Bailey v. Johnson et al

Filing 35

RULING: MOTION for Summary Judgment 12 is GRANTED filed by Robert K Johnson, Maiden Reinsurance Co. MOTION for Discovery To Be Briefly Reopened 31 is DENIED filed by Tashanna N. Bailey. Signed by Judge James J. Brady on 02/01/2016. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TASHANNA N. BAILEY
CIVIL ACTION
VERSUS
NO. 14-175-JJB-RLB
ROBERT K. JOHNSON AND
MAIDEN REINSURANCE CO.
RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment (Doc. 12) brought by
defendants, Robert K. Johnson (“Johnson” or “defendant”) and Maiden Reinsurance Co.
(collectively “defendants”). Plaintiff, Tashanna N. Bailey (“Bailey”), filed an opposition (Doc.
14-1) and the defendants filed a reply brief (Doc. 16). A hearing was held on November 17,
2015. Subsequently, the plaintiff filed a supplemental opposition (Doc. 25) and the defendants
filed a supplemental brief in support (Doc. 29). The Court’s jurisdiction exists pursuant to 28
U.S.C. § 1332. For the reasons stated herein, the defendants’ Motion for Summary Judgment
(Doc. 12) is GRANTED.
I.

Background
The summary judgment evidence establishes that on February 10, 2013, Bailey was

driving southbound1 on Louisiana Highway 30 (“LA 30”) towards Interstate 10 in Gonzales,
Louisiana. Bailey collided with the trailer of Johnson’s tractor trailer when Johnson made a left
turn onto LA 30 from a private driveway. Pl.’s Opp’n 1, Doc. 14-1. At the time Johnson turned
onto LA 30, he was operating his tractor trailer with all lights on, including headlights, taillights,
and trailer running lights. Johnson Decl., Doc. 12-7; see Pl.’s Resp. Defs.’ Statement Undisputed

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There appears to be some inconsistency regarding what direction Bailey was traveling on LA 30 prior to the
accident. See Adamson Decl. ¶ 6, Doc. 12-5 (stating that Bailey was traveling westbound); Bailey Dep. 45–46, 49,
Doc. 12-4 (discussing the direction Bailey was traveling). For purposes of this ruling, the Court assumes that Bailey
was traveling southbound on LA 30, the direction noted on the accident report. Traffic Crash Report, Doc. 14-3.

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Facts ¶ 7, Doc. 15 (admitting this fact). According to Bailey, the accident occurred because
Johnson’s “vehicle turned into her lane of travel, causing her to hit the side of his trailer.” Pl.’s
Resp. Defs.’ Statement Undisputed Facts 2, Doc. 15. To support her account of the accident,
Bailey cites to the accident report (Doc. 14-3) and her own declaration (Doc. 14-2) for the
proposition that she was never issued a traffic citation or a citation for Driving While Intoxicated
(“DWI”), as well as the fact that Johnson was given a traffic citation for Failure to Yield.
Following the accident, Bailey was transported to Our Lady of the Lake Hospital for
treatment. Defs.’ Supp. Mem. 9, Doc. 12-2. Approximately five minutes after arriving (around
9:57 p.m.), Bailey’s blood was drawn and her plasma alcohol level at that time was 273 mg%
(.273 gm%). Id. Bailey was diagnosed upon admission with, among other things, “acute alcohol
intoxication.” Bailey Med. R., Doc. 12-8. Dr. William George (“Dr. George”), a pharmacologist
and toxicologist, calculated Bailey’s blood alcohol concentration (“BAC”) at .232 gm%2 at the
time it was drawn. George Decl. ¶ 5, Doc. 12-6. According to Dr. George, at this BAC “sedative
effects would have been significant, reaction time would have been greatly prolonged, and
critical judgment would have been impaired. . . . Ms. Bailey would have been significantly
impaired with respect to sensory and motor functions.” Id. at ¶ 7. Dr. George concluded that “[a]t
this high level, alcohol should be considered to be a significant contributing factor in the accident
. . . .” Id. at ¶ 8.
Kelley Adamson (“Adamson”), a licensed professional engineer and traffic accident
investigator and reconstructionist, provided a declaration explaining the events of the accident
and two opinions as to Bailey’s ability to avoid the accident. See Adamson Decl., Doc. 12-5.
First, Adamson concluded that Bailey would have been able to slow her vehicle and avoid the
Dr. George’s calculations stated that Bailey’s BAC would have been in the range of 223-242 mg% at the time it
was drawn; the mean concentration was calculated at .232 mg% (.232 gm%). George Decl. ¶ 5, Doc. 12-6. For
purposes of this ruling, the mean concentration number will be used.
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accident, without coming to a complete stop, had she been traveling within the posted speed
limit. Id. at ¶ 14. Using the Crash Data Retrieval file from Bailey’s car, Adamson stated that
Bailey was traveling at 71 mph, 2.5 seconds prior to the accident—16 mph over the posted speed
limit of 55 mph. Id. at ¶ 8. Based on his accident reconstruction, Adamson stated that Johnson
began his turn onto the roadway 11.3 seconds prior to the collision and that Bailey would have
been approximately 1,160 feet from the area of the collision at that time. Id. at ¶ 9–10.
Second, Adamson concluded that, “[e]ven at 71 mph, Ms. Bailey could have controlled
her speed to avoid the collision with constant braking. . . . Ms. Bailey had both time and distance
to avoid the collision.” Id. at ¶ 16, 18. According to Adamson, Johnson’s vehicle would have
been clearly visible to Bailey at least 5 seconds before the collision. See id. at ¶ 11. Additionally,
the data indicated that Bailey intermittently applied the brakes in the 3 seconds prior to the
collision, only slowing down to 62 mph prior to the accident. Id. at ¶ 12–14. Specifically, the
data showed that Bailey “was braking at 2.5 second[s] prior to the collision, but then she
removed her foot from the brake, and was not braking at 2.0 seconds or 1.5 seconds prior to the
collision. Ms. Bailey again applied the brakes 1.0 seconds before the collision, but again
removed her foot from the brake .5 second[s] before the collision.” Defs.’ Supp. Mem. 8, Doc.
12-2; see Adamson Decl., Doc. 12-5.
On February 10, 2014, Bailey filed a Petition for Damages in the 23rd Judicial District
Court, Parish of Ascension, State of Louisiana. Doc. 1-1. Defendants then removed the matter to
this Court. Notice of Removal, Doc. 1. The defendants now bring this motion arguing that there is
no genuine dispute as to any material fact regarding the defendants’ immunity from liability
under La. R.S. § 9:2798.4.
II.

