Zeko v. The Estate of Vernon Scales et al

Filing 30

RULING denying 18 Motion for Summary Judgment. Signed by Judge James J. Brady on 9/28/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RANKA ZEKO, INDIVIDUALLY AND
ON BEHALF OF HER MINOR
CHILDREN, KRISTA ZEKO, IVANA
ZEKO, AND IVAN ZEKO
CIVIL ACTION
VERSUS
NO. 14-528-JJB-RLB
THE ESTATE OF VERNON SCALES,
ET AL
RULING ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion (Doc. 18) for Summary Judgment brought by
Plaintiff, Ranka Zeko, individually and on behalf of her minor children, Krista Zeko, Ivana Zeko,
and Ivan Zeko. Defendants, The Estate of Vernon Scales, Design Transportation Services, Inc.,
and Lexington Insurance Company, have filed an opposition (Doc. 24), and Plaintiff has filed a
reply brief (Doc. 25). Oral argument is unnecessary. The Court’s jurisdiction exists pursuant to
28 U.S.C. § 1332. For the reasons stated herein, the Plaintiff’s Motion (Doc. 18) for Summary
Judgment is DENIED.
I.

Background
The summary judgment evidence establishes that on July 9, 2014, Vernon Scales

(“Scales”) and Miroslav Zeko (“Zeko”) were involved in a head-on collision on I-10 in Acadia
Parish, Louisiana. Scales, driving an 18-wheeler for Design Transportation Services, was
traveling westbound on I-10 when he left his lane, crossed the median, and traveled into the
eastbound lane into the path of the Volvo Tractor Trailer driven by Zeko. The accident killed
both parties. The cause of the accident however remains in dispute.

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The defendants rely on depositions of Hayley Line (“Line”), an eyewitness who was
driving behind Scales at the time he left the roadway, and Louisiana State Trooper Joseph Miller
(“Trooper Miller”), the investigating officer at the scene. According to Line’s deposition, Scales
was traveling with “no problems” in the left westbound lane. Line Depo, Doc. 24-1, 15. Line
claims that Scales’ truck slowly began to drift to the left, enter the median, and cross into the
eastbound travel lanes. Id. Line also testified that the truck continued with no brake application
or evasive maneuver directly into the path of Zeko. Id. at 15-16. In his deposition, Trooper
Miller also confirmed that Scales’ truck drifted through the median and showed no evidence of
evasive maneuvers or attempts to avoid the collision. Miller Depo, Doc. 24-3, 23-24. Trooper
Miller also stated that there were no skid marks or tire marks on the roadway. Id. at 28-29.
In turn, plaintiff relies on the deposition of Dr. Terry Welke. Dr. Welke performed an
autopsy on Scales’ body and according to his testimony determined that there was no evidence to
suggest that Scales suffered a loss of consciousness prior to the accident. Welke Depo, Doc. 186, 39. However, Dr. Welke also testified that there was no evidence to suggest that Scales was
conscious before the collision, and therefore could not state one way or another whether Scales
was conscious or unconscious immediately prior to the collision. Welke Depo, Doc. 24-2, 49-50.
Plaintiff filed suit for wrongful death and survival damages in state court. The
defendants removed this action to the Middle District of Louisiana based on diversity
jurisdiction. After removal, defendants answered and asserted the affirmative defense that Scales
experienced a “sudden unforeseeable loss of consciousness” and therefore under Louisiana law,
he was not negligent. Plaintiff now brings the present motion arguing that she is entitled to
summary judgment because defendants will not be able to prove its sudden loss of consciousness
defense by clear and convincing evidence.

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II.

Summary Judgment Standard
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact.” Fed. Rule 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.
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. Rule Civ. P. 56(c)(1). At the summary judgment stage the
judge's function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
249, 248-49 (1986). 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
The party asserting the affirmative defense of “sudden loss of consciousness” to a

negligence claim must prove the facts giving rise to the defense by clear and convincing
evidence. Brannon v. Shelter Mut. Ins. Co., 507 So. 2d 194, 197 (La. 1987). “ ‘Clear and
convincing evidence’ is an intermediate standard of persuasion[;] it requires more than a
preponderance of the evidence, but less than proof beyond a reasonable doubt.” Id. However,

