McComb ex rel. Estate of McComb v. Bugarin
McComb ex rel. Estate of McComb v. Bugarin
Opinion of the Court
MEMORANDUM OPINION AND ORDER
On December 28, 2010, Giselle McComb was killed when the car she was driving was struck by a semi-tractor trailer driven by Defendant Jose Bugarin. Giselle’s father, Plaintiff Michael McComb (“McComb”), brought this suit as the special administrator of his daughter’s estate asserting claims for wrongful death against several defendants. In addition to Bugarin, Plaintiff has named J.L. Shandy Transportation (“Shandy”) (the trucking company under whose authority Bugarin operated), and Central Steel and Wire Company (“Central Steel”) (the manufacturer whose steel Bugarin was hauling at the time of the accident). Specific to Central Steel, McComb alleges that the Chicago-based company is liable for the death of Ms. McComb based on its negligent selection of its contractors, Shandy and Buga-rin. Central Steel now moves for summary judgment, arguing that (1) it did not violate any duty to McComb, and (2) McComb failed to show that the accident was proximately caused by any negligence on Defendant’s part. For the reasons explained below, Central Steel’s motion for summary judgment [108] is granted.
BACKGROUND
I. The Collision
On the evening of December 28, 2010, trucker Jose Bugarin, operating under the authority of J.L. Shandy Transportation, left Central Steel’s Portage, Indiana facility. Bugarin’s semi-tractor trailer was loaded with 46,480 pounds of steel plate destined for another Central Steel facility in Milwaukee. (PL’s Statement of Material Facts [112], hereinafter “Pl.’s 56.1”, ¶¶ 1, 2; Def.’s 56.1 ¶ 4.)
II. The Post-Accident Investigation
Following the wreck, Deputy Sheriff John Vinson (“Deputy Vinson”), an accident investigator with the Lake County Sheriffs Office, was dispatched to the scene to determine the cause of the accident. (Def.’s 56.1 ¶ 17.) In preparing his report, Deputy Vinson performed various roadway measurements, took photographs of the scene,- and interviewed Bugarin and witnesses of the crash. (Id. ¶ 18.) Based on the length of the skid marks leading to the point of impact, Vinson concluded that Bugarin had been traveling at or near the posted speed limit of 50 miles per hour at the time of the accident. (Id. ¶ 22.) The following day, Deputy Vinson requested that Illinois State Trooper James Kirkpatrick (“Trooper Kirkpatrick”) perform an investigation of Bugarin’s truck. (Id. ¶ 23.) Trooper Kirkpatrick performed both visual and diagnostic assessments of the vehicle at a nearby tow yard, evaluating the truck’s tires, wheels, brakes, lights, horn, windshield wipers, and cab. (Id. ¶¶ 25-26.) Kirkpatrick’s investigation uncovered several violations of the Federal Motor Safety Carrier Regulations (“FMSCRs”): all four trailer brakes were out of adjustment, a brake chamber on the right side of the first drive axle was loose, a shock ábsorber was missing, and the brakes’ required automatic slack adjusters had been replaced by manual adjusters. (Pl.’s 56.1 ¶¶ 13, 18.) Kirkpatrick also cited Bugarin for failing to perform a proper pre-trip inspection. (Id. ¶ 14.) Each of these violations existed prior to the collision, Kirkpatrick concluded, and had the driver conducted a proper pretrip inspection, “it would have been incumbent upon [Bugarin] to cause [the violations] to be repaired prior to driving.” (Id. ¶¶ 15-17; Kirkpatrick Dep., Ex. G to Def.’s Mot., at 43:3-14.) Shandy acknowledges that a competent driver should be able to recognize the identified violations in a pre-trip inspection, and Bugarin further admits that, had he known of the brake violations on his truck, he would have adjusted them before operating the vehicle. (Pl.’s 56.1 ¶¶ 19-21.) Neither party provides information concerning how much time these adjustments might have taken, nor do they suggest how long such repairs would have kept Bugarin’s truck out of service.
