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Deborah Johnson, Eddie Johnson Ii, Kj, and Eddie Johnson Iii v. Ask Trucking

March 25, 2011

DEBORAH JOHNSON, EDDIE JOHNSON II, KJ, AND EDDIE JOHNSON III, PLAINTIFFS
v.
ASK TRUCKING, LLC, AND ALEKSANDR ISSEROVICH, DEFENDANTS



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Friday, 25 March, 2011 01:27:17 PM Clerk, U.S. District Court, ILCD

ORDER and OPINION

The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court is Defendants' Motion for Partial Summary Judgment and for Advanced Ruling on Evidence and In Limine (#32). This motion is fully briefed, and I have carefully considered the arguments and evidence submitted by the parties. As explained herein, the Motion for Partial Summary Judgment is denied and the Motion for an Advanced Ruling is granted in part, denied in part and moot in part.

JURISDICTION

The plaintiffs, all individuals, were at all relevant times citizens and residents of the State of Kansas. Defendant Aleksandr Isserovich, was at all relevant times a citizen and resident of either New Jersey or New York. Defendant ASK Trucking LLC is a limited liability company under the laws of New Jersey. At all times, it had only one member, Saso Petrovski, who was a citizen of the State of New Jersey. The amount in controversy exceeds $75,000. See, Supplemental Jurisdictional Statement (Doc. #37). This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 over the subject matter of this dispute.

SUMMARY JUDGMENT GENERALLY

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir. 1995).

In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.

The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v. City of Ft. Atkinson, 84 F.3d 960, 961 (7th Cir. 1996); Vukadinovich v. Bd. of Sch. Trustees, 978 F.2d 403, 408 (7th Cir. 1992), cert. denied, 510 U.S. 844 (1993); Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir. 1990); DeValk Lincoln-Mercury, Inc. V. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987); Bartman v. Allis Chalmers Corp., 799 F.2d 311, 312 (7th Cir. 1986), cert. denied, 479 U.S. 1092 (1987), and construing any doubts against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Trotter v. Anderson, 417 F.2d 1191 (7th Cir. 1969); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir.1999).

UNDISPUTED FACTS

Defendant Aleksandr Isserovich was at the pertinent time a truck driver employed by ASK Trucking LLC. (herein, "ASK"). Isserovich had a commercial driver's license*fn1 in December of 2008, and had had one since 2003. The record includes his testimony about several speeding violations and a red-light violation prior to his employment with ASK, violations of which he informed ASK at the time of his hire in 2008. In addition, his driving record reveals 8 traffic violations*fn2 between 2003 and the date of his hire by ASK in 2008. ASK was aware of these violations when it hired Isserovich in 2008. Isserovich received no safety training by ASK before he began driving for the company.

After his hire by ASK, Isserovich was cited for 3 violations of the Federal Motor Carrier Safety Regulations ("FMCSR") on October 23, 2008. He was cited for "numerous" other violations of FMCSR's, including at least one violation for falsifying his log book. He was apparently not disciplined in any way by ASK for these infractions.

On the night of December 19, 2008, Isserovich was driving west on Interstate 80 in Henry County, Illinois. The roadway was covered with snow, and the road conditions were poor. At one point, about an hour and a half or less before the incident giving rise to this lawsuit, Isserovich had stopped at a truck stop due to the poor road conditions. By the time of the accident, however, he testified that he had good visibility and his traction was not adversely affected by the snow on the highway.

As Isserovich proceeded west at about 35-40 miles per hour, he testified that he observed a car, facing him, on the right shoulder of his side of the interstate highway. According to Isserovich, he slowed down as he approached that vehicle, but he was unable to avoid hitting it because the vehicle tried to make a u-turn back onto the roadway directly in front of him.

Isserovich's version of the accident is directly contradicted by the testimony of Eddie Johnson, who stated that his car was completely stuck in the snow in an almost-sideways position on the roadway, not on the shoulder. He stated that he had not moved his car from that position when it was struck broadside by Isserovich. In the car were the Plaintiffs, Deborah Johnson and Eddie Johnson II, and their minor children K.J. and Eddie Johnson III. Each of the Plaintiffs suffered injury.

The Johnson's filed this lawsuit*fn3 on August 11, 2009. Before the suit was filed, ASK Trucking had been liquidated. Other than the fact that ASK Trucking was aware of this accident and the Johnson's assertion that the company was at fault, there were no other pending transactions or claims against the company at that time.

The complaint consists of 12 counts, as follows:

- Counts I, IV, VII and X are respectively the "Negligence" claims of Deborah Johnson, Eddie Johnson II, K.J, and Eddie Johnson III against both of the Defendants, asserting Isserovich's negligent operation of the truck.

- Counts II, V, VIII*fn4 , and XI are respectively the "Negligence" claims of Deborah Johnson, Eddie Johnson II, K.J. and Eddie Johnson III against ASK Trucking, alleging negligent hiring and retention of Isserovich, negligent failure to train and supervise him, and failure to have adequate policies and procedures for training and for safety.

- Count III is Eddie Johnson II's claim for the loss of consortium of his wife against the 2 defendants based on the ...


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