Levesque v. Blazys et al

Filing 45

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 35 MOTION for Summary Judgment as set out herein. The case will be set for a Pretrial Conference in a later Order. Signed by Judge Virginia Emerson Hopkins on 2/6/2018. (JLC)

FILED
2018 Feb-06 AM 09:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
AUDREY M. LEVESQUE,
Plaintiff,
v.
OKTAN TRANSPORT, INC.
Defendant.

)
)
)
)
) Case No.: 1:15-CV-1272-VEH
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, Audrey Levesque, against the
Defendant, Oktan Transport, Inc. (“Oktan”). (Doc. 1). The Complaint sets out counts
for: negligence (Count One); wantonness (Count Two); negligent and wanton
entrustment (Count Three); and negligent hiring, training & supervision (Count Four).
All counts arise out of an automobile accident between the Plaintiff and Ramunas
Blazys, who was driving on behalf of Oktan.1
The case comes before the Court on the Plaintiff’s Motion for Summary
Judgment against Oktan. (Doc. 35). As stated in the Motion, the Plaintiff moves for
judgment on the negligence claim alone, and “[s]pecifically . . . requests this Court

1

The Complaint also names Blazys as a Defendant. The Plaintiff voluntarily dismissed
Blazys on November 30, 2015. (Docs. 10, 12).

enter summary judgment in her favor as to the elements of duty, breach, causation, and
the existence of damages (not the amount of damages).”) (Doc. 35 at 1). The Plaintiff
“also requests summary judgment in her favor as to the affirmative defense of
contributory negligence.” (Doc. 35 at 1).
I.

STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there

is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 2265 (1986) (“[S]ummary
judgment is proper if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”) (internal quotation marks omitted). The party requesting summary
judgment always bears the initial responsibility of informing the court of the basis for
its motion and identifying those portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323,
106 S. Ct. at 2553. Once the moving party has met its burden, Rule 56(c) requires the

2

non-moving party to go beyond the pleadings in answering the movant.2 Id. at 324, 106
S. Ct. at 2553. By its own affidavits – or by the depositions, answers to interrogatories,
and admissions on file – it must designate specific facts showing that there is a genuine
issue for trial. Id.
The underlying substantive law identifies which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510,
91 L. Ed. 2d. 202 (1986). All reasonable doubts about the facts and all justifiable
inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d
1012, 1023 (11th Cir. 2000). Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If the
evidence presented by the non-movant to rebut the moving party’s evidence is merely
colorable, or is not significantly probative, summary judgment may still be granted. Id.
at 249, 106 S. Ct. at 2511.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City

2

When Celotex was decided FED. R. CIV. P. 56(e) encompassed this express requirement,
but now this concept is covered by the language provided for under FED. R. CIV. P. 56(c).
3

of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof
on the given issue or issues at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing the absence of a genuine issue
of material fact – that is, facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citing United States v. Four Parcels of Real Property, 941
F.2d 1428, 1438 (11th Cir. 1991)). Once the moving party makes such an affirmative
showing, the burden shifts to the non-moving party to produce “significant, probative
evidence demonstrating the existence of a triable issue of fact.” Id. (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains supporting
evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence
sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on
mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey,
518 U.S. 343, 358, 116 S. Ct. 2174, 2183, 135 L. Ed. 2d 606 (1996). The second
method a movant in this position may use to discharge its burden is to provide
4

affirmative evidence demonstrating that the non-moving party will be unable to prove
its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must
rebut by offering evidence sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
II.

FACTS3
A.

The Accident

On March 4, 2014, Levesque was the driver/operator of a Greyhound bus and
was returning to Birmingham, Alabama after driving to Atlanta. She was driving her
bus along Interstate 20 when she was involved in an accident with an eighteen wheeler
driven by Blazys, on behalf of Oktan.4 The Plaintiff testified in her deposition as
follows:

3

The facts set out herein are gleaned, in substantial part, from the facts proffered by the
parties. To the extent that a party has proffered a fact which is not disputed, it has been included
herein exactly as it was proffered, without citation. To the extent that a fact proffered by a party
was disputed by another party, the Court first examined the proffered fact to determine whether
the evidence cited in support of that fact actually supported the fact as stated. If it did not, the fact
was not included. If it did, the Court then looked to whether the evidence cited in support of the
dispute actually established a dispute. If it did not, the Court presented the fact as proffered, with
citation to the evidence supporting the fact as proffered. If the cited evidence was disputed by
contrary evidence, the evidence was viewed, as this Court must, in the light most favorable to the
non-movant, with citation to such supporting evidence. If more explanation was needed, the
Court included that information in an appropriate footnote. Some facts proffered by the parties,
which the Court deemed irrelevant and/or immaterial, may have been omitted. Further, as
necessary, the Court may have included additional facts cast in the light most favorable to the
non-movant.
4

