John E. Woolum v. Lift Transport, LLC ( 2023 )

RENDERED: MARCH 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0468-MR
JOHN E. WOOLUM APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 19-CI-01348
LIFT TRANSPORT, LLC AND
ANTHONY RIVERA, JR. APPELLEES
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE,
JUDGES.
THOMPSON, CHIEF JUDGE: John E. Woolum (“Appellant”) appeals from an
order of the Boone Circuit Court entered on January 7, 2022, granting summary
judgment in favor of Lift Transport, LLC and Anthony Rivera, Jr. (“Appellants”),
and from an order denying his Kentucky Rules of Civil Procedure (“CR”) 59.05
motion to vacate the January 7, 2022 order. Appellant argues that the circuit court
erred in failing to hear expert testimony before granting summary judgment, and
that genuine issues of material fact exist which preclude summary judgment. He
argues in the alternative that the circuit court improperly denied his motion to
vacate the order granting summary judgment. After careful review, we find no
error and affirm the order of summary judgment on appeal.1
FACTS AND PROCEDURAL HISTORY
On July 19, 2019, Appellant was operating a motorcycle in the right,
southbound lane of a divided four-lane highway in Florence, Kentucky. A
passenger vehicle operated by Geraldo Gonzales was some distance ahead in the
lane to the immediate left of the motorcycle. Gonzales’ vehicle moved into the
right lane occupied by Appellant. At about the same time, a vehicle in front of
Gonzales slowed to make a right turn. This caused Gonzales to decelerate quickly
to avoid the vehicle in front of him, which in turn caused Appellant to brake hard.
Believing that he would be unable to stop before running into the back of
Gonzales’s vehicle, Appellant laid his motorcycle on its side and fell to the driving
surface.
After falling onto the pavement, Appellant’s body partially crossed
over the line dividing the right and left lanes. A commercial vehicle, consisting of
a 2018 Dodge Ram 2500 truck pulling a 35’ flatbed trailer, was in the left lane near
1
As addressed below, the order denying CR 59.05 relief is not final and appealable.
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the incident. It was owned by Lift Transport, LLC and operated by employee
Anthony Rivera, Jr. In an attempt to avoid Appellant’s body, which was partially
in the left lane, Rivera quickly steered to the left. A police report would later state,
and Appellant would so testify, that the trailer of Appellees’ vehicle ran over
Appellant’s left arm resulting in serious injuries.
On October 2, 2019, Appellant filed the instant personal injury action
against Gonzales and Appellees in Boone Circuit Court. Appellant alleged that
Rivera, as a commercial driver, was negligent in the operation of his vehicle which
proximately resulted in Appellant’s injuries. He further asserted that Lift
Transport, LLC, was negligent in hiring Rivera. Gonzales could not be located and
was not served with the complaint.
The matter proceeded in Boone Circuit Court and discovery
commenced. On October 21, 2021, Appellees filed a motion for summary
judgment. In support of the motion, Appellees argued that Appellant failed to
establish a prima facie case of negligence, and could not prevail if the matter
proceeded to trial. Appellant responded that he had retained liability experts and
was prepared to comply with the January 3, 2022 disclosure deadline. He asserted
that there were issues of fact for the jury to consider and that Appellant’s arm
would not have been injured had Rivera been operating his vehicle in conformity
with regulations governing the operation of commercial vehicles.
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On January 3, 2022, and while the summary judgment motion was
pending, Appellant filed notice with the circuit court that he had disclosed expert
witness reports to the Appellees on the issue of Appellees’ liability. In particular,
expert witness Neil Gilreath opined that Rivera negligently adjusted the brakes on
his trailer and was following Gonzales too closely which resulted in his failure to
avoid Appellant.
On January 7, 2022, the circuit court rendered an order granting
Appellees’ motion for summary judgment. The court determined that while
Appellees owed a duty to Appellant, there was no genuine issue of material fact
and Appellant could not demonstrate a breach of that duty nor causation.
Appellant’s subsequent motion to vacate the order was denied, and this appeal
followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. “The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
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1991). Summary judgment should be granted only if it appears impossible that the
nonmoving party will be able to produce evidence at trial warranting a judgment in
his favor. Id. “Even though a trial court may believe the party opposing the
motion may not succeed at trial, it should not render a summary judgment if there
is any issue of material fact.” Id. Finally, “[t]he standard of review on appeal of a
summary judgment is whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996).
ARGUMENTS AND ANALYSIS
Appellant argues that the Boone Circuit Court committed reversible
error in granting Appellees’ motion for summary judgment. He asserts that the
circuit court improperly failed to consider the potential need for expert testimony
at trial, and did not give him the opportunity to present this testimony. Appellant
contends that Rivera owed him a duty of care, that a question of fact remains as to
whether Rivera breached that duty, and whether the breach resulted in the injury.
Appellant directs our attention to Rivera’s deposition testimony, in which Rivera
acknowledged that he has a commercial driver’s license (“CDL”), that he was
bound by federal regulations and the CDL manual, and that if he did not follow
those rules it would increase the chance of an innocent person being injured.
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Appellant argues that Rivera had a duty to stay up to 100 yards behind
the vehicle in front of him. He further asserts that Rivera gave conflicting
statements as to whether he was a short distance behind Gonzales, whether
Rivera’s lane was empty in front of him, and/or whether Appellant fell in front of
or beside Rivera’s vehicle. The substance of Appellant’s argument is his
contention that issues of fact remain for adjudication, and that these facts affect the
application of Rivera’s duty to Appellant. In the alternative, Appellant argues that
the circuit court erred in denying his motion to vacate the summary judgment. He
seeks an opinion reversing the summary judgment and remanding the matter for
further proceedings.
