Opinion
99-CV-0075E (Sr).
October 3, 2001
MEMORANDUM and ORDER
Plaintiff George Darby commenced this diversity action for negligence January 29, 1999 against defendants System Transport, Inc. and one of their drivers, Norman Shaffer. Plaintiff is a resident of New York and System Transport is a Washington corporation with its principal place of business in that state. The amount in controversy exceeds $75,000 and this case is therefore properly before this Court pursuant to 28 U.S.C. § 1332.
The action has been dismissed as to Shaffer.
Defendant filed an answer denying many of plaintiff's allegations and raising the following defenses — viz., (1) that the Complaint had not been properly served on System Transport, (2) that this Court does not have subject matter jurisdiction, (3) that plaintiff's action is barred by Sections 11 and 29(6) of New York's Workers Compensation Law, (4) that plaintiff's claims are barred in whole or in part by the applicable statute of limitations, (5) that plaintiff has been contributorily negligent and (6) that any liability which could possibly be found against System Transport will be insufficient to impose liability.
On November 24, 1999 System Transport filed a third-party complaint against Joseph T. Ryerson Son, Inc. alleging that Darby's damages had been caused in whole or in part by the negligence of Ryerson, with no negligence on the part of System Transport existing or contributing thereto.
Ryerson submitted its Answer, denying most of the allegations contained in the third-party complaint and asserting the following affirmative defenses — viz., (1) the injuries were caused wholly by a combination of the negligence of Darby and System Transport, (2) if Ryerson is found to be negligent its liability will be 51% or less of the total liability to Darby and, therefore, Darby's recovery of "non-economic" damages against them should be accordingly reduced, (3) Darby's injuries were caused in whole or in part by a person or persons who were not within the control of Ryerson and (4) Darby's action is barred by Section 11 of New York's Workers Compensation Law.
Presently before this Court are the following motions — viz., (1) System Transport's motion for summary judgment, (2) Darby's motion for leave to file an amended complaint, (3) Darby's motion for an extension of time for discovery and to permit the deposition of any employee of Ryerson at its Chicago location who had knowledge of the loading and inspection procedures between February 9, 1996 and February 12, 1996 and (4) Darby's expert witness disclosure motion. For the reasons that follow, Darby's motion for an extension of time to conduct discovery will be denied, as will his motions for leave to amend the Complaint and for expert witness disclosure. System Transport's motion for summary judgment will be granted.
Shaffer drove his tractor to Ryerson's plant in Chicago to pick up a trailer holding twenty tons of steel of assorted sizes which had been placed upon a trailer's blocking system for transport. Shaffer claims that he had no involvement in the loading of the trailer in Chicago; rather it was fully loaded when he got there. Shaffer Aff. at 4. He also claims that he did not have any involvement in determining the positioning of the blocks on which the steel had been placed on the trailer. Id. at 5. Rather, according to him, his involvement was limited to placing a tarp over the load and placing chains around it to secure it and to prevent it from shifting while in transport. Id. at 6. The standard was to chain every ten feet; however, Shaffer "double chained" this load. Ibid. He then drove the tractor-trailer to a truck stop in Indiana to make sure that the weight was properly distributed and stopped every two to three hours thereafter to ensure that there had been no shifting of the load and to inspect the tires. Id. at 7. When Shaffer arrived in Buffalo, he loosened the chains and noted that there had been no shifting of the load during transit. Shaffer Aff. at 8. The chains were removed and he had no further involvement in the unloading. Id. at 9.
When Darby approached the load he visually inspected it and did not observe anything wrong. Darby Dep. at 41. Darby then called over Nick Kurtz, the crane operator, and instructed him which hoist to lower to Darby. Id. at 49. Darby attached the chain to a piece of steel and instructed Kurtz to raise it; Kurtz did so, raising one end of the beam a foot into the air. Id. at 50-55. At this point and to facilitate the unloading process, Darby began walking toward the front of an empty trailer which had been parked alongside the trailer being unloaded. Id. at 54. It was his intention to attach a chain from the hoist to the opposite end of the beam. Id. at 55. He placed his right foot upon the flatbed of the loaded trailer and his toes were underneath one of the I-beams. Darby Dep. at 55. Plaintiff then saw the steel in the front of the trailer shift which caused other beams to shift in his direction. Id. at 57. The beam that plaintiff was about to hook fell off the block and, as the beam fell, it caught plaintiff's safety shoe, causing him to fall. Id. at 58. His initial attempts to extricate his foot were unsuccessful; however, he was finally able to get his shoe out after the beam had fallen a little more. The top of his safety shoe was then torn off, his foot was released and he fell into the space between the two trailers. Id. at 65. Darby grabbed hold of the other trailer and swung his body out of the way, avoiding other pieces of falling steel. Id. at 65. After plaintiff had fallen he was taken into the office by unidentified co-workers.
