Anding v. Ace American Insurance Company et al

Filing 85

RULING denying 55 Motion for Partial Summary Judgment. Signed by Chief Judge Shelly D. Dick on 6/5/2024. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CURTIS ANDING

CIVIL ACTION

VERSUS

22-627-SDD-RLB

ACE AMERICAN INSURANCE
COMPANY, RUAN TRANSPORT
CORPORATION, AND CARL A.
GREER
RULING
This matter is before the Court on a Motion for Partial Summary Judgment on
Liability1 filed by Plaintiff, Curtis Anding (“Plaintiff” or “Anding”). Defendants, Carl Greer,
Ruan Transport Corporation, and ACE American Insurance Company (collectively,
“Defendants”), filed an Opposition,2 to which Plaintiff filed a Reply.3 For the following
reasons, Plaintiff’s motion will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a rear-end automobile collision. Plaintiff filed suit in state
court on August 4, 2022, alleging he sustained serious injuries as a result of the accident.4
Defendants subsequently removed the case.5 This Court has subject matter jurisdiction
under 28 U.S.C. § 1332.
Plaintiff alleges the following facts: At approximately 5:45 a.m. on February 3,
2022, Plaintiff was operating a 2001 Dodge Ram 1500 pickup truck, and Defendant Carl

1

Rec. Doc. 55.
Rec. Doc. 61.
3
Rec. Doc. 71.
4
Rec. Doc. 1-2.
5
Rec. Doc. 1.
2

Page 1 of 20

Greer (“Greer”) was operating a 2018 Freightliner Cascadia 18-wheeler behind Plaintiff.6
Both vehicles were traveling south on Highway 3110 in Natchitoches Parish.7 The parties
agree that it was dark and raining at the time.8 As Plaintiff slowed his vehicle and came
to a complete stop in preparation of making a left turn, Greer’s vehicle collided with the
rear of Plaintiff’s vehicle.9 Plaintiff contends that Greer’s negligence caused the
accident.10
On February 15, 2024, Plaintiff filed the instant motion seeking a determination
that Greer is 100% at fault for the subject accident.11 Defendants oppose the motion,
arguing that genuine issues of fact preclude summary judgment on this issue.12
Defendants concede that Greer’s vehicle rear-ended Plaintiff’s vehicle.13 However,
Defendants contend Plaintiff bears comparative fault for the accident, arguing that Greer
was not able to see Plaintiff’s vehicle in time because Plaintiff’s taillights were not
functioning properly.14 Defendants argue there are genuine issues of fact regarding
whether Plaintiff’s unlit or underlit taillights contributed to the accident, or made it
unavoidable by creating a “sudden emergency.”15

6

Rec. Doc. 14, ¶¶ 3, 4.
Id.
8
Rec. Doc. 55-3, ¶ 4.
9
Rec. Doc. 14, ¶¶ 5, 6.
10
Id. at ¶ 10.
11
Rec. Doc. 55.
12
Rec. Doc. 61.
13
Rec. Doc. 55-3, ¶ 8; Rec. Doc. 61-1, ¶ 8.
14
Rec. Doc. 61, pp. 1–2.
15
Id.
7

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II. LAW AND ANALYSIS
A. Summary Judgment
In reviewing a party’s motion for summary judgment, the Court will grant the motion
if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment
as a matter of law.16 This determination is made “in the light most favorable to the
opposing party.”17 “When seeking summary judgment, the movant bears the initial
responsibility of demonstrating the absence of a genuine issue of material fact with
respect to those issues on which the movant bears the burden of proof at trial.”18 If the
moving party satisfies its burden, “the non-movant must respond to the motion for
summary judgment by setting forth particular facts indicating that there is a genuine issue
for trial.”19 However, the non-moving party’s burden “‘is not satisfied with some
metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.’”20
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”21 All reasonable factual
inferences are drawn in favor of the nonmoving party.22 However, “[t]he Court has no duty
to search the record for material fact issues. Rather, the party opposing the summary

16

Fed. R. Civ. P. 56(a).
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.
654, 655 (1962)); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).
18
Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718 (5th Cir. 1995) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 333–34 (1986)).
19
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248–49 (1986)).
20
Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)).
21
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) (quoting
Anderson, 477 U.S. at 248).
22
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal citation omitted).
17

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judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”23 “Conclusory allegations unsupported by specific
facts . . . will not prevent the award of summary judgment.”24
B. Analysis
i.

