UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Terry L. Lufkin and Bradley Lufkin, d/b/a Lufkin’s Service Center

v. Civil No. 13-cv-269-LM Opinion No.

John S. Reed, Inc. and John S. Little, as Administrator of the Estate of Keith A. Butts

O R D E R

The Plaintiffs, Terry and Bradley Lufkin (“Lufkins”), are

the proprietors of Lufkin’s Service Center (“Service Center”), a

gas station and automotive repair shop located in Whitefield,

New Hampshire. In December of 2011, a flatbed tractor trailer

truck lost control and careened through the Service Center,

causing damage to a gas pump and the canopy above it. The truck

came to rest in a ravine beyond the Service Center, and the

truck’s driver, Keith A. Butts (“Butts”), was killed in the

accident. Because of damage to the Service Center, the Lufkins

were ordered by local authorities to stop selling fuel.

The Lufkins have brought this suit against John R. Reed,

Inc. (“Reed”), a Tennessee corporation that owns the truck, and

John S. Little (“Little” and, together with Reed, “Defendants”),

a Tennessee attorney who has been appointed as the administrator

of Butts’s estate. The complaint asserts a claim for negligent operation of a motor vehicle against Little (“Count I”), and

claims for respondeat superior (“Count II”) and negligent

failure to supervise (“Count III”) against Reed. The Lufkins

seek compensation for damage to the Service Center, including

losses stemming from their ongoing inability to sell fuel.

The Lufkins have filed a motion seeking partial summary

judgment solely as to liability on Counts I and II. A hearing

was held on this motion on January 29, 2015. For the reasons

that follow, the Lufkins’ motion for partial summary judgment is

denied.1

Factual Background

In the early morning hours of December 20, 2011, Butts was

driving the truck eastbound on Route 116 in Whitefield, en route

from Tennessee to Vermont with a load of steel girders. At

approximately 5:50 a.m., Butts descended an incline on Route 116

as he approached the “T” intersection of Route 116 and Route 3.

Butts planned to execute a left turn onto Route 3 in order to

head north.

1 Reed has moved for summary judgment on Count III, contending that a claim for negligent failure to supervise is redundant of Count II, which is for respondeat superior. The Lufkins did not oppose this motion, and conceded at oral argument that it should be granted because Reed has stipulated that Butts was acting within the scope of his employment at the time of the accident. See Burley v. Hudson,

, 376- 77 (N.H. 1982).

2 For reasons that are unclear, Butts proceeded through a

stop sign at the intersection, failed to make the turn onto

Route 3, and hurtled through the Service Center, which is

located directly across from the intersection. The truck struck

a fuel pump and a support column for the Service Center’s

canopy, finally coming to rest in a ravine with its cab

partially submerged in the Johns River. Butts was killed when

the steel girders flew forward and breached the rear wall of the

cab. Footage from security cameras captured the accident from

three different angles.

Legal Standard

“Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law.” Ponte v. Steelcase Inc.,

(1st Cir. 2014) (citations omitted); see also Fed. R.

Civ. P. 56(a). When ruling on a motion for summary judgment,

the court must “view[] the entire record in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.” Winslow v.

Aroostook Cnty.,

(1st Cir. 2013) (citations

omitted) (internal quotation marks omitted).

“The object of summary judgment is to pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.” Dávila

3 v. Corporación de P.R. para la Difusión Pública,

(1st Cir. 2007) (citations omitted) (internal quotation marks

omitted). “[T]he court’s task is not ‘to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.’” Noonan v. Staples, Inc.,

(1st Cir. 2009) (quoting Anderson v. Liberty Lobby,

Inc.,

(1986)).

Discussion

The Lufkins seek summary judgment as to liability for

Counts I and II, which assert claims against Little for

negligent operation of a motor vehicle, and against Reed for

respondeat superior, respectively.2 The Lufkins contend that the

security camera footage establishes as a matter of law that

Butts operated the truck negligently. In the alternative, the

Lufkins maintain that Butts was negligent per se in violating at

least two New Hampshire traffic safety laws. The Defendants

counter that genuine issues of material fact remain regarding

2 Under the theory of respondeat superior, “an employer may be held vicariously responsible for the tortious acts of its employee if the employee was acting within the scope of his or her employment when his or her tortious act injured the plaintiff.” Pierson v. Hubbard,

(N.H. 2002). Reed does not dispute that Butts was acting within the scope of his employment at the time of the accident, but contends that genuine issues of fact remain regarding whether Butts acted negligently.

4 the road conditions at the time of the accident, precluding

summary judgment.

The court has reviewed the footage from the three security

cameras. Two of the angles merely show the truck as it barrels

through the Service Center. The third angle, however, captures

the intersection of Routes 3 and 116 as the truck careens

through the stop sign and toward the Service Center. Because

the footage was captured at nighttime, is somewhat grainy, and

only shows a small portion of the roadway, it is impossible for

the court to tell whether the truck was skidding at the time

that it ran through the stop sign, or merely ran the stop sign

without attempting to slow down.

I. Negligence as a Matter of Law

Under New Hampshire law, a driver’s loss of control of his

vehicle is not dispositive evidence of negligence. Grigas v.

