Lee v. Jones et al

Filing 68

ORDER denying 58 Motion for Summary Judgment. Signed by Judge Jay C. Zainey on 6/10/13. (jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROLYN LEE, INDIVIDUALLY AND
ON BEHALF OF HER MINOR CHILD,
TROYNESHA LEE, ET AL.

CIVIL ACTION

VERSUS

NO: 11-2678

DONALD W. JONES, ET AL.

SECTION: "A" (4)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 58) filed by
defendants Donald W. Jones, Herring Transport, Inc., and National Interstate Insurance Co.
Plaintiffs Carolyn Lee, individually, and on behalf of her minor child, Troynesha Lee, Jessie
Hughes on behalf of his minor child Joshua Hughes, and Savitra George, individually and
behalf of her minor child, Kennedy Catherine, oppose the motion. The motion, noticed for
submission on May 22, 2013, is before the Court on the briefs without oral argument. For
the reasons that follow, the motion is DENIED.
I.

Background
Plaintiffs seek an award of damages against Defendants for injuries allegedly arising

out of an automobile accident with a tractor-trailer operated by defendant Donald W. Jones.
The accident occurred on August 8, 2011, near the intersection of Interstate 55 and
Interstate 12 in Tangipahoa Parish. Plaintiffs filed suit in the 21st Judicial District Court for
the Parish of Tangipahoa. On October 26, 2011, Jones and Interstate removed the suit to this
Court citing diversity jurisdiction, 28 U.S.C. § 1332(a)(1). This matter is scheduled to be
tried to a jury on August 26, 2013.
Via the instant motion Defendants move for judgment as a matter of law on the issue

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of liability. Defendants contend that the undisputed material facts establish that Jones was
free from fault in causing the accident, and therefore summary judgment is appropriate.
II.

Discussion
Summary judgment is appropriate only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the nonmoving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993)).
The Court has reviewed the parties’ evidentiary submissions and certain key facts in
this case are undisputed. Jones was operating a Herring Transport tractor-trailer on I-55
southbound approaching the location where vehicles traveling on I-12 east can merge onto I55 south. Due to road construction, only the left lane of I-55 south was open—the right lane
was blocked off with construction cones. Drivers exiting I-12 east and merging onto I-55

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south faced a yield sign on the merge ramp. On the day of the accident, drivers merging onto
I-55 south from I-12 east had to merge into the far left lane of I-55 south because of the right
lane being closed. Traffic conditions that day were light and the weather was clear. Lee,
although adamant that she checked for oncoming vehicles, did not see Jones’ tractor-trailer.
Jones and Lee collided but they dispute whether the collision occurred while Lee was in the
process of merging. Lee’s contention is that she had already completed the merge and safely
occupied the left lane when Jones tried to swerve around her.
Citing La. R.S. § 32:123, Defendants contend that Jones was on the favored roadway
and had the right of way. According to Defendants, Lee is 100 percent at fault for the
accident.
The duty of a motorist when approaching a yield sign is mandated in La. R.S. §
32:123 which provides in pertinent part:
A. Preferential right of way at an intersection may be indicated by stop signs or yield
signs.
....
D. The driver or operator of a vehicle approaching a yield sign shall slow down to a
speed reasonable for the existing conditions, or shall stop if necessary, before
entering the crosswalk on the near side of the intersection or, in the event there is no
crosswalk, at a clearly marked stop line, but if none, then at the point nearest the
intersecting roadway where the driver has a view of approaching traffic on the
intersecting roadway. Having slowed or stopped in this manner, the driver shall yield
the right-of-way to any pedestrian legally crossing the roadway on which he is
driving, and to any vehicle in the intersection or approaching on another highway
so closely as to constitute an immediate hazard.

La. Rev. Stat. Ann. § 32:123(A),(D) (2012). Motorists have the duty under the law to
maintain a proper lookout for hazards, which by the use of ordinary care and observation
one should be able to see. Alford v. Estate of Zanca, 552 So. 2d 7, 13 (La. App. 5th Cir. 1989)
(citing Richardson v. Continental Ins. Co., 468 So. 2d 675 (La. App. 3d Cir. 1985)).

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Defendants are correct in that Jones was traveling on the favored roadway and had
the right of way.1 If Lee did in fact impact Jones’ vehicle while she was attempting the merge,
then Plaintiffs’ suggestion that Jones could have avoided the accident by driving slower
would be without merit because Lee would be the driver with the duty to either slow down or
speed up in order to merge safely.
But the question of whether the impact occurred during or after the merge is in
dispute. Lee’s testimony about how the accident occurred is directly at odds with that of
Jones, and with the description provided by the state trooper in his report.2 Lee contends
that she had already merged onto I-55 and therefore safely occupied the left lane when Jones
then swerved around her and struck her vehicle. The Court finds this contention to be
questionable in light of Lee’s unequivocal admission that she never saw Jones’ vehicle until
the impact. Even if Lee’s version of the accident is to be believed, it still does not explain why
she never at anytime saw Jones’ vehicle. Jones’ vehicle did not materialize out of thin air,
and Lee testified that nothing obstructed her view that day.
Lee and Jones were the only eye-witnesses whose accounts of the accident were
submitted on summary judgment. They clearly conflict. The experts who drew diagrams of
the accident scene were not eye-witnesses. And the state trooper’s diagram, which would

Plaintiffs should note that the law that they cite regarding competing stop signs (La.
R.S. § 32:132(B)—Lee memo at 4) is not relevant because there were no stop signs involved in
this case. Likewise, La. R.S. § 32:121(A), (Hughes/George memo at (page not numbered)), is not
relevant because this case does not present a situation where two vehicles entered an
intersection at the same time.
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Lee suggested during her deposition that the state police might have been in the area
even before the accident but no one has suggested that the trooper who investigated the accident
was an eye-witness to the accident. Lee was the only driver cited for causing the accident.
According to the trooper, Lee struck Jones’ vehicle when she attempted to merge onto I-55
southbound. (Rec. Doc. 58-10, Exh. 4-C).
2

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tend to support Jones’ version of events, is hearsay. Lee denies that she ever spoke to the
trooper in the aftermath of the accident because of the severity of her injuries. It is for the
jury as trier of fact, not for the Court on summary judgment, to weigh all of the evidence and
determine the credibility of Lee’s and Jones’ conflicting contentions.
In their reply, Defendants argue that Lee is attempting to create an issue of fact by
changing her story about how the accident occurred. Defendants cite to Lee’s petition and
her own expert’s report. The Court finds no merit to Defendants’ argument in this vein for
two reasons. First, the Court does not consider the petition to be at odds with the version of
events that Lee testified to in her deposition. Petitions are pithy in nature and are drafted by
lawyers not litigants. Second, Lee’s deposition, which lasted an entire day according to the
transcript, was her opportunity to speak about her version of events. Neither her lawyer nor
her expert were eye-witnesses to the accident. This Court does not find this to be a situation
where a plaintiff changes her story to avoid summary judgment. Lee and Jones were both
eye-witnesses to the accident and their testimony is in conflict. It is up to the jury not the
Court to resolve that conflict.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 58)
filed by defendants Donald W. Jones, Herring Transport, Inc., and National Interstate
Insurance Co. is DENIED.
June 10, 2013

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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