United States District Court, W.D. Virginia, Roanoke Division
Hon. Glen E. Conrad Chief United States District Judge
In this diversity action, plaintiff Michael Steven Ferguson asserts negligence claims against defendants National Freight, Inc. ("NFI") and Manuel Torres, arising from a collision between Ferguson's 1989 Dodge Ram D350 rollback tow truck (the "rollback") and a commercial tractor-trailer driven by Torres. The case is presently before the court on Ferguson's motion to strike defendants' expert and motion for partial summary judgment, as well as defendants' first motion in limine. For the following reasons, the motion to strike will be granted in part and denied in part, the motion for partial summary judgment will be denied, and the motion in limine will be taken under advisement.
On or about the evening of July 30, 2013, a 2000 Oldsmobile containing six passengers was traveling northbound on Interstate 81 ("1-81") in Botetourt County, Virginia. After the vehicle suffered a flat tire, the driver pulled over into the right-hand shoulder lane. One of the passengers then called Michael Steven Ferguson, a citizen of Virginia, and asked if he could tow the vehicle on his rollback. Ferguson arrived thereafter to assist. Ferguson's mother, Sandra Ferguson, also arrived at the scene in an SUV in order to pick up some of the remaining passengers. Ferguson loaded the vehicle onto the rollback. Both Ferguson and the SUV then merged into the right-hand traffic lane. At the same time, Manuel Torres, a citizen of Florida, was driving a commercial tractor-trailer owned by NFI, a New Jersey corporation, northbound on 1-81 in the right-hand traffic lane. The SUV moved out of the right-hand traffic lane and back into the right-hand shoulder lane. Torres then struck the back of Ferguson's rollback, causing him to suffer bodily injuries and property damage.
Ferguson filed this diversity action on December 22, 2014, asserting two counts of negligence against defendants. Specifically, Ferguson contends that Torres was negligent in failing to keep a proper lookout to avoid a collision, and that NFI was negligent by virtue of respondeat superior. Ferguson seeks compensatory damages in the amount of $2, 000, 000.00.
On February 19, 2016, Ferguson filed both a motion to strike defendants' expert and a motion for partial summary judgment. On March 3, 2016, defendants filed their first motion in limine. The three-day jury trial is currently scheduled to begin on March 30, 2016. The court held a hearing on the motions on March 15, 2016. The motions have been fully briefed and are ripe for disposition.
I. Motion for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, an award of summary judgment is appropriate "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). For a party's evidence to raise a genuine issue of material fact to avoid summary judgment, it must be "such that a reasonable jury could return a verdict for the non-moving party." Anderson V. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986). "A fact is material if it 'might affect the outcome of the suit under the governing law.'" Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson. 477 U.S. at 248).
In determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-movant. Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir. 1985). "Summary judgment cannot be granted merely because the court believes that the movant will prevail if the action is tried on the merits." Jacobs v. N.C. Admin. Office of the Courts. 780 F.3d 562, 568 (4th Cir. 2015) (internal citation and quotation marks omitted). "The court therefore cannot weigh the evidence or make credibility determinations."
Ferguson has now moved for summary judgment on his negligence claims. Relying primarily on Torres' deposition testimony, he argues that it is clear from the record that Torres was negligent in failing to keep a proper lookout while driving, and that Torres' negligence solely and proximately caused Ferguson's damages. In response, defendants argue that there is conflicting evidence in the record as to the cause of the accident, which makes summary judgment inappropriate on the issue of liability. Specifically, defendants argue that a reasonable jury could find that Ferguson was contributorily negligent by entering the right-hand travel lane directly in front of Torres at a slow rate of speed.
In Virginia, the issues of negligence, contributory negligence, and proximate cause are ordinarily issues to be decided by a fact finder. Meeks v. Hodges, 306 S.E.2d 879, 881 (Va. 1983). "Therefore, a jury should weigh the evidence, determine the credibility of witnesses, and ultimately decide these issues where reasonable minds could differ about them." Kimberlin v. PM Transport. Inc.. 563 S.E.2d 665, 667 (Va. 2002). It is "[o]nly when reasonable minds could not differ [that these issues become] questions of law to be decided by a court."
Negligence is the "failure of a defendant to use ordinary care for the safety of another." Yeary v. Holbrook. 198 S.E. 441, 450 (Va. 1938). The Supreme Court of Virginia has held that a driver has "a duty to look with reasonable care and to heed what a reasonable lookout would have revealed." Reams v. Doe. 372 S.E.2d 405, 406 (Va. 1988). "[T]he duty is to look with reasonable care, not an absolute duty to discover by looking, unless the thing to be looked for is in such plain view that looking with reasonable care was bound to have discovered it." Oliver v. Forsyth, 58 S.E.2d 49, 51 (Va. 1950); see also Yellow Cab Co. v. Eden. 16 S.E.2d 625, 631 (Va. 1941 ("The driver of a car who keeps a lookout and fails to take advantage of what it discloses is as guilty of negligence as one who fails to keep a lookout. The result is usually the same."). If a driver fails to use reasonable care to maintain a proper lookout, he is negligent. Litchford v. Hancock, 352 S.E.2d 335, 337 (Va. 1987); see Id. ("In the discharge of his duties, a driver is required to use ordinary care to observe other vehicles ..., to see what a reasonable person would have seen, and to react as a reasonable person would have reacted under the circumstances to avoid collision.").
Applying these principles, and viewing the evidence in the light most favorable to Torres, the court concludes that the negligence claims must be decided by a jury. The evidence is in dispute as to events leading up to the collision. Whereas Ferguson and others testified that Torres failed to observe the rollback until he collided with it, Torres asserted that Ferguson suddenly cut in front of him without sufficient time for him to avoid a collision. Furthermore, while some witnesses testified that all three lights on the rollback were activated by the time Ferguson merged into the right-hand travel lane, Torres claimed that he did not observe the rollback until seconds before the collision. Finally, the evidence is also in dispute as to the speed of the ...