Lopez v. United States of America et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion of defendant Shea Pyron for summary judgment [Doc. # 45 ] is granted. Judgment will be entered in favor of the defendant at the conclusion of all proceedings in this case. Signed by District Judge Carol E. Jackson on 3/14/13. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SHEA PYRON, et al.,
Case No. 4:11-CV-891 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Shea Pyron for
summary judgment on Count II of the complaint.1 Plaintiff has filed a response in
opposition to the motion and the issues are fully briefed.
Plaintiff Manny Lopez was a passenger in a vehicle being operated by defendant
when it collided with a United States Postal Service truck. Plaintiff claims that the
collision was caused by defendant’s negligence and he seeks to recover damages for the
injuries he sustained.
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v.
Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
In Count I, plaintiff asserts a claim against the United States based on the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a 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 Corporation v. Catrett, 477 U.S. 317, 322 (1986).
On August 13, 2009, plaintiff was a passenger in a vehicle operated by defendant
when it was struck from behind by a United States Postal Service truck operated by
Robert Cleveland. The collision occurred at the intersection of Washington Avenue and
Tucker Boulevard in St. Louis, Missouri. In her deposition, defendant testified that she
changed from the right lane to the left lane on Tucker Blvd., two blocks before the
intersection where the collision occurred. This testimony is corroborated by plaintiff who
testified that defendant changed lanes “at least two stoplights” prior to reaching the
intersection. Defendant further testified that she used her turn signal prior to changing
lanes, and that she was traveling the speed limit at the time. Defendant stated that as
she approached the intersection, she slowed down and came to a complete stop. While
stopped, she looked in her rear-view mirror and saw the postal truck strike her vehicle.
She testified that she had “just enough time to get stiff” before the collision occurred.
According to plaintiff, defendant’s vehicle was stopped for three seconds prior to the
Plaintiff testified that he heard the postal truck’s air brakes prior to the
The police arrived at the scene approximately nine minutes after the accident.
A police report was prepared containing the following statement attributed to Mr.
Cleveland, the driver of the postal truck:
Driver of vehicle #1 stated he was driving north on Tucker
Blvd approaching Washington. He advised the two cars in
front of him had gotten into the left turn lane to head west
on Washington. He advised the light at Tucker Blvd and
Washington Avenue started to change from green to yellow
when vehicle #2 suddenly “jumped” in front of him from the
lane to his right.
The parties did not take Mr. Cleveland’s deposition and he is now deceased.
The elements of a negligence claim in Missouri are (1) a legal duty by the
defendant to conform to a certain standard of conduct to protect others against
unreasonable risks, (2) a breach of that duty, (3) a proximate cause between the
conduct and the resulting injury, and (4) actual damages to the plaintiff’s person or
property. Rill v. Trautman, 950 F.Supp. 268, 271 (E.D. Mo. 1996) (citing Horn v.
B.A.S.S., 92 F.3d 609, 611 (8th Cir. 1996)). In the complaint, plaintiff claims that
defendant was negligent in the following ways: (1) not paying attention to the operation
of her vehicle; (2) failing to keep a careful lookout; (3) failing to exercise care to avoid
the accident; (4) operating her vehicle in excess of the speed limit; (5) operating her
vehicle too fast for conditions; and (6) failing to signal her intent to change lanes.
It is undisputed that defendant used her turn signal and that she was driving
within the speed limit. There is no evidence that defendant either failed to keep a
careful lookout or that by looking out more carefully, the collision could have been
avoided. Further, plaintiff corroborated defendant’s testimony that she changed lanes
approximately two blocks before the intersection where the collision occurred and that
the defendant’s vehicle had come to a complete stop before it was struck by the postal
truck. Nevertheless, plaintiff argues that the statement attributed to Mr. Cleveland in
the police report is evidence that defendant caused or contributed to cause the accident
and, therefore, summary judgment cannot be granted. Specifically, plaintiff refers to
the statement that defendant “suddenly ‘jumped’ in front of” Mr. Cleveland’s vehicle.
