UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN H. GREGORY & PEGGY :

GREGORY,

:

Plaintiffs CIVIL ACTION NO. 4:04-2438

:

v. (JONES, D.J.)

: (MANNION, M.J.)

TIMOTHY J. SEWELL & K.A.M. 

TRUCKING, INC., :

Defendants :

 

FRANK R. DAMIANO & :

GWENDOLYN DAMIANO,

:

Plaintiffs CIVIL ACTION NO. 4:04-2439

:

v.

:

TIMOTHY J. SEWELL & K.A.M. 

TRUCKING, INC., : 

Defendants :

 

PORNCHAI JIEMJITPOLCHAI, :

Plaintiff : CIVIL ACTION NO 4:04-2440

v. :

TIMOTHY J. SEWELL & K.A.M. :

TRUCKING, INC.,

:

Defendants

REPORT AND RECOMMENDATION

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1Because the filings in each case are common to all of the cases, the

court cites them as “Common Doc. No.” rather than cite separately each case.

2

Before the court are the defendants’ motions for summary judgment for

dismissal of the plaintiffs’ punitive damages claims. Because Civil Action

Nos. 04-2438, 04-2439, and 04-2440 arose from the same factual transaction,

the same defendants defend each action, and the parties’ filings in each

action are common to all the actions, the court will address the defendants’

motions in a single report. For the following reasons, the court recommends

that the motions be denied in part and granted in part.

I. Procedural History

The plaintiffs commenced the actions on November 9, 2004 by filing

their complaints. (Common Doc. No. 1.1) The complaint raises seven counts

for which relief is sought, three of which are relevant to the instant motions.

Count four of the complaints seeks punitive damages against defendant

Sewell. Count five of the complaints seeks punitive damages against

defendant K.A.M. Trucking. Count six of the complaint seeks punitive

damages on a theory of vicarious liability against defendant K.A.M. Trucking.

After waiving service in March 2005 (Common Doc. Nos. 5 & 6), the

defendants answered the complaint on August 19, 2005 (Common Doc. No.

13.) 

On November 7, 2005, the defendants filed the instant motions for

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2Defendant Sewell was a trained driver with over thirty years’

professional experience who was familiar with safe driving techniques,

including provisions of Canadian and U.S. law and defendant K.A.M.

Trucking’s driving manual and other safety training, and the dangers of winter

driving, including wet ice, black ice, and jack-knifing on slippery surfaces.

(Common Doc. Nos. 16 ex. E, 19, & 20 exs. E, O, & P.)

3

summary judgment with supporting briefs and exhibits. (Common Doc. No.

16.) The plaintiffs filed briefs in opposition and exhibits on December 2, 2005.

(Common Doc. No. 19.) The defendants filed a reply brief and exhibits on

December 15, 2005. (Common Doc. No. 21.) By leave of court, the plaintiffs

filed a sur-reply on December 29, 2005, and exhibits on January 4, 2006.

(Common Doc. Nos. 22, 23, 24, & 25.) By leave of court, the defendants filed

a sur-sur-reply and exhibits on January 30, 2006. (Common Doc. Nos. 26,

27, & 29.)

II. Factual Background

Based on the submissions by the parties, the court has compiled the

following facts underlying the three actions; where appropriate, the court

notes events that are controverted by the parties. The accident underlying the

actions occurred late on the night of March 2, 2003. Defendant Sewell, a

tractor-trailer driver for defendant K.A.M. Trucking,2 was heading south on

Interstate 81 in Harford Township, Susquehanna County, Pennsylvania. It

had snowed off and on as defendant Sewell drove from Ontario to southern

New York. By the time defendant Sewell entered Pennsylvania, the snow had

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4

stopped. Defendant Sewell believed that Interstate 81 was merely wet and

not icy, though the temperature was below freezing. He further believed that

the roadway had been salted. The plaintiffs argue that the roadway was icy

and that defendant Sewell should have been aware of the hazard. A salt

truck salted the right lane of the roadway at the point of the accident from

which the actions arose immediately prior to the accident. (Common Doc.

