United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Joe Jackson Jr. was driving his motor scooter when a postal
truck made a U-turn in front of him. He braked and then laid
the scooter down on the pavement and slid to avoid hitting
the truck. He brings this action under 28 U.S.C § 2671,
et seq., the Federal Tort Claims Act, alleging that
the driver of the postal truck was negligent and so defendant
United States of America is liable for his injuries.
moves for summary judgment, arguing that under Missouri law
plaintiff is solely responsible for his injuries because he
could have avoided the accident had he been driving more
slowly or had he driven around the postal vehicle. I conclude
that genuine disputes of material fact remain and therefore
summary judgment cannot be granted.
incident occurred on March 31, 2016, on Brotherton Lane, a
residential street located in Ferguson, Missouri. Plaintiff
was driving his scooter westbound on Brotherton Lane. The
weather was sunny and the street was dry. Plaintiff had a
clear line of sight as he drove down the street. At that
point Brotherton had both a hill and a curve. The speed limit
on Brotherton Lane is twenty-five miles per hour. Grove
Avenue dead-ends onto Brotherton.
postal truck driver, Chaprisse Jones, turned on to Brotherton
Lane from Grove, attempting to make a U-turn. She testified
that she looked both directions and saw no oncoming traffic.
Plaintiff testified that when he first saw the postal truck
it was in the middle of the street and appeared to be turning
left. He was about four car lengths away from the truck. He
applied his brakes. When the postal driver saw plaintiff she
stopped making the U-turn. Plaintiff believed he could not
stop in time to avoid hitting the postal vehicle and so laid
down or “dumped” the scooter on the pavement.
There was no collision. Plaintiff was injured when he dumped
judgment is appropriate when the pleadings and proffer of
evidence demonstrate that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc). I must view the evidence in the light most
favorable to the nonmoving party and accord him the benefit
of all reasonable inferences. Scott v. Harris, 550
U.S. 372, 379 (2007). Where sufficient evidence exists to
support a factual dispute, a jury must resolve the differing
versions of truth at trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). A fact is considered
“material” if it “might affect the outcome
of the suit under the governing law.” Id.
Missouri law, a claim of negligence requires: (1) a duty of
care owed to plaintiff; (2) breach of duty; (3) the breach
was the direct and proximate cause of the injuries; and (4)
the plaintiff suffer actual damages. Crane v. Drake,
961 S.W.2d 897, 901 (Mo.Ct.App. 1998). A driver operating a
motor vehicle has a duty to exercise the highest degree of
care. Id. Generally, negligence is an issue for the
trier of fact. Kuehle v. Patrick, 646 S.W.2d 845,
847 (Mo.Ct.App. 1982).
argues that it is entitled to summary judgment because, as a
matter of Missouri law, plaintiff's failure to avoid the
accident was the sole proximate cause of his injuries.
Defendant relies on Gower v. Trumbo, 181 S.W.2d 633
(Mo. 1933), which defendant says held that “an
individual who fails to maintain a safe speed under the
circumstances or fails to turn/swerve is the sole proximate
cause of his own injuries in an accident involving a
U-turning vehicle.” [ECF # 35 at p. 6]. Defendant both
reads Gower too broadly and interprets the evidence
in this case in the light most favorable to itself, instead
of in the light most favorable to the plaintiff.
Gower was decided after a jury trial, and the issue
was whether a “sole cause” instruction should
have been submitted to the jury. The case does not determine
the outcome of a summary judgment motion where evidence is
argues that the following evidence supports its motion:
Plaintiff testified in his deposition that he laid the
scooter down because he did not believe he could stop in
sufficient time to avoid hitting the postal truck. He also
testified that if he had been driving more slowly he could
have avoided the accident. Plaintiff also testified that,
based on the photograph shown at the deposition, there was
room for the bike to have gone around the truck. Defendant
presented testimony of a police officer who measured skid
marks at the scene, and presented the affidavit of a witness
who believes that plaintiff was travelling at a rate of 40
miles per hour.
evidence shows that exactly what happened is disputed, and
summary judgment is not appropriate. Plaintiff did not
concede that he was traveling too fast under the
circumstances, he merely agreed that he could have avoided
the accident if he had been driving more slowly. This does
not prove negligence on his part. Presumably plaintiff could
have avoided the accident if he had been walking the scooter
rather than driving it, but that does not mean his speed
during the accident was excessive. Whether he could have
avoided the accident by driving around the truck similarly
depends on speed and other facts that have not been provided
to the court. This is a classic case requiring a trial.
eye witness testimony estimating speed may be admissible,
see Hewitt v. City of Kansas City,761 S.W.2d 679,
681 (Mo.Ct.App. 1988), it is not determinative of the
question of negligence. Similarly, while skid marks may be
relevant, the cause of the skid marks and whether they show
that plaintiff was traveling at an excessive speed is a
factual issue that cannot be resolved on a motion for summary
judgment. Roy v. Missouri Pac. R.R. Co., 43 S.W.3d
351, 361 (Mo.Ct.App. 2001) (declaring that the responding
officer's conclusion as ...