Dixon v. Greyhound Lines, Inc. et al

Filing 46

RULING AND ORDER granting in part and denying in part 38 Motion for Summary Judgment. Defendants Motion for Summary Judgment as to Plaintiffs claims that Defendants were negligent by violating Greyhounds corporate policies and by failing to evacuate the bus is DENIED; Plaintiffs remaining claims of negligence against all Defendants are DISMISSED; Plaintiffs claims against GLI Corporate Risk Solutions are hereby DISMISSED; and Defendants' request for costs and attorney fees' is hereby DENIED. Signed by Judge John W. deGravelles on 09/16/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 3:13-CV-00179

EDWARD D. DIXON

JUDGE JOHN W. deGRAVELLES
VERSUS

MAGISTRATE JUDGE RICHARD L.
BOURGEOIS

GREYHOUND LINES, INC., ET AL.

JURY TRIAL

RULING AND ORDER
This matter is before the Court on a Motion for Summary Judgment [R. Doc. 38] filed by
defendants, Greyhound Lines, Inc. (“Greyhound”); James Hester; and GLI Corporate Risk
Solutions (“GLI”) (collectively, “Defendants”). Plaintiff Edward D. Dixon opposes the Motion.
Oral argument is not necessary. The Court has jurisdiction based on 28 U.S.C. § 1332.
Considering the briefs and the law, the Motion for Summary Judgment is GRANTED IN
PART and DENIED IN PART. The Court declines to dismiss Plaintiff’s claims that Defendants
were negligent by violating Greyhound’s corporate policies and by failing to evacuate the bus.
Plaintiff’s remaining claims of negligence against all Defendants are dismissed.

Further,

Plaintiff’s claims against GLI are dismissed, but the Court will not award costs and attorneys’
fees for this dismissal.
I.

Background
This is a personally injury suit. Some of the facts are not in dispute. On January 3, 2012,

Defendant Hester was driving a Greyhound Bus through Baton Rouge, Louisiana. (Deposition
of James Hester, p. 17).

Plaintiff Dixon was a commercial passenger returning home to

Lafayette from a trip to Virginia. (Deposition of Edward Dixon, p. 108).

The bus sustained a blown tire in Baton Rouge on I-10 between the Acadian Thruway
exit and the College Drive exit. (Hester Depo., p. 17). Hester exited the traffic lane and merged
onto the shoulder. Hester then contacted maintenance and informed them that he had a blowout
and where he was located. Greyhound then contacted Southern Tire Mart, LLC (“Southern
Tire”) to change the tire. Defendants claim that Hester did not assist, supervise, have any
involvement or exercise any control over the changing of the tire. (Hester Depo, p. 18-19).
Plaintiff Dixon claims that Hester was driving over the speed limit and “a little out of
hand.”

(Dixon Depo., p. 110).

Plaintiff claims that the defendant Hester drove over the

“bumps” on the road (i.e., the rumble strip) several times when Dixon heard the tire blowout.
The Plaintiff claims that the bus filled with burn rubber tire smoke and that Hester drove about
two miles like that.
Hester testified that he told the passengers that he had a blowout. (Hester Depo., p. 19).
Plaintiff Dixon testified that passengers were not allowed to evacuate the bus despite the smoke
and foul odor and that Hester said, if the passengers left the bus, they would not be allowed to
return. (Dixon Depo., p. 113).
Plaintiff went to the bathroom, and on his way back he felt the bus jacking up. (Dixon
Depo., p. 113). As he was making his way back to his seat, the jack allegedly went out. (Id., p.
116). Plaintiff Dixon was knocked to the floor and allegedly sustained injuries. Defendants
emphasize that, prior to Southern Tire jacking the car up, Plaintiff had no injuries. (Dixon
Depo., p. 135-36, 138).
Plaintiff sued Greyhound, Hester, and GLI. Defendants contend – and Plaintiff does not
dispute – that GLI is merely a Third-Party Administrator of claims brought against Greyhound.

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GLI did not own or operate the bus involved in the accident. (Affidavit of James Dickson). GLI
is not an insurance company and issued no policies relevant to this case. (Id.)
II.

