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Schreckengast v. Carollo

United States District Court, S.D. Georgia, Savannah Division

June 22, 2017

CHARLES S. CAROLLO, individually, and LANDSTAR INWAY, INC., Defendants.


         Before the Court in this in this auto wreck, personal-injury case are plaintiffs' motions for clarification and reconsideration, plus defendants' objections to plaintiffs' trial exhibits and deposition designations.[1] Docs. 84, 94, 110, 111. Defendants oppose both of plaintiffs' motions. Docs. 118, 119. The Court SUSTAINS as unopposed the portions of the objections which have been conceded, and DENIES as moot those objections which have since been withdrawn.[2]


         Plaintiffs want to bifurcate the trial “to avoid problems with the collateral source rule, while still protecting [Cannon Cochran Management Services, Inc.'s] interests as intervenor.” Doc. 111 at 2. But the plaintiffs, defendants complain, have yet to accept the Court's invitation to confer and attempt to find a mutually agreeable way to address CCMS's presence at trial. Doc. 119 at 6. CCMS, for its part, states that it does not oppose bifurcation, but disputes plaintiffs' contention that Georgia law governs based on its assertion of a settlement agreement. Doc. 120.

         Plaintiffs' bifurcation request is untimely. They have never objected to CCMS's intervention in this case, and their in limine motion raised no objection. See doc. 119 at 3 (noting “Plaintiffs have not objected to CCMS' intervention into this litigation.”); see generally doc. 111. For that matter, the Court (at the pretrial conference and after it granted CCMS's intervention motion) advised the parties that there is “no cause to bifurcate here.”[3] Doc. 105 at 23. No one objected at that time, and the Court sees no cause to revisit the issue. Plaintiffs' apparent settlement with CCMS, meanwhile, only further supports the conclusion that its participation in the trial will be inconsequential. See doc. 120.

         As stated in the Court's previous Order, the parties remain “free to confer and stipulate to a mutually satisfactory way to acknowledge CCMS at trial, though it may not actually appear if its only purpose is to recover from any plaintiffs' judgment.” Doc. 100 at 4. The Court's prior ruling, granting plaintiff's motion in limine excluding collateral source evidence subject to requests to admit particular evidence made outside the presence of the jury, stands. The Court again encourages the parties to confer --both about the possible presence of CCMS at trial and about CCMS's requested stipulation concerning the amount of its lien.[4] Doc. 120 at 4. Absent such agreement, determination of the admissibility of any particular collateral source evidence is DEFERRED to the district judge.


         A. Negligent Hiring Evidence

         The Court previously deemed inadmissible certain evidence that plaintiffs contend is relevant to their claim for negligent hiring, entrustment, supervision, training, and retention (for brevity, the “negligent hiring claim”). See doc. 100. Plaintiffs move to reconsider. Doc. 110. The difficulty the Court faces in resolving this issue is that plaintiffs' claim appears deficient as a matter of law, yet defendants have not sought summary disposition. Given that atypical status, the Court balanced the probative value of the evidence against the risk of prejudice and determined that it should be excluded. See doc. 100 at 11-12.

         Under Georgia law, “subjecting a defendant to vicarious liability through respondeat superior precludes a redundant claim of negligent hiring or retention against the same defendant.” Coleman v. Avery, 2015 WL 12851557 at * 6 (N.D.Ga. May 7, 2015). “In cases alleging both respondeat superior and negligent hiring, supervision, retention, training and entrustment against an employer for the acts of its driver where no punitive damages are sought, the Georgia Court of Appeals has stated that a defendant employer's admission of liability under respondeat superior establishes the liability link necessary to proceed against the employer on its employee's negligence. [Cit.]. This is so because of the countervailing problems inherent in protecting the employee from prejudicial evidence of his prior driving record and general character for recklessness in driving while admitting the proof necessary for the negligent entrustment case to proceed.” Homestate County Mut. Ins. Co. v. Logicorp Enters., LLC, 2014 WL 12647766 at * 4 (N.D.Ga. July 22, 2014) (cites omitted).

