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Prive v. Johnson

August 23, 2010

ROBERT V. PRIVE, III, PLAINTIFF,
v.
FRANK EVERETT JOHNSON; AND GAINEY TRANSPORTATION SERVICES, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM DECISION and ORDER

Currently before the Court in this personal injury action filed by Robert V. Prive, III ("Plaintiff") is a motion for summary judgment filed by Frank Everett Johnson and Gainey Transportation Services, Inc. ("Defendants"). (Dkt. No. 37.) For the reasons set forth below, Defendants' motion is granted, and Plaintiff's Second Amended Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Second Amended Complaint alleges that, on June 3, 2003, on Interstate 81, in the Town of Horner, New York, Defendant Johnson carelessly operated a motor vehicle, causing Plaintiff to suffer injuries. (See generally Dkt. No. 18 [Plf.'s Second Am. Compl.].) Based on these allegations, Plaintiff's Second Amended Complaint asserts a claim of negligence against Defendants. (Id.) Familiarity with the factual allegations supporting this claim in Plaintiff's Second Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)*fn1

B. Defendants' Motion

Generally, in support of their motion for summary judgment, Defendants argue as follows: (1) because Plaintiff's vehicle collided with the rear end of Defendant Johnson's vehicle, under New York law, there is a presumption that Plaintiff was negligent; (2) Plaintiff's expert should be precluded from testifying because his testimony is unreliable; and (3) without this expert testimony, Plaintiff is not able to overcome the presumption of negligence, and his negligence claim must therefore be dismissed. (See generally Dkt. No. 38 [Defs.' Memo. of Law].)

In Plaintiff's response to Defendants' motion for summary judgment, he argues as follows: (1) summary judgment is not appropriate because he has adduced admissible record evidence from which a rational factfinder could conclude that Defendant Johnson was negligent; (2) his expert should not be precluded from testifying because any deficiencies in his testimony goes to weight, and not admissibility; (3) because Defendant Johnson's vehicle was moving when the accident occurred, there is no presumption of negligence under New York law, which would require him to provide a non-negligent explanation for the rear-end collision in order to withstand summary judgment; and (4) even assuming that a presumption of negligence exists, because Plaintiff has provided a non-negligent explanation for the accident, and Defendant was a proximate cause of Plaintiff's injuries, summary judgment is inappropriate. (See generally Dkt. No. 44 [Plf.'s Response Memo. of Law].)

In their reply, Defendants argue as follows: (1) their statement of material facts should be deemed admitted because Plaintiff failed to comply with Local Rule 7.1 of the Local Rules of Practice for this Court; (2) Plaintiff's expert should be precluded from testifying; and (3) Plaintiff has failed to provide a non-negligent explanation for his conduct, and therefore the Court must conclude that Plaintiff was negligent as a matter of law. (See generally Dkt. No. 45 [Defs.' Reply Memo. of Law].)

C. Undisputed Material Facts

In his opposition to Defendants' motion for summary judgment, Plaintiff chose not to file a response to Defendants' statement of undisputed material facts (a/k/a "a Rule 7.1 Response"). (See generally Docket Sheet.) Based on the volume of the record evidence presented in this case, and the fact that Plaintiff was represented by experienced counsel when he filed his response to Defendants' motion, the Court declines to scour the record for evidence of material questions of fact.*fn2 Rather, for purpose of the pending motion, the Court accepts as true the properly supported facts contained in Defendant's Local Rule 7.1 Statement, which are not clearly in dispute.*fn3 Based on these admissions, the following is a general summary of the undisputed material facts in the case.(Dkt. No. 37, Attach. 1 [Defs.' Rule 7.1 Statement].)

On June 3, 2003, Plaintiff and Defendant Johnson were involved in a vehicle collision. At the time of the collision, Defendant Johnson was a professionally trained commercial tractor trailer driver, having completed course work at the M.S. Carriers Driving Academy from March 3 through April 3, 2001. As a reservist in the Army National Guard since 1981, Defendant Johnson had also received Army training in the operation of all forms of motor vehicles used by the Army, including vehicles the approximate size of a commercial tractor, at the time of the collision.*fn4

On the day of the accident, Defendant Johnson was driving a 2000 Freightliner tractor, hauling a 53-foot 2000 Great Dane trailer full of aquarium gravel into and through New York State on Interstate 81. The entire length of the tractor trailer was 72 feet, and the width was eight feet, six inches. The total height of the tractor trailer was 13.5 feet. The total weight of his truck was 77,020 pounds.

Plaintiff was driving a 2001 Freightliner straight truck with a gross axle weight rating of 12,000 pounds for the first axle, and 21,000 pounds for the second axle. Plaintiff was transporting approximately five containers of liquid helium into and through New York State on Interstate 81. He estimated each container to be approximately five feet in diameter, five feet in height, and 500 to 600 pounds in weight.

Defendant Johnson's tractor trailer was equipped with tail lamps, stop lamps, side and rear reflectors, side marker lamps to the front, center and rear of the trailer, turn signals and hazard lights both to the rear of the tractor and rear of the trailer, and conspicuity reflective tape. Defendant Johnson was traveling with his headlights illuminated, automatically activating many of the lamps on his tractor trailer.*fn5

While traveling northbound on Interstate 81, at an overpass near mile marker 59, Defendant Johnson experienced a blowout to the right inside tire of axle 3 of his tractor. Defendant Johnson was traveling 55 to 60 miles per hour when he suffered the blowout. He estimated he traveled about 300 yards before he brought his vehicle to a complete stop off the road.*fn6

To the right of the shoulder at the mile marker 59 overpass where Defendant Johnson pulled over was a steel guardrail. To the right of the steel guardrail were lane delineators and mileage markers. Defendant Johnson pulled his truck about 12 inches from the guardrail.

After bringing his vehicle to a stop, Defendant Johnson activated his emergency flashers. Defendant Johnson then exited his vehicle through the passenger's side door, stepping over the guardrail, to inspect the passenger's side of the truck and the blown tire. Because the guardrail was close to the driving lane of Interstate 81, the truck was exposed to being hit by other vehicles.

After inspecting the blown tire for about five minutes, Defendant Johnson entered his vehicle and notified his dispatcher at Gainey of the blown tire. Defendant Johnson provided dispatch with his approximate location. He was then instructed to drive the truck to the nearest safe area where he ...


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