Kinzer v. Serv. Trucking
| Decision Date | 19 February 2020 |
| Docket Number | Case No. 2:17-cv-675 |
| Parties | RICHARD C. KINZER, et al., Plaintiffs, v. SERVICE TRUCKING, INC. et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment (ECF No. 33), Plaintiffs' Brief in Opposition (ECF No. 46), and Defendants' Reply Memorandum (ECF No. 55). For the reasons that follow, the Court GRANTS Defendants' Motion for Summary Judgment.
On July 6, 2015, at approximately 9:49 a.m., Plaintiff Richard Kinzer ("Mr. Kinzer") was driving south on U.S. Route 23 in Franklin County, Ohio in his 2004 Saturn Ion. (Mayboroda Depo., 23-24, ECF No. 51-1; Hickok Report., 2, ECF No. 47-12).1 Ahead of Mr. Kinzer, Defendant Sergiy Mayboroda was also traveling south on Route 23, operating a 2001 Volvo tractor hauling an empty 1999 Dorsey trailer. (Hickok Rep., 2; Mayboroda Depo., 16, 24). The tractor trailer was owned by Mr. Mayboroda's employer, Defendant DC Transportation Services, Inc. ("DC Transport"). (Mayboroda Depo., 10, 12, 16). The weather that morning was clear. (Id. at 24).
The portion of Route 23 at issue is divided with a grass median. (Hickok Rep., 2). At the intersection of Route 23 and Rowe Road, going southbound, there are four lanes: two designated through lanes, a designated left-turn only lane, and a designated right-turn only lane. (Drew Aff., ¶ 4, ECF No. 33-1). The speed limit is 55 miles per hour and there is no traffic light at the intersection. (Id.).
After passing his intended exit, Mr. Mayboroda pulled his tractor trailer over into the right-turn only lane at the intersection of Route 23 and Rowe Road and turned on his four-way flashers. (Mayboroda Depo., 24, 26; Hickok Rep., 2). Roughly 33.75 seconds thereafter, Mr. Kinzer "drifted in a gentle arc" from the far-left southbound through lane over to the right-turn only lane. (Police Report, 1, ECF No. 46-4; Drew Aff., ¶ 4). According to an eyewitness, Mr. Kinzer appeared to suddenly slump over before his Saturn Ion struck the rear left corner of Mr. Mayboroda's tractor trailer at a speed of approximately 58 miles per hour. (Drew Aff., ¶ 4; Photographs, ECF No. 33-5; Haun Aff. ¶ 6, ECF No. 46-5).
Although Mr. Mayboroda admitted that he was contemplating making a U-turn, all of his tires were still straight within the right-turn only lane at the time of the collision. (Stalnaker Depo., 61, ECF No. 38-1; Mayboroda Statement, ECF No. 47-6). The tractor trailer was completely visible; there was nothing preventing southbound vehicles from observing Mr. Mayboroda's stopped tractor trailer at over 1,000 feet away. (Drew Aff., ¶ 4; Police Rep., 2). According to the police report, Mr. Kinzer was "at fault" for the accident because "[h]e failed to maintain reasonable control of his vehicle and ran into a completely stopped vehicle which was outside of the normally traveled part of the roadway." (Police Rep., 2). The police report also indicated that Mr. Mayboroda was not in violation of any traffic code. (Id.).
Mr. Kinzer does not remember anything about the accident, including the events leadingup to it. (R. Kinzer Depo., 21-22, ECF No. 34-1). According to Mr. Kinzer's mother, Plaintiff Lisa Kinzer, Mr. Kinzer was "very sick" the night before with a fever and congestion. (L. Kinzer Depo., 48-49, ECF No. 35-1). On the morning of the crash, Mr. Kinzer left work early with symptoms later determined to be consistent with pneumonia. (Dr. Shannon Report, 1, ECF No. 33-7). While chest x-rays taken on July 7 indicated Mr. Kinzer's lungs were clear, he was diagnosed with pneumonia sometime after he was admitted to the hospital. (Id; X-ray Report, ECF No. 33-9; Dr. Ortega Depo., 48, ECF No. 36-1). Mr. Kinzer also tested positive for opiates following the crash. (Drug Test Report, ECF No. 33-8). He later reported to medical professionals that he was four months sober at the time of the accident after abusing heroin, alcohol, marijuana, and opiates for the previous five years. (Dr. Shannon Rep., 4).
