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Laporsek v. Burress

United States District Court, W.D. Virginia, Roanoke Division

December 10, 2019

CHRISTOPHER BURRESS, et. al. Defendant.



         Plaintiff Jovan Laporsek brings this action against defendants Christopher Burress and Cooke Trucking Company, Inc. (Cooke), asserting claims of negligence and vicarious liability stemming from a collision on April 5, 2017, in which Burress's tractor trailer collided with Laporsek's vehicle. (Am. Compl. ¶¶ 6-14, Dkt. No. 29.) Laporsek further seeks punitive damages against Burress for willful and wanton conduct or conduct in conscious disregard for the rights and safety of others. This matter is currently before the court on Burress's and Laporsek's cross-motions for partial summary judgment. Laporsek seeks summary judgment on the issue of whether Burress was acting within the scope of his employment with Cooke at the time of the accident or, in the alternative, requests the court exclude evidence of Cooke's internal rules, which prohibit driving under the influence. (Dkt. No. 62.) Burress seeks summary judgment on the issue of punitive damages for willful and wanton behavior. (Dkt. No. 81.) The issues are fully briefed, and the court held a hearing on these motions on November 15, 2019, at which time the court took the motions under advisement.[1] For the reasons stated below, the court will grant Laporsek's motion and deny Burress's motion.

         I. BACKGROUND

         On April 5, 2017, at approximately 10:25 a.m., Burress and Laporsek were both traveling on I-81 in Wythe County, Virginia, when Burress's tractor trailer crossed the median and collided with Laporsek's vehicle. (Burress Dep. 21, 55, Dkt. No. 88-1.) Prior to reporting to work that day, Burress drank approximately 750 ml of whiskey from the bottle. He stopped drinking at approximately 7:00 a.m. or 8:00 a.m. and has stipulated that his blood alcohol concentration (BAC) was 0.198% at the time of the accident. (Id. at 21, 47-48.) After picking up his tractor trailer and co-driver from the Cooke Trucking “yard, ” Burress did not make any stops before the time of the accident. (Id. at 55.)

         Burress has admitted liability on the sole negligence count in Laporsek's complaint. (Def. Br. Supp. 2, Dkt. No. 81.) He also reported that he has one previous conviction for driving under the influence (DUI). (Burress Dep. 17.)

         Laporsek points out that prior to the accident, Burress hit a rumble strip (id. at 65-67) and caused a witness, Wayne Wingfield, to run off the road to avoid contact with Burress's tractor trailer before Burress collided with Laporsek (Wingfield Aff. ¶¶ 1-4, Dkt. No. 88-1 at 48).[2] Wingfield witnessed Burress “swerving all over the road, ” while two other tractor trailer drivers flashed their headlights at the “erratic” driver. (Id.) Wingfield also blew his horn at Burress, and Burress's co-driver, who was in the sleeping compartment, stated “Goddamn it, Chris, ” but Burress did not stop or slow down.[3] (Burress Dep. at 65; Wingfield Aff. ¶ 3.)

         Federal Motor Carrier Safety Regulations (FMCSRs) require commercial drivers to receive drug and alcohol training, which Burress received both in professional driving school and from Cooke. (Burress Dep. at 10-13.) Burress also knew the regulations set the presumption of intoxication for covered truck drivers at a BAC of 0.04%-a stricter standard than for other members of the driving public. (Id. at 72-73.) Additionally, Burress has acknowledged that driving a tractor trailer requires different skills than driving a regular car or SUV and that the damage caused by an accident involving a tractor trailer could be worse than damage caused by other vehicles. (Id. at 38-39.)

         Laporsek asserts that Cooke is liable for Burress's negligence under the doctrine of respondeat superior. It alleges that Burress was an employee of Cooke and would “drive tractors to places Cooke would arrange in advance in exchange for wages, using Cooke provided motor vehicles and trailers.” (Am. Compl. ¶ 8.) Cooke admits that it employed Burress but argues that Burress was operating outside the scope of his employment at the time of the accident because he was intoxicated.

         Laporsek also seeks $350, 000 in punitive damages against Burress for willful and wanton negligence. Because Burress had a BAC over the legal limit even after receiving training on the effects of alcohol when driving, and because Burress's intoxication was a proximate cause of the accident, Laporsek asserts that Burress's actions were willful and wanton. He also alleges that Burress is subject to statutory punitive damages under Virginia Code § 8.01-44.5. In response, Burress argues that his conduct is not egregious enough to meet Virginia's standard for willful and wanton conduct and that Laporsek failed to plead his statutory punitive damages claim with enough specificity to put Burress on notice as required by Federal Rule of Civil Procedure 8.


         A. Standard of Review

         Summary judgment is proper where “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). A genuine issue of material fact exists only where the record, taken as a whole, could lead a reasonable jury to return a verdict in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). In making that determination, the court must take “the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc) (quoting Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).

         A party opposing summary judgment “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citations omitted). Moreover, “[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .” Id. at 247-48. Instead, the non-moving party must produce “significantly probative” evidence from which a reasonable jury could return a verdict in his favor. Abcor Corp. v. AM Int'l, Inc., 916 F.2d 924 (4th Cir. 1990) (quoting Anderson, 477 U.S. at 249-50). “While courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue, summary judgment disposition remains appropriate if the plaintiff cannot prevail as a matter of law.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996).

         B. Laporsek's Motion for Partial Summary Judgment

         Laporsek moves for summary judgment on the issue of whether Burress was acting within the scope of his employment with Cooke when he drank 750 ml of whiskey before operating his tractor trailer. Alternatively, the motion seeks to exclude the use of Cooke's private rules-specifically, that it was against Cooke's rules for a driver to drive while intoxicated-as evidence.

         Cooke admits that Burress was an employee of Cooke and was intoxicated while driving; however, it disputes Laporsek's allegations that “Burress was driving under the direction of, on a route for, for the sole benefit of, and under the employment of, Cooke Trucking.” It further disagrees with Laporsek's assertion that “Burress had not deviated from that route or done anything outside the scope of employment with regard to his location.” (Dkt. No. 62-1, at 6.)

         “The determination of whether an employee acted within the scope of employment requires the application of the law of the state where the tort occurred.” Goodwyn v. Simons, 90 Fed.Appx. 680, 682 (4th Cir. 2004). “For the most part, Virginia courts take a fairly broad view of scope of employment, and hold that even intentional torts may be within the scope of employment.” Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1156 (4th Cir. 1997). “Vicarious liability claims benefit from a unique presumption that shifts the burden of production on the scope-of-employment issue to the defense once a complaint alleges the existence of an employment relationship at the time of the employee's tort.” Our Lady of Peace, Inc. v. Morgan, 832 S.E.2d 15, 25 (Va. 2019).

         The Supreme Court of Virginia recently restated its application of respondeat superior in Our Lady of Peace. It recalled that “the first principle of respondeat superior is that vicarious liability may be imposed on an employer when ‘the service itself, in which the tortious act was done, was within the ordinary course of the employer's business.'” Id. (quoting Parker v. Carilion Clinic, 819 S.E.2d 809, 819 (Va. 2018)). “In our leading cases, ‘the tortious act or transaction occurred while the employee was in fact performing a specific job-related service for the employer, and, but for the employee's wrongdoing, the service would otherwise have been within the authorized scope of his employment.'” Id. (quoting Parker, 819 S.E.2d at 820). The court ...

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