Filing 91

ORDER - - Plaintiff's 79 Motion for Partial Summary Judgment is Granted on the issue of liability for the subject traffic accident as described herein and is Denied in all other respects. - - - Signed by SENIOR JUDGE LACEY A COLLIER on February 22, 2010. (cbj)

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IN THE UNITED STATES DISTRICT COURT FOR THE N O R T H E R N DISTRICT OF FLORIDA P E N S A C O L A DIVISION M A T T H E W E. DEBORD, and TABITHA DEBORD, P la in tif f s , v. G & S MATERIAL SERVICE, INC., JAMES DUNSFORD and STEPHEN D U N S F O R D , and SOUTH ALABAM T R A N S P O R T , LLC, a/k/a SOUTH ALABAMA TRANSPORT, LLC, D e f e n d a n ts. _______________________________/ Case No. 3:07cv365/LAC ORDER T h is cause is before the Court on a Motion for Summary Judgment filed by Plaintiffs (d o c . 79) on the issue of liability and permanent injury. Defendants have responded in o p p o sitio n to the motion. The Court has taken the motions and their responses under a d v is e m e n t and is now prepared to rule. Upon due consideration of the motion, the Court f in d s Summary Judgment should be granted as to liability but denied as to permanent injury. I. BACKGROUND T h e case arises from a traffic accident on June 22, 2006, in which Defendants' tra c to r trailer, driven by James C. Presley, collided into the rear end of a waste management tru c k being driven by Plaintiff Matthew Debord. In Walton County, Florida, Presley was tra v e lin g on Highway 98, a four lane highway, and was approaching the intersection of Highway 331. Traveling at just under 65 miles per hour, which was the posted speed limit, P re s le y was following a dump truck and a car which was ahead of the dump truck. All v e h ic le s were traveling in the right lane Evidently unbeknownst to Presley because he was d ire c tly behind the dump truck, Plaintiff Debord was also on the highway, ahead of all three. Debord had been stopped at the Highway 331 intersection at a red light,1 also in the right la n e , and began to accelerate in his garbage truck when the light turned green. According, to Presley, as he approached the intersection, the light was green. After Presley went through th e intersection, the dump truck ahead of his tractor trailer made a sudden lane switch into th e left lane. The car ahead of the dump truck had evidently done the same thing because, a f te r the dump truck changed lanes, Presley realized that Debord's garbage truck was in front o f him by only approximately 120 feet. Still in acceleration from the traffic light, Debord w a s traveling approximately 20-25 miles per hour at the time. While Presley thought of m o v in g to the left lane himself, there was an automobile in the left lane precluding him from In his deposition, Presley suggests that it was possible that Debord might have turned onto Highway 98 from Highway 331 or some other point of access, but he admittedly had no basis for this suggestion since he did not see Debord's truck until the moment before the accident. Presley therefore stated he had no reason to suspect that Debord had driven his truck in an improper manner. Debord's account of his whereabouts and actions therefore stand as uncontroverted. Case No. 3:07cv365/LAC Page 2 of 7 1 doing so. Presley applied his brakes and "locked up" his tractor-trailer, but was unable to s to p before colliding into the rear of the garbage truck. As a result of the accident, Debord s u s ta in e d injuries to his back which he alleges are permanent. T h e five count complaint is based upon Presley's alleged negligent operation of the tra c to r-tra ile r and raises claims against Presley's employers and owners of the tractor-trailer u n d e r the dangerous instrumentality doctrine and the "Federal Motor Carriers Safety R e g u la tio n s " as well as for failure to properly train and supervise their employee. CoP la in tif f Tabitha Debord raises a claim of loss of consortium. In their summary judgment motion, Plaintiffs seek to establish 1) liability on the part o f Defendants for the accident and 2) that Plaintiff Debord suffered permanent injury as a d ire c t and proximate result of the accident. II. SUMMARY JUDGMENT STANDARDS S u m m a ry judgment is appropriate where "the pleadings, depositions, answers to in te rro g a to rie s , 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 a s a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 3 2 2 , 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). "[T]he substantive law will identify w h ic h facts are material" and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). An issue of fact is material if it Case No. 3:07cv365/LAC Page 3 of 7 is a legal element of the claim under the applicable substantive law which might affect the o u tc o m e of the case. See id. At the summary judgment stage, a court's function is not to weigh the evidence to d e te rm in e the truth of the matter, but to determine whether a genuine issue of fact exists for tria l. See id. at 249, 106 S. Ct. at 251011. A genuine issue exists only if sufficient evidence is presented favoring the nonmoving party for a jury to return a verdict for that party. See id . "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F .2 d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust Co. v. Fidelity and D e p o s it Co., 750 F.2d 838, 841 (11th Cir. 1985)). W h e n assessing the sufficiency of the evidence in favor of the nonmoving party, the c o u rt must view all the evidence, and all factual inferences reasonably drawn from the e v id e n c e , "in the light most favorable to the non-moving party." Hairston v. Gainesville Sun P u b l ' g Co., 9 F.3d 913, 918 (11th Cir. 1993). The court is not obliged, however, to deny s u m m a ry judgment for the moving party when the evidence favoring the nonmoving party is "merely colorable or is not significantly probative." Anderson, 477 U.S. at 24950, 106 S . Ct. at 2511. "A mere `scintilla' of evidence supporting the . . . [nonmoving] party's p o s itio n will not suffice" to demonstrate a material issue of genuine fact that precludes s u m m a ry judgment. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (quoting A n d e rso n , 477 U.S. at 252, 106 S. Ct. at 2512). Case No. 3:07cv365/LAC Page 4 of 7 III. DISCUSSION A s it concerns the liability issue, a rebuttable presumption exists under Florida law th a t, when a rear end collision occurs, the driver of the car that produced the collision was n e g lig e n t. See Eppler v. Tarmac America, Inc., 752 So.2d 592, 594-95 (Fla. 2000) (citing G u lle v. Boggs, 174 So.2d 26 (Fla. 1965)). "The presumption provides a prima facie case w h ic h shifts to the defendant the burden to go forward with evidence to contradict or rebut th e fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, the impact of the presumption is dissipated." Gulle, 174 So.2d at 28-29 (quotation omitted). The fact that the "lead vehicle" makes a sudden stop, without more, is insufficient to o v e rc o m e the presumption of negligence. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 5 7 5 (Fla. 2001). Thus, "if a vehicle suddenly stops in a roadway, but the stop happens at a p la c e and time where it can reasonably be expected," the presumption remains. Hunter v. W a r d , 812 So.2d 601, 603 (Fla. 1st DCA 2002). "Such accidents are encountered far too f re q u e n tly and are to be reasonably expected. Each driver is charged under the law with re m a in in g alert and following the vehicle in front of him or her at a safe distance." Clampitt, 7 8 6 So.2d at 575. Eppler v. Tarmac America, Inc., 752 So.2d 592 (Fla. 2000) is the seminal case in w h ic h the presumption was found to be rebutted. In Eppler the vehicles were stopped at a s to p lig h t, and as the light changed to green, the vehicles accelerated forward normally in the Case No. 3:07cv365/LAC Page 5 of 7 bumper-to-bumper traffic, until the driver of the lead car suddenly and for no apparent reason s la m m e d the brakes, causing the trailing car to strike it from behind. The Florida Supreme C o u rt found under these circumstances that the presumption was overcome because the lead c a r had arbitrarily come to a sudden stop in a place or situation where such a stop would not b e reasonably anticipated. Id. at 595. The facts of this case do not approach the unexpected situation described in Eppler. Though Presley may have been surprised when, after the two vehicles ahead of him shifted la n e s to reveal the slow-moving garbage truck, this did not occur in a situation that could be d e s c rib e d as unexpected. Rather, given the fact that there was an intersection involved, it s h o u ld be reasonably expected that different vehicles might be traveling at different speeds. Further, Debord did not stop suddenly or otherwise act in an arbitrary fashion but was simply a c c e le ra tin g from the intersection in a normal manner. Finally, by Presley's own admission, h e was following closely behind the dump truck ahead of him, thus suggesting that his own p o s itio n in g may have contributed to his lack of sufficient stopping distance or his inability to see the garbage truck in advance. As Clampitt instructs, drivers are required to follow v e h ic le s in front of them at a safe distance and remain alert. The Court therefore finds that th e presumption of negligence applies, thus establishing liability on the part of Defendants. C o n c e rn in g the injury issue, Plaintiffs produce expert medical evidence to indicate th a t Plaintiff Debord sustained permanent injury as a result of the accident. Defendants point o u t, however, that Debord suffered from chronic back, hip and leg medical problems for Case No. 3:07cv365/LAC Page 6 of 7 which he was receiving treatment quite recently before the accident. These pre-existing in ju rie s were similar in nature to the injuries Debord suffered following the accident. Moreover, the doctors who diagnosed Debord's post-accident injury were not informed of th e pre-existing conditions while making their diagnoses; once made aware of this, they in d ic a te d that this could affect their medical conclusions regarding the cause of Debord's in ju rie s . Finally, Debord experienced a slip and fall at his home after the accident, which a ls o might have served to cause of exacerbate his permanent injuries. In view of this, the Court concludes that material issues of fact exist that prevent a f in d in g on summary judgment that Plaintiff Debord suffered permanent injury as a direct and p ro x im a te result of the accident. Accordingly, IT IS HEREBY ORDERED: 1. P la in tif f s ' Motion for Partial Summary Judgment (doc. 79) is GRANTED on th e issue of liability for the subject traffic accident as described herein and is D E N IE D in all other respects. O R D E R E D on this 22nd day of February, 2010. s/L.A. Collier Lacey A. Collier S e n io r United States District Judge Case No. 3:07cv365/LAC Page 7 of 7

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