Yazzie v. Fezatte et al
MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting and denying re 69 Opposed MOTION for Summary Judgment as further described herein. (bap)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
No. 16 - cv - 00472 JAP
SETH FEZATTE, and
WERNER ENTERPRISES, INC.
MEMORANDUM OPINION AND ORDER
Derrick Yazzie (Plaintiff) filed suit against Defendants Seth Fezatte and Werner
Enterprises, Inc. (collectively, Defendants) seeking damages for personal injury he claims
resulted from Defendants’ alleged negligence and negligence per se in the operation of a semitractor trailer which struck Plaintiff on Interstate I-40 in New Mexico. 1 Plaintiff also states direct
claims against Defendant Werner for negligent hiring, training, supervision, retention and
entrustment. On September 11, 2017, Defendants moved for summary judgment on all of
Plaintiff’s claims, and this motion has been fully briefed. 2 After careful consideration of the
pertinent law, briefing, and exhibits, the Court will grant in part and deny in part Defendants’
Motion, with the result that only Plaintiff’s punitive damages claim will be dismissed. All
remaining claims will proceed to trial.
See PLAINTIFF’S FIRST AMENDED COMPLAINT (Doc. 7) (Complaint).
See WERNER ENTERPRISES, INC. AND SETH FAZATTE’S OPPOSED MOTION FOR SUMMARY
JUDGMENT (Doc. 69) (Motion); PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (Doc. 80) (Response); SETH FEZATTE AND WERNER ENTERPRISES, INC.’S
REPLY IN SUPPORT OF SUMMARY JUDGMENT (Doc. 83) (Reply).
On November 22, 2013, Plaintiff Derrick Yazzie was walking westbound near mile-
marker 18 on Interstate 40 near Gallup, New Mexico when he was struck by a commercial
vehicle owned by Defendant Werner Enterprises, Inc. and operated by Defendant Seth Fezatte.
Complaint ¶ 5; Def. Mot. Statement of Undisputed Material Facts (UMF) ¶¶ 1-2; Pl. Resp. ¶¶ 34. Prior to the collision, Defendant Fezatte had assumed driving responsibilities from his brother
Jaron Fezatte around 7:00 p.m. Central Standard Time (CST) 4 on November 21, 2013 outside of
Amarillo, Texas and headed west on Interstate 40. Mot. UMF ¶¶ 5-6, Resp. ¶ 6. Defendant
Fezatte stopped for a thirty-minute mandatory Department of Transportation break seventeen
miles east of Gallup, New Mexico at 2:15 a.m. CST/1:15 a.m. Mountain Standard Time (MST)
on November 22, 2013, and resumed driving at approximately 2:50 a.m. CST/1:50 a.m. MST.
Mot. UMF ¶¶ 7, 9, Resp. ¶ 6. Defendant Fezatte testified that as he approached Gallup, New
Mexico it was sleeting and weather conditions were “sub-optimal.” Mot. UMF ¶ 10 5; Fezatte
Dep. at 90:18 (Doc. 69-3). Defendant Fezatte further testified that as he was driving westbound
on Interstate 40 he felt an impact but, believing he struck a deer, continued to drive. Mot. UMF
The facts here are undisputed unless otherwise noted. Plaintiff addressed a number of Defendants’ asserted facts
with general objections and allegations of his pleading rather than specifying admissible evidence to show that the
fact is genuinely disputed. See Anderson v Liberty, Lobby, Inc., 477 U.S. 242, 259 (1986) (“a plaintiff may not, in
defending against a motion for summary judgment, rest on mere allegations or denials of his pleadings”). The
Federal Rules of Civil Procedure provide, “If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court may…consider the fact undisputed for
purposes of the motion[.]” Fed. R. Civ. P. 56(e). The local rules for the District of New Mexico similarly state that,
“All material facts set forth in the statement of the movant will be deemed admitted unless specifically
controverted.” D.N.M.LR-Civ. 56.1(b).
