Opinion
3:21-cv-00589-JR
03-05-2024
MARGARET VAUGHAN, Plaintiff, v. J.B. HUNT TRANSPORT, INC. and ANDREW ADDO, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff Margaret Vaughan initiated this action against defendants Andrew Addo and J.B. Hunt Transport, Inc. (“J.B. Hunt”) arising from a January 20, 2020, semi-truck collision. The parties each move for partial summary judgment pursuant to Fed.R.Civ.P. 56(a). For the reasons stated below, plaintiff's motion should be granted, and defendants' motion should be granted in part and denied in part.
The Court generally cites to the moving party's evidence except when referring to the non-duplicative information produced by the non-moving party.
Addo obtained his commercial driver's license (“CDL”) in 2014. Rossmiller Decl. Ex. 1, at 4, 6 (doc. 40-1). In May 2017, J.B. Hunt hired plaintiff as a commercial truck driver. Id. at 10, 18. J.B. Hunt performed a motor vehicle record background check, work history check, criminal background check, and drug test on Addo, and confirmed that he had had his CDL for at least one year and no DUIs or reckless/careless driving violations, or other serious driving events, within the past five years. Rossmiller Decl. Ex. 4, at 8-14 (doc. 40-4). J.B. Hunt also provided a three-day training course to Addo at its Stockton, California, facility and had a system in place for “monthly, quarterly, and annual-based training.” Id. at 14-15, 17-18; Rossmiller Decl. Ex. 1, at 1617 (doc. 40-1).
On January 20, 2020, Addo started his workday at 2 a.m. Rossmiller Decl. Ex. 1, at 31-32 (doc. 40-1). He slept for approximately eight hours the night before, had not consumed any alcohol or drugs, and was not on any medications. Id. at 30-31. After performing certain deliveries, Addo changed trailers in McMinnville and left at approximately 7:45 a.m., heading back towards Portland, Oregon. Id. at 32-36, 54. To that end, Addo turned onto Ehlen Road, a two-lane road with a soft shoulder, in Newberg. Id. at 37; Rossmiller Decl. Ex. 5, at 6 (doc. 40-5). While heading east on Ehlen Road, Addo was travelling at or slightly above the 55-mile per hour speed limit. Rossmiller Decl. Ex. 1, at 47 (doc. 40-1); Rossmiller Decl. Ex. 2, at 8, 37 (doc. 40-2); Rossmiller Decl. Ex. 3, at 1 (doc. 40-3); Rossmiller Decl. Ex. 5, at 7-8 (doc. 40-5). His trailer drifted approximately six times over the right-side fog line. Rossmiller Decl. Ex. 1, at 41-42 (doc. 40-1); Rossmiller Decl. Ex. 2, at 8 (doc. 40-2).
Going into a turn, Addo's right-sided tires again drifted over the fog line and went into the soft shoulder. Rossmiller Decl. Ex. 2, at 8 (doc. 40-2); Rossmiller Decl. Ex. 5, at 12-13 (doc. 405). Addo overcorrected to the left and lost control of the cab, which jackknifed, travelled over the center line, and collided with plaintiff's westbound vehicle. Rossmiller Decl. Ex. 1, at 37-38, 48, 50 (doc. 40-1); Rossmiller Decl. Ex. 2, at 8 (doc. 40-2); Rossmiller Decl. Ex. 3, at 1 (doc. 40-3).
Immediately after the accident, Addo went to plaintiff's vehicle, attempted to open the driver's side door, and told her that help was on the way. Rossmiller Decl. Ex. 1, at 49 (doc. 401); Rossmiller Decl. Ex. 5, at 16-17 (doc. 40-5). He submitted to a drug and alcohol test through J.B. Hunt and the Marion County Sheriff's Office, both of which came back negative. Rossmiller Decl. Ex. 2, at 17 (doc. 40-2); Rossmiller Decl. Ex. 4, at 42-43 (doc. 40-4).
The Marion County Sheriff's Office performed a data extraction of Addo's cell phone and determined that there were no outgoing or incoming phone calls or text messages between 6:00 a.m. and 8:20 a.m. on January 20, 2020, although, “[d]ue to a major incident, further analysis was not completed.” Rossmiller Decl. Ex. 2, at 23 (doc. 40-2). Addo was initially cited with reckless driving, failure to maintain lane, and assault, but Marion County ultimately dismissed these charges. Id. at 10; Rossmiller Decl. Ex. 1, at 46, 49 (doc. 40-1).
J.B. Hunt placed Addo on a six-month suspension and one-year probation, and he also underwent in-person driving and course training. Rossmiller Decl. Ex. 4, at 48-51 (doc. 40-4). In 2021, J.B. Hunt terminated plaintiff's employment and he has since been working for Skyline Mail Carriers. Rossmiller Decl. Ex. 1, at 10-11 (doc. 40-1).
In April 2021, plaintiff initiated this action, alleging negligence claims against both Addo and J.B. Hunt on the basis of individual and vicarious liability. In addition to other monetary relief, plaintiff seeks punitive damages. On March 14, 2023, the parties filed their partial motions for summary judgment. Briefing was completed in regard to those motions on April 25, 2023.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec.Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 631.
DISCUSSION
The parties each request summary judgment on limited facets of this case, such that liability and damages remain outstanding.
