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Jensen v. Exc Inc.

United States District Court, D. Arizona

February 13, 2019

Jamien Rae Jensen, et al., Plaintiffs,
EXC, Inc., et al., Defendants.


          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 ...

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