The time zone changes from Central Standard Time to Mountain Standard Time between Amarillo, Texas and
Gallup, New Mexico.
Plaintiff disputes this fact without offering specific evidence to controvert it, yet in his objection notes there were
“adverse weather conditions.” In the Statement of Material Facts (SMF) that Plaintiff proffered in his Response,
Plaintiff cites to the same portion of Fezatte’s testimony referring to the weather conditions. Resp. SMF ¶ 30.
Accordingly, the Court deems this fact admitted. See D.N.M.LR-Civ. 56.1(b).
¶¶ 3, 21, Fezatte Dep. at 95:24-96:6 (Doc. 69-3). 6 Defendant Fezatte testified that he pulled over,
assessed the damage to the tractor-trailer, and returned to what he believed was the location of
the impact to determine whether there was anything in the road. Mot. UMF ¶¶ 21, 23, 25-26;
Fezatte Dep. at 96-97, 101-02 (Doc. 69-3); Resp. SMF ¶¶ 34-38, Fezatte Dep. at 98-101 (Doc.
80-4). Finding nothing, he continued westbound on Interstate 40.
Around this time, Ruben Cosgrove was also traveling westbound on Interstate 40
operating another commercial vehicle ahead of Defendant Fezatte in the right lane. Mot. UMF ¶¶
16-17, Resp. ¶ 8. Mr. Cosgrove saw a male, later identified as Plaintiff, walking backwards on
the roadway as though he were hitchhiking. Mot. UMF ¶¶ 18-19, Resp. ¶ 8. Mr. Cosgrove
contacted authorities reporting a pedestrian on the interstate wearing a black jacket, white t-shirt
and jeans. Mot. UMF ¶¶ 27-28, Chischilly Dep. at 21, 26, 31, 38 (Doc. 69-4), Gallup Police
Report (Doc 69-1); Resp. ¶ 10. In response to this call, Officer Chavo Waylon Chischilly with
the Gallup Police Department was dispatched around 2:36 a.m. MST and, after seeing Plaintiff’s
shoe in the middle of the roadway, located Plaintiff lying face down in a muddy roadside area.
Mot. UMF ¶¶ 27, 29, Chischilly Dep. at 21, 33-34 (Doc. 69-4); Resp. ¶ 10.
Officer J. Koon of the Holbrook Police Department was dispatched in response to an
Attempt to Locate (ATL) a blue Werner commercial vehicle with a nonoperational front
headlight as described to officers by Mr. Cosgrove. Mot. UMF ¶ 32, Holbrook Police Report at 3
(Doc. 69-6). Officer Koon stopped Defendant Fezatte. Mot. UMF ¶ 33, Holbrook Police Report
at 3 (Doc. 69-6). Defendant Fezatte was then interviewed in Holbrook, Arizona by Detective
Victor Rodriguez from the Gallup Police Department. Mot. UMF ¶ 39, Rodriguez Dep. at 16-17
Plaintiff does not dispute that Defendant Fezatte continued to drive after he felt an impact, but does dispute that
Fezatte believed he had struck an animal. Resp. ¶ 5.
Doc 69-7). 7 Plaintiff does not recall any of the events leading up to or immediately following the
On April 14, 2016, Plaintiff filed a Complaint for Personal Injury Damages in the
Eleventh Judicial District Court for the State of New Mexico against Seth Fezatte and Werner
Enterprises, Inc. (Doc. 1-1). On May 24, 2016, Defendants removed this action to the United
States District Court for the District of New Mexico invoking the Court’s diversity jurisdiction
under 28 U.S.C. § 1332. (Doc. 1). On June 21, 2016, Plaintiff filed his First Amended
Complaint. (Doc. 7). Plaintiff’s First Amended Complaint broadly asserts two claims for
negligence, one claim against Defendant Fezatte (Count I) and the other against Defendant
Werner Enterprises, Inc. (Count II). Based on the alleged acts or omissions that Plaintiff
enumerated under each negligence claim, the Court interprets the First Amended Complaint to
assert the following claims: 1) negligence against Defendant Fezatte directly and against
Defendant Werner under a theory of respondeat superior; 2) negligence per se against both
Defendants; and 3) negligent training, hiring, supervision, retention and entrustment directly
against Defendant Werner Enterprises. Defendants ask the Court to enter summary judgment in
their favor on all claims.
