Fogarty v. Campbell 66 Exp., Inc.

• Decision Date: 23 July 1986
• Docket Number: Civ. A. No. 85-2117,85-2118.
• Citation: 640 F. Supp. 953
• Parties: Barbara L. FOGARTY, Administrator of the Estate of John Joseph Fogarty, Deceased, Plaintiff, v. CAMPBELL 66 EXPRESS, INC., a corporation; Protective Insurance Company, an insurance corporation; Jerry B. Milligan; and Cheryl L. Budnik, Defendants. Barbara L. FOGARTY, Widow, Next of Kin and Heir at Law of John Joseph Fogarty, Deceased, Plaintiff, v. CAMPBELL 66 EXPRESS, INC., a corporation; Protective Insurance Company, an insurance corporation; Jerry B. Milligan; and Cheryl L. Budnik, Defendants.
• Court: U.S. District Court — District of Kansas

640 F. Supp. 953

Barbara L. FOGARTY, Administrator of the Estate of John Joseph Fogarty, Deceased, Plaintiff, v. CAMPBELL 66 EXPRESS, INC., a corporation; Protective Insurance Company, an insurance corporation; Jerry B. Milligan; and Cheryl L. Budnik, Defendants.

Barbara L. FOGARTY, Widow, Next of Kin and Heir at Law of John Joseph Fogarty, Deceased, Plaintiff, v. CAMPBELL 66 EXPRESS, INC., a corporation; Protective Insurance Company, an insurance corporation; Jerry B. Milligan; and Cheryl L. Budnik, Defendants.

Civ. A. Nos. 85-2117, 85-2118.

United States District Court, D. Kansas.

July 23, 1986.

David M. Remley, Remley, Heiserman & Willems, Anamosa, Iowa, John E. Shamberg, Shamberg, Johnson, Bergman & Goldman, Chartered, Shawnee Mission, Kan., for plaintiff.

Barton Brown, Jeffrey L. Lauersdorf, Wallace, Saunders, Austin Brown & Enochs, Overland Park, Kan., for defendants Campbell 66, Protective Ins., and Budnik.

Kenneth J. Reilly, Boddington & Brown, Kansas City, Kan., for defendant Milligan.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on defendants' motions for partial summary judgment and on plaintiff's motion to strike "Defendants' Supplement to Designation of Experts."

I. Motions for Summary Judgment.

Entry of summary judgment is appropriate where "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, ___ U.S. ___, ___, 106 S.Ct. 2548, 2552, 81 L.Ed.2d 265 (1986). In considering such a motion, we must examine all evidence in the light most favorable to the opposing party. Prochaska v. Marcoux, 632 F.2d 848, 850 (10th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 841 (1981). Where differing inferences could reasonably be drawn from conflicting affidavits and depositions, summary judgment should be denied. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Where only partial summary judgment is appropriate, we may enter an order to that effect. Fed.R.Civ.P. 56(d). In any event, the Tenth Circuit requires a moving party to demonstrate his entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985).

The facts material to the resolution of defendants' motions for partial summary judgment, construed most favorably to plaintiff, are as follows. On December 16, 1983, at 10:20 p.m., defendant Cheryl L. Budnik "Budnik" was driving a tractor-trailer rig in an easterly direction along U.S. Highway 166 in Labette County, Kansas. At the same time, the late John Joseph Fogarty "decedent" was driving a tractor-trailer in a northerly direction along U.S. Highway 59. The two vehicles collided at the intersection of those two highways. Prior to the collision, decedent's truck left fifty-six feet of skid marks. After the collision, both vehicles left the roadway, with decedent's truck eventually breaking through a six-foot concrete wall. Budnik was injured in the collision, but did survive. Decedent was killed when the load of steel he was hauling penetrated his cab, crushing his head and thorax. According to his death certificate, decedent's death was "immediate."

The truck driven by Budnik was owned by defendant Jerry B. Milligan "Milligan" and was leased to defendant Campbell 66 Express, Inc. "Campbell 66". Plaintiff Barbara L. Fogarty is the widow and legal heir of decedent, as well as the administratrix of his estate. Plaintiff was also the co-owner (along with decedent) of the truck decedent was driving.

In response to decedent's death, plaintiff filed both a survival action (No. 85-2117) and a wrongful death action (No. 85-2118) against the defendants. Plaintiff alleges that Budnik was negligent in failing to obey a stop sign, in operating her vehicle while fatigued, and in traveling at an excessive rate of speed. Plaintiff seeks to recover both actual and punitive damages against Budnik. Milligan and Campbell 66 have stipulated that, at all material times, Budnik was operating her vehicle within the scope of her authority as an agent of both Milligan and Campbell 66. They thus concede that they would be vicariously liable for any actual damages attributable to Budnik's fault. They do not concede vicarious liability for punitive damages. Plaintiff also alleges independent negligence on the part of Campbell 66 in failing to warn Budnik that the intersection in question was unsafe. Again, plaintiff seeks to recover both actual and punitive damages for Campbell 66's allegedly negligent conduct.