         Plaintiffs argue that this principle no longer applies, given Georgia's adoption of an apportionment-of-fault statute, replacing the old regime of joint and several liability. See doc. 132. That argument is creative, and in fact is supported by Little v. McClure, 2014 WL 4276118 at * 2-3 (M.D. Ga. Aug. 29, 2014). But federal courts have continued to follow the established Georgia rule. See, e.g., Downer v. Boyer, 2017 WL 1093167 at * 2 (N.D.Ga. Mar. 23, 2017) (“Under Georgia law, respondeat superior and negligent hiring, training, and supervision are mutually exclusive theories of liability.”); Coleman, 2015 WL 12851557 at * 6. The Court could not find, and plaintiffs have not cited, any case since Little adopting its reasoning. The Court is also not convinced that the Georgia Supreme Court's opinion in Zaldivar v. Prickett, 297 Ga. 589 (2015), extends as far as plaintiffs claim.[5] Thus, the Court is not willing to buck the prevailing trend and find that plaintiffs' negligent hiring claim is not surplus, given Landstar's concession of respondeat superior.

         Plaintiffs do not dispute the evidence's prejudicial character. Doc. 110 at 3-4. In fact, plaintiffs suggest bifurcating the liability phase of this trial (despite, as discussed above, their concession at the pretrial conference that bifurcation was not appropriate) and claim that “[t]he risk of prejudice of not allowing plaintiff to present any evidence on these pending claims is paramount.” Id. at 6. They do not explain, however, how they would be prejudiced by not being allowed to offer proof of a redundant claim. Plaintiffs' argument that Fed.R.Evid. 403 rarely provides a reason to exclude otherwise relevant evidence, id. at 4-6, depends on Fed.R.Evid. 401's definition of “relevance” as conditioned on whether “the fact [the evidence would tend to prove] is of consequence in determining the action.” Fed.R.Evid. 401(b). Since plaintiffs' negligent hiring claim is redundant, although it remains pending, [6] the probative value of any evidence supporting it must be vanishingly small. Thus, the unrebutted risk of prejudice identified by defendants is sufficient to outweigh it. Their motion for reconsideration (doc. 110), therefore, is DENIED in part.

         B. Defendant Carollo's Traffic Ticket

         Plaintiffs also request that the Court reconsider its ruling on the admissibility of defendant Carollo's traffic ticket for following too closely, issued as a result of the wreck at issue in this case. Doc. 110 at 7-9. Generally, “[e]vidence of traffic citations is only admissible in a subsequent civil proceeding if the defendant voluntarily and knowingly entered a plea of guilty.” Rangel v. Anderson, 2016 WL 6595600 at * 3 (S.D. Ga. Nov. 7, 2016) (internal quotes and cite omitted). But Carollo didn't plead guilty; he merely forfeited his bond. Doc. 110-1 at 2. Plaintiffs contend that bond forfeiture can be construed as an admission of guilt. See doc. 110 at 8 (citing O.C.G.A. § 40-13-58). Defendants oppose and cite defendant Carollo's deposition testimony to further support the conclusion that he did not knowingly plead guilty to the offense charged. Doc. 96 at 8-12.[7]

         In their reconsideration motion plaintiffs present a new citation, Highsmith v. Tractor Trailer Service, where the Northern District of Georgia accepted a bond forfeiture as evidence of negligence per se. 2005 WL 6032882 at * 7 (N.D.Ga. Nov. 21, 2005). Based on Highsmith, the Court concludes that Carollo's traffic ticket is admissible, though Carollo may, as plaintiffs concede, provide an explanation in his defense. See doc. 89 at 19 (“Plaintiffs recognize that Defendant Carollo can attempt to rebut the presumption of guilt by presenting evidence that he was not negligent despite the documented bond forfeiture, and/or evidence that the charge was reduced to “Too Fast for Conditions” based soeley on his testimony . . ., and the jury can choose to agree or not ...

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