Nos. 16 ex. C & 20 exs. A, B, & N.)

Plaintiff Jiemjitpolchai had been in an automobile accident on Interstate

81 in Harford Township, and he and the operator of the other vehicle were

parked facing north on the verge of the southbound lanes of traffic. They sat

in the other driver’s car. Their hazard lights were flashing. Plaintiffs John H.

Gregory and Frank R. Damiano, Pennsylvania State Police troopers,

responded to the accident. The troopers parked their patrol car, with its lights

flashing, and investigated the accident. From north to south, the cars were

parked in the following order: the troopers’ patrol car, plaintiff Jiemjitpolchai’s

car, and the other car. (Common Doc. Nos. 1 & 21 ex. A.)

Defendant Sewell approached the section of Interstate 81 where the

plaintiffs were parked. Approximately one mile north of where the plaintiffs

were parked, defendant Sewell passed a motor vehicle accident that closed

the right lane of traffic and forced defendant Sewell to pass into the left lane.

Defendant Sewell claims the accident was not indicative of hazardous

weather conditions, and he proceeded through the area at fifty miles per hour.

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5

The plaintiffs claim that other traffic at the accident scene was traveling at a

much-reduced speed, from between five and ten miles per hour or twenty and

twenty-five miles per hour, indicating that defendant Sewell’s speed was

excessive under the conditions. (Common Doc. Nos. 1, 16 & ex. C, 19, & 20

exs. A, B, D, J, & K.)

According to the plaintiffs, as defendant Sewell neared the plaintiffs, at

a point where the interstate curved downhill, he was driving in the left, or

passing, lane in excess of a safe speed in light of the weather and road

conditions–between fifty miles per hour according to defendant Sewell and

sixty-five and seventy miles per hour according to witnesses and the plaintiffs’

expert. The plaintiffs argue that the roadway was slippery because of ice and

defendant Sewell improperly applied both of his brakes in contravention of

sound operating principles because of the danger of jack-knifing. The

plaintiffs’ expert believes that defendant Sewell was driving recklessly

indifferently at up to three times the safe speed limit. According to the

defendants, defendant Sewell was driving approximately fifty miles per hour

in the right lane around the curve when he noticed the patrol car’s flashing

lights. They claim other vehicles, including tractor trailers, passed defendant

Sewell. They further claim that, when defendant Sewell saw the patrol car’s

lights, he moved into the passing lane and attempted to slow down.

(Common Doc. Nos. 1, 16 & ex. C, 19, 20 exs. A, B, E, J, & N, & 24.)

Apparently hitting black ice, defendant Sewell’s tractortrailer jack-knifed

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6

and careened towards the verge, where the trailer collided with the patrol car,

in which sat the two troopers. The tractor trailer began a chain reaction in

which the tractor trailer and the patrol car continued forward to hit plaintiff

Jiemjitpolchai’s car and then the other car, in which sat plaintiff Jiemjitpolchai

and the other driver. The three plaintiffs were severely injured. The plaintiffs

claim that, after the accident, defendant Sewell pulled to the side of the

highway south of the plaintiffs’ cars. According to them, a visual inspection

of his tractor trailer led defendant Sewell to suspect he had struck the police

car, but he remained in his cab instead of offering assistance and denied

hitting another vehicle to a Pennsylvania Department of Transportation salt

truck driver who approached him. According to defendant Sewell, the driver

told him to wait in his cab. (Common Doc. Nos. 1, 16, 19, 20 exs. B, E, G, H,

& I, & 29 ex. B.) 

The plaintiffs contend that defendant Sewell was driving negligently,

carelessly, and grossly recklessly. They argue that defendant Sewell caused

the accident by ignoring several signs of dangerous road conditions, including

a wet and icy roadway, an accident north of the accident defendant Sewell

allegedly caused, salt trucks, weather-disabled and slow-driving vehicles,

weather reports, and a disregard for safe driving principles. (Common Doc.

