Letsinger v. Stennette et al

Filing 10

MEMORANDUM RULING denying 5 Motion for Summary Judgment. Signed by Judge Elizabeth E Foote on 9/26/2014. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

DAVID LETSINGER

CIVIL ACTION NO. 5:12-cv-2444

VERSUS

JUDGE ELIZABETH ERNY FOOTE

MICHAEL STENNETTE,
THOMAS FUEL AND LUBRICANTS, and
AMERICAN ZURICH

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court for its consideration is the Defendants’ Motion for Summary
Judgment in a case stemming from a car accident and a negligence claim brought by
David Letsinger (“Plaintiff”). [Record Document 5]. In their motion, the Defendants,
Michael Stennette, Thomas Fuel and Lubricants, and American Zurich (“Defendants”),
claim that the Plaintiff’s negligence suit lacks merit because the allegations and
evidence fail to support a genuine factual dispute as to the cause of the accident. [Id.]
As part of this motion, the Defendants offer evidence and exhibits in support and move
that this Court rules in their favor. [Id.; Record Document 5-2, Ex. A-C]. The Plaintiff
offers the same evidence in his opposition to support the claim that there is, in fact, a
genuine factual issue as to causation to be litigated, arguing that the circumstances
leading up to the accident are uncertain and should be presented at trial. [Record
Document 7]. For the reasons explained below, this Court DENIES the Defendants’
Motion for Summary Judgment. [Record Document 5].

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I.

Factual and Procedural Background
The dispute between the parties focuses on the possibly negligent actions of

Michael Stennette, the Defendant-truck driver, and to what degree, if any, the Plaintiff’s
negligence contributed to or caused his own injury. The injury to the Plaintiff at issue
stems from an automobile accident that took place while the parties’ vehicles were
traveling northbound on Louisiana Highway 1 (“LA 1") in Caddo Parish, Louisiana, late
on the morning of August 16, 2011. Record Document 5-3, Ex. B. LA 1 is an undivided
two-lane highway at the location of the incident, and at the time of the accident, it was
clear and the road conditions were dry. Id. While the remainder of the facts surrounding
the accident are contested, both parties agree that the Defendants’ Freightliner fuel
truck (“Freightliner”) was ahead of the Plaintiff’s vehicle when the Plaintiff approached
and crashed into the Freightliner at a high rate of speed near railroad tracks that
intersect with LA 1. Record Document 5-1, p.1; Record Document 9, p.1.
In the Plaintiff’s account of the facts, the Freightliner was “parked on the side of
the road just off the shoulder and ahead of the Plaintiff, who was traveling northbound
on LA 1.” Record Document 9, p.1. Without signaling, the Freightliner entered the
highway and “stop[ped] in front of the Plaintiff causing a rear end collision.” Id. The
Plaintiff claimed to have immediately slammed on his brakes when he saw the
Freightliner enter the roadway, but it was too late and he could not avoid the collision.
Id.
In contrast, the Defendants claim that the Freightliner was traveling in the
roadway well before the accident occurred, but it had “stopped at a set of railroad
tracks.” Record Document 5-1, p.1. The Defendants state that because the truck carries
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fuel, it was “LEGALLY REQUIRED to stop at the Railroad tracks.” Record Document 52, p.1.1 The Plaintiff, the Defendants allege, was following behind the Freightliner at
roughly 55 to 60 miles per hour and, in addition to his speed, was “not paying attention
to the traffic in front of him at the time of the accident,” even stating that the Plaintiff
admitted he was inattentive. Record Document 5-1, pp.1-2. Given the speed and
inattentiveness, the Defendants claim the Plaintiff came to the realization to brake too
late and was responsible for colliding with the Freightliner that was legally required to
stop at the railroad tracks.
Upon removal of this case from state court, the Defendants filed the instant
Motion for Summary Judgment.
II.

