Opinion
3:18-cv-01721-AC
07-07-2021
SHANNON RAE, Plaintiff, v. DOUGLASS WEBB, and FRED JOSE, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Introduction Plaintiff Shannon Rae (“Rae”) filed this negligence action against Defendant Fred Jose (“Jose”) stemming from an accident on Highway 101. Rae brings four claims against Jose: negligence - failure to maintain proper lookout (Specification ¶ 9 a)); negligence - failure to provide adequate distance for the passing vehicle (Specification ¶ 9 b)); negligence - failure to stop, slow, or otherwise control his vehicle in order to avoid the collision (Specifications ¶ 9 c)); and negligence - failure to maintain proper control of his vehicle (Specifications ¶ 9 e)), Currently before the court is Jose's motion for summary judgment. (Def's Mot. Summ. J., ECF No. 42.) The court recommends granting Jose's motion because Rae's evidence does not create a genuine issue of material fact that Jose was negligent.
There is no Specification ¶ 9 d).
Background
On July 23, 2016, Rae and her girlfriend, Leah Amey, were in the midst of a ten-day road trip from British Columbia to Montana and back. (Pl.'s Notice Filing Dep. Trs. Attach. V. Dep. Shannon Rae (“Rae Dep.”), at 18:3-19, 49:2-13, ECF No. 47-5.) At approximately 3:15 p.m., after driving for a few miles behind Douglass Webb's BMW which had been traveling below the speed limit, Rae began to pass Webb on his left. (Deel, of Joe S. Traylor in support of Fred Jose's Mot. Summ. J. Ex. 3, Incident Report (“Incident Report”), at 1, ECF No. 43-3; Rae Dep. 50:2552:6.) Because that portion of Highway 101 is only a two-lane highway, when Rae moved to her left to pass Webb, she then was traveling south in the northbound lane of the highway. (Rae Dep. 22:3-6, 23:1-25.)
These are labeled as: I. Fred Jose; II. Douglass Webb; III. Jessica Webb; IV. Mary Jose; V. Shannon Rae, on the Notice of Filing, but they appear on ECF as: 1. Douglass Webb; 2. Fred Jose; 3. Jessica Webb; 4. Mary Jose; 5. Shannon Rae. The court cites them as they are described in the Notice.
After Rae and Amey had been driving their motorcycles southbound on Highway 101 for a few hours, they stopped at a pub and Rae had one bottle of beer. (Rae Dep. 19:9-11, 49:2-50:6.) The accident occurred approximately thirty minutes later. (Rae Dep. at 50:8.) During the July 6, 2020 hearing on this motion, Jose agreed this fact was not a causative factor in the collision. (Mins. Proceedings, ECF No. 53.)
Simultaneously, Jose was driving his Honda CRV northbound on Highway 101 with his wife and daughter. (Pl.'s Notice of Filing Dep. Trs. Attach. L, Dep. of Jose (“Jose Dep.”), at 6:24-7:11, ECF No. 47-2; Incident Report 11.) Neither Rae nor Jose were speeding. (Rae Dep. 51:17-20; Jose Dep. 10:10-24.; Pl.'s Notice of Filing Dep. Trs. Attach. III. Dep. of Douglass Webb (“Webb Dep.”), at 12:5-15, ECF No. 43-4.) Jose saw Rae driving towards him in the northbound lane. (Jose Dep. 6:12-9:14; Incident Report 11.) He sought to slow his car and veered, but the parties dispute whether he veered to his left or to his right. (Compare Incident Report 11, and Jose Dep. 11:4-14:22 with Pl.'s Resp. Def.'s Mot. Summ. J. (“Rae Resp.”), at 2, and Rae Dep. 23:24-25:6, ECF No. 49.) Rae veered toward her left, toward the shoulder of the northbound lane, but the two collided. (Rae Dep. 23:7-25:3.) Both vehicles sustained damage and Rae sustained injuries. (Jose Dep. 5:7-13; Rae Dep. 38:8-9, 20:9-10.)
On July 23, 2018, Rae filed this lawsuit in Tillamook County Circuit Court, and Jose removed it to this court on September 27, 2018.
