Opinion
For Nawal Gad, Plaintiff: Jeffrey R Salberg, Jorge Anthony Lopez, Richard Allen Jorgensen, LEAD ATTORNEYS, Jorgensen and Salberg LLP, Tustin, CA.
For United States of America, Defendant: Mary Elizabeth Stratton, Ruth M Kwon, LEAD ATTORNEYS, Office of U.S. Attorney, Los Angeles, CA.
For Eve H Wagner, Mediator (ADR Panel): Eve H Wagner, Sauer and Wagner LLP, Los Angeles, CA.
PROCEEDINGS (IN CHAMBERS): ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR PARTIAL SUMMARY JUDGMENT [filed 6/15/15; Docket No. 29]
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE.
On June 15, 2015, Defendant United States of America (" Defendant") filed a Motion for Summary Judgment, or in the Alternative, Motion for Partial Summary Judgment (" Motion"). On June 26, 2015, Plaintiff Nawal Gad (" Plaintiff") filed her Opposition. On July 6, 2015, Defendant filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court found the matter appropriate for submission on the papers without oral argument. The matter was, therefore, removed from the Court's July 13, 2015 hearing calendar and the parties were given advance notice. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:
I. Factual and Procedural Background
The facts in this case are largely undisputed by the parties. To the extent any of these facts are disputed, they are not material to the disposition of this Motion. In addition, to the extent that the Court has relied on evidence to which the parties have objected, the Court has considered and overruled those objections. As to the remaining objections, the Court finds that it is unnecessary to rule on those objections because the disputed evidence was not relied on by the Court.
A. The Accident
On January 17, 2012, Plaintiff traveled by bus to attend her 8:30 a.m. English class at a school located on Lincoln Boulevard, near the intersection of Rose Ave in Venice, California. In order to reach her destination, Plaintiff was required to ride two buses. After she exited the first bus, Plaintiff walked west on Washington Boulevard to the intersection of Lincoln Boulevard and Washington Boulevard and had to cross Washington Boulevard in order to catch her second bus. Unfortunately, Plaintiff was stuck by a car driven by Secret Service Special Agent Garett Fritch as she began crossing Washington Boulevard and sustained a broken tibia and fibula.
During her deposition, Plaintiff testified that she failed to look for oncoming vehicle traffic before she began crossing Washington Boulevard. After Plaintiff had taken one or two steps in the crosswalk on Washington Boulevard, the car driven by Special Agent Fritch ran over her left ankle. Because Plaintiff did not check for oncoming traffic prior to stepping into the crosswalk, Plaintiff candidly admitted during her deposition that she never saw either Special Agent Fritch or his vehicle until after the accident.
At the time of the accident, Special Agent Fritch was driving his assigned government vehicle from his residence to his duty station. He was driving north on Lincoln Boulevard and, prior to reaching the intersection of Lincoln Boulevard and Washington Boulevard, he moved into the right-hand turn lane in order to turn right onto Washington Boulevard. Once Special Agent Fritch reached the intersection, he came to a complete stop and looked both ways. After he determined that there were no pedestrians to his right, Special Agent Fritch proceeded to make a right turn onto Washington Boulevard at a speed of approximately five miles per hour. As he was completing his turn, Special Agent Fritch immediately saw movement to his right, and realized that his vehicle had struck Plaintiff. Special Agent Fritch immediately pulled over to a safe area, approached and rendered aid to Plaintiff. Special Agent Fritch also called emergency services and waited with Plaintiff until the paramedics arrived.
Special Agent Fritch was not on his cell phone or otherwise distracted.
Special Agent Fritch moved Plaintiff's feet onto the sidewalk, placed her purse under her head, and covered her wound with a piece of clothing.
B. The LAPD Traffic Collision Report
Officer Thomas Ward, now retired, is a 33-year veteran of the Los Angeles Police Department, and a trained Traffic Collision Investigator and a Field Training Officer for the West Traffic Division. Officer Ward arrived at the scene of the accident at approximately 7:53 a.m., and took statements from both Special Agent Fritch and an unidentified independent percipient witness. During his investigation, Officer Ward tested the traffic signal phasing and pedestrian control signals, and examined the crosswalk markings. Officer Ward also took measurements and determined that the area of impact was 21 feet east of the intersection and approximately three feet north of the sidewalk. Later in the day, he spoke to Plaintiff at the hospital.