Summary Judgment Standard

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Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). The party seeking summary judgment
carries the burden of demonstrating that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the burden at
trial rests on the non-moving party, the moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party’s case. Id. The moving party may do this
by showing that the evidence is insufficient to prove the existence of one or more essential
elements of the non-moving party’s case. Id. A party must support its summary judgment
position by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
Although the Court considers evidence in a light most favorable to the non-moving party,
the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248–49 (1986). Satisfying this burden requires the presentation of
supporting evidence. Letsinger v. Stennette, Civil Action No. 5:12-cv-2444, 2014 WL 4809814,
*2–3 (W.D. La. Sept. 26, 2014) (discussing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)). Conclusory allegations and unsubstantiated assertions will not satisfy the nonmoving party’s burden. Grimes v. Tex. Dep’t of Mental Health, 102 F.3d 137, 139–40 (5th Cir.
1996). If, once the non-moving party has been given the opportunity to raise a genuine fact issue,
no reasonable juror could find for the non-moving party, summary judgment will be granted for
the moving party. Celotex, 477 U.S. at 322–23.
III.

Discussion
In Louisiana, a party may be immune from liability for injuries sustained by persons

driving under the influence of alcoholic beverages or drugs. La. R.S. § 9:2798.4 provides:

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A. Neither the state, a state agency, or a political subdivision of the state nor any person
shall be liable for damages, including those available under Civil Code Article 2315.1 or
2315.2, for injury, death, or loss of the operator of a motor vehicle . . . who:
(1) Was operating a motor vehicle . . . while his blood alcohol concentration of 0.08
percent or more by weight based on grams of alcohol per one hundred cubic
centimeters of blood ***
B. The provisions of this Section shall not apply unless:
(1) The operator is found to be in excess of twenty-five percent negligent as a result of a
blood alcohol concentration in excess of the limits provided in R.S. 14:98(A)(1)(b) . .
. ; and
(2) This negligence was a contributing factor causing the damage.
(emphasis added). “Summary judgment under this statute is appropriate when the evidence
presented by the movant is sufficient to establish that a reasonable factfinder would be compelled
to find that a plaintiff was (1) under the influence of alcohol or drugs while operating a vehicle;
(2) more than 25% negligent due to his intoxication; and (3) his negligence was a contributing
factor in causing the damage.” Chamblee v. Yamaha Co., Civil Action No. 08-1351, 2012 WL
844725, at *5 (W.D. La. Mar. 12, 2012) (citing Lyncker v. Design Eng’g, Inc., 51 So.3d 137,
141–42 (La. Ct. App. 2010); Doyle v. Union Pac. R.R. Co., 442 F. App’x 964 (5th Cir. 2011)).
a. Summary Judgment Under La. R.S. § 9:2798.4
As a threshold matter, the plaintiff contends that summary judgment is not warranted in
this case because the allocation of fault is a determination left to the fact finder. Although the
plaintiff is correct that comparative fault is generally determined by a fact finder, it does not
preclude a court from granting summary judgment when there is no genuine issue of material
fact. Lyncker, 51 So.3d at 142 (“The legislative history of § 9:2798.4 does not require that a full
trial on the merits take place when summary judgment is sufficient to determine that the
[defendant] is not liable in any way for [the accident].”); see Doyle, 442 F. App’x 964 (affirming
the district court’s grant of summary judgment under La. R.S. § 9:2798.4); Chamblee, 2012 WL
844725 (granting defendant’s motion for summary judgment regarding immunity under La. R.S.