I. Plaintiff's Partial Motion for Summary Judgment
Plaintiff seeks summary judgment as to whether: (1) Addo was acting within the course and scope of his employment with J.B. Hunt at the time of the accident; and (2) any nonparty bears fault for the injuries alleged.According to plaintiff, defendants' admissions establish vicarious liability. As a result, plaintiff maintains that J.B. Hunt is “liable for all damages resulting from Defendant Addo's actions.” Pl.'s Mot. Partial Summ. J. 5 (doc. 37).
Defendants have pled the following affirmative defenses: (1) “Plaintiff has failed to state facts sufficient to constitute a claim for relief against Defendants”; (2) “Plaintiff's claims may be barred, in whole or in part, by the doctrines of contributory and comparative negligence”; (3) “Plaintiff's damages and/or losses, if any, may have been caused by the fault of other parties and over whom Defendants had no control”; (4) “Plaintiff's alleged damages and injuries were not caused, in whole or in part, by any actions or omission by Defendants”; (5) “Plaintiff failed to reasonably mitigate said losses and injuries through prudent measures and/or treatment”; and (6) “Plaintiff's claims and damages may be barred, in whole or in party, by the doctrine of superseding and/or intervening cause.” Answer ¶¶ 35-40 (doc. 6). Plaintiff's second motion inheres exclusively to “the third affirmative defense [such that] Defendants' arguments concerning the availability of alleging comparative fault due to Plaintiff's own alleged negligence - the second affirmative defense - are inapposite.” Pl.'s Reply to Mot. Partial Summ. J. 10 (doc. 50).
Concerning the first issue, defendants dispute plaintiff's characterization of their admissions and otherwise assert that a determination surrounding “vicarious liability for compensatory and punitive damages would require the Court to issue an impermissible advisory opinion.” Defs.' Resp. to Mot. Partial Summ. J. 6 (doc. 44). Defendants also rely on Or. Rev. Stat. § 31.730(1), which states: “Punitive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.”
Regarding the second issue, defendants argue “there are numerous ‘others' whose conduct may have played a role in causing” plaintiff's injuries and, in any event, they “are entitled to present all of the facts surrounding the Accident underlying this lawsuit that will assist the jury in understanding the Accident.” Id. at 17-18.
Defendants' arguments are specious. As to plaintiff's first motion, rulings on vicarious liability are routinely sought and obtained under Fed.R.Civ.P. 56 in this District. See Allison v. Smoot Enters. Inc., 2019 WL 1586743, *2 (D. Or. Apr. 12, 2019) (granting the plaintiff's motion for partial summary judgment and finding that a motor carrier defendant could be “potentially vicariously liable” for compensatory and punitive damages caused by its company driver if awarded by a jury); McAdory v. M.N.S. & Assocs., LLC, 2021 WL 2321634, *7 (D. Or. June 7, 2021) (granting the plaintiff's motion for partial summary judgment on vicarious liability in a debt collection action); see also Rapid Funding Grp., Inc. v. Keybank Nat'l Ass'n, 2009 WL 2878545, *9 (D. Or. Sept. 2, 2009) (“the question whether an employee has acted within the scope of his employment is ordinarily a question of fact to be resolved by a jury, except in cases where only one reasonable conclusion can be drawn from the facts”) (citation and internal quotations omitted).
Further, in 1975, the Oregon Supreme Court held that an employer can be vicariously liable for punitive damages if its employee was acting within the course and scope of their employment at the time the injurious conduct occurred. Stroud v. Denny's Restaurant, Inc., 271 Or. 430, 43738, 532 P.2d 790 (1975). The Oregon Supreme Court revisited Stroud's holding following the enactment of Or. Rev. Stat. § 31.730(1) in Johannesen v. Salem Hosp., 336 Or. 211, 82 P.3d 139 (2003). There, the defendant argued “it cannot be held vicariously liable for punitive damages without evidence of fault on its part.” Id. at 219. The Johannesen court noted that the Oregon Supreme Court had “considered and rejected that theory” in Stroud and “perceive[d] no reason to revisit that decision in this case.” Id.
Significantly, defendants recognize that “a handful of District Court cases have . . . cited Johannesen and applied the Stroud common law rule to vicarious liability for statutory punitive damages.” Defs.' Resp. to Mot. Partial Summ. J. 12 (doc. 44). While defendants conclude that these cases were wrongly decided, they cite to no authority signaling a departure from Stroud or otherwise indicating it is no longer good law in light of Or. Rev. Stat. § 31.730(1). See Allison, 2019 WL 1586743 at *2 (expressly rejecting a virtually identical argument, noting that “ORS 31.730 . . . says nothing of vicarious liability for punitive damages, and thus provides no support for the rule that [the defendants] want this court to embrace, i.e., that vicarious liability for punitive damages requires evidence of authorization or ratification on the principal's part [such that the court is] left to apply the rule in Stroud”).