In his Collision Report, Officer Ward concluded that Plaintiff was at fault for the accident because she failed to yield to vehicle traffic when crossing the street. Officer Ward also concluded that Special Agent Fritch had not violated any provisions of the California Vehicle Code.
C. Defendant's Accident Reconstruction Report
Defendant retained Michael Varat as its accident reconstruction expert. Mr. Varat is the Principal Scientist at the consulting firm of Keva Engineering, and he has over 25 years experience in the field of accident reconstruction and has participated in the analysis and engineering reconstruction of over 2, 500 transportation crashes.
During his investigation of this accident, Mr. Varat conducted a site inspection and performed a collision reconstruction. Based on his inspection and collision reconstruction, Mr. Varat determined that, at the time of the accident, Plaintiff was one or two steps from the curb, and had entered the street one or two seconds before impact. Mr. Varat also determined that Special Agent Fritch was already in the process of making a right hand turn onto Washington Boulevard from Lincoln Boulevard when Plaintiff entered the street. Based on his findings, Mr. Varat concluded that Special Agent Fritch could not have reasonably avoided the accident because it would have taken him one to two seconds to observe Plaintiff and apply his brakes in order to bring his vehicle to a complete stop. According to Mr. Varat, even if Special Agent Fritch had applied his brakes as soon as Plaintiff stepped off the curb, he would not have been able to stop in time to avoid hitting Plaintiff.
In addition, Mr. Varat concluded that if Plaintiff, who was standing on the sidewalk when Special Agent Fritch began making his right hand turn, had looked to her left before beginning to cross the street, she would have seen Special Agent Fritch's vehicle and she would have been able to avoid the accident.
D. Procedural History
On August 8, 2015, Plaintiff filed a Complaint against Defendant, alleging a single claim of negligence and negligence per se. In her Complaint, Plaintiff alleges that the accident occurred because Special Agent Fritch was driving his vehicle in " an inattentive and negligent manner, " drove at an excessive speed, and failed to yield.
In its Motion, Defendant seeks summary judgment on Plaintiff's Complaint on the grounds that: (1) Plaintiff has not presented evidence sufficient to establish that Defendant breached any duty, or that the breach of that duty caused Plaintiff's injuries; and (2) the undisputed facts demonstrate that Special Agent Fritch was not negligent and did not cause Plaintiff's injuries, and that Plaintiff was negligent and caused her own injuries.
II. Legal Standard
Summary judgment is proper where " 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). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party meets its burden, a party opposing a properly made and supported motion for summary judgment may not rest upon mere denials but must set out specific facts showing a genuine issue for trial. Id. at 250; Fed.R.Civ.P. 56(c), (e); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (" A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data."). In particular, when the non-moving party bears the burden of proving an element essential to its case, that party must make a showing sufficient to establish a genuine issue of material fact with respect to the existence of that element or be subject to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " An issue of fact is not enough to defeat summary judgment; there must be a genuine issue of material fact, a dispute capable of affecting the outcome of the case." American International Group, Inc. v. American International Bank, 926 F.2d 829, 833 (9th Cir. 1991) (Kozinski, dissenting).
An issue is genuine if evidence is produced that would allow a rational trier of fact to reach a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248. " This requires evidence, not speculation." Meade v. Cedarapids, Inc., 164 F.3d 1218, 1225 (9th Cir. 1999). The Court must assume the truth of direct evidence set forth by the opposing party. See Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). However, where circumstantial evidence is presented, the Court may consider the plausibility and reasonableness of inferences arising therefrom. See Anderson, 477 U.S. at 249-50; TW Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631-32 (9th Cir. 1987). Although the party opposing summary judgment is entitled to the benefit of all reasonable inferences, " inferences cannot be drawn from thin air; they must be based on evidence which, if believed, would be sufficient to support a judgment for the nonmoving party." American International Group, 926 F.2d at 836-37. In that regard, " a mere 'scintilla' of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some 'significant probative evidence tending to support the complaint.'" Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997).
