Opinion
Civil Action No. 00-2791 SECTION: "R" (2)
January 2, 2002
ORDER AND REASON
Before the Court is a negligence claim brought by plaintiff, Pat Fuller, against the United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 ("FTCA"), and Louisiana state law. The accident. involved vehicles operate by Fuller, Benjamin T. Hillyard, an employee of the Federal Emergency Management Agency who was operating a government vehicle, and Bryant Russell or Steven Maurer, who were both in a truck. Fuller now moves, for partial summary judgment on the basis that the evidence clearly shows that Hillyard was wholly liable for striking the rear of Fuller's vehicle. In addition, Fuller sits that the United States' affirmative defenses on the question of accident causation be dismissed.
I. Background
This case arises from a three-car accident, and the facts are largely undisputed. On October 13, 1988, Hillyard was traveling in the right, west-bound lane of Interstate Highway 10. He noticed that the cars in front of him were slowing down and decided to merge into the left west-bound lane. Once in the left lane, he saw that the car immediately in front of him, driven by Fuller, had stopped. Hillyard was driving approximately 55 miles per hour at the time. Fuller's car was approximately 150 yards away. Fuller noticed, that the truck in front of him, occupied by Mauer and Russell, had come to a complete stop. Fuller applied his brakes, slowed down, and then stopped. Hillyard then slammed on his brakes; skidded log yards and rear-ended plaintiff's vehicle. (Def.'s Mot. Opp. Summ. J., Ex.. A, at 2.) The impact drove Fuller' car into the truck ahead of him.
Fuller asserts that he suffered lower lumbar pain and pain in his left thigh as a result of the accident. On September 21, 2000, Fuller and his wife, Valerie, sued Hillyard and FEMA under the FTCA. The United States filed a motion to substitute itself as the defendant in place of Hillyard and FEMA and to dismiss the claims of Valerie Fuller for failure to file an administrative claim. On January 2, 2001, this Court granted the United States' motion to substitute itself as defendant, and it dismissed Valerie Fuller's claims.
On October 4, 2000, Bryant Russell and Steven Maurer sued the United States for damages arising from the same accident. On November 29, 2000, the Court consolidated the two cases. On August 15, Fuller filed this motion' for partial summary judgment on the issue of the causer of the accident.
II. Discussion
1. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidences favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts demonstrating that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
The Fifth Circuit has "arguably articulated an even more lenient standard. for summary judgment in certain nonjury cases." Phillips Oil Co. v. OKC Corp., 812. F.2d 265, 273 n. 15 (5th Cir. 1987). In Nunez v. Superior Oil Co., 572 F.2d 1119, 1123 (5th Cir. 1978), the Fifth Circuit explained:
There is no litmus test. that infallibly distinguishes those issues that are: `factual' from those that are `legal' or `mixed.' . . . as we approach the point where facts and the application of legal rule to them blend, appraising evidentiary facts in terms of their legal consequences and `applying' law to fact become inseparable processes.
Therefore, in a non-jury case, such as this case, the Court is encouraged to draw inferences, even when they appear to be factual, if a `trial on the merits would reveal no additional data.' Id. at 1124. See also Professional Geophysics, Inc v. Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991).
B. Negligence
Under the FTCA, the United States is liable for the negligence of its employees "in the same manner and to the same extent as a private individual under like: circumstances. . . ." To determine whether a "private-person" would be liable, the Court looks to the law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b)(1982); see Rayonier, Inc v. United States, 352 U.S. 315, 318, 77 S.Ct. 374, 376 (1957); Crider v. United States, 885 F.2d 294, 295(5th Cir. 1989). According, in this case, Louisiana law governs the question of the United States liability.
Plaintiff contends that Hillyard's negligent driving was the sole cause of the accident. In Louisiana, negligence is defined as the failure of a party to use the standard of care that an ordinary, reasonable and prudent person would use under the same or similar set of circumstances. See Thompson v. Amerada Hess Corp., 1998 WL 274260 (E.D. La. 1998). Louisiana courts have adopted a duty-risk analysis to assess negligence claims. This analysis takes into account the conduct of each party and the circumstances of each case. See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991).