Nos. 1, 19, & 24.) According to the state trooper who spoke to defendant

Sewell at the scene of the accident, defendant Sewell was cooperative,

apparently sober, and “a gentleman.” (Common Doc. No. 16 ex. D.)

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7

Defendant Sewell was charged by the State Police with and pled guilty to

violating 75 PA. CONS. STAT. ANN. § 3361 (driving at an unsafe speed) and 75

PA. CONS. STAT. ANN. § 3714 (driving carelessly), both summary offenses.

(Common Doc. Nos. 1, 16, & 20 exs. M & R.)

In the instant motions, the defendants argue that, under the standard

for summary judgment, the facts show that the plaintiffs are not entitled to

punitive damages as a matter of Pennsylvania law because the defendants’

conduct with respect to the accident was not outrageous by reason of evil

motive or reckless indifference and he lacked a subjective appreciation of the

risk of harm. They contend that the incident was simply an accident that

cannot support the award of punitive damages. They further argue that

defendant K.A.M. Trucking cannot be held vicariously liable for punitive

damages because defendant Sewell’s predicative behavior was not

outrageous and does not suffice under Pennsylvania’s standard for the

vicarious imposition of punitive damages. (Common Doc. Nos. 16, 17, 21, &

29.) 

In reply, the plaintiffs reiterate the arguments in their complaints that

defendant Sewell’s behavior was outrageous and supports the award of

punitive damages because defendant Sewell was aware of hazardous road

conditions and disregarded them. They argue that defendant K.A.M. Trucking

is liable for punitive damages because its conduct in allowing defendant

Sewell to drive for them was outrageous. They also argue that defendant

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8

K.A.M. Trucking is vicariously liable as defendant Sewell’s employer for his

allegedly outrageous conduct on the night of the accident. (Common Doc.

Nos. 1, 19, & 24.) 

III. Discussion

A. Standard of Review

Summary judgment is appropriate when the pleadings and any

supporting materials, such as affidavits and other documentation, show that

there are no material issues of fact to be resolved and the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see Turner v.

Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). Federal Rule of

Civil Procedure 56(c) “mandates the entry of summary judgment, after

adequate time for discovery and upon motion, 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.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Furthermore, “Rule

56(e) . . . requires the nonmoving party to go beyond the pleadings and by

[its] own affidavits, or by depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there is a genuine

issue for trial.” Id. at 324; Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888

(1990); Pastore v. Bell Tel. Co. of Pennsylvania, 24 F.3d 508, 511 (3d Cir.

1994) (quoting Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992)). The

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9

party moving for summary judgment bears the burden of showing the absence

of a genuine issue of any material fact, but the nonmoving party must adduce

more than a mere scintilla of evidence in its favor and cannot simply reassert

factually unsupported allegations contained in the pleadings. Celotex Corp.,

477 U.S. at 323, 325; Anderson v. Liberty Lobby, Inc., 477 U.S. 248-52

(1986); Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992).

To determine whether the nonmoving party has met its burden, the court

must focus on both the genuineness and the materiality of the factual issues

raised by the nonmovant. “[T]he mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine

issue of material fact.” Anderson, 477 U.S. at 242, 247-48 (emphasis in

original). A dispute is genuine if the evidence would allow a reasonable jury

to return a verdict for the nonmoving party. Anderson, 477 U.S. at 250. A

disputed fact is material when it could affect the outcome of the suit under the

governing substantive law. Anderson, 477 U.S. at 248. If the court

determines that “the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)

(quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289

(1968)). All inferences, however, “should be drawn in the light most favorable

to the non-moving party, and where the non-moving party's evidence

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contradicts the movant’s, then the non-movant’s must be taken as true.”

Pastore, 24 F.3d at 512 (quoting Big Apple BMW, Inc. v. BMW of N. America,

Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993)).

B. Standard for Punitive Damages

1. Direct Liability for Punitive Damages

A federal court sitting in diversity must apply the substantive law of the

state in which it sits. Gasperini v. Center for Humanities, Inc., 518 U.S. 415,

416 (1987) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). A state law

is substantive if its application would determine the outcome of the claim. Id.