III. Discussion
In her Complaint, Plaintiff alleges a single claim that purports to be a claim for both negligence and negligence per se. Under California law, in order to prevail on her negligence claim, Plaintiff must demonstrate that: (1) Defendant owed Plaintiff a legal duty; (2) Defendant breached that duty; (3) the breach was the proximate cause of Plaintiff's injury; and (4) Plaintiff suffered damages as a result. United States Liability Insurance Co. v. Haidinger-Hayes, Inc., 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770 (1970). In order to prevail on her negligence per se claim, Plaintiff must demonstrate that: (1) Defendant violated a statute, ordinance, or regulation; (2) the violation was the proximate cause of Plaintiff's injuries; (3) the injuries resulted from an occurrence that the statutes were designed to prevent; and (4) Plaintiff was within the class of persons for whose protection the statute, ordinance, or regulation was adopted. Plaintiff has failed to demonstrate that Defendant, though its employee Special Agent Fritch, should be held liable for negligence or negligence per se in connection with the accident.
In a Federal Torts Claim Act action against the United States, the law of the place where the allegedly wrongful act occurred governs the substantive law applied. 28 U.S.C. § § 1346(b) and 2674. In this case, it is undisputed that the accident occurred in California, and that California law applies.
Plaintiff relies on the same allegations in support of her negligence and negligence per se claims. Therefore, the Court has analyzed the claims together. With respect to her negligence claim, Plaintiff has failed to alleged breach of a legal duty and causation. Similarly, with respect to her negligence per se claim, Plaintiff has failed to demonstrate violation of a statute, ordinance or regulation and causation.
A. Plaintiff Cannot Demonstrate That Special Agent Fritch Breached Any Legal Duty or Violated a Statute, Ordinance, or Regulation .
Although Plaintiff alleges in her Complaint that the accident occurred because Special Agent Fritch was inattentive, drove at an excessive rate of speed, and failed to yield the right-of-way, Plaintiff has failed to produce any evidence to support those allegations. Because Plaintiff admits she failed to look to the left before crossing the street, she cannot testify as to the speed of Special Agent Fritch's vehicle, his purported failure to yield the right-of-way, or whether he was distracted. In addition, Plaintiff has failed to present testimony from any witness demonstrating that Special Agent Fritch was inattentive, driving at an excessive rate of speed, or that he failed to yield the right-of-way. Moreover, the only documentary evidence addressing the cause of the accident that Plaintiff produced in discovery is Officer Ward's Traffic Collision Report, which concluded that Plaintiff, and not Special Agent Fritch, was at fault for the accident because she failed to yield to vehicle traffic when she stepped off the curb and into the street. Furthermore, in her Opposition, Plaintiff does not dispute that Special Agent Fritch was driving approximately five miles per hour at the time of the accident, and only offers mere speculation and conclusions regarding Special Agent Fritch's purported inattentiveness. However, Plaintiff cannot create a genuine issue of material fact to defeat summary judgment by the use of speculation and assertions in legal briefs. S.A. Empresa De Viacao Aera Rio Grandense v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1980); Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (" Attorney argument is no substitute for evidence").
Plaintiff also produced medical records related to her injuries and some photographs of the intersection where the accident occurred.
Without citing to any evidence, Plaintiff speculates in the Opposition that " SA Fritch's attention was apparently drawn away" by traffic, other pedestrians, " or some other unidentified distraction." Opposition, 7:7-9.
In addition, Plaintiff apparently assumes that Special Agent Fritch failed to yield the right-ofway in violation of California Vehicle Code § 21950(a), which states that a driver " shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk." However, Section 21950(b) of the California Vehicle Code provides that " [n]o pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard." Moreover, Section 21950(b)'s requirement that pedestrians not leave a curb or other place of safety and walk into the path of a vehicle that is so close as to constitute an immediate hazard applies even when a pedestrian is walking within the crosswalk and has the right-of-way. Smith v. Sugich Co., 179 Cal.App.2d 299, 305, 3 Cal.Rptr. 718 (1960) (" It is the duty of a pedestrian to exercise reasonable care while crossing a street in a marked crosswalk, and to continue to be alert to safeguard against injury, and such duty continues throughout his passage"); O'Brien v. Schellberg, 59 Cal.App.2d 764, 768, 140 P.2d 159 (1943) (affirming judgment against Plaintiff's estate where Plaintiff crossed street within crosswalk and either failed to look for oncoming traffic or stepped in front of Defendant's vehicle a short distance away). In this case, Plaintiff admitted in her deposition that she did not look for oncoming traffic before stepping into the street. Her failure to look for oncoming traffic was a clear violation of Section 21950(b), and demonstrates that she failed to exercise reasonable care in crossing the street. Thus, based on the undisputed evidence, the Court concludes that Special Agent Fritch was not negligent, and Defendant is entitled to summary judgment on Plaintiff's Complaint.
