Opinion
CIVIL ACTION No. 02-2480-KHV
January 7, 2004
MEMORANDUM AND ORDER
Dennis Jackson, individually and as personal representative and trustee of the Estate of Susan L. Jackson, brings suit against Dustin Henderson for personal injuries, wrongful death and property damages arising out of a car accident. This matter comes before the Court on defendant'sMotion For Summary Judgment (Doc. #72) filed October 15, 2003. For reasons stated below, the Court sustains defendant's motion in part.
Plaintiff also sued Luke Weaver, Penny Weaver and A.J. Weaver but later agreed to dismiss those claims. See Joint Stipulation Of Plaintiffs And Defendants Luke Weaver, Penny Weaver And A.J. Weaver With Prejudice (Doc. #74) filed October 16, 2003.
I. Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City Of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sees., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. See Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turnup at trial." Conaway v. Smith 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson, 477 U.S. at 251-52.
II. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff. On September 24, 2000, Dustin Henderson, who was 18 years old, went to the house of Jonathan Ware. Ware, who was 15 years old, had taken his stepfather's truck to fish at a nearby farm and was not at home. For 30 to 45 minutes, Henderson talked to Ware's mother and stepfather. Ware's stepfather asked Henderson to go to the farm and check on Ware, and Henderson agreed.
Plaintiff asserts that Henderson agreed to bring Ware home safely, but his record citation does not support this assertion. See Plaintiff's Memorandum In Opposition To Defendant Dustin Henderson's Motion For Summary Judgment ("Plaintiff's Memorandum") (Doc. #76) filed November 5, 2003 at 4 ¶ 2; Henderson Depo. at 17 1.5 to 18 1.22.
When Henderson arrived at the farm, he found that Ware had gotten his stepfather's truck stuck in the mud. Luke Weaver, who was 13 years old, was with Ware. Henderson attached a chain to his own pick-up and pulled Ware's truck out of the mud Henderson knew that Ware did not have a driver's license, but he did not try to stop Ware from driving the truck home.
Henderson followed Ware along a gravel road which intersects with U.S. Highway 166. Henderson and Ware raced along the gravel road at speeds of 50 to 60 miles per hour. Weaver, who was riding in Ware's truck, described Ware's driving as "hot rodding." Weaver Depo. at 39 11.1-9.
Henderson and Ware testified that they were driving 40 to 45 miles per hour and that Henderson never tried to pass Ware. For purposes of defendant's motion summary judgment, the Court construes the record in the light most favorable to plaintiff.
Weaver also testified that Ware was not speeding.
Ware arrived at the intersection of U.S. Highway 166 and waited for Henderson to pull up behind him. When Henderson arrived, he stopped two to three feet behind Ware. In their respective positions, Ware was in a better position to see oncoming traffic. Ware waved his hand at Henderson, signaling for Henderson to either pull up next to Ware or get out of his truck and walk up to Ware. Henderson waved back. Henderson testified that he was waving to a car that was waiting behind him, to signal that the car should go around him. Henderson Depo. at 40 11.10-13. Ware interpreted Henderson's wave to mean "go ahead to go to the house, I'll meet you there." Ware Depo. at 38 11.20-21. Ware did not interpret Henderson's wave to mean that it was safe to cross the intersection. Id. at 43 11.11-14.
Jackson attempts to dispute this fact, but he does not provide sufficient record support. He cites the testimony of Gynger Jarboe, who was driving a car that pulled up behind Henderson. Jarboe testified that she thought that both Ware and Henderson could see Jackson's car approaching the intersection, but that Henderson could have distracted Ware when he pulled up. Jarboe Depo. at 471.16 to 48 1.16. Jarboe did not say that Henderson was in a better position to see oncoming traffic.
Plaintiff asserts that Ware's deposition testimony is unreliable because he repeatedly lied about circumstances surrounding the accident, but plaintiff does not cite record support for this assertion. See Plaintiffs Memorandum at ¶¶ 3-4, 12-14. To the extent plaintiff provides evidence which controverts Ware's testimony, the Court will construe the summary judgment evidence in the light most favorable to plaintiff. The credibility of Ware's testimony, however, is an issue for the jury to decide.
