Washington v. American Commercial Lines, L.L.C. et al

Filing 27

ORDER AND REASONS denying 14 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GARY WASHINGTON

CIVIL ACTION

VERSUS

NO. 15-1814

AMERICAN COMMERCIAL LINES, L.L.C.,
ET AL.

SECTION "B"(5)

ORDER AND REASONS
Before the Court is Wal-Mart Transportation, LLC’s Motion for
Summary Judgment.
dismissal

of

Rec. Doc. No. 14.

Plaintiff

Gary

Specifically, Walmart seeks

Washington’s

(“Washington”)

suit

against it with prejudice because there is no genuine issue as to
any material fact. Rec. Doc. No. 14-1. Plaintiff submitted a
Memorandum in Opposition to Walmart’s motion, alleging that there
are genuine issues of material fact. Rec. Doc. No. 19.

Co-

Defendant, American Commercial Lines, LLC (“ACL”), also filed a
Memorandum in Opposition to the Motion for Summary Judgment. Rec.
Doc. No. 20.

Walmart filed a Reply Memorandum in support of its

Motion for Summary Judgment. Rec. Doc. No. 24.
For the reasons stated below, IT IS ORDERED that Walmart’s
Motion for Summary Judgment is DENIED.
I.

FACTS AND PROCEDURAL HISTORY
On March 10, 2015, Plaintiff was the passenger in a 2014 Jeep

Cherokee driven by his co-worker, Mica Norsworthy. Rec. Doc. No.
14-8 at 1; Rec. Doc. No. 20-4 at 1.

Both Plaintiff and Norsworthy

worked for ACL at the time. Rec. Doc. 14-8 at 1; Rec. Doc. No. 201

4 at 1. Plaintiff was employed by ACL as a Jones Act Seaman. Rec.
Doc. 1 at 2. While Norsworthy and Plaintiff travelled on I-10 West
through Calcasieu Parish, Louisiana, an accident occurred between
the Jeep Cherokee and a Walmart tractor-trailer. Rec. Doc. No. 148 at 2; Rec. Doc. 20-4 at 3.

Walmart employee Edward Harris

(“Harris”) was driving the tractor-trailer at the time of the
accident. Rec. Doc. No. 14-8 at 2; Rec. Doc. 20-4 at 2.

The

portion of the interstate where the accident occurred is divided
into three lanes. Rec. Doc. No. 14-8 at 2; Rec. Doc. No. 20-4 at
2.

Plaintiff was asleep at the time of the accident. Rec. Doc.

14-8 at 3; Rec. Doc. No. 20-4 at 5.
After the accident occurred, Louisiana State Trooper Andrew
Leonards (“Leonards”) arrived at the scene. Rec. Doc. 14-8 at 2;
Rec. Doc. 20-4 at 3.

Leonards first took verbal statements from

the drivers, which he used to create his police report.

Rec. Doc.

No. 14-3 at 13; Rec. Doc. No. 14-5 at 6; Rec. Doc. 20-4 at 3.
Leonards later based his deposition testimony on that police
report.

Rec. Doc. No. 14-4 at 3; Rec. Doc. No. 20-3 at 2.

In his

deposition, Leonards testified that Norsworthy told him that while
he was in the left lane attempting to pass the tractor-trailer,
the Jeep Cherokee began to vibrate and entered the middle lane,
swiping the tractor-trailer. Rec. Doc. No. 14-4 at 3. Leonards
ultimately issued Norsworthy a citation for improper lane usage

2

pursuant to La. R.S. 32:79.1
No. 19 at 3.

Rec. Doc. No. 14-4 at 4; Rec. Doc.

Leonards further testified that when he questioned

Harris about the accident, Harris stated that Norsworthy’s vehicle
crossed from the left lane into the middle lane and struck the
tractor-trailer. Rec. Doc. No. 14-4 at 3.
Shortly

after

the

accident,

and

after

taking

verbal

statements, Leonards took written statements from Norsworthy and
Harris. Rec. Doc. No. 14-4 at 9; Rec. Doc. No. 19 at 2. Norsworthy
wrote that as he was in the left lane attempting to pass the
tractor-trailer (which was in the middle lane), the tractortrailer was “wobbling” and “side-swipe[d] the passenger side.”
Rec. Doc. No. 14-4 at 3; Rec. Doc. 20 at 10.

Norsworthy also wrote

that his own vehicle was shaking while he was attempting to pass
the tractor-trailer. Rec. Doc. No. 14-4 at 3; Rec. Doc. 20 at 10.
In his deposition, Norsworthy stated that he did not cross the
line into the middle lane. Rec. Doc. No. 14-5 at 7; Rec. Doc. 191 at 4.
Harris’s written statement alleges that, while driving in the
middle lane of the interstate, Norsworthy’s Jeep entered his lane
and hit the left side of his tractor-trailer. Rec. Doc. No. 14-7

La. R.S. 32:79 states, “Whenever any roadway has been divided into two or more
clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane
until the driver has first ascertained that such movement can be made with
safety.”
1

3

at 8. Harris’s deposition gives the same information. Rec. Doc.
No. 14-3 at 5.
On

May

negligence.