In order to prevail on a claim of negligence, the plaintiff must prove
that 1) the defendant had a duty to the plaintiff; 2) the defendant breached the duty;
and 3) the breach proximately caused plaintiff’s injury. Wright v. House of
Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012). This duty is “ordinary care,”
which is what a reasonably prudent person would do under the same or similar
circumstances. Id. Further, an operator of a motor vehicle “shall operate the
vehicle in a careful manner, with regard for the safety and convenience of
pedestrians and other vehicles upon the highway.” Kentucky Revised Statutes
(“KRS”) 189.290(1). Appellant acknowledges that Rivera had a duty of ordinary
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care, and does not cite authority for any heightened duty based on Rivera’s status
of CDL operator nor of being a person with special knowledge, skill, or expertise.
The primary question for our consideration, then, is whether the
Boone Circuit Court correctly determined that Appellant failed to raise any
genuine issue of material fact relating to the duty owed by Rivera, and whether
Rivera breached that duty proximately resulting in Appellant’s injury. In support
of this conclusion, the circuit court noted the undisputed fact that Gonzalez’s
vehicle pulled into Appellant’s lane and immediately braked abruptly, causing
Appellant to fall off his motorcycle in an attempt to avoid Gonzalez’s vehicle.
This, the court found, was the cause of the accident. Rivera was in a different lane,
and did not cause Gonzalez to “cut off” Appellant, nor did Rivera cause Appellant
to fall off of his motorcycle. No testimony was adduced in discovery that Rivera
was in any way responsible for the operation of Gonzalez’s vehicle, Appellant’s
response to Gonzalez braking, nor Appellant’s body landing partially in the left
lane.
In support of the order of summary judgment, the circuit court also
found that Appellant provided no affirmative proof that Rivera was speeding,
impaired by intoxicants or fatigue, nor was he operating his vehicle in an uncareful
manner per KRS 189.290(1) at the time of the accident. It found that Appellant
could provide no affirmative proof that Rivera maneuvered his vehicle in a way
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that breached his duty of care to Appellant, nor how any action taken by Rivera
caused the accident. The court determined that though the tires on Rivera’s trailer
caused Appellant’s injury, no evidence could be adduced at trial that Rivera caused
Appellant’s arm to be in the left lane.
As part of this argument, Appellant also argues that Lift Transport,
LLC (“Lift”) was negligent in hiring or supervising Rivera; that it failed to obtain
Rivera’s medical examination certificate and safety employment history; that
Rivera had previously tested positive for cocaine and was not cleared for duty until
June 29, 2019; and, that Rivera had improperly manipulated his logbook. We
agree with the circuit court that these claims, even when taken in a light most
favorable to Appellant for purposes of the summary judgment motion, do not
bolster Appellant’s burden of proving that Rivera breached a duty proximately
resulting in Appellant’s injury. Again, no evidence was adduced that Rivera was
impaired, speeding, or in any way responsible for the operation of Gonzalez’s
vehicle or Appellant’s crash.
Per Scifres, supra, and having closely examined the record and the
law, we conclude that the circuit court correctly found that there were no genuine
issues as to any material fact, and that Appellees were entitled to judgment as a
matter of law. Though it is uncontested that Rivera owed a duty of ordinary care to
the general public, and was statutorily required to operate his vehicle in a careful
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manner, no genuine issues of material fact remained for adjudication on the issues
of whether Rivera breached his duty to Appellant proximately resulting in
Appellant’s injury. The circuit court correctly so concluded, and we find no error.
Appellant also argues that the circuit court improperly failed to
conclude that expert opinion testimony created a genuine issue of material fact on
the claim that Appellees were negligent and contributed to the accident at issue.
Specifically, Appellant directs our attention to the report of accident reconstruction
expert Neil Gilreath, who opined in his November 18, 2021 report that Rivera’s
improper knowledge of brake adjustments on his empty trailer adversely affected
his ability to control the trailer. Gilreath was also of the opinion that Rivera was
following Gonzales too closely which resulted in Rivera’s failure to avoid
Appellant. Appellant argues that this testimony raises genuine issues of fact on the
issues of breach of duty and causation.
The circuit court determined that there was no causal link between
Rivera’s alleged breach of duty as opined in expert witness reports and Appellant’s
injury. We agree. Even when viewed in a light most favorable to Appellant,
Rivera’s alleged breach of duty, if any, did not cause Gonzales to pull in front of
Appellant and brake quickly, nor cause Appellant to fall off his motorcycle and
slide on the pavement into Rivera’s lane. If anything, Rivera’s quick action may
have saved Appellant’s life, as Rivera stated that he would have run over
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Appellant’s head had Rivera not swerved to the left when he saw Appellant’s body
partially in the left lane. We agree with the circuit court that the proffered expert
testimony does not support a prima facie case of negligence sufficient to overcome
Appellees’ motion for summary judgment.
Lastly, Appellant argues in the alternative that the Boone Circuit
Court erred in failing to grant Appellant’s CR 59.05 motion to vacate the summary
judgment. An order denying a CR 59.05 motion, however, is “interlocutory, i.e.,
non-final and non-appealable and cannot be made so by including the finality
recitation[.]” Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 103
(Ky. App. 2011). Though the Boone Circuit Court’s order denying CR 59.05 relief
included a finality recitation, per Brown it is nevertheless non-final and non-
appealable.
CONCLUSION
The Boone Circuit Court correctly found that there were no genuine
issues as to any material fact, and that Appellees were entitled to judgment as a
matter of law. Scifres, supra. Accordingly, we find no error and affirm the Boone
Circuit Court’s order granting summary judgment.
ECKERLE, JUDGE, CONCURS.
CETRULO, JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
James Ryan Turner John G. McNeill
Florence, Kentucky Justin T. Baxter
Lexington, Kentucky
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