Opinion
Civil Action No. 03-2758 SECTION: E/3.
October 28, 2004
ORDER AND REASONS
This matter is before the Court on third party defendant Water Group of North America, LP's (formerly known as Suntory Water Group Inc.) d/b/a/ Kentwood Spring Water, ("Kentwood") motion for summary judgment. Rec. Doc. #31. The motion is opposed by plaintiff Laura Westbrook ("Westbrook") and defendants Amanda Germann and State Farm Mutual Automobile Insurance Company (collectively "Germann"). The motion was submitted on the briefs on October 27, 2004. For the reasons that follow, the motion for summary judgment is denied.
BACKGROUND
This action arises out of an automobile accident in the French Quarter of New Orleans. Germann had been in the City for only about 20 minutes, and was driving in New Orleans for the first time. She was proceeding on Governor Nicholls Street when she entered the intersection at Royal Street, striking the rear passenger side of Westbrook's car as Westbrook drove through the intersection on Royal Street. Both are one-way streets. There is a stop sign on Governor Nicholls at Royal Street; the vehicles on Royal Street have the right-of-way. Westbrook's complaint alleges that Germann is at fault because she was speeding and ran the stop sign on the corner of Governor Nicholls.
Westbrook filed suit in Civil District Court for the Parish of Orleans. Because Germann is a Florida domiciliary, State Farm removed the action to federal court. Diversity jurisdiction is not contested.
After some discovery, Westbrook filed a supplemental and amending complaint adding Kentwood and its insurer as defendants. The amended complaint alleges that a Kentwood delivery truck was parked on the corner of Governor Nicholls at Royal Street "in such a way as to have contributed to the accident." Amended Complaint, ¶ 4A. The allegation is that at the time of the accident, the Kentwood delivery truck was parked in a "no parking" zone and blocked the stop sign on the corner of Governor Nicholls from Germann's view.
ANALYSIS
A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L. Ed. 3d 265 (1986). An issue is material if its resolution could affect the outcome of the action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed. 2d 202 (1986). In deciding whether a fact issue has been created, we must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999). However, once a moving party properly supports a motion for summary judgment, the nonmoving party "must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial."Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311-12 (5th Cir. 1999), quoting Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047-48 (5th Cir. 1996). The nonmoving party cannot satisfy its burden with "unsubstantiated assertions" or "conclusory allegations." Id.
Louisiana substantive law applies in this diversity case. Erie R.R. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Gegreyesus v. F.C. Schaffer Associates, Inc., 204 F.3d 639, 642 (5th Cir. 2000). In Louisiana, negligence is determined by a duty-risk analysis. Bonin v. Ferrellgas, Inc., 877 So.2d 89, 94 (La. 2004). For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform its conduct to a specific standard of care (the duty element); (2) the defendant failed to conform its conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of protection element); and (5) actual damages (the damage element). Westchester Fire Insurance Company v. Haspel-Kansas Investment Partnership, 342 F.3d 416, 419 (5th Cir. 2003), citing Pinsonneault v. Merchants Farmers Bank Trust Company, 816 So.2d 270, 275-76 (La. 2002). A plaintiff's failure to prove any single element is fatal to recovery. Goins v. Wal-Mart Stores, Inc., 800 So.2d 783, 788 (La. 2002).
The initial question in any negligence action is whether the defendant owed plaintiff a duty, which is a question of law.Id. Whether the duty was breached is a question of fact. Hodge v. Liquid Ventures, 634 So.2d 1337, 1339 (La. 3 Cir. 1994). Violation of a statute is negligence per se, and is actionable if it is a cause of plaintiff's damages. Nolan v. Jefferson Downs, Inc., 592 So.2d 831, 839 (La.App. 5 Cir. 1991). "A statute generally imposes a duty; and if violation of that duty results in the harm the statute was designed to prevent, then there is liability." Id. However, that negligence `"is actionable only when it is shown that failure to follow a statute was a legal cause of the accident.'" Id., quoting Martyniuk v. DL-Mud, Inc., 526 so.2d 846, 848 (La.App. 1 Cir. 1988), writ denied, 531 So.2d 279 (La. 1088).