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§ 9:2798.4). Accordingly, summary judgment may be granted in this case if there are no genuine
issues of material fact.
b. Immunity from Liability
Generally, toxicology reports paired with declarations from an accident reconstructionist
or engineer concerning the plaintiff’s negligent or reckless driving behavior prior to the accident
are sufficient evidence to support summary judgment under Louisiana’s immunity from liability
statute. For example, in Lyncker the plaintiff filed suit against the Department of Transportation
and Development (“DOTD”) for injuries sustained when plaintiff collided with a floodgate
erected by DOTD on Highway 90. 51 So.3d 137. The district court granted summary judgment
on DOTD’s claim for immunity under La. R.S. § 9:2798.4, holding that “any reasonable fact
finder would be compelled to find plaintiff excess of twenty-five percent negligent.” Id. at 140.
The evidence presented at summary judgment included an undisputed toxicology report showing
that the plaintiff’s blood alcohol level at the time of the accident was .21% and an affidavit from
an accident reconstructionist explaining that the plaintiff was driving in excess of the speed limit,
should have seen the flashing lights and steel barricade from more than 465 feet away, and struck
the barricade without slowing or applying the brakes. Id. at 139, 142. The accident
reconstructionist concluded that “if [plaintiff] was not under the influence of alcohol and
traveling at the posted speed limit, he would have seen the amber lights and brought his vehicle
to a safe stop. His failure to do so is directly attributed to his .21% blood alcohol
concentration[.]” Id. at 142. The Louisiana Fourth Circuit Court of Appeals agreed with the
district court’s finding, and further stated that the plaintiff’s “grossly negligent operation of a
motor vehicle while severely intoxicated, as evidenced by his unrefuted .21% blood alcohol

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concentration and the well-documented erratic and reckless driving actions, is the sole and
proximate cause-in-fact of his fatal car accident . . . .” Id. at 141.
Similarly, in Chamblee the court granted summary judgment on the defendant’s claim for
immunity. 2012 WL 844725. The evidence presented for summary judgment included a
toxicology report, hospital records showing the plaintiff’s BAC at .136%, a witness’s testimony
that the plaintiff was driving in a reckless manner, an accident reconstructionist’s declaration that
the plaintiff was intentionally driving in an aggressive manner, and an affidavit explaining the
negative effects of alcohol at the plaintiff’s BAC and stating that the plaintiff’s BAC was a major
causative factor of the accident. Id. at *2–3. The Court held that the evidence presented “and the
toxicology information are sufficient to establish [plaintiff’s] negligence as greater than 25%,
and that his negligence was a contributing factor to the accident.” Id. at *5.
In this case, the defendants have presented sufficient summary judgment evidence
whereby a reasonable jury would be compelled to find that: (1) the plaintiff was under the
influence of alcohol (and above the legal limit) while operating a vehicle; (2) the plaintiff was
more than 25% negligent due to her intoxication; and (3) the plaintiff’s negligence was a
contributing factor in causing damages. Similar to the defendants in Lyncker and Chamblee, the
defendants in this action have submitted a toxicology report and declarations demonstrating that
the plaintiff’s BAC was above the legal limit, the plaintiff was driving in a negligent manner
prior to the accident, and the plaintiff’s negligence was a contributing factor to the accident.
First, it is undisputed3 that the plaintiff’s BAC was above the legal limit4 at the time of
the accident, at approximately .232%. The defendants submitted a declaration of Dr. George, a

