Opinion
Case No. 3:17-cv-00046-JWS
2022-01-27
Dayle JAMES, as Personal Representative of the Estate of Charlie Thomas James, Jr., Plaintiff, v. GENERAL DYNAMICS LAND SYSTEMS INC. ; and General Dynamics Land Systems Customer Service & Support Co., Defendants.
Michael W. Flanigan, Flanigan & Bataille, Anchorage, AK, for Plaintiff. Donald C. Thomas, Delaney Wiles, Anchorage, AK, for Defendants General Dynamics Land Systems Customer Service & Support Co., General Dynamics Land Systems Inc.
Michael W. Flanigan, Flanigan & Bataille, Anchorage, AK, for Plaintiff.
Donald C. Thomas, Delaney Wiles, Anchorage, AK, for Defendants General Dynamics Land Systems Customer Service & Support Co., General Dynamics Land Systems Inc.
ORDER ON MOTION FOR SUMMARY JUDGMENT
[RE: DOCKET 140]
JOHN W. SEDWICK, Senior United States District Judge
I. MOTION PRESENTED
Defendants General Dynamics Land Systems Inc. ("GDLS") and General Dynamics Land Systems Customer Service & Support Co. ("GDLS-CSS"; collectively, "Defendants") filed a motion for summary judgment at docket 140. Plaintiff Dayle James, as the personal representative of the Estate of Charlie Thomas James, Jr. ("Plaintiff"), filed her opposition at docket 153. Defendants’ reply is at docket 157. Oral argument would not be of assistance to the court.
II. BACKGROUND
Plaintiff filed this action as the personal representative of the estate of Charlie Thomas James, Jr. ("James"). James died on March 13, 2015, after being struck by a U.S. Army Stryker military vehicle. At the time of the accident, James was acting within the course and scope of his employment as a longshoreman with Sea Star Stevedore Company ("Sea Star"). Sea Star longshoremen had offloaded a fleet of Strykers from a TOTE Maritime Alaska, Inc., vessel at the Port of Anchorage and were loading them onto railroad cars for transport to the military base near Fairbanks, Alaska. James had been tasked with guiding the vehicles to the spot on the railway cars where they would be strapped down. He was positioned in front of one of the Strykers in order to guide it to its designated point. He gave a signal for the driver of the Stryker, another longshoreman with Sea Star, to stop, but, allegedly due to a brake failure, the vehicle did not stop and struck James. He died as a result of the accident.
Plaintiff filed this lawsuit in 2017. The only remaining claim is against GDLS and GDLS-CSS for common law negligence and strict liability related to the brake failure and for spoliation of evidence. GDLS manufactured the Stryker that was involved with the accident ("subject Stryker"). It was manufactured as part of a fleet of Strykers for the U.S. Department of Defense, which took possession of the fleet in October 2003. Initially after the U.S. Department of Defense purchased the Strykers, maintenance of the Strykers in the fleet was contractually shared between GDLS and the Army. However, starting in 2013, the maintenance and repair obligations shifted to the Army in full. At that time, GDLS was only contractually obligated to provide technical assistance for Stryker maintenance on an on-call basis, when specifically requested by the U.S. Army.
GDLS-CSS is a separate company wholly owned by GDLS. It performs customer service work for vehicles manufactured by GDLS after they have been purchased by the government. It was not involved in the manufacture or design of the subject Stryker. It did not contract directly with the government.
Plaintiff's Third Amended Complaint alleges that Defendants had a duty to inspect and/or assist with and supervise any inspection and maintenance of the fleet of Strykers prior to their shipment to Alaska and during their offloading and loading at the Port of Anchorage. Alternatively, the complaint argues that Defendants are liable for the brake failure on the basis of Res Ipsa Loquitur or because of a manufacturing defect. The Third Amended Complaint also alleges that Defendants have engaged in spoliation of vehicle inspection and maintenance reports and of other evidence of negligence.
III. STANDARD OF REVIEW
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The materiality requirement ensures that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Ultimately, "summary judgment will not lie if the ... evidence is such that a reasonable jury could return a verdict for the nonmoving party." However, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Id.
Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party has the burden of showing that there is no genuine dispute as to any material fact. Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact. Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant. However, the non-moving party may not rest upon mere allegations or denials but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties’ differing versions of the truth at trial.
Id. at 323.
Id. at 323–25.
Anderson, 477 U.S. at 248–49, 106 S.Ct. 2505.
Id. at 255.
Id. at 248–49.
IV. DISCUSSION
Defendants seek summary judgment as to Plaintiff's claim for negligent inspection and maintenance. They assert that they owed no duty to inspect the Stryker fleet or assist or supervise any inspection of the fleet to ensure the vehicles safely could be transported to Fairbanks. Indeed, to establish a basic claim of negligence, Plaintiff must show the existence and nature of a duty of care owed by GDLS and/or GDLS-CSS to James. The duty of care can arise from statute, regulation, contract, undertaking, preexisting relationships, or common law. Plaintiff does not rely on any statute or regulation giving rise to a duty of care, nor does she rely on any specific contract provision. Rather, she asserts that Defendants’ duty arose as part of the "general scope of [their] undertaking for the Army," and that when this general undertaking is combined with the fact that the stevedore crew moving the Stryker fleet were not knowledgeable about the design and operation of the vehicles’ braking systems, the result is that Defendants had "a duty to assure that their technical personnel, present at the site, inspected the Stryker vehicles systems ... to assure safe operation ... or assisted [the] crew in conducting such an inspection."
See United States ex rel. N. Star Terminal & Stevedore Co. v. Nugget Constr., Inc. , 445 F. Supp. 2d 1063, 1075 (Alaska 2006) (noting that under Alaska law, the initial step in deciding whether an action for negligence can be maintained is to consider whether a duty exists); see Hawks v. State , 908 P.2d 1013, 1016 (Alaska 1995) ("The first step in determining whether a negligence action can be maintained is to determine whether the defendant owed the plaintiff a duty of care under the circumstances.").
McGrew v. State Dep't of Health & Soc. Servs., 106 P.3d 319, 322 (Alaska 2005) ; Karen L. v. Dep't of Health & Soc. Servs. , 953 P.2d 871, 875 n.9 (Alaska 1998) (noting that sources of actionable duties include statutes, regulations, certain contracts, express undertakings, or fiduciary relationships).
Docket 106 at ¶ 51.
This duty to inspect or assist with inspection is not supported by evidence in the record. In 2013, all maintenance and repair obligations rested solely with the Army. It is undisputed that GDLS's involvement in any maintenance was limited to specific requests by the Army for technical assistance. In January 2015, when the Army organized and executed the transfer of the fleet of Strykers from California to Alaska, the government contracting officer gave GDLS a directive whereby GDLS agreed to have personnel available to provide, solely on an on-call basis, technical support in the event there was a mechanical problem with any of the Strykers at the ports through which the fleet would travel, including Anchorage. They were not requested to inspect every vehicle during the unloading and loading process; rather, they were directed to be on standby in case a need for technical assistance with one of the Strykers arose. There is nothing in the record from which to infer that Defendants were asked to provide inspection services or other assistance with regard to the subject Stryker during the relocation before the accident occurred.
Docket 140-1 at ¶ 9.
Id. at ¶¶ 9–10.
Id. at ¶ 13.
Id.
This lack of evidence is corroborated by Plaintiff's failure to respond to certain discovery requests. In May 2020, Defendants served requests for admissions on Plaintiff asking her to admit that no entity involved in the transport of the Stryker fleet requested that Defendants "inspect each and every Stryker on the ... vessel ... before the Stryker fleet was offloaded from the vessel at the Port of Anchorage on or about February/March 2015." She also was asked to admit that she was "aware of no facts which would indicate GDLS was asked to inspect or service the subject Stryker after its arrival at the Port of Anchorage in 2015 but prior to the accident occurring." Plaintiff never provided a response. By operation of Rule 36, this failure to respond constitutes an admission. Additionally, Defendants served Plaintiff with a Rule 33 interrogatory, wherein they asked Plaintiff to identify a person who could support her contention that GDLS agreed to inspect the fleet before the vehicles were offloaded from the shipping vessel at the Port of Anchorage. Plaintiff never responded.
