United States District Court, S.D. Georgia, Savannah Division
JOHN PATRICK SCHRECKENGAST, and ANDREA SCHRECKENGAST Plaintiff,
CHARLES S. CAROLLO, individually, and LANDSTAR INWAY, INC., Defendants.
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. 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have since been withdrawn.
MOTION FOR CLARIFICATION
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.
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.” 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.
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. Doc. 120 at 4. Absent such
agreement, determination of the admissibility of any
particular collateral source evidence is DEFERRED to the
MOTION FOR RECONSIDERATION
Negligent Hiring Evidence
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
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).
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. 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.
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,  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.
Defendant Carollo's Traffic Ticket
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.
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 ...