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Bohannon v. Action Carting Environmental Services

May 20, 2008

JOHN P. BOHANNON, JR. AS ADMINISTRATOR OF THE ESTATE OF KAZIMIERA DOLIK, DECEASED, PLAINTIFF,
v.
ACTION CARTING ENVIRONMENTAL SERVICES, INC. AND CHARLES PATTERSON, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

John Bohannon, Jr., as administrator of the estate of Kazimiera Dolik, brings this action against Action Carting Environmental Services, Inc. and Charles Patterson, claiming that (1) Action Carting negligently hired, trained and supervised Patterson; (2) Action Carting is vicariously liable in respondeat superior for the damages caused by Patterson; and (3) Action Carting and Patterson acted willfully and with intentional or reckless disregard for the rights of the decedent. Defendants move for partial summary judgment on the first and third causes of action pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the motion is granted.

BACKGROUND

The facts of this case, viewed in the light most favorable to Dolik, are as follows. On January 12, 2006, Charles Patterson applied for a job at Action Carting Services, Inc., a sanitation company. Pl.'s Ex. B. When it hires a new driver, Action Carting conducts a review of the applicant's past driving experience. Additionally, Action Carting submits the applicant's medical and license cards to its insurance broker, which informs Action Carting as to whether the license is satisfactory. If it is satisfactory, the applicant is scheduled for a road test administered by Action Carting. Glauda Dep. 16-17. The company has a policy against hiring anybody with a suspended license. Id. at 19.

When Action Carting interviewed Patterson, the interviewer did not specifically ask Patterson if he had a valid license or whether his license had ever been suspended. Pl.'s Rule 56.1 Statement ¶ 5; Patterson Dep. 129. However, before hiring Patterson, Action Carting's insurance agents screened Patterson and obtained his Motor Vehicle Report ("MVR"). At the time of his employment application, Patterson had a New Jersey license and a New York license, and both were in good standing.*fn1 However, his New York license had been suspended several times in the past, with the latest reinstatement occurring on December 13, 2005, just prior to his application to Action Carting. Pl.'s Ex. B. Patterson also had prior moving violations, including police stops for careless driving, stop light violations and car accidents. Pl. Rule 56.1 Statement ¶ 6. Action Carting's insurance company nevertheless approved Patterson as a potential employee, and Action Carting hired him as one of its sanitation truck drivers.

Patterson's usual day began at 12:30 AM, and his route took him through New Jersey, the Bronx, Queens, Brooklyn, and finally Manhattan. Patterson Dep. 135-36. Accompanying Patterson on his route was Steven Stroud, a helper who rode on the back passenger side of the truck. Stroud Dep. 16. Action Carting regularly checked the status of Patterson's commercial truck license, the CDL-B, during his employment, including on May 31, 2006 and on September 21, 2006. See Def. Ex. G, H. Patterson's driving record reflects that he received a speeding violation on February 9, 2006; that he was involved in an accident on February 12, 2006; and that on July 1, 2006, his license was suspended. On July 26, 2006, his license was reinstated. Pl.'s Ex. B.

On the morning of September 21, 2006, Patterson was driving his sanitation truck down Broadway in Brooklyn, New York. Def. Rule 56.1 Statement ¶ 6. Patterson and Stroud stopped at one of their regular pick-up stops, a McDonald's restaurant. Stroud Dep. 11-12. After collecting the cardboard boxes from McDonald's, Patterson and Stroud encountered a red light, and came to a complete stop two to three feet before the intersection of Broadway and Driggs Street. Def. Rule 56.1 Statement ¶ 6; see also Patterson Dep. 38. They remained at the light for about 60 seconds; when the light turned green, Patterson started to move the truck, about five miles per hour through the intersection. Stroud Dep. 18-19. As the truck passed through the intersection, pedestrians began to yell and horns from the cars across the street sounded, prompting Patterson to bring his vehicle to a complete stop. Id. at 24-25. Stroud then observed Dolik's body appear behind the truck, with her legs bent under her. Id. at 27. Patterson had driven through the intersection after the light had turned green, and he had not seen Dolik as she tried to cross the intersection against the light. Patterson Dep. 83-87. The rear tires of the sanitation truck had run over her lower extremities, causing severe injuries. Pl.'s Ex. B. She was taken to Bellevue Hospital, where she died several weeks later. Id.

Police officers who arrived on the scene determined that Patterson was not at fault for the accident, as Dolik had crossed against the light. Def.'s Ex. L. Although Patterson had three cell phones with him in the truck, Patterson testified that he had not been using his cell phone when his truck came in contact with Dolik. Patterson Dep. 77-80.*fn2 The police report also reflects that Patterson's cell phone was not in use at the time of the accident. Pl.'s Ex. B. Patterson took a drug test after the accident, and it revealed that he had not been under the influence of any drugs. Def.'s Ex. F.

The MVR report dated September 21, 2006 shows that Patterson's CDL-B license was in good standing as of the date of the accident, but he was arrested after the accident for a license suspension and tickets were issued against the truck. Def.'s Ex. G.; Pl.'s Ex. B. Police Officer Hanson, who inspected the truck, testified that none of the items noted in his inspection contributed to the cause of the accident. Hanson Dep. 34. Indeed, he stated that the tickets issued against the truck did not have anything to do with the safe operation of the vehicle at the time of the accident. Id.

DISCUSSION

A. The Summary Judgment Standard of Review

Under Federal Rule of Civil Procedure 56(c), a moving party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994) ("[T]he burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists." (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975))). A fact is "material" within the meaning of Rule 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)). Therefore, although a court "should review the record as a whole, it must ...


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