United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Yazzie (Plaintiff) filed suit against Defendants Seth Fezatte
and Werner Enterprises, Inc. (collectively, Defendants)
seeking damages for personal injury he claims resulted from
Defendants' alleged negligence and negligence per
se in the operation of a semi-tractor trailer which
struck Plaintiff on Interstate I-40 in New
Mexico. Plaintiff also states direct claims
against Defendant Werner for negligent hiring, training,
supervision, retention and entrustment. On September 11,
2017, Defendants moved for summary judgment on all of
Plaintiff's claims, and this motion has been fully
briefed. After careful consideration of the
pertinent law, briefing, and exhibits, the Court will grant
in part and deny in part Defendants' Motion, with the
result that only Plaintiff's punitive damages claim will
be dismissed. All remaining claims will proceed to trial.
November 22, 2013, Plaintiff Derrick Yazzie was walking
westbound near mile-marker 18 on Interstate 40 near Gallup,
New Mexico when he was struck by a commercial vehicle owned
by Defendant Werner Enterprises, Inc. and operated by
Defendant Seth Fezatte. Complaint ¶ 5; Def. Mot.
Statement of Undisputed Material Facts (UMF) ¶¶
1-2; Pl. Resp. ¶¶ 3-4. Prior to the collision,
Defendant Fezatte had assumed driving responsibilities from
his brother Jaron Fezatte around 7:00 p.m. Central Standard
Time (CST) on November 21, 2013 outside of Amarillo,
Texas and headed west on Interstate 40. Mot. UMF ¶¶
5-6, Resp. ¶ 6. Defendant Fezatte stopped for a
thirty-minute mandatory Department of Transportation break
seventeen miles east of Gallup, New Mexico at 2:15 a.m.
CST/1:15 a.m. Mountain Standard Time (MST) on November 22,
2013, and resumed driving at approximately 2:50 a.m. CST/1:50
a.m. MST. Mot. UMF ¶¶ 7, 9, Resp. ¶ 6.
Defendant Fezatte testified that as he approached Gallup, New
Mexico it was sleeting and weather conditions were
“sub-optimal.” Mot. UMF ¶ 10; Fezatte Dep. at
90:18 (Doc. 69-3). Defendant Fezatte further testified that
as he was driving westbound on Interstate 40 he felt an
impact but, believing he struck a deer, continued to drive.
Mot. UMF ¶¶ 3, 21, Fezatte Dep. at 95:24-96:6 (Doc.
69-3). Defendant Fezatte testified that he pulled
over, assessed the damage to the tractor-trailer, and
returned to what he believed was the location of the impact
to determine whether there was anything in the road. Mot. UMF
¶¶ 21, 23, 25-26; Fezatte Dep. at 96-97, 101-02
(Doc. 69-3); Resp. SMF ¶¶ 34-38, Fezatte Dep. at
98-101 (Doc. 80-4). Finding nothing, he continued westbound
on Interstate 40.
this time, Ruben Cosgrove was also traveling westbound on
Interstate 40 operating another commercial vehicle ahead of
Defendant Fezatte in the right lane. Mot. UMF ¶¶
16-17, Resp. ¶ 8. Mr. Cosgrove saw a male, later
identified as Plaintiff, walking backwards on the roadway as
though he were hitchhiking. Mot. UMF ¶¶ 18-19,
Resp. ¶ 8. Mr. Cosgrove contacted authorities reporting
a pedestrian on the interstate wearing a black jacket, white
t-shirt and jeans. Mot. UMF ¶¶ 27-28, Chischilly
Dep. at 21, 26, 31, 38 (Doc. 69-4), Gallup Police Report (Doc
69-1); Resp. ¶ 10. In response to this call, Officer
Chavo Waylon Chischilly with the Gallup Police Department was
dispatched around 2:36 a.m. MST and, after seeing
Plaintiff's shoe in the middle of the roadway, located
Plaintiff lying face down in a muddy roadside area. Mot. UMF
¶¶ 27, 29, Chischilly Dep. at 21, 33-34 (Doc.
69-4); Resp. ¶ 10.
J. Koon of the Holbrook Police Department was dispatched in
response to an Attempt to Locate (ATL) a blue Werner
commercial vehicle with a nonoperational front headlight as
described to officers by Mr. Cosgrove. Mot. UMF ¶ 32,
Holbrook Police Report at 3 (Doc. 69-6). Officer Koon stopped
Defendant Fezatte. Mot. UMF ¶ 33, Holbrook Police Report
at 3 (Doc. 69-6). Defendant Fezatte was then interviewed in
Holbrook, Arizona by Detective Victor Rodriguez from the
Gallup Police Department. Mot. UMF ¶ 39, Rodriguez Dep.
at 16-17 Doc 69-7). Plaintiff does not recall any of the
events leading up to or immediately following the
April 14, 2016, Plaintiff filed a Complaint for Personal
Injury Damages in the Eleventh Judicial District Court for
the State of New Mexico against Seth Fezatte and Werner
Enterprises, Inc. (Doc. 1-1). On May 24, 2016, Defendants
removed this action to the United States District Court for
the District of New Mexico invoking the Court's diversity
jurisdiction under 28 U.S.C. § 1332. (Doc. 1). On June
21, 2016, Plaintiff filed his First Amended Complaint. (Doc.
