Summary
declining to strike response to motion for summary judgment for failure to comply with D. Kan. Rule 56.1(b)
Summary of this case from Sellers v. ButlerOpinion
Civil Action No. 00-2281-GTV.
April 27, 2001.
MEMORANDUM AND ORDER
This case is before the court on Defendants' summary judgment motion (Doc. 18). Plaintiff Blane O. Hergert and Defendant Paul Joseph Shaw were involved in a vehicular accident. At the time, Defendant Shaw was driving a truck owned by Defendant Tom Watts. Plaintiff brought this diversity action, alleging that Defendant Shaw was operating the truck in a negligent manner, and seeking to hold Defendant Watts liable based on the doctrine of respondeat superior. For the reasons stated below, the court denies Defendants' motion. I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents 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." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
II. FACTUAL BACKGROUND
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
On June 26, 1998, Plaintiff and Defendant Shaw were both traveling northbound on K-25, a two-lane highway. Plaintiff believes he slowed down to make a left turn off the highway into his employer's driveway. Defendant Shaw was behind Plaintiff, and claims that he was trying to pass Plaintiff in the southbound lane. The vehicles collided in the southbound lane of K-25.
Plaintiff does not recall anything about the accident. However, based on his habit and custom of using his turn signal, Plaintiff believes that he activated his left turn signal before beginning to turn. In addition, the left turn off K-25 into his employer's driveway was a turn that Plaintiff had made "hundreds of times," and he was very familiar with the location. Based on his custom and practice of making the same turn in the same vehicle, Plaintiff estimates that he would have slowed down to a speed of ten miles per hour to make the turn.
III. DISCUSSION
Plaintiff alleges that Defendant Shaw was operating his vehicle in a negligent manner when the vehicles collided on K-25. Defendants argue that Plaintiff cannot establish a prima facie case of negligence. A negligence action requires proof of a duty, breach of that duty, damages, and causation. See Hesler v. Osawatomie State Hosp., 971 P.2d 1169, 1174 (Kan. 1999). Defendants suggest that Plaintiff's lack of memory concerning the accident precludes Plaintiff from being able to prove that Defendant Shaw's actions were negligent. Plaintiff, however, has submitted two affidavits in support of his response to Defendants' summary judgment motion. The first affidavit contains Plaintiff's own testimony, and states in relevant part:
Before Defendants attack the merits of Plaintiff's claim, they argue that Plaintiff's response should be stricken for failure to comply with D. Kan. R. 56.1 — Plaintiff neglected to set forth in numbered paragraphs additional facts relevant to the summary judgment motion as required by D. Kan. R. 56.1(b)(2). The court may exercise its discretion in applying local rules. See Amro v. Boeing Co., No. 97-3049, 1998 WL 380510, at *1 n. 1 (10th Cir. July 8, 1998) (citing Hernandez v. George, 793 F.2d 264, 269 (10th Cir. 1996)). Although Plaintiff has failed to set forth additional facts in numbered paragraphs pursuant to D. Kan. R. 56.1(b)(2), Plaintiff has included relevant references to the record within the argument section of his brief. While the court disapproves of Plaintiff's failure to comply with the local rule, it concludes that Defendants have not been prejudiced by Plaintiff's noncompliance. See Glover v. Heart of Am. Mgmt. Co., 38 F. Supp.2d 881, 882 (D.Kan. 1999); Kay-Cee Enters., Inc. v. Amoco Oil Co., 45 F. Supp.2d 840, 841 n. 1 (D.Kan. 1999); Bryant v. O'Connor, 671 F. Supp. 1279, 1282 (D.Kan. 1986). The court therefore declines to strike Plaintiff's response.
10. Although I have no recollection of activating my left turn signal prior to commencing my turn into the gravel driveway, I believe that it is highly likely I did so based upon my general habit and custom to use my turn signal.
11. Although I do not have an actual recollection of the speed of my vehicle at the time I turned into [my employer's] gravel driveway, based on my custom and practice [of] having made this turn on hundreds of occasions in the same vehicle, if there was no oncoming traffic on Highway K-25 preventing my turn, I would have slowed to a speed of approximately 10 miles per hour to commence my left turn and would have proceeded through the left turn at that approximate speed.
Defendants posit that Plaintiff's affidavit constitutes an attempt to create a "sham" fact issue. They further argue that Plaintiff's affidavit is not based on "personal knowledge," as required by Fed.R.Civ.P. 56(e). The court is not persuaded by either of Defendants' arguments.
First, the court does not agree that Plaintiff's affidavit is an attempt to create a "sham" fact issue. It is well-settled that "courts will disregard a contrary affidavit [an affidavit contrary to earlier testimony] when they conclude that it constitutes an attempt to create a sham fact issue." Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). The Tenth Circuit enumerated factors a court should consider when evaluating whether an affidavit is an attempt to create a sham fact issue in Franks v. Nimmo. However, when the affidavit at issue merely supplements earlier testimony by adding consistent details or facts, a court need not apply the Franks factors. See Land v. Midwest Office Tech., Inc., 114 F. Supp.2d 1121, 1138 (D.Kan. 2000). Such is the case here. Plaintiff does not claim in his affidavit to remember details about the collision, which would be in contradiction to his earlier testimony. Rather, Plaintiff merely supplements his earlier testimony with statements about his usual driving habits. Because Plaintiff's affidavit is not in conflict with his earlier testimony, the court concludes that it is not an attempt to create a sham fact issue.
Second, the court is satisfied that the relevant portions of Plaintiff's affidavit are based on personal knowledge. Fed.R.Civ.P. 56(e) provides that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The court accepts that Plaintiff has personal knowledge of his own driving habits and customs, and is competent to testify as to those habits and customs. Furthermore, Fed.R.Evid. 406 states that "[e]vidence of the habit of a person . . . is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit. . . ." Plaintiff's affidavit provides evidence that Plaintiff habitually used his turn signal and slowed down before turning into his employer's driveway. Plaintiff may use this evidence to prove that he used his turn signal and slowed down before making the turn that resulted in the collision. If a reasonable jury chooses to believe Plaintiff's testimony, it could find that (1) Plaintiff used his turn signal and slowed down to make the turn in this instance, and (2) Defendant Shaw was negligent in failing to notice Plaintiff's turn signal and the slow speed of Plaintiff's vehicle, and thus in colliding with Plaintiff's vehicle in the southbound lane.
Because the court has concluded that Plaintiff's affidavit creates a genuine issue of material fact, the court need not consider the sufficiency of the second affidavit. Based on the contents of Plaintiff's affidavit, the court denies Defendants' motion for summary judgment.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' motion for summary judgment (Doc. 18) is denied.
Copies of this order shall be mailed to counsel of record.
IT IS SO ORDERED.