The Defendant agrees that Blazys was operating the truck “under the authority and
dispatch of Oktan.” (Doc 39 at 3).
5

Q. This truck that was involved in the accident with you, do you ever
recall seeing that truck on the road prior to the accident?
A. Yes.
Q. Tell me about that, please.
A. He was behind me driving [erratically]5. And I felt -- I came around
and I passed him and went on down the road. He was crossing the line
like in and out.
(Doc. 36-2 at 19(72)). The Plaintiff also testified that the bus she was driving had a
speed governor on it which prevented the bus from exceeding 70 miles per hour. (Doc.
36-2 at 12(41)). The testimony continues:
Q. You were traveling faster than he was when you passed him?
A. Yes, sir. I had to pass him.
Q. But you couldn't have gone more than seventy to pass him, right?
A. That's right.
Q. Why did you pass him?
A. Because he was going in and out of the lane, crossing the line, coming
-- I felt unsafe.
Q. After you passed him, do you recall seeing him?
A. No.

5

The Plaintiff actually stated the truck was driving “sporadically.” Based on the context,
the Court concludes that she meant “erratically.”
6

(Doc. 36-2 at 20(73)).
It is undisputed that, after the Plaintiff passed Blazys, the vehicle Blazys was
driving rear-ended the Plaintiff’s bus. The Plaintiff testified that, at that time, she was
traveling around sixty or sixty-two miles per hour, and that immediately upon impact,
the bus died and she “had no control . . . had to steer it with no power,” so she applied
the brakes and then coasted to the side of the road. (Doc. 36-2 at 16(58); doc. 36-2 at
14(52); doc. 36-2 at 15(55)). The Plaintiff never left her lane until she pulled off on the
side of the road. (Doc. 36-2 at 16(57)).
Levesque remained with the bus until it was towed. In the meantime, the bus
passengers were taken to a nearby high school gymnasium by a separate Greyhound
bus, which then returned to the accident scene for the Plaintiff. The Plaintiff did not
experience any pain at the time of the accident or during the time she was waiting for
the second bus. As Levesque was attempting to enter the bus, her legs went numb and
she was unable to enter the bus without assistance. The Plaintiff was transported via
ambulance from the Greyhound bus office in Birmingham, Alabama to the St. Vincent’s
Hospital Emergency Room.
B.

The Plaintiff’s Medical Treatment

The Plaintiff told an emergency room doctor at St. Vincent’s that she was
“having pains in [her] legs.” (Doc. 36-2 at 24(91)). At that time, she was having no
7

pain in any other areas. (Id.) Hospital records reflect that she complained of “bilateral
leg cramps and right wrist pain.” (Doc. 41-2 at 18). The doctors at St. Vincent’s “gave
[her] some pain medication and sent [her] home.” (Doc. 36-2 at 24(91)).
The Plaintiff continued to have symptoms after she left the ER. She testified that
“It got really bad. After I went home and laid down, my arms started hurting, the
numbness, it was horrible. I couldn't move. Everything was hurting, my back, my neck,
my arms, my legs.” (Doc. 36-2 at 25(93)). Thereafter, the Plaintiff received treatment
from Dr. Chauncey Thuss. (Doc. 36-2 at 25(96)). The Court file contains no records
or testimony from Dr. Thuss. However, the Plaintiff was later treated by Dr. Jeffrey
Todd Smith, who summarized her history as follows:
She said she was referred to Dr. Thuss. She was started on physical
therapy with Dr. Thuss. At the time she saw Dr. Thuss she told him she
has some pain in the right hand and numbness and tingling in the left
hand. She said she went to physical therapy for her low back. She did this
for about 2 to 3 weeks. She did not get any better. It actually made her
neck start hurting. She started getting worse. She states she is still having
numbness in the left hand. She has some pain in the right hand. She denies
any balance issues. She bas had an MRI of cervical spine now and was
sent here for evaluation.
(Doc. 41-2 at 7).6

6

The Plaintiff does not object to the admissibility of this record, or the statements therein.
She does, however, “disagree[] that Dr. Thuss ‘provided’ her with physical therapy.” (Doc. 44 at
2). The Court treats this “disagreement” as a “dispute” of the fact offered by the Defendant, and
notes that the Plaintiff provides no citation to the record in support of her dispute. This court’s
Uniform Initial Order, entered in this case on August 4, 2015, provides:
8

