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Walker v. Spina

United States District Court, D. New Mexico

December 11, 2018

SHIRLEY J. WALKER, Plaintiff,
v.
GREGORY J. SPINA, VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.

          Anthony James Ayala Law Offices of Anthony James A. Ayala Albuquerque, New Mexico Attorneys for the Plaintiff

          Raul P. Sedillo Allison M. Beaulieu Butt Thornton & Baehr PC Albuquerque, New Mexico Attorneys for the Defendants Gregory J. Spina, Valley Express, Inc., and Great West Casualty Company

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendants' Motion for Partial Summary Judgment on Plaintiffs Claim for Punitive Damages, filed August 30, 2018 (Doc. 73)(“MSJ”). The Court held a hearing on the MSJ on November 21, 2018. The primary issue is whether the Court should grant summary judgment dismissing Plaintiff Shirley Walker's claims against Defendants Gregory J. Spina and Valley Express, Inc. for punitive damages, because Walker cannot show that Spina acted with the requisite culpability when his commercial truck sideswiped Walker's automobile. In the Plaintiff Shirley J. Walker's Response to Defendnts' [sic] Motion for Partial Summary Judgment on Plaintiffs Claim for Punitive Damages ¶ 1, at 1, filed September 6, 2018 (Doc. 76)(“MSJ Response”), Walker abandoned her request for punitive damages from Valley Express, so the Court will not address this claim. The Court will grant the Defendants' request for summary judgment on Walker's punitive damages claim against Spina, because Walker has not demonstrated a genuine issue of fact whether Spina acted willfully, wantonly, maliciously, recklessly, oppressively, or fraudulently. See Clay v. Ferrellgas, Inc., 1994-NMSC-080, ¶ 12, 881 P.2d 11, 14.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in the MSJ and the MSJ Response.

         On July 23, 2015, see MSJ ¶ 1, at 2 (asserting this fact)(citing generally First Amended Complaint for Personal Injuries and Damages, filed August 28, 2018 (Doc. 68)(“Amended Complaint”)), [1] Spina's commercial truck collided with Walker's automobile at a traffic light; Spina sideswiped Walker's automobile and a vehicle next to it as Spina ran the red light and crossed into the intersection before reaching a stop, see MSJ Response ¶ 2, at 2 (asserting these facts)(citing generally Affidavit of Shirley Walker (executed September 5, 2018), filed September 6, 2018 (Doc. 76)(“Walker Aff")).[2] Before the accident, Spina was traveling at around thirty to thirty-five miles per hour. See MSJ ¶ 7, at 1 (asserting this fact)(citing generally Defendant Gregory J. Spina's Answers and Responses to Plaintiffs Requests for Admission, First Set of Interrogatories and Request for Production (undated), filed August 30, 2018 (Doc. 73-1)(“Interrogatories Answers”)).[3] After the accident, Spina told Walker that he thought she and the other vehicle “were going to run the yellow light.” Walker Aff. ¶ 6, at 1-2 (asserting this fact).[4]Walker did not hear Spina apply his brakes. See Walker Aff. ¶ 7, at 2 (asserting this fact).[5] Walker is now eighty-four years old. See Walker Aff. ¶ 2, at 1 (asserting these facts).[6]

         PROCEDURAL BACKGROUND

         The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order at 2-3, No. CIV 17-0991 JB/SCY, 2018 WL 4100944, at *1, filed August 28, 2018 (Doc. 67)(“MOO”). The Court incorporates that recitation here. The footnote associated with the quoted text is also quoted in full from the MOO.

Walker sues Spina and Valley Express, asserting negligence, [7] and sues Defendant Dixon Insurance Company, asserting that she has a claim for benefits against it under the [New Mexico Financial Responsibility Act, N.M. Stat. Ann. §§ 66-5-201 to -239] and Raskob[v. Sanchez, 1998-NMSC-045, 970 P.2d 580] for injuries that Spina's negligence caused. See [Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)(“Complaint”)] ¶¶ 8-13, at 3-5. Spina and Valley Express removed the case to federal court on the basis of diversity jurisdiction. See Notice of Removal to the United States District Court for the District of New Mexico at 1, filed September 29, 2017 (Doc. 1)(“Notice of Removal”).

         MOO at 2-3, 2018 WL 4100944, at *1. The Amended Complaint terminated Dixon Insurance Company as a Defendant and added, in its place, Great West Casualty Company. See Amended Complaint at 1.

         1.The MSJ.