In reviewing a motion for summary judgment, a court “can consider any material
that would be admissible at trial.” Rill, 950 F.Supp. at 269 (emphasis added). The police
report is unquestionably hearsay, as defined in Rule 801 of the Federal Rules of
As such, the report is not admissible evidence, unless it falls under an
exception to the hearsay rule. FED. R. EVID. 802.
Plaintiff has not presented any facts establishing an exception to the hearsay rule
that would apply to police report. Nothing in the statement attributed to Mr. Cleveland
can be construed as a statement against his own interests.
FED. R. EVID.
804(b)(3)(statement made by a declarant who is unavailable as a witness may be
excepted from the hearsay rule if it is “so contrary to the declarant’s proprietary or
pecuniary interests or had so great a tendency to . . . expose the declarant to civil or
criminal liability” that he would not have made the statement unless it were true). To
the contrary, the statement attributes fault to the plaintiff.
The statement also cannot be construed as a present sense impression, because
it was not made “while or immediately after the declarant perceived” the event the
statement describes. FED. R. EVID. 803(1). Based on the time the police arrived at the
scene, the statement was made at the earliest nine minutes after the accident occurred.
“The underlying rationale of the present sense impression exception is that substantial
contemporaneity of event and statement minimizes unreliability due to defective
recollection or conscious fabrication.” United States v. Beck, 122 F.3d 676, 681-82 (8th
Cir. 1997); see United States v. Manfre, 368 F.3d 832 (8th Cir. 2004) (declining to
apply present sense impression exception where intervening walk or drive took place
between events and the time statements were given). In this case, the nine-minute
lapse of time between the event and the statement created an “opportunity for strategic
modification [which] undercuts the reliability that spontaneity insures.” Manfre, 368
F.3d at 840.
Here, Mr. Cleveland had more than enough time to reflect on his story
prior to giving a statement to the police.
The excited utterance exception under
Rule 803(2) includes a somewhat more lenient temporal component than the exception
for present sense impressions. An excited utterance is a “statement relating to a
startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” FED. R. EVID. 803(2). The justification for
this exception is that “the stress of nervous excitement or physical shock ‘stills the
reflective faculties,’ thus removing an impediment to truthfulness.” United States v.
Sewell, 90 F.3d 326, 327 (8th Cir. 1996) (quoting United States v. Elem, 845 F.2d 170,
174 (8th Cir. 1988)). Defendant argues that the justification for the exception is absent
here and therefore the exception does not apply. The Court agrees.
In determining whether the excited utterance exception applies, the focus is on
whether “the statement was spontaneous, excited or impulsive rather than the product
of reflection and deliberation.” United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.
1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). In
determining whether the statement was spontaneous or a product of reflection, the
court may “consider the lapse of time between the startling event and the statement,
whether the statement was made in response to an inquiry, the age of the declarant,
the physical and mental condition of the declarant, the characteristics of the event, and
the subject matter of the statement.” Reed v. Thalacker, 198 F.3d 1058, 1061 (8th Cir.
The time lapse in this case does not alone preclude application of the exception.
Iron Shell, 633 F.2d 77 (statements elicited by a police officer between 45 minutes and
one hour and 15 minutes after an assault were admissible).
circumstances indicate that the statement was given in response to the police officer’s
inquiry. No facts have been presented to the Court showing that Mr. Cleveland was in
a stressed mental state when he made the statement. Finally, the subject matter of
the statement---the assignment of fault to the other driver---is classic “finger-pointing”
which weighs against applying the exception. Given the circumstances of this case, the
excited utterance exception does not apply.
For the reasons discussed above, the Court concludes that the police report is
hearsay and not admissible under any exception to the hearsay rule. Because the
inadmissible report is the only evidence that plaintiff relies on to establish his negligence
claim, the defendant is entitled to judgment as a matter of law on Count II.
IT IS HEREBY ORDERED that the motion of defendant Shea Pyron for summary
judgment [Doc. # 45] is granted.
Judgment will be entered in favor of the defendant at the conclusion of all
proceedings in this case.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 14th day of March, 2013.
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