As such, the question becomes whether there is a disputed issue of material fact surrounding whether Addo was acting within the course and scope of his employment. To that end, defendants' Answer and responses to plaintiff's First Set of Requests for Admissions and First Set of Interrogatories make clear that Addo was an employee of J.B. Hunt and performing work on its behalf at the time of the collision. See Answer ¶¶ 3, 6, 7 (doc. 6) (admitting Addo was “an employee of J.B. Hunt at the time of the accident,” “hired as a commercial driver,” and “driving a semi-truck hauling freight for Defendant J.B. Hunt [on] January 20, 2020”); J.B. Hunt's Resp. to First Req. Admis. 6 (doc. 38) (“J.B. Hunt admits that Addo was performing work for J.B. Hunt on January 20, 2020, when the accident with Plaintiff occurred”); Addo's Resp. to First Req. Admis. 6 (doc. 38) (“Addo admits that he was performing work for J.B. Hunt on January 20, 2020, when the accident with Plaintiff occurred”); J.B. Hunt's Resp. to First Interrogs. 5-6 (doc. 38) (“Addo was employed as a driver by J.B. Hunt Transport, Inc. on the date of the motor vehicle accident involving Plaintiff's vehicle, with a start date of May 16, 2017 [and] was performing work as part of his employment with J.B. Hunt at the time of the accident”).
Defendants acknowledge these admissions but nonetheless assert that plaintiff's contentions surrounding vicarious liability emanate “from a completely false premise.” Defs.' Resp. to Mot. Partial Summ. J. 2-5 (doc. 44). Although difficult to discern, the Court infers from this argument that defendants contest vicarious liability because they did not actually admit that Addo was acting within the course and scope of his employment at the time of the accident, objecting on the basis that this “calls for a legal conclusion to which no response is required.” J.B. Hunt's Resp. to First Req. Admis. 6 (doc. 38); Addo's Resp. to First Req. Admis. 6 (doc. 38); J.B. Hunt's Resp. to First Interrogs. 6 (doc. 38); but see A.F. v. Evans, 2022 WL 1541463, *3 (D. Or. May 16, 2022) (“judicial admissions must be statements of fact that require evidentiary proof, not statements of legal theories” or legal conclusions).
Given the factual content of defendants' admissions, coupled with the standard for establishing vicarious liability, there is no meaningful dispute precluding summary judgment. See Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988) (“an employee was acting within the scope of employment [if] the act occurred substantially within the time and space limits authorized by the employment[,] the employee was motivated, at least partially, by a purpose to serve the employer[,] and . . . the act is of a kind which the employee was hired to perform”).
Indeed, beyond broadly asserting that plaintiff's first motion “is properly denied . . . because it is based on admissions that do not exist [and there] is plenty to dispute in this case,” defendants have not put forth any argument or evidence to suggest that Addo was not acting within the course and scope of his employment with J.B. Hunt at the time of plaintiff's injury. Defs.' Resp. to Mot. Partial Summ. J. 5, 9 (doc. 44); see also Anderson, 477 U.S. at 252 (in order to defeat a motion for summary judgment “there must be evidence on which the jury could reasonably find for the [non-moving party]”); Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1116 (9th Cir. 2003) (“conclusory allegations, unsupported by facts, are insufficient to survive a motion for summary judgment”).
As to plaintiff's second motion, defendants once again fail to carry their responsive burden relating to third-party fault. Although defendants speculate that “Marion County may not have properly maintained the roadway, failed to clear debris, or paint sufficiently visible fog lines,” “ODOT may not approve the correct signage or other warnings,” and the “two others [driving behind Addo] may have contributed to the Accident,” they have not put forth any evidence in support of these facts. Defs.' Resp. to Mot. Partial Summ. J. 17 (doc. 44); see also Redwind v. W.Union, LLC, 2016 WL 3606595, *9 (D. Or. May 2), adopted by 2016 WL 3410183 (D. Or. June 16, 2016), aff'd, 698 Fed.Appx. 346 (9th Cir. 2017) (argument based on the opposing party's “own conjecture and speculation” was insufficient to create a genuine issue of material fact).
During the course of discovery, defendants were expressly asked to “[i]dentify any nonparty who you claim is or may be liable to the claimant in part or in whole for the damages claimed but who has not been joined in this action as a party and the facts upon which you base this assertion.” J.B. Hunt's Resp. to First Interrogs. 10 (doc. 38). J.B. Hunt recited boilerplate objections and stated that it “does not have a response to this Interrogatory [but] reserves the right to supplement this Response.” Id. Plaintiff represents that, “[t]o date, this interrogatory has not been supplemented and no nonparty has been identified” and “[f]act discovery closed on January 13, 2023.” Pl.'s Reply to Mot. Partial Summ. J. 12 (doc. 50).
Finally, the precedent on which defendants rely in support of the proposition that “[e]vidence of the total circumstances surrounding the Accident is relevant to the jury's decision on causation” - i.e., Poe v. Cook, 2019 WL 3842376 (D. Or. Aug. 14, 2019) - is factually distinguishable. Defs.' Resp. to Mot. Partial Summ. J. 16 (doc. 44). In particular, Poe involved the fault of a party rather than that of a nonparty. The Poe defendants pleaded that the plaintiff's “injuries and damages were caused by the fault of others, including Watson,” a third-party defendant named in a third-party complaint. Poe, 2019 WL 3842376 at *2, 4. Watson's negligence was concurrent with that of the other named defendants. Id. at *1.The court's discussion of Or. Rev. Stat. § 31.600(2) therefore centered on Watson, who was immune from suit under worker's compensation principles. In that context, Poe held that “Watson's alleged negligence is a ‘new matter' that defendants must plead as an affirmative defense . . . This affirmative defense does not seek to allow recovery against Watson, but merely to provide an alternative explanation for the events at issue.” Id. at *4.