III. Central Steel’s Selection of Shandy & Bugarin
Shandy is one of several common carriers used by Central Steel to haul loads between its various locations in the Midwest, including the facilities in Portage, Indiana and Milwaukee, Wisconsin. (Id. ¶ 10.) Over the course of a 20-year business relationship, Shandy’s drivers have hauled between 12,000 and 20,000 loads for Central Steel. (Id. ¶ 9.) Each of Shandy’s drivers, including Bugarin, operate as independent contractors, working pursuant to full-time leases under Shandy’s motor carrier operating authority (USDOT # 235110). (Id. ¶ 6.) Central Steel’s process for evaluating the competency of its potential carriers includes the investigation of their insurance coverage, their current operating authority status, and their Federal Motor Carrier Safety Administration (“FMCSA”) safety rating. (Id. ¶ 11.) Specifically, Central Steel requires all of its carriers to maintain the highest FMCSA rating: “satisfactory.” (Id. ¶ 12.) As of December 28, 2010, Shandy carried a “satisfactory” FMCSA rating (although that rating was, at that point, ten years old
Through the end of 2010, the FMCSA also maintained a separate safety assessment program known as “SafeStat.”
Because of State data variations, FMCSA cautions those who seek to use the SafeStat data analysis system in ways not intended by the FMCSA. Please be aware that use of the SafeStat for purposes other than identifying and prioritizing carriers for FMCSA and state safety improvement and enforcement programs may produce unintended results and not be suitáble for certain uses.
(Def.’s Mot. at 17.) Nonetheless, Plaintiff highlights that, from February 28, 2008 to December 28, 2010, Shandy’s vehicle maintenance SEA value was “consistently deficient,” and its rating was 81.23
IV. This Lawsuit
McComb filed the instant suit against several defendants, including Shandy, Bu-garin, and Central Steel, on January 13, 2011 [1]. Plaintiffs third amended complaint [63] included two counts against Central Steel: Count V alleged liability for negligent selection, while Count VI sought punitive damages for the conduct of Count V. Central Steel moved to dismiss both counts [71], later withdrawing its motion with regards to Count V. The court granted Central Steel’s motion and dismissed Count VI [80], because Illinois law does not allow for decedents’ next of kin to recover punitive damages. Plaintiff subsequently filed his fourth amended complaint [83], seeking damages from Central Steel for wrongful death based on liability stemming from the alleged wrongful selection of Shandy and Bugarin as Defendant’s independent contractors. •
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To determine whether genuine issues of material fact exist, we ask if ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 449 (7th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In determining the existence of material facts, the court must examine the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011).
II. Negligent Selection
Plaintiff has sued Central Steel for damages under the Illinois Wrongful Death Act due to injuries caused by Shandy and Bugarin, Defendant’s shipping contractors. ' Generally speaking, a principal
Here, Plaintiff claims that Central Steel knew or should have known that Shandy and Bugarin were “incompetent, unsafe, and unfit to haul Central Steel’s loads” due to the fact that they “had been assigned a deficient safety rating by the FMCSA for vehicle maintenance.” (4th Am. Compl., Count V, ¶ 22; PL’s Resp. at 22-24.) McComb further alleges that Defendant’s failure to “sufficiently inquire” into Shandy’s and Bugarin’s competence as carriers was the proximate cause of his daughter’s death and, therefore, Central Steel is liable to McComb for damages under the Illinois Wrongful Death Act. (4th Am. Compl., Count V, ¶¶ 24, 31 (citing 740 ILCS § 180/1).) Under Illinois law, assuming Plaintiff establishes Shandy’s and Buga-rin’s incompetence, Central Steel would be liable for any injuries proximately caused by its contractors’ poor vehicle maintenance. The court will address the third element of Plaintiffs claim (i.e., proximate cause) first, as it is dispositive.