29,

2015,

Plaintiff

Rec. Doc. No. 1.

sued

Walmart

and

ACL

for

Plaintiff alleges he suffered

injuries in the accident that have rendered him unable to return
to work.

Rec. Doc. No. 1 at 4.

Accordingly, Plaintiff seeks

compensatory, special, and general damages as well as maintenance
and cure from ACL.
II.

Rec. Doc. No. 1 at 3.

THE PARTY’S CONTENTIONS
Walmart contends that it is entitled to summary judgment

because there is no genuine dispute as to any material facts
relevant to its liability. Rec. Doc. No. 14 at 1.

Specifically,

Walmart alleges that the testimony of Harris and Leonards proves
that the accident was Norsworthy’s fault, and thus demonstrates
that there is no genuine issue as to the fact that Norsworthy, not
Harris, caused the accident. Rec. Doc. No. 14-1 at 4.

Walmart

depends on deposition testimony given by Harris and Leonards, as
well as Leonard’s police report and the citation that Leonard gave
to Norsworthy for improper lane usage in violation of La. R.S.
32:79. Rec. Doc. No. 14-1 at 4-10.
Plaintiff contends that there are genuine issues of material
fact that prevent summary judgment. Rec. Doc. No. 19.

Plaintiff

argues that Norsworthy and Harris give different accounts as to
what caused the accident, which constitutes a disputed material
4

fact.

Rec. Doc. No. 19 at 5.

Further, Plaintiff argues that the

ticket given to Norsworthy is not conclusive proof that Norsworthy
is at fault for the collision.

Rec. Doc. No. 19 at 6.

ACL also asserts that there are genuine issues of material
fact because the two drivers involved in the accident have directly
conflicting accounts as to the cause of the accident. Rec. Doc.
No. 20 at 1. Further, ACL argues that both the police report and
the traffic ticket given to Norsworthy are inadmissible. Rec. Doc.
No. 20 at 13. ACL also claims to have standing to contest Walmart’s
motion. Rec. Doc. No. 20 at 12.
Finally, Walmart contends in its Reply Memorandum that ACL
lacks standing to contest Walmart’s Motion for Summary Judgment.
Rec. Doc. No. 21-2 at 1.

Walmart also reiterates that, because

Norsworthy admitted to improper lane usage, there is no genuine
issue of material fact. Rec. Doc. No. 21-2 at 2.
III. STANDARD OF LAW
“Summary 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.’” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)(citing Fed. R. Civ. P. 56(c)).

A genuine issue

exists if the evidence would allow a reasonable jury to return a
verdict for the nonmovant.

Anderson v. Liberty Lobby, Inc., 477
5

U.S. 242, 248 (1986).

Although the Court must consider the

evidence with all reasonable inferences in the light most favorable
to the nonmoving party, Coleman v. Houston Indep. Sch. Dist., 113
F.3d 528, 533 (5th Cir. 1997), the nonmovant must produce specific
facts to demonstrate that a genuine issue exists for trial.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
The

movant

must

point

to

“portions

of

‘the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any’ which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex, 477
U.S. at 323(citing Fed. R. Civ. P. 56). If the movant carries this
burden, the nonmovant must go beyond the pleadings and use “the
record

as

a

interrogatory

whole”,

which

responses,

establish a genuine issue.

includes

admissions,

affidavits,
or

other

depositions,
evidence,

to

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986).
However, “[W]here the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.”

Lindsey v. Sears Roebuck and Co., 16 F.3d 616,

618 (5th Cir. 1994).

“Only when ‘there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for
6

that party’ is a full trial on the merits warranted.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
Accordingly,

conclusory

rebuttals

of

insufficient to avoid summary judgment.

the

pleadings

are

Travelers Ins. Co. v.

Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
IV.

DISCUSSION
A. ACL HAS STANDING TO OBJECT TO WALMART’S MOTION FOR SUMMARY
JUDGMENT
The Court will first address Walmart’s argument that ACL lacks

standing to object to Walmart’s Motion for Summary Judgment.

The

Eastern District of Louisiana has held that “co-defendants do not
have standing to oppose a defendant’s motion for summary judgment
when the motion is unopposed by the plaintiff.” Dorvin v. 3901
Ridgelake Drive, LLC, No. 11-0069, 2012 WL 1057599, at *4 (E.D.
La. Mar. 27, 2012) (emphasis added) (citing Thurman v. Wood Group
Prod. Services, Inc., No. 09–4142, 2010 WL 5207587, at *1 (E.D.
La.

Dec. 14, 2010)). See also C.F. Bean Corp. v. Clayton Indus.,

Ltd., No. 95–0161, 1996 WL 470644 (E.D. La. Aug. 19, 1996).
Walmart cited these same cases in support of their claim that ACL
lacks standing but, evidently in an attempt to mislead the Court,
left out the emphasized portion above.
In the present case, Walmart’s Motion for Summary Judgment
was opposed by the plaintiff. Rec. Doc. No. 19.