Evidentiary Objections

In opposing Plaintiff’s motion, Defendants submitted Greer’s voluntary written
statement given in connection with a crash report25 as well as the transcript of a telephone
conversation between Greer and investigator Danny Williamson regarding the accident.26
Plaintiff objects to the Court’s consideration of both of these statements, arguing they are
inadmissible hearsay.27
At the summary judgment stage, whether materials are admissible in their current
form is not dispositive because “materials cited to support or dispute a fact need only be
capable of being ‘presented in a form that would be admissible in evidence.’”28 As Plaintiff
acknowledges, statements that would technically constitute hearsay at the summary
judgment stage can oftentimes be reduced to admissible form later by having the
declarant testify to the matter at trial.29 For this reason, several district courts find that

23

RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (internal citation omitted).
Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994).
25
Rec. Doc. 61-3.
26
Rec. Doc. 61-4.
27
Rec. Doc. 71, p. 2.
28
LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed. R. Civ.
P. 56(c)(2)).
29
See, e.g., Guillory v. Carrington Mortg. Servs., LLC, No. 22-192, 2024 WL 1020555, at *6 (M.D. La. Mar.
8, 2024).
24

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““[w]hether the statements as made by the declarant are hearsay is not relevant in the
summary judgment context.”30
However, Plaintiff claims that in this case, Greer’s deposition testimony establishes
that he does not remember making either of the two objected-to statements.31 Because
of Greer’s lack of memory, Plaintiff argues that Defendants cannot present the statements
in an admissible form at trial by calling Greer to testify, and therefore the statements
should be ruled inadmissible at the summary judgment stage.32
Rec. Doc. 61-3: Greer’s Written Statement in the Crash Report
Plaintiff argues this statement is hearsay that will be inadmissible at trial because
Greer testified to his lack of memory of making the statement in his deposition. During the
pertinent line of questioning in Greer’s deposition, Greer answers affirmatively when
asked if he recalls talking to police officers at the scene of the accident.33 Greer then
testifies that he has not seen the police report in connection with the accident.34 Plaintiff’s
counsel then reads to Greer portions of the police report consisting of statements made
by the police officer, not Greer, describing what Greer had told the police officer at the
scene about the accident.35 When asked at his deposition, Greer stated that he did not
remember telling the police officer the matters in those statements in the police report.36
However, Greer was never asked about his recollection of his own written statement

30

Barnett v. Louisiana Dep't of Health, No. 17-1793, 2023 WL 2467876, at *2 (M.D. La. Mar. 10, 2023)
(quoting Texas Ent. Ass'n, Inc. v. Hegar, No. 17-594, 2019 WL 13036162, at *15 n.12 (W.D. Tex. Feb. 27,
2019), aff'd, 10 F.4th 495 (5th Cir. 2021)).
31
Rec. Doc. 71, p. 2.
32
Id.
33
Rec. Doc. 71-2, p. 5.
34
Id.
35
Id. at pp. 5–6. The Court notes that the police officer’s statements are not in the record; the only portion
of the police report in the record is Greer’s voluntary written statement (Rec. Doc. 61-3).
36
Id. at p. 6.

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within the police report, which is the only statement contained in Defendants’ document.37
Accordingly, Plaintiff’s contention that Greer testified that he did not remember making
the subject statement is inaccurate. Because Plaintiff has not shown that the statement
is incapable of being reduced to admissible form at trial, the hearsay objection as to that
document is overruled.
Rec. Doc. 61-4: Greer’s Telephone Conversation with Investigator Danny Williams
Greer testifies in his deposition that he “can’t remember” speaking with investigator
Danny Williams on the telephone about the accident.38 However, Greer later attests in an
affidavit that he recalls giving the statement to Williams and recalls the substance of the
conversation.39 But Plaintiff argues that the Court should not consider this portion of the
affidavit because it was an attempt by Defendants to “retract the damaging admissions
that [Greer] made in his deposition” regarding his inability to remember this telephone
conversation.40
Generally, a court considering a motion for summary judgment “must consider all
the evidence before it and cannot disregard a party's affidavit merely because it conflicts
to some degree with an earlier deposition.”41 However, under the “sham affidavit
doctrine,” “a party [cannot] defeat a motion for summary judgment using an affidavit that
impeaches, without explanation, [other] sworn testimony.”42 The doctrine “stands for the
proposition that a nonmoving party may not manufacture a dispute of fact merely to defeat
a motion for summary judgment.”43 As the Fifth Circuit explains, “[i]f a party who has been
37

