Opinion
Case No. 4:09CV00030.
May 24, 2010
MEMORANDUM OPINION
Before me is Defendants' Motion for Summary Judgment, which was filed with the Court on May 5, 2010. Plaintiff filed a Memorandum in Opposition on May 19, 2010. Pursuant to a Pretrial Order filed in this case, "all Rule 12 and Rule 56 motions must be heard or submitted on briefs no later than 30 days prior to trial." [Docket No. 12.] Currently, the trial of this matter is scheduled for June 14-15, 2010. Despite the fact that it was not possible to set the Motion for Summary Judgment for a hearing within the time frame envisioned in the Pretrial Order (nor, actually, to submit the matter on briefs since Plaintiff's reply brief was not due until twenty-five days before trial), I nevertheless granted the parties leave to submit the motion on briefs. Having done so, the matter is now ripe for decision. For the reasons stated below, I will DENY the Motion for Summary Judgment.
I. STATEMENT OF FACTS
On May 29, 2008, Plaintiff William E. Preston was performing contracted-for repairs on a commercial roadway lighting system (traffic lights) at the intersection of Starling Avenue and Aaron Street in Martinsville, Virginia. Cleco Corporation contracted Preston to install temporary traffic signals at each end of a bridge under repair near the intersection. Cleco was the general contractor in charge of the bridge repair. ( See Pl.'s Mem. in Opp'n to Mot. for Summ. J. 2 [hereinafter "Pl.'s Opp'n"].)
On the date in question, Preston was activating lights he had installed and ensuring the lights functioned properly. Others workers had closed one lane of traffic and traffic was alternating (presumably with flagmen) in the other lane. Preston was working in a bucket truck on the light above the closed land of traffic. While working, Preston determined that the motion detector hanging between the two lanes of traffic needed to be adjusted. He positioned himself (in the bucket truck) beneath the motion detector and above the open lane of traffic. Preston asserts that the lights were hanging approximately sixteen feet off the ground, and the bottom of his bucket was positioned below the bottom of the traffic lights. ( See Defs.' Mem. in Supp. of Mot. for Summ. J. 2-3 [hereinafter "Defs.' Mem."]; Pl.'s Opp'n 2-3.)
While Preston was working, he felt a bump and something struck the bucket from behind. The bucket was dragged over the trailer portion of a tractor trailer, breaking both of Preston's ankles. An eyewitness, Brain Steffey, told police at the time that the truck was a Heartland Express truck. Police were alerted to the accident and told to look out for a Heartland Express truck that had been involved in an accident; seventeen minutes later, police pulled over a Heartland Express truck on Route 58 approximately twenty miles from the accident site. The driver, David Charles Morton, admitted to having driven through the construction site but denied being involved in an accident. ( See Defs.' Mem. 2-4; Pl.'s Opp'n 2-4.)
According to Plaintiff, Steffey no longer recalls seeing "Heartland Express" on the truck. (Pl.'s Opp'n 3.)
Plaintiff mistakenly named David "Norton" as a defendant when the driver-in-question's name is David "Morton." The mistake apparently arose from a transcription error on the underlying police report. An Order was entered on May 21, 2010, amending the caption [Docket No. 27].
II. PROCEDURAL BACKGROUND
III. STANDARD OF REVIEW
See8.01-329See id. See 28 U.S.C. §§ 133214411446 56United States v. Diebold, Inc.369 U.S. 654655Anderson v. Liberty Lobby, Inc.477 U.S. 242252
IV. DISCUSSION
Defendants assert two grounds in their Motion for Summary Judgment: first, there is no evidence to show that the tractor trailer that struck Plaintiff's bucket was a Heartland Express truck, much less the one David Morton operated; and second, that Plaintiff was contributorily negligent which, in Virginia, is an absolute bar to recovery, see Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d 335, 337 (1987) ("Negligence of the parties may not be compared, and any negligence of a plaintiff which is a proximate cause of the accident will bar recovery."). I will address both of these arguments in turn.
Defendants' first ground for summary judgment, the so-called "Shaggy defense," is inappropriate for a summary judgment motion. In the complaint, Plaintiff alleged the Defendants were negligent. While Defendants are free to assert, at trial, that they were not the negligent party, the question is obviously one of disputed, material fact. Whether the named defendants actually committed the acts complained of is the sine qua non of virtually all civil actions. Simply because Defendants disagree with Plaintiff's evidence does not give me the right to take the issue of fact away from the trier of fact. As such, this issue is not grounds for summary judgment.
