Guy v. Fornea 5, LLC
ORDER denying 31 Motion for Summary Judgment. Signed by District Judge Keith Starrett on 1/9/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ROBERT E. GUY, INDIVIDUALLY AND
ROBERT E. GUY, WRONGFUL DEATH
BENEFICIARY OF PEGGY GUY, DECEASED
CIVIL ACTION NO. 2:15-CV-146-KS-MTP
FORNEA 5, LLC
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment  filed by
Defendant Fornea 5, LLC. After considering the submissions of the parties, the record, and the
applicable law, the Court finds that this motion is not well taken and should be denied.
This action is centered around a vehicle collision during which a car driven by Plaintiff
Robert E. Guy (“Plaintiff”) collided with a truck and trailer driven by Thomas Owens (“Owens”),
who was employed at the time by Defendant Fornea 5, LLC (“Defendant”). This collision occurred
in the southbound lane of MS Highway 13 in Marion County, Mississippi, on January 29, 2015.
Plaintiff was traveling south at 59 miles per hour, as measured by the airbag control module of his
car. Owens exited a lumber plant and entered the southbound lane in front of Plaintiff. Owens
claims he did not see Plaintiff’s car, though he admits, from the exit of the lumber plant, he could
see “almost to Expo [sic],” referring to a community more than a mile north of the plant. (Owens
Depo. [40-3] at 58:7-15.) The data from the truck’s monitoring systems is unavailable due to a
failure to preserve, but Owens testified that he “[c]ouldn’t have been going no [sic] more than fifteen
miles an hour” because he had only shifted gears once and would not have been able to accelerate
any faster with a loaded truck. (Id. at 63:13-24.) Plaintiff testified that Owens “pulled out ahead
of [them]” and stopped in the lane, at which point he “did all [he] could to avoid the accident.” (Guy
Depo. [40-2] at 43:7-19.) Plaintiff braked five seconds before impact, slowing to 52 miles per hour
before colliding with the back of the trailer. (Id. at 36:13-23; see also Walton Report [40-1] at p.
5.) Plaintiff lost consciousness upon impact, and his wife, Peggy Guy, sustained fatal injuries as a
result of the collision. Owens did not become aware of the collision until flagged down by people
at a gas station,1 who told him that a car was lodged under the back of his trailer. (Owens Depo.  at 41:19-42:6.) Owens admits that he does not know where the collision occurred, only that it
occurred before he reached the gas station and that he believes Plaintiff could not have hit him right
after he exited the lumber plant because the car was “nowhere insight” when he pulled out. (Id. at
Standard of Review
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment
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). “Where the burden of production at trial
ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary
support in the record for the nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808,
812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant must then
“come forward with specific facts showing that there is a genuine issue for trial.” Id. “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v. Sandy Creek
The Court has not been made aware of the precise location of this gas station in relation to
the lumber plant.
Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex.,
246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the evidence is sufficient for a
reasonable [fact-finder] to return a verdict for the nonmoving party.” Cuadra, 626 F.3d at 812
The Court is not permitted to make credibility determinations or weigh the evidence. Deville
v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, “the court must
view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving
party.” Sierra Club, 627 F.3d at 138.
Defendant’s Motion for Summary Judgment 
The Mississippi Supreme Court has held that “except in the clearest cases[,] questions of
negligence are for the jury.” Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss. 1992)
(quoting Bell v. City of Bay St. Louis, 467 So.2d 657, 664 (Miss 1985)) (internal quotations omitted).
Despite whether facts are disputed or not, “where reasonable minds may reach different conclusions,
negligence is a jury issue.” Id. (citations omitted).
Defendant relies heavily on their expert witness’s opinion as to where the collision took
place and how far from the lumber plant Plaintiff’s car had to have been prior to Owens pulling out
based on this point of collision. This analysis is far from undisputed as the testimony given by
Plaintiff, who is the only living and identifiable witness to the actual collision, would place the
collision closer to the lumber plant’s driveway where Owens first entered the highway. (See Guy
Depo. [40-2] at 43:7-19.) The Court is unsure how Defendant’s expert arrived at the point of impact
that he did, as the report asserts it as an established fact rather than an opinion, (see Walton Report
[40-1] at p. 5), but as this is summary judgment and all facts and inferences to be drawn must be
viewed in favor of the nonmoving party, see Sierra Club, 627 F.3d at 138, the Court takes as true
Plaintiff’s assertion that he saw Owens when he pulled out and immediately did all that he could to
avoid an accident. (See Guy Depo. [40-2] at 43:5-9.) Based on the fact that Plaintiff braked five
seconds before impact and the fact that Defendant’s expert opined that it would have taken Owens
eighteen seconds to reach the point of impact he determined, a reasonable jury, taking Plaintiff’s
testimony as true, could infer that the collision occurred nearer to the lumber plant’s driveway than
Defendant’s expert determined. (See id. at 36:13-23; see also Walton Report [40-1] at p. 5.)
Because the expert’s opinion that Plaintiff was approximately 1,124 feet2 from the driveway when
Owens entered the highway is based on his determination that the collision occurred about 372 feet
from the driveway,3 if one figure is incorrect, then both figures are incorrect.
Therefore, the expert report does not establish through “unimpeachable contradictory
evidence and universal experience” that Plaintiff’s testimony “is contradictory to the laws of nature.”
(Memo. in Support  at p. 5.) Because Defendant’s Motion for Summary Judgment  is
premised on the argument that Plaintiff had ample time to observe Owens and avoid the collision
and because the facts underlying this argument are disputed and a reasonable jury could resolve this
dispute in favor of Plaintiff on the evidence in the record, the Court finds that the motion is not well
taken and should be denied.
Even if this figure were taken to be true, because Owens testified that he could see nearly a
mile of the highway north of the driveway when he pulled out, he should have been able to see
Plaintiff’s car even if it was 1,124 feet away. (See Owens Depo. [40-3] at 58:7-15.) The
question for the jury would then be whether it was negligence to pull out in front of Plaintiff at
This distance is found nowhere else in the record other than in the expert’s report, where it is
asserted as a fact without reference to how it was determined.
IT IS THEREFORE ORDERED AND ADJUDGED Defendant’s Motion for Summary
Judgment  is denied.
SO ORDERED AND ADJUDGED this the
9th day of January, 2017.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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