Rec. Doc. 61-3.
Rec. Doc. 71-2, pp. 6–7.
39
Rec. Doc. 61-2, ¶¶ 5, 6.
40
Rec. Doc. 71, p. 2.
41
Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980).
42
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996).
43
Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).
38

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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.”44 Notably, the
bar for applying the doctrine is high and is typically only applied to “affidavit testimony that
is ‘inherently inconsistent’ with prior testimony.”45 Moreover, “the sham affidavit doctrine
is inappropriate where an affidavit supplements, rather than contradicts an earlier
statement.”46
The Court finds the sham affidavit doctrine inapplicable here. Although Greer’s
deposition testimony regarding his lack of memory of the telephone conversation with
Danny Williams is inconsistent with his affidavit testimony stating the opposite, the
affidavit does not “manufacture an issue of material fact.” Instead, the affidavit only
speaks to Greer’s memory of making certain recorded statements, which statements
themselves may or may not raise issues of material fact.47 Because the affidavit does not
contain actual assertions of material facts, the Court finds that it was not an attempt by
Defendants to raise a fact issue by retracting prior deposition testimony. In other words,
Greer does not “tell[ ] the same story differently” in his deposition and affidavit.48
In sum, the affidavit’s inconsistency with the cited deposition testimony only relates
to the admissibility question, and it was not a clear attempt by Defendants to manufacture

44

Id. (quoting Perma Rsch. & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).
Seigler v. Wal-Mart Stores Texas, L.L.C., 30 F.4th 472, 477 (5th Cir. 2022) (quoting Winzer v. Kaufman
Cty., 916 F.3d 464, 472 (5th Cir. 2019)).
46
Winzer, 916 F.3d at 473 (5th Cir. 2019) (internal quotation omitted).
47
The Court also notes that a Texas district court found, in a similar scenario, that the deposition and
subsequent affidavit were not inherently inconsistent: “In this case, any discrepancy between Beagle's
affidavit testimony and has deposition testimony arises from Beagle not recalling a document in the
deposition that he remembered in the affidavit. Those two stories do not necessarily conflict.” Mut.
Concepts, Inc. v. First Nat'l Bank of Omaha, No. CV H-08-03470, 2010 WL 11583298, at *15 (S.D. Tex.
Sept. 24, 2010).
48
See S.W.S. Erectors, 72 F.3d at 496.
45

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an issue of fact. For this reason, Plaintiff’s objections are “more properly suited to the trial
context where the disputed evidence in the precise form sought to be admitted can by
(sic) analyzed in its full context.”49 Plaintiff’s objection to the Court’s consideration of this
statement is overruled.
ii.

Liability Analysis

Because this is a diversity action, the substantive law of Louisiana applies.50 La.
R.S. 32:81(A) provides that “the driver of a motor vehicle shall not follow another vehicle
more closely than is reasonable and prudent, having due regard for the speed of such
vehicle and the traffic upon and the condition of the highway.” As argued by Plaintiff,51 the
“law has established a rebuttable presumption that a following motorist who strikes a
preceding motorist from the rear has breached the standard of conduct prescribed by
LSA–R.S. 32:81A and is therefore liable for the accident.”52 However, “[a] following
motorist ... may rebut the presumption of negligence by proving that he had his vehicle
under control, closely observed the preceding vehicle, and followed at a safe distance
under the circumstances. The following motorist may also avoid liability by proving that
the driver of the lead vehicle created a hazard that he could not reasonably avoid (a
sudden emergency).”53
Further, “[t]he presumption does not in and of itself preclude an apportionment of
fault to the lead driver where negligence can be shown.”54 “[N]otwithstanding the