In her Opposition, Plaintiff, for the first time, argues that Defendant violated Section 21453 of the California Vehicle Code, which states that a driver shall " yield the right-of-way to a pedestrian lawfully within an adjacent crosswalk." However, Plaintiff did not plead this alleged violation in her Complaint, and a party cannot oppose summary judgment by raising grounds not at issue in the pleadings. See, e.g., Wasco Prods. Inc. v. Southwell Techs. Inc., 435 F.3d 989, 992 (9th Cir. 2006) (" Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings"). Moreover, even if Plaintiff had pled this alleged violation in her Complaint, it would not change the fact that she violated Section 21950(b) of the California Vehicle Code.
B. Plaintiff Cannot Demonstrate That Special Agent Fritch Caused Her Injuries .
Even if Plaintiff could demonstrate that Special Agent Fritch was somehow negligent, she has failed to produce any evidence demonstrating that he was the cause of her injuries. See, e.g., Iolab v. Seaboard Surety Co., 15 F.3d 1500, 1506 (9th Cir. 1994) (" Although causation is a question of fact, it may be decided as a matter of law if, under undisputed facts, reasonable minds could not differ"). In California, in order to prove causation, Plaintiff must demonstrate that Special Agent Fritch was driving in a negligent manner and that his negligent behavior was a " substantial factor, " and not a " remote or trivial factor, " in causing her injuries. Judicial Council of California Civil Jury Instruction 430; see also Uriell v. Regents of University of California, 234 Cal.App.4th 735, 184 Cal.Rptr.3d 79 (2015) (holding that " [t]he court's use of CACI No. 430 to instruct the jury regarding the substantial factor standard for causation was appropriate and accurately stated the applicable legal principle"). However, as discussed in detail above, it is undisputed that Special Agent Fritch was already in the process of making a right hand turn onto Washington Boulevard from Lincoln Boulevard when Plaintiff entered the street, and, thus, he could not have avoided the accident because even if he applied his brakes as soon as Plaintiff stepped off the curb, he would not have been able to stop in time to avoid hitting Plaintiff. Accordingly, Special Agent Fritch is not the cause of Plaintiff's injuries.
To the contrary, Plaintiff's own negligence was the cause of the accident. When, as in this case, a pedestrian steps directly into the path of an oncoming vehicle from a place of safety such as a sidewalk, the pedestrian's " state of helplessness [is] created only by their act of leaving their position of safety . . . and stepping directly into the path of danger." Doran v. City & County of San Francisco, 44 Cal.2d 477, 490, 283 P.2d 1 (1955) (holding that the plaintiffs' " act of negligence in leaving a place of safety and stepping directly into the path of the oncoming [vehicle] necessarily occurred almost simultaneously with the happening of the accident" where the plaintiffs took two or three steps before accident occurred). Plaintiff admitted during her deposition that the accident occurred after she failed to look left before stepping off of the curb, taking one or two steps from the curb, and traveling no more than three feet or less from the curb. Plaintiff's testimony is confirmed by Officer Ward's Traffic Collision Report, which indicates that the area of impact was approximately three feet north of the sidewalk. Therefore, Plaintiff could have avoided the accident by simply looking to her left for oncoming traffic before beginning to cross the street, and, thus, it was Plaintiff's negligence that caused her injuries.
IV. Conclusion
For all the foregoing reasons, Defendant's Motion is GRANTED.
IT IS SO ORDERED.
JUDGMENT
The Court, having granted Defendant United States of America's (" Defendant") motion for summary judgment based on its determination that there was no genuine issue as to any material fact and that Defendant was entitled to judgment as a matter of law on all claims for relief alleged against it, IT IS NOW, THEREFORE, HEREBY ORDERED, ADJUDGED AND DECREED, that judgment is entered in this action as follows:
1. Plaintiff Nawal Gad (" Plaintiff") shall recover nothing from Defendant;
2. Defendant shall have judgment in its favor on Plaintiff's entire action; and
3. Defendant shall recover from Plaintiff its costs of suit in the sum of $ .
The Clerk is ordered to enter this Judgment.