United States District Court, W.D. Washington, Tacoma
JENNILYN M. FRANKLIN, Plaintiff,
OUT WEST EXPRESS, LLC and CARROLL G. MCDANIEL, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT DISMISSAL OF AFFIRMATIVE DEFENSE
B. LEIGHTON, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff Jennilyn
Franklin's Motion for Summary Judgment Dismissal of
Defendants Out West Express, LLC and Carroll McDaniel's
Affirmative Defense of Contributory Negligence. Dkt. #29.
Franklin sued defendants in state court for personal injuries
claiming that McDaniel, driving a semi-truck as an Out West
employee, struck Franklin's vehicle while it was parked
across the fog line on Interstate 90. Defendants assert that
Franklin was contributorily negligent, but produce no
evidence supporting this contention or creating a genuine
issue of material fact. Defendants instead try to exclude
their post-accident internal report from evidence and dispute
Franklin's certainty about whether her car moved as a
result of the accident. Franklin argues that contributory
negligence is not supported by the record and that the report
defendants have failed to meet their burden of identifying a
genuine issue of material fact concerning whether there was
contributory negligence, Franklin's Motion for Summary
Judgment Dismissal of Defendants' Affirmative Defense is
Franklin was driving westbound on Interstate 90 when her Ford
Explorer stopped running properly. She pulled over, walked to
get oil and antifreeze, and returned via a ride back from a
DOT employee. By this time, there was a notification on a
reader board sign informing westbound traffic of
Franklin's disabled vehicle. After tending to her
vehicle, Franklin drove back onto Interstate 90. The
mechanical issues persisted, however, so she immediately
pulled over and parked across the fog line with her hazard
lights flashing. Dkt. #30-2 at 5-6; Dkt. #30-1 at 27-28.
Shortly thereafter, Carroll McDaniel struck Franklin's
vehicle with the semi-truck he was driving as an employee of
Out West Express, LLC.
were two inquiries into the cause of the collision. The
police report stated that Franklin's vehicle was
“parked on the right interstate shoulder” and
that McDaniel “crossed the white line on the right side
of shoulder [sic], hitting [Franklin's] vehicle on the
driver side.” The responding officer issued McDaniel a
citation for improper lane change. Dkt. #30-2 at 6.
West similarly concluded that McDaniel was the “direct
cause of accident[, ]” as he “was distracted
reaching for food when his rig crossed the white solid
shoulder line where a passenger vehicle was parked,
sideswiping its driver side.” Dkt. #29 at 4. That same
report included a signed statement from McDaniel, explaining
that he “did sidewip [sic] (1) 1999 Ford Expedition
parked on shoulder of roadway I-90 W.B. milepost 67/68
11/08/15.” Dkt. #30-2 at 22. Post collision photos
support Franklin's assertion that her vehicle was parked
on the shoulder of the highway. Dkt. #30-2 at 7-13; Dkt.
#30-1 at 27-28. The report recommended that McDaniel
“need[ed] to be re-evaluated on his driving skills . .
. and MUST only eat . . . during appropriate breaks; through
his negligence, he caused a DOT accident.” Dkt. #30-2
at 25. McDaniel did not appear for his deposition and his
whereabouts are still unknown. Dkt. #30-1 at 31-32. Out
West's transportation safety consultant, Sylvia Artalejo,
drafted an email stating that Franklin's vehicle was
entering the highway when McDaniel hit it. Dkt. #30-2 at 15.
There is not, however, any evidence in the record supporting
sued Out West and McDaniel in state court. Defendants
admitted that McDaniel was negligent in causing the accident,
but also claimed that Franklin was contributorily negligent
and removed to federal court. Dkt. #11 at 2. During
discovery, Out West willingly produced its internal report on
the collision without objection or assertion of any
privileges. Dkt. #32 at 3. Franklin's deposition
corroborates the police report and Out West's internal
report concluding that her vehicle was parked entirely across
the fog line.
on the police report, Out West's internal report, and
Franklin's testimony, Franklin now requests summary
judgment dismissal of defendants' affirmative defense.
Dkt. #29. In opposition, defendants attack the admissibility
of the report, claiming that it should be disregarded and
stricken under the self-critical analysis privilege. Dkt. #31
at 1. Defendants also suggest that Franklin's deposition
testimony is conclusory and speculative, and therefore
insufficient to support her motion for summary judgment. Dkt.
#31 at 4.
judgment is proper “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(c). In determining whether an issue of fact
exists, the Court must view all evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v.
Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine
issue of material fact exists where there is sufficient
evidence for a reasonable factfinder to find for the
nonmoving party. Anderson, 477 U.S. at 248. The
inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. at 251-52.
moving party bears the initial burden of showing that there
is no evidence which supports an element essential to the
nonmovant's claim. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Once the movant has met this burden,
the nonmoving party then must show that there is a genuine
issue for trial. Anderson, 477 U.S. at 250. If the
nonmoving party fails to establish the existence of a genuine
issue of material fact, “the moving party is entitled
to judgment as a matter of law.” Celotex, 477
U.S. at 323-24. There is no requirement that the moving party
negate elements of the non-movant's case. Lujan v.
National Wildlife Federation, 497 U.S. 871 (1990). Once
the moving party has met its burden, the non-movant must then
produce concrete evidence, without merely relying on
allegations in the pleadings, that there remains genuine
factual issues. Anderson, 477 U.S. 242, 248 (1986).