Summary judgment is appropriate “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). When applying this standard, the Court “view[s] the facts and evidence submitted by the
Plaintiff disputes these facts responding with allegations from his pleadings rather than specific evidence to
controvert them, while also citing to portions of the same evidence used by Defendants to support their proposed
facts. See Holbrook Police Department, Pl. Ex. 3-A (Doc. 80-5). As a result, the Court will deem these facts as
Plaintiff disputes Defendants’ UMF ¶¶ 62-79 and 81 regarding the Plaintiff’s memory of the events leading up to
the collision with a general objection, stating in part that whether the Plaintiff can recall these events has little
bearing on Defendant Fezatte’s alleged negligence..
parties in the light most favorable to the nonmoving party.” Christy v. Travelers Indem. Co. of
America, 810 F.3d 1220, 1225 (10th Cir. 2016). A “material” fact is one that “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “A dispute over a material fact is ‘genuine’ if a rational jury could find in favor of
the nonmoving party on the evidence presented.” E.E.O.C. v. Horizon/CMS Healthcare Corp.,
220 F.3d 1184, 1190 (10th Cir. 2000). “[A] defendant may be granted summary judgment
whenever plaintiffs fail adequately to support one of the elements of their claim upon which they
ha[ve] the burden of proof.” Milne v. USA Cycling Inc., 575 F.3d 1120, 1125-26 (10th Cir. 2009)
(internal quotation marks and citation omitted) (second alteration original).
In diversity cases, “the substantive law of the forum state governs the analysis of the
underlying claims.” Kovnat v. Xanterra Parks & Resorts, 770 F.3d 949, 954 (10th Cir. 2014)
(citation omitted). Accordingly, the Court will apply the substantive law of New Mexico.
A. Plaintiff’s Negligence Claims Against Defendants Fezatte and Werner
To establish negligence under New Mexico state law Plaintiff must demonstrate that: (1)
Defendants owed a duty to Plaintiff; (2) Defendants breached that duty; (3) Plaintiff suffered
injury; and (4) breach of a duty was the cause of the injury. See Zamora v. St. Vincent Hosp.,
2014-NMSC-035, ¶ 22, 335 P.3d 1243, 1249. Whether a duty exists is a question of law for the
courts to decide. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 73 P.3d 181, 185-86. But the
“question of breach…is a factual one that is typically left to a jury, except in rare cases where the
evidence is susceptible to only one possible inference.” Carl v. City of Overland Park, Kan., 65
F.3d 866, 869 (10th Cir. 1995). Proximate cause is also generally a question of fact for the jury.
Lujan v. New Mexico Dept. of Transp., 2015-NMCA-005, ¶ 35, 341 P.3d 1, 10.
The undisputed facts establish that Defendant Fezatte was driving a commercial vehicle
owned by Werner Enterprises, Inc. in the early morning hours of November 22, 2013 that struck
Plaintiff who was walking on Interstate 40 near Gallup, New Mexico. Defendant Fezatte testified
that he never saw Plaintiff, and believed he had hit an animal. The undisputed facts further
establish that Ruben Cosgrove was driving a commercial vehicle in the right lane some distance
ahead of Defendant Fezatte and saw Plaintiff dressed in a black shirt and jeans walking
backwards on the roadway.