To prevail on a negligence claim, plaintiff has the burden of proving that: (1) the defendant had a duty to conform his conduct to a specific standard, (2) the defendant failed to do so, (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries, (4) the defendant's substandard conduct was a legal cause of plaintiff's injuries, and (5) actual damages to the plaintiff occurred. See Meany v. Meany, 639 So.2d 229 (La. 1994) (citing Roberts v. Benoit, 605 So.2d 1032, 1051 (La. 1991) (or rehearing). Plaintiff must prove duty and causation by a preponderance of the evidence. See Theriot v. Lasseigne, 640 So.2d 1305, 1310 (La. 1994) (citing Ryland v. Liberty Lloyds Ins. Co., 630 So.2d 1289 (La. 1994));
Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 733 So.2d 1198, 1204 (La. 1999). Whether a defendant has breached a duty is a question of fact. Id. Under Louisiana law, cause-in-fact is a "but-for" inquiry in which the court examines whether the injury would have occurred but for the defendant's substandard conduct. See Theriot, 640 So.2d at 1310 (citing Faucheaux v. Terrebonne Consol. Govt., 615 So.2d 289 (La. 1993)). "A finding of no cause in fact ends the inquiry into liability." Id.
Louisiana Revised Statute 32:81 furnishes the standard of care required of motorists following other vehicles:
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.
La. Rev. Stat. 32:81(A); (West 2001).
Louisiana courts have determined that a rear-end collision establishes a prima facie case of liability against the following vehicle. See Eubank v. Brasseal, 310 So.2d 550, 553 (La. 1975) ("[A] following motorist who strikes a preceding motorist from the rear is presumed to have breached the standard of conduct prescribed in R.S. 32:81 and, hence, is presumed negligent."). Once it is established that the following motorist breached his duty as a driver by rear-ending a car, he must prove that the damages to the fault-free motorist were caused by the fault of a third person or by some external circumstance sufficient to overcome the presumption of negligence. See Seals v. Morris, 410 So.2d 715, 716 (La. 1982). Under the Civil Code, breaches of delictual or contractual duties may be excused when the breaches are caused by an irresistible force or a fortuitous event. See LA. Civ. CODE art. 3556(10). The following motorist may also overcome the presumption of negligence by showing that the unpredictable driving of the preceding motorists created a sudden emergency that the following motorists could not reasonably have anticipated, See Eubanks, 310 So.2d at 553. The following driver may also rebut the presumption by showing that he kept his vehicle under control, that he observed the preceding vehicle and that he followed at a safe distance under the circumstances. See Avery v. Commercial Union Insurance Co., 621 So.2d 184, 190 (La.App. 3 Cir. 1993).
Here, defendant contends that the van's anti-lock brakes failed and that the plaintiff was partially at fault for the accident. The Court rejects both assertions.
First, defendant argues that the accident was caused when Hillyard's anti-lock brakes failed. Under Louisiana law, a heavy burden of proof is placed upon a defendant who claims a latent brake defect. Accordingly, the law requires that the person asserting such a defense to come forward with objective and convincing evidence, other than his own testimony, against which his degree of innocence of fault may be measured. See Simon v. Ford Motor Co., 282 So.2d 126, 133 (La. 1973) (on rehearing). Here, the only evidence the United States submits supporting mechanical failure is Hillyard's assertion:
The vehicle in which I was traveling was a 1993 Ford Cargo Van (the van). I believe the van was equipped with anti-lock brakes. I am familiar with anti-lock brakes because the vehicle I owned at the time also had anti-lock brakes. I owned a 1994 Fort 1-ton flatbed. On numerous, I slammed on that brakes of my Ford 1-ton, even at speeds of 55 mile per hour and had no trouble stopping the vehicle. . . . I believe the brakes on the van malfunctioned.
(Def.'s Mot. Opp. Summ J., Ex. A, at 2.) Additionally, Hillyard asserts that he has mechanical skills that he has honed by working with his father; an auto-mechanic for forty-years, by repairing his own vehicles, and by operating and maintaining dirt track racing vehicles. ( Id.) Hillyard's declaration is insufficient to create a genuine issue of material fact on causation.
The United States presents nothing but Hillyard's unsupported "belief" that the Ford Cargo Van he drove had anti-lock brakes and that they malfunctioned at the time of the accident. Defendant submits no evidence that anti-lock brakes on a 1994 Fort 1-ton flatbed operate similarly to the anti-lock brakes on a Ford Cargo Van. There is no evidence that the Cargo Van was ever examined by a mechanic or even by Hillyard after the accident to determine whether the anti-lock brakes malfunctioned. In Hillyard's deposition, he never mentions any mechanical problems with the brakes. (Pl.'s Mot; Part. Summ. J., Ex. B, at 9.) Hillyard did not inform the police officer who filled out the police report that his brakes malfunctioned (Pl's Mot. Part. Summ. J., Ex. C.) Hillyard's later, unsupported belief that the accident was caused by brake failure is insufficient to defeat summary judgment.