Docket 140-13 at 2 (RFA Nos. 1–3).
Docket 140-13 at 3 (RFA No. 4).
Docket 140-15 at 2.
Plaintiff's assertion that Defendants had a duty to provide maintenance and inspection of the brakes of the subject Stryker prior to its transport to Alaska also is without factual support. The evidence shows that based upon the operations protocols established by GDLS for the Army with respect to its use of Stryker vehicles, the Army was directed to conduct a preventative maintenance check and service before any dispatch or shipment of the Strykers. A pre-transport inspection was conducted by the Army on January 23, 2015, and the brake system of the subject Stryker was deemed fully functional. That is to say, the Army performed the inspection of the subject Stryker prior to the transport. Nothing in the evidence shows that GDLS undertook an inspection or service of the vehicle's braking system. Indeed, the record fails to disclose any requests to GDLS from the Army for assistance related to maintenance and inspection of the subject Stryker's brake system during the 22 months prior to the subject accident.
Docket 140-1 at ¶ 16.
Id. ; Docket 140-12.
Docket 140-1 at ¶ 11.
Plaintiff does not provide an opposing argument on this issue. That is, she does not address Defendants’ contention that they had no duty to inspect the Stryker fleet or the subject Stryker and that they did not undertake any such efforts. This failure to respond to Defendants’ arguments constitutes a waiver of the issue, and further supports the court's conclusion that Defendants did not have the requisite duty to inspect or assist in inspection of the subject Stryker prior to the accident.
See Jenkins v. Cnty. of Riverside , 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (finding that plaintiff abandoned claims by not raising them in opposition to motion for summary judgment).
Rather than provide a response to these evidentiary issues on the duty to inspect, Plaintiff puts forth a new theory of liability; namely, negligent training. During the deposition of Kevin Town, the stevedore who was driving the subject Stryker at the time of the accident, Plaintiff learned that two years before the accident GDLS-CSS had trained the stevedores on how to operate the Strykers. Given this information, she now asserts liability against Defendants based on negligent training. However, based upon Rule 8(a) notice requirements, Plaintiff cannot maintain a new theory of liability to avoid summary judgment that was not adequately presented in the operative complaint. Plaintiff cites three paragraphs of her complaint that she believes provides adequate notice of a negligent training theory of liability. These paragraphs mention that the stevedore crew were unaware of the design details of the braking system and did not know how to inspect the brake system or how to read the fault codes on the vehicle's warning system, and that Defendants should have known as much. However, upon review, none of these paragraphs mentions training, nor do they suggest that Plaintiff was attempting to raise a claim premised upon negligent training. These paragraphs are provided in support of Plaintiff's failure to inspect claim, wherein Plaintiff asserts that Defendants necessarily had such a duty because no one else was capable of the task. There is no supporting factual content about what training was provided and how that training was negligent. Absent this context, Plaintiff failed to provide Defendants adequate notice of this claim.
Docket 153 at 10–11.
Pickern v. Pier 1 Imports (U.S.), Inc. , 457 F.3d 963, 968–69 (9th Cir. 2006) (finding that the plaintiff failed to provide adequate notice of a different theory of liability under the ADA); Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) ("Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings." (quoting Fleming v. Lind-Waldock & Co. , 922 F.2d 20, 24 (1st Cir. 1990) )).
Docket 106 at ¶¶ 27, 45, 50.
Plaintiff cannot now amend her complaint. Under Rule 16, which applies at this late stage, Plaintiff must show good cause in order to do so. This good cause standard primarily considers the diligence of the party seeking the amendment. Here, the deposition that Plaintiff relies on to support her newly-identified theory of liability took place almost a year ago, in February 2021. Plaintiff could have raised the issue but did not do so.
Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604, 607–08 (9th Cir. 1992) ("Once the district court had filed a pretrial scheduling order ... which established a timetable for amending pleadings that rule's standards controlled.").
Id. at 609.
Docket 153-1.