         The Defendants ask the Court to grant summary judgment dismissing Walker's claims for punitive damages. See MSJ at 1. The Defendants admit that the Court should apply “the substantive law of New Mexico.” MSJ at 3. The Defendants aver that Walker cannot establish a claim for punitive damages against either Spina or Valley Express, because Walker cannot show that the Defendants' conduct “rises to the level of willful, wanton, malicious, reckless, oppressive, or fraudulent conduct” that New Mexico law requires for punitive damages. MSJ at 3-4. The Defendants further contend that, “in New Mexico, punitive damages are not imposed on an employer for the acts of an employee pursuant to respondeat superior”; rather, according to the Defendants, Walker must establish Valley Express' culpability. MSJ at 4-5. The Defendants note that Walker has produced no evidence showing Valley Express' culpability. See MS J at 5. Further, according to the Defendants, Walker has not submitted any documentation or testimony showing that Spina acted with the requisite culpability. See MS J at 5. According to the Defendants, Spina did not consume drugs or alcohol in the forty-eight hours before the accident, and, when he saw Walker's automobile “stop suddenly for a traffic light, ” Spina attempted to stop his truck. MSJ at 5.

         2.The MSJ Response.

         Walker concedes that she will not seek punitive damages against Valley Express. See MSJ Response ¶ 1, at 1. Walker avers that Spina continued traveling “at about 30 to 35 miles per hour” through the traffic light. MSJ Response ¶ 2, at 1. According to Walker, she and the other vehicle “did not ‘suddenly stop, '” but had been sitting at the traffic light “for a period of time” before Spina collided with them. MSJ Response ¶ 2, at 2 (quoting MSJ at 5). Further, Walker contends that Spina applied his brakes only after crossing the intersection, and that Spina informed Walker that he thought that she and the other driver would continue through the yellow light. See MSJ ¶ 2, at 2. Walker argues that Spina “acted willfully, wantonly, recklessly, consciously, indifferent or with a culpable mental state, ” because he was driving over the speed limit or sped up to continue through the yellow light, and never attempted to brake his truck. MSJ Response ¶ 3, at 2 (citing generally Walker Aff).

         In the Walker Aff, Walker describes the automobile accident, beginning “I was in the vehicle accident as noted per the police report hereto attached and marked ‘Exhibit A'.” Walker Aff. ¶ 3, at 1. She continues: “I was stopped at a red light when Mr. Gregory J. Spina, driving a large commercial vehicle; attached and marked ‘Exhibit B', drove his large truck between my vehicle, attached and marked ‘Exhibit C, and a van, attached and marked ‘Exhibit D'.” Walker Aff. ¶ 4, at 1. According to Walker, “Mr. Spina ran the red light and crossed the intersection as can be noted by the attached ‘Exhibit E'.” Walker Aff. ¶ 5, at 1. “After the accident, ” Walker explains, “Mr. Spina informed me that he thought we were going to run the yellow light. Which indicated to me that he saw my vehicle and the other vehicle he hit while we were stopped at the light, and that he never considered slowing down, but accelerated his speed.” Walker Aff. ¶ 6, at 1-2. According to Walker:

My vehicle which I stopped for the red light, did not “suddenly stop” for the traffic light, and I didn't hear Spina apply his brakes as he went between my car and the other car that stopped for the red light. Also the photos produced by the Defendants in this case don't show any brake markings either before he entered the intersection, while he was in the intersection, or after he crossed the intersection. “Exhibit E” shows that Mr. Spina was traveling so fast that he stopped a considerable distance from the intersection after hitting two vehicles and running a red light.

         Walker Aff. ¶ 7, at 2. Walker further states that:

In light of the fact that Mr. Spina was driving a large commercial vehicle, he should not have prepared to run a yellow light, should have proceeded within the speed that was warranted with other vehicles on the roadway, and should have slowed down when he saw the yellow light, and then stopped at the red light, rather than running the red light.

         Walker Aff. ¶ 8, at 2. “The conduct of Mr. Spina was very dangerous, ” argues Walker, “in that he was traveling to [sic] fast, he never intended to stop for the red light, and that he finally ran the red light and that he went through the intersection hitting two cars in the process with his semi-truck.” Walker Aff. ¶ 9, at 2. Walker summarizes that, because conflicting facts exist, the Court cannot grant the Defendants' summary judgment motion. See MS J Response at 2-3.

         3. The MSJ Reply.

         The Defendants argue that Walker points only to the Walker Aff. to support her arguments, and that the Walker Aff., is “insufficient to show disputed facts.” Defendants' Reply in Support of their Motion for Partial Summary Judgment on Plaintiffs Claim for Punitive Damages at 1, filed September 20, 2018 (Doc. 84)(“MSJ Reply”). The Defendants aver that the Walker Aff. is not based on personal knowledge and “does not set out facts that are admissible evidence.” MSJ Reply at 1-2. The Defendants contend that the New Mexico State Police Report (dated July 24, 2015), filed September 6, 2018 (Doc. 76)(“Police Report”), is inadmissible hearsay, and that, in the Walker Aff, Walker relies on Photographs, filed September 6, 2018 (Doc. 76), and speculation rather than her personal knowledge when she describes Spina's state of mind, brake marks, speed, and brake application. See MSJ Reply at 2. The Defendants argue that Spina provides information based on his personal knowledge and that Walker has not disputed this information. See MSJ Reply at 2. Finally, the Defendants reiterate that Walker cannot establish punitive damages against Valley Express through respondeat superior. See MSJ Response at 3.