As a result of having the piece of steel fall on his foot, the tips of the two smallest toes on plaintiff's right foot had been chopped off and his big toe on right foot had been crushed. Darby Dep at 69. He eventually had this big toe amputated from the knuckle out. Id. at 76.
According to plaintiff, the beam had tilted because the blocking in the front of the trailer was about a foot and a half too short for the width of the trailer. Id. at 59. Plaintiff had not realized that the blocking was inadequate until after he had fallen because such was not visible to someone by merely looking at the beam before one enchained it. Id. at 61. Also, plaintiff could not have looked under the beam because he was on top of the trailer and its load. Ibid. He would have had to get down on his stomach to look under the beam and he still would not have been able to see the deficiency because it was too far in and it was too dark under the other pieces of steel. Darby Dep. at 63.
The parties have presented conflicting testimony as to whether Shaffer or some other employee of System Transport was involved in the loading of the trailer. Plaintiff admitted that he does not have first-hand knowledge of who had loaded the trailer or what the loading procedures had been at Ryerson's Chicago plant. Id. at 36. Nick Kurtz, the crane operator at the Buffalo plant, stated that in Buffalo the driver of the tractor would always participate in the loading of the trailer, Kurtz Dep. at 29; however, he did not know what the loading procedures were in Chicago. Id. at 36.
David Dietterich, an Operations Manager for Ryerson, admitted that he has no personal knowledge of the exact loading procedures followed in Chicago. Dietterich Dep. at 11. He does know, however, that in some circumstances on Chicago loads an "over-the-road" driver picks up a trailer that is already loaded and pulls it out. Id. at 27.
Jerry Hansberry, Terminal Manager for System Transport at the time of the accident, stated that, if the driver is supposed to pick up a "live load," System Transport generally required the driver to be present when the load was placed upon the trailer. Hansberry Dep. at 18. However, if the driver is supposed to pick up a pre-loaded trailer, all he does is hook the tractor up to the trailer, see that the load is secure and leave the premises. Ibid. Drivers check pre-loaded trailers for indications of damage and/or product problems, but that is the extent of their involvement. Id. at 19.
Plaintiff has also sought to introduce the affidavit of Frank DeBoth as an expert witness in the loading of trucks and trailers. Based on his forty years of experience loading and driving tractor-trailers, it is DeBoth's opinion that it is the responsibility of the driver hauling the steel to direct the placement of the load. DeBoth Aff. ¶ 14. He claims he has never observed a pre-load of steel products on a flat-bed trailer when both the tractor and the trailer are not owned by the shipper. Id. at ¶ 15. He also "seriously questions" the credibility of Shaffer's claims that he did not have any involvement in the loading procedure or in overseeing the loading. Id. at ¶ 16.
As a preliminary matter this Court notes that plaintiff's motion for an extension of time to conduct additional discovery by deposing workers at Ryerson's Chicago plant will not be allowed. This Court entered an order on February 9, 2000 that all discovery must be accomplished not later than December 1, 2000. However, on April 16, 2001 plaintiff argued, in support of his motion, that it is necessary in the interests of justice to extend the time for discovery and permit the depositions of any employees of Ryerson having knowledge of the loading and inspection procedures followed at its Chicago plant in February 1996. There is no reason, at this late date, for this Court to extend the time to conduct discovery. It has been known ever since the accident occurred that the trailer was in fact loaded at Ryerson's plant in Chicago. Plaintiff has had every opportunity to conduct depositions of Ryerson's Chicago employees, yet has failed to do so — even after Ryerson had been named a third-party defendant on November 24, 1999.
The proper remedy for a party who needs more discovery in order to meet a motion for summary judgment is to file an application pursuant to section 56(f) of the Federal Rules of Civil Procedure ("FRCvP"). This would require plaintiff to set forth the following factors: (1) what specific discovery is sought, (2) what efforts have been made to obtain this discovery and why any such efforts have been unsuccessful and (3) how this specific discovery would create a genuine issue of material fact. This Court notes that, even if a proper FRCvP 56(f) application had been made, such would nonetheless be denied because there is nothing to indicate that plaintiff had made any efforts to depose employees of Ryerson's Chicago plant prior to the close of discovery.