Motion for Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). To determine whether there exists any genuine factual
dispute, parties are empowered to submit to a court materials within the record for
support, “including depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(a).2
1

The Defendants also make note of the fact that the Plaintiff in his deposition stated that he
believed he was required to stop at the railroad crossing, like the Freightliner, but “made no apparent
attempt to slow down.” Record Document 5-2, p.2.
2

As Rule 56 explains, “An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

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The plain text of Rule 56 requires that, after an appropriate time for discovery, a
motion for summary judgment should be entered against an opposing 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 322. If the movant fails to satisfy their burden of showing that there is
no genuine issue of material fact with the motion for summary judgment, such a motion
must be denied, regardless of the response by the nonmovant. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Conversely, if the movant
satisfies this initial burden, the nonmovant must demonstrate that there is, in fact, a
genuine factual issue for dispute at trial by going “beyond the pleadings” and
designating specific facts for support. Id. (citing Celotex Corp., 477 U.S. at 323-25). “A
dispute as to a material fact is ‘genuine’ if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Boudreaux v. Swift Transp. Co., 402
F.3d 536, 540 (5th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25051 (1986)).3 The failure of the party bearing the initial burden at trial to demonstrate
there is a genuine factual dispute to an essential element of their case renders any
remaining facts immaterial. See Celotex Corp., 477 U.S. at 322-23.
When considering a motion for summary judgment, courts are to construe all
facts and make inferences in the light most favorable to the nonmoving party. Cooper

3

Moreover, Local Rule 56.1 requires the filing of a statement of material facts from the moving
party that alleges there is no genuine issue of fact to be tried by the court. Under Local Rule 56.2, the
nonmovant must also set forth a “short and concise statement” concerning the existence of genuine
factual matters to be tried. Unless controverted by the nonmovant, as required by Local Rule 56.2, all
material facts set forth in the statement that is required to be served by the movant will be deemed
admitted.

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Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005) (citing Murray v. Earle,
405 F.3d 278, 284 (5th Cir. 2005)). However, both the United States Supreme Court
and the United States Court of Appeals for the Fifth Circuit maintain satisfying this
burden on the part of the nonmoving party requires the presentation of supporting
evidence. As the Fifth Circuit explained in Little:
This 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. We resolve factual
controversies in favor of the nonmoving party, but only when there is an
actual controversy, that is, when both parties have submitted evidence of
contradictory facts. We do not, however, in the absence of any proof,
assume that the nonmoving party could or would prove the necessary
facts.
Little, 37 F.3d at 1075 (citations omitted) (emphasis in original). While a court is not to
weigh the evidence or evaluate witness credibility, courts should grant summary
judgment where the critical evidence in support of the nonmovant is so weak and
tenuous that it could not support a judgment in their favor. Id.; Boudreaux, 402 F.3d at
540.
III.

Law and Discussion
The present personal injury dispute arises under Louisiana law and the alleged

negligence of the Defendants when the Plaintiff’s vehicle collided with the back of the
Defendants’ Freightliner. Under Louisiana’s duty-risk analysis, a plaintiff asserting a
negligence claim must establish:
(1) proof that the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) proof that the defendant's conduct failed
to conform to the appropriate standard (the breach element); (3) proof that
the defendant's substandard conduct was a cause-in-fact of the plaintiff's
injuries (the cause-in-fact element); (4) proof that the defendant's
substandard conduct was a legal cause of the plaintiff's injuries (the scope
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of liability or scope of protection element); and (5) proof of actual damages
(the damages element).
Poindexter v. United States ex rel. Corps of Eng’r, 568 F. Supp. 2d 729, 734 (W.D. La.
2008) (quoting Long v. State ex rel. Dept. of Transp. & Dev., 2004-0485, p.21 (La.
6/29/05); 916 So. 2d 87, 101). In addition to these negligence elements and to counter
the Plaintiff’s assertions, the Defendants argue that Louisiana jurisprudence establishes
that the “following driver” in a motor-vehicle accident is presumed to be at fault and the
cause of the accident. Record Document 5-2, p.4. In response, the Plaintiff counters
that such a presumption is inapplicable in the instant case, because until the Freightliner
pulled onto the roadway from the shoulder, the Plaintiff was not “following” the
Defendants’ truck.4 Record Document 7, p.3.
Thus, this matter boils down to whether, even in a light most favorable to the
Plaintiff, the evidence supports the finding that there is no genuine factual question as to
the cause-in-fact of the accident. In support of their motion, the Defendants submit the
deposition of Deputy Sean McCullough (“Deputy McCullough”), who is employed by the
Caddo Parish Sheriff’s Office; Deputy McCullough’s Crash Report (“Crash Report”); and
the Plaintiff’s own deposition. Record Document 5-3, Ex. A-C.
In the Crash Report, Deputy McCullough provides his factual findings on what
happened during the incident in question. Based on Deputy McCullough’s initial
findings, the Crash Report explains that the Freightliner was stopped at the railroad

4

In their Memorandum in Support, the Defendants note that there are certain exceptions to
overcome this “following driver” presumption, such as the existence of a sudden emergency. Record
Document 5-2, p.5. The Plaintiff, however, does not address any of these exceptions and instead argues
that the proximate cause of the accident was the Freightliner’s decision to enter the roadway from the
shoulder, causing the rear-end collision. Record Document 7, pp.2-3.