Hillyard' s deposition. was taken in a worker's compensation case, Russell v. Farm Fresh Food Supplies, between the driver of the truck and his employer, in which the driver claimed that he had suffered injuries front this car accident.
Even if defendant had submitted some proof that the anti-lock brakes failed, Hillyard acted negligently in driving too closely to the car in front of him. Louisiana Revised Statute 31:81(A) states that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than it reasonable and prudent." Hillyard was cited for driving too close to the preceding vehicle. That Hillyard was not able to "slam on the brakes" and stop on a dime does not absolve him from his own negligent driving.
The United States also argues that Fuller is not a fault-free driver. It asserts that since Fuller slowed down by taking his foot off the gas, rather than braking, Fuller's actions were negligent and contributed to the accident. In support, defendant points to plaintiff's deposition testimony:
I was behind the truck, behind the vehicle, and there was a van, behind me. . . . I saw the truck in front of me brake lights come on. I put my brake lights on. We went for a few feet, few yards I guess. His brake lights went off. I looked to my right. The right — we were in the left lane. The right lane was pretty much full of traffic that was not really going anywhere fast. . . . So I did not get back on the gas. I took my foot off the brake, and I just had it sort of suspended. All of a sudden the truck in front of me stopped. When he stopped, I stopped. At that point I looked up an my rear view mirror, and I saw the van was coming, and I knew he wasn't going to stop.
(Pl.'s Mot. Part. Summ J., Ex. A, at 56-57) (emphasis added). Defendant argues that Fuller breached his duty as a driver by failing to provide Hillyard with notice that he was slowing down when he slowed down by taking his foot off the gas rather than by braking. The Court disagrees.
First, the United States has not shown that Fuller had a duty as a preceding motorist to tap on his brakes instead of taking his foot off the gas after he had already applied his brakes in crawling traffic. Second, the record evidence makes it clear that Hillyard had sufficient notice that traffic was heavy and slowing down. Hillyard does not dispute that he was aware that traffic was slowing down. In deposition testimony, he states that he saw that the cars in front of him were stopping.
And I was in the right-hand lane, and I was behind an 18-wheeler, and they started braking, so I merged into my left land-because it was clear, I mean, I'm sorry Yeah, in my left lane it was clear. So when I did that, I noticed the cars in front of me were stopped about I guess a hundred or so yards in front of me, and when I saw that, I slammed on the brakes, and the vehicle I was driving just slid and hit a white Mitsubishi Gallant.
(Pl.'s Not. Part. Summ. J., Ex. B, at 9.) (emphasis added). Nowhere in Hillyard's deposition testimony does he state that he could not tell that Fuller's car was slowing down or that he was unaware that traffic ahead of him was stopped.
Further, Hillyard's van was behind Fuller's car when Fuller first started braking. When Fuller took his foot off the gas, his car would have slowed, down. The combination of earlier brake lights, slowing traffic and the shrinking distance between the cars provided Hillyard with sufficient warning that traffic could come to a stop. Additionally, in the police report, the officer specifically recorded that Hillyard noticed that Fuller was braking. (Pl.'s Mot. Part. Summ. J., Ex. C, at 2 ("Driver 1 advised that he noticed vehicle 2 braking and attempted to stop before striking, vehicle 2 in the rear."). Hillyard informed the officer that when he saw that traffic ahead had stopped, he tried to move back into the right lane but it was too congested. ( Id.)
III. Conclusion
Based on the record evidence, the Court finds that the United States has failed to produce sufficient evidence to defeat partial summary judgment and concludes that Hillyard's negligent actions were the sole proximate cause of the accident. Accordingly, the Court grants plaintiff's motion for partial summary judgment.
The's Court expresses no opinion as to the scope of plaintiffs injuries. This motion for partial summary judgment is limited solely to the question of negligence and does not impact the determination of damages. Fuller has not moved for summary judgment on that issue, nor has he asked for summary judgment on any of defendant's defenses that relate to damages. The United States may assert its defenses as to questions of injuries and damages at trial.