Dr. Smith began treating the Plaintiff in April of 2014. His records include a
New Patient Medical History Form. This form included questions for Levesque to
answer. (Doc. 41-2 at 12). Question number 2 asks “[i]s your problem the result of an
injury or accident?” The choices are “No injury” “Injury” “Injury at Work” “Auto
Accident” “Sport Injury” “Prior Surgery.” “Injury” was selected. (Id.). The form also
includes the question: “[h]ow long have the symptoms been present? (ex. 2 months).”
(Id.). The handwritten response is “2 yrs.” (Id.). The form is undated. In his deposition,
Dr. Smith testified that this form would have been completed by the Plaintiff after Dr.
Smith’s office converted to electronic records, not on her first visit with him. (Doc. 363 at 22(81-82)).
Dr. Smith’s records also include diagnostic testing on the Plaintiff that was
performed and interpreted by two independent radiologists. A cervical MRI done on
April 7, 2014, related “[m]ultilevel degenerative disc and facet disease with
neuro-foraminal stenosis as detailed above and mild spinal canal stenosis.” (Doc. 41-2
at 23). Regarding this report, the following exchange took place in Dr. Smith’s

Any statements of fact that are disputed by the moving party must be followed by a
specific reference to those portions of the evidentiary record upon which the
disputation is based. All additional material facts set forth in the statement
required of the opposing parties will be deemed to be admitted for summary
judgment purposes unless controverted by the statement of the movant.
(Doc. 4 at 19) (italics in original). The fact is deemed admitted.
9

deposition:
Q. What is degenerative changes and facet disease?
A. That is a disk that is worn. In other words, it would relate to
age-related changes. The disk and associated facet joints are the joint in
the back of the spine.
Q. And foraminal stenosis, what is that?
A. The foramen is the area where the nerve exits from the spine.
Q. What does stenosis mean?
A. Stenosis is narrowing of the canal from which something travels or
exits out, such as you can get your pipes rusted in a house and you can get
poor flow from that in an older house, so those stenotic pipes.
Q. In her instance would that be a result of the degenerative disk and facet
disease?
A. You know, I reviewed the MRI, and I did think she had, as noted in
my report regarding I think she had degenerative changes in her neck as
stated here when I said cervical spondylosis at C4-5, CS-6, and C6-7
levels, I do think she had disk protrusions at CS-6 and C6-7 on the left
with foraminal stenosis and some degree of disk osteophyte complex to
the right at C4-5, CS-6 and C6-7. Of course disk osteophyte would be
more of a chronic issue. So I think it was a combination of some chronic
and acute findings.
Q. Okay. I don't see any acute findings that were identified by the
radiologist who first read the films.
***
A. I don't see where he mentions acute or non-acute. It's not really the
purvey [sic] of the radiologist to determine acuity of issues, and again, we
10

don't treat MRIs. We treat the individual. So in that regard I also made my
review and this is not the MRI. This is the MRI report, so it is not the
gold standard from which to go. When I'm driving a car, I don't close my
eyes and have the passenger tell me where to turn, I have my eyes open.
So any time I'm doing a procedure or treating someone, I look at the
studies myself.
(Doc. 36-3 at 17(62-74)).
The findings from a July 24, 2014, Post-Mylogram CT Cervical Spine included
the following: at C4-5 a “mild chronic right-sided disc protrusion,” at C5-6, “a broad
chronic-appearing largely osteophytic central and right-sided disc protrusion,” at C6-7,
“a left uncinate disc osteophyte complex” and at C-7-T1, “facet joint hypertrophic
degenerative change.” (Doc. 41-2 at 9). Referencing this report, Dr. Smith testified:
Q. Would you agree that chronic in medical terminology means
developing over time?
A. Chronic means that it's been there. Now it doesn't necessarily speak
development of time. It could have developed a long time ago and not
changed.
(Doc. 36-3 at 19(69)). Dr. Smith agreed that the Plaintiff has osteophytes, and stated
that “osteophytes are chronic, but you can have osteophytes and a disk herniation. Just
because you developed degenerative changes does not make you invincible. As a
matter of fact, it does the other way.” (Doc. 36-3 at 19(70)). He continued:
I certainly agree she had prior issues. She did have spondylitic changes
that were chronic. I do believe she had osteophytes that were chronic. I
do believe that she had an acute onset of symptoms, unless there's
11

