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Krupnikovic v. Sterling Transportation Services, Inc.

United States District Court, D. Nebraska

September 11, 2017

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,
v.
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

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

         This 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.[1] This is an action for negligence. Jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332.

         This 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 minor daughter.[2]

I. MOTIONS FOR SUMMARY JUDGMENT

         Sterling 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.[3] 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 dismissed.

         The 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.[4]

         The 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.

         In view 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.

         In 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.

         Whether 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.

         The 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.

         In view of the foregoing, the court finds Sterling's motion for partial summary judgment should be granted with respect to the issues conceded by ...


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