Mason v. Dunn et al
Filing
131
OPINION AND ORDER by Magistrate Judge Kimberly E. West denying 40 Motion for Summary Judgment. (sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RICHARD A. MASON,
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MAURITA T. DUNN;
SCHNEIDER NATIONAL
CARRIERS, INC.; and
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendants.
Case No. CIV-14-282-KEW
OPINION AND ORDER
This matter comes before the Court on Defendants Maurita T.
Dunn and Schneider National Carriers, Inc.’s Motion for Summary
Judgment (Docket Entry #40).
On October 11, 2011, Plaintiff was
involved in a traffic accident with a tractor trailer driven by
Defendant Maurita T. Dunn (“Dunn”), owned and operated by Defendant
Schneider National Carriers, Inc. (“Schneider”), and insured by
Defendant Liberty Mutual Insurance Company.
Plaintiff struck the
back of the semi-tractor trailer driven by Dunn causing him injury.
Plaintiff testified in his deposition that he could not recall
anything for about a week prior to the accident. (Depo. of Richard
A. Mason, p. 36, ll. 21-22).
His recollections are strictly based
upon what he has been told by his attorney and others.
37,
l.
24;
p.
39,
ll.
10-11,
14;
p.
48,
ll.
(Id., p.
18-19,
23-24
Defendants state in their recitation of undisputed facts that
“Plaintiff does recall seeing the tractor trailer before the
accident
occurred.”
This
is
inaccurate.
When
asked
if
he
remembered the truck before impact, Plaintiff responded “no.”
(Id., p. 40, ll. 9-11; p. 46, ll. 17-21).
Plaintiff consistently
testified that he did not remember anything from the accident
including the fact he struck Defendants’ truck (Id., p. 108, ll. 113), whether Dunn was doing “anything illegal” (Id., p. 108, ll.
14-16),
the relative speed of the vehicles (Id., p. 40, ll. 3-8),
whether he was on his phone or playing music (Id., p. 40, ll. 1523), the circumstances of the impact (Id., p. 47, ll. 7-8), whether
he attempted to swerve his vehicle (Id., p. 47, ll. 9-11), whether
he applied his brakes (Id., p. 47, ll. 12-14), whether he took any
action to avoid the collision (Id., p. 47, ll. 15-17), whether the
equipment on Dunn’s truck was functioning (Id., p. 49, ll. 19-24),
whether he fell asleep prior to the accident (Id., p. 64, ll. 2022).
Not surprisingly, Plaintiff could also not recall if Dunn did
anything wrong, save what his attorney told him.
(Id., p. 48, ll.
11-13, 17-19). His first recollection after the accident is waking
up “trapped in my car with a truck engine, my truck engine sitting
in my lap and the semitruck is about a foot away from me.”
(Id.,
p. 51, ll. 9-11).
Employing the services of an expert, Major Larry Paul Owen
2
(“Owen”)1,
Plaintiff
alleges
that
Dunn
was
traveling
at
approximately 22 miles per hour while Plaintiff was traveling at
approximately
73
miles
per
hour.
Owen
further
stated
that
Plaintiff was braking and steering to the right upon impact.
Owen
concluded in his report that Dunn’s driving at such a slow speed
posed an extreme hazard to other motorists.
Plaintiff also employed the services of John C. Glennon, Jr.
who offered the opinion that Dunn and Schneider violated various
provisions
of
the
Federal
Motor
Carrier
Safety
Regulations
(“FMCSR”) when operating the tractor-trailer in a mechanically
unsafe manner where it could only move at approximately 25 miles
per hour.
Plaintiff alleges Defendants had the opportunity to
obtain repairs on the tractor-trailer but negligently failed to do
so.
Plaintiff also asserts Schneider failed to systematically
inspect the tractor-trailer to ascertain its roadworthiness as
required by the FMCSR.
Based upon these allegations, Plaintiff brings this action for
both negligence and negligence per se.2
1
This Court acknowledges Defendants’ filing of motions in
limine challenging the admissibility of Plaintiff’s experts’
opinions on March 18, 2016. However, Defendants did not challenge
the admissibility of these expert reports at the time of the
briefing on summary judgment, as they did not reply to Plaintiff’s
response.
2
Plaintiff’s Second Amended Complaint filed December 10, 2015
also maintains claims for negligent training and supervision of Dunn
against Schneider. By Opinion and Order entered September 28, 2015,
this Court granted Schneider summary judgment on these claims.
3
Defendants offered the accident report of the Oklahoma Highway
Patrol which indicated Plaintiff was “apparently sleepy” and Dunn
engaged in “no improper action.” The same report also acknowledges
that Dunn’s vehicle was “slowed.”
Summary judgment is appropriate only if there is no genuine
dispute of material fact and the moving party 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); Henderson v. Inter–Chem Coal
Co., Inc., 41 F.3d 567, 569–70 (10th Cir. 1994).
Whether there is
a genuine dispute as to a material fact depends upon whether the
evidence presents a sufficient disagreement to require submission
to a jury or is so one-sided that one party must prevail as a
matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000).