Following the collision, Mr. Kinzer was diagnosed with a subdural hematoma resulting in severe traumatic brain injury. (Id. at 1, 7). Additional injuries included left eye trauma, liver laceration, and facial fractures. (Id. at 1). On September 14, 2015, he was discharged to the full-time care of Ms. Kinzer. (L. Kinzer Depo., 7-8; Shannon Rep. 2). As a result of the accident, Mr. Kinzer has undergone physical therapy, occupational therapy, and speech therapy. (R. Kinzer Depo., 24). Mr. Kinzer is unable to walk without assistance and suffers from permanent impairment to his peripheral vision. (Id. at 17). He also suffers from memory loss. (See generally R. Kinzer Depo.). Mr. Kinzer will require supervision for the remainder of his life although medical professionals note that he has made surprisingly significant progress since the accident. (Dr. Ortega Report, 5, ECF No. 46-10; L. Kinzer Depo., 9).
As part of this litigation, Dr. Bienvenido Ortega examined Mr. Kinzer and reviewed his medical records. (Dr. Ortega Depo., 11, 43, ECF No. 36-1). Initially, Dr. Ortega noted that while he believed Mr. Kinzer suffered from a period of unconsciousness prior to the accident, therewas nothing in the medical records provided to him that pointed to a conclusive medical reason for Mr. Kinzer's sudden loss of consciousness. (Id. at 58-59). Dr. Ortega later opined that given Mr. Kinzer's high white blood count right after the crash, he likely "suffered from some type of sudden medical emergency prior to the collision" caused by the beginning stages of pneumonia. (Dr. Ortega Aff., ¶¶ 12-13, 20, ECF No. 47-1).
On July 5, 2017, Mr. Kinzer, along with his parents, Lisa and James Kinzer, filed a complaint in the Franklin County Court of Common Pleas. (ECF No. 1-3). On August 2, 2017, Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1332, 1441.2 (ECF No. 1). Multiple stipulations have been filed since, terminating many of the original defendants to this action. At this juncture, the following claims remain: negligence against Mr. Mayboroda (Count One); respondeat superior against DC Transport (Count Two); negligent hiring, training, and/or supervision against DC Transport (Count Five), and loss of wages and consortium against both Defendants (Counts Seven and Eight). Defendants filed a joint Answer on August 2, 2017. (ECF No. 3).
On August 13, 2019, Defendants moved for summary judgment. (ECF No. 33). Plaintiffs responded on October 3 (ECF No. 46), and Defendants filed their reply brief on October 16 (ECF No. 55). Defendants' Motion for Summary Judgment is now ripe for review.
Under the Erie 3 doctrine, federal courts sitting in diversity apply state substantive law.Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). The forum state's choice of law rules determines what state law to apply. Miller v. State Farm Mut. Auto. Ins. Co., 87 F.3d 822, 824 (6th Cir. 1996). However, "'[w]here neither party argues that the forum state's choice-of-law rules require the court to apply the substantive law of another state, the court should apply the forum state's substantive law.'" Wilkes Assocs. v. Hollander Indus. Corp, 144 F. Supp. 2d 944, 949 n.4 (S.D. Ohio 2001) (quoting ECHO, Inc. v. Whitson Co., Inc., 52 F.3d 702, 707 (7th Cir. 1995)). Here, the car accident occurred in Ohio and both parties consistently rely upon Ohio law in their memoranda. Consequently, the Court will apply Ohio substantive law.
Conversely, federal courts sitting in diversity apply federal procedural law. Gasperini, 518 U.S. at 427. It follows that "[w]hen there is a motion for summary judgment in a diversity case, the provisions of [Fed. R. Civ. P.] 56 control its determination." Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 574 (6th Cir. 2008) (internal quotations omitted); see also Hanna v. v. Plumer, 380 U.S. 460, 471-74 (1965) (). Accordingly, Plaintiffs' reliance on Ohio Supreme Court cases interpreting Ohio R. Civ. P. 56 is misplaced. (See Pls. Brief Opp., 8, ECF No. 46). Federal Rule of Civil Procedure 56 governs this action.
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The movant has the burden of establishing there are no genuine issues of material fact, which may be achieved by demonstrating the nonmoving party lacks evidence to support an essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhartv. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). The burden then shifts to the nonmoving party to "'set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56). When evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
A genuine issue exists if the nonmoving party can present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). In other words, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (...
To continue reading
Request your trial