Ware pulled into the intersection and collided with a vehicle that Dennis Jackson was driving. The accident severely injured Mr. Jackson and killed his wife, Susan Jackson.
At the time of the accident, Ware had a learner's permit but no driver's license. Ware testified that before proceeding into the intersection, he took three or four seconds to look both ways for oncoming cars. Ware Depo. at 91 11.5-9. Ware testified that he always crosses intersections slowly and that he may have crossed too slowly on the day of the accident. Id. at 53 1.18 to 541.2. Gynger Jarboe, who was driving a car which pulled up behind Henderson at the intersection, testified that Ware did not proceed cautiously through the intersection. Jarboe Depo. at 47 11.16-18. Jarboe also testified that when Ware pulled into the intersection, he "spun out," or made rocks kick up from the road.
III. Analysis
Plaintiff claims that Henderson is liable under theories of negligence, negligence per se and vicarious liability. Henderson seeks summary judgment on all claims.
A. Negligence
Henderson asserts that he is not liable for negligence because (1) he owed no duty to plaintiff and (2) plaintiff cannot show causation. In order to establish negligence, plaintiff must show that (1) Henderson owed a duty to plaintiff; (2) Henderson breached that duty; (3) plaintiff was injured; and (4) a causal connection exists between the injury and the breach of duty. See McCormick v. Bd. of County Comm'rs of Shawnee County, 272 Kan. 627, 648, 35 P.3d 815, 831 (2001). The threshold question in any negligence action is whether defendant owed a duty of care to plaintiff. If no duty is owed, there can be no negligence. See Cansler v. State, 234 Kan. 554, 558, 675 P.2d 57, 61 (1984). Whether a duty exists is a question of law for the Court, while a determination whether that duty was breached is a question of fact for the jury.Schrader v. Great Plains Elec. Co-op. Inc., 19 Kan. App. 2d 276, 278, 868 P.2d 536, 538 (1994).
Henderson argues that (1) he did not undertake a duty to plaintiff when he waved to Ware at the intersection of U.S. Highway 166; and (2) plaintiff cannot show that his wave to Ware caused the accident. See Defendant Dustin Henderson's Memorandum In Support Of Motion For Summary Judgment ("Defendant's Memorandum") (Doc. #73) filed October 15, 2003 at 5-10. In the pretrial order, plaintiff asserts that Henderson negligently instructed Ware that it was safe to proceed across the highway. See Pretrial Order (Doc. #70) filed September 25, 2003 at 5. In response to Henderson's motion, however, plaintiff does not assert that Henderson is liable because he waved to Ware. Henderson is therefore entitled to summary judgment on such claim.
In the pretrial order, plaintiff asserts other theories of negligence,i.e. that Henderson was negligent by (1) racing and driving at high speeds with Ware; (2) promoting, encouraging and facilitating Ware to drive recklessly and carelessly; and (3) allowing Ware to drive without a license. See Pretrial Order (Doc. #70) at 5-6. Henderson's motion does not address these theories, which therefore remain in the case.
Henderson attempts to address the other theories in his reply brief, but those arguments are not properly before the Court. See Thurston v. Page, 931 F. Supp. 765, 768 (D. Kan. 1996) (court will not consider argument first raised in reply brief).
B. Negligence Per Se
To establish a claim of negligence per se, plaintiff must show that (1) Henderson violated a statute, ordinance or regulation; (2) the statute was adopted to protect the class of persons in which plaintiff is included and to protect against the type of harm which occurred as a result of its violation; and (3) the alleged violation was the proximate cause of plaintiff's injuries. See Marino v. Sander, 834 F. Supp. 1335, 1340 (D. Kan. 1993). Henderson contends that plaintiff cannot establish negligence per se because (1) he did not violate a statute; and (2) even if he did violate a statute, the illegal activity ceased when he and Ware stopped at the intersection of U.S. Highway 166.
