Sullivan V. Crete Carrier Corp., No

Little Red Corvette, Baby You’re Much Too Fast

Introductions:

Beth Anne Lashuk (Jurca and Lashuk, LLC) Little Red Corvette, Baby You’re Much Too Fast

Mehdi Arradizadeh (ATS INC.)

June J. Essis (Weber Gallagher Simpson Stapleton Fires & Newby, LLP)

Rebecca L. Burroughs (Ward Hocker Thornton, PLLC)

Matthew D. Valauri (Wilson Elser Moskowitz Edelman & Dicker LLP)

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*Insert accident reconstruction video from Dropbox* Corvette pulled into road from this Southbound driveway to go south

Left turn lane Yaw marks from Corvette

AREA OF IMPACT (AOI) Copy Here

Yaw marks from Corvette spinning counterclockwise

Factual Background – Scenario A

• Red Corvette and tractor trailer southbound on road with two lanes of traffic in each direction

• Red Corvette makes a left hand turn into southbound lanes, accelerates, and loses control

• The tractor trailer proceeding southbound collides with the front-end of the spun-out Red Corvette

Other Relevant Facts – Scenario A

• The Red Corvette driver was a retired 63 year old man with no dependents and no children

• The Red Corvette driver is pronounced dead at the scene

• Both drivers – no drugs/alcohol, no phone usage, no speeding

• Tractor-trailer driver tried to change lanes to avoid collision

• Allegations made that tractor-trailer driver was negligently hired, retained, supervised, and trained

Legal Analysis – Comparative Negligence

• Corvette driver makes a left hand turn into southbound lanes, accelerates, and loses control • Both drivers – no drugs/alcohol, no phone usage, no speeding • New Jersey; Pennsylvania, Connecticut; Ohio – “Modified” comparative negligence – plaintiff can recover where negligence is not 50%+ (N.J. § Stat. 2A:15-5.1; 42 Pa.C.S. § 7102; Conn. Gen. Stat. §52- 572h; Ohio Rev.Code § 2307.22).

In Scenario A, there is a potential argument that the Corvette driver was more than 50% negligent and will be barred

Legal Analysis – Comparative Negligence

• Corvette driver makes a left hand turn into southbound lanes, accelerates, and loses control • Both drivers – no drugs/alcohol, no phone usage, no speeding

• New York; Kentucky • Pure comparative negligence – a plaintiff will not be barred, despite his negligence, from recovering, but his recovery will be diminished by his percentage of fault (N.Y. C.P.L.R. § 1411; KRS 411.182).

Legal Analysis – Survivorship and Wrongful Death

• Corvette driver is pronounced dead at the scene • 63 years old, retired, no children or dependents • New Jersey • Wrongful death – brought by administrator; future financial contributions of decedent (N.J.S.A. 2A:31-4) • Survivorship – brought in shoes of decedent (pain and suffering, etc.) (N.J.S.A. 2A:31-1)

• Pennsylvania • Wrongful death – brought by spouse, children, or parents of decedent for damages they directly sustained (42 Pa. Cons. Stat. Ann. § 8301) • Survival action – the estate stands in for the decedent (conscious pain and suffering, lost earnings until date of death, etc.) (42 Pa. Cons. Stat. Ann. § 8302) Legal Analysis – Survivorship and Wrongful Death