And defendants' contention that their “conduct may very well not be a substantial factor in Plaintiff's alleged injuries” because she “was in a serious vehicle accident in 2003” and “is a survivor of the infamous Columbine High School massacre” conflates fault with damages. Defs.' Resp. to Mot. Partial Summ. J. 17-18 (doc. 44). As plaintiff correctly denotes, “[a]vailability of the ‘fault of others' liability defense has no bearing on the Defendants' ability to argue that it is not responsible for the full extent of Plaintiff's damages.” Pl.'s Reply to Mot. Partial Summ. J. 13 (doc. 50). In fact, another affirmative defense covers this precise topic. Answer ¶ 38 (doc. 6).
This statute provides: “The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. The failure of a claimant to make a direct claim against a third party defendant does not affect the requirement that the fault of the third party defendant be considered by the trier of fact under this subsection. Except for persons who have settled with the claimant, there shall be no comparison of fault with any person: (a) Who is immune from liability to the claimant; (b) Who is not subject to the jurisdiction of the court; or (c) Who is not subject to action because the claim is barred by a statute of limitation or statute of ultimate repose.” Section 31.600(2) is most commonly invoked “when . . . multiple defendants were negligent and the conduct of each was a cause of the plaintiff's injuries.” Wingett State v. Silbernagel, 279 Or.App. 245, 254, 379 P.3d 570, rev. denied, 360 Or. 697, 388 P.3d 711 (2016).
Here, in contrast, “[d]efendants do not allege concurrent negligence and only proffer abstract hypotheticals concerning the potential negligence of Marion County or ODOT.” Pl.'s Reply to Mot. Partial Summ. J. 12 (doc. 50). Moreover, there are no third-party defendants and plaintiff represents that she “has not settled with any other party.” Id. at 11. The fault of any nonparty is therefore not properly before the Court. See A.F., 2022 WL 1541463 at *4 (granting partial summary judgment as to the defendants' affirmative defense relating the negligence of settled parties where the defendants neglected to “provide competent evidence to show that there is a triable issue that [the settled parties] caused [the plaintiff's] injury”). Plaintiff's motion should be granted.
II. Defendants' Partial Motion for Summary Judgment
Defendants argue that summary judgment is warranted as to punitive damages because “[t]his case does not have the type of egregious fact pattern necessary to support [such] an award.” Defs.' Mot. Partial Summ. J. 19 (doc. 39). Regarding J.B. Hunt, defendants premise their motion on the company's hiring and management policies, as well as Addo's training, driving, and disciplinary record. As to Addo, defendants rely predominantly on his deposition testimony that he was not looking at or touching his phone immediately leading up to or at the time of the accident and was instead passively streaming music to the truck's Bluetooth speaker via Spotify. Rossmiller Decl. Ex. 1, at 38-40 (doc. 40-1); Oh-Keith Decl. Ex. 9, at 6-7 (doc. 46-3).
In contrast, plaintiff contends “Addo's driving behavior” and “J.B. Hunt's employment” of Addo “demonstrates recklessness and conscious indifference.” Pl.'s Resp. to Mot. Partial Summ. J. 1, 5 (doc. 45). In support of these assertions, plaintiff cites to the eye-witness testimony of Tim Hart and Chad Martin, the expert reports of Michael Hanada and David Karlin, and Addo's training module record and driving record.
Plaintiff also attempts to introduce post-accident evidence relating to Addo's driving record and his subsequent termination with J.B. Hunt in opposing defendants' motion. However, case law “makes it clear that later conduct of the tortfeasor is relevant only to the issue of punitive damages if it is probative of his state of mind at the time of the transaction.” Mason v. Householder, 58 Or.App. 192, 197, 647 P.2d 980 (1982) (collecting cases).
Under Oregon law, punitive damages are “a penalty for conduct that is culpable by reason of motive, intent, or extraordinary disregard of or indifference to known or highly probable risks to others.” Andor v. United Air Lines, Inc., 303 Or. 505, 517, 739 P.2d 18, 25 (1987). To establish an entitlement to such damages, the plaintiff must show “a degree of culpability greater than inattention or simple negligence.” Badger v. Paulson Inv. Co., Inc., 311 Or. 14, 803 P.2d 1178 (1991). As denoted in Section I, Oregon codified this standard in Or. Rev. Stat. § 31.730(1).
Whether a defendant's conduct merits “the imposition of punitive damages is for the jury to decide, as long as there is evidence upon which the finding can be based.” Doe v. Archdiocese of Portland, 717 F.Supp.2d 1120, 1141 (D. Or. 2010) (citation and internal quotations omitted). In particular, the court's task is to “inquire . . . whether the evidence presented is such that a jury applying [the ‘clear and convincing' evidentiary standard set forth in Or. Rev. Stat. § 31.730(1)] could reasonably find for either the plaintiff or the defendant.” Pirv v. Glock, Inc., 2010 WL 11579455, *14 (D. Or. July 19, 2010). Evidence meets this standard when the “truth of the facts asserted is highly probable.” Id. (quoting Thompson v. Federico, 324 F.Supp.2d 1152, 1170 (D. Or. 2004)).