49

Texas Ent. Ass'n, Inc., 2019 WL 13036162, at *15 n.12 (W.D. Tex. Feb. 27, 2019).
Erie Railroad v. Tompkins, 304 U.S. 64 (1938).
51
Rec. Doc. 55-2, p. 4.
52
Harbin v. Ward, 2013–1620 (La.App. 1 Cir. 5/29/24), 147 So.3d 213, at 218.
53
Id. See also, Domingo v. State Farm Mut. Auto. Ins. Co., 10–264 (La.App. 5 Cir. 11/9/10), 54 So.3d 74,
at 80 (“The sudden emergency doctrine is an affirmative defense to the presumption of negligence ... The
sudden emergency doctrine cannot be invoked by one who has not used due care to avoid the emergency.”)
54
Matherne v. Lorraine, 2003–2369 (La.App. 1 Cir. 9/17/04), 888 So.2d 244, 246.
50

Page 8 of 20

presumption of negligence, a favored motorist can still be assessed with comparative fault
if his substandard conduct contributed to the cause of the accident. ‘[O]nce the
presumption of negligence attaches to the defendant, the ordinary rules of comparative
negligence apply and, thus, a plaintiff's damages may be reduced by the degree that he
was comparatively at fault.’”55
Defendants acknowledge the initial applicability of the La. R.S. 32:81 presumption
of liability.56 However, Defendants assert Plaintiff bears some degree of fault for the
accident because Plaintiff’s taillights were not functioning properly.57 Defendants point to
La. R.S. 32:304, which requires vehicles manufactured after 1962 to be equipped with
two rear tail lamps plainly visible from a distance of one thousand feet.58 Defendants also
cite Louisiana state court jurisprudence for the proposition that “a stopped or slowly
moving unlighted vehicle upon the highway at night is an unusual obstruction which the
following motorist has no reason to anticipate.”59
Plaintiff posits two overarching arguments in support of its motion: 1) whether or
not Plaintiff’s taillights were working is immaterial because of certain “admissions” made
by Greer; and 2) the evidence shows that Plaintiff’s taillights were functional on the date
of the accident. Defendants dispute both of these assertions.

55

Graffia v. Louisiana Farm Bureau Cas. Ins. Co., 2008-1480 (La. App. 1 Cir. 2/13/09), 6 So. 3d 270, 274
(quoting Matherne, 888 So.2d at 246). The Court notes that Plaintiff misstates the law on this point when
he argues that “[Greer] cannot rebut the presumption of fault under La. R.S. 32:81(A), deeming him solely
liable for the crash.” Rec. Doc. 55-2, p. 10.
56
Rec. Doc. 61, p. 10.
57
Id. at pp. 10–11.
58
Id. at p. 13.
59
Evans v. Olinde, 609 So. 2d 299, 302 (La. Ct. App. 1992) (citing Shroyer v. Grush, 555 So.2d 534 (La.App.
4th Cir.1989); Gordon v. Commercial Union Ins. Co., 503 So.2d 190 (La.App. 4th Cir. 1987); Bordelon v.
State, Dept. of Highways, 253 So.2d 677 (La.App. 1st Cir. 1971); Fairfax v. American Cas. Co. of Reading,
Pa., 236 So.2d 243 (La.App. 3d Cir. 1970)).

Page 9 of 20

a. Greer’s Purported “Admissions”
The vast majority of Plaintiff’s briefing is dedicated to an argument that the taillight
issue is irrelevant because of purported “admissions” made by Greer in his deposition.
Plaintiff contends Greer has conclusively admitted that “the two precipitating events”
leading to the accident were 1) Greer being blinded by headlights of oncoming traffic, and
2) Greer taking his eyes off the road.60 Plaintiff argues this testimony establishes that
Greer cannot rebut the presumption of fault for rear-end accidents, rendering the
functionality of Plaintiff’s taillights immaterial.61 Defendants, on the other hand, argue
there is other evidence, including statements and other testimony made by Greer, that
Plaintiff’s faulty taillights contributed to the accident.
The parties’ disagreement centers in large part around the following testimony from
Greer’s deposition. For context, Greer had just taken the position that Plaintiff’s vehicle
lacked lights on the rear passenger side:
Q. All right. So let me try to do a better job. Is there something
about the lights on the rear driver side of my client’s vehicle
that make you feel like you could not observe those from
behind?
A. I’m trying to think of what words to answer that with but I
can’t come up with it. I didn’t see his lights at all until right
before I hit him. And I’m not saying lights, I’m saying light. I
said lights, but I meant to say light.
Q. Is there something about the circumstances of this accident
that make you feel like that if, in fact there was a light on the
passenger side as well that you would‘ve been able to see it
or you would’ve noticed it?
A. Yes, sir
Q. All right. What about the circumstances make you believe
that although you didn't notice the driver's side light, that you
feel like that you would've noticed if there was a passenger
side light?

