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Franklin v. Out West Express, LLC

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

May 2, 2019




         THIS 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 is admissible.

         Because 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 GRANTED.


         Jennilyn Franklin was driving westbound on Interstate 90 when her Ford Explorer stopped running properly.[1] 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.

         There 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.

         Out 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 this conclusion.

         Franklin 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.

         Based 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.


         I. Summary judgment

         Summary 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.

         The 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).

         II. Self-critical ...

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