(citing Guar. Trust Co. v. York, 326 U.S. 99 (1945)). But the outcomedeterminative test is not a mechanical application and is not used where state

substantive law would encourage forum shopping or lead to the “inequitable

administration of the laws.” Id. (quoting Hanna v. Plumer, 380 U.S. 460, 468

(1965)). Here, it is clear that Pennsylvania’s law governing punitive damages

is substantive because it will determine the outcome of the plaintiffs’ punitive

damages claim. It is also clear that the application of Pennsylvania’s law

neither encourages forum shopping nor is inequitable because the factual

predicate to the suit occurred in this district.

In Pennsylvania, it is settled that “punitive damages are an ‘extreme

remedy’ available in only the most exceptional matters.” Phillips v. Cricket

Lighters, 883 A.2d 439, 445 (Pa. 2005) (quoting Martin v. Johns-Manville

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11

Corp., 494 A.2d 1088, 1098 n.14 (Pa. 1985), overruled on other grounds by

Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800 (Pa. 1989)); Hutchinson

ex rel. Hutchinson v. Luddy, 870 A.2d 766, 760 (Pa. 2005). The award of

punitive damages is restricted because their purpose is limited to punishing

and deterring outrageous conduct. Hutchinson, 870 A.2d at 770 (citing

Kirkbride, 555 A.2d at 803; RESTATEMENT (SECOND) OF TORTS § 908(1)

(1979)). Punitive damages are an “additional punishment” for “particularly

egregious” conduct. Phillips, 883 A.2d at 446. 

Adopting RESTATEMENT (SECOND) OF TORTS § 908(2), the

Commonwealth’s Supreme Court has held that punitive damages may only

be awarded for “conduct that is outrageous, because of the defendant's evil

motive or his reckless indifference to the rights of others.” Hutchinson, 870

A.2d at 770 (quoting Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747

(1984)). In assessing whether this high threshold is satisfied, the finder of

fact must examine the defendant’s state of mind; the defendant must have

acted “willful[ly], wanton[ly,] or reckless[ly]” to warrant punitive damages. Id.;

see Feld, 485 A.2d at 748 (“The state of mind of the actor is vital. The act, or

the failure to act, must be intentional, reckless or malicious.”). Defining

“reckless indifference,” the Pennsylvania Supreme Court held that “an

appreciation of the risk [of harm] is a necessary element of the mental state

required for the imposition of [punitive] damages.” Id. at 771 (quoting Martin,

494 A.2d at 1097 n.12) (bracketed additions in original). The defendant must

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3When the Third Circuit handed down Burke, Pennsylvania’s

jurisprudence on punitive damages was somewhat unsettled. Martin, the

leading Supreme Court case at that time, was a plurality opinion, although the

Superior Court followed its reasoning. The Third Circuit correctly opined that

the Supreme Court would adopt the reasoning in Martin. Burke, 904 F.2d at

182-83.

12

consciously disregard or be indifferent to “the high degree of risk,” of which

he is or ought to be aware, that his behavior will cause physical harm to

another. Id. (citing Martin, 494 A.2d at 1097; RESTATEMENT (SECOND) OF

TORTS § 500); see Phillips, 883 A.2d at 445 (“A defendant acts recklessly

when ‘his conduct creates an unreasonable risk of physical harm to another

[and] such risk is substantially greater than that which is necessary to make

his conduct negligent.’”) (quoting Hutchinson, 870 A.2d at 771 (quoting

RESTATEMENT(SECOND) OF TORTS § 500)) (bracketed addition in original); see

also Burke v. Maassen, 904 F.2d 178, 182 (3d Cir. 1990)3(“Martin requires

the more culpable mental state of conscious indifference to another’s safety

as the test for ‘reckless indifference’ under Restatement § 908. There must

be some evidence that the person actually realized the risk and acted in

conscious disregard or indifference to it.”) (emphasis in original).

