United States District Court, D. New Mexico
D. MARIA SCHMIDT, as Personal Representative of the Estate of ROBERT PARKER, Deceased, LINDA PARKER, and JERALD JONES, Plaintiffs, and JERALD JONES, Plaintiff-in-Intervention
ABF FREIGHT SYSTEM, INC., a Foreign Profit Corporation doing business in New Mexico, and TIMOTHY YERTNGTON, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT
FASHING UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on defendants ABF Freight
System, Inc. (ABF) and Timothy Yerington's Motion for
Partial Summary Judgment Regarding Plaintiffs' Claim for
Punitive Damages (Doc. 77), filed June 17, 2019. Plaintiffs
did not respond to the motion. For the following reasons, the
Court GRANTS the defendants' motion.
the plaintiffs' failure to respond to ABF's motion
constitutes consent to the Court granting the motion. See
D.N.M.LR-Civ. 7.1(b) ("The failure of a party to file
and serve a response in opposition to a motion within the
time prescribed for doing so constitutes consent to grant the
motion."). The Tenth Circuit has held, however, that the
Court may not grant summary judgment merely because a party
has failed to file a response. Reed v. Bennett, 312 F.3d
1190, 1194 (10th Cir. 2002). The party moving for summary
judgment first “must meet its initial responsibility of
demonstrating that no genuine issue of material fact exists
and that it is entitled to summary judgment as a matter of
law.” Id. (internal quotation marks omitted).
Only then does the burden shift to the nonmoving party to
demonstrate that a genuine issue of fact exists that would
preclude summary judgment. Id.; see also
Fed.R.Civ.P. 56(a) (“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.”). In other words, if the
evidence produced in support of a motion for summary judgment
does not meet the Rule 56(a) standard, “summary
judgment must be denied even if no opposing evidentiary
matter is presented.” Adickes v. S.H. Kress & Co.,
398 U.S. 144, 160 (1970) (quoting Fed. R. Civ .P. 56 advisory
committee notes to the 1963 amendments) (emphasis added).
“If the nonmoving party fails to respond, the district
court may not grant the motion without first examining the
moving party's submission to determine if it has met its
initial burden of demonstrating that no material issues of
fact remain for trial and the moving party is entitled to
judgment as a matter of law.” Reed, 312 F.3d at
Statement of Facts
case arises out of a motor vehicle accident that occurred on
May 10, 2017, at about 1:41 pm. See Doc. 1-1 ¶¶
8-15. Defendant Timothy Yerington, a professional truck
driver, was driving a commercial semi-tractor trailer truck
eastbound on I-40 in the right lane of traffic near mile
marker 94.8, just outside of Grants, New Mexico. Id.
¶¶ 7-9; see also Doc. 77-6 at 5 (Charley Depo.
66:19-25) (referring to area where accident occurred as near
Grants). Mr. Yerington was operating a semi-truck owned by
defendant ABF. Doc. 1-1 ¶¶ 7, 8; Doc. 4 ¶ 7;
Doc. 5 ¶ 7. Mr. Yerington had been employed as a truck
driver for nearly 40 years and had worked for ABF for more
than 30 years. Doc. 77-3 at 2-3 (Yerington Depo. 7:5-10:7).
Robert W. Parker, then age 81, was riding in the front
passenger seat of his own Ford F-350 truck. Doc. 1-1
¶¶ 1, 10. Jerald Jones was driving Mr. Parker's
truck. Id. ¶ 10. Mr. Parker's truck was
traveling eastbound in the left lane of I-40. Id.
¶ 10; Doc. 77-1 (Jones Depo. 44:8-10, 20-23).
Jones was traveling at approximately 65 miles pers hour. Doc.
77-1 at 2 (Jones Depo. 43:10-18); Doc. 77-2 at 3 (Hayes Depo.
18:13-17). Mr. Yerington was going slow, somewhere between
five to 20 miles per hour, because of the traffic conditions.