60
61

Rec. Doc. 55-2, p. 7.
Id. at p. 10.

Page 10 of 20

A. Yes, sir. Because in the film, if you've seen, I got blinded by
car lights. And if you look at the video, when the headlights hit
me, I turned my head like that to look at the shoulder of the
road. So I took my eyes off of the road for just a few seconds
and that's when the collision came.
Q. Do you feel that it is my client's (Anding’s) fault that you
took your eyes off the road?
A. No, sir.
Q. Okay. Do you feel like that it's my client's fault that you got
blinded by oncoming traffic?
A. No, sir.
Q. Okay. And those are the two precipitating events leading to
this wreck, right?
A. Yes, sir.
Q. And but for those happening, would you agree with me that
you would've stopped your vehicle and not been involved in
an accident?
A. Yes, sir.62
Plaintiff also quotes the following additional deposition testimony of Greer:
Q. Mr. Greer, do you agree with me that if you're blinded by
lights you can't see, correct?
A. Yes, sir.
Q. You agree with me that if you're not looking at the road, you
can't see what's in front of you, right?
A. Right.
Q. And so if you're blinded and you're not looking at the
roadway, regardless of what's in the road, you agree with me
that you can't stop for it if you can't see it?
A. That's right.63
Based on this testimony, Plaintiff contends Greer has conclusively admitted that
the accident would not have occurred if he had not been blinded by oncoming headlights
and/or looked away from the road.64 Plaintiff argues that Greer’s testimony constitutes a
judicial admission establishing Greer is 100% at fault for the accident.65 Defendants
disagree, arguing that to the extent the testimony is considered an “admission,” it is only

62

Rec. Doc. 55-4, pp. 7–8.
Id. at p. 9.
64
Id.
65
Rec. Doc. 55-2, p. 8.
63

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an evidentiary, rather than a judicial, admission.66 Defendants also argue Greer’s
testimony suggests that if Plaintiff’s vehicle had proper taillights, Greer would have been
able to perceive the presence of Plaintiff’s vehicle before being blinded by oncoming
headlights.67 In reply, Plaintiff reiterates that the testimony constitutes a judicial admission
but also that, regardless of the classification of the admission as evidentiary or judicial,
the result is the same because Greer never subsequently contradicted or disavowed the
subject statements.68
The Fifth Circuit defines a judicial admission as “a formal concession in the
pleadings or stipulations by a party or counsel that is binding on the party making them.
Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact
from contention.”69 An evidentiary admission, on the other hand, is “‘merely a statement
of assertion or concession made for some independent purpose.’”70 “A judicial admission
is conclusive, unless the court allows it to be withdrawn; ordinary evidentiary admissions,
in contrast, may be controverted or explained by the party.”71
Some Louisiana district court cases support the idea that, “[w]hen a party testifying
at trial or during a deposition admits a fact which is adverse to his claim or defense, it is
generally preferable to treat that testimony as solely an evidentiary admission.”72
However, Defendant points to three decisions from Texas district courts which found or

66

Rec. Doc. 61, p. 25.
Id. at 23 (quoting Greer’s testimony at Rec. Doc. 55-4, p. 7).
68
Rec. Doc. 71, pp. 6–7.
69
Martinez v. Bally's Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 2001).
70
Id. (quoting McNamara v. Miller, 269 F.2d 511, 515 (D.C. Cir.1959)).
71
Id. at 477 (quoting Keller v. United States, 58 F.3d 1194, 1199 n.8 (7th Cir.1995) (quoting, in turn, John
William Strong, McCormick on Evidence, § 254 at 142 (8th ed.1992)).
72
See, e.g., Siegrist v. Kleinpeter, No. 02-2365, 2004 WL 797723, at *2 (E.D. La. Apr. 13, 2004) (quoting
Keller v. United States, 58 F.3d 1194, 1199 (7th Cir.1995)); see also Sims v. Hughes, No. 12-421, 2013 WL
1352278, at *1 (E.D. La. Apr. 2, 2013).
67