"Under Louisiana law, the determination of whether an action is the cause-in-fact of the injury is a question of fact."Westchester, 342 F.3d at 419, citing Lasyone v. Kansas City Southern Railroad, 786 So.2d 682, 691 (La. 2001). The Louisiana Supreme Court has explained that "[a] party's conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm." Westchester, 342 F.3d at 420, quoting Lasyone, 786 So.2d at 691. The determination of cause-in-fact is usually a "but for" inquiry, but when multiple causes are present a "substantial factor" inquiry is required.Id. at 420, citing Roberts v. Beniot, 605 So.2d 1032, 1042 (La. 1991). The Fifth Circuit concluded that in cases involving multiple causes, the threshold test for cause-in-fact is "an inquiry of `to what extent' did the defendant's conduct have something to do with the plaintiff's injuries." Westchester, 342 F.3d at 420-421. In other words, a defendant's conduct is a cause-in-fact of a plaintiff's injuries if that conduct was a substantial factor in bringing about the plaintiff's harm. Id., citing, e.g., Adams v. Traina, 830 So.2d 526, 533 (La.App. 2nd Cir. 2002) ("Where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the harm or injuries.")
Kentwood argues that in Germann's deposition, Germann testified that she struck Westbrook's car because she was unable to see the oncoming traffic on Royal Street due to cars parked along Royal Street, not because she could not see the stop sign. See Kentwood's memorandum, Ex. "1" — excerpts of Germann deposition. It claims that regardless of whether she saw the stop sign on the right side of Governor Nicholls, her field of vision of oncoming cars as she looked down Royal Street would still have been obstructed. Kentwood argues that it is entitled to summary judgment even if its delivery truck was parked illegally and in such a way that it obstructed Germann's view of the stop sign because her failure to see the stop sign was not a cause in fact of the accident. Kentwood also points to the deposition testimony of a witness, Maria Davis, who denied that the truck was parked on the corner at all. See Kentwood's reply memorandum, Ex. "3" — excerpts of Maria Davis' deposition.
Germann disputes Kentwood's allegations of undisputed facts. She offered excerpts of her own deposition (with a copy of the accident report attached), and excerpts of the depositions of Maria Davis, of Ryan Maher, the responding police officer, and of Christopher McShan, driver of the Kentwood delivery truck. Germann testified that she looked for but did not see the stop sign before she slowly proceeded into the intersection. McShan testified that when he makes deliveries to the grocery at the corner of Governor Nicholls and Royal Streets he parks wherever he can, and whether the parking place is illegal or not is immaterial. Officer Maher testified that both Westbrook and Germann stated that a delivery truck (which was gone by the time he arrived at the scene) had been parked on the corner obscuring the stop sign on Governor Nicholls, and that he did not issue a citation to either driver because he did not think either one had violated the law.
In its reply memorandum, Kentwood argues that Germann came to a complete stop before entering the intersection, therefore it is immaterial whether its delivery truck was blocking the stop sign. What Germann actually testified to was that she came to a "rolling stop", not a complete stop. Germann opposition, Ex. 4, p. 15, ll. 17-24. Davis testified that Germann's car was coming "full speed". Kentwood's reply, Ex. 3, p. 22, ll. 23-24.
Westbrook filed an opposition to Kentwood's motion for summary judgment, disputing Kentwood's "factual conclusions" that the cause of the accident was that Germann's view down Royal Street was obstructed by parked cars on Royal Street. She argues that the accident was caused not by parked cars obstructing her view, but simply by her failure to see what she should have seen. She argues that Germann testified at her deposition that she did not even see Westbrook's car until after the accident occurred. See Westbrook's opposition, Ex. "2" — excerpt of Germann's deposition.
Westbrook subsequently filed a reply brief challenging Germann's opposition to Kentwood's motion, in which she argues that "[t]here is no genuine issue of material fact that Germann was the sole cause of this accident and the truck was not a cause of the accident." Westbrook reply brief, p. 2. She appears to argue that because Germann has not previously urged the defense that the truck blocked her view of the stop sign, she should not be able to defend against Westbrook's lawsuit by attempting to deflect at least some liability to Kentwood. The effect of Westbrook's reply brief is to support Kentwood's motion for summary judgment.
However, as discussed previously herein, the law provides for circumstances like this one in which there may be more than one cause in fact of an accident. It is for the trier of fact to determine whether Germann's car even slowed down before entering the intersection, and whether Kentwood's illegally parked delivery truck was a cause in fact of the accident because it blocked Germann's view of the stop sign and blocked any opportunity she might have had to maneuver her car farther to the right side of Governor Nicholls Street for a better view down Royal Street before entering the intersection. Resolving the disputed facts in favor of the nonmoving parties, the Court finds that Kentwood is not entitled to judgment as a matter of law.
Accordingly,
IT IS ORDERED that Kentwood's motion for summary judgment is DENIED.