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tracks that cross LA 1, and its hazard lights were activated when it was struck from
behind by the Plaintiff’s vehicle. Id., Ex. B, p.2. After the collision, the report notes, the
Freightliner pulled onto the shoulder while pulling the Plaintiff’s vehicle, which became
attached to the tanker truck during the accident. Id. Moreover, according to both Deputy
McCullough’s deposition and the Crash Report, in the moments after the crash, the
Plaintiff stated to Deputy McCullough that he was not attentive before the accident and
only realized the Freightliner was stopped at the railroad tracks when it was too late to
avoid the collision. Id., Ex. A-B. In the Crash Report, Deputy McCullough recorded that
the “[Plaintiff] said he was not paying attention, realized veh. #2 [the Defendants’ truck]
was stopped at R/R crossing. He hit his brakes, but could not stop, striking the rear of
Vehicle #2.” Id., Ex. B, p.2. This explanation of events is reiterated in Deputy
McCullough’s deposition, in which he confirmed he wrote down verbatim what the
Plaintiff said to him in the moments after the accident. Id., Ex. A, p.10 (“The driver said
he was not paying attention.”). Taken together, this evidence supports the Defendants’
account of events and their motion for summary judgment.
The Court, nevertheless, must examine to what extent the Crash Report and
Deputy McCullough’s recitation of the Plaintiff’s statements are admissible for purposes
of supporting the Defendants’ motion. Although not all law enforcement reports are
admissible, evidence gleaned by officers and from others in certain police reports, like
accident reports, are admissible under the public records hearsay exception found in

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Federal Rule of Evidence 803(8).5 This exception applies in civil cases to an officer’s
first-hand observations that result from their investigation and experience. Reliastar Life
Ins. Co. v. Thompson, No. M-07-140, 2008 WL 4327259, at *4 (S.D. Tex. Sept. 16,
2008); Harris v. Browning-Ferris Indus. Chem. Servs., Inc., 635 F. Supp. 1202, 1209
(M.D. La. 1986), aff’d, 806 F.2d 259 (5th Cir. 1986). However, there is a limitation on
this exception: while factual findings are permitted under Rule 803(8), the opinions and
conclusions of an officer as they relate to the accident are not permitted. See Reliastar
Life Ins. Co., 2008 WL 4327259, *5. As a result, Deputy McCullough’s factual findings in
the Crash Report and his reconstruction of the event are pieces of evidence this Court
may consider in support of the Defendants’ motion. The Court, however, cannot
consider any of the opinions of Deputy McCullough or the Crash Report that express
which party was the cause-in-fact of the accident.
The Court may also consider the statements that the Plaintiff made to Deputy
McCullough after the accident, which are provided in the Crash Report as well. While
these statements could be excluded as hearsay within hearsay, they fall within another
exception to the hearsay rules. See Harris, 635 F. Supp. at 1209. These statements are
admissible and not considered hearsay under Federal Rule of Evidence 801(d)(2)(A),
because these statements are offered against an opposing party and were made in the
Plaintiff’s individual capacity. Fed. R. Evid. 801(d)(2)(A). The Plaintiff’s initially-admitted
lack of attention calls into question both the accuracy of his recollection and his later

5

Under Rule 803(8), the record or statement of a public official is admissible if it is in a civil case
and it sets out the “factual findings from a legally authorized investigation” and neither “the source of the
information nor other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8).