• Corvette driver is pronounced dead at the scene • 63 years old, retired, no children or dependents • Connecticut • Executor or administrator brings claims for injuries resulting in death to recover damages and medical, hospital expenses (Conn. Gen. Stat. §52-555) • Damages are measured by the value to the decedent of his life, rather than pecuniary loss to the dependent/spouse or next of kin, and include conscious pain and suffering, lost future earnings, medical expenses, funeral/burial expenses • New York • Only a personal representative who is survived by distributees may bring damages for wrongful act, neglect, or default that caused the decedent’s death.(CPLR § 215) • The measure of the pecuniary loss is the reasonable expectation of future assistance or support to the survivors had the decedent survived. N.Y. Estates, Powers & Trust §5-4.3 Legal Analysis – Survivorship and Wrongful Death • Corvette driver is pronounced dead at the scene • 63 years old, retired, no children or dependents • Kentucky • Wrongful death is a statutory action brought by a personal representative of the deceased. (KRS 411.130). The measure of damages in wrongful death action is the damage to the estate by destruction of decedent's power to labor and earn money, plus funeral expenses. W. L. Harper Co. v. Slusher, 469 S.W.2d 955, 959 (Ky. 1971). • Personal injury claims survive and may be joined with a wrongful death claim. KRS 411.140; KRS 411.133. Damages include pain and suffering. • Ohio • A claim for wrongful death is brought for the benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death. Ohio Rev. Code § 2125.02(A). The surviving spouse, children and parents may recover compensatory damages for funeral expenses, loss of income, and loss of the decedent’s services and consortium. • Under Ohio Rev. Code § 2305.21, causes of action for injuries to person or property survive the death of the person entitled to bring such an action Comparative Valuation?

• Modified vs. Pure Comparative Negligence

• Damages Available in Wrongful Death and Survival Actions (63 year old retiree with no dependents)

• NJ, PA, KY, OH, CT, NY

Factual Background – Scenario B

• Red Corvette and tractor trailer southbound on road with two lanes of traffic in each direction

• Red Corvette makes a left hand turn into southbound lanes, accelerates, and loses control

• The tractor trailer proceeding southbound collides with the front-end of the spun-out Red Corvette

Other Relevant Facts – Scenario B • The Red Corvette driver was a married 25 year old man with two children – minors aged 7 and 8

• Coal miner in Eastern Kentucky making $50,000 per year

• After the accident, gets a desk job making $32,500 per year

• The Red Corvette driver survives but with severe injuries requiring a below the knee amputation and lower

back surgery

• The Red Corvette driver was going 10mph over speed limit of 55mph, also on his phone

• Tractor-trailer driver was going 10mph over speed limit of 55mph

• Tractor-trailer driver has a history of at least one failed drug test, but passed his drug test regarding this

accident

• Tractor-trailer driver has a history of speeding with several reprimands in his personnel file

• Corvette driver receives payments from PIP and Blue Cross (who now asserts a lien)

Legal Analysis – Collateral Source

• Red Corvette driver survives • Red Corvette driver receives PIP and medical payments • New Jersey – Payment of benefits from collateral sources is admissible to deduct from damages (N.J.S.A. § 2A:15-97) • Pennsylvania - Evidence of benefits from a collateral source are not admissible (Hileman v. Pittsburgh & Lake Erie R. Co., 685 A.2d 994 (Pa. 1996)). • Kentucky – Evidence of benefits from a collateral source are not admissible (O'Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995)). • Ohio – Both the amount billed and amount accepted as payment are admissible. (Robinson v. Bates (2006), 112 Ohio St. 3d 17 (2006)).

Legal Analysis – Collateral Source

• Red Corvette driver survives • Red Corvette driver receives PIP and medical payments • New York – Under CPLR 4545(c), in any action brought to recover for personal injury, there will be an offset against both past and future economic losses for any amount received from a collateral source such as No-Fault or Disability payments. Iazzetti v. The City of New York, 94 N.Y.2d 183, 723 N.E.2d 81, 701 N.Y.S.2d 332 (1999). • Connecticut - The Plaintiff is not entitled to recover a loss that has already been paid or reduced by health insurance. A collateral source hearing is held post-verdict, at which time the plaintiff’s economic damages award is reduced by the total collateral source amount. Conn. Gen. Stat. § 52- 225a

Legal Analysis – Negligent Entrustment

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • Connecticut - “When the evidence proves that the owner of an automobile knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it ... a basis of recovery by the person injured is established.” Greeley v. Cunningham, 116 Conn. 515, 518, 165 A. 678 (1933).

• New York – no claims for negligent entrustment of a motor vehicle because a vehicle owner is always vicariously liable when lending vehicle to another. (NY Vehicle and Traffic Law § 388).