Discussion
A. Summary Judgment Standard
Summary judgment is appropriate where there is no genuine disputed issue as to any

material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986). A party moving for summary judgment must inform the Court of the basis for the motion
and identify those portions of the pleadings, depositions, answers to interrogatories and
admissions on file, together with affidavits, if any, that show that there is no such genuine issue
of material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. If the moving party carries its
burden of proof under Rule 56, the opposing party must direct the Court's attention to specific
evidence in the record which demonstrates that the non-moving party can satisfy a reasonable
jury that it is entitled to a verdict in its favor. Anderson, 477 U.S. at 248. This burden is not
satisfied by some metaphysical doubt as to alleged material facts, by unsworn and
unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). Rather, Rule 56 mandates that summary
judgment be entered against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case and on which that party will bear the burden
of proof at trial. Celotex Corp., 477 U.S. at 323. Summary judgment is appropriate in any case
where the evidence is so weak or tenuous on essential facts that the evidence could not support a
judgment in favor of the non-moving party. Little, 37 F.3d at 1075. In resolving a motion for
summary judgment, the Court must review the facts and inferences in the light most favorable to

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the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the
evidence, or resolve factual disputes. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,
1263 (5th Cir.1991).
B. The Common Carrier Standard
“The law of negligence as it relates to common carriers is fairly well-settled in
Louisiana[.] … Louisiana uses a duty/risk analysis, which requires that four elements be proved:
(1) cause-in-fact, (2) existence of a legal duty, (3) breach of that duty, and (4) that ‘the risk, and
harm caused, [were] within the scope of protection afforded by the duty breached.’” Felton v.
Greyhound Lines, Inc., 324 F.3d 771 (5th Cir. 2003) (quoting Roberts v. Benoit, 605 So.2d 1032,
1041 (La. 1991)).
In contrast to the basic duty of reasonable care ordinarily required, however, the duty
imposed on common carriers toward passengers in Louisiana is “stringent”. Felton, 324 F.3d at
772 (citations omitted). Because of this heightened duty to provide safe passage, the Louisiana
Supreme Court has created a significant procedural advantage for plaintiffs by shifting the
burden of proof to the common carrier defendant once the passenger plaintiff shows an injury.
Id. In Galland v. New Orleans Public Service, Inc., the court ruled that “the mere showing of
injury to a fare-paying passenger on a public conveyance and his failure to reach his destination
safely establishes a prima facie case of negligence and imposes the burden on the carrier of
convincing by overcoming the prima facie case.” Id. (quoting Galland v. New Orleans Pub.
Serv. Inc., 377 So.2d 84, 85 (La. 1979)). This means, as Louisiana's highest court went on to
explain, that the common carrier defendant has the burden to show either “that the incident had
not occurred, or that the defendant had exercised reasonable care in discharging the plaintiff or
that any negligence on its part was not the legal cause of the plaintiff's mishap.” Id. (quoting

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Galland v. New Orleans Pub. Serv. Inc., 377 So.2d 84, 85-86 (La. 1979)). It is also well-settled,
however, that a common carrier is not the insurer of its passengers' safety and that the law does
not make the common carrier absolutely liable for its passengers’ accidental injuries.

Id.

(citations omitted).
Galland instructs that the duty of the common carrier is so high that any showing of
injury that occurs while the passenger is entering, traveling on, or getting off a bus creates a
presumptive case of negligence. Id. Galland indicates further that the defendant must offer
evidence to rebut the presumption that its behavior breached this duty of care. Id. The onus on
the defendant is not so much to disprove the duty, but to show that, as a common carrier, it acted
with sufficient care in spite of the occurrence of the injury. Id. Thus, whether a particular set of
facts violates this heightened duty or remains outside the ambit of common carrier liability
altogether depends on the discrete facts and circumstances of the case and the extent of the
exculpatory evidence produced by the defendant. Id.
Felton also recognizes that, “although by itself neither the presence nor absence of a
safety manual provision can establish or preclude the existence of a legal duty, Louisiana law
suggests that the presence of a safety provision can confirm a duty.” Id. at 777. The Felton
court went on to find that Greyhound’s rules confirmed a finding of a duty in the case because
the risk from which an injury occurred was aligned with the risk that the safety manual was
aimed at mitigating. Id. at 777 n. 34.
C.

Analysis

Here, Plaintiff and Defendants agree that the Plaintiff was injured while travelling. Thus,
the burden shifts to the Defendants to overcome the prima facie showing of negligence and to
prove that any negligence on its part was not the legal cause of the plaintiff’s mishap.

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Defendants attempt to do so by stating that Hester did not assist, supervise, have any
involvement or exercise any control over the changing of the tire. (Hester Depo, p. 18-19). This
fact absolves Defendants of any liability for the changing of the tire.
Plaintiff, on the other hand, alleges several other distinct instances of negligence. These
include (1) reckless driving that caused the blowout; (2) violating Greyhound’s Emergency
procedures by not evacuating the bus and by parking on the Interstate; and (3) “spoilating”
evidence by not providing injury forms and failing to complete post-trip accident reporting
forms. Additionally, regardless of the contents of the Greyhound policies, Defendants were
potentially negligent in failing to evacuate the bus given the alleged smoke, smell, and flat tire.
Each of these will be addressed in turn.
(1) As a matter of law, reckless Driving was not the legal cause of Plaintiff’s
injuries.
Without offering any actual evidence, Plaintiffs argue that Defendants’ reckless driving and
speeding caused the blowout. Defendants contend that the reckless driving was not a legal cause
of Plaintiff’s injuries because Plaintiff testified that he was “okay” after the bus came to a stop.
(Dixon Depo, p. 138). Defendants essentially contend that jacking the car was the sole legal
cause of the injuries.
The real issue here is whether the jacking was an intervening cause.

