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Surnow v. Buddemeyer

United States District Court, D. Hawaii

July 17, 2019

ELAINE SURNOW, individually and as personal representative of the ESTATE OF JEFFREY SURNOW, deceased; MAX SURNOW; SAM SURNOW; and LISA SURNOW Plaintiffs,
v.
JODY BUDDEMEYER; and COUNTY OF HAWAII, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT, ECF NOS. 100, 102

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On January 26, 2017, Plaintiff Elaine Surnow, individually and as personal representative of the estate of Jeffrey Surnow, deceased, Max Surnow, Sam Surnow, and Lisa Surnow (collectively, “Plaintiffs”) filed a Complaint alleging claims arising from the death of Jeffrey Surnow against Defendants Jody Buddemeyer (“Buddemeyer”) and the County of Hawaii (“County”) (collectively, “Defendants”). ECF No. 1.

         Currently before the court are two Motions for Partial Summary Judgment filed by Plaintiffs, ECF Nos. 100 & 102 (collectively, “Motions”). Based on the following, the court GRANTS IN PART and DENIES IN PART both Motions.

         II. BACKGROUND

         A. Factual Background

         On the morning of March 1, 2015, Jeffrey Surnow was riding his bicycle on Waikoloa Road in the County of Hawaii. At approximately 6:18 a.m., Buddemeyer, a Hawaii County Police Officer, struck the bicycle from behind with his police vehicle, causing fatal injuries to Jeffrey Surnow.

         Based on these events, Buddemeyer was criminally charged. In his criminal trial, Buddemeyer testified that he did not remember what happened before the moment of impact during the accident. Prior to the accident, Buddemeyer was required to work a “double-back shift, ” which involved a shift from 6:45 a.m. to 3:30 p.m., followed by a 7-plus-hour break, then followed by a second shift from 10:45 p.m. until 7:30 a.m. the next morning. Buddemeyer did not rest between the two shifts.

         On October 12, 2018, Buddemeyer was convicted, following a jury trial, of Negligent Homicide in the Third Degree in violation of Hawaii Revised Statute (“HRS”) § 707-704. The conviction is currently on appeal.

         B. Procedural History

         Plaintiffs filed their Complaint on January 26, 2017 alleging the following claims for relief: (1) negligence, gross negligence, and wrongful death against Buddemeyer; (2) negligence and wrongful death against the County; (3) vicarious and/or respondeat superior liability against all Defendants; (4) negligent infliction of emotional distress against all Defendants; (5) derivative claims against all Defendants; and (6) punitive damages against all Defendants.[1]ECF No. 1.

         On February 6, 2019, Plaintiffs filed their “Motion for Partial Summary Judgment as to the Liability of Defendant County of Hawaii Based on the Doctrine of Judicial Estoppel.” ECF No. 100. On April 15, 2019, Buddemeyer filed his Statement of No. Position, and the County filed its Opposition. ECF Nos. 154, 161. On April 22, 2019, Plaintiffs filed their Amended Reply. ECF No. 183.

         On February 6, 2019, Plaintiffs filed their “Motion for Partial Summary Judgment as to the Liability of Defendant County of Hawaii Regarding Defendant Jody Buddemeyer's Negligence.” ECF No. 102. On April 15, 2019, Buddemeyer and the County filed their Oppositions, ECF Nos. 150, 163. On April 22, 2019, Plaintiffs filed their Amended Reply. ECF No. 182.

         A hearing was held on the Motions on May 6, 2019.

         III. STANDARD OF REVIEW

         Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

         The moving party “bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). “When the moving party has carried its burden under Rule 56[(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1184 (9th Cir. 2016).

         IV. DISCUSSION

         Plaintiffs move for partial summary judgment, arguing that the County is judicially estopped[2] at trial “from denying the negligence of its employee, Defendant Jody Buddemeyer.” See ECF No. 100 at PageID #665. In the alternative, Plaintiffs argue that they are entitled to summary judgment because there is no genuine dispute of material fact that: (1) Buddemeyer was negligent; (2) Jeffrey Surnow was not comparatively negligent; and (3) Buddemeyer was acting in the scope of his employment with the County at the time of the accident. See ECF No. 100-1 at PageID #668; ECF No. 102-1 at PageID #757.[3] The court agrees with Plaintiffs in part, finding that: (1) the County is judicially estopped from arguing that Buddemeyer was not negligent; and (2) there is no genuine issue of material fact that Buddemeyer was acting within the scope of his employment.

         A. Judicial Estoppel

         County prosecutors sought and obtained a conviction of Buddemeyer for Negligent Homicide in the Third Degree for the death of Jeffrey Surnow. See HRS § 707-704 (“A person is guilty of the offense of negligent homicide in the third degree if that person causes the death of another person by the operation of a vehicle in a manner which is simple negligence.”). In the instant case, Plaintiffs move for partial summary judgment, arguing that the County is judicially estopped from either disputing Buddemeyer's negligence or asserting that Jeffrey Surnow was comparatively negligent.[4] The court agrees, but only as to Buddemeyer's negligence.[5]

         “[F]ederal law governs the application of judicial estoppel in federal court.” Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 603 (9th Cir. 1996); see also Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 992 (9th Cir. 2012); Joseph v. ...


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