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Keone v. United States

United States District Court, W.D. Washington, Seattle

November 21, 2014

KARL K. KEONE, an individual, Plaintiff,


RICARDO S. MARTINEZ, District Judge.

THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment (Dkt. # 20) and Plaintiff's cross Motion for Partial Summary Judgment (Dkt. # 22). Having considered the parties' memoranda, supporting declarations and exhibits, and the remainder of the record, the Court denies Defendant's motion for summary judgment and grants partial summary judgment in favor of Plaintiff on the issue of liability for the reasons stated herein.


This action arises from a motor vehicle accident involving Plaintiff, Karl Keone, and United States Postal Service ("USPS") driver Stacey Christian, occuring at the intersection of West Marginal Place and 27th Avenue South in Tukwila, Washington on August 19, 2011. At the time of the collision, Keone was returning from Sea-Tac International Airport in his girlfriend's 1991 Nissan when he exited Northbound SR 599 at West Marginal Place and South 102nd Street at approximately 7:30am. Dkt. # 23, Ex. 3 (Christian Dep.), p. 20; Dkt. # 1 (Compl.), ¶ 5; Dkt. # 9 (Answer), ¶ 5. At the same time, Christian was returning to the USPS distribution center, roughly one block south of the intersection, at the close of his usual graveyard shift. Id. Christian was traveling on South 102nd Street toward the intersection with West Marginal Place on his right and 27th Avenue South on his left.[1] It is undisputed that Christian struck Keone's vehicle, which was traveling straight through the intersection from the SR 599 off ramp onto South 102nd Street, as Christian attempted a lefthand turn onto 27th Avenue South. Dkt. # 20, p. 3; Compl., ¶ 9.

As Christian approached the intersection of South 102nd Street and 27th Avenue South, his traffic signal was red. Dkt. # 21, Ex. D (Christian Dep.), p. 24. He was nearly at a complete stop when the signal turned green, at which point he spotted Keone's vehicle exiting the freeway with his left turn signal activated. Id. at p. 26. Christian testified that he believed that Keone intended to turn left onto West Marginal Place, though he could not recall Keone actually initiating a lefthand turn at the intersection. Id. at pp. 26, 32. As Christian began to execute his lefthand turn, he saw Keone starting to come through the intersection looking to the left onto West Marginal Place with his left turn signal still lighted. Id. at p. 31. Christian applied the brakes when he realized that Keone was not executing a lefthand turn and was instead heading straight through the intersection. Though Christian estimates that his speed was only 10 miles per hour, he was unable to avoid the accident. Id. at p. 34.

Keone testified that he had activated his left turn signal in order to signal his switch from a right-turn-only lane on the righthand side of the exit ramp into a combination straight/left-turn lane on the lefthand side of the exit ramp. Dkt. # 21, Ex. A (Keone Dep.), p. 16. Keone estimated his speed at approximately 35 miles per hour as he entered the intersection. Id. Keone recalled briefly looking to a Highway 99 sign on his left as he entered the intersection. Id. at pp. 20-21. He looked back just in time to collide with Christian's USPS truck and did not apply his brakes before making contact. Id. Keone testified that Christian had not activated his left turn signal and that Keone accordingly believed that Christian intended to proceed straight through the intersection. Id. at p. 17. Christian, by contrast, testified that he had activated his left turn signal prior to arriving at the traffic light. Christian Dep. at p. 25.

It is undisputed that Keone and Christian were the only two witnesses to the accident. Tukwila Police Officer Gary Leavitt arrived at the accident scene at 7:35am, approximately two minutes after the collision, and took oral statements from both drivers. Leavitt prepared a Traffic Collision Report based on these interviews and issued citations to Keone for failing to yield the right of way and for driving with a suspended license. See Dkt. # 21, Ex's. B-C. Christian also called his supervisor, Daronda Lowe, who spoke with the drivers and prepared a standard USPS Motor Vehicle Accident Report and Accident Investigation Worksheet. Id. at Ex. E.

Plaintiff brings this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), seeking to recover for the alleged negligence of Christian while acting within the scope of his federal employment. Defendant filed a counterclaim asserting that the accident was instead caused by Plaintiff's negligence and that Keone is therefore liable for damages incurred by Christian. The Court has since granted the parties' stipulated dismissal of the United States' counterclaim. Dkt. # 19. The parties now seek to resolve Plaintiff's negligence claim through the instant cross motions for summary judgment. Defendant seeks dismissal of Plaintiff's Complaint in its entirety with prejudice (Dkt. # 20), while Plaintiff seeks the Court's ruling in his favor as to liability, reserving the issue of damages for trial (Dkt. # 22).


Federal Rule of Civil Procedure 56(a) permits parties to move for summary judgment on all or part of their claims. 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those that may affect the outcome of the suit under governing law. Id. at 248. An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In ruling on a motion for summary judgment, the court does "not weigh the evidence or determine the truth of the matter but only determine[s] whether there is a genuine issue for trial." Crane v. Conoco, 41 F.3d 547, 549 (internal citations omitted).

The moving party bears the initial burden of production and the ultimate burden of persuasion. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The moving party must initially establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party defeats a motion for summary judgment if she "produces enough evidence to create a genuine issue of material fact." Nissan Fire, 969 F.2d at 1103. By contrast, the moving party is entitled to summary judgment where "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof" at trial. Celotex, 477 U.S. at 322. Assertions of fact must be supported by citation to materials in the record, such as depositions, affidavits, or declarations. Fed.R.Civ.P. 56(c)(1). "[T]he inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment. Anheuser-Busch, Inc. v. Natural Beverage Distributors, 60 F.3d 337, 345 (9th Cir. 1995).


A. Motions to Strike

As an initial matter, the Court considers Plaintiff's Motion to Strike certain materials relied on by Defendant in support of its request for summary judgment. Dkt. # 24, pp. 11-17. In ruling on a summary judgment motion, the Court is restricted to considering evidence that is admissible. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). A party may object that material cited to support or dispute a fact is inadmissible in evidence. Fed.R.Civ.P. 56(c)(2). "The burden is on the proponent to show that the material is ...

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