These facts do not definitively establish the cause of the accident, and are susceptible to
the two different inferences proffered by the parties. Based on the undisputed facts alone, a
reasonable juror could infer, as Plaintiff argues, that because Mr. Cosgrove saw Plaintiff in the
roadway, Defendant Fezatte also should have been able to see and avoid Plaintiff but did not
because he was fatigued, failed to keep a proper lookout, and was driving inappropriately for the
weather conditions. Resp. ¶¶ 22-23. From this same set of facts, a reasonable jury could conclude
to the contrary, as Defendants claim, that Mr. Fezatte was alert, well-rested, driving safely for the
current road conditions, and that no act or omission on his part caused the collision. Rather,
Defendants argue that Plaintiff was the proximate cause of the accident because he was walking
in the dark on a stretch of Interstate 40 prohibited to pedestrians while wearing dark clothes, and
was not visible to Defendant Fezatte. 9 Mot. ¶¶ 97-107, 123. Accordingly, the question of
whether Defendant Fezatte breached his duty of care must be left for the jury. Moreover, because
there is a factual dispute between the parties as to whose allegedly negligent conduct caused the
Defendants also allege that Plaintiff was intoxicated at the time of the collision and that his impaired judgment
caused or contributed to cause the accident. Mot. ¶¶ 125-127. Plaintiff filed PLAINTIFF’S MOTION TO STRIKE
& OBJECTION TO DEFENDANTS’ SUMMARY JUDGMENT EVIDENCE-EXHIBIT 14 [DOC. 69-14] (Doc.
78) related to the blood alcohol test performed on Plaintiff by Gallup Indian Medical Center, and requests that any
facts or arguments set forth by Defendants contending that Plaintiff was impaired should be struck. Because even
the undisputed facts are susceptible to more than one reasonable inference, this matter need not be addressed at this
accident – Defendant Fezatte’s or Plaintiff’s - the proximate cause of Plaintiff’s injuries is a
question of fact for the jury. 10
Because genuine issues of material fact remain for trial as to whether Defendant Fezatte
breached his duty of care and/or proximately caused Plaintiff’s injuries, the Court will deny
summary judgment to Defendants on Plaintiff’s negligence claim against Defendant Fezatte and
his claim of respondeat superior against Defendant Werner Enterprises, Inc. See Harrison v.
Lucero, 1974-NMCA-085, ¶ 12, 525 P.2d 941, 944 (“the exoneration of the servant removes the
foundation upon which to impute negligence to the master”).
B. Plaintiff’s Negligence Per Se Claims Against Defendants Fezatte and Werner
In New Mexico, negligence per se consists of four elements:
(1) There must be a statute [or regulation] which prescribes certain actions
or defines a standard of conduct, either explicitly or implicitly, (2) the
defendant must violate the statute [or regulation], (3) the plaintiff must be
in the class of persons sought to be protected by the statute, and (4) the
harm or injury to the plaintiff must generally be of the type the Legislature
through the state sought to prevent.
Cobb v. Gammon, 2017-NMCA-022, ¶ 43, 389 P.3d 1058, 1073.
In support of his negligence per se claim, Plaintiff relies on alleged violations by both
Defendants of several provisions of the Federal Motor Carrier Safety Act and implementing
New Mexico courts adopted a system of comparative fault which the state legislature codified in NMSA 1978, §§
41-3A-1 to -2 (1987). Safeway, Inc. v. Rooter 2000 Plumbing & Drain SSS, 2016-NMSC-009, ¶ 18, 368 P.3d 389,
396. In a pure comparative fault system, “any defendant who establishes the fault of another is a proximate cause of
a plaintiff’s injury shall be liable for only that portion of the total dollar amount awarded as damages to the plaintiff
that is equal to the ration of such defendant’s fault to the total fault attributed to all persons, including plaintiffs,
defendants, and persons not a party to the action.” NMSA 1978, § 41-3A-1(B).
