Hirschbach Motor Lines, Inc. v. More

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION ./ DOCKET NO. CV-17-439

HIRSCHBACH MOTOR LINES, INC.,

Plaintiff

V. ORDER ON DEFENDANTS CARLOS MORA and CARLOS A. MORA, OLIVER OLIVER NELSON'S NELSON, KEVIN MCKELVEY, and MOTION FOR SUMMARY WESTERN EXPRESS, INC., JUDGMENT

Defendants

Before the court is defendants Carlos Mora and Oliver Nelson's motion for summary

judgment on plaintiff Hirschbach Motor Lines, Inc.'s complaint. For the following reasons, the

motion is denied.

In January 2014, a motor vehicle accident involving four trucks occurred on Interstate 95

in Falmouth, Maine. (Defs.' S.M.F. l) 1.) Plaintiff employed John Roum, who was the driver of

one of the trucks involved in the accident (plaintiff's truck). (Defs.' S.M.F. l) 4.) Defendant Oliver

Nelson employed defendant Carlos Mora who was also a driver of one of the trucks in the accident

(defendant's truck). (Defs.' S.M.F. l) 3.)

The accident began when defendant's truck jackknifed after a smaller car passed in front

of the truck. (Defs.' S.M.F. l) 11.) Defendant's truck came to rest in a position where it was

blocking all southbound lanes of traffic on I-95. (Defs.' S.M.F. l) 19.) While driving along I-95

South, plaintiff's truck came upon the accident. (Defs.' S .M.F. l)l) 31-32.) Prior to plaintiff's truck

arriving at defendant's jackknifed truck, the road conditions had changed from dry to icy. (Defs.' S.M.F., 35.) Plaintiff's truck was traveling at approximately 60 miles per hour when he first saw

defendant's truck. (Defs.' S.M.F., 43.) Plaintiff's truck could not stop in time to avoid hitting

defendant's truck due to the ice, so plaintiff's truck attempted to avoid defendant's truck by turning

to the right of defendant's truck. (Defs.' S.M.F. ,, 45-46, 49-51.) Plaintiff's truck fell on its side

and plaintiff's tractor went into a ditch along the side of the road. (Defs.' S .M.F. ,, 46-47 .)

I. Procedure

Plaintiff filed a complaint on November 8, 2017 and alleged eight counts: count I,

negligence as to defendant Mora; count II, respondeat superior as to defendant Nelson; count III,

negligent training as to defendant Nelson; count IV, negligent entrustment as to defendant Nelson.'

On November, 20, 2017, defendants answered the complaint. On February 8, 2019, former

defendants Kevin McKelvey and Western Express, Inc. filed a motion for summary judgment. On

February 12, 2019, defendants joined former defendants' motion for summary judgment

arguments a, c, and d and statement of material facts,, 1-6, 8-52, 70-72, 75, 76, and 82-90. On

April 5, 2019, plaintiff filed an opposition to defendants' motion for summary judgment. On April

19, 2019, defendants filed a reply to plaintiff's opposition.

I. Discussion

A. Standard of Review

Summary judgment is granted to a moving party where "there is no genuine issue as to any

material fact" and the moving party "is entitled to judgment as a matter of law." M.R. Civ. P. 56(c).

"A material fact is one that can affect the outcome of the case, and there is a genuine issue when

there is sufficient evidence for a fact-finder to choose between competing versions of the fact."

, The remaining counts were against former defendants Kevin McKelvey and Western Express, Inc. Those allegations were resolved at mediation on February 11, 2019. 2 Lougee Couservancy v. CityMortgage, Inc., 2012 ME 103, lJ 11, 48 A.3d 774 (quotation omitted).

To survive a defendant's motion for summary judgment, the plaintiff must establish a prima facie

case for each element of plaintiff's claim. See Savell v. Duddy, 2016 ME 139, lJ 18, 147 A.3d

1179.

On summary judgment, the court considers reasonable inferences that may be drawn from

the facts. Curtis v. Porter, 2001 ME 158, lJ 9, 784 A.2d 18. Additionally, the nonmoving party

benefits from all "favorable inferences that may be drawn from the facts presented." Id. (quotation

marks omitted). "When facts or reasonable inferences are in dispute on a material point, summary

judgment may Iiot be entered." Id.

B. Expert Evidence

Defendants argue they are entitled to summary judgment because plaintiff must present

expert testimony that defendants breached a duty of care while driving a truck in inclement

conditions and plaintiff has not designated an expert. (Defs.' Mot. Summ. J. 11-13.) Plaintiff

argues that expert testimony is not required to prove defendants' negligence because an average

juror would be able to make inferences based upon their common sense and experience. (Pl.'s

Opp'n to Defs.' Mot. Summ. J. 5-7.)

"To survive summary judgment on this claim the [plaintiff] must present evidence of (1) a

duty owed, (2) a breach of that duty, and (3) an injury that is proximately caused by a breach of

that duty." Lougee Conservancy, 2012 ME 103, lJ 29, 48 A.3d 774. The duty owed to plaintiff

in this case was for defendant to operate a motor vehicle safely. See Mastriano v. Blyer, 2001 ME

134, lJ 12, 779 A.2d 951. Defendants argue that plaintiff must support its claim that the duty was

breached with expert testimony, because driving a tractor-trailer during an emergency situation

requires specialized knowledge. Defendants cite Todd v. Andalkar, a medical malpractice case,

3 for the proposition that "when the negligence and harmful results are not sufficiently obvious to

be within common knowledge, expert evidence is essential." Todd v. Andalkar, 1997 ME 59, lJ 6,

n.4, 691 A.2d 1215. The court rejects the argument that a tractor trailer jackknifing across all lanes

of traffic in icy conditions constitutes "harmful results that are not sufficiently obvious to be within

common knowledge." Id. On this record, expert testimony is not required for plaintiff to raise a

genuine issue of material fact that defendants breached their duty of care.

C. Evidence of Negligence

Defendant argues next that plaintiff has not presented prima facie evidence that defendants

were negligent in the operation of their motor vehicle. (Defs.'s Mot. Summ. J. 13-17.) Plaintiff

argues that it has presented prima facie evidence of defendants' negligence. (Pl.'s Opp'n to Defs.'

Mot. Summ. J. 7-12.)

Defendants rely on Duchaine v. Fortin, a case where the court entered a judgment n.o.v.

for the defendant, not summary judgment. Duchaine v. Fortin, 159 Me. 313,318, 192 A.2d 473

(1963). In Duchaine, the Law Court stated that "[l]iability cannot be predicated upon the mere

happening of an accident." Id. Unlike in this case, however, the Duchaine plaintiffs did not present

any eye witnesses to the accident, including the defendant, at trial and rested their negligence claim

on the fact that an accident occurred. Id. The record currently before the court contains evidence

that defendant Mora's windshield fogged up, he did not test his breaks, and only slowed his vehicle

five to seven miles an hour after noticing the fog, his vehicle jackknifed after he lost control of it,

and he did not put out warning signals or activate his flashers to warn other drivers. (Defs.' S .M.F.

lJlJ 11-21); (Pl.'s A.S.M.F. lJlJ 97-102.) Plaintiff has raised genuine issues of material fact that

constitute prima facie evidence that defendants were negligent in the operation of their truck. (See

Defs.' S.M.F. lJlJ 11-21); (Pl.'s A.S.M.F. lJlJ 97-102.)

4 The entry is

Defendants Carolos A. Mora and Oli Judgment is DENIED.

Date: July 3, 2019

CUM-CV-17-439