Legal Standard
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue 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 moving party bears the burden of establishing the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). However, a mere “scintilla” of evidence will not overcome summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Rather, to defeat summary judgment, the non-moving party must identify facts beyond the allegations in the complaint that show a genuine issue for trial. Celotex, 477 U.S. at 324. If a rational trier of fact, considering the entire record, could not find for the non-moving party, there is no genuine issue for trial and summary judgment should be granted. See Liberty Lobby, 477 U.S. at 248.
Preliminary Procedural Matters
Rae initially alleged four specifications of negligence. During the July 6, 2022 hearing, Rae withdrew Specification ¶ 9 b) she further agreed Specification ¶ 9 e) is incorporated into Specification ¶ 9 c). (Mins. Proceedings, ECF No. 53.) Therefore, only Specification ¶ 9 a), failure to maintain proper lookout, and Specification ¶9 c), failure to stop, slow, or otherwise control his vehicle in order to avoid the collision, remain.
Discussion
Jose moves for summary judgment on all counts, contending he is entitled to summary judgment on these claims as a matter of law because Rae has not identified a genuine dispute of material fact, and because no reasonable jury could find Jose more than fifty percent at fault for the harm Rae suffered.
Although Jose cites Rae's comparative negligence as one of the factual bases for summary judgment, the court need not address Rae's conduct to reach its conclusion. The court addresses only the specifications of alleged negligence against Jose.
Rae opposes the motion, arguing that there are genuine issues of material fact: (1) whether the pass occurred in a no passing zone; (2) whether the collision occurred in the shoulder lane or in the northbound lane; (3) whether Jose's evasive action was to the right or left; (4) whether the location of the initial impact was on the front right corner or the front of Jose's vehicle; (5) and whether the change in Jose's speed was a proximate cause.
I. There is No Reasonable Dispute of Fact Showing Jose was Negligent
A. Standards
In Oregon, drivers have a common-law duty to use “the utmost care and diligence of cautious persons.” Budd v. United Carriage Co., 25 Or. 314, 320 (1894); see Dahl v. Bayerische Motoren Werke (BMW), 304 Or. 558, 565 (1987) (“the reasonable, prudent [person] accepts and guards against [traffic hazards], ” and must anticipate dangers as “part of the uniform standard of behavior by the hypothetical reasonable, prudent [person]” (quoting Cutsfor th v. Kinzua Corp., 267 Or. 423, 430 (1973)). This duty extends to acts and omissions. See Fuhrer v. Gearhart-By-The-Sea Inc., 306 Or. 434, 438-39 (1988). For a negligence claim to succeed, the complaint must credibly allege the defendant had “some responsibility]” for the event's occurrence. Fortney v. Crawford Door Sales Corp, of Oregon, 97 Or. App 276, 280 (1989).
This standard of reasonable care remains the same even in emergency circumstances. Barnum v. Williams, 264 Or. 71, 76 (1972) (shifting the burden to allow defendants to show their conduct was reasonable under the circumstances). Relevant here, however, a person is not required to make the best decision, though negligent conduct is not excused solely because it occurred in an emergency. Bjorndal v. Weitman, 344 Or. 470, 481 (2008) (abolishing the emergency circumstances jury instruction because it asked the jury to consider whether a person made the “wisest choice” which improperly shifted the focus from reasonable care). Instead, if the actor's conduct, considering all circumstances, “unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff, ” the conduct does not meet the standard of reasonable care. Fazzolari by and Through Fazzolari v. Portland Sch. Dist., 303 Or. 1, 17 (1987).
Foreseeability is forward-looking and considers whether the harm could have been foreseen. Dominion v. TriQuint Semiconductor, Inc., No. 3:16-cv-01852-SB, 2017 WL 7310643, at *3 (D. Or. 2017) (citing Chapman v. Mayfield, 358 Or. 196, 206 (2015)), adopted, No. 3:16-cv-01852-SB, 2018 WL 847240 (D. Or. 2018) (unreported); see also Stewart v. Jefferson Plywood Co., 255 Or. 603, 609-10 (1970). This analysis is distinct from the backward-looking consideration of what was seen or what did happen. Chapman, 358 Or. at 206. Rarely, “a court can decide that no reasonable factfinder could find the risk foreseeable or defendant's conduct to have fallen below acceptable standards.” Donaca v. Curry Cty, 303 Or. 30, 38-39 (1987); see also Page v. Sparling, 87 Or.App. 118, 123 (1987) (finding it foreseeable that entrusting a car to a potentially dangerous, intoxicated driver could lead to an accident). Cf Miller ex rel. Miller v. Tabor West Inv. Co., LLC, 223 Or.App. 700, 714-16 (2008) (finding it not foreseeable that one tenant in an apartment complex would attack another tenant off-premises).