In consequence of the state Supreme Court’s jurisprudence, claims

sounding in negligence or gross negligence do not support awards of punitive

damages because the defendant lacks a culpable state of mind. Phillips, 883

A.2d at 445-46. “Punitive damages may not be awarded for misconduct

which constitutes ordinary negligence such as inadvertence, mistake and

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4The defendants in their motions (Common Doc. No. 16) argue that the

Pennsylvania Supreme Court in Funk v. Kerbaugh, 70 A. 953 (Pa. 1908),

adopted RESTATEMENT (SECOND) OF TORTS § 909, but then state that the state

“courts have refused to adopt” § 909. This court need not attempt to reconcile

the defendants’ non sequitur because its own review of Pennsylvania

decisions makes clear that the Commonwealth has not adopted § 909.

13

errors of judgment.” Martin, 494 A.2d at 1097 (citing RESTATEMENT (SECOND)

OF TORTS § 908 cmt. b). Rather, in prosecuting a negligence claim, a plaintiff

bears an “additional burden” of proving the defendant’s culpability by reason

of intent to harm or reckless indifference. Hutchinson, 870 A.2d at 772; see

Phillips, 883 A.2d at 446 (“What is clear from [the Pennsylvania Supreme

Court’s jurisprudence] is that there is a distinction between negligence and

punitive damages, with a plaintiff being required to meet a far lesser burden

to establish a negligence claim than that which is imposed in connection with

a punitive damages claim.”).

2. Vicarious Liability for Punitive Damages

Rejecting RESTATEMENT (SECOND) OF TORTS § 909 (1977), which limits

vicarious liability for punitive damages to situations where the employer knew

of or authorized the employee’s tort, Pennsylvania has instead followed the

less restrictive traditional common law of vicarious liability, which provides that

employers may be held vicariously liable for punitive damages because of the

acts of its employee within the scope of the employee’s authority.4 Shiner v.

Moriarty, 706 A.2d 1228, 1240 (Pa.Super.), appeal denied, 729 A.2d 1130

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5

In Carpenter v. Dizio, 506 F.Supp. 1117 (D.C. Pa. 1981), aff’d, 673

F.2d 1298 (3d Cir. 1982), the district court applied the rule of vicarious liability

in RESTATEMENT (SECOND) OF TORTS § 909 and found that deviation was

allowed only in certain exceptional circumstances. As discussed above, an

analysis of the Commonwealth’s precedents, as well as the Third Circuit’s

review of state law, makes clear that the district court in Carpenter misread

Pennsylvania’s law.

14

(Pa. 1998); Dean Witter Reynolds, Inc. v. Genteel, 499 A.2d 637, 643

(Pa.Super. 1985), appeal denied, 523 A.2d 346 (Pa. 1987) (citing Funk, 70

A. 953,954; Philadelphia Traction Co. v. Orbann, 12 A. 816 (Pa. 1888); Lake

Shore & Michigan S. Ry. Co. v. Rosenzweig, 6 A. 545 (Pa. 1886); Delahanty

v. First Pennsylvania Bank, N.A., 464 A.2d 1243 (1983); Hannigan v. S.

Klein's Dep’t Store, 371 A.2d 872, aff’g per curiam 1 Pa. D & C 3d 339 (1976);

Gerlach v. Pittsburgh Rys. Co., 94 Pa.Super. 121 (1928)); see Chuy v.

Philadelphia Eagles Football Club, 559 F.2d 1265, 1278 (3d Cir. 1979);

Skeels v. Universal C. I. T. Credit Corp., 335 F.2d 846, 851-52 (3d Cir. 1964);

see also Shiner, 706 A.2d at 1240 (citing Philadelphia Traction Co., 12 A. at

818) (“[T]here is no requirement that an agent commit a tortious act at the

direction of his principal, nor must the principal ratify the act, in order for

punitive damages to be imposed on him.”).5 But the courts, recognizing the

breadth of the common law, have stated that it must only be applied with great

caution in cases where the employer did not know of or authorize the

employee’s tortious conduct. Funk, 70 A. at 954 (“Too great caution cannot

be exercised in permitting the recovery of punitive damages for the willful or

reckless act of a servant not authorized or approved by the master. The rule

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15

that permits a recovery in such cases is a harsh one, and the plainest

principles of justice call for caution in its application.”) (citing Philadelphia

Traction Co., 12 A. 816); see Dean Witter Reynolds, Inc., 499 A.2d at 643;

see also Chuy, 595 F.2d at 1279; Skeels, 335 F.2d at 852.

