AND ADJUDGED for the reasons stated above, the Plaintiffs' Motion for Leave to Identify Two Expert Witnesses Out of Time [69] should be and is hereby DENIED.
SO ORDERED AND ADJUDGED