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The plaintiff contends that her BAC at the time the blood was drawn does not represent her BAC at the time of the
accident. Pl.’s Resp. Defs.’ Statement Undisputed Facts ¶ 14, Doc. 15. Plaintiff’s blood was drawn at the hospital
around 9:57 pm, approximately thirty minutes after the accident. See Bailey Dep. 53:4–14, Doc. 12-4 (stating that
emergency services were first called at 9:30 pm); Defs.’ Supp. Mem. 9, Doc. 12-2 (stating that the hospital drew

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pharmacologist and toxicologist, who calculated the plaintiff’s BAC at nearly three times the
legal limit and stated that the plaintiff was significantly intoxicated at the time of the accident.
The defendants also submitted the plaintiff’s hospital record that stated that the plaintiff was
diagnosed upon admittance with “acute alcohol intoxication.” In response, the plaintiff submitted
her own declaration stating that she was not charged with Driving While Intoxicated (“DWI”).
Because a DWI charge is not a requirement for immunity under La. R.S. § 9:2798.4, this
argument is unpersuasive and the plaintiff has failed to demonstrate a genuine issue regarding the
plaintiff’s intoxication at the time of the accident. Therefore, no reasonable jury could find for
the plaintiff on the first element of immunity.
Second, based on the evidence presented, a reasonable jury would be compelled to find
that the plaintiff was more than 25% contributorily negligent for the accident. The defendants
submitted a declaration from Adamson, an accident reconstructionist, who concluded that the
plaintiff had the time and distance to avoid the accident. Data retrieved from the plaintiff’s car
showed that the plaintiff was driving 16 mph in excess of the speed limit prior to the accident.
The plaintiff erratically applied her brakes in the 3 seconds prior to the accident, but did not
apply her brakes at the time of the collision. Further, the evidence showed that the plaintiff only
slowed to 62 mph—still 7 mph above the speed limit—at the time of the collision. Adamson also
concluded that the plaintiff should have seen the defendant Johnson’s tractor trailer in time to
avoid the accident because the defendant’s lights were on and functioning and at the time the
defendant began to make his left turn the plaintiff was 1,160 feet away from the point of

Bailey’s blood around 9:57 pm). The plaintiff provides no evidence of what her BAC was at the time of the accident
or how it could have possibly been under .08% only thirty minutes prior to the hospital reading of .232%. Thus,
there is no genuine issue of material fact that the plaintiff’s BAC was above the legal limit at the time of the
accident.
4
La. R.S. § 14:98(A)(b) makes it a crime to operate a vehicle when the operator’s BAC is “0.08% or more by
weight based on grams of alcohol per one hundred cubic centimeters of blood.”

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collision. Adamson concluded that, even traveling at 71 mph, the plaintiff could have avoided
the collision.
In response, the plaintiff makes a conclusory statement that she could not have avoided
the accident because the defendant pulled out into her lane. The only evidence presented to
support this contention is the accident report, which plaintiff asserts establishes that the
defendant caused the accident because he was cited for Failure to Yield.5 Although factual
findings documented in an accident report are admissible under the public records hearsay
exception of Federal Rule of Evidence 803(8), an officer’s opinions as to the cause of the
accident are not.6 Letsinger v. Stennette, No. 5:12-CV-2444, 2014 WL 4809814, *4 (W.D. La.
Sept. 26, 2015); Reliastar Life Ins. Co. v. Thompson, No. CIV. M-07-140, 2008 WL 4327259, *4
(S.D. Tex. Sept. 16, 2008). Specifically, the hearsay exception only applies “in civil cases to an
officer’s first-hand observations that result from their investigation and experience.” Letsinger,
2014 WL 4809814, at *4 (emphasis added) (citations omitted). In this case, the accident report’s
conclusion that the defendant’s failure to yield was the cause of the accident is inadmissible
hearsay. The report’s statement that “[t]he driver of vehicle 1 [the defendant] did not see vehicle
approaching southbound on LA 30 and turned directly into its path”7 is also inadmissible hearsay
because such statement did not result from the officer’s “first-hand observations,” as required by

This charge has since been dismissed in its entirety. Minute Entry 23rd Judicial District Court, Doc. 16-1 (“On the
charge of FAILURE TO YIELD: Upon motion of the state Nolle Prosequi entered.”).
6
The plaintiff’s reliance on Irion v. State ex rel. Dep’t Transp. & Dev., 760 So.2d 1220 (La. App. 1 Cir. 2000), for
the proposition that accident reports are admissible evidence is misplaced. Irion deals with the admissibility of prior
accident reports concerning the same intersection at issue in the case and, furthermore, only holds that such reports
are not privileged under a federal immunity statute. See Irion, 760 So.2d 1220.
7
Traffic Crash Report 6, Doc. 14-3. According to the plaintiff, “Mr. Johnson[] state[d] to the Louisiana State
Trooper who arrived at the scene that he did not see Ms. Bailey’s approaching vehicle.” Pl.’s Suppl. Opp’n 5, Doc.
25. For that reason, the plaintiff argues that the present sense impression exception to hearsay applies. Id. at 8 (citing
Fed. R. Evid. 803(1)). The plaintiff provides no citation to the record, and the Court therefore assumes that the
plaintiff is referring to the above-quoted statement from the accident report. Federal Rule of Evidence 803(1) states
that the following is not excluded by the rule against hearsay: “A statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.” Here, the above-quoted statement is too
attenuated from the accident to constitute the defendant’s present sense impression.
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the public records exception.

