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McIntyre v. Murphy

United States District Court, E.D. North Carolina, Western Division

March 20, 2019

GREGORY S. MCINTYRE as Administrator of the Estate of Sara Nicole Wetherell, Plaintiff,



         This matter is before the court on defendants' motion for summary judgment (DE 23). The issues raised have been fully briefed and are ripe for adjudication. For the reasons that follow, the motion is denied.


         Plaintiff filed this action in Wilson County Superior Court on March 27, 2017, as administrator of the estate of Sara Nicole Wetherell (“Wetherell”), asserting claims against defendant C.R. England, Inc. (“England”), alleged owner of a truck which struck and killed Wetherell January 24, 2016, and George Murphy (“Murphy”), alleged driver of that truck, for negligence and gross negligence (“First Claim”). Plaintiff claims against defendant England as Murphy's employer under the doctrine of respondeat superior (“Second Claim”). Plaintiff also sought to advance claims against defendant England for negligent hiring, training and supervision of Murphy (“Third Claim”), and for negligence per se on account of defendant Murphy's alleged violations of certain federal regulations.[1]

         On April 27, 2017, defendant England removed this action from state court, invoking the court's diversity jurisdiction. It filed answer May 1, 2017, denying liability. On June 12, 2017, defendant Murphy filed answer also denying liability. Thereafter, the court entered its case management order, subsequently amended to allow for discovery until July 16, 2018, and filing of dispositive motions on or before August 13, 2018.

         On August 13, 2018, defendants jointly moved for summary judgment. Defendants argue that plaintiff fails to make a prima facie case of negligence because defendants did not proximately cause Wetherell's injuries, and defendant Murphy did not violate a duty to Wetherell. Defendants also advance that Wetherell was contributorily negligent as a matter of law because of excessive speeding and failure to keep a reasonable lookout.

         Defendants rely upon in support of motion expert deposition testimony and reports from David C. McCandless (“McCandless”) (McCandless Dep. (DE 26-1); McCandless Report (DE 26-2)) and Stephanie W. Borzendowski (“Borzendowski”) (Borzendowski Dep. (DE 26-3); Borzendowski Report (DE 26-4)); deposition testimony from Modesty Rivera (“Rivera') (Rivera Dep. (DE 26-5)) and Murphy (Murphy Dep. (DE 26-6)); and excerpts from defendant England's Driver Policy Manual (“Policy Manual”) (DE 26-7).

         Plaintiff argues in defense of motion that defendant Murphy's negligence was a proximate cause of Wetherell's injury, and that defendant Murphy violated a duty to mark and warn motorists of his overturned tractor-trailer under N.C. Gen. Stat. § 161(c). Plaintiff argues that Wetherell was not contributorily negligent, raising in defense of motion an issue of fact as to whether she was speeding, and that she was not contributorily negligent because she would have been unable to perceive the truck through the glare of the sun even traveling at a lesser speed. Finally, plaintiff argues that, even if Wetherell was contributorily negligent, defendant Murphy's gross negligence defeats Wetherell's contributory negligence. Plaintiff relies upon deposition testimony from Murphy (Murphy Dep. (DE 29-1)), Tyrone James (“James”) (James Dep. (DE 29-2)), Rivera (Rivera Dep. (DE 29-3)) and James Barnes (“Barnes”) (Barnes Dep. (DE 29-4)); expert testimony and affidavits from Borzendowski (“Borzendowski Dep.” (DE 29-5, 30); “Borzendowski Aff.” (DE 29-6)) and McCandless (“McCandless Aff.” (DE 29-7, 31)); excerpts from defendant England's Driver Policy Manual (“Policy Manual”) (DE 29-8); and the affidavit of Deputy Anderson R. Seaman (“Seaman”) (Seaman Aff. (DE 29-9, 32)).

         In reply, defendants protest plaintiff's improper request for summary judgment without first making a motion. They contend among other things that plaintiff has not raised a genuine issue of material fact as to whether Wetherell was exceeding a safe speed under conditions existing. They offer a reply statement of material facts and place additional reliance upon certain deposition testimony.


         The undisputed facts may be summarized as follows. On January 24, 2016, a tractor-trailer driven by defendant Murphy, an employee of defendant England, collided with a Dodge truck driven by Brandon Price (“Price”). (Statement of Facts (DE 25, 28) ¶¶ 1, 2).[2] The collision occurred at the intersection of U.S. Highway 301 South (“Highway 301”) and Radford Road. (Statement of Facts (DE 25, 28) ¶ 1).

         Data from defendants' tractor-trailer shows that defendant Murphy was traveling at 60 miles per hour (“mph”) with the cruise control set at 62 mph on approach to the intersection and did not brake until the approximate time of impact with Price's vehicle. (McCandless Aff. (DE 29-7, 31) ¶ 8.k.). The speed limit for traffic on Highway 301 was 45 mph. (See McCandless Aff. (DE 29-7, 31) ¶ 8.g.). Defendant Murphy experienced issues with sun glare as he traveled along the highway. (Statement of Additional Facts (DE 28, 31) ¶ 3; see McCandless Aff. (DE 29-7, 31) ¶ 8.u.). Two eyewitnesses told the sheriff's office that Price had a green light, and one eyewitness stated defendant Murphy had a red light. (Seaman Aff. (DE 29-9, 32) ¶¶ 19-22; see McCandless Aff. (DE 29-7) ¶¶ 8.h.-8.i.). The impact of defendant Murphy's vehicle and Price's vehicle colliding caused defendants' tractor-trailer to turn over on its left side with the underside of the trailer facing southbound travel on Highway 301. (McCandless Aff. (DE 29-7, 31) ¶¶ 8.m.-8.n.). Defendant Murphy was not injured and was coherent following the crash. (Murphy Dep. (DE 29-1) 82:23-83:8; James Dep. (DE 29-2) 80:9-18).