Legal Analysis – Negligent Entrustment

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • New Jersey – Need a showing that the (1) entrustee was incompetent, unfit, or reckless, (2) the employer knew or should have known, (3) there was an entrustment of a dangerous instrumentality (4) creating a risk of harm, and (5) proximate cause. New Jersey Citizens United v. Hernandez, 2006 WL 686571 (App. Div. 2006).

• Pennsylvania – (1) a defendant permitted a third person (2) to use a thing or engage in an activity which is under the control of the defendant (3) when the defendant knows or should know that such person is likely to use the thing or conduct himself in such a manner as to create an unreasonable risk of harm to others. Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. Ct. 1998). Legal Analysis – Negligent Entrustment

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • Kentucky – The basic principle of negligent entrustment is as follows: "The common law theory of negligent entrustment is that one who entrusts his vehicle to another whom he knows to be inexperienced, careless, or reckless, or given to excessive use of intoxicating liquor while driving, is liable for the natural and probable consequences of the entrustment." Burchett v. Burchett, 2016 Ky. App. Lexis 79, 2016) (citing McGrew v. Stone, 998 S.W.2d 5, 9, 46 11 Ky. L. Summary 32 (Ky. 1999)). • Further, a negligent entrustment claim is encompassed into a negligent retention / hiring claim. See Diaz v. Carcamo et al., 51 Cal. 4th 1148 (Cal. 2011) Legal Analysis – Negligent Hiring / Retention

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • Pennsylvania – must show negligence in employment of an improper person in work involving a risk of harm, or negligence in supervision. Heller v. Patwil Homes, 713 A.2d 105, 107 (Pa. Super. Ct. 1998) • However, recent decisions have held that negligent hiring, retention, and supervision claims cannot stand in the absence of related punitive damages claims. Sullivan v. Crete Carrier Corp., No. 8716 - CV - 2015 (C.P. Monroe Co. Jan. 18, 2019 Williamson, J.)

• New Jersey – requires (1) knowledge of employer and foreseeability of harm to third parties and (2) incompetence or unfitness to work proximately caused injury • Can be established even where the employee act is outside the course of his employment (e.g., intentional torts). Di Cosala v. Kay, 91 N.J. 159, 173, 450 A.2d 508, 516 (1982)

Legal Analysis – Negligent Hiring / Retention

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • Kentucky – requires (1) the employer knew or reasonably should have known that an employee was unfit for the job for which he was employed, and (2) the employee's placement or retention at that job created an unreasonable risk of harm to the plaintiff.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 7332009 Ky. LEXIS 99 (Ky. 2009). • There must be some tort by the employee, even an intentional tort.

• Ohio – requires (1) the existence of an employment relationship, (2) the employee’s incompetence, (3) the employer’s actual or constructive knowledge of the employee’s incompetence, (4) the employee’s act or omission as a proximate cause of the plaintiff’s injury or damage, and (5) the employer’s negligence in hiring or retaining the employee as a proximate cause of the plaintiff’s injury or damage. Evans v. Ohio State Univ., 112 Ohio App. 3d 724, 680 N.E.2d 161 (1996).

Legal Analysis – Negligent Hiring / Retention

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • Connecticut – inquiry as to whether a reasonable person in the employer’s position would have anticipated harm of the type that occurred. Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). Additionally, there must be proximate cause. B & D Associates, Inc. v. Russell, 73 Conn.App. 66, 77, 807 A.2d 1001 (2002).

• New York • In cases in which an employer has vicarious liability for the acts of its employees or agents, liability theories based upon negligence in the hiring, training, supervision, or retention of the employee are generally dismissible under New York law, because they are duplicative and prejudicial to the defendant. Marcoux v. Farm Service & Supplies, Inc., 283 F.Supp.2d 901 (S.D.N.Y. 2003). • Concerns over allowing otherwise inadmissible evidence (e.g., past driving record).

Legal Analysis – Punitive Damages • Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Red Corvette driver was using his cell phone while driving and speeding • Tractor-trailer driver was speeding and had a history of speeding • Kentucky – A plaintiff shall recover punitive damages only upon proving, by clear and convincing evidence, that the defendant from whom such damages are sought acted toward the plaintiff with oppression, fraud or malice. (KRS 411.186). • In no case shall punitive damages be assessed against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question.