7

Accordingly,

although ACL is a co-defendant and there are no cross-claims, ACL
has standing to oppose Walmart’s motion for summary judgment.
B. GENUINE ISSUES OF MATERIAL FACT EXIST
The Court will next address whether there are genuine issues
of material fact.

Walmart argued that its assertion of no genuine

dispute of any material fact is substantiated by the information
in the police report and the traffic citation given to Norsworthy.
Rec. Doc. No. 14-1 at 17.

Walmart further argued that Norsworthy

made unsubstantiated assertions when stating that (1) he did not
tell Leonards that he crossed the center line, (2) the tractortrailer entered the left lane, and (3) the tractor-trailer was
wobbling across the line.

Rec. Doc. No. 14-1 at 17.

Walmart

claimed that Norsworthy’s assertions, which were made over a year
after the accident, are not enough to satisfy Plaintiff’s burden
of proof against Walmart.

Rec. Doc. No. 14-1 at 17. Walmart also

pointed to the lack of independent witnesses available to verify
Norsworthy’s assertions.

Rec. Doc. No. 14-1 at 17.

In response

to Walmart’s claims that the police report and traffic citation
prove that there is no issue of material fact, ACL challenged the
admissibility of the police report and the traffic citation.

Even

assuming arguendo that the police report and traffic citation are
admissible summary judgment evidence, genuine issues still remain
regarding the material issue of causation. See Perkins v. Entergy
Corp., 2000-C-1372 (La. 3/23/01); 782 So. 2d 606, 611. (holding
8

that Louisiana predominantly uses the duty/risk analysis, which
includes the following

elements: duty, breach, cause-in-fact,

legal cause, and damages).
A material fact is a fact that could “affect the outcome of
the suit under the governing law.”

Anderson, 477 U.S. at 2548.

Further, when determining whether an issue is “genuine” for the
purposes of summary judgment, “courts cannot consider the merits,
make

credibility

evidence.”

determinations,

Barnes

v.

Darby,

evaluate

testimony

98-CA-738726

(La.

or

App.

weigh
5

Cir.

1/26/99); So. 2d 491, 493.
In his deposition, Harris testified that while he was driving
in the middle lane, Norsworthy crossed the white line into the
middle lane and hit the tractor-trailer.
8, and 9.
deposition

Rec. Doc. No. 14-3 at 5,

On the contrary, Norsworthy testified in his own
that,

as

he

was

passing

the

tractor-trailer,

the

tractor-trailer entered the left lane and side-swiped his vehicle.
Rec. Doc. No. 20-1 at 3 and 7.
who

caused

testimony.

the

accident

Norsworthy’s testimony regarding

directly

conflicts

with

Harris’s

To choose one witness’s testimony over the other’s

would require a credibility determination. This court cannot make
credibility determinations for the purposes of summary judgment.
See Barnes, 726 So. 2d at 494 (holding that summary judgment is
improper when it requires weighing the credibility of witnesses
and choosing one side’s version of the accident over the other).
9

However, Walmart cites to Vais Arms, Inc. v. Vais, 383 F.3d
287,

294

(5th

uncorroborated

Cir.

2004),

self-serving

when

alleging

testimony

that

cannot

“[a]

party’s

prevent

summary

judgment, particularly if the overwhelming documentary evidence
supports the opposite scenario.” Rec. Doc. 14-1 at 17.
Vais

is

not

persuasive

here

for

several

reasons.

However,
First,

Norsworthy’s testimony is not self-serving in this case, because
he is not a party to this litigation.

Moreover, the Vais court

specifically found the affidavit in that case unpersuasive because
it only vaguely addressed the subjective issue of intent in a
trademark case.

Vais Arms, 383 F.3d 287 at 294 (emphasis added).

That

does

reasoning

not

apply

here,

meaning

Vais

is

not

instructive.
Further, the Federal Rules of Civil Procedure state that
parties may present deposition testimony to prove that a fact is
genuinely disputed.2

Fed. R. Civ. P. 56(c)(1).

Accordingly,

Norsworthy’s deposition testimony is sufficient to show that the
facts regarding who caused the accident are genuinely disputed.
Finally, Walmart points out that there are no independent
witnesses to verify Norsworthy’s placement of the point of impact

Fed. R. Civ. P. 56(c)(1) states “A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by . . . citing to particular
parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.”
2

10

in the left lane. While this is true, there are also no independent
witnesses to verify Harris’s placement of the point of impact in
the middle lane, as Norsworthy and Harris were the only witnesses
to this accident.

Therefore, Norsworthy’s testimony is sufficient

to raise a genuine issue of fact as to causation.
C. CONCLUSION
For these reasons, IT IS ORDERED that Defendant’s Motion for
Summary Judgment is DENIED.
New Orleans, Louisiana, this 15th day of June, 2016.

____________________________
UNITED STATES DISTRICT JUDGE

11