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suggested that a party’s deposition testimony could constitute a judicial admission.73 In
Blue Spike, LLC v. Audible Magic Corp., the Eastern District of Texas concluded that
“[t]here is authority in the Fifth Circuit establishing that deposition testimony may
constitute case-dispositive judicial admissions,” and proceeded to find that the testimony
under consideration was a judicial admission.74
Without deciding the overarching issue of whether a party can make a judicial
admission through deposition testimony, under these facts, the Court finds that Greer’s
deposition statements are not judicial admissions. The circumstances do not indicate that
Greer gave the subject testimony as a formal concession of liability. Although the quoted
portions of Greer’s testimony do suggest an admission that “the two precipitating events”
leading to the accident were oncoming headlights and looking away from the road, and
that those events were the “but for” cause of the accident, this was the result of a carefully
crafted line of questioning by Plaintiff’s counsel to which Greer simply provided “yes” or
“no” answers.75 Further, later on in his deposition, Greer gives the following testimony
expressly indicating his view that Plaintiff’s taillights contributed to the accident:
Q. Other than your allegation that Mr. Anding’s taillights were
not properly working at the time of the accident, do you believe
that Mr. Anding did anything else to cause or contribute to this
accident taking place?
A. I don’t think Mr. Anding had anything. His pickup did.
…
A. His pickup did by not having the proper lighting.
Q. So you’re saying that you believe that the pickup truck, not
Mr. Anding, was one of the reasons for the accident taking
place?
73

Johnson v. Idexx Lab'ys, Inc., No. 3:06-CV-381-M, 2007 WL 1650416, at *1 (N.D. Tex. June 4, 2007);
Chambers v. Troy-Bilt, LLC, No. 3:14-CV-569-BF, 2016 WL 5085776, at *4 (N.D. Tex. Sept. 20, 2016); Blue
Spike, LLC v. Audible Magic Corp., No. 6:15-CV-584, 2016 WL 3653516, at *6 (E.D. Tex. May 31, 2016).
74
Blue Spike, 2016 WL 3653516, at *6 (citing Jonibach Mgmt. Trust v. Wartburg Enters., 750 F.3d 486, 492
n.2 (5th Cir. 2014), where the Fifth Circuit found that a party’s “testimony regarding the initial contract also
constitute[d] judicial admissions.”).
75
Rec. Doc. 55-4, pp. 7–9.

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A. Yes, sir.76
This testimony persuades the Court that Greer did not judicially admit he was 100% at
fault for this accident. Further, Defendants’ explanation that proper taillights would have
made Greer aware of Plaintiff’s vehicle before being affected by the oncoming headlights
is a plausible interpretation of the testimony. A reasonable juror could interpret Greer’s
testimony as indicating Plaintiff’s taillights contributed to the accident. Similarly, the
subsequent testimony specifically addressing Plaintiff’s taillights contradicts the purported
“admission,” which defeats Plaintiff’s argument regarding Greer’s failure to disavow it. In
sum, Greer’s testimony does not constitute a judicial admission that he was solely at fault.
Next, Defendants suggest that portions of Greer’s deposition testimony constitute
impermissible lay opinion testimony. Defendants argue: “Greer, a layperson, is not
qualified to formulate an opinion about the proximate cause of the subject accident
involving complex conspicuity issues.”77 At the outset, the Court notes that Defendants
failed to specify exactly which portions of the testimony they are objecting to on this basis.
Based on the context of the argument in Defendants’ brief, the Court assumes the
objection relates to the “two precipitating events” line of questioning from Plaintiff’s
counsel found at Rec. Doc. 55-4, pp. 7–8. Defendants argue that “Greer is not an expert
on conspicuity,” and the questions of whether Plaintiff’s taillights were sufficiently
conspicuous and whether the taillights contributed to the accident is a matter for expert
testimony.78 Plaintiff counters that Greer is qualified to testify to the determinations he