• Under Kentucky law, “the well established common law standard for awarding punitive damages was [and is] gross negligence.” Kinney v. Butcher, 131 S.W.3d 357, 358-59 (Ky. Ct. App. 2004)(alteration in original) (quoting Williams v. Wilson, 972 S.W.2d 260, 264, 45 5 Ky. L. Summary 33 (Ky. 1998)). “While the courts of the Commonwealth have not always used precisely the same language in defining gross negligence, the prevailing understanding defines gross negligence as a ‘wanton or reckless disregard for the safety of other persons.’” Id. at 359

Legal Analysis – Punitive Damages

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Red Corvette driver was using his cell phone while driving and speeding • Tractor-trailer driver was speeding and had a history of speeding • New York - There is no statutory cap on damages, but the bar for the imposition of punitive damages in New York is extraordinarily high. A defendant’s conduct must not simply be intentional, but must evidence “a high degree of moral turpitude,” as well as a “wanton dishonesty as to imply a criminal indifference to civil obligations.” Ross v. Louise Wise Services, Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 (2007). The person’s conduct must rise to malicious, wanton, or reckless conduct. Id.

• Connecticut - Connecticut has no statutory caps on damages. Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights. If awarded, they are restricted to cost of litigation less taxable costs of the action being tried and not that of any former trial. • Double or triple damages allowed in wrongful death case if driver’s deliberate violation of traffic laws or “reckless disregard” of traffic laws was a “substantial factor” in death. (Conn. Gen. Stat. §14-295). Legal Analysis – Punitive Damages

• Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Red Corvette driver was using his cell phone while driving and speeding • Tractor-trailer driver was speeding and had a history of speeding • New Jersey – a plaintiff must show by clear and convincing evidence that acts were motivated by actual malice or wanton or willful disregard of harm to others. (N.J.S.A. 2A:15-5.12a; Dong v. Alape, 117, 824 A.2d 251, 257 (N.J. Super. Ct. App. Div. 2003)). • Potential factors in punitive damages might be: “[a] substantial history of alcoholism, DWI conviction, prior automobile accidents while intoxicated coupled with voluntary employment entailing the transportation of alcohol.” McMahon v. Chryssikos, 528 A.2d 104, 109 n.2 (N.J. Super. Ct. Ch. Div. 1986)

• Pennsylvania – punitive damages must be based on conduct malicious, wanton, reckless, willful, or oppressive. Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963). • Fact sensitive. E.g., Stimpson v. Myers, 18 Pa.D.&C.5th 490, 494 (C.P. Clearfield 2010) (speeding and inattentive driving not enough, but failure to correct defects in vehicle could rise to punitive level).

Comparative Valuation?

• Varying Requirements for Punitives, Negligent Hiring, Negligent Entrustment

• NJ, PA, KY, OH, CT, NY Factual Background – Scenario C Factual Background – Scenario C

• The Red Corvette driver was speeding 10mph over the speed of 55mph limit at the time of the accident

• The Red Corvette driver is rear-ended by a minivan, pushing it into the left lane

• The minivan driver is a distracted mother tending to her 4 misbehaving children

Other Relevant Facts – Scenario C

• The Red Corvette driver is 63 years old and retired and survives

• The Red Corvette driver suffers a neck and back herniation and undergoes PT + injections and chiropractic

care, but no surgery

• The Red Corvette driver has a minor child in the back, physically uninjured

• Medicare asserts a lien Legal Analysis - Apportionment • Corvette driver was speeding 10mph over the speed limit at the time of the accident • The Corvette driver is rear-ended by a minivan, pushing it into the left lane • The minivan driver is a distracted mother tending to her 4 misbehaving children • Connecticut – The general rule is apportioned liability under Conn. Gen. Stat. §52-572h where each defendant is liable only for his/her proportionate share. However, a party defendant may bring a third-party action against a non-party who may be liable for a proportionate share of the plaintiff’s damages under Conn. Gen. Stat. §52- 102b. Such action permits the defendant party to reduce its liability to the plaintiff to the extent of the non- party’s proportionate share of the plaintiff’s damages.