         4. The Hearing.

         The Court held a hearing on November 21, 2018. The Defendants reiterated their version of the events leading to the accident. See Draft Transcript of Hearing at 55:17-56:4 (taken November 21, 2018)(Beaulieu)(“Tr.”).[8] According to the Defendants, Walker has established no “admissible evidence, ” Tr. at 56:5 (Beaulieu), to contradict Spina's account, and Walker, the Defendants argued, has not established a question of fact whether Spina acted willfully, wantonly, recklessly, or maliciously. See Tr. at 56:4-9 (Beaulieu). The Defendants further contended that, under New Mexico law, punitive damages cannot be recovered against an employer under respondeat superior, and, according to the Defendants, Walker has not shown that Valley Express acted culpably. See Tr. at 56:19-57:4 (Beaulieu).

         Walker responded by pointing to the Police Report:

The police report indicates that two vehicles, a van and [Walker]'s car stopped at a red light. . . . What happens in this case is the speed limit is [35] miles per hour, but the problem is that the cars are stopped at a red light, so the speed is excessive[.] . . . [W]hat this semi[-]truck driver does is he doesn't, when he sees a yellow light he admits he sees a yellow light in that police statement, he doesn't get ready to stop as the statute requires. . . . [H]e indicates that he thinks that . . . the plaintiff and the other car are going to run the red light so he guns it . . . forward.

Tr. at 57:16-58:8 (A. A. Ayala). The Court queried how Walker planned to introduce the Police Report into evidence, see Tr. at 59:6-7 (Court), and Walker replied: “I can't get the police report into evidence, ” Tr. at 59:8-9, but indicated that she would introduce the officer's and other witnesses' testimony as to the facts contained in the Police Report, see Tr. at 59:11-14 (A. Ayala). The Court noted that such testimony would also not be admissible. See Tr. at 59:19-25 (Court).[9]To this comment, Walker responded by explaining that the Walker Aff indicates: “[The] defendant told [Walker, ] ‘I thought you were going to run the yellow light[.']” Tr. at 60:1-2 (A. Ayala). New Mexico law, Walker noted, requires drivers to drive at a speed “to avoid colliding with a person, vehicle or other conveyance upon entering the highway.” Tr. at 60:7-9 (A. Ayala)(quoting N.M. Stat. Ann. § 66-7-301(B)(1)). Accordingly, Spina, Walker concluded - “notwithstanding, ” Tr. at 60:10 (A. Ayala), that the Police Report says, and he said, “that he was driving the speed limit, ” Tr. at 60:11 (A. Ayala) -- Spina “wasn't when he entered that intersection, ” Tr. at 60:11-12 (A. Ayala). Further, Spina, Walker noted, “was cited for following too closely.” Tr. at 60:13 (A. Ayala). Walker argued that New Mexico law states, when facing a yellow light, “[vehicular traffic] . . . is warned that the red signal will be exhibited immediately thereafter [and the vehicular traffic] shall not enter the intersection when the red signal is exhibited, ” Tr. at 61:2-6 (A. Ayala)(quoting N.M. Stat. Ann. § 66-7-105(B)(1)), and Spina “admitted he saw that [yellow] light to” Walker, Tr. at 61:7 (A. Ayala). According to Walker, seeing the yellow light and deciding to proceed anyway, see Tr. at 61:9-10, “is clear reckless driving, that warrants punitive damages alone, ” Tr. at 61:11-12 (A. Ayala). Further, Walker contended that Spina “admits and what my client states in the record is that he ran a red light, ” Tr. at 61:13-15 (A. Ayala), in violation of New Mexico law, Tr. at 61:15-19 (A. Ayala)(citing N.M. Stat. Ann. § 66-7-105(C)(1)). The Photographs, which an investigator at the accident took, Walker contended, show “no tire marks before the [intersection] showing that he tried to break [sic] .” Tr. at 62:8-9 (A. Ayala). Walker averred that this corroborates her account. See Tr. at 62:13-17 (A. Ayala). Accordingly, Walker summarized, Spina acted with a culpable state of mind while “driving a very large semi [-truck].” Tr. at 62:24-25 (A. Ayala).