The term “proximate cause” encompasses two distinct requirements: cause in fact and legal cause. Young v. Bryco Arms, 213 Ill.2d 433, 446, 290 Ill. Dec. 504, 821 N.E.2d 1078, 1085 (Ill. 2004) (citing Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455, 178 Ill.Dec. 699, 605 N.E.2d 493, (Ill. 1992)). The first requirement, cause in fact, is present “when there is a reasonable certainty that a defendant’s acts caused the injury or damage.” Id. In deciding this question, the court asks whether the injury would have occurred absent the defendant’s conduct. The second requirement, legal cause, is established only if the defendant’s conduct is “so closely tied to the plaintiffs injury that he should be held legally responsible for it.” Simmons v. Garces, 198 Ill.2d 541, 558, 261 Ill.Dec. 471, 763 N.E.2d 720, 732 (2002)
.As Central Steel points out, Plaintiff has failed to offer any evidence that Defendant’s contractors’ particular incompetence (i.e., poor vehicle maintenance) was actually to blame for McComb’s damages. (Def.’s Reply at 24.) In fact, McComb actively disavows that a brake failure caused the accident, clarifying that he “has not alleged that the application of deficient brakes is the cause of this collision.” (PL’s Resp. at 27 (emphasis in original).)
In support of the argument that Defendant’s “selecting an incompetent and unfit motor carrier ... was the direct and proximate cause of Giselle’s tragic death” (PL’s Resp. at 27 (emphasis in original)), Plaintiff cites three cases that, like this one, involved negligent selection claims by victims of car accidents caused by independent contractors driving tractor-trailers. None of the cases Plaintiff cites were decided under Illinois law. Further, in all three, the damages caused by the incompetent contractors were related to the characteristic that rendered him incompetent to begin with. See L.B. Foster Co. v. Hurnblad, 418 F.2d 727, 727-28, 730 (9th Cir. 1969) (affirming jury verdict for plaintiff who alleged liability for negligent selection where contractor had a history of using unsafe equipment and the accident was caused by a brake failure); Hudgens v. Cook Ind., Inc., 521 P.2d 813, 814-15 (Okla. 1974) (reversing summary judgment for defendant where plaintiff alleged that defendant had negligently selected a trucking company that used “defective and unsafe equipment” .and the investigating officer testified that the accident was caused, in part, by slick, threadbare tires on both the trailer and the driving axle); Chinn v. Mark Transp., Inc., L-829-06, 2010 WL 374958 (N.J.Super.A.D. Feb. 4, 2010) (“We recognize that [the defendant] could be liable only if [the independent contractor’s disqualification was the cause of <the harm to plaintiffs.”) (citing Restatement (SECOND) OF TORTS § 411 CHlt. b). These cases offer no support for Plaintiff
The deposition testimony McComb cites does not alter this conclusion. First, Plaintiff offers the testimony of Dr. Thomas M. Corsi, an expert in liability and transportation, who suggests that Defendant never should have hired the contractors because of their low SafeStat scores for poor vehicle maintenance. Corsi went on to testify that if Bugarin had never been hired by Central Steel, he would not have been hauling Defendant’s goods on December 28, 2010, and, therefore, he could not have collided with Ms. McComb’s vehicle. (PL’s Sur-Reply [120] at 12-13.)
Both of these theories are insufficient to establish causation, however, as they require an extension of Defendant’s liability far beyond the reach of its actual culpability. In the first theory, Plaintiff focuses on the error in Defendant’s decision to hire allegedly incompetent contractors, while ignoring the issue of what, if any, role their particular unfitness played in the accident that killed Ms. McComb. McComb relies on Dr. Corsi’s testimony to establish that Central Steel should not have hired Shandy and Bugarin and that these contractors’ vehicle struck and killed Plaintiffs daughter. Although this establishes a connection between Bugarin’s hiring and Ms. McComb’s death, that connection does not constitute a legal cause. There is, of course, a literal sense in which anything that happens that would not have happened “but for” a prior event is causally connected to that event. Cf. Gavin v. AT & T Corp., 464 F.3d 634, 639 (7th Cir. 2006) (observing that parties to a securities fraud would not have existed, absent the Big Bang). But to prove a negligent selection claim, there must be a showing that the contractor’s particular incompetence caused the accident. Plaintiff has not made such a showing here. Instead, he appears to conflate the broad liability that attaches vicariously to employers for their employees’ actions (i.e., respondeat superior) with the narrower direct liability that principals face for negligently selecting independent contractors.
