Surnow v. Buddemeyer

• Decision Date: 17 July 2019
• Docket Number: CIV. NO. 17-00038 JMS-RT
• Parties: ELAINE SURNOW, individually and as personal representative of the ESTATE OF JEFFREY SURNOW, deceased; MAX SURNOW; SAM SURNOW; and LISA SURNOW Plaintiffs, v. JODY BUDDEMEYER; and COUNTY OF HAWAII, Defendants.
• Court: U.S. District Court — District of Hawaii

ELAINE SURNOW, individually and as personal representativeof the ESTATE OF JEFFREY SURNOW, deceased; MAX SURNOW; SAM SURNOW;and LISA SURNOW Plaintiffs, v. JODY BUDDEMEYER; and COUNTY OF HAWAII, Defendants.

CIV. NO. 17-00038 JMS-RT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

July 17, 2019

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT, ECF NOS. 100, 102

I. INTRODUCTION

On January 26, 2017, Plaintiff Elaine Surnow, individually and as personal representative of the estate of Jeffrey Surnow, deceased, Max Surnow, Sam Surnow, and Lisa Surnow (collectively, "Plaintiffs") filed a Complaint alleging claims arising from the death of Jeffrey Surnow against Defendants Jody Buddemeyer ("Buddemeyer") and the County of Hawaii ("County") (collectively, "Defendants"). ECF No. 1.

Currently before the court are two Motions for Partial Summary Judgment filed by Plaintiffs, ECF Nos. 100 & 102 (collectively, "Motions"). Based on the following, the court GRANTS IN PART and DENIES IN PART both Motions.

II. BACKGROUND

A. Factual Background

On the morning of March 1, 2015, Jeffrey Surnow was riding his bicycle on Waikoloa Road in the County of Hawaii. At approximately 6:18 a.m., Buddemeyer, a Hawaii County Police Officer, struck the bicycle from behind with his police vehicle, causing fatal injuries to Jeffrey Surnow.

Based on these events, Buddemeyer was criminally charged. In his criminal trial, Buddemeyer testified that he did not remember what happened before the moment of impact during the accident. Prior to the accident, Buddemeyer was required to work a "double-back shift," which involved a shift from 6:45 a.m. to 3:30 p.m., followed by a 7-plus-hour break, then followed by a second shift from 10:45 p.m. until 7:30 a.m. the next morning. Buddemeyer did not rest between the two shifts.

On October 12, 2018, Buddemeyer was convicted, following a jury trial, of Negligent Homicide in the Third Degree in violation of Hawaii Revised Statute ("HRS") § 707-704. The conviction is currently on appeal.

B. Procedural History

Plaintiffs filed their Complaint on January 26, 2017 alleging the following claims for relief: (1) negligence, gross negligence, and wrongful death against Buddemeyer; (2) negligence and wrongful death against the County; (3) vicarious and/or respondeat superior liability against all Defendants; (4) negligent infliction of emotional distress against all Defendants; (5) derivative claims against all Defendants; and (6) punitive damages against all Defendants.¹ ECF No. 1.

On February 6, 2019, Plaintiffs filed their "Motion for Partial Summary Judgment as to the Liability of Defendant County of Hawaii Based on the Doctrine of Judicial Estoppel." ECF No. 100. On April 15, 2019, Buddemeyer filed his Statement of No Position, and the County filed its Opposition. ECF Nos. 154, 161. On April 22, 2019, Plaintiffs filed their Amended Reply. ECF No. 183.

On February 6, 2019, Plaintiffs filed their "Motion for Partial Summary Judgment as to the Liability of Defendant County of Hawaii Regarding Defendant Jody Buddemeyer's Negligence." ECF No. 102. On April 15, 2019, Buddemeyer and the County filed their Oppositions, ECF Nos. 150, 163. On April 22, 2019, Plaintiffs filed their Amended Reply. ECF No. 182.

A hearing was held on the Motions on May 6, 2019.

III. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

The moving party "bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). "When the moving party has carried its burden underRule 56[(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted).

"An issue is 'genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is 'material' only if it could affect the outcome of the suit under the governing law." In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1184 (9th Cir. 2016).

IV. DISCUSSION

Plaintiffs move for partial summary judgment, arguing that the County is judicially estopped² at trial "from denying the negligence of itsemployee, Defendant Jody Buddemeyer." See ECF No. 100 at PageID #665. In the alternative, Plaintiffs argue that they are entitled to summary judgment because there is no genuine dispute of material fact that: (1) Buddemeyer was negligent; (2) Jeffrey Surnow was not comparatively negligent; and (3) Buddemeyer was acting in the scope of his employment with the County at the time of the accident. See ECF No. 100-1 at PageID #668; ECF No. 102-1 at PageID #757.³ The court agrees with Plaintiffs in part, finding that: (1) the County is judicially estopped from arguing that Buddemeyer was not negligent; and (2) there is no genuine issue of material fact that Buddemeyer was acting within the scope of his employment.

A. Judicial Estoppel

County prosecutors sought and obtained a conviction of Buddemeyer for Negligent Homicide in the Third Degree for the death of Jeffrey Surnow. See HRS § 707-704 ("A person is guilty of the offense of negligent homicide in the third degree if that person causes the death of another person by the operation of a vehicle in a manner which is simple negligence."). In the instant case, Plaintiffs move for partial summary judgment, arguing that the County is judicially estopped from either disputing Buddemeyer's negligence or asserting that Jeffrey Surnow was comparatively negligent.⁴ The court agrees, but only as to Buddemeyer's negligence.⁵

"[F]ederal law governs the application of judicial estoppel in federal court." Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 603 (9th Cir.1996); see also Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 992 (9th Cir. 2012); Joseph v. Renal Care Grp., Inc., 2015 WL 5704305, at *3 n.2 (W.D. Wash. Sept. 28, 2015).

Judicial estoppel, generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. It is an equitable doctrine invoked not only to prevent a party from gaining an advantage by taking inconsistent positions, but also because of general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings, and to protect against a litigant playing fast and loose with the courts. . . .

The Supreme Court has provided little guidance on the contours of judicial estoppel. . . . In New Hampshire [v. Maine, 532 U.S. 742 (2001)], however, the Court identified three factors that courts should consider in determining whether the doctrine is applicable in a given case: First, a party's later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. In precedent that predates New Hampshire, we have held that the doctrine of judicial estoppel applies when a party's position is tantamount to a knowing misrepresentation to or even fraud on the court.

Milton H. Greene Archives, Inc., 692 F.3d at 993-94.

1. Same Party

The County argues that judicial estoppel does not apply because the State of Hawaii ("State"), not the County, is the party that prevailed in the prosecution of Buddemeyer for Negligent Homicide in the Third Degree. ECF No. 161 at PageID #1462-63. As explained in Ruggles v. Yagong, 135 Haw. 411, 353 P.3d 953 (2015):

HRS § 28-2.5(b) (2009) delineates the investigative powers of the attorney general and county prosecuting attorneys when conducting criminal investigations. Pursuant to HRS § 28-2 (2009), the attorney general "shall be vigilant and active in detecting offenders against the laws of the State, and shall prosecute the same with diligence." HRS § 26-7 (2009) does state that "unless otherwise provided by law, [the department of the attorney general shall] prosecute cases involving violations of state laws . . . ." The phrase as "otherwise provided by law" . . . recognizes that, although the attorney general, as the chief legal officer for the State, has the ultimate responsibility for enforcing penal laws of statewide application, the public prosecutor has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction. Thus, although the county prosecutor has been

...