Rae alleges Jose was negligent. The court addresses her two remaining specifications of Jose's alleged negligence.
B. Rae's Specifications of Negligence
1. Failure to Keep a Proper Lookout - Specification ¶ 9 a)
Rae alleges that Jose failed or neglected to keep a proper lookout for other vehicles on the highway. (Compl. and Demand for Jury Trial 3:11-19, ECF No. 43-2.) Jose argues he is entitled to summary judgment on this specification because Rae failed to allege facts or present evidence that he violated any traffic laws or diverted his attention from the road. (Def's Mot. for Summ. J. 7-8, ECF No. 42.) Jose argues that the record shows he did keep a proper lookout for other vehicles on the highway and that this lookout prompted him to move aside when he saw Rae headed toward him. ((Incident Report 11) (noting Jose decided to “veer to the left” to avoid Rae); see also (Rae Resp. 2)). Though Rae contends Jose “steered to his right” rather than to his left and the parties dispute whether the accident occurred on the shoulder or in the northbound lane,, both parties agree Jose tried to avoid Rae upon seeing her coming toward him in his lane of travel. (Compare Rae Resp. 5 uuc/Dcf.'s Reply Supp. Mot. Summ. J. 5, ECF No. 51.)
In her response, Rae identifies no supporting evidence demonstrating that Jose failed to keep a proper lookout. Instead, she argues Jose could have done something different in the circumstances, but she presents no evidence that creates a question whether what Jose did do was unreasonable under the circumstances. For legal support, Plaintiff relies on Nevada caselaw to support the assertion that “where the alleged breach is a failure to keep a proper lookout, ” the breach is a proximate cause of a collision if “the driver could have seen the other vehicle in time to take effective precautionary measures to avoid the accident” (Rae Resp. at 4); she fails, however, to demonstrate how this Nevada principle of negligence applies to or is consistent with Oregon negligence law.
“The standard of lookout required is that of the reasonable motorist under the same or similar circumstances.” Ewing v. Izer, 243 Or. 367, 370 (1966). Lookout is typically a jury question. See, e.g., Casto v. Hansen et al., 123 Or 20, 24 (1927). However, in response to a motion for summary judgment, it is not enough to assert an issue of material fact about the alleged claim; there must be a showing of facts to support the allegation. Jones v. General Motors Corp., 139 Or.App. 244, 256-57 (1996); see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968).
Rae has presented no facts to support her allegation that Jose failed to maintain a proper lookout. In a footnote, she suggests that sections two through five of her response brief outline key evidence from the record connected to improper lookout, failure to properly slow or stop, and failure to properly control. (Rae Resp., at 5 n.l.) However, the evidence outlined is not connected to improper lookout but instead relates to Jose's braking and reaction time, theorizing that had he reacted sooner than he did, he might have been able to stop sooner or avoid the collision. The only evidence about Jose's maintenance of a proper lookout shows Jose looking at the road in front of him, seeing Rae coming toward him, and reacting to that unexpected situation. Because Rae has not identified facts beyond the allegations in the complaint to show there is a genuine issue as to Jose's failure to keep a proper lookout, Jose's motion for summary judgment on Specification ¶ 9 a) should be granted.
2. Failure to Stop, Slow, or Control His Vehicle - Specification ¶ 9 c)
Rae alleges that Jose failed to stop, slow, or otherwise control his vehicle to avoid the collision. (Rae Compl. 3:16-19, ECF No. 43-2.) Jose moves for summary judgment arguing that Rae fails to create a genuine issue of material fact and that she has not shown that his failure to stop or slow created a foreseeable or unreasonable risk of harm.