Once the moving party meets its initial burden
of demonstrating an absence of a genuine dispute of material fact,
the burden then shifts to the nonmoving party to demonstrate the
existence of a genuine dispute of material fact to be resolved at
trial.
See 1–800–Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229,
1242 (10th Cir. 2013)(citation omitted).
A fact is “material” if
it pertains to an element of a claim or defense; a factual dispute
is “genuine” if the evidence is so contradictory that if the matter
went to trial, a reasonable jury could return a verdict for either
party.
Anderson, 477 U.S. at 248.
4
The facts must be considered in
the light most favorable to the nonmoving party.
Cillo v. City of
Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013)(citations
omitted).
The Court will not consider statements of fact, or rebuttals
thereto, which are not material or are not supported by competent
evidence.
Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). Only
admissible evidence may be considered when ruling on a motion for
summary judgment.
Jaramillo v. Colorado Judicial Dep't, 427 F.3d
1303, 1314 (10th Cir. 2005)(citation omitted) (holding that hearsay
evidence is not acceptable in opposing a summary judgment motion);
World of Sleep, Inc. v. La–Z–Boy Chair Co., 756 F.2d 1467, 1474
(10th Cir. 1985).
In its Motion, Dunn and Schneider primarily maintain that the
operation of the tractor-trailer at a slow speed on a highway may
have furnished a condition by which the accident was possible but
the subsequent acts of Plaintiff in driving in a distracted manner
and not paying attention to traffic operated as the proximate cause
of the accident.
Both litigants cite the case of Thur v. Dunkley, 474 P.2d 403
(Okla. 1970) as the prevailing authority on this legal point.
Oklahoma Supreme Court stated
the proximate cause of an injury must be the efficient
cause which sets in motion that chain of circumstances
leading to the injury, if the negligence complained of
merely furnished a condition by which the injury was made
possible and a subsequent independent act cause the
injury the existence of such condition is not the
5
The
proximate cause of the injury.
Id. at 405.
Without doubt, proximate cause is an essential element of a
claim for relief based on negligence and negligence per se under
Oklahoma law.
Jackson v. Jones, 907 P.2d 1067, 1072 (Okla. 1995);
Tomlinson v. Love's Country Stores, Inc., 854 P.2d 910, 915 (Okla.
1993).
which
The proximate cause of an event or injury must be that
in
a
natural
and
continuous
sequence,
unbroken
by
an
independent or supervening cause, produces the event or injury and
without which the event or injury would not have occurred.
Gaines
v. Providence Apartments, 750 P.2d 125, 126–27 (Okla. 1987).
An
independent cause which will break the causal nexus between a
defendant's negligence and the injury is a supervening cause.
Thompson v. Presbyterian Hospital, Inc., 652 P.2d 260, 264 (Okla.
1982).
A cause is a supervening cause which will operate to
insulate the original actor from liability only if it meets a
three-pronged test. Id. It must be 1) independent of the original
act; 2) adequate of itself to bring about the result; and 3) one
the occurrence of which was not reasonably foreseeable.
Id.
The
fact that an injury would not have occurred except for or but for
the original act does not negate the existence of an intervening
cause or render the original act the proximate cause of an event or
injury, notwithstanding the existence of a supervening cause.
Henry v. Merck and Co., Inc., 877 F.2d 1489, 1494 (10th Cir. 1989)
6
quoting Beesley v. United States, 364 F.2d 194, 196 (10th Cir.
1966).
The question of proximate cause is generally one of fact for
the jury; it becomes one of law only when there are no facts or
evidence from which a jury could reasonably find the required
causal nexus between the act and the injury. Jackson v. Jones, 907
P.2d at 1073.
Whether there are any facts or evidence that would
support a jury finding of proximate cause is a question of law for
the court. Id.
nature
of
The Oklahoma Supreme Court explained the factual
the
issue
of
an
intervening
act
or
event's
foreseeability:
The question of an intervening event's foreseeability
calls for an evaluative determination by the trier of
fact. Whether the injurious consequences that resulted
from the original negligence could have been reasonably
foreseen is an issue traditionally within the realm of
fact, not law.
If the intervening force is of a
character which (under the circumstances) would induce
belief that it might be reasonably expected to occur, the
final element is not met and the causal chain will remain
unbroken.
Disputed, relevant facts call for the jury's evaluative
determination on this issue.
Jackson v. Jones, 907 P.2d at 1073 (footnotes omitted).
The evidence remains in dispute as to causation.
It can
certainly be argued that Dunn’s speed contributed to the causation
of
the
accident
and
did
not
merely
provide
an
avenue
for
Plaintiff’s superceding negligence to constitute the proximate
cause of Plaintiff’s injuries based upon the evidence presented.
7
It remains a question of fact for the jury as the trier of fact to
ascertain the foreseeability of the actions of each respective
party to cause the injury that resulted.
As a result, summary
judgment is not appropriate at this time.
IT IS THEREFORE ORDERED that Defendants Maurita T. Dunn and
Schneider National Carriers, Inc.’s Motion for Summary Judgment
(Docket Entry #40) is hereby DENIED.
IT IS SO ORDERED this 22nd day of March, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
8
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