Because the plaintiff has not presented competent summary

judgment evidence to rebut the defendants’ evidence, the plaintiff has failed to demonstrate a
genuine issue that she was less than 25% contributorily negligent for the accident. Therefore, no
reasonable jury could find for the plaintiff on the second element of immunity.
Finally, there is no genuine dispute that the plaintiff’s negligence was a contributing
factor in causing damages. Dr. George’s declaration explained the negative effects alcohol has
on a person at various levels of intoxication. At .2%—a BAC less than the plaintiff’s—
“dizziness, mental confusion, sedation, impaired balance and visual disturbances are
prominent[.]” George Decl. ¶ 6, Doc. 12-6. Dr. George concluded that the plaintiff was
significantly intoxicated at the time of the accident and that alcohol should be considered a
significant contributing factor in the accident. The plaintiff provides no evidence to rebut the
effects of alcohol intoxication and no further evidence, apart from what was discussed above,
demonstrating that her negligence was not a contributing factor in the accident. Because the
plaintiff provides insufficient summary judgment evidence, she has failed to demonstrate a
genuine issue that her negligence was not a contributing factor in her damages. Therefore, no
reasonable jury could find for the plaintiff on the third element of immunity.
The plaintiff has failed to put forth sufficient evidence to meet her burden at summary
judgment.8 As previously discussed, the accident report submitted by the plaintiff is inadmissible
to prove that the defendant caused the accident. For the reasons stated above, the plaintiff’s own
declaration—stating that she was not cited with a DWI and that the defendant was cited with
8

On November 17, 2015, the Court held a hearing on the defendants’ motion. During this hearing, the Court made it
clear to plaintiff’s counsel that the evidence submitted in his opposition (Doc. 14-1) was insufficient to defeat the
defendants’ motion for summary judgment. The Court permitted the plaintiff to submit a supplemental opposition
with any evidence the plaintiff had, but was not included in the original brief. See Doc. 18. The Court has reviewed
the plaintiff’s supplemental opposition and finds that it remains insufficient to overcome the defendants’ motion for
summary judgment. The plaintiff submitted no new evidence and instead relied entirely on attorney arguments and
speculation. These arguments and speculative statements concerning the defendants’ expert evidence does not create
a genuine issue of material fact regarding any of the three elements of immunity under La. R.S. 9:2798.4.

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Failure to Yield—does not adequately rebut any element of the defendants’ claim for immunity.
Moreover, the plaintiff previously testified that she had no memory of the accident. See Bailey
Dep. 49, 51, 53, Doc. 12-4 (stating that the last thing she remembers before waking up in the
hospital was leaving her friend’s house and driving). The plaintiff’s declaration does not attempt
to explain how she now has personal knowledge of the events of the accident or that she has any
independent knowledge, apart from the inadmissible accident report, concerning the defendant’s
fault. In the Fifth Circuit, “a plaintiff may not manufacture a genuine issue of material fact by
submitting an affidavit that impeaches prior testimony without explanation.” Doe ex rel. Doe v.
Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).9 Even when viewed in the light most
favorable to the non-moving party, the plaintiff, there is no genuine dispute as to any material
fact regarding the defendants’ immunity under La. R.S. § 9:2798.4, and the defendants are
therefore entitled to a judgment as a matter of law.
IV.

Conclusion
For the reasons stated herein, the defendants’ Motion for Summary Judgment (Doc. 12) is

GRANTED. The Court observes that the plaintiff recently filed a Motion to Reopen Discovery
(Doc. 31), which was opposed by the defendants (Doc. 33). After reviewing the motion, the
Court agrees with the defendants and therefore the plaintiff’s Motion to Reopen Discovery (Doc.
33) is DENIED.
Signed in Baton Rouge, Louisiana, on February 1, 2016.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
Furthermore, “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of fact.” Doe, 220 F.3d at 386 (quoting Perma Research &
Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).
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