This Court also notes that it is unlikely that any useful information can be obtained by allowing such depositions. The trailer was loaded at Ryerson over five years ago and it is highly unlikely that plaintiff would be able to find anyone who has knowledge of what the loading procedures had been at that time. In addition, representatives of Ryerson have stated in their interrogatory responses that they are unable to identify any individual who would be able to supply the information plaintiff seeks because they keep such information on file for only ninety days. Ryerson Resp. to Interrog. ¶ 6. The request for additional discovery will therefore be denied.
Plaintiff has also made a motion for leave of court to serve and file an amended complaint and amended responses to defendant's interrogatories. Specifically, he seeks to amend his Complaint to add paragraphs alleging that (1) "Upon information and belief, the driver of the tractor-trailer has the duty and responsibility of loading and overseeing the loading and proper placement and security of the load", (2) "Upon information and belief, System Transport, Inc. supplied the wood blocking upon which the I-beams were to be placed when loaded in Chicago, Illinois", (3) "Upon information and belief, the driver Norman Shaffer or such other employee, agent or subcontractor for System Transport, Inc., caused the wood blocking to be placed on the trailer, prior to the steel beams being loaded thereon", (4) "Upon information and belief, the driver Norman Shaffer, and/or such other employee(s), agent(s) or subcontractor, designated by System Transport, Inc., was charged with the responsibility of loading, overseeing the loading, and securing the load of I-beams and steel in Chicago Illinois" and (5) expanding and redefining the factual allegations to include all the acts of negligence or omission by defendant.
Under Rule 15 of the Federal Rules of Civil Procedure ("FRCvP"), leave to amend a complaint shall be freely granted. "Reasons for a proper denial of leave to amend include undue delay, bad faith, futility of the amendment and, perhaps most important, the resulting prejudice to the opposing party." State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981).
This Court, however, views the proposed amended complaint with suspicion. Plaintiff is not seeking to amend the Complaint to add a new cause of action or legal theory based on the same facts; rather plaintiff seeks to add assertions of facts which would be necessary for the original cause of action and which plaintiff was charged with learning during the course of discovery. The amendments would therefore be futile. This Court also notes that, if it were to grant the motion to amend the Complaint, plaintiff might well be granted a new period of discovery. Because this Court has decided that plaintiff will not allowed additional discovery and that plaintiff may well have been aware that this Court would so rule, plaintiff may be attempting to amend his Complaint as a means of circumventing an expected order of this Court denying additional discovery. Such is sufficiently indicative of bad faith for this Court to deny plaintiff's motion to amend the pleading.
FRCvP 56(c) states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment a court must view the facts in the "light most favorable to the opposing party." Adkins v. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in his pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e).
This action is before this Court on the grounds of diversity; however, because the injury occurred as a result of interstate transportation of goods, both parties have agreed that the applicable law will be 49 C.F.R. § § 392.9 and 393.100. 49 C.F.R. § 392.9 states in relevant part:
"(a) General. No person shall drive a commercial motor vehicle unless: "(1) The commercial motor vehicle's cargo is properly distributed and adequately secured as specified in § § 393.100-393.106 of this sub-chapter "(b) [T]he driver of a truck or tractor trailer must: "(1) Assure himself that the provisions of paragraph (a) of this section have been complied with before he drives the motor vehicle; "(2) Examine the commercial vehicle's cargo and its load securing devices within the first 25 miles after beginning a trip and cause any adjustments to be made to the cargo or load securing devices (other than steel strapping) which may be necessary to maintain the security of the commercial motor vehicle's load; and "(3) Reexamine the commercial motor vehicle's cargo and its load-securing devices periodically during the course of transportation."49 C.F.R. § 393.100 states in relevant part:
"(a) This section applies to trucks, truck tractors, semitrailers, full trailers and pole trailers. Each of those motor vehicles must, when transporting cargo, be loaded and equipped to prevent the shifting or falling off of the cargo in the manner proscribed by the rules of paragraph (b) of this section. "(b) Each cargo-carrying motor vehicle must be equipped with devices providing protection against shifting or falling cargo that meet the requirements of either paragraph (b)(1), (2), (3), or (4) of this section.
"(2) The vehicle must have at least one tiedown assembly for each 10 lineal feet of lading or fraction thereof. "(c)(1) The rules in this paragraph apply to a motor vehicle transporting cargo consisting of metal articles if that vehicle does not conform to the rules in paragraph (b)(1), (2) or (4) of this section. "(2) A motor vehicle transporting property consisting of metal articles must, conform to the rules in § 393.104 (relating to the blocking and bracing of cargo)."49 C.F.R. § 393.104(b) states in relevant part:
"When a vehicle carries cargo that may shift sideways in transit, the cargo must either be securely blocked or braced against the sides, sideboards, or stakes of the vehicle."