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assertions that he saw the Freightliner on the side of LA 1 and immediately slammed on
the brakes when he saw the truck pull onto the roadway. As discussed more below, the
Plaintiff’s contradictory statements create issues in terms of the Plaintiff’s credibility as a
witness, but they do not establish the Defendants’ construction of the events as true.
Additionally, the Crash Report includes statements from both the Freightliner’s
passenger and an independent witness who was not involved in the accident. Record
Document 5-3, Ex. B. Both these statements support the Defendants’ account of the
events.6 These statements, however, are not admissible because they are third-party
statements contained within an accident report. Manis v. Lawson, 585 F.3d 839, 844 n.3
(5th Cir. 2009) (“Third party statements included in a police report are not admissible
under the public records exception to the hearsay rule.”); see also Barnes v. Commerce
& Indus. Ins. Co., No. 11-0041, 2013 WL 6118352, at *1 (W.D. La. Nov. 20, 2013);
Harris, 635 F. Supp. at 1209.
When considered together, the Defendants have presented sufficient evidence to
carry their burden of establishing that there is no genuine factual issue as to the causein-fact of the accident. See Celotex Corp., 477 U.S. at 322. Because the Defendants
have satisfied this burden, the Court must now undertake an analysis of whether the
evidence the Plaintiff offers in opposition is sufficient enough to establish that there is a
genuine factual dispute as to the cause of the Plaintiff’s accident. See id. at 323-25; see

6

According to the passenger of the Freightliner, he and the driver were stopped “at the railroad
crossing when [they] where (sic) hit from behind.” Record Document 5-3, Ex. B., p.7. Even more
supportive of the Defendants’ claim, an independent witness reported, “I seen (sic) the Thomas Petroleum
truck stop at the railroad track with hazard lights on and the lock and safe van ran into the back of the
Thomas Petroleum truck.” Id. P.9. This independent witness affirms the Defendants’ account and the fact
that the Freightliner’s hazard lights were activated. Both these statements were made roughly thirty
minutes after the accident occurred. Id., pp.7,9.

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also Boudreaux, 402 F.3d at 540 (“A dispute as to a material fact is ‘genuine’ if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”).
In making this determination, the Court must construe the facts and make inferences in
a light most favorable to the Plaintiff. Cooper Tire & Rubber Co., 423 F.3d at 454.
The Plaintiff offers a simple explanation for why there is a genuine factual issue
as to causation using the same evidence as the Defendants: the Freightliner pulled onto
LA 1 at such a moment that there was no way for the Plaintiff to avoid the accident.
Record Documents 7, 9. In his deposition, the Plaintiff states that the Freightliner was
ahead of him on the shoulder the first time he noticed it and that the people within the
truck may have been eating lunch because somebody littered out the passenger
window on the shoulder before the accident. Record Document 9, Ex. C, pp.21-23. The
Plaintiff goes on to explain that right after he noticed the Freightliner on the shoulder of
LA 1, “[the Freightliner] pulls out and in a distance that’s–I’m wondering why he’s pulling
out in front of me at that point, because when I look up he’s–he’s right there up on the
road.” Id., p.22. The Plaintiff continues:
He pulls out in front of me and stops at this railroad crossing thing. I don’t
know how long. I’m doing 55 miles an hour, and he pulls out that–pulls out
in front of me where there’s just not a lot of room to–I can’t do anything.
There’s oncoming traffic. I got nowhere to go. I stand on the brake as hard
as I can.
Id., p.23. In this account of the events, the Plaintiff did not come up from behind the
Freightliner and then crash into the back of it; rather, he collided with the back of the
Defendants’ truck when it pulled from the shoulder onto the roadway with no time to
avoid the collision. Id., p.25.
These statements, and others like it, are the only supporting evidence the Plaintiff
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provides to rebut the claims and other evidence presented by the Defendants. Although
the assertions are unsupported by other evidence and possibly self-serving, the Plaintiff’s
explanation of events is sufficient to cause reasonable jurors to disagree as to which party
caused the accident. See Boudreaux, 402 F.3d at 540. Thus, the Plaintiff has presented a
plausible alternative explanation that a jury should be able to consider: whether the
Freightliner was properly on the roadway but acted negligently by pulling onto the road
only moments before the accident.7 At this stage of the litigation, it is not the Court’s role
to weigh the credibility of the Plaintiff’s account or that of the other possible witnesses,
like Deputy McCullough. Boudreaux, 402 F.3d at 540; Little, 37 F.3d at 1075.
IV.

Conclusion
Thus, in considering the facts presented as to the cause of the accident in a light

most favorable to the Plaintiff, this Court must DENY the Defendants’ Motion for
Summary Judgment [Record Document 5] because the Plaintiff has established a factual
dispute where a reasonable jury could return a verdict in his favor.
THUS DONE AND SIGNED in Shreveport, Louisiana, on the 26th of September,
2014.

7

Such an explanation could also fall within the exceptions to the presumption found in Louisiana
law that the “following driver” is negligent.

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