United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
December 11, 2015, Plaintiffs Gabriel Moran and Reineris
Penate-Najera allegedly suffered injuries and damages as a
result of a motor vehicle accident that occurred on U.S.
Highway 550 near Cuba, New Mexico. Each Plaintiff was driving
a small Toyota truck and each was towing a small Toyota
truck,  when a tractor trailer driven by Defendant
Cody Wyckoff and owned by Defendant Old Dominion Freight
Line, Inc., hit the back of the truck being towed by
Plaintiff Moran. See Second Amended Complaint for
Personal Injuries and Damages (SAC) ¶¶ 6-8, 21;
Plaintiffs' Response at 1 (Doc. No. 47). The collision
caused Plaintiff Moran's vehicle to strike Plaintiff
Penate-Najera's truck; Plaintiff Moran's vehicle then
rolled several times. Plaintiffs' Response at 2.
Defendant Wyckoff's cab and trailer went down on its left
side. Plaintiffs assert claims of negligence and negligence
per se against Defendants. SAC ¶¶
seek partial summary judgment on Plaintiffs' claim of
negligence per se based, in part, on Defendants'
argument that the undisputed material facts demonstrate that
Defendant Wyckoff was driving within the speed limit, was not
tailgating Plaintiff Moran's vehicle, and was not driving
recklessly or negligently when the Old Dominion tractor
trailer struck the back of the vehicle being towed by
Plaintiff Moran. Plaintiffs assert that genuine disputes of
material fact exist to defeat Defendants' request for
partial summary judgment.Defendants contend that Plaintiffs have
attempted to dispute only one of their nine undisputed
material facts and that this “sole ‘disputed'
fact” does not defeat Defendants' request for
partial summary judgment as to the negligence per se
judgment may be granted 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). When applying this standard, the Court
examines the factual record and reasonable inferences
therefrom in the light most favorable to the party opposing
summary judgment. Applied Genetics Intl, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). The party seeking summary judgment bears the initial
burden of “show[ing] that there is an absence of
evidence to support the nonmoving party's case.”
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (internal quotation marks omitted).
Once the movant meets this burden, Rule 56 requires the
non-moving party to designate specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). In considering a
motion for summary judgment, then, the Court's
“role is simply to determine whether the evidence
proffered by plaintiff would be sufficient, if believed by
the ultimate factfinder, to sustain her claim.”
Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1195
(10th Cir. 2002).
December 11, 2015, before leaving Farmington for Albuquerque,
NM, Defendant Wyckoff conducted a pre-trip inspection of his
tractor trailer truck and found no problems with the
truck's brakes, air lines, or fluid levels. The accident
occurred north of Cuba, NM on Highway 550 at about 7:30 to 8
p.m. when it was dark. At the point of collision, Highway 550
was a 4-lane road, with two lanes traveling in each
direction. The pertinent stretch of the road was flat and
mostly straight with some slight curves. The weather was
the accident occurred, Defendant Wyckoff was not using a
cellular telephone. His low beam headlights were on due to
oncoming traffic. He was traveling the posted speed limit of
70 MPH and was in the right-hand lane of Highway 550.
Defendant Wyckoff caught just a “glimpse of a vehicle
being pulled by another vehicle” when Plaintiffs'
cars became visible in his headlights, which occurred right
before the accident. He “went for the brake” but
did not recall ever touching the brake pedal because
“[i]t happened too fast.” Wyckoff Dep. at 66
(Doc. No. 44-1). He turned the steering wheel to the left to
try to avoid the vehicle but struck the left rear of the
towed vehicle with the passenger side of the tractor trailer.
Wyckoff testified that he did not see any lights
“whatsoever” on the vehicles before he struck
Plaintiff Moran's towed vehicle. Id. at 67 (Doc.
No. 44-1). Defendant Wyckoff estimated that Plaintiffs must
have been traveling at a speed of no more than 25 MPH.
contrast, Plaintiff Moran testified that he was traveling at
a speed of about 55 MPH, that his vehicle's lights
worked, and that the towed vehicle's lights also were
working. Plaintiff Penate-Najera also represented that he was
driving 55 MPH when the accident occurred. Plaintiff Moran
stated that before the collision, he had seen the tractor
trailer “a long way away, and all of a sudden, I saw
the lights close and ‘boom.'” Moran Dep. at
55 (Doc. No. 44-1).
set out nine material facts in their Motion. In their
Response Plaintiffs appear to have admitted most of those
facts but expressly challenge Defendants' material fact
number 7, which states that Defendant Wyckoff saw no lights
from Plaintiffs' vehicles before the accident.
See Response at 2. In an attempt to refute fact
number 7, Plaintiffs contend that Mr. Penate-Najera testified
that “the vehicles were checked and that all lights
including his brake lights were working on the
vehicles.” Response at 2. Plaintiffs also identified six
material facts they contend are undisputed, many of which
duplicate Defendants' proposed material
facts. See Id. at 2-3. Although
Plaintiffs state in their Response that they challenge only
Defendant Wyckoff's testimony about vehicle lights,
Plaintiffs also dispute Defendant Wyckoff's estimate of
Plaintiffs' speed. Response at 3.
Negligence Per Se
Mexico, negligence per se consists of four elements:
(1) There must be a statute [or regulation] which prescribes
certain actions or defines a standard of conduct, either
explicitly or implicitly, (2) the defendant must violate the
statute [or regulation], (3) the plaintiff must be in the
class of persons sought to be protected by the statute, and
(4) the harm or injury to the plaintiff must ...