regulations, 49 C.F.R. §§ 350, et seq. 11 Complaint ¶¶ 10, 13. Defendants do not specifically
address the four elements of a negligence per se claim and do not argue that elements 1, 3 or 4
are not satisfied. Liberally construed, Defendants’ argument appears to be directed at the second
element of the negligence per se claim and whether Defendant Fezatte violated the pertinent
statute or regulations. Mot. ¶¶ 147-150. Defendants’ only argument is that summary judgment is
proper on Plaintiff’s negligence per se claims because Plaintiff cannot present any evidence that
Defendant Fezatte’s conduct was the proximate cause of the accident. Id. Though Plaintiff
submits facts and general statements that could be interpreted as addressing negligence per se,
Plaintiff does not respond directly to Defendants’ argument or address the four elements of a
negligence per se claim for each of the regulations he contends Defendants violated. 12
Nevertheless, because the Court has already determined that proximate cause is a question for
the jury and Defendants offer no further argument, the Court will deny Defendants’ summary
judgment on Plaintiff’s negligence per se claims that are premised on alleged violations of the
Federal Motor Carrier Safety Act and implementing regulations.
C. Plaintiff’s Claims for Negligent Hiring, Training, Supervision, Retention
and Entrustment against Werner Enterprises, Inc.
“Negligence in hiring or retention is based on the employer’s negligent acts or omissions
in hiring or retaining an employee when the employer knows or should know, through the
exercise of reasonable care, that the employee is incompetent or unfit.” Lessard v. Coronodo
Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 28, 168 P.3d 155, 165. Similarly, a claim that
Plaintiff specifically cites to 49 C.F.R. §§ 391.11, 391.13, 391.15, 391.21, 391.23, 391.25, 391.27, 391.31, 391.33,
391.41, 391.41, 391.45, 391.51, 391.53, 391.63 which he collectively refers to as “Operating a commercial motor
vehicle in the U.S. without qualifying under the Federal Motor Carrier Safety Act.” Complaint ¶ 10. As against
Defendant Werner Plaintiff claims several violations of Federal Motor Carrier Safety Act Regulations including 49
C.F.R. §§ 395.3 (maximum driving time); 391.11, et seq (operating a commercial motor vehicle in the United States
without reasonable qualifications, training, testing and experience); 383.113(b) (basic vehicle control skills, safe
driving skills, air brake skills, pre-trip inspection skills); 383.111 (for failing to educate and train Fezatte and other
drivers on the “required knowledge elements”).
In fact, the term “negligence per se” does not appear at all in Plaintiff’s Response brief.
Werner was negligent in training or supervising Defendant Fezatte requires Plaintiff to show that
Werner knew or should have known that Defendant Fezatte was unfit as a driver and that Werner
nonetheless failed to exercise reasonable care in training or supervising him, thereby causing
injury to Plaintiff. See Lessard, 168 P.3d at 165 (“A principal who conducts an activity through
an agent is subject to liability for harm to a third party caused by the agent’s conduct if the harm
was caused by the principal’s negligence in … training…supervising, or otherwise controlling
the agent.” (citing Restatement (Third) of Agency § 7.05(1) (2006)). Negligent entrustment
likewise requires Plaintiff to demonstrate that Defendant Werner entrusted its vehicle to
Defendant Fezatte, that Werner either knew or should have known that Defendant Fezatte was an
incompetent driver, and that Defendant Fezatte’s incompetence caused Plaintiff’s injury.
DeMatteo v. Simon, 1991-NMCA-027, ¶ 6, 812 P.2d 361, 363.
Once again, Defendants center their entire argument in favor of summary judgment on
Plaintiff’s direct claims against Defendant Werner Enterprises on their allegation that Plaintiff
cannot establish evidence that Defendant Fezatte’s conduct proximately caused the collision.