A. Evidence Relating to J.B. Hunt
According to plaintiff, “Addo failed the vast majority of [J.B. Hunt's] safety training modules - failing 70 out of 82 modules [and in] 59 of the 82, [he] received a score of 0.” Pl.'s Resp. to Mot. Partial Summ. J. 6 (doc. 45). Plaintiff also maintains that Addo had “35 safety violations in only two and a half years” and, “[f]rom September 14, 2017, to November 21, 2017, [he] received a total of ten safety violations [alone which should have resulted in] termination.” Id. at 6, 8.
i. Safety Training Modules
J.B. Hunt's corporate designee testified that, for each training module, there is a date of completion recorded and corresponding score. Rossmiller Decl. Ex. 5, at 8-9 (doc. 52-5). However, many modules “don't require a scoring system” because “there's no Q and A,” in which case completion is captured by the date and documented score of “0.” Id. at 9-11, 53. For modules that do pose questions at the end of the training, a score of 85 out of 100 is considered passing. Id. at 7; Oh-Keith Decl. Ex. 14, at 2-3 (doc. 46-8).
Thus, plaintiff erroneously equates a score of “0” with a training failure, as opposed to the completion of a module with no test questions. An independent review of J.B. Hunt's records reflect that, out of the 83 trainings Addo completed from May 2017 through January 2020, he did not obtain passing scores in six of them. Oh-Keith Decl. Ex. 15, at 5-10 (doc. 46-9). These trainings were for: (1) hazmat loads; (2) driver orientation; (3) lane changes; (4) wheel release procedures; (5) animal strikes; and (6) the Smith System. Id. The record reflects further that, prior to the accident, J.B. Hunt retrained Addo on the first, second, and third topics,and there is no allegation that animal strikes or wheel release procedures are relevant to plaintiff's injuries. Id. at 6-9. Concerning the Smith System, which is a safe driving methodology, plaintiff received this training in December 2019 and finished four follow-up modules in July 2020. Id. at 4-5. Prior to the accident, he had completed an additional three modules specific to the Smith System. Id. at 8-9.
Defendants assert that “J.B. Hunt retrained Addo on every one of those topics except for animal strikes,” however, they do not cite to any particular modules in support of this assertion and the descriptions accompanying Addo's training records do not appear to reflect follow-up pre-accident training on wheel release procedures, animal strikes, or the Smith System. Defs.' Reply to Mot. Partial Summ. J. 14 (doc. 51).
ii. Driving and Discipline Files
At all relevant times, J.B. Hunt followed a disciplinary and training policy called the West Region Preventable Incident and Collision Policy (hereinafter “30-Day Policy”). Oh-Keith Decl. Ex. 17 (doc. 46-11). This policy outlines a progressive disciplinary procedure for drivers who receive a Critical Vehicle Event, which is a system notification arising from certain categories of information - such as speeding, improper following distance, and hard braking events - detected by J.B. Hunt's truck-monitoring technology. Id.; Rossmiller Decl. Ex. 5, at 15-19, 23-24 (doc. 525).
When J.B. Hunt's truck-monitoring technology records these categories of information, a Critical Vehicle Event is created, and a notification is sent to management. Rossmiller Decl. Ex. 5, at 15-19, 23-24 (doc. 52-5). The term Critical Vehicle Event is “not . . .descriptive” and merely denotes that J.B. Hunt's truck “technology [has] record[ed] an event.” Id. at 45. Under the 30-Day Policy, each Critical Vehicle Event counts as a step; if a driver receives six such events in a 30-day rolling period, the policy instructs termination, pending J.B. Hunt's review and approval. Id.at 19; Oh-Keith Decl. Ex. 17 (doc. 46-11).
Separate from Critical Vehicle Events are “violations.” Rossmiller Decl. Ex. 5, at 40-41, 51 (doc. 52-5). For instance, a driver may be cited and/or disciplined for an “hours of service violation,” which is an “addendum to the hours of service rule that you could not work over [a certain amount of] hours without having a [a corresponding amount of] break[s].” Id. at 33-34. Likewise, a driver may be cited and/or disciplined for “complaints and unsafe acts and texting” while driving. Id. at 20. These violations, however, are not part of the 30-Day Policy. Id. at 12-14, 20, 23, 40-41; Oh-Keith Decl. Ex. 14, at 5 (doc. 46-8); Rossmiller Decl. Ex. 6, at 13 (doc. 52-6).
As such, plaintiff conflates evidence of Critical Vehicle Events with other “violations” to erroneously conclude that termination of Addo was required pursuant to the 30-Day Policy prior to the collision. Yet Addo's disciplinary record actually evinces three Critical Vehicle Events, six “hours of service violations,” and one non-roadway collision during the two-month period at issue:
• September 14, 2017: Addo failed to log his 30-minute break and received an “hours of service violation.” A written warning was issued.
• September 18, 2017: Addo tapped the side of his trailer on a corrugated-metal awning while making his first delivery within a distributor parking lot. A suspension notice was issued.
• September 18, 2017: Addo had an “hours of service violation” for going over the regulated 14-hour day. A verbal warning was issued.
• September 25, 2017: The radar of Addo's trailer recorded that he was too close behind another forward-moving vehicle. This was a Critical Vehicle Event and triggered the first step in the 30-Day Policy. Addo was given a written warning.