The meaning of “great caution” has apparently not been addressed by

the Commonwealth’s courts. However, the Third Circuit has interpreted “great

caution” to mean “that the conduct of the agent who inflicts the injury

complained of must be rather clearly outrageous to justify the vicarious

imposition of exemplary damages upon the principal.” Skeels, 335 F.2d at

852 (citing Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963)). The

defendants argue that Skeels establishes a standard of “clearly outrageous”

that is higher than the simple outrageous standard for direct punitive

damages. (Common Doc. No. 21.) The court disagrees and finds that the

standard for both direct and vicarious liability for punitive damages is ordinary

outrageousness.

In reaching its conclusion in Skeels, the Third Circuit relied on

Chambers, a brief decision that did not address vicarious liability in which the

Pennsylvania Supreme Court discussed in one paragraph the standard for

punitive damages:

Appellant's final contention is that there was no evidence

sustaining the award of punitive damages. “‘Punitive damages’

are damages, other than compensation or nominal damages,

awarded against a person to punish him for his outrageous

conduct.” Restatement of Torts, Sec. 908(1). Comment b. to the

above section states that “punitive damages are awarded only for

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16

outrageous conduct, that is, for acts done with a bad motive or

with a reckless indifference to the interests of others.” In Hughes

v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944), we said that

exemplary damages must be based on “‘malicious’, ‘wanton’,

‘reckless’, ‘willful’, or ‘oppressive’ conduct on the part of

defendant”. In determining whether punitive damages should be

awarded, the act itself together with all the circumstances

including the motive of the wrongdoer and the relations between

the parties should be considered. Restatement, Torts, Sec. 908,

comment e; Hughes v. Babcock, supra.

Chambers, 192 A.2d at 358 (grammar as in original). The Supreme Court’s

analysis in Chambers merely states Pennsylvania law. There is nothing in its

opinion from which the Third Circuit could infer a separate “clearly

outrageous” standard. Rather, it seems apparent that the Third Circuit was

reiterating the state’s already high punitive damage standard. The qualifying

language, which is “rather clearly,” not “clearly” as quoted by the defendants,

appears logically to be a descriptive phrase meant to emphasize that only

conduct by an employee that is outrageous can justify the imposition of

punitive damages. Thus, the court concludes that the Third Circuit has not

announced a second, higher standard for vicarious liability than that for direct

liability. Indeed, because a federal court sitting in diversity is bound by the

state’s substantive law, it would be impossible for the Court of Appeals to

deduce a standard that the state courts have never announced. Under

Pennsylvania law, an employer is vicariously liable for punitive damages

where an employee is directly liable for punitive damages.

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6Neither party seriously contends that the evil motive prong of the

punitive damages standard is pertinent here.

17

3. Application

In this case, the court finds that there is a genuine issue of material fact

regarding defendant Sewell’s culpability, and consequently defendant K.A.M.

Trucking’s vicarious liability, for punitive damages, and that the defendants’

motion for summary judgment in respect of the plaintiffs’ claims for punitive

damages in counts four and six should accordingly be denied. Having

reviewed the entire record submitted by the parties and drawing any

inferences and resolving any controverted evidence in favor of the plaintiffs,

the nonmovants here, the court finds that a reasonable fact finder could

determine that defendant Sewell’s conduct on March 2, 2003, was recklessly

indifferent.6 

The parties do not dispute that defendant Sewell had significant

experience and training in driving tractor trailers. He was familiar with driving

in inclement weather, the special dangers posed by such weather to tractor

trailers, and the appropriate remedies to ensure safety. They do not dispute

that the weather immediately prior to the accident in this case was inclement.