Doc. 77-2 at 3 (Hayes Depo. 18:17-19); Doc. 77-3 at 5
(Yerington Depo. 68:2-7). The posted speed limit was 55 miles
per hour because of road construction. Doc. 77-4 at 3
(Vandever Depo. 27:3-6). The road was wet from either hail or
rain. Id. at 2 (Vandever Depo. 19:23-24); Doc. 77-5
at 2 (Maria Depo. 10:10-11); Doc. 77-6 at 5 (Charley Depo.
66:19-25). At the time of the accident, traffic was moving
very slowly because of the construction. Doc. 77-3 at 4-5
(Yerington Depo. 62:8-15, 63:4-8, 63:22-25, 68:2-7); see
also Doc. 77-5 at 2 (Maria Depo. 10:11-14) (indicating
accident occurred in construction zone).
about 1:41 pm on May 10, 2017, the right side of Mr.
Parker's truck (driven by Mr. Jones) came into contact
with the left side of the semi-truck Mr. Yerington was
driving. Doc. 1-1 ¶¶ 13-14; Doc. 77-6 at 6 (Charley
Depo. 59:9-60:9). Following impact, the two vehicles veered
to the left together, and Mr. Parker's vehicle was pinned
against the left guard rail of I-40. Doc. 1-1 ¶¶
13-14; Doc. 77-2 at 2-3 (Hayes Depo. 14:9-10, 18:13-19); Doc.
77-6 at 3 (Charley Depo. 31:12-15). Mr. Yerington was not
cited for a traffic violation in relation to the accident.
See Doc. 77-7 at 5, 6. There is no evidence that Mr.
Yerington was driving erratically, or that he intentionally
or recklessly caused the accident. Doc. 77-6 at 4 (Charley
Depo. 56:15-23, 57:14-16); see also Doc. 77-1 at 2
(Jones Depo. 44:6-7) (indicating that Mr. Jones had no
recollection of the accident); Doc. 77-3 at 4-5 (Yerington
Depo. 62:8-68:7) (describing Mr. Yerington's recollection
of the accident). There also is no evidence to suggest that
Mr. Yerington was consciously aware of his actions and that
his actions could cause the vehicles to collide. See
Id. There likewise is no evidence to suggest that ABF
acted maliciously, wantonly, or recklessly in hiring or
supervising Mr. Yerington. See Doc. 96 at 4-5
(dismissing claims against ABF for negligent hiring and
supervising for failure to allege any specific facts related
to ABF's hiring and supervising of Mr. Yerington).
Legal Standard for Summary Judgment
judgment will 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). A genuine dispute exists if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on the issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id.
movant bears the initial burden of establishing that there is
no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). “[T]he
movant need not negate the non-movant's claim, but need
only point to an absence of evidence to support the
non-movant's claim.” Kannady v. City of
Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting
Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121,
1125 (10th Cir. 2000)). If this burden is met, the non-movant
must come forward with specific facts, supported by
admissible evidence, which demonstrate the presence of a
genuine issue for trial. Celotex, 477 U.S. at 324.
The non-moving party cannot rely upon conclusory allegations
or contentions of counsel to defeat summary judgment. See
Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847
F.2d 642, 649 (10th Cir. 1988). Rather, the non-movant has a
responsibility to “go beyond the pleadings and
designate specific facts so as to make a showing sufficient
to establish the existence of an element essential to [his]
case in order to survive summary judgment.” Johnson
v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005)
(alteration in original) (internal quotation marks omitted).
summary judgment stage, the Court must view the facts and
draw all reasonable inferences in the light most favorable to
the non-movant. Scott v. Harris, 550 U.S. 372, 378
(2007). The Court's function “is not . . . to weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249. There is no issue for
trial “unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Id. Summary judgment may be granted
where “the evidence is merely colorable, or is not
significantly probative.” Id. at 249-50
(internal citations omitted).
The Defendants' Motion for Partial ...