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for purpose of summary judgment, the court may not weigh the evidence but instead must
determine if there are genuine issues of material fact pertaining to the parties claim or defense.1
In Meisner v. Allstate Insurance Company, No. 10-1837, 2012 WL 1231014 (E.D. La.
Apr. 12, 2012) (unpublished), the court held that there was a genuine issue of material fact as to
whether defendant suddenly and unforeseeably lost consciousness prior to an accident, and
therefore the court denied plaintiff’s motion for summary judgment. The plaintiff in Meisner
relied on the fact that the driver (“Cialona”) was the only witness, did not remember what
happened, and has since died, and thus argued that defendants could not overcome Cialona’s
presumption of fault. Id. at 2. Defendants’ however, relied on the police report and medical
records that implied Cialona did suffer a suddenly and unforeseeable loss of consciousness. Id.
at 3. The police report showed that after the driver hit the plaintiff’s car she “continued to
drive”, and that “due to a medical emergency, possibly a stroke, the driver did not remember that
she was in an accident.” Id. at 1. Also, the driver’s medical records indicate that she was
admitted to a hospital the same day because of a stroke. Id. The police report and Cialona’s
medical records taken together were sufficient to create a genuine issue of material fact as to
whether the driver suffered a loss of consciousness due to a stroke. Id. at 3. Accordingly, the
court held that the defendants had met the burden necessary to defeat a motion for summary
judgment.2

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Plaintiff cites to three cases where the court held that the proffered evidence did not meet the clear and convincing
standard. Brannon, 507 So. 2d 194; Fuller v. State Farm Mut. Auto. Ins. Co., 697 So. 2d 722 (La. App. 2 Cir.
1997), rev’d; Abadie v. City of Westwego, 646 So. 2d 1229 (La. App. 5 Cir. 1994), rev’d. However, these cases
analyzed the clear and convincing standard when deciding the merits of the case and not on whether there was a
genuine issue of material fact.
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The court noted that “[a]lthough none of the evidence defendants submitted addresses the issue of whether any
potential loss of consciousness was unforeseen, and at trial defendants will have a high burden of proof, defendants
have set out specific facts showing that a genuine issue exists, and therefore they have met the burden necessary to
overcome a motion for summary judgment.” Meisner, 2012 WL 1231014, at *3.

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Like in Meisner, the evidence in this case demonstrates factual discrepancies regarding
Scales’ state of consciousness before the accident. For example, eyewitness testimony and the
police report imply that Scales did suffer a sudden loss of consciousness because no skid marks
were found at the scene, and he did not brake or make any evasive maneuvers to avoid the
collision. Line Depo, Doc. 24-1, 15-16; Miller Depo, Doc. 24-3, 23-24, 28-29. Additionally, the
medical evidence in the present case is contradictory in itself. When questioned by the plaintiff,
Dr. Welke testified that he could not find any evidence that Scales suffered a loss of
consciousness before the accident. Welke Depo, Doc. 18-6, 39. However, when questioned by
the defendants, Dr. Welke testified that he could not state one way or another whether Scales was
conscious before the collision. Welke Depo, Doc. 24-2, 49-50. The police report, eyewitness
testimony, and Dr. Welke’s deposition all call into question whether Scales experienced a
sudden, unforeseeable loss of consciousness. Therefore, defendants have presented sufficient
evidence to raise a genuine issue of material fact, and like in Meisner, defendants have met the
burden necessary to overcome a motion for summary judgment.3
Furthermore, defendants argue that discovery has not yet been completed, and in
accordance with the scheduling order, expert reports are not due until September 30, 2015.
Further discovery may shed light on some of the material facts in question. Thus, the court finds
that it is premature to grant a motion for summary judgment.
IV.

Conclusion
For the reasons stated herein, the Plaintiff’s Motion (Doc.18) for Summary Judgment

is DENIED.
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In Meisner, the defendants met their burden on summary judgment by producing strong medical evidence implying
that the driver at issue was unconscious at the time of the accident. Meisner, 2012 WL 1231014, at *3. Although
the medical evidence presented in this case is inconclusive, when considered in the light most favorable to the
defendants as the non-moving party, and when taken together with the other evidence, it is sufficient to establish a
genuine issue of material fact.

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Signed in Baton Rouge, Louisiana, on September 28, 2015.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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