Merrimack Farmers’ Exch.,

(N.H. 1946)

(“[S]kidding in and of itself, when not due to carelessness on

the part of the operator of an automobile, is not evidence of

negligence.”). This is particularly true where there is

evidence of poor road conditions. Burns v. Cote,

(N.H. 1933) (“It is a matter of common knowledge that a

car may skid on a slippery road without fault either on account

of the manner of handling the car or on account of its being

there.”) (citations omitted) (internal quotation marks omitted).

5 Here, there are a series of factual questions related to

Butts’s operation of the truck and the road conditions at the

time of the accident. These questions preclude the entry of

summary judgment. As an initial matter, the stretch of Route

116 leading to the intersection is described in a police report

as a “steep [downward] grade.” What is more, eyewitnesses to

the accident described the road as being “slippery” and “ice

covered” at the time. While there is some evidence that the

road may have been recently treated with salt and gravel, a New

Hampshire state trooper described the roadway as having portions

that were “covered with ice.”

The New Hampshire Supreme Court has recognized that the

question of whether road conditions are to blame for a traffic

accident is one of fact. See Wiggin v. Kingston,

(N.H. 1941) (“Unexplained skidding does not indicate

negligence, but when there are conditions within the driver’s

control which may be found accountable for it, careless control

becomes causal of the loss of control. . . . Whether the

defendant in the exercise of care should have anticipated that

the speed at which she was driving on a road made slippery by

soft wet snow was unreasonably dangerous, was an issue of

fact.”). While the security footage plainly shows the truck

careening through the stop sign and onto the premises of the

Service Center, the Defendants have demonstrated the existence

6 of genuine issues of material fact regarding whether the

downward slope of the road and icy conditions were such that it

was impossible for Butts to stop the truck’s momentum and avert

a collision.3

This is precisely the type of factual inquiry best left to

a jury. Presented with the videotapes, the eyewitness accounts,

and the reports of the responding officers, jurors will be able

to resolve the dispositive factual dispute of whether Butts was

operating the truck negligently at the time of the accident.

II. Negligence Per Se

The Lufkins contend that even if the court were to hold

that the security footage is inadequate to find the Defendants

liable as a matter of law, liability may still be premised on

the basis of negligence per se. “[T]he negligence per se

doctrine may define the standard of conduct to which a defendant

will be held as that conduct required by a particular statute,

either instead of or as an alternative to the reasonable person

standard.” Mahan v. N.H. Dep’t of Admin. Servs.,

(N.H. 1997).

3The court has reviewed the two cases cited by the Lufkins at oral argument regarding the duty of drivers to appropriately account for slippery road conditions. See Nilsson v. Bierman,

(N.H. 2003); Patterson v. Corliss,

(N.H. 1972). Contrary to the Lufkins’ contention, neither case stands for the proposition that a driver’s liability is appropriately resolved as a matter of law on summary judgment.

7 The Lufkins maintain that Butts violated

(II) and 265:44, which pertain to the requirement

to stop at marked stop signs, and to safely execute turns,

respectively.4 The Lufkins argue that a finding of liability may

be premised on these statutory violations.

This argument, however, overlooks the possibility that

Butts was exercising due care at the time of the accident, and

that his loss of control was the result of poor driving

conditions. Though New Hampshire state courts have not yet had

occasion to parse the relevant section of the Restatement

(Third) of Torts, the court finds it persuasive. There, in

discussing negligence per se, the authors write that “[a]n

actor’s violation of a statute is excused and not negligence if

the actor exercises reasonable care in attempting to comply with

the statute.” Restatement (Third) of Torts: Liability for

Physical and Emotional Harm § 15(b). In the comments that

follow, the authors note:

[T]he common law recognizes that [a] person can rebut negligence per se by showing that the person made a reasonable effort to comply with the statute. For example . . . . if a statute imposes a strict- liability obligation on motorists to remain on the right side of the road, the motorist whose car crosses the middle of the road because of a sudden tire

4 In relevant part, § 265:31(II) provides that “every driver of a vehicle approaching a stop intersection indicated by a stop sign shall . . . stop at a clearly marked stop line . . . .” Also in relevant part, § 265:44 provides that “[n]o person shall turn a vehicle . . . upon a roadway unless and until such movement can be made with reasonable safety.”

8 deflation is excused from negligence per se if the tire deflates despite the motorist’s reasonable efforts to prevent this result.

Id. at cmt. c. For the reasons described above, the Defendants

have proffered sufficient evidence to demonstrate the existence

of genuine issues of material fact regarding whether the

accident was the result of Butts’s negligence, or whether the

road conditions prevented him from stopping at the intersection

despite his diligent efforts to do so.

Conclusion

In these circumstances, it is premature to enter judgment

for the Lufkins on the issue of Butts’s negligence, and

therefore similarly premature to find Reed liable for the

actions of its employee based on respondeat superior. Thus, the

Lufkins’ motion for partial summary judgment (doc. no. 24) must

be DENIED. Reed’s motion for partial summary judgment (doc. no.

29) is GRANTED, and judgment shall enter for Reed on Count III.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 4, 2015

cc: Daniel Duckett, Esq. Thomas Kincaid mcCraw, Jr., Esq. Keith L. Miller, Esq.

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