Josh Levin, a commentator for Slate magazine, coined this term in reference to the trial of a popular R B singer accused of creating child pornography. See Josh Levin, Dispatches from the R. Kelly Trial: Unveiling the "Shaggy" Defense, SLATE, May 21, 2008, http://www.slate.com/id/2191876/entry/2191877/; see also Christopher Hayes, A Classic Case of the "Shaggy Defense," THE NATION, May 12, 2010, http://www.thenation.com/blog/classic-case-shaggy-defense. The term refers to a song by the artist Shaggy called "It Wasn't Me." In the song, a man's girlfriend catches him "red-handed" in the arms of another paramour. When asked for his advice, the singer advises the man to tell her "it wasn't you." In the present case, I do not mean to suggest that the case against Defendants is as clear cut as the case against the adulterer in the song (as part of the song's "charm" is the absurdity of such a claim by someone in the narrator's situation). I use this term merely to illustrate the defense — claiming the offending party was someone else.
Defendants' other argument is that Plaintiff's contributory negligence bars his recovery under Virginia law. Assuming other factors are met, this is a true statement of the law. Claims of contributory negligence, however, are claims of negligence nonetheless. "Ordinarily, negligence is a jury issue. Its determination requires the sifting and evaluation of facts, which are matters exclusively within the province of a jury." Stevens v. Ford Motor Co., 226 Va. 415, 420-21, 309 S.E.2d 319, 322-23 (1983); see also Ponirakis v. Choi, 262 Va. 119, 125, 546 S.E.2d 707, 711 (2001) ("Generally, an issue whether plaintiff is guilty of contributory negligence is a question of fact to be decided by the trier of fact."); Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 357-58, 397 S.E.2d 821, 823 (1990) ("Ordinarily, negligence is a jury issue. . . . Contributory negligence and assumption of risk likewise are jury issues unless reasonable minds could not differ about their resolution."). Therefore, unless "reasonable minds could not differ" over whether Plaintiff was negligent and whether that negligence was a proximate cause of the accident, the issue is inappropriate for summary judgment.
Defendants maintain that Plaintiff failed to comply with applicable safety standards that apply when working over an open lane of traffic. Furthermore, Defendants maintain that the experts they plan to call at trial are "not contradicted". ( See Defs.' Mem. 11.) Their experts will testify that the standards in question applied and that Preston violated these standards. This evidence, Defendants conclude, compel me to grant their motion for summary judgment.
A motion in limine to exclude the experts is pending before the Court. [Docket No. 21.] Additionally, I would note that no witness has yet been designated an "expert" by this Court. Referring to them as such is not only improper and incorrect, but presupposes their qualifications will be satisfactory to the Court. See FED. R. EVID. 702, 104(a).
Defendants' arguments fail for several of reasons. First, the fact Defendants' experts are "not contradicted" does not require the conclusion that they are correct. As with any witness, the trier of fact is free to weigh the witnesses' credentials and credibility to determine if their opinion is satisfactory to support a conclusion. Second, Defendants own "standards" belie their argument that "Preston's decision to engage in work over an open lane of traffic is a[n] . . . act about which ordinary minds would not differ in declaring it to be negligent." ( Id. at 12.) As Defendants themselves note:
When work is performed over a roadway open to traffic (on bridges, overhead signs, traffic signals, etc.) the traveled lane(s) or shoulder that the work operation is over shall be closed, unless it is physically improbable materials, equipment or personnel could fall into the open lane or shoulder.
( Id. at 10 (emphasis added).) By their own admission, Defendants have pointed out that the standards themselves contemplate scenarios in which one may perform work over open lanes of traffic. Arguing that no reasonable mind could find that Preston was not negligent in working over an open lane of traffic, when such a scenario is expressly allowed by the very regulations they cite, is antithetical to the very evidence Defendants maintains is controlling in this case. Therefore, the issue is one that should be submitted to a jury as reasonable minds could differ as to the conclusion.
V. CONCLUSION
Because Defendants' two grounds for summary judgment center on questions of material fact which are properly the province of the jury, I will deny the Motion for Summary Judgment.