However, the parties dispute whether the weather was icy or merely wet such

that defendant Sewell must have recognized the risk of black ice. They

dispute whether defendant Sewell was speeding excessively in light of the

road conditions. They dispute whether there were sufficient indicia of

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dangerous road conditions that ought to have alerted defendant Sewell to the

risk of driving as he was.

It is not the court’s task here to weigh the conflicting evidence, but it is

the court’s task to evaluate whether the conflict presented by that evidence

is genuine and material. The court finds it is. It would not be unreasonable

for a jury to find that defendant Sewell, with his experience and training,

consciously appreciated the risk of harm from driving fifty or sixty to sixty-five

miles per hour on a freezing night that had seen snow fall and perhaps melt

and freeze and consciously disregarded or was indifferent to that risk. The

court recognizes that the plaintiffs’ burden in proving punitive damages is

high–higher than their burden in proving ordinary negligence. But if a jury

were to credit the plaintiffs’ arguments and evidence over the defendants’

arguments and evidence, it could support a finding of fact that defendant

Sewell’s conduct was outrageous, satisfying the higher burden necessary to

allow the plaintiffs to receive punitive damages. If the jury found that

defendant Sewell’s conduct was outrageous, then defendant K.A.M. Trucking

would likewise be vicariously liable for punitive damages. Therefore, the court

recommends that the defendants’ motion for summary judgment be denied

with respect to the plaintiffs’ claims in count four, seeking punitive damages

from defendant Sewell, and count six, seeking punitive damages from

defendant K.A.M. Trucking on a theory of vicarious liability.

However, the court finds that defendant K.A.M. Trucking cannot be held

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directly liable for punitive damages. Pennsylvania law requires that a

defendant have a conscious appreciation of the risk of harm he creates by

outrageous behavior. A defendant cannot consciously appreciate the risk of

harm in a situation at which he is not present and of whose risky conditions

he is not immediately aware. Had defendant K.A.M. Trucking had reason to

believe that defendant Sewell was a reckless or dangerous driver whose

conduct created a risk of harm to others, it might be found liable for punitive

damages. However, that is not the case here. The court simply cannot find

outrageous, defendant K.A.M. Trucking’s conduct in employing defendant

Sewell, a driver with many years of experience, including for defendant K.A.M.

Trucking before the accident at issue in the instant suits. There was no risk

of harm to the plaintiffs that defendant K.A.M. Trucking could have

conceivably consciously appreciated when it hired defendant Sewell or had

him drive on Interstate 81 on March 2, 2003. Defendant K.A.M. Trucking’s

culpability does not meet the high standard necessary to allow the award of

punitive damages under Pennsylvania law. On the record before it, the court

cannot find a genuine issue of material fact as to defendant K.A.M. Trucking’s

vicarious liability for punitive damages. Accordingly, the court recommends

that the defendants’ motion for summary judgment be granted with respect to

the plaintiffs’ claims in count five, seeking direct punitive damages from

defendant K.A.M. Trucking.

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IV. Conclusion

On the basis of the foregoing, IT IS RECOMMENDED THAT:

(1). defendant Sewell’s and defendant K.A.M. Trucking’s motions for

summary judgment with respect to the plaintiffs’ claims for

punitive damages (Civ. No. 04-2438 Doc. No. 16, Civ. No. 04-

2439 Doc. No. 16, & Civ. No. 04-2440 Doc. No. 16) be:

(A). DENIED with respect to counts four and six; and

(B). GRANTED with respect to count five; and plaintiffs

Gregory’s, Damiano’s, and Jiemjitpolchai’s fifth count in the

complaints (Civ. No. 04-2438 Doc. No. 1, Civ. No. 04-2439

Doc. No. 1, & Civ. No. 04-2440 Doc. No. 1) be DISMISSED.

(2). The case be set down for trial, on the remaining counts, at the

convenience of the court.

S/ Malachy E. Mannion 

MALACHY E. MANNION

United States Magistrate Judge

Date: August 23, 2006

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