Shaffer did all that the federal regulations require. In conformance with 49 C.F.R. § 393.100(b) there was twice the number of chains as was required to be on the load, and the load complied with special rules under 49 C.F.R. § 393.104 for metal cargo which state that the load must be securely blocked if it could shift in transit. Therefore, Shaffer has satisfied any duty created by 49 C.F.R. § § 392.9 and 393.100.
Notwithstanding that the guidelines were followed this Court notes that liability could not attach unless an employee of System Transport had participated in the loading procedure in Chicago. As noted, supra, Darby and System Transport have introduced contrary evidence as to whether or not Shaffer or any other employee of System Transport did in fact participate therein. Shaffer contends that he did not. Darby, on the other hand, has filed affidavits attesting to the fact that Shaffer must have participated in the loading procedures at Chicago because, (1) the Buffalo plant has a policy whereby the driver always assists in the loading — Kurtz Dep. at 29 — and (2) drivers usually assist at the Chicago plant — Hannesbury Dep. at 18. Plaintiff, however, has not adduced any evidence by anyone with personal knowledge of the loading procedures in Chicago on the day the allegedly defective loading occurred.
As noted earlier herein, Darby has moved for expert witness disclosure by offering the deposition of DeBoth as an expert witness in the field of vehicular loading. This Court holds that DeBoth's affidavit is not evidence and therefore will not be considered as part of Darby's opposition to System Transport's motion for summary judgment. Expert testimony is only admissible if it would be helpful to the trier of fact — United States v. Cook, 922 E2d 1026, 1036 (2d Cir.), cert. denied sub nom, Tarbell v. United States, 500 U.S. 941 (1991). Here DeBoth's affidavit seeks to set forth what the typical loading procedures would have been at Ryerson's Chicago plant. There are no known. eyewitnesses to the loading on the day in question and all that is offered is evidence as to what the typical procedures might have been. DeBoth's affidavit is merely cumulative of this and this Court opines that the typical loading procedures of a trailer would not be beyond the ken of the average juror, especially because other witnesses not designated by plaintiff as experts have put in affidavits and depositions saying the same thing. Therefore and because a court can only consider the affidavit of an expert witness on a motion for summary judgment if that expert's testimony would he admissible at trial — B.F. Goodrich v. Betkoski, 99 F.3d 505, 525-527 (2d Cir. 1996), cert. denied sub nom, Zollo Drum Co. Inc. v. B.F Goodrich Co., 524 U.S. 926 (1998) —, this Court will not consider the DeBoth affidavit and plaintiff's motion for expert witness disclosure will be denied.
Darby also attempts to use 49 C.ER. § 392.9 for the proposition that the driver is required to assist in the loading procedure and therefore must have participated. This Court is unconvinced that such is the case because, as the regulations clearly set out, all the driver is required to do is examine the load, scale the load within the first twenty-five miles and then re-examine the load every two to three hours. There is nothing in the regulations which requires the driver to participate in or supervise the loading; therefore 49 C.F.R. § 392.9 does not create such a duty.
As the record stands, plaintiff's evidence that Shaffer or another employee of System Transport either loaded or assisted in the loading of the trailer consists entirely of the kind of speculation which is insufficient to withstand a motion for summary judgment. Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999); Ofudu v. Barr Laboratories, Inc., 98 F. Supp. 2d (S.D.N.Y 2000). Plaintiff has failed to raise a genuine issue of material fact as to whether System Transport had a duty toward him or, assuming arguendo that a duty was owed, such duty was breached. Therefore and because the standard necessary to defeat a motion for summary judgment on plaintiff's negligence claim has not been met, summary judgment will be granted for System Transport.
Defendant did admit that Shaffer, even though having no involvement in loading the steel onto the blocking, did place a tarp and chains around the load. This Court is aware that chaining the load is a crucial responsibility in securing the load for transit; however, plaintiff here has not argued that Shaffer's involvement in chaining the load in any way contributed to the accident. Also, plaintiff has not put in any evidence that Shaffer chained the load in any manner other than that required by the regulations. Therefore, this Court will 100k exclusively to evidence submitted by plaintiff pertaining to defendant's blocking of the load and ignore defendant's involvement in the chaining when deciding whether System Transport was involved in the loading here.
Accordingly, it is hereby ORDERED that plaintiff's motion to amend his complaint is denied, that plaintiff's motion for additional time to complete discovery is denied, that plaintiff's motion to make expert witness disclosure is denied, that System Transport's motion for summary judgment is granted and that this case shall be closed.