O'Neill Leary v. Delarosa et al
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 6/21/17. (kld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
KATHLEEN E. O'NEILL LEARY,
Case No. 5:16-cv-43
ESTEBAN DELAROSA, JR., et al.,
Michael F. Urbanski
United States District Judge
This matter comes before the court on defendants Esteban Delarosa, Jr. and SDR
Trucking, LCC's motion to strike, ECF No. 33, and motion for summary judgment, ECF
No. 20. 1 Plaintiff Kathleen O'Neill Leary responded to these motions, ECF Nos. 27, 39, and
defendants replied, ECF Nos. 34, 40. The court addressed these matters at a hearing on
April 6, 2017. For the reasons set forth below, the court will deny defendants' motion for
summary judgment and the related motion to strike.
This case is about an auto accident that occurred on December 26, 2012 on Interstate
81 in Frederick County, Virginia. Delarosa, as an employee of SDR Trucking, 2 was driving a
The parties have filed other motions that the court will address at a later date. Defendants' motion
to exclude plaintiffs expert Anthony Cometto, III, ECF No. 22, O'Neill Leary's motion for recusal,
ECF No. 25, and defendants' motion in limine, ECF No. 49, are each intertwined with plaintiffs
yet-to-be filed motion for spoliation sanctions. O'Neill Leary has indicated her intent to file such a
spoliation motion, ECF No. 38, at 3, but has not done so to date. The court will take ECF Nos. 22,
25, and 49 under advisement until the issue most common to those motions becomes ripe for
SDR Trucking admits that "Delarosa was acting in the course and scope of his employment at the
time of the accident." Answer, ECF No. 3, at~ 4.
semi-trailer truck that collided with plaintiff O'Neill Leary's suburban utility vehicle
("SUV"). O'Neill Leary alleged injuries and flied suit in Frederick County Circuit Court
against Delarosa and SDR Trucking for negligence, claiming $500,000 in damages.
Defendants removed this case to federal court on July 19, 2016 under diversity jurisdiction.
At the time of the accident, snow and freezing rain made for slippery roads and poor
visibility. O'Neill Leary and Delarosa were travelling northbound on I-81 when O'Neill
Leary engaged her brakes and her SUV began to slide. See Pl.'s Dep., ECF No. 46, at 48:3-4
("I tapped my brakes and my rear tires fishtailed."); Delarosa Dep., ECF No. 44, at.31:5-7
("[S]he starts to hit the brakes. Then she spins out. She starts to spin."). Delarosa, who was
travelling behind O'Neill Leary, "pump[ed the] brakes" to avoid colliding with her SUV.
Delarosa Dep., 32:2-10, 35:14. His efforts were unsuccessful and the front of Delarosa's
truck collided with the rear of O'Neill Leary's SUV. Delarosa Dep., 37:12-21.
State Police Trooper Joshua Myers attended to the 1accident and issued citations to
both Delarosa and O'Neill Leary. Delarosa received a ticket for following too closely in
violation of Virginia Code§ 46.2-816, which subjected him to a fine. Va. Code Ann.§ 16.169.40:1; Rules of the Supreme Court of Virginia 3B:2. Delarosa prepaid the penalty
associated with the citation. Com. v. Delarosa, GT13000167-00 0fa. Gen. Dist. finalized
Feb. 25, 2013). O'Neill Leary received a ticket for reckless driving in violation of Virginia
Code § 46.2-852. She appeared before the Frederick General District Court, which dismissed
her citation by nolle prosequi. Com. v. O'Neill-Leary, GT13000168-00 (ya. Gen. Dist.
finalized May 21, 2013).3
Defendants move to strike O'Neill Leary's filings in opposition to summary judgment
because she submitted those filings beyond the deadline set forth in the Scheduling Order.