Plaintiff asserts that Henderson violated three Kansas statutes: K.S.A. §§ 8-263, 8-1565 and 8-1566. Section 8-263 provides that "[n]o person shall cause or knowingly permit his or her child or ward under the age of eighteen years to drive a motor vehicle upon any highway when such minor is not authorized [by law to do so.]" Henderson argues that K.S.A. § 8-263 does not apply because Ware is not his child or ward. Plaintiff has not shown that Ware was Henderson's child or ward. Henderson is therefore entitled to summary judgment on the claim of negligence per se based on K.S.A. § 8-263.
In the pretrial order, plaintiff asserts that Henderson violated these statutes plus five others: K.S.A. §§ 8-222, 8-264, 8-284, 8-1557 and 8-1558. See Pretrial Order (Doc. #70) at 6. Plaintiff has apparently abandoned his claims for negligence per se based on the latter five.
Henderson also asserts that plaintiff cannot establish that he violated K.S.A. §§ 8-1565 and 8-1566. Section 8-1565 prohibits driving "any vehicle in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record." Section 8-1566 prohibits driving any vehicle "in willful or wanton disregard for the safety of persons or property." Eyewitnesses testified that Henderson and Ware were hot rodding and driving too fast. Construed in a light most favorable to plaintiff, the record supports an inference that Henderson violated both statutes.
Henderson argues that even if he did violate the statutes, the violation ceased when he and Ware stopped at the intersection. A reasonable jury could conclude, however, that Henderson and Ware planned to continue the race and/or reckless driving after the stop. Whether the unlawful activity caused the accident is a question for the jury to decide. See St. Clair v. Denny, 245 Kan. 414, 420, 781 P.2d 1043, 1047 (1989) (citing Stucky v. Johnson, 213 Kan. 738, 518 P.2d 937 (1974));Lemons v. Kelly, 397 P.2d 784, 786 (Or. 1964). Henderson is not entitled to summary judgment on plaintiffs claims of negligence per se based on K.S.A. §§ 8-1565 and 8-1566.
C. Vicarious Liability
Henderson asserts that he is not vicariously liable for Ware's actions. Plaintiff may hold Henderson vicariously liable if he (1) committed a tortious act in concert with Ware or pursuant to a common design with Ware; (2) knew that Ware's conduct constituted a breach of duty and gave substantial assistance or encouragement to Ware; or (3) gave substantial assistance to Ware in accomplishing a tortious result and Henderson's own conduct, separately considered, constitutes a breach of duty to plaintiff. See State ex rel. Mavs v. Ridenhour, 248 Kan. 919, 936, 811 P.2d 1220, 1231-32 (1991) (adopting Restatement (Second) of Torts § 876 (1977)).
Plaintiff contends that Henderson and Ware acted in concert by racing and that Henderson encouraged Ware to drive recklessly. Henderson argues that plaintiff has no evidence to support their claim. Eyewitnesses testified that Ware and Henderson were driving too fast, racing and hot-rodding. Construed in a light most favorable to plaintiff, the record supports an inference that Henderson acted in concert with Ware and/or encouraged him to drive recklessly. See, e.g., Slagle v. Hubbard, 29 P.3d 1195, 1197 (Or.Ct.App. 2001); Clausen v. Carroll, 684 N.E.2d 167, 172 (Ill.App.Ct. 1997) (all participants in drag race may be held liable for damages caused by one of them). Henderson is not entitled to summary judgment on plaintiffs claim of vicarious liability.
IT IS THEREFORE ORDERED that defendant's Motion For Summary Judgment (Doc. #72) filed October 15, 2003 be and hereby is SUSTAINED in part and OVERRULED in part. Defendant's motion is sustained as to (1) plaintiff's claim that Henderson was negligent by waving to Ware that it was safe to proceed through the intersection; and (2) plaintiffs claim for negligence per se based on K.S.A. §§ 8-222, 8-263, 8-264, 8-284, 8-1557 and 8-1558. Defendant's motion is otherwise overruled. The following claims remain in the case: (1) negligence based on racing and driving at high speeds with Ware; promoting, encouraging and facilitating Ware to drive recklessly and carelessly; and allowing Ware to drive without a license; (2) negligence perse based on K.S.A. §§ 8-1565 and 8-1566; and (3) vicarious liability.
IT IS FURTHER ORDERED that defendant's Motion To Supplement The Record (Doc. #79) filed December 17, 2003 be and hereby is SUSTAINED.