• New York – In an auto accident case, at trial a jury will apportion fault amongst the parties, but pursuant to C.P.L.R. §1601(6), the parties are jointly and severally liable to the Plaintiff, though a party who pays more than their share of damages has a common law indemnity claim against the other tortfeasor(s).

Legal Analysis - Apportionment • Corvette driver was speeding 10mph over the speed limit at the time of the accident • The Corvette driver is rear-ended by a minivan, pushing it into the left lane • The minivan driver is a distracted mother tending to her 4 misbehaving children • Kentucky – Contribution is not an independent claim which can be alleged against another party. KY no longer recognizes claims for contribution. (KRS 411.182). • Dix & Assocs. Pipeline Contractors, Inc. v. Key, In KY because liability is several as to each joint tortfeasor, it is necessary to apportion a specific share of the total liability to each of them, the judgment is limited by the extent of his/her fault.

• Ohio – If a jury determines that two or more tortfeasors are jointly and severally liable, the jury must apportion a degree of fault between all such persons. • The jury may apportion fault between all persons whose conduct was the proximate cause of injury, including the plaintiff and persons not party to the case. (Ohio Rev. Code § 2307.23).

Legal Analysis - Apportionment • Corvette driver was speeding 10mph over the speed limit at the time of the accident • The Corvette driver is rear-ended by a minivan, pushing it into the left lane • The minivan driver is a distracted mother tending to her 4 misbehaving children • New Jersey – Under N.J.S.A. 2A:15–5.2(a)(2) a jury assigns each party on the verdict sheet a percentage of fault adding up to 100%. • Dismissed or settling defendants are “parties” under the apportionment statute. Parties statutorily immune are not parties. • Parties 60% or more at fault are jointly and severally liable.

• Pennsylvania – Several liability, unless a party is 60% or more at fault. (42 Pa.C.S.A. § 7102). Joint and several only remains for certain exceptions (e.g., intentional torts, certain environmental torts). • Nonparties and settling defendants can be requested to be put onto the jury sheet.

Legal Analysis – Joint and Several • Corvette driver was speeding 10mph over the speed limit at the time of the accident • The Corvette driver is rear-ended by a minivan, pushing it into the left lane • The minivan driver is a distracted mother tending to her 4 misbehaving children • Kentucky – KY recognizes joint and several liability for negligence only between master and servant. (KRS 411.182). • In KY, liability among joint tortfeasors in negligence cases is no longer joint and several, but is several only; the several liability of each joint tortfeasor with respect to the judgment is limited by the extent of his/her fault. Degener v. Hall Contracting Corp., 27 S.W.3d 775 (Ky. 2000)

• Ohio – Ohio law imposes joint and several liability upon two or more tortfeasors whose conduct was the proximate cause of injury or damage. (Ohio Rev. Code § 2315.20). • With respect to economic loss, a Defendant whose share of comparative fault is greater than 50% are jointly and severally liable for all economic damages. Defendants whose share of comparative fault is equal to or less than 50% are liable for their proportionate share of economic damages. • With respect to non-economic loss, each defendant owes only his or her proportionate share of non-economic damages, regardless of the degree of comparative fault.

Legal Analysis – Joint and Several • Corvette driver was speeding 10mph over the speed limit at the time of the accident • The Corvette driver is rear-ended by a minivan, pushing it into the left lane • The minivan driver is a distracted mother tending to her 4 misbehaving children • Connecticut - Conn. Gen. Stat. §52-572h supplanted the rule of joint and several liability with a system of apportioned liability in which each defendant is liable for only his proportionate share of damages according to his percentage of negligence that proximately caused the plaintiff's injury. See, e.g., Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 730–31, 778 A.2d 899 (2001). “The stated purpose behind the apportionment statute is to prevent any one defendant from having to pay more than his proportional share of the damages.” Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 777, 881 A.2d 379 (2005).

• New York - In an auto accident case, at trial a jury will apportion fault amongst the parties, but pursuant to C.P.L.R. §1601(6), the parties are jointly and severally liable to the Plaintiff, though a party who pays more than their share of damages has a common law indemnity claim against the other tortfeasor(s).

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