• September 27, 2017: Addo's truck engaged its collision mitigation breaking system when “[a] vehicle pulled into his lane causing the alarm to be triggered.” This qualified as a Critical Vehicle Event, although “the metadata showed that a vehicle was not there and then all of a sudden the vehicle is there.” Addo was nonetheless “given a written warning with applicable training.”
• September 28, 2017: The radar of Addo's trailer recorded that he was too close behind another forward-moving vehicle. This was a Critical Vehicle Event and triggered another step in the 30-Day Policy. Addo was given a written warning.
• October 4, 2017: Addo experienced an “hours of service violation” from logging in early during his 30 minute break by less than one minute. A written warning was issued.
• October 12, 2017: Addo experienced another “hours of service violation” from logging in “too early before his 30 [minute break is] completely up.” Addo was given a written warning.
• October 19, 2017: Addo sustained an “hours of service violation” for going over the regulated 14-hour day on an unfamiliar route. A verbal warning was issued.
• November 7, 2017: Addo had a 14-hour and 11-hour “hours of service violation” for “fail[ing] to complete his 10 hour reset while in [M]eridian.” A written warning was issued.
Oh-Keith Decl. Ex. 14, at 4, 19-28 (doc. 46-8); Oh-Keith Decl. Ex. 16, at 1-20 (doc. 46-10); Rossmiller Decl. Ex. 5, at 15-18, 36-52 (doc. 52-5).
Concerning Addo's overall driving record, the evidence before the Court demonstrates that, between May 2017 and January 2020, he had “35 review opportunities” which placed him in “the top 10 to 15 percentile as being the best” because he “had no accidents on his record,” “few very [Critical Vehicle Events],” “no moving violations,” and only “one random complaint and a fewer minor hours of service events.” Oh-Keith Decl. Ex. 14, at 17-18 (doc. 46-8); Oh-Keith Decl. Ex. 16, at 1-30 (doc. 46-10); Oh-Keith Decl. Ex. 21, at 20 (doc. 46-15).
Of the “hours of service violations,” only one involved aggravating circumstances. That is, in January 2018, Addo “illegally” completed an approximately 220 mile drive after logging out for the night. Rossmiller Decl. Ex. 1, at 24-25 (doc. 40-1); Oh-Keith Decl. Ex. 16, at 21 (doc. 4610); Rossmiller Decl. Ex. 5, at 30-32 (doc. 52-5). “After some investigative work, and a conversation with [Addo],” J.B. Hunt determined that he had falsified his records surrounding this event. Oh-Keith Decl. Ex. 16, at 21 (doc. 46-10). Addo received a “harsh and very transparent” warning and one day suspension. Id. He had no other major “hours of service violations” after that date. Rossmiller Decl. Ex. 5, at 32-35 (doc. 52-5).
In regard to the driver complaint, the undisputed record demonstrates J.B. Hunt investigated and gave Addo a verbal warning, despite determining that he had not violated any trucking regulations or company policies by using his dash-mounted cell phone's GPS (which contained banner ads). Rossmiller Decl. Ex. 1, at 27-29 (doc. 40-1); Oh-Keith Decl. Ex. 14, at 914 (doc. 46-8); Oh-Keith Decl. Ex. 16, at 23-34 (doc. 46-10); Rossmiller Decl. Ex. 5, at 27-29 (doc. 52-5). The remaining incident on file, which concerned Addo's first moving violation in December 2019, resulted in J.B. Hunt consulting with its legal team and successfully “fighting the ticket and violation.” Oh-Keith Decl. Ex. 16, at 29-30 (doc. 46-10).
Based on this uncontradicted evidence, a reasonable jury could not conclude that J.B. Hunt's training and discipline of Addo exhibited recklessness or a conscious disregard to the health, safety, and welfare of others. In other words, plaintiff neglected to present evidence sufficient to demonstrate J.B. Hunt failed to take proper measures to train Addo and supervise his employment, or otherwise ignored a known risk to other drivers. Defendants' motion should be granted as to J.B. Hunt.
B. Evidence Relating to Addo
Plaintiff asserts “the data conclusively show that for the twenty minutes prior to and up until the time of the crash - from 7:56 a.m. to 8:15 a.m. - Defendant Addo was actively watching videos and toggling between different applications on his cell phone,” which is sufficient for the imposition of punitive damages. Pl.'s Resp. to Mot. Partial Summ. J. 4 (doc. 45).
i. Accident Witness Testimony
Hart testified that he was driving directly behind Addo for about ten minutes before the collision occurred on January 20, 2020. Rossmiller Decl. Ex. 5, at 7-8 (doc. 40-5). He described Ehlen Road as a two-lane rural road with curves that are “a little” but “not overly windy,” and estimated that the traffic was “average . . . Probably passing, you know, half a dozen cars a minute or so.” Id. at 24; Oh-Keith Decl. Ex. 7, at 2 (doc. 46-1).
Hart observed Addo's trailer's right tires drift over the fog line “about six times.” Rossmiller Decl. Ex. 5, at 8-9 (doc. 40-5). Hart “had no idea” what was going on with Addo, as he “couldn't see anything . . . in the truck,” but he felt like his driving was “becoming dangerous” as each time the truck drifted off the road to the right “a little further.” Id. at 9-10. Despite the drift, Addo did not hit the dirt shoulder, which was a “couple of feet” beyond the fog line, until immediately prior to the accident. Id. at 25-27.