7). Plaintiff's First Amended Complaint broadly asserts
two claims for negligence, one claim against Defendant
Fezatte (Count I) and the other against Defendant Werner
Enterprises, Inc. (Count II). Based on the alleged acts or
omissions that Plaintiff enumerated under each negligence
claim, the Court interprets the First Amended Complaint to
assert the following claims: 1) negligence against Defendant
Fezatte directly and against Defendant Werner under a theory
of respondeat superior; 2) negligence per se against
both Defendants; and 3) negligent training, hiring,
supervision, retention and entrustment directly against
Defendant Werner Enterprises. Defendants ask the Court to
enter summary judgment in their favor on all claims.
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). When applying this standard, the Court
“view[s] the facts and evidence submitted by the
parties in the light most favorable to the nonmoving
party.” Christy v. Travelers Indem. Co. of
America, 810 F.3d 1220, 1225 (10th Cir. 2016). A
“material” fact is one that “might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “A dispute over a material fact is
‘genuine' if a rational jury could find in favor of
the nonmoving party on the evidence presented.”
E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d
1184, 1190 (10th Cir. 2000). “[A] defendant may be
granted summary judgment whenever plaintiffs fail adequately
to support one of the elements of their claim upon which they
ha[ve] the burden of proof.” Milne v. USA Cycling
Inc., 575 F.3d 1120, 1125-26 (10th Cir. 2009) (internal
quotation marks and citation omitted) (second alteration
diversity cases, “the substantive law of the forum
state governs the analysis of the underlying claims.”
Kovnat v. Xanterra Parks & Resorts, 770 F.3d
949, 954 (10th Cir. 2014) (citation omitted). Accordingly,
the Court will apply the substantive law of New Mexico.
Plaintiff's Negligence Claims Against Defendants
Fezatte and Werner Enterprises, Inc.
establish negligence under New Mexico state law Plaintiff
must demonstrate that: (1) Defendants owed a duty to
Plaintiff; (2) Defendants breached that duty; (3) Plaintiff
suffered injury; and (4) breach of a duty was the cause of
the injury. See Zamora v. St. Vincent Hosp.,
2014-NMSC-035, ¶ 22, 335 P.3d 1243, 1249. Whether a duty
exists is a question of law for the courts to decide.
Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6,
73 P.3d 181, 185-86. But the “question of
breach…is a factual one that is typically left to a
jury, except in rare cases where the evidence is susceptible
to only one possible inference.” Carl v. City of
Overland Park, Kan., 65 F.3d 866, 869 (10th Cir. 1995).
Proximate cause is also generally a question of fact for the
jury. Lujan v. New Mexico Dept. of Transp.,
2015-NMCA-005, ¶ 35, 341 P.3d 1, 10.
undisputed facts establish that Defendant Fezatte was driving
a commercial vehicle owned by Werner Enterprises, Inc. in the
early morning hours of November 22, 2013 that struck
Plaintiff who was walking on Interstate 40 near Gallup, New
Mexico. Defendant Fezatte testified that he never saw
Plaintiff, and believed he had hit an animal. The undisputed
facts further establish that Ruben Cosgrove was driving a
commercial vehicle in the right lane some distance ahead of
Defendant Fezatte and saw Plaintiff dressed in a black shirt
and jeans walking backwards on the roadway.
facts do not definitively establish the cause of the
accident, and are susceptible to the two different inferences
proffered by the parties. Based on the undisputed facts
alone, a reasonable juror could infer, as Plaintiff argues,
that because Mr. Cosgrove saw Plaintiff in the roadway,
Defendant Fezatte also should have been able to see and avoid
Plaintiff but did not because he was fatigued, failed to keep
a proper lookout, and was driving inappropriately for the
weather conditions. Resp. ¶¶ 22-23. From this same
set of facts, a reasonable jury could conclude to the
contrary, as Defendants claim, that Mr. Fezatte was alert,
well-rested, driving safely for the current road conditions,
and that no act or omission on his part caused the collision.
Rather, Defendants argue that Plaintiff was the proximate
cause of the accident because he was walking in the dark on a
stretch of Interstate 40 prohibited to pedestrians while
wearing dark clothes, and was not visible to Defendant
Fezatte. Mot. ¶¶ 97-107, 123.
Accordingly, the question of whether Defendant Fezatte
breached his duty of ...