Traffic approaching the intersection from Highway 166 would have encountered a stop sign. Located some 1,409 and 746 feet west of that stop sign, and apparently clearly visible to vehicular traffic, were two separate "stop ahead" signs. Budnik testified by way of deposition that, for various reasons, she failed to see those signs on the night in question. Being unfamiliar with the intersection, and assuming that the U.S. Highway on which she was traveling would have the right-of-way, she failed to stop before entering the intersection. By the time she realized her mistake, the collision had occurred.

The unusual factual circumstances of this case present a number of legal issues. First, is plaintiff entitled to recover for decedent's emotional distress occurring prior to the collision between the two vehicles? A second, and quite distinct, question concerns her entitlement to recover for decedent's post-impact emotional distress. (Plaintiff has essentially conceded that decedent's "immediate" death rules out any recovery for physical pain and suffering.) A third issue raised by defendants involves the proper action in which to recover for damages to the tractor-trailer co-owned by plaintiff and decedent — i.e., the survival action or the wrongful death action. Whether Campbell 66 may be held independently liable for decedent's death constitutes the fourth issue. And finally, defendants seek to avoid all liability for punitive damages — both directly and indirectly. We will address each of these issues in turn.

A. Pre-Impact Emotional Distress.

In Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 274, 662 P.2d 1214, 1219-20 (1983), the Kansas Supreme Court summarized the current law concerning recovery for emotional distress:

It has long been the general rule in Kansas that there can be no recovery for emotional distress suffered by the plaintiff which is caused by the negligence of the defendant unless it is accompanied by or results in physical injury to the plaintiff. This rule, however, does not apply where the injurious conduct is willful or wanton, or the defendant acts with intent to injure.

(Emphasis added; citations omitted.) Although the evidence produced by plaintiff fails to support a finding that Budnik's actions were either willful or intentional, we cannot say, beyond a reasonable doubt, that those acts were not wanton. The Kansas Supreme Court has defined that term as follows:

Wanton conduct is distinguished from a mere lack of due care by the fact that the actor realized the imminence of injury to others from his acts and refrained from taking steps to prevent the injury. This reckless disregard or complete indifference rises substantially beyond mere negligence.

Bowman v. Doherty, 235 Kan. 870, 876, 686 P.2d 112, 118 (1984). The uncontroverted evidence shows that Budnik had ample opportunity to see the two "stop ahead" signs, as well as the eventual stop sign. Yet, by her own testimony, she was traveling at forty-two to forty-three miles per hour as she entered the intersection. Given the number and placement of warning signs, the jury might well discredit Budnik's testimony that she failed to see them. Had Budnik actually seen the signs but nonetheless proceeded through the intersection without stopping, she should have realized that any traffic traveling through the intersection along Highway 59 would be in imminent danger of injury. Her failure to come to a stop could thus have constituted wanton conduct.

Whether Budnik's actions were indeed wanton is a factual question that remains for resolution at trial. In ruling on these motions for partial summary judgment, we are of course giving every benefit of the doubt to plaintiff. After hearing plaintiff's evidence at trial, however, we may well determine that a directed verdict on this issue would be in order.

Because it is entirely possible that either the jury or the court will find that Budnik's actions were not wanton, we proceed to consider whether plaintiff may recover for decedent's negligently induced, pre-impact emotional distress. In making this determination, we return to the first of the two sentences quoted from Hoard, supra. Plaintiff has presented no evidence that decedent's emotional distress "resulted in" physical injury. For example, plaintiff does not claim that decedent suffered a heart attack prior to his death. Rather, plaintiff intends to seek recovery for pre-impact emotional distress on the ground that such distress was "accompanied by" physical injury — in this case, the subsequent crushing of decedent's head and thorax. In other words, plaintiff construes "accompanied by" to include instances in which physical injury occurs after, and yet not as a result of emotional distress.

The Kansas case law does not explicitly support plaintiff's interpretation. Although the rule that there can be no recovery for emotional distress "unless it results in or is accompanied by physical injury" has regularly appeared in the Kansas cases since at least 1916, see Whitsel v. Watts, 98 Kan. 508, 509, 159 P. 401 (1916), we have found no Kansas decision involving subsequent physical injury not actually caused by the...