United States District Court, D. New Mexico
SHIRLEY J. WALKER, Plaintiff,
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
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
MEMORANDUM OPINION AND ORDER
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.
Court draws the factual background from the parties'
undisputed material facts in the MSJ and the MSJ Response.
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”)),  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")). 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”)). 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).Walker did not hear Spina apply his brakes.
See Walker Aff. ¶ 7, at 2 (asserting this
fact). Walker is now eighty-four years old.
See Walker Aff. ¶ 2, at 1 (asserting these
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,
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”).
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.
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.
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).
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.
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.
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.
The MSJ Reply.
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.
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.”). 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).
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  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).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).
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.
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
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).
Court indicated that it was “inclined to grant this
motion.” Tr. at 69:9-10 (Court).
REGARDING MOTIONS FOR SUMMARY JUDGMENT
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
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.
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). 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
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
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)).
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)).
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.
Evid. 602 (advisory committee's notes).
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).
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.
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
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).
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),  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,