United States District Court, D. Nebraska
BOZANA KRUPNIKOVIC, as Personal Representative of the Estate of Strahinja Krupnikovic, Deceased; BOZANA KRUPNIKOVIC, individually and as next of kin; and BOZANA KRUPNIKOVIC, as Mother and Guardian of A.K. a Minor and next of kin; Plaintiff,
STERLING TRANSPORTATION SERVICES, INC., UNKNOWN SPOUSE, HEIRS, DEVISEES, LEGATEES, EXECUTORS, ADMINISTRATORS, and ASSIGNS, of Thomas House, Deceased, Individually; LW MILLER TRANSPORTATION HOLDINGS, INC., and JAMES GANSER, Individually; Defendants.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on motions for partial summary
judgment filed by defendant Sterling Transportation Services,
Inc. (“Sterling”), Filing Nos. 161 and 163; and
on motions in limine to exclude the testimony of
plaintiff's expert Dr. Stan V. Smith, filed by defendant
Sterling, Filing No. 159, and defendants LW Miller
Transportation Holdings, Inc. and James Ganser,
(“Miller”), Filing No. 157. This is an action
for negligence. Jurisdiction is based on diversity of
citizenship under 28 U.S.C. § 1332.
case involves a fatal three-way tractor-trailer accident that
occurred on July 3, 2012, near Silver Creek, Nebraska.
SeeFiling No. 130, Order at 1. A tractor-trailer
driven by the plaintiff's decedent, Strahinja
Krupnikovic, collided with a tractor-trailer operated by
defendant James Ganser and owned by defendant Miller. After
that initial collision, Strahinja Krupnikovic's
tractor-trailer collided with a tractor-trailer operated by
Thomas House and owned by defendant Sterling. Krupnikovic and
House both died in the collision. Bozana Krupnikovic, the
widow of Strahinja Krupnikovic, brings this action in her
capacity as personal representative of her deceased
husband's estate; on her own behalf; and on behalf of her
I. MOTIONS FOR SUMMARY JUDGMENT
moves for partial summary judgment on the plaintiff's
claims for pre-death pain and suffering; “loss of value
of life” damages; negligent hiring, supervision, and
entrustment; punitive damages; direct liability; and any
claims based on allegations that defendant House failed to
maintain his tractor-trailer in the appropriate lane of
travel or attempted to change lanes without first
ascertaining such change could be made safely. Filing Nos. 162
and 164, Sterling Briefs. In response, the plaintiff concedes
the motion as to: any claim that she is entitled to pre-death
pain and suffering and mental anguish damages on behalf of
the decedent; any claims of negligent hiring, negligent
supervision, negligent entrustment, negligent training, and
negligent retention by defendant Sterling; and her claim to
punitive damages. Accordingly, the court finds the
defendant's motion should be granted to the extent of the
plaintiff's concessions and those claims will be
plaintiff states, however, that she opposes Sterling's
motion for summary judgment as to her claim for damages for
loss of value of life and as to her claim that Sterling is
vicariously liable for House's breach of his duty to
manage, maintain, and control the vehicle and follow the
rules of the road. However, she also incorporates her
response to the defendants' Daubert motions
wherein she states that she stipulates and concedes that Dr.
Smith's testimony as to loss of value of life and loss of
society or relationship will not be presented as evidence at
trial. She also asserts that she does not stipulate to the
exclusion of any other evidence relating to loss of society.
SeeFiling Nos. 174 and 175, Plaintiff's Briefs.
It thus appears that the issue of “loss of enjoyment of
life” damages is moot.
plaintiff also states that all of her claims against
defendant Sterling are based on vicarious liability under the
theory of respondeat superior for the alleged acts of its
employee, Thomas House, and not on a theory that Sterling is
directly liable. There does not appear to be any dispute that
House was operating within the course and scope of
Sterling's business at the time of the collision and any
alleged negligence of House is imputed to Sterling.
Sterling's liability is derivative of House's
negligence and contingent upon a finding of negligence.
of the foregoing, the only issue remaining for resolution in
this motion is whether Sterling has shown as a matter of law
that House did not commit negligence in several particulars
and therefore is not liable to the plaintiff for those
alleged breaches of duty. Specifically, Sterling challenges
the allegations that House failed to maintain his
tractor-trailer in the appropriate lane of travel and
attempted to change lanes without ascertaining such change
could be made safely. It argues that uncontroverted evidence
shows that Sterling is entitled to judgment as a matter of
law with respect to any such allegations of negligence.
response, the plaintiff controverts any suggestion that the
challenged allegations of negligence are her sole contentions
of House's negligent conduct. She states
At this stage in the proceedings, Plaintiff does not assert
that House was in the westbound lane of traffic at the time
of the collision, nor does she assert that House's
attempt to change lanes was the sole cause of the collision.
Rather, Plaintiff maintains that House's aggressive
driving in the minutes and miles leading up to the collision,
and at the time of the collision, was a breach of his duty to
operate, manage, maintain and control his vehicle in a
reasonably safe manner.
Filing No. 173-3, Plaintiff's Brief at 5. She also
contends there is sufficient evidence to overcome a motion
for summary judgment as to that claim. She argues the
testimony of James Ganser and of the plaintiff's expert,
Jay Przybyla, show that there are genuine issues of material
fact on whether House breached his duty of reasonable care.
defendants breached duties of due care is the ultimate issue
in this negligence action. The parties have submitted
deposition testimony in support of their respective
positions. The court has reviewed that evidence and finds
that there is a genuine issue of material fact with respect
to the ultimate issue whether defendant House breached duties
of care. There is evidence that House may have been following
too closely. There is evidence from which a jury could find
that House breached his duty to control his vehicle and
follow the rules of the road. Accordingly, there remain
genuine issues of material fact and defendant Sterling has
not shown that it is entitled to judgment as a matter of law
on all of the plaintiff's claims.
allegations of negligence set out in the plaintiff's
complaint will not define the issues at trial. The order on
final pretrial conference will supersede the pleadings. The
final pretrial conference has not yet occurred. The parties
can narrow the issues at that time. Further, the jury will be
instructed only on allegations of negligence that are
supported by evidence at trial.
of the foregoing, the court finds Sterling's motion for
partial summary judgment should be granted with respect to
the issues conceded by ...