Martin was travelling directly behind Hart. Rossmiller Decl. Ex. 6, at 6 (doc. 40-6). He estimated that there were “30 to 50 cars” driving westbound during the five minutes he followed Addo's and Hart's vehicles. Id.; Oh-Keith Decl. Ex. 8, at 4 (doc. 46-2). Martin observed Addo's truck “swerv[e] off of the road . . . five 5 to seven times.” Rossmiller Decl. Ex. 6, at 7 (doc. 40-6).
He noticed that both he and Hart had “backed off a little bit” due to “what was happening in front of us that day.” Id.
The Marion County Sheriff's Office's accident report reflects Martin's coterminous statement that he “highly suspected the semi truck driver was using their cell while driving” based on his observations of Addo's truck leading up to the accident. Rossmiller Decl. Ex. 2, at 8 (doc. 40-2). Martin elaborated at this deposition:
I felt that -- I can't say for sure but I do feel that the driver was distracted [and driving in an unsafe manner]. I felt in my opinion that the driver was on his phone.
I didn't think it was -- he was falling asleep because the truck would go off and then jerk back on real quick and like -- like not immediately but like within, you know, a second or two. So I felt like somehow or another that the driver was distracted.
Oh-Keith Decl. Ex. 8, at 4-5 (doc. 46-2).
ii. Expert Reports
Although defendants are critical of certain aspects of plaintiff's expert reports, they do not argue they are inadmissible or otherwise object to them under Fed.R.Evid. 702.
a. David Karlin, Mechanical Engineer
After reviewing the data, scene of the accident, Marion County Sheriff's Office's accident report, and depositions of Addo, Hart, and Martin, Karlin concluded that Addo's truck “had cruise control engaged at about 58 mph” and “wander[ed] to the right and over the fogline onto the shoulder multiple times,” after which the trailer wheels “left the roadway altogether and were in the adjoining ditch for at least 260 feet (3 seconds at 58 mph) [while] the cruise control remained engaged.” Rossmiller Decl. Ex. 3, at 1 (doc. 40-3). Karlin also denoted “[t]he EDR data that recorded one minute of cruise control use did not show any braking (other than a momentary jab to cancel cruise control)”; the driver subsequently “tapped the brake, waited four seconds, then activated the clutch for the next 15 seconds.” Id. at 4.
Karlin then opined:
The proximal cause of the crash was the truck driver's loss of situational awareness along with a delayed and unskilled driving response once he discovered his truck had left the road. The curvy two lane rural road with narrow shoulders required attentive driving for all vehicles, especially a commercial vehicle. Once the truck left the road, a safer response would have been to brake immediately and safely, then reenter the roadway at a shallow angle (or pull over and let following traffic pass before reentering the travel lane) . . . The reported wandering of the tractor/semi-trailer off the roadway and delay in deactivating cruise control was more consistent with driver distraction than with trailer sway.Id. at 2, 4. Karlin elaborated in his deposition that the basis of his opinion was as follows:
The fact that [Addo's] responses were delayed is shown in the engine trip summary report . . . My opinion that he had an unskilled driving response, the basis for that is my truck driving experience, my years of analyzing truck accidents, and all of the knowledge that goes into being a Traffic Accident Reconstructionist . . . a commercial truck driver who allows his vehicle to slip off the road and then slip off the road some more and then slip off the road until he's fully in the ditch after wandering on and off the road for some distance before that, is a person who's lost situational awareness. That is not consistent with trailer sway, wind, slipping on the road or anything else. It is an egregious loss of situational awareness. And then with all the delays in response, it suggests that, uh, for some reason this driver is not on top of his truck, which is how all drivers are taught, to be on top of your truck, be in control of your truck, and always be looking for an out when emergencies arise.Oh-Keith Decl. Ex. 13, at 4-5 (doc. 46-7).
b. Michael Hanada, Forensic Analyst
Defendants retained their own forensic analyst - he agreed with Hanada's assessment of the data retrieved from Addo's phone, although he disagreed with Hanada's conclusions. See generally Rossmiller Decl. Ex. 7 (doc. 40-7).
Hanada indicated in his report that the following cell phone applications were activated during the following times:
• Spotify: 5:33 a.m. to 6:19 a.m., and 6:34 a.m. to 7:27 a.m. - the Spotify files written to the phone “appear to be a result of the user listening to music between the above times.”
• YouTube: 6:19 a.m. to 6:30 a.m., 7:40 a.m. to 7:54 a.m., and 7:56 a.m. to 8:15 a.m. - the YouTube files written to the phone “numbered in the thousands” and were in the “.exo” file format, which “is a small encrypted video fragment which is played within the YouTube application . . . A history playlist was not found on
the phone [but the] video file fragments were consistent with the user watching YouTube during the above times.”
• Amazon Prime: 8:07 a.m. - the Amazon Prime files written to the phone “indicate . . . the user opened the application at 8:07am” and “there is a file modified time stamp on a video file showing the Jack Ryan series trailer.”Rossmiller Decl. Ex. 8, at 2-3 (doc. 40-8).