76

Rec. Doc. 61-7, p. 15.
Rec. Doc. 61, p. 26.
78
Id. at p. 28.
77

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made as a professional truck driver at the time of the accident, and the testimony at issue
posited facts rather than legal conclusions.
A lay witness may only give opinion testimony if the testimony is: “(a) rationally
based on the witness's perception; (b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.”79 As Defendants point out,
“[i]n evaluating challenged testimony, the court must distinguish ‘between an
impermissible opinion on an ultimate legal issue and a mere explanation of the [witness's]
analysis of facts which would tend to support a jury finding on the ultimate issue.’”80
The Court finds that Greer’s testimony is permissible. Greer’s testimony
surrounding the events leading up to the accident is rationally based on his perception as
the driver of the truck and raises causation issues for the jury. Scientific, technical, or
other specialized knowledge is not required for a driver to explain his perception of the
situation and circumstances that preceded a car accident.
Accordingly, based on the findings above, Plaintiff’s first and primary argument in
support of summary judgment is rejected. The only factual basis argued by Defendants
in opposing Plaintiff’s motion is that Plaintiff’s faulty taillights contributed to the accident.
Thus, the issue is narrowed to whether there is a genuine issue of fact with respect to the
functionality of Plaintiff’s taillights at the time of the accident.

79

Nat'l Oilwell Varco, L.P. v. Auto-Dril, Inc., 68 F.4th 206, 220–21 (5th Cir. 2023) (quoting Fed. R. Evid. 701).
United States v. Keys, 747 F. App'x 198, 207 (5th Cir. 2018) (alteration in original) (quoting United States
v. Buchanan, 70 F.3d 818, 833 n.20 (5th Cir. 1995) (internal quotation omitted)).
80

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b. Evidence of Functionality of Plaintiff’s Taillights
Plaintiff relies on his own deposition testimony and that of his wife to establish that
Plaintiff’s taillights were working at the time of the accident. Plaintiff testified that every
morning before leaving for work, he habitually checked his brake lights, blinkers, running
lights, and headlights by looking at his vehicle’s reflection in the fence at his home.81
Plaintiff stated that, pursuant to his normal “routine,” he checked his vehicle’s lights on
the morning of the accident before leaving his home for work.82 However, the Court notes
that Plaintiff himself never testified specifically that his taillights were in fact working on
that morning. Plaintiff’s wife testified that Plaintiff routinely checked his lights “every day
before we left to go anywhere.”83 She answered affirmatively when asked whether she
saw the rear lights of Plaintiff’s vehicle illuminated on the morning of the accident before
leaving home.84
Defendants rely on the following evidence to establish a factual issue regarding
Plaintiff’s taillights: 1) Greer’s deposition testimony and other statements; 2) two dashcamera videos of the accident from the perspective of Greer’s vehicle; and 3) an expert’s
report analyzing the video footage.
Greer’s version of the facts as gleaned from his testimony can be summarized as
follows: As Greer was proceeding in his vehicle on Highway 6, he noticed Plaintiff’s
vehicle pass him.85 At that time, Greer noticed that Plaintiff’s taillights were not “in very
good working order.”86 Specifically, Greer takes the position that there were no lights on

81

Rec. Doc. 71-4, pp. 2–4.
Id. at pp. 5–6.
83
Rec. Doc. 71-6, p. 2.
84
Id. at p. 5.
85
Rec. Doc. 61-7, pp. 2–3.
86
Id. at 3.
82

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the rear passenger side of Plaintiff’s vehicle.87 When asked again later, Greer stated he
cannot remember what was wrong with the taillights, but he remembers that they were
not “functioning right.”88 After losing sight of Plaintiff’s vehicle ahead, Greer turned right
onto Highway 1.89 Greer was unaware that before he made his turn, Plaintiff had also
turned onto Highway 1.90 While proceeding on Highway 1, Greer states that he “got
blinded by some cars coming on” and then collided with Plaintiff’s vehicle.91 Greer noticed
Plaintiff’s vehicle almost instantaneously with impact.92 Immediately before the collision,
Greer did not notice any taillights on Plaintiff’s vehicle; Greer stated, “He don’t have
taillights.”93
Additionally, Defendants submitted Greer’s written statement made in connection
with the accident report94 as well as a transcript of a conversation with an investigator
regarding the accident.95 The written statement in its entirety provides: “I Carl Greer was
travelling south on Hwy 3110 when I rear ended the vehicle traveling in front of me. I did
not see the vehicle in front of me do (sic) to not seeing proper taillight lighting.”96 In the
phone conversation with the investigator, Greer states that Plaintiff’s “taillights was not
properly lit up,” and that if Plaintiff had “some decent taillights,” the accident may have
been prevented.97 Greer said that the dash-camera video from his vehicle “showed that