Each of the aforementioned deficiencies in McComb’s arguments for causation point to the same conclusion: Plaintiff has failed to establish that Defendant’s selection of allegedly incompetent contractors was the proximate cause of the unfortunate events of December 28, 2010. Accordingly, Defendant is entitled to summary judgment as a matter of law, and the court need not explore the other issues presented in this case.
CONCLUSION
For the foregoing reasons, Defendant Central Steel’s motion for summary judgment [108] is granted.
. Plaintiff failed to comply with Local Rule 56.1. Rather than, as is required, affirming or denying each paragraph of Central Steel’s statement, McComb simply offered his own version of events without reference to Defendant's. N.D. Ill. L.R.56.1(b) (“Each party op
. The parties do not explain whether the age of that rating is significant.
. SafeStat was replaced by a new program known as "Compliance, Safety, Accountability" or "CSA” at the end of 2010. (Def.'s Mot. at 16n.l.)
. An SEA value of 1 indicated the top-rated carrier for that evaluation area, while an SEA of 100 would indicate the worst-rated carrier. Thus, Shandy’s 81.23 rating reflected that 81.23% of carriers had higher scores for vehicle maintenance at that time.
. There is a shred of evidence that Bugarin's loose brake chamber at least contributed to the collision. (See Kirkpatrick Dep., Ex. G to Def.'s Mot, at 51:6-15 ("Q: Okay. And what did you determine could be a contributory cause [of the December 28, 2010 accident]? .. A: Improperly adjusted brakes.”).) Plaintiff has not made this argument, however, and in fact has disavowed it.
. Plaintiff argues that the testimony of Dr. Thomas M. Corsi provides the necessary evidence that "Shandy/Bugarin's SafeStat percentile score for vehicle maintenance was the proximate case of his injury.” (PL’s Sur-Reply at 12.) Specifically, Plaintiff quotes the following portion of Dr. Corsi’s deposition testimony:
Q: It's your opinion because Shandy had a high vehicle maintenance score in December of 2010 that nobody should have hired Shandy, right?
A: Yes
Q: It's your opinion that this accident would not have occurred if Central Steel didn’t hire Shandy, right?
A: Yes.
Q: Doctor, do you feel that a shipper such as Central Steel, if it had done its homework and checked these scores, wouldn't hire a company like Shandy?
A: Yes.
(Corsi Dep., Ex. B. to Def.’s Reply, at 77:23-81:23.)
. For example, under Plaintiff’s interpretation of negligent selection, wherever a principal hires a contractor that, for any reason, is incompetent for the task at hand, the principal would be liable for any harm the contractor causes in the principal’s service, regardless of the incompetence’s connection to the
. Chapter Twelve of the Illinois Vehicle Code identifies the equipment required of each vehicle operating on the state’s roads. It is illegal to drive any vehicle that lacks any required part. See 625 ILCS § 5/12-101 (“It is unlawful for any person to drive ... any vehicle ... which does not contain those parts ... as required in this Chapter.”). Tail lamps and “adequate mufflers” are two of the parts required by the Code. Id. §§ 5/12-201 (“Every motor vehicle, trailer, or semi-trailer shall also exhibit at least 2 lighted lamps, commonly known as tail lamps, which shall be mounted on the left rear and right rear of the vehicle so as to throw a red light visible for at least 500 feet[J”), 602 ("Every motor vehicle driven or operated upon the highways of this State shall at all times be equipped with an adequate muf£ler[.]”).
Reference
- Full Case Name
- Michael MCCOMB, as Parent and Special Administrator of the Estate of Giselle McComb v. Jose L. BUGARIN, Bugarin Trucking, Inc., J.L. Shandy Transportation, Inc., J.L. Shandy-Shamrock Division, Inc., J.L. Crotty, LLC, Central Steel and Wire Company, Inc., and State Farm Mutual Automobile Insurance Co.
- Cited By
- 5 cases
- Status
- Published