         Defendant Murphy's tractor-trailer unit was equipped with an emergency accident kit that contained emergency cones/triangles. (Murphy Dep. (DE 29-1) 84:20-85:5; James Dep. (DE 29-2) 80:22-81:6). Barnes, an assistant fire chief who later arrived at the scene, testified that there was only a small leak of diesel fuel and no smoke coming from the tractor-trailer, and that no fire hazards were present on scene. (Barnes Dep. (DE 29-4) 22:4-23:4, 34:14-24). Barnes testified that there would have been no reason that defendant Murphy would not have been able to retrieve something from inside the tractor-trailer. (Barnes Dep. (DE 29-4) 34:15-24).

         Defendant England required all their drivers be familiar with and adhere to all state, local, and federal laws, including Federal Motor Carrier Safety Regulations (“FMCSR”). (Statement of Additional Facts (DE 28, 31) ¶ 15; Policy Manual (DE 29-7) at 1). Defendant Murphy was trained as a professional driver and realized FMCSR are the law for commercial drivers. (Murphy Dep. (DE 29-1) 21:7-22:23). FMCSR generally require that “whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place [] warning devices . . . .” 49 C.F.R. § 392.22; see also N.C. Gen. Stat. § 20-161(c); 14B N.C. Admin. Code 7C.0101.[3] Similarly, defendant England's policy manual states drivers should “[s]ecure the scene. Put out triangles to prevent another accident.” (Policy Manual (DE 26-7) at 1). Defendant Murphy was aware of the FMCSR and defendant's England's policy that emergency devices must be placed out on the highway within a certain time after a commercial truck becomes disabled. (See Statement of Additional Facts (DE 28, 31) ¶ 20). A tractor-trailer blocking lanes of travel on a roadway creates a more dangerous hazard to motorists traveling that roadway than in other places, such as the side of the road. (Murphy Dep. (DE 29-1) 121:4-122:7).

         Approximately three minutes after defendant Murphy's tractor-trailer collided with Price's truck, Wetherell drove her Kia automobile into the overturned tractor-trailer. (McCandless Aff. (DE 29-7) ¶ 8.q.). Prior to her accident, Wetherell had been traveling southbound on Highway 301 for a period “on the order of minutes.” (McCandless Dep. (DE 26-1) 28:19-29:3). The stretch of highway on which she was traveling was “relatively straight and level, ” and as noted above there was a posted speed limit of 45 mph in the vicinity of the accident. (McCandless Dep. (DE 26-1) 27:19-28:1, 29:12-14).

         No warning cones had been placed during the three-minute interval between the two collisions. (Murphy Dep. (DE 26-6) 90:13-25; Seaman Aff. (DE 29-9, 32) ¶ 17). Plaintiff's human factors expert testifies that the placement of warning triangles would be perceptible during daylight hours and even in the presence of glare, a high contrast object is typically visible to drivers and would have served to alert Wetherell to a potential hazard in the roadway. (Borzendowski Aff. (DE 29-6, 30) ¶¶ 8.j.-8.1.).

         The sun was setting directly in front of Wetherell's car, and Wetherell was driving into the sun the entire time she was heading southbound on Highway 301. (McCandless Dep. (DE 26-1) 28:11-18; Rivera Dep. (DE 26-5) 25:20-26:1; Borzendowski Aff. (DE 29-6, 30) ¶ 8.e.). As a result of the glare and the contrast of the overturned tractor-trailer, Wetherell's ability to detect and identify the hazard was impaired, and Wetherell did not initially perceive the overturned tractor-trailer. (Borzendowski Aff. (DE 29-6, 30) ¶¶ 8.f.-8.g.). The setting sun was a factor to the subject collision, as Wetherell's vehicle did not apply brakes until out of direct sun exposure. (McCandless Aff. (DE 29-7, 31) ¶¶ 8.x.). In the opinion of plaintiff's human factors expert, Wetherell “was unable to perceive that the tractor-trailer was blocking her lane of travel until it was too late for her to take any effective action to avoid striking it . . . . [T]he braking actions which she did take were well within the expected range for attentive drivers in similar situations.” (Borzendowski Aff. (DE 29-6, 30) ¶¶ 8.m.).

         Data from Wetherell's vehicle registered that her vehicle was traveling at a pre-accident speed of 59 mph. (McCandless Dep. (DE 26-1) 15:11-24, 22:14-21, 29:4-11). Data obtained from Wetherell's car also show she applied the brakes for about one second before the crash and that her speed on impact was approximately 40 mph. (McCandless Dep. (DE 26-1) 19:15-22, 22:17). Seaman, a Wilson county deputy sheriff, testified that he witnessed the Wetherell's collision with defendant's tractor-trailer. (Seaman Aff. (DE 29-9, 32) ¶¶ 1, 4, 8, 14). According to Seaman, Wetherell's car “did not seem to slow down” and he believed based on his personal observation that “the Kia vehicle was traveling at a speed of 40 mph.” (Seaman Aff. (DE 29-9, 32) ¶¶ 13, 15).

         Additional facts pertinent to the instant motion will be discussed below.


         A. ...

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