In response, Rae submits an affidavit from her expert witness, Craig Luker, in which he analyzes whether stopping or slowing Jose's vehicle differently would have amounted to sufficient control to avoid the accident. (Notice of Filing Aff. of Craig Luker, Ex. A, (“Luker Aff”), ECF No. 48.) Luker testifies that if Jose “had braked more aggressively, he either could have brought his vehicle to a complete stop before reaching impact, or he could have slowed his vehicle enough to allow [Rae] to maneuver fully out of the Honda [CRV's] path. In both circumstances, the collision would have been avoided.” (Luker Aff. 15.) To support this assertion, Luker relies on his own published tests comparing braking time, as well as those published by other researchers. (Luker Aff. 14-15.) Luker further testifies that if Jose “had initiated his response to her motorcycle's presence sooner, then he would have had more avoidance time available to him.” (Luker Aff. 16). To support this conclusion, Luker relies upon published research about the time and distance required for a motorcycle to turn from an obstacle. (Luker Aff. 15.)
Attachment 1 on ECF. The court notes that the Luker Affidavit raises questions of admissibility under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and the cases interpreting it. Resolving those questions, however, is unnecessary given the court's analysis here.
Jose argues that “the rate at which Defendant Jose slowed is immaterial in whether he acted as a reasonably prudent driver in responding [to] the emergency Plaintiff presented him with.” (Def's Reply Supp. Mot. Summ. J. 7, ECF No. 51 (citing Erdman v. Inman, 165 Or. 590, 591-92 (1941) (“[I]f defendant had been driving on his right side of the highway, there could have been no collision[;] .... the speed at which the defendant was traveling was immaterial and could not possibly have been the proximate cause of the accident.”))). Jose's observation is correct, because the Luker Affidavit on this point presents no admissible evidence that creates a question whether Jose's actions were unreasonable.
For a negligence claim to succeed, the complaint must credibly allege the defendant had “some responsible involvement” with the event related to the claim. Fortney, 97 Or.App. at 280. Further, that involvement must be unreasonable considering the risk of harm. See Fazzolari, 303 Or. 1, 17 (1987) (“the issue of liability ... depends on whether [defendant's] conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff'). A driver's normally unreasonable actions may be reasonable if those actions were in response to a sudden emergency. Compare Raz v. Mills, 231 Or 220, 227-28 (1962) (finding sudden braking due to the appearance of a pedestrian could be reasonable considering emergency circumstances), aff'd, 233 Or. 452 (1963), and Lane v. Brown, 138 Or.App. 34, 38 (1995) (finding a driver's choice to skid on an icy patch of an otherwise dry highway could have been reasonable despite the resulting collision), and Fenton v. Aleshire, 238 Or. 24, 29-30 (1964) (finding a driver's reaction to brake and turn right could have been reasonable when a child ran into the street, even though the driver struck the child), with Templeton v. Smith, 88 Or. App 266, 269 (1987) (internal quotation and citation omitted) (disallowing the emergency instruction because “some ‘emergencies' must be anticipated” such as potential stops in stop-and-go traffic), and Scott by Scott v. Iverson, 120 Or. App 538, 541 (1993) (finding the emergency instruction unnecessaiy because until she hit the bicyclist, the driver was unaware of the bicyclist's location and the emergent circumstances).
Where evidence supports a causal connection between the negligence charged and the accident, and reasonable minds could differ, reasonableness is a factual question for the jury. Kreningv. Flanders, 225 Or. 388, 395 (1961); see also Pickens v. United States, 750 F.Supp.2d 1243, 1252 (D. Or. 2010) (“the reasonableness of defendant's conduct [is an] empirical question[] that generally should be determined by a factfinder”). But, conduct that is “a factual cause of a plaintiffs harm in the sense that the harm would not have occurred absent the defendant's conduct” does not always raise a genuine issue of material fact for the jury. Lasley v. Combined Transport, Inc., 351 Or. 1, 10(2011).
Though Rae theorizes that Jose could have reacted sooner in braking his vehicle, she does not credibly raise a genuine issue of material fact about Jose's “responsible involvement” in the collision. Luker does not present evidence to show Jose acted unreasonably; rather, he opines only that Jose could have acted differently than he did. That may be, but that fact does not equate to unreasonableness. Regardless, Jose took action in response to the emergent circumstances. Even when tests and studies can show, in retrospect, that the actions Jose took to avoid the harm were not the best available actions, Jose's conduct falls outside a reasonable conception of fault. Therefore, the court finds no genuine issue of material fact regarding the reasonableness of Jose's conduct, and summary judgment on Specification ¶ 9 c) is appropriate.
Conclusion
For the reasons stated, Defendant's Motion for Summary Judgment should be GRANTED as a matter of law on all counts against Jose because there is no genuine issue of material fact for trial.
Scheduling Order
Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.