Auville v. B&B Metals, Inc. et al

Filing 20

MEMORANDUM OPINION AND ORDER granting Defendants' 15 MOTION for Summary Judgment. Defendant West Virginia Department of Transportation Division of Highways is DISMISSED as a party to this case. The Clerk is DIRECTED to remove this case from the court's docket. Signed by Senior Judge David A. Faber on 2/23/2016. (cc: counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
TERRY AUVILLE,
Plaintiff,
v.

CIVIL ACTION NO. 1:15-cv-01905

B&B METALS, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is a motion for summary judgment
submitted by defendants B&B Metals, Inc. and Joseph Marcum.
(Doc. No. 15).

For the reasons that follow, the motion is

GRANTED.
I.

Factual Background
The instant dispute arises from an automobile accident that

occurred on United States Route 52 in Elkhorn, West Virginia.
(Doc. No. 1, Exh. A at 3).

On the morning of July 29, 2013,

plaintiff was driving a 1995 Toyota Tacoma truck southbound on
U.S. 52.

Id.

Defendant Marcum was just ahead of plaintiff,

driving a 2011 Mack Truck Tractor, owned by his employer,
defendant B&B Metals, Inc.

Id.

This stretch of roadway has

only one lane in each direction, but widens to two lanes in
either direction as Route 52 nears Elkhorn Station Road.

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Id.

As the two vehicles approached Elkhorn Station Road on
their left, plaintiff alleges defendant Marcum steered his truck
tractor towards the right lane, then attempted to turn left onto
Elkhorn Station Road.

Id. at 4–5.

At the same time, plaintiff

attempted to pass defendant Marcum’s truck tractor on the left,
over an unbroken double-yellow line, crossing into the
northbound lane of U.S. 52.
16 at 2).

(Doc. No. 1, Exh. A at 5; Doc. No.

The two vehicles collided, causing plaintiff’s truck

to overturn approximately two to three times.
A at 5).

(Doc. No. 1, Exh.

As a result of the accident, plaintiff contends that

he suffered a number of injuries, including a stroke and
continuing vision problems.

(Doc. No. 1, Exh. A at 7; Doc. No.

16 at 2).
Senior Trooper J.K. Weiss of the West Virginia State Police
responded to the accident.

(Doc. No. 16 at 2).

In his

investigation, Senior Trooper Weiss determined that plaintiff
did not yield the right-of-way, disregarded road markings, and
improperly passed.

(Doc. No. 16, Exh. B at 10).

Senior Trooper

Weiss further concluded that the actions of defendant Marcum did
not contribute to the accident.

Id. at 6.

Plaintiff filed a complaint in the Circuit Court of
McDowell County, West Virginia, alleging negligence on the part
of defendant Marcum and vicarious liability on the part of

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defendant B&B Metals, Inc.1

(Doc. No. 1, Exh. A).

Defendants

B&B Metals and Marcum removed the case to this court on February
18, 2015, invoking the court’s diversity jurisdiction.
No. 1).

(Doc.

On December 23, 2015, defendants B&B Metals and Marcum

moved this court for summary judgment.

(Doc. No. 15).

It

appears that plaintiff does not contest this motion as he has
not filed a response.
II.

Legal Standard

In evaluating summary judgment motions, Rule 56(a) of the
Federal Rules of Civil Procedure provides that “[t]he court
shall grant summary judgment if the movant shows that there is
no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.”

Material facts are

those necessary to establish the elements of a party’s cause of
action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

A genuine issue of material fact exists if, in viewing

the record and all reasonable inferences drawn therefrom in the
light most favorable to the non-moving party, a reasonable juror

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Plaintiff’s complaint lists three defendants in its caption:
B&B Metals, Inc., Joseph Marcum, and the West Virginia
Department of Transportation Division of Highways [sic]. (Doc.
No. 1, Exh. B). However, his complaint does not list any cause
of action against the West Virginia Department of
Transportation. All allegations and causes of action are
directed solely towards defendants B&B Metals and Marcum. Id.
at 3–7. Accordingly, defendant West Virginia Department of
Transportation is hereby DISMISSED as a party to this action.
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could return a verdict for the non-movant.

Id.

The moving

party has the burden of establishing that there is an absence of
evidence to support the nonmoving party’s case.

Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986).
A party is entitled to summary judgment if the record as a
whole could not lead a rational trier of fact to find in favor
of the non-movant.
Cir. 1991).