information to tell me otherwise, associated with the accident. And I do
believe that she had the symptoms for which we were treating or not
treating an MRI or a CT myelogram, especially with the accident. I do
believe very likely she had disk herniations or disk protrusions that
worsened, even though she may have already had disk osteophyte
complexes associated with the accident, and I do think secondary to the
fact she had preexisting degenerative changes and spondylitic changes it
made her more susceptible to injuries, such as a chest skull7 theory in
your terminology, not to venture into your realm.
(Doc. 36-3 at 19(71-72)). On August 25, 2014, Dr. Smith performed neck and low
back surgery on the Plaintiff. Dr. Smith testified:
Q. In your opinion to a reasonable degree of medical certainty is it the
wreck that caused the injuries that you were treating [the Plaintiff] for?
A. I do believe that I was treating her for her myelopathy and her
radiculopathy, and I do believe that more likely than not the motor vehicle
accident led to the symptoms that led to the surgery.
(Doc. 36-3 at 11(37).
In patient notes dated February 23, 2016, Dr. Smith wrote:
She has pain in her back and lower extremities. She did have surgery on
her lumbar spine by Dr. Savage. Patient states that this was done under
her regular insurance. I had previously seen her with some complaints of
back issues but at that point it was determined it was non-work related
condition secondary to the fact that even though she had some initial
complaints with this, it had [sic] many, many months since the time of her
injury and complaints and she started complaining to me again of some
back issues. There is a long delay. She states this occurred as a recurrence
7

Dr. Smith likely meant to say “egg shell” here, as in the theory that the preexisting
condition or frailty of the injured person is not a valid defense to the seriousness of and injury
caused to them.
12

back in January, 2015. She was also evaluated at that time for some hand
numbness. She was sent for EMG/nerve conduction studies. She was
found to have bilateral carpal tunnel syndrome that was severe, therefore,
it was determined she had non-worked work related carpal tunnel
syndrome, symptomatic on the right. . .
Plan: I do think further care or evaluation for her carpal tunnel syndrome
should be done under her regular insurance. I do think further care for her
lumbar spine should be treated under her regular insurance. . .
(Doc. 41-2 at 11).
III.

ANALYSIS
The Plaintiff argues that, as to Count One, she is entitled to summary judgment

in her favor “as to the elements of duty and breach of said duty.” (Doc. 35 at 10). She
asks this Court to hold that: 1) the Defendant owed the Plaintiff a duty to exercise due
care and to keep a lookout for Plaintiff while Plaintiff used the road; and 2) the
Defendant breached such duty owed to Plaintiff. (Doc. 35 at 9). The Defendant admits
that it has no factual basis to challenge the elements of duty and breach in this case.
(See doc. 39 at 2). Accordingly, summary judgment will be granted in favor of the
Plaintiff and against the Defendants on this issues. Based on this holding, summary
judgment is also appropriate in favor of the Plaintiff and against the Defendant on the
defense of contributory negligence.8
8

Even if the Defendant had not conceded the elements of duty and breach, summary
judgment against the Defendant on the issue of contributory negligence would be appropriate
because the Defendant makes no argument on that issue. See, Lafarge N. Am., Inc. v. Nord, 86
13

After careful review of the evidence of causation and damages, and the parties’
arguments regarding same, the Court holds that the Plaintiff has not shown that there
is no genuine issue of material fact as to causation and damages. Summary judgment
will be denied on these issues.
IV.

CONCLUSION
Based on the foregoing, it is hereby ORDERED, ADJUDGED, and

DECREED as follows:
1.

Summary Judgment is hereby GRANTED in favor of the Plaintiff, and against
the Defendant, Oktan, on the issue, in Count One, of whether the Defendant had
a duty to the Plaintiff, and whether the Defendant breached that duty. The Court
HOLDS that, as to Count One: 1) the Defendant owed the Plaintiff a duty to
exercise due care and to keep a lookout for the Plaintiff while the Plaintiff used
the road; and 2) the Defendant breached such duty owed to the Plaintiff.

2.

Summary judgment is hereby granted in favor of the Plaintiff and against the
Defendant on the issue of whether the Plaintiff was contributorily negligent. The
court HOLDS that, as a matter of law, the plaintiff was not.

So. 3d 326, 336 (Ala. 2011) (“Contributory negligence is an affirmative defense that the
defendant bears the burden of proving.”).

14

3.

In all other respects, summary judgment is DENIED.
The case will be set for a pretrial conference in a later order.
DONE and ORDERED this 6th day of February, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

15