Ortiz et al v. Cooper Tire & Rubber Company
Filing
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ORDER granting in part and denying in part 39 Motion for Partial Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 03/25/2015. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MANUELLA ORTIZ, as surviving spouse
of JUAN GUTIERREZ PEREZ, et al.,
Plaintiffs,
v.
COOPER TIRE & RUBBER COMPANY,
Defendant.
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Case No. CIV-13-32-D
ORDER
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment on Defendant
Cooper’s Affirmative Defenses [Doc. No. 39]. Defendant Cooper Tire & Rubber Company
has timely opposed the Motion, and the time for filing a reply brief has expired.
Standard of Decision
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a
dispute of material fact warranting summary judgment. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). If the movant carries this burden, the nonmovant must then go beyond
the pleadings and “set forth specific facts” that would be admissible in evidence and that
show a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998). “To accomplish this, the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671; see
also Fed. R. Civ. P. 56(c)(1)(A). The Court’s inquiry is whether the facts and evidence
identified by the parties present “a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477
U.S. at 251-52.
Plaintiffs’ Motion
This case concerns an automobile accident allegedly as the result of a defective tire
manufactured by Defendant. Plaintiffs seek a determination that Defendant cannot prevail
on certain affirmative defenses asserted in its Answer. However, Plaintiffs present no facts
to show they are entitled to summary judgment on these defenses; they merely list challenged
defenses and state for each one that Defendant has no evidence to support it. Plaintiffs’
Motion fails to comply with Rule 56(c) and LCvR56.1(b). Nevertheless, Defendant has
responded to the Motion by presenting facts, properly supported in the manner required by
Rule 56(c), that purport to show a genuine dispute exists.
Discussion
Plaintiffs have failed to carry their burden as movants to demonstrate that there is no
genuine dispute as to any material fact bearing on Defendant’s challenged defenses.
Moreover, upon consideration of Defendant’s response, the Court finds that Defendant has
presented specific facts that show a genuine issue for trial regarding most challenged
defenses. The exceptions to this finding are: (1) Defendant states in its response that it
“withdraws the affirmative defense of joint venture or enterprise,” see Def.’s Resp. Br. [Doc.
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No. 58], p.12; (2) Plaintiffs’ abandonment of their breach of warranty claims renders all
contractual defenses moot, see Pls.’ Resp. Def.’s Mot. Summ. J. [Doc. No. 60], p.1
(announcing “Plaintiffs abandon any warranty claims”); see also Def.’s Resp. Plfs.’ Mot.
Summ. J. [Doc. No. 58], p.6, 13-14 (stating certain defenses are viable only “to the extent
Plaintiffs are bringing a breach of warranty claim” and arguing warranty claims require
privity); and (3) the Court finds legally unsupportable Defendant’s argument that the
decedent, Juan Gutierrez Perez, and a defendant who suffered paraplegia as a result of the
accident, Carlos Morales, failed to mitigate their damages by not wearing seatbelts. See
Def.’s Resp. Plfs.’ Mot. Summ. J. [Doc. No. 58], pp.14-15.
A duty to mitigate damages arises when a plaintiff suffers an injury as a result of the
defendant’s conduct. Conduct occurring before the accident is not a damages issue. See
Fields v. Volkswagen of Am., Inc., 555 P.2d 48, 62 (Okla. 1976) (“One’s duty to mitigate
damages cannot arise before he is damaged. The failure to minimize must occur after the
injury.”). Accordingly, to the extent Defendant’s affirmative defense of failure to mitigate
damages is based on the injured persons’ failure to buckle their seatbelts before the accident,
this defense fails as a matter of law.
However, to the extent Defendant contends that Carlos Morales unreasonably failed
to mitigate his damages by not obtaining medical care that would have improved his physical
condition, mobility, and functional capacity after his injury, the Court finds that Defendant
has demonstrated a genuine dispute of material fact regarding this affirmative defense. It is
well established in Oklahoma “that a person injured by the negligence of another is bound
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to use ordinary care in the treatment of such injury, and cannot recover enhanced damages
arising from his neglect to exercise such care.” City of Ada v. Smith, 175 P. 924, 925 (Okla.
1917). Although research reveals no Oklahoma case authorities directly on point, other
jurisdictions have held that a defendant asserting a mitigation-of-damages defense raises a
triable issue of fact by presenting evidence that an injured plaintiff acted unreasonably in
refusing or discontinuing treatment. See, e.g., Fox v. Evans, 111 P.3d 267, 269-270 (Wash.
App. 2005); see also Jancura v. Szwed, 407 A.2d 961, 963 (Conn. 1978) (“It has long been
a rule of general application that one who has been injured by the negligence of another must
use reasonable care to promote recovery and prevent any aggravation or increase of the
injuries. When there are facts in evidence which indicate that a plaintiff may have failed to
promote his recovery and do what a reasonably prudent person would be expected to do
under the same circumstances, the court, when requested to do so, is obliged to charge on the
duty to mitigate damages.”) (internal quotation and citation omitted). Therefore, the Court
finds that Plaintiff is not entitled to summary judgment on the affirmative defense of failure
to mitigate damages.
Conclusion
For these reasons, Plaintiffs are entitled to summary judgment on the following
defenses: joint venture or enterprise; doctrines of privity or disclaimer; privity of contract;
and to the extent based on a lack of seatbelt usage, failure to mitigate damages. In all other
respects, Defendant has demonstrated a genuine dispute of material facts with regard to its
affirmative defenses.
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IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Partial Summary
Judgment on Defendant Cooper’s Affirmative Defenses [Doc. No. 39] is GRANTED in part
and DENIED in part, as set forth herein.
IT SO ORDERED this 25th day of March, 2015.
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