The Louisiana

Supreme Court recently explained:
An intervening cause is one which comes into play after the defendant's negligent
conduct has ceased, but before the plaintiff suffers injury. In situations in which
there is an intervening force that comes into play to produce the plaintiff's injury
(or more than one cause of an accident), it has generally been held that the initial
tortfeasor will not be relieved of the consequences of his or her negligence unless
the intervening cause superceded the original negligence and alone produced the
injury. If the original tortfeasor could or should have reasonably foreseen that the
accident might occur, he or she will be liable notwithstanding the intervening

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cause. In sum, foreseeable intervening forces are within the scope of the original
risk, and hence of the original tortfeasor's negligence.
Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So.2d 798, 808 (internal citations omitted).
Thus, the issue is whether it was reasonably foreseeable when Hester was driving recklessly and
over the rumbling strip that he would get a flat tire, that the passengers would remain on the
vehicle while the tire was being changed, that the bus would fall off the jack, and that the
Plaintiff would fall and injure himself.
The Court concludes that it was not reasonably foreseeable – and that a reasonable jury
could not conclude - that the bus would get a flat tire and that the bus would fall off the jack,
causing Plaintiff injuries. The Court bases its decision in part on the fact that the Plaintiff has
submitted no evidence to show that the alleged speeding and reckless driving in fact caused the
flat tire.
This decision is further based on other legal cause principles. The Louisiana Supreme
Court has also explained:
Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of
the duty inquiry is ultimately a question of policy as to whether the particular risk
falls within the scope of the duty.” “The scope of protection inquiry asks ‘whether
the enunciated rule or principle of law extends to or is intended to protect this
plaintiff from this type of harm arising in this manner.’ ” Although we have
unequivocally stated “the determination of legal cause involves a purely legal
question,”, this legal determination depends on factual determinations of
foreseeability and ease of association.
Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1088 (internal citations
omitted). The Supreme Court has similarly explained:
Just because a risk may foreseeably arise by reason of conduct, it is not
necessarily within the scope of the duty owed because of that conduct. Neither
are all risks excluded from the scope of duty simply because they are
unforeseeable. The ease of association of the injury with the rule relied upon,
however, is always a proper inquiry.

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Hill v. Lundin & Associates, Inc., 260 La. 542, 549, 256 So.2d 620, 622 (La. 1972).
Here, the type of harm caused (i.e., falling down on the bus when the bus fell off the
jack) was not one within the scope of the duty of driving safely.

There is little ease of

association between these two facts. Further, the duty to drive carefully was not intended to
protect bus passengers from falling down on the bus because third persons negligently changed
the tire.
In sum, Southern Tire’s alleged negligence was the superceding cause here.
Accordingly, Defendants’ Motion for Summary Judgment on this issue is granted.
(2) Plaintiff has an opportunity to submit further evidence concerning the
Greyhound policies.
Plaintiff contends that the Defendants violated several of Greyhound’s policies and
procedures by, among other things, not evacuating the bus. Citing to new evidence, Defendants
respond by stating that the policies are not applicable to flat tires and that there is no Greyhound
mandate or corporate policy that a driver evacuate his/her bus after sustaining a flat tire or blow
out. (Affidavit of Alan Smith).
As explained above, under Felton, a policy or manual can be the basis of a legal duty,
particularly if the risk from which an injury occurred was aligned with the risk that the safety
manual was aimed at mitigating. Thus, if Greyhound’s policies or training manual addresses
what to do here – i.e., when there is a flat tire on the interstate and (construing the facts in the
light most favorable to plaintiff) the cabin is filled with smoke – then there are questions of fact
that preclude summary judgment.
An additional evidentiary problem concerning this issue also prevents the Court from
being able to rule at this time. Specifically, Greyhound has attached new evidence to its Reply