         The Defendants responded, arguing that there “isn't any evidence that my client gunned it so to speak.” Tr. at 65:1-2 (Beaulieu). The Defendants argued that Spina “has always indicated that he attempted to brake, ” Tr. at 66:3-4 (Beaulieu), and, according to the Defendants, “he did say when he realized that he was not going to be able to stop on time, rather than rear ending one vehicle immediately from behind[, ] he decided to split the difference between the two vehicles, ” Tr. at 65:17-21 (Beaulieu). In response to Walker's arguments about the Photographs, the Defendants explained:

What the photos show is that after he stopped in the middle of the intersection, rather than remaining in the middle of the intersection[, ] he pulled up past the light to wait a minute[, ] and so the record, Your Honor, doesn't show that he sped through, that he entirely ran the red light.

         Tr. at 66:7-12 (Beaulieu). Further, according to the Defendants, the Police Report indicates neither that Spina “was speeding, ” Tr. at 66:22-23 (Beaulieu), nor that he “sped between the two vehicles, ” Tr. at 66:23-24 (Beaulieu).

         Walker, in response, reiterated that Walker's conversation with Spina, which the physical evidence confirmed, shows that he gunned his truck through the yellow light. See Tr. at 68:14-22 (A. Ayala). Walker cited New Mexico law to argue that “where reasonable minds differ summary judgment is inappropriate, ” Tr. at 68:13-14 (A. Ayala), and that New Mexico law “does not favor summary judgments, ” Tr. at 73:22 (A. Ayala).

         The Court indicated that it was “inclined to grant this motion.” Tr. at 69:9-10 (Court).

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall 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). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”).

Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).

Plustwik v. Voss of Nor. ASA, No. CIV 11-0757, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).[10] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)(“Liberty Lobby”). In American Mechanical Solutions, LLC v. Northland Process Piping, Inc., 184 F.Supp.3d 1030 (D.N.M. 2016)(Browning, J.), the Court granted summary judgment for the defendant when the plaintiff did not offer expert evidence supporting causation or proximate causation in its breach-of-contract or breach-of-the-implied-warranty-of-merchantability claims. 184 F.Supp.3d at 1075. The Court reasoned that the plaintiff could prove neither the breach-of-contract claim's causation requirement nor the breach-of-the-implied-warranty-of-merchantability claims' proximate-causation requirement with mere common knowledge, and so New Mexico law required that the plaintiff bolster its arguments with expert testimony, which the plaintiff had not provided. See 184 F.Supp.3d at 1067, 1073, 1075, 1079. Without the requisite evidence, the plaintiff, the Court determined, failed to prove “an essential element of the nonmoving party's case, ” rendering “all other facts immaterial.” See 184 F.Supp.3d at 1075 (internal quotation marks omitted)(quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l Inc. v. First Affiliated Sec, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)(quoting Applied Genetics Int'l, Inc. v. First Affiliated Sec, Inc., 912 F.2d at 1241)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Liberty Lobby, 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.” (internal quotation marks omitted)(quoting Coleman v. Darden, 595 F.2d, 533, 536 (10th Cir. 1979)).

         Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat 'l Ins. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'” Colony Nat'l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         Under rule 56(c)(4) of the Federal Rules of Civil Procedure, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). An affidavit is thus “inadmissible if ‘the witness could not have actually perceived or observed that which he testifies to.”‘ Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at 1200 (quoting United States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997)). This standard arises from the Federal Rules of Evidence, which require a testifying witness to have personal knowledge of the matter. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at 1200. In evaluating an affidavit under this standard, a court may consider “the witness's own testimony” to determine whether there is “sufficient” evidence to support a finding of personal knowledge. Hansen v. PT Bank Negara Indon. (Persero), 706 F.3d 1244, 1250 (10th Cir. 2013). Rule 56(c)(4)'s personal knowledge requirement is construed in tandem with rule 602 of the Federal Rules of Evidence. See Bryant v. Farmers Ins. Exchange, 432 F.3d 1114, 1123 (10th Cir. 2005). Rule 602 reads: “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. Rule 602's advisory notes state:

This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. Rules 801 and 805 would be applicable. This would, however, prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it.

         Fed. R. Evid. 602 (advisory committee's notes).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (citing Vitkus v. Beatrice Co., 11 F.3d at 1539; Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249 (citations omitted)(citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 (1967)). Where a rational trier of fact, considering the record as a whole, cannot find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Liberty Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”); Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States of America concluded that summary judgment is appropriate where video evidence “quite clearly contradicted” the plaintiffs version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus[.] Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

550 U.S. at 380-81 (emphasis in original).

         The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott[ v. Harris], 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, 352 Fed.Appx. 289');">352 Fed.Appx. 289 [, 291] (10th Cir. 2009) . . . [(unpublished), [11] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony . . . .” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, ...


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