United States District Court, D. Arizona
ORDER
Honorable Steven P. Logan United States District Judge
Before
the Court is Plaintiffs' Motion for Summary Judgment
(Docs. 116, 117, [1]122[2]), Defendants' EXC, Inc., Russell
Conlon, Conlon Garage Inc., Go Ahead Vacations, Inc. (the
“Defendants”) Response (Docs. 119,
120[3]), and Plaintiffs' Reply (Doc. 121).
For the reasons stated below, Plaintiffs' motion is
denied.[4]
I.
Background[5]
The
events in this case took place on the morning of September
21, 2004 in Kayenta, Arizona. (Doc. 117 ¶¶ 7, 8.)
Defendant Conlon was driving a tour bus, holding 39
passengers, when he departed a Hampton Inn. (Doc. 117
¶¶ 6, 8, 10.) Prior to pulling out of the hotel
driveway and onto westbound Highway 160, Defendant Conlon
looked to his left. (Doc. 117 ¶¶ 9-11.) Defendant
Conlon saw a red SUV, driven by Bert Wisner (a nonparty),
pull out of a Burger King about 300-400 feet away and turn
westbound (or right) onto Highway 160. (Doc. 117 ¶¶
11, 13.) The red SUV turned into the farthest westbound
travel lane. (Doc. 117 ¶¶ 16, 17.) Defendant Conlon
also turned westbound (or right) onto Highway 160 but before
Mr. Wisner's car passed the Hampton Inn driveway. (Doc.
117 ¶ 18.)
In
another car, a white sedan, Plaintiff Jensen, her husband
(the decedent), and their minor son, also a plaintiff, were
driving eastbound on Highway 160. (Doc. 1 ¶ 50.) The
tour bus and Plaintiffs' car ultimately collided, and the
decedent was killed upon impact. (Doc. 116 at 2; Doc. 117
¶ 1.) Plaintiffs Jensen and her minor son sustained
injuries. (Doc. 116 at 3.)
On
February 16, 2015, Plaintiffs filed a complaint in this
Court. (Doc. 1.) On May 11, 2018, Plaintiffs filed a motion
for summary judgment. (Doc. 116.) On June 11, 2018,
Defendants filed their response. (Doc. 119.) On June 26,
2018, Plaintiffs filed their reply. (Doc. 121.)
II.
Standard of Review
A court
must grant summary judgment “if 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). Material facts are
those facts “that might affect the outcome of the suit
under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute
of material fact arises if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id.
The
party moving for summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record, together with
affidavits, which it believes demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at
323. If the movant is able to do so, the burden then shifts
to the non-movant who “must do more than simply show
that there is some metaphysical doubt as to the material
facts, ” and, instead, must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (internal quotations
omitted).
III.
Discussion
Plaintiffs
moved for summary judgment on the issue of liability. (Doc.
116 at 1.) Plaintiffs' claim for negligence per se is
dependent on their allegation that Defendant Conlon violated
three statutes enacted for public safety: “Yielding the
Right-of-Way, ” A.R.S. Section 28-774, “Driving
on Wrong Side of Roadway, ” A.R.S. Section 28-721, and
“Driving Within Lane, ” A.R.S. Section 28-729.
Plaintiffs argue that, had Defendant Conlon adhered to the
traffic laws, the tour bus would not have been in a position
to have collided with Plaintiffs' car. (Doc. 121 at 2-3.)
They argue that the undisputed facts establish that Defendant
Conlon was also negligent by veering out of his lane of
traffic, thus causing the collision with Plaintiffs'
vehicle. (Doc. 116 at 6-7.) Defendants argue that the
decedent was outside of his own lane of traffic at the time
of impact, which, at a minimum, establishes that there is a
question of fact as to which party was at fault and to what
degree. (Doc. 119 at 3.) Further, Defendants argue that,
because Arizona is a pure comparative fault jurisdiction,
even if Defendant Conlon were to be found negligent, the
trier of fact would still need to establish what percentage
of fault to attribute to him and decedent. (Doc. 119 at 4.)
IV.
Analysis
A.
Objections
As an
initial matter, Plaintiffs spend a great deal of time in
their reply arguing that Defendants only offer boilerplate,
non-specific objections in their statement of facts and, in
any event, do not proffer any contravening evidence to
dispute Plaintiffs' evidence. (Doc. 121.) The Court
agrees that Defendants' objections, as listed in their
statement of facts, generally lack specificity and are not,
by themselves, overly helpful to the Court. However, even a
cursory reading of the evidence provided by Plaintiffs
reveals that, in many instances, Plaintiffs have not shown
the lack of a genuine, triable issue of material fact, which
is their initial burden as the moving party under Federal
Rule of Civil Procedure 56. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Further, the Court
does not agree that Defendants failed to sufficiently argue,
at all, why they believe Plaintiffs' recitation
of the facts and conclusions are generally misstated, do not
support their own conclusions, etc. Nor have Defendants
failed to provide any evidence or failed to
sufficiently point to issues in Plaintiffs' evidence that
show a genuine, triable issue of material fact (at least as
to some issues). The Court need not, and has not, considered
Defendants' exhibits in determining this motion for
summary judgment. Therefore, the Court will not rule on the
admissibility of Defendants' exhibits at this time.
B.
Legal Standard
To
establish negligence under Arizona law, a plaintiff must
prove four elements: “(1) a duty requiring the
defendant to conform to a certain standard of care; (2) a
breach by the defendant of that standard; (3) a causal
connection between the defendant's conduct and the
resulting injury; and (4) actual damages.” Gipson
v. Kasey, 150 P.3d 228, 230 (Ariz. 2007) (citing
Ontiveros v. Borak, 136 Ariz. 500, 504 (1983)).
“The first element, whether a duty exists, is a matter
of law for the court to decide.” Id. (citing
Markowitz v. Ariz. Parks ...