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Memorandum in the form of the Affidavit of Alan F. Smith, who purports to explain the
meaning of the Greyhound Policies submitted by the Plaintiff.
Courts in the Fifth Circuit have found that a court need not consider new arguments
raised for the first time in a summary judgment reply brief. See Doe ex rel. Doe v. Beaumont
Independent School District, 173 F.3d 274, 299 n. 13 (5th Cir.1999)). However, a court may
consider new evidence introduced in a reply brief if the non-movant is given an adequate
opportunity to respond. See Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir.2004).
In sum, the Court finds that there are questions of fact as to the meaning and intent of the
Greyhound policies and as to whether the Defendants were negligent in violating said policies.
Plaintiff should be granted additional time for discovery on these issues. Accordingly, summary
judgment on these issues is hereby denied.1
(3) As a matter of law, “spoilating” and the other forms were not the legal
cause of Plaintiff’s injuries.
Defendants have successfully shown that the alleged spoliation was not a legal cause of
plaintiff’s injuries. Hester’s failure to fill out the accident report/C-4 form is not relevant to the
Plaintiff’s injuries, nor is Hester’s failure to fill out the M-7 report. Finally, Greyhound’s
alleged failure to investigate the incident has no bearing on the causation of Plaintiff’s injuries.
1

Plaintiff also failed to authenticate by affidavit or declaration the Greyhound policies at issue, and Greyhound objected
to the use of those policies. [R.Doc. 44, p. 3 n 12]. Ordinarily, such a failure would be cause to strike the documents.
See 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2722 (3d ed. 2014); Pantanelli v.
State Farm Ins. Co., No. 06-11432, 2008 WL 2067012, at *2 (E.D. La. 2008); Select Portfolio Servicing, Inc. v. Allstate
Ins. Co., Inc., No. 06-10564, 2007 WL 4301716, at *2-*3 (E.D.La. 2007). Alternatively, the Court could grant Plaintiff
an opportunity to supplement the record. Fed.R.Civ.P. 56(e).
But Defendants appear to have authenticated these documents through the Affidavit of Alan Smith. [R.Doc. 44-2] (“I
am familiar with the Driver Training Phase I Student Guide and Driver Training Phase II Student Guide attached as
Exhibits 4 and 5 respectively, to Edward Dixon’s Opposition … (R. Doc. No. 42)…”). Further, Defendants certainly
treat these documents as though they were genuine and were what they purport to be. Thus, Plaintiff need not
authenticate these documents, though he may conduct additional discovery to ascertain the documents’ meaning.

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In short, Plaintiff’s injuries would have happened, regardless of Defendant’s pre-trip or postaccident conduct in these regards. Accordingly, the Court grants summary judgment as to these
claims.
(4) Regardless of the policies, questions of fact exist concerning whether the
Defendants were negligent in failing to evacuate the bus.
Regardless of the contents of Greyhound’s policies, a reasonable trier of fact could
conclude that the Defendants were negligent in failing to evacuate the bus given the flat tire and
the alleged smoke. There is clearly an ease of association between the failure to evacuate and
Plaintiff’s injuries. Further, this issue of intervening and superceding cause is much closer than
the one discussed above, and “issues of proximate causation and superseding cause [require]
application of law to fact, which is left to the fact finder, subject to limited review.” Lafrance v.
C.S.F. & T., Inc., No. 98-2848, 1999 WL 1009825, at *2 (E.D. La. 1999)(citing Exxon Co.,
U.S.A. v. Sofec, Inc., 517 U.S. 830, 840, 116 S.Ct. 1813, 1819 (1996)). Accordingly, given the
questions of fact that exist, the Court will deny summary judgment on this issue as well.
D. GLI is dismissed from this case, but Defendants are denied costs and attorneys’
fees.
Defendants present evidence that GLI is merely a Third-Party Administrator of claims
brought against Greyhound, that GLI is not an insurer, and that GLI has issued no insurance
policy in this case. (Affidavit of James Dickson). Plaintiff’s opposition does not address and
appears to concede this argument. Accordingly, GLI is hereby dismissed.
Defendants also seek costs and attorneys’ fees for Plaintiff’s frivolous claims against
GLI. Defendants submit correspondence between the parties demonstrating that Plaintiff knew
GLI was not a proper defendant and simply failed to dismiss them.

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However, the Defendants failed to follow the procedures under Fed.R.Civ.P. 11(c)(2) for
Motions for Sanctions.

Specifically, the Defendants failed to file separately a motion for

sanctions, failed to serve the motion under Rule 5, and failed to provide the 21-day “safe
harbor.” Accordingly, Defendants request for costs and attorneys’ fees are denied.
III.Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART;
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment as to
Plaintiff’s claims that Defendants were negligent by violating Greyhound’s corporate policies
and by failing to evacuate the bus is DENIED;
IT IS FURTHER ORDERED that Plaintiff’s remaining claims of negligence against all
Defendants are DISMISSED;
IT IS FURTHER ORDERED that Plaintiff’s claims against GLI Corporate Risk
Solutions are hereby DISMISSED; and
IT IS FURTHER ORDERED that Defendants’ request for costs and attorney fees’ is
hereby DENIED.
Signed in Baton Rouge, Louisiana, on September 16, 2014.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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