Plaintiff's alternate claim, that Defendants are liable for the alleged brake failure on the basis of the doctrine of Res Ipsa Loquitur , also is without merit. To establish the application of Res Ipsa Loquitur under Alaska law, a plaintiff must in part show that the instrumentality at issue was within the exclusive control of the defendant. It is undisputed that the subject Stryker was not within the exclusive control of Defendants. At the time of the accident the vehicle belonged to the Department of Defense, was being maintained by the Army, and was being transported by Sea Star. Again, Plaintiff's opposition fails to address this issue, further justifying summary dismissal here.
State Farm Fire & Cas. Co. v. Mun. of Anchorage , 788 P.2d 726, 730 (Alaska 1990).
Plaintiff broadly alleges in her Third Amended Complaint that Defendants are "strictly liable" for damages caused by a manufacturing defect related to the subject Stryker's braking system. That is to say, Plaintiff asserts that the subject Stryker had a manufacturing defect in its braking system at the time it left the manufacturer's possession and control. To make a showing of defect generally requires a plaintiff to put forth expert testimony, as manufacturing and mechanical issues typically are not within the understanding of a lay person. Here, Plaintiff has failed to provide adequate evidence to support her claim for strict liability. Up until her response, Plaintiff had failed to identify the nature of the alleged defect within the braking system. She did not respond to GDLS's May 2020 interrogatories asking her to specify the defect and identify those people who have knowledge of such defect. Indeed, specificity is required here, as the braking system of the subject Stryker is composed of many individual parts, some of which are expected to require replacement over time due to anticipated wear and tear. Also, parts of the system can be damaged during use. She did not offer any expert reports to support her claim that a defect versus wear and tear or misuse caused the accident.
It is undisputed that GDLS-CSS did not manufacture the subject Stryker and therefore this strict liability claim cannot be asserted against it.
Caterpillar Tractor Co. v. Beck , 593 P.2d 871, 886 n.52 (Alaska 1979).
Cf. John's Heating Serv. v. Lamb , 46 P.3d 1024, 1038 (Alaska 2002) (noting that only witnesses with specialized knowledge of furnace repair trade were competent to testify directly on the issue of standard of care); Lynden Transp., Inc. v. Haragan , 623 P.2d 789, 793 (Alaska 1981) (noting that expert testimony is only required when standards of care related to matters of a professional and specialized nature are at issue); Piltch v. Ford Motor Co. , 778 F.3d 628, 632 (7th Cir. 2015) (noting that expert testimony is required in design defect cases and generally is required in manufacturing defect cases).
Docket 140-1 at ¶ 19.
Plaintiff now asserts that, given the deposition testimony of those familiar with the braking system and the events of that day, the accident resulted from a leaking brake actuator and the repeated braking by the driver. Plaintiff acknowledges, however, that the brake actuator is not manufactured by GDLS. Instead, she maintains a claim that GDLS nonetheless is liable because a defect in the subject Stryker's annunciator panel caused a failure to properly warn the driver of the braking problem. Again, as was the case with the general negligence claim, Plaintiff seeks to advance a new theory of liability here. She has never raised the issue of a defective annunciator panel despite many opportunities to do so. Moreover, this newly advanced theory of defect still is not adequately supported. Plaintiff has failed to disclose any expert to support her theory that the accident arose because of a manufacturing or design defect in the annunciator panel versus a maintenance or operator issue.
Docket 153 at 7.
Plaintiff states alternatively that the driver was not adequately trained to recognize or handle a warning signal. However, as noted above, there is no valid claim for negligent training properly raised in this lawsuit.
Plaintiff's claim for spoliation also must be summarily dismissed. In order to prevail on a claim for spoliation against an alleged tortfeasor, the underlying negligence action must be viable. Where, such as here, a plaintiff cannot prevail on a negligence claim because there was no duty owed, any associated spoliation claim also must fail. Moreover, Plaintiff fails to provide any evidence in support of such a claim, nor does she present any opposing argument in her response briefing.
Estate of Day v. Willis , 897 P.2d 78, 81 (Alaska 1995).
Id.
V. CONCLUSION
Based on the preceding discussion, Defendants’ motion at docket 140 is GRANTED. Defendants are entitled to judgment on all remaining claims.
IT IS SO ORDERED this 27th day of January, 2022, at Anchorage, Alaska.