Mot. ¶¶ 139-146. The Court notes that in response, Plaintiff fails to directly address Defendant’s
argument or demonstrate that he can satisfy the elements of these direct claims, nor does he
provide evidence of alleged deficiencies on Defendant Werner’s part in hiring, training,
supervising and retaining Defendant Fezatte with the exception of some unsupported conclusory
statements from Plaintiff’s proposed expert Wayne Miller, whose disputed opinions are the
subject of another motion. 13 Resp. ¶ 54. Yet, because the Court has already determined that
Defendants’ alleged negligence is a question of fact to be determined by the jury, absent another
See SETH FEZATTE AND WERNER ENTERPRISES, INC.’S OPPOSED MOTION TO EXCLUDE SHAWN
WAYNE MILLER’S PURPORTED “EXPERT” OPINIONS. (Doc. 68).
argument from Defendant, the Court will deny summary judgment to Defendants on Plaintiff’s
claims of negligent hiring, training, supervision, retention and entrustment.
D. Plaintiff’s Claim for Punitive Damages
Defendants argue that Plaintiff is not entitled to punitive damages because Plaintiff lacks
any evidence to establish that Defendant Fezatte had a culpable mental state. Reply ¶ 26. In
response, Plaintiff merely states that “evidence shows that Defendants’ negligent operation of the
commercial motor vehicle in striking Plaintiff and causing him to suffer” injury are issues of fact
for the jury to decide. (Doc. 80 at ¶ 65) (emphasis added).
Under New Mexico law, negligent conduct alone is insufficient to support a finding of
punitive damages. Rather, “[t]o be liable for punitive damages, a wrongdoer must have some
culpable mental state, and the wrongdoer’s conduct must rise to a willful, wanton, malicious
reckless, oppressive, or fraudulent level[.]” Clay v. Ferrellgas, Inc., 1994-NMSC-080, ¶ 12, 118
N.M. 266, 269 (internal citations omitted); see also NMRA, Civ. UJI 13-1827 (instructing that
punitive damages may be awarded against the tortfeasor if that person’s conduct “was malicious,
willful, reckless, wanton, fraudulent or in bad faith”).
The New Mexico Uniform Jury
Instruction (UJI) 13-1827 further defines these terms:
Malicious conduct is the intentional doing of a wrongful act with the knowledge
that the act was wrongful. Willful conduct is the intentional doing of an act with
the knowledge that harm may result. Reckless conduct is the intentional doing of
an act with utter indifference to the consequences. When there is a high risk of
danger, conduct that breaches the duty of care is more likely to demonstrate
recklessness. Wanton conduct is the doing of an act with utter indifference to or
conscious disregard for a person’s safety.
Plaintiff has not offered sufficient evidentiary support for his punitive damages claims,
despite the opportunity to create a genuine dispute as to material facts. Depositions have been
taken from the Plaintiff, Defendant Fezatte, Wayne Miller, Plaintiff’s retained expert in trucking
safety, and officers who responded to the incident that is the subject of this suit including Officer
Chischilly and Detective Rodriguez. Plaintiff has not cited to any deposition testimony or other
evidence to raise an issue regarding whether Defendant Fezatte’s conduct was “malicious,
willful, reckless, wanton, fraudulent or in bad faith.” NMRA, Civ. UJI 13-1827. Plaintiff has not
met his burden on summary judgment to demonstrate that there is a genuine issue of fact for trial
regarding Defendant Fezatte’s culpable mental state that would support a punitive damages
claim. The Court will grant summary judgment in favor of Defendants on Plaintiff’s punitive
IT IS THEREFORE ORDRED that WERNER ENTERPRISES, INC. AND SETH
FEZATTES’S OPPOSED MOTION FOR SUMMARY JUDGMENT (Doc. 69) is GRANTED
as to Plaintiff’s claims for punitive damages, and DENIED as to Plaintiff’s claims for negligence
per se and negligence against both Defendants, and as to negligent hiring, training, supervision,
retention and entrustment directly against Defendant Werner Enterprises, Inc.
SENIOR UNITED STATES DISTRICT JUDGE
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