Williams v. Griffin, 952 F.2d 820, 823 (4th

Conversely, summary judgment is not appropriate if

the evidence is sufficient for a reasonable fact-finder to
return a verdict in favor of the non-moving party.
477 U.S. at 248.

Anderson,

Even if the parties do not dispute the

evidentiary facts, summary judgment is not appropriate when the
parties dispute ultimate factual conclusions.

Overstreet v. Ky.

Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
III. Discussion
In their motion for summary judgment, defendants argue that
plaintiff cannot support a claim of negligence against defendant
Marcum.

“Negligence is the failure of a reasonably prudent

person to exercise due care in his conduct toward others from
which injury can occur.”
473 (W. Va. 1956).

Walker v. Robertson, 91 S.E.2d 468,

“To prove negligence, a plaintiff must

establish by a preponderance of the evidence:

(1) a duty which

the defendant owes him; (2) a negligent breach of that duty; and
(3) injuries received thereby, resulting proximately from the
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breach of that duty.”

O’Bryan v. Synthes, Inc., Civil Action

No. 5:13-cv-25981, 2015 WL 1220973, at *6 (S.D.W. Va. Mar. 17,
2015) (quoting Webb v. Brown & Williamson Tobacco Co., 2 S.E.2d
898, 899 (W. Va. 1939)) (internal quotation marks omitted).

A

successful negligence claim requires plaintiff to prove “that
the defendant’s breach of duty was more likely than not the
cause of the injury.”

Murray v. United States, 215 F.3d 460,

463 (4th Cir. 2000) (internal citations omitted).

Plaintiff

bears the burden of demonstrating these elements by a
preponderance of the evidence.

Webb, 2 S.E.2d at 899; see also

Murray, 215 F.3d at 463.
The parties seem to be in agreement on the critical facts
of this case.

Plaintiff admitted in his deposition that he

attempted to pass defendant Marcum’s truck tractor on a doubleyellow road line.

(Doc. No. 15, Exh. C at 8–9).

Such a line

indicates that it is against the law to cross into the opposite
lane to pass another vehicle.
(2015).

See West Virginia Code § 17C-7-7

Senior Trooper Weiss’s investigation revealed the same

fact--that plaintiff disregarded the road markings when he
attempted to pass defendant Marcum’s truck tractor.

Plaintiff

argued in his complaint that defendant Marcum did not use his
turn signal when turning left, but this allegation is
unsupported.

In his statement taken immediately after the

accident, defendant Marcum stated that he did use his left turn
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signal.

(Doc. No. 15, Exh. B at 7).

Senior Trooper Weiss

concurred with this and did not cite defendant Marcum for
failure to signal for turn or stop.

Id.

Furthermore, Senior

Trooper Weiss concluded that defendant Marcum did not contribute
to the crash in any fashion.

(Doc. No. 15, Exh. B at 6).

As a

result, defendants have carried their burden to demonstrate an
absence of evidence supporting plaintiff’s case.
Taking the record as a whole, defendants are entitled to
summary judgment.

Plaintiff has not offered any evidence that

defendant Marcum breached any duty owed to him.

Nor has

plaintiff demonstrated that his injuries resulted, more likely
than not, from any of defendant Marcum’s conduct.

Instead, the

evidence indicates that plaintiff caused the accident, not
defendant Marcum.

Even though there were two southbound lanes

and a double-yellow line preventing passing, plaintiff still
attempted to pass defendant Marcum’s truck tractor by driving
into the northbound lane of Route 52.

It was plaintiff’s own

negligence, rather than any on the part of defendant Marcum,
that led to plaintiff’s injuries.

A reasonable trier of fact

could not find in plaintiff’s favor, and, therefore, defendant
Marcum is entitled to summary judgment.
As plaintiff cannot demonstrate that defendant Marcum acted
negligently, he also cannot demonstrate that defendant Marcum’s
employer, defendant B&B Metals, is liable for defendant Marcum’s
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actions.

Consequently, the court finds summary judgment is

appropriate for both defendants.
IV.

Conclusion

For the reasons stated above, defendants B&B Metals’s and
Joseph Marcum’s motion for summary judgment, (Doc. No. 15), is
GRANTED.

Defendant West Virginia Department of Transportation

Division of Highways is DISMISSED as a party to this case.

The

Clerk is DIRECTED to remove this case from the court’s docket.
The Clerk is further directed to send copies of this
Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 23rd day of February, 2016.
ENTER:
David A. Faber
Senior United States District Judge

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