ECF No. 33. The Scheduling Order requires opposition briefs to be filed within fourteen
days of the date of service of the movant's brief. ECF No. 17 ~ 8. Defendants filed their
motion for summary judgment on February 7, 2017. ECF No. 21. O'Neill Leary flied her
response in opposition to summary judgment, ECF No. 27, and supporting brief, ECF No.
28, on March 6, 2017, twelve days past the deadline. 4 These delayed circumstances,
defendants assert, "compel the conclusion that Plaintiffs recent filings with this Court be
stricken." ECF No, 34, at 6. Defendants further contend that as a consequence of striking
O'Neill Leary's opposition to summary judgment, defendants' motion for summary
judgment would be unopposed, and therefore, the court must dismiss this action with
prejudice. ECF No. 40, at 1.
When a party fails to comply with the court's Scheduling Order, the court may "issue
any just orders" to remedy the noncompliance. Fed. R. Civ. P. 16(±). Appropriate sanctions
include "prohibiting the disobedient party from ... opposing designated claims or defenses,
or from introducing designated matters in evidence." Fed. R. Civ. P. 37(b)(2)(A)(ii)
Information regarding Delarosa's and O'Neill Leary's citations can be found on the Virginia Courts
website at https:/ / eapps.courts.state.va.us/gdcourts/nameSearch.do?fromSidebar=true&form
O'Neill Leary also filed an affidavit in support of her opposition to summary judgment on March
8, fourteen days after the deadline. ECF No. 31.
(incorporated by reference in Rule 16(±)). If such sanctions would lead to dismissal with
prejudice, then the punishment would be "an extreme sanction" only appropriate in rare
circumstances. Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). In determining
whether sanctions are appropriate, the court must consider, inter alia, "(1) the degree of
actual prejudice to the defendant, (2) the amount of interference with the judicial process,
[and] (3) the culpability of the litigant" Jones, 996 F.2d at 264. The decision to impose
sanctions is within the trial court's discretion. Bolus v. Fleetwood RV, Inc., 646 F. App'x
316, 317 (4th Cir. 2016), cert. denied, 137 S. Ct. 640 (2017).
In this case, defendants have not articulated any manner in which the untimeliness of
O'Neill Leary's filings caused defendants prejudice. Moreover, O'Neill Leary's two week (or
so) delay in filing her opposition to summary judgment did not significantly interfere with
the judicial process. While O'Neill Leary should have exercised more diligence, the absence
of prejudice indicates that her culpability in failing to do so was negligible. Therefore, the
court will deny defendants' motion to strike O'Neill Leary's response in opposition to
summary judgment and will consider that response in assessing defendants' motion for
Defendants move for summary judgment under Rule 56, arguing (1) O'Neill Leary's
contributory negligence bars plaintiff's recovery; and (2) Delarosa was not negligent in
operating his truck as a matter of law. ECF Nos. 20, 21. O'Neill Leary argues in response
that multiple questions of fact are in dispute and require resolution by a jury. The court
agrees with O'Neill Leary and will deny defendants' motion for summary judgment.
Pursuant to Rule 56(a), the court must "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); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this
determination, the court should consider "the pleadings, depositions, answers to
interrogatories, and admissions on flle, together with ... [any] affidavits" flled by the parties.
Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). "Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry
of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has
been met, the non-moving party must then come forward and establish the specific material
facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).
In determining whether a genuine issue of material fact exists, the court views the
facts and draws all reasonable inferences in the light most favorable to the non-moving
party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)).
an 'axiom that in ruling on a motion for summary judgment, the evidence of
the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her]
favor."' McAirlaids, Inc. v. Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at *1
(4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S. Ct. 1861,
1863 (2014) (per curiam)). Moreover, "[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge ...."Anderson, 477 U.S. at 255. However, the non-moving party "must set
forth specific facts that go beyond the 'mere existence of a scintilla of evidence."' Glynn, 710
F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show
that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict
for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th
Cir. 2005) (quoting Anderson, 477 U.S. at 249). "In other words, to grant summary judgment
the [c]ourt must determine that no reasonable jury could find for the nonmoving party on
the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing Perini
Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).
In her complaint, O'Neill Leary asserts that Delarosa's negligence in operating his
truck caused the accident on December 26, 2012. Compl., ECF No. 1-1, ~ 6. The parties
agree that Delarosa was acting within the scope of his employment with SDR Trucking
when the accident occurred. Compl.
4; Answer ~ 4. Therefore, if Delarosa is found to be
liable for O'Neill Leary's injuries resulting from the accident, such liability will be imputed to
SDR trucking under the doctrine of respondeat superior. Because negligence is a state law
cause of action, Virginia law governs the substantive issues in this case.
Under Virginia law, a driver of a motor vehicle has a duty to exercise ordinary care,
which includes the duty to "keep a proper lookout," to "keep his vehicle under proper
control," and to "operate his vehicle at a reasonable speed under the circumstances and
traffic conditions then and there existing, regardless of any posted speed limit." Todt v.
Shaw, 223 Va. 123, 130 n.1, 286 S.E.2d 211, 215 n.1 (1982). Virginia imposes a pure
contributory neg~gence rule, meaning that "any negligence of a plaintiff which is a proximate
cause of the accident will bar a recovery." Litchford v. Hancock, 232 Va. 496, 499, 352
S.E.2d 335, 337 (1987). In other words, if defendants show that O'Neill Leary's·contributory
negligence proximately caused the accident, her claim must fail even if Delarosa was also
negligent. See Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d 404, 407 (2005) (noting that
"[c]ontributory negligence is an affirmative defense").
O'Neill Leary's Contributory Negligence
In their motion for summary judgment, defendants ask the court to find O'Neill
Leary guilty of contributory negligence as a matter of law. Defendants support their
argument with the following assertions:
In this case, looking first to the plaintiffs own conduct, regardless of her own
testimony that she was traveling 35 miles per hour, it is undisputed that she
was traveling at a rate of speed in excess of all other vehicles on the roadway
on the snowy morning in question. It is undisputed that the conditions were
treacherous. It is, likewise, undisputed that [O'Neill] Leary actually passed
Delarosa's truck well in excess of his speed, with vehicles ahead of her at the
exit already beginning to brake. When [O'Neill] Leary finally noti'ced the
vehicles and slammed on her own brakes, it is finally undisputed that she lost
complete control over her own vehicle and began fishtailing before she
eventually veered into Delarosa's truck.
Def.s' Br. in Supp. of Summ. J., ECF No. 21, at 10. Defendants conclude that "these facts
clearly demonstrate [O'Neill] Leary's failure to exercise reasonable care in the operation of
her vehicle under Virginia law." Id.
Defendants rather loosely characterize the "undisputed" facts in this case. For
example, O'Neill Leary contends that she did not pass Delarosa's truck prior to the accident,
Pl.'s Br. in Opp'n to SummJ., ECF No. 28, at 6; Pl.'s Dep., ECF No. 46, at 61:22-23 ("I first
saw [the tractor-trailer] when I was on a backboard being put into the emergency squad"),
and she certainly does not concede that she passed Delarosa "well in excess of his speed,'; as
stated by defendants, ECF No. 21, at 10. 5 Likewise, O'Neill Leary testified that she "tapped
on [her] brakes and [her] rear tires fishtailed," Pl.'s Dep. 48:4, not that she "slammed" her
brakes or "lost complete control," ECF No. 21, at 10. As noted, the court may not make
credibility determinations or resolve material factual disagreements in ruling on a motion for
summary judgment. Anderson, 477 U.S. at 255.
Even if the events surrounding the accident were clear, it is unlikely the court would
decide O'Neill Leary's actions constituted contributory negligence as a matter oflaw. "The
issue whether a plaintiff is guilty of contributory negligence is ordinarily a question of fact to
be decided by the fact finder." Jenkins, 269 Va. at 389, 611 S.E.2d at 407. This is one of the
ordinary cases. The parties have differing views of O'Neill Leary's conduct prior to the
accident and disagree as to whether O'Neill Leary was careless in causing the accident.
Resolution of those disputes must be undertaken by a jury. Therefore, the court will deny
defendants' motion for summary judgment on contributory negligence grounds.
While Delarosa testified that plaintiff was "gassing on it" when she "vroom[ed]" by his truck,
Delarosa's Dep., ECF No. 44, at 30:21-24, O'Neill Leary disputes this claim.
Defendants also ask the court to determine, as a matter of law, that Delarosa was not
negligent in operating his truck. Defendants argue that O'Neill Leary's negligence claim is
based on "pure speculation" and therefore must fail. ECF No. 21, at 10-11. Defendants also
detail the efforts Delarosa took to avoid the collision with O'Neill Leary in an effort to
illustrate his lack of negligence in causing the accident. O'Neill Leary contends in response
that "under Virginia law, the issue of negligence is normally a matter for the trier of fact."
Johnson v. United States, 528 F.2d 489, 491 (4th Cir. 1975).
As defendants note, Virginia law requires "the plaintiff who alleges negligence to
show why and how the accident happened, and if that is left to conjecture, guess or random
judgment, he cannot recover." Hoffner v. Kreh, 227 Va. 48, 53, 313 S.E.2d 656, 658 (1984)
(quoting Weddle v. Draper, 204 Va. 319, 322, 130 S.E.2d 462, 465 (1963)). In other words,
"[n]egligence cannot be
from the mere happening of an accident." Id. at 52, 313
S.E.2d at 658. In Hoffner, a pedestrian was struck and killed on a state highway. His
administratrix sued the driver of the car alleging negligence. The Virginia Supreme Court
rejected the negligence claim because the plaintiff offered no evidence whatsoever "as to
how he became prone in the lane of traffic." Id. at 53, 313 S.E.2d at 659; see also Farren v.
Gilbert, 224.Va. 407, 297 S.E.2d 668 (1982) (barring negligence action where the record was
"void of any evidence to explain how and why the accident happened"); Doe v. Terry, 273
Va. 3, 10, 639 S.E.2d 197,201 (2007) (same).
The "why and how'' line of cases is inapplicable, however, where there "is no
fundamental confusion ... over whether [plaintiff's] evidence is sufficient to show that
someone acted negligently." Bundick v. Doe, No. 5:10-CV-123, 2011 WL 2600534, at *5
(W.D. Va. June 29, 2011). Indeed, it is well settled that "the factfinder may draw reasonable
inferences from proven facts." Rich v. Commonwealth, 292 Va. 791, 800, 793 S.E.2d 798,
803 (2016). Once the plaintiff describes the basic events surrounding an accident-the "why
and how" it occurred-then disputes over remaining facts, breach of duty, and causation do
not require the jury to engage in "conjecture, guess or random judgment." See Lovelace v.
Urbano, 37 Va. Cir. 114, 1995 WL 17049047, *8 (1995) (despite opposing testimony from
expert witnesses as to breach and causation, the record was "replete with evidence of how
and why" plaintiff's death occurred).
In this case, O'Neill Leary has clearly satisfied her burden of showing how and why
the accident occurred. On December 26, 2012, Delarosa's truck collided with the rear of
O'Neill Leary's SUV. After the accident, Trooper Myers attended the scene and investigated
the collision. See Myers Decl., ECF No. 34-1, at 2. Trooper Myer's declaration, together with
the deposition testimony from both drivers involved in the accident, shows that O'Neill
Leary's claim is based on more than speculation and that a jury would not be left to mere
conjecture in deciding this case.
In fact, O'Neill Leary presents more than just the how and why the accident took
place, she also offers evidence that could lead a reasonable jury to find Delarosa liable for
her alleged injuries. Specifically, Trooper Myers issued Delarosa a citation for following too
closely in violation of Virginia Code§ 46.2-816, suggesting that Delarosa breached his duty
of care. Section 46.2-816 prohibits drivers from "follow[ing] another vehicle ... more closely
than is reasonable and prudent, having due regard to the speed of both vehicles and the
traffic on, and conditions of, the highway at the time." Va Code Ann.§ 46.2-816. In addition
to serving as the basis for a traffic citation, § 46.2-816 provides the standard of care
applicable in negligence actions when a driver is alleged to have followed another vehicle too
closely. See Martin v. Isbill, No. 141886, 2015 WL 10990104, at *3 (Va. Dec. 3, 2015);
Clifton v. Gregory, 212 Va. 859, 862, 188 S.E.2d 203,206 (1972).6
Moreover, Delarosa prepaid the fine associated with the citation for following too
closely. Com. v. Delarosa, GT13000167-00 (Va. Gen. Dist. finalized Feb. 25, 2013).
Prepayment of a fine imposed for a traffic infraction in Virginia operates as a plea of guilty
and holds "the same force and effect as a judgment of court" Va. Code Ann.§ 16.169.40:1(B).7 While Delarosa's prepayment of the fine does not conclusively establish his
liability in this case,s his judicial admission that he followed O'Neill Leary too closely
In Clifton v. Gregory, 212 Va. 859, 188 S.E.2d 203 (1972), the Supreme Court of Virginia
addressed the division of responsibility between judges and juries in deciding whether a driver
negligently followed another too closely:
We have construed [§ 46.2-816] as granting a driver the right to follow another
vehicle as closely as is reasonable and prudent under the circumstances. What
constitutes a reasonable distance must, in each instance, depend upon the particular
facts involved. When reasonable minds can differ as to what constitutes a reasonable
and prudent distance under the circumstances then the question becomes a jury
Id. at 862, 188 S.E.2d at 206; cf. Johnson, 528 F.2d at 491-92 ("In the rare rear-end collision case,
however, undisputed facts may point so unerringly to liability that Virginia courts are permitted to
find negligence as a matter of law.").
O'Neill Leary also received a citation for reckless driving; however, that charge was later dropped
by nolle prosequi. Com. v. O'Neill-Leary, GT13000168-00 (Va. Gen. Dist. fmalized May 21, 2013).
A nolle prosequi disposition "terminate[s] the chargeD as if [it] had never existed." Armel v. Com.,
28 Va. App. 407, 410 (1998).
As the Virginia Supreme Court noted in Estate of Moses ex rel. Moses v. Sw. Virginia Transit
Mgmt. Co., 273 Va. 672, 643 S.E.2d 156 (2007):
[W]hile the violation of a statute regulating traffic constitutes negligence, it does not
necessarily follow that such negligence will as a matter of law [determine a party's
liability]. There must be a causal connection between the violation of the statute and
the injury, otherwise the violation is immaterial.
forecloses summary judgment. 9 As is ordinarily the case, O'Neill Leary's negligence claim
must be submitted to a jury. Johnson, 528 F.2d at 491. The court will deny defendants'
motion for summary judgment in its entirety.
For the forgoing reasons, the court will deny defendants' motion to strike, ECF No.
33, and deny defendant's motion for summary judgment, ECF No. 20.
An appropriate Order will be entered.
Michael F. Ur
United States District Judge
Id. at 679, 643 S.E.2d at 160. Therefore, Delarosa will be free to argue at trial that his following too
closely offense was not the proximate cause of the accident with O'Neill Leary.
Defendants' argument on the topic of Delarosa's citation is unavailing. They contend that
"[a]lthough Delarosa prepaid the ticket rather than take time from his job to fight it, this is
insufficient to establish a factual basis for negligence in this case." ECF No. 21, at 12. This argument
runs contrary to the standards governing summary judgment, wherein the court must draw all
reasonable inferences in the light most favorable to O'Neill Leary. Glynn, 710 F.3d at 213.
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