87

Id. at 8.
Id. at 10.
89
Id. at 3. Highway 1 is also referred to by the parties in this case as Highway 3110, which is the roadway
where the accident occurred.
90
Id. at 11.
91
Id. at 3.
92
Id. at 4.
93
Id. at 12.
94
Rec. Doc. 61-3.
95
Rec. Doc. 61-4.
96
Rec. Doc. 61-3.
97
Rec. Doc. 61-4, pp. 1, 8.
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[Plaintiff] had taillights but they wasn’t very good,” and that they were “very low.”98 He also
explains that he did not see Plaintiff’s vehicle until he “was right on top of him.”99
Defendants also rely on two videos100 of the accident recorded by a camera inside
Greer’s vehicle facing the windshield. Defendants attempt to use the videos to show that
Plaintiff’s taillights were not functioning properly such that Greer could not identify
Plaintiff’s vehicle in time to brake and avoid the collision. Both Plaintiff and Defendants
retained accident reconstruction experts to analyze the videos. Defendants’ expert
concludes in his report that “Anding’s running taillights were not functioning or on during
the time immediately prior to this collision.”101 Plaintiff does not cite any findings of its
expert’s report in support of its summary judgment.
The Court finds that Plaintiff has failed to meet its summary judgment burden of
proving that Greer was 100% at fault in causing this accident. Defendants have presented
record evidence establishing a genuine issue of fact regarding the functionality of
Plaintiff’s taillights at the time of the collision. Plaintiff argues that his and his wife’s
deposition testimony is “the only affirmative evidence as to the functionality of Anding’s
taillights” in this case, and “Defendants have no evidence whatsoever to support their
argument that Anding’s taillights were not functioning properly.”102 In so arguing, Plaintiff
ignores Greer’s testimony and statements regarding the taillight issue which contradict
the testimony Plaintiff relies upon and create an issue of fact. The Court acknowledges

98

Id. at 2.
Id.
100
Rec. Docs. 59, 68. The Court notes Plaintiff’s objection to the videos because of their lack of clarity (see
Rec. Doc. 71, p. 3). The Court will not rule on the admissibility of the videos at this time; this evidence is
not dispositive of the issues and ruling on its admissibility is not necessary for resolution of this motion.
Additionally, Plaintiff retained an expert to analyze and give an opinion on the video.
101
Rec. Doc. 61-10, p. 18.
102
Rec. Doc. 71, p. 10.
99

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that Greer’s testimony regarding the taillights can be viewed as inconsistent with his
testimony suggesting that oncoming headlights and looking away from the road caused
the accident. The Court also acknowledges that Greer’s statements are at times unclear
regarding what exactly was wrong with Plaintiff’s taillights; for example, Greer at one point
indicated that Plaintiff’s vehicle did not have taillights at all,103 but he elsewhere indicated
that the taillights were present but “very low.”104 Another time, Greer took the position that
the passenger side of Plaintiff’s vehicle had no lights.105 However, on summary judgment,
courts “may not make credibility determinations or weigh the evidence.”106 Accordingly, it
is not appropriate at the summary judgment stage to weigh or evaluate the credibility of
any of the conflicting testimony. That is specifically the job for the jury.
With respect to the videos and expert reports, Plaintiff explains that “[b]oth accident
reconstruction experts in this case have opined that their inspection of Anding’s vehicle’s
taillights was ‘inconclusive’ as to whether Anding’s taillights were working properly at the
time of the wreck.”107 This statement does not support Plaintiff’s entitlement to summary
judgment – it is Plaintiff’s burden on this motion to establish the absence of a material
factual issue. With respect to the taillights, Plaintiff must show that there is no genuine
dispute that they were working properly at the time of the accident. An inconclusive
determination from his own expert in this regard does not satisfy this burden, especially
with Defendants’ expert expressly concluding that Plaintiff’s taillights were not functional
based on the video footage.

103

Rec. Doc. 61-7, p. 12.
Rec. Doc. 61-4, p. 2.
105
Rec. Doc. 61-7, p. 8.
106
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000).
107
Rec. Doc. 71, p. 8.
104

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III. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to meet his
summary judgment burden. There are genuine issues of fact regarding whether Greer
was solely at fault for the subject accident. Accordingly, Plaintiff’s Motion for Partial
Summary Judgment on Liability108 is DENIED.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this ___
2024.
5th day of _______________,
June

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

108

Rec. Doc. 55.

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