In his supplemental report, Hanada offered a clarification based on an assessment of “same model of Samsung phone which was extracted by deputies from the Marion County Sheriff's Office seized from Mr. Addo.” Oh-Keith Decl. Ex. 11, at 1 (doc. 46-5). He opined that:
• “Only during the times the [YouTube] application was playing the videos were the EXO files being written to the cache directory. Exo files stop caching when YouTube is suspended (Still in the background but not playing videos).”
• “When listening to music on Spotify, the YouTube application is present in the corner of the screen but will no longer play . . . during the time the music was playing and the YouTube video suspended, there were no writes to YouTube's cache folder during the time Spotify was playing and the YouTube application was suspended and paused on the screen overlaying the Spotify application.”
• “While I agree with [defendants' forensic analyst] that two streaming applications cannot be playing at the same time, what I see based on file system writes and application logs is consistent with YouTube being played on the phone, it is suspended when the user opens the Amazon Prime app, and begins again after the Prime app is closed and the YouTube app is being played as EXO files are being cached again.”Id. at 3-8. Hanada concluded “at the times noted on in my last report the YouTube application was the only application on, downloading, and playing content” and that a video “was playing from 7:56:55 AM PST to the time of the crash with a 6 second break in YouTube between 8:07:14 AM PST to 8:07:22 AM PST where the Amazon Prime video app shows being launched, and files being modified and video caching.” Id. at 8.
Viewing this evidence in the light most favorable to plaintiff, a jury could reasonably infer that Addo was handling his phone, watching videos, and/or “surfing the internet” all while operating a heavy truck on a two-lane winding road at a relatively high rate of speed, with a moderate amount of vehicle traffic in the vicinity.Based on a number of studies cited by plaintiff (which defendants do not address or otherwise attempt to refute), distracted driving, whether due to cell phone usage or otherwise, is equivalent to or more dangerous than drunk driving. See, e.g., Pl.'s Resp. to Mot. Partial Summ. J. 12-15 (doc. 45). And J.B. Hunt determined the accident was “preventable” in light of the “overcorrection that Mr. Addo made, you know, when you hang a steer tire or drive tire you should simply ride it out or try to get back on the roadway in a slow manner.” Oh-Keith Decl. Ex. 14, at 35 (doc. 46-5).
Defendants dispute this inference because Addo testified “that he was listening to audio from his phone via Bluetooth” and there is no contradictory “testimony or digital [information]” and otherwise “no evidence regarding what Addo's phone's orientation was (i.e., screen down, screen facing away, in a cup holder, on a mobile phone mount, in a pocket, etc.) or whether the phone's screen was within Addo's line of sight.” Defs.' Reply to Mot. Partial Summ. J. 8 (doc. 51). However, Hanada's reports clearly intimate that the cached files would not exist but for the cell phone user manually alternating between platforms. And the fact that no one directly witnessed Addo on his phone at the time of accident is not dispositive in this context given the witness statements and expert reports. Cf. Two v. Fujitec Am., Inc., 355 Or. 319, 332, 325 P.3d 707 (2014) (negligence “may be proved by circumstantial evidence, expert testimony, or common knowledge”); see also Chapman v. Mayfield, 263 Or.App. 528, 534-35, 329 P.3d 12 (2014), aff'd, 358 Or. 196, 361 P.3d 566 (2015) (articulating the standard under Federal and state law for “determining whether a particular inference is a reasonable one,” explaining that the “line is drawn by the law of logic”) (citations and internal quotations omitted). In essence, this issue comes down to Addo's credibility, which falls squarely within the purview of the jury.
As plaintiff denotes, this District has repeatedly allowed punitive damages claims to proceed in cases involving semi-truck accidents, even in the absence of alcohol or drug consumption by the driver. SeeMoutal v. Exel, Inc., 2018 WL 7254697, *3-4 (D. Or. Dec. 21, 2018), adopted by 2019 WL 507465 (D. Or. Feb 7, 2019) (denying summary judgment as to punitive damages where the defendant “drove a semi-truck on an interstate highway at an excessive speed” - i.e, approximately 5 miles per hour over the speed limit - and “failed to maintain his lane,” and the accident was “avoid[able]”; post-accident evidence that the driver “did not aid the injured” and interrupted witness statements further emphasized his conscious indifference to the welfare of others); Ibanez v. Bettazza, 2013 WL 1295219, *4 (D. Or. Mar. 28, 2013) (denying summary judgment as to punitive damages based on evidence that the defendant drove a semitruck “at more than twice the maximum safe speed” at night on an icy road, and with knowledge that the brakes on the second trailer were malfunctioning). Although the facts in Moutal and Ibanez are different, these cases overall support the proposition that summary judgment as to punitive damages is improper where, as here, there is evidence that the driver failed to account for certain road conditions while engaging in potentially unsafe behaviors. Defendants' motion should be denied as to Addo.
RECOMMENDATION
For the foregoing reasons, plaintiff's Motion for Partial Summary Judgment (doc. 37) should be granted. Defendants' Motion for Partial Summary Judgment (doc. 39) should be granted as to punitive damages in relation to J.B. Hunt based on their own actions in hiring, training, and disciplining Addo, and denied in all other respects. The parties' requests for oral argument are denied as unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment.