2021 WL 1929169

United States District Court, W.D. New York.
CHRISTOPHER LAVALLEE, Plaintiff,
v.
ANTONIO WIMBERLY, SHANTAE PEARSON, and AKA INVESTMENT GROUP, INC., Defendants.
19-CV-6029-MJP
|
05/13/2021

MARK W. PEDERSEN, United States Magistrate Judge

DECISION AND ORDER
APPEARANCES
*1 For Plaintiff: Aubrey Davis Hetznecker, Esq.

Schlather,, Stumbar Parks & Salk, LLP

200 East Buffalo Street

P.O. Box 353

Ithaca, NY 14851

(607) 273-2202
Raymond M. Schlather, Esq.

Schlather, Stumbar, Parks & Salk,

LLP200 East Buffalo Street

P.O. Box 353

Ithaca, NY 14851

(607) 273-2202

For Defendants Antonio Wimberly and Melissa L. Vincton, Esq. Shantae Pearson: Penino & Moynihan, LLP

1025 Westchester Avenue

Suite 403

White Plains, NY 10604

(914) 949-6996
Steven J. Monn, Esq.

Penino & Moynihan, LLP

1025 Westchester Avenue

Suite 403

White Plains, NY 10604
(914)

For Defendant AKA Investment Group, Stephen P. Brooks, Esq. Inc. Smith, Murphy & Schoepperle, LLP

Ellicott Square Building

295 Main Street, Suite 786

Buffalo, NY 14203-2580

(716) 852-1544
INTRODUCTION
Pedersen, M.J. This motor vehicle tort action is before the Court on diversity. 28 U.S.C. § 1332 (2011). The parties have all consented to magistrate judge jurisdiction per 28 U.S.C. § 636. (Consent and Assignment, Apr. 5, 2019, ECF No. 16.) Now before the Court is an application by AKA Investment Group, Inc. (“AKA”) seeking summary judgment. (Mot. for Summ. J., Nov. 5, 2020, ECF No. 44.) AKA argues that “defendant driver Antonio Wimberly, who was driving a pickup truck which was hauling a trailer, was not negligent as a matter of law because he encountered an emergency situation.” (Brooks Decl. ¶ 4, Nov. 5, 2020, ECF No. 44-1.) Plaintiff counters that the undisputed facts bar AKA from using the emergency doctrine defense. For the reasons stated below, the Court denies AKA’s application (ECF No. 44).

FACTUAL BACKGROUND
The following facts are taken from the parties’ submissions pursuant to W.D.N.Y. Local Rule of Civil Procedure 56(a). AKA’s driver, Antonio Wimberly, (“Wimberly”) was proceeding west-bound on I-86, a limited access highway with a speed limit of 65 miles per hour. Wimberly encountered a jackknifed tractor trailer blocking both lanes of travel. In addition to the jackknifed tractor trailer, he saw a vehicle parked on the left side of the roadway (driven by Gregory Fish), a vehicle parked on the right side of the roadway (driven by the Plaintiff), each parked essentially across from the other, with a person (Plaintiff) standing beside his vehicle, nearest to the traveled portion of the highway, an additional vehicle in the median near the jackknifed tractor trailer, and a further vehicle in the road, having come to rest near the rear wheels of the jackknifed tractor trailer after having struck the tractor trailer.

Wimberly braked, began to slide and was unable to stop his vehicle. Wimberly did not sound the horn or use the emergency brake. Wimberly slid with such speed and force that his truck traveled into Plaintiff and his vehicle, then kept sliding forward until it hit the jackknifed tractor trailer further along the highway. Plaintiff and Defendant AKA dispute whether Wimberly was moving at 30 to 35 miles per hour when he applied his brakes. (Def.’s Statement of Facts, ¶ 28, EF No. 44-3, citing Wimberly Dep. at 50 & 51, ECF No. 44-2). Plaintiff contends that Wimberly was driving faster, citing State Trooper Kenneth Elston’s testimony that Wimberly was traveling around 50 miles per hour. (Pl.’s Statement of Facts ¶ 28, ECF No. 49-2, citing Elston Dep. at 37, ECF No. 49-11.)

*2 Trooper Elston and another eyewitness opined that Wimberly was driving too fast for the road conditions. Wimberly was either traveling 15 miles per hour under the speed limit, based on the state trooper’s testimony, or 30 to 35 miles per hour under the speed limit, based on Wimberly’s testimony. Lavallee testified he was traveling 65 miles per hour as he approached the trailer, but managed to brake successfully and pull over with no injury. Wimberly was ticketed and pleaded guilty to driving at an imprudent speed. Trooper Elston during his deposition described the situation Wimberly encountered as an “emergency situation”:
Q. All right. This might sound stupid. It wouldn’t be the first time. But is it fair to say that coming across a tractor trailer who is blocking both lanes of the westbound 86 was out of the ordinary?
A. Yes.
Q. Okay. Would you call that an emergency situation for a driver who encountered that?

A. Yes, it was overwhelming for us as law enforcement. (Elston Dep. at 57:11–19, ECF No. 49-11.) Another point of contention is whether the jackknifed tractor trailer blocked the view of the flashing lights on the two police vehicles. Plaintiff claims that Gregory Fish, who was also driving on westbound I-86, was able to see the flashing lights before seeing the trailer (“I observed the state troopers’ lights before the tractor trailer”). (Fish Dep. 12:4–5, attached as Ex. G to AKA’s Mot. for Summ. J., ECF No. 44-2.)

AKA owned the trailer which was attached to and being hauled by the pickup truck driven by Wimberly and, as such, AKA would be liable for any negligence by Wimberly in the use or operation of the pickup truck. N.Y. Veh. & Traf. Law§ 388.

STANDARD OF LAW
Summary judgment may not be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, … demonstrate the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and “the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a) (2015). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party’s claim. Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citation omitted).

The burden then shifts to the non-moving party to demonstrate specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Id. at 249. “[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial.” Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996). Summary judgment is appropriate only where, “after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed. R. Civ. P. 56(c)(1). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

ANALYSIS

Emergency Doctrine
Under New York law, the emergency doctrine “recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration … the actor may not be negligent if the actions taken are reasonable and prudent.” Krynski v. Chase, 707 F. Supp. 2d 318, 325 (E.D.N.Y. 2009) (quoting Rivera v. New York City Transit Auth., 77 N.Y.2d 322, 327 (1991)). Defendant AKA is moving for summary judgment upon the emergency doctrine; thus, it is AKA’s burden to establish as a matter of law that the situation facing Wimberly meets the two-pronged standard. Defendant Wimberly is stating that he was not negligent because he encountered an emergency and, therefore, was not obligated to exercise his best judgment, thereby making any error of judgment non-negligent. A component of the first part of the standard is the existence of an emergency. Generally, “[w]hether a situation constitutes an emergency is an issue best left to the trier of fact, [e]xcept in the most egregious circumstances.” Stevenson v. Recore, 221 A.D.2d 834, 835 (N.Y. App. Div. 3d Dept. 1995); see Copeland v. Bolton, 101 A.D.3d 1283, 1285 (N.Y. App. Div. 3d Dept. 2012); Schlanger v. Doe, 53 A.D.3d 827, 828 (N.Y. App. Div. 3d Dept. 2008).

*3 Assuming for the purposes of this motion, without deciding that the situation Wimberly faced was an emergency, Defendant AKA must also establish (1) that Wimberly did not contribute to the emergency and (2) that Wimberly’s actions were reasonable under the circumstance. See Foster v. Kelly, 119 A.D.3d 1250, 1251 (N.Y. App. Div. 3d Dept. 2014); Weiss v. Metropolitan Suburban Bus Authority, 106 A.D.3d 727 (N.Y. App. Div. 2d Dept. 2013); 8B NY Jur. 2d Automobiles § 985. The emergency doctrine does not apply to situations where “the defendant driver should reasonably have anticipated and been prepared to deal with the situation with which [he] was confronted.” Muye v. Liben, 282 A.D.2d 661 (N.Y. App. Div. 2d Dept. 2001).

Defendant AKA’s position is that based on the undisputed facts of this case, Wimberly, the driver of the truck, encountered an emergency situation, allegedly mirroring Garcia v. Prado, 15 A.D.3d 347 (N.Y. App. Div. 2d Dept. 2005) (defendant driver, who struck vehicle which had lost control and come to rest perpendicular to traffic, blocking two lanes of traffic, was not negligent as a matter of law, as defendant driver was faced with emergency situation, and, as such, was not obligated to exercise best judgment and any error in judgment was not sufficient to constitute negligence). Courts have found as a matter of law that a person faced with an emergency situation was not liable for subsequent damage. See Kandel v. FN, 137 A.D.3d 980 (N.Y. App. Div. 2d Dept. 2016) (driver who encountered vehicles blocking two of three lanes for travel, and was not able to stop because of ice on road, despite braking, and thereby struck plaintiff, who was standing outside his vehicle, was faced with emergency situation and entitled to summary judgment as a matter of law); Gajjar v. Shah, 31 A.D.3d 377 (N.Y. App. Div. 2d Dept. 2006) (tractor trailer driver who slammed on brakes and attempted to stay in his lane when he encountered vehicle that crossed double-yellow line was faced with emergency situation and entitled to summary judgment as a matter of law, and argument that he had enough time to swerve tractor trailer was speculation, as such vehicular agility was not required); Smith v Brennan, 245 A.D.2d 596 (N.Y. App. Div. 3d Dept. 1997) (defendant driver who encountered vehicle that crossed into his lane from opposite direction was faced with emergency situation and entitled to summary judgment as a matter of law, and speculation that defendant driver was speeding and reaction time was therefore delayed insufficient to create question of fact); DiGiorgio v. Sil Serv. Corp., 243 A.D.2d 535, 536 (N.Y. App. Div. 2d Dept. 1997) (driver who encountered cab, spinning in street after being struck by another vehicle, which spinning resulted in plaintiff being ejected from cab, was faced with emergency situation and entitled to summary judgment as a matter of law).

A material question of fact exists as to whether the conditions Wimberly encountered were “sudden” and “unexpected.” In the cases where courts have applied the emergency doctrine, an unquestionable and unforeseen emergency existed, such as vehicles traveling in the wrong direction, see Madden v. Mullet, 211 A.D.2d 623 (N.Y. App. Div. 2d Dept. 1995); spinning vehicles, Vatter v. Gibson, 228 A.D.2d 581 (N.Y. App. Div. 2d Dept. 1996); or avoiding a collision-in-progress, Wenz v. Shafer, 293 A.D.2d 742 (N.Y. App. Div. 2d Dept. 2002), Christian v. Audi of America, Inc., 233 A.D.2d 289 (N.Y. App. Div. 2d Dept. 1996). A tractor trailer blocking both lanes and vehicles blocking the shoulders of the highway might be an unforeseen or sudden condition depending a great deal on how much notice the driver had before encountering it, how well prepared the vehicle was to be safely stopped, and the speed of travel considering the road conditions at the time.

CONCLUSION
*4 The Court denies AKA’s motion for summary judgment (ECF No. 44). The Court will issue a separate Order for a pretrial conference.

SO ORDERED.

DATED: May 13, 2021

Rochester, New York

MARK W. PEDERSEN

United States Magistrate Judge
All Citations
Slip Copy, 2021 WL 1929169

2021 WL 1920965
Supreme Court of Louisiana.
Synikia HESTER Individually and on Behalf of Kunta Hester, Jr., Kalen Hester and Kaydon Hester
v.
Bryant WALKER, BlueLinx Corporation and Zurich American Insurance Company
No. 2020-CC-01278
|
05/13/2021
REVERSED. SUMMARY JUDGMENT GRANTED. SEE PER CURIAM.
Opinion

PER CURIAM

*1 **1 At issue in this case is whether defendants violated any duty to plaintiffs under the provisions of La. R.S. 32:141(A), which prohibits the stopping or parking of a vehicle in the travelled portion of a roadway. For the reasons that follow, we conclude defendants are entitled to summary judgment.

FACTS AND PROCEDURAL HISTORY
Bryant Walker was employed as an eighteen-wheeler tractor-trailer driver for BlueLinx Corporation (“BlueLinx”). BlueLinx’s facility is located in New Orleans on Almonaster Avenue, a four-lane road divided by a median.

On the day in question, Mr. Walker was attempting to make a left turn into the driveway of BlueLinx’s facility. He activated his left turn signal and stopped his tractor-trailer in the left lane, approximately sixty feet from a break in the median, in order to wait for another vehicle to exit the driveway. Before Mr. Walker could make his turn, his tractor-trailer was struck from behind by a vehicle driven by Kunta Hester. Mr. Hester died as a result of the accident.

**2 Subsequently, Mr. Hester’s survivors filed the instant suit against Mr. Walker, BlueLinx, and its insurer. Plaintiffs alleged defendants breached their duty to Mr. Hester because Mr. Walker negligently stopped his vehicle on a public roadway in violation of La. R.S. 32:141(A).

Following discovery, defendants moved for summary judgment. They argued the evidence established Mr. Walker did not breach any duty under La. R.S. 32:141(A) because Mr. Walker did not stop, park, or leave his tractor-trailer standing in the roadway. In support of their motion, defendants relied on Mr. Walker’s deposition. Mr. Walker testified that twenty-five seconds before impact he activated his turn signal, slowed, and brought his tractor-trailer to a complete stop; waited for oncoming traffic (a white van) to clear; and waited for one of the two tractor-trailers blocking the driveway to exit, so he could turn into BlueLinx’s driveway. Mr. Walker stated his sole intent was to turn left into the facility and reload his tractor-trailer.

Defendants also relied on the testimony of NOPD’s investigating officer, Detective Danny Ellis. Detective Ellis, a certified accident reconstructionist, determined the causative factors in the accident were speed and operator error on Mr. Hester’s part. He concluded the damage to the vehicles, in particular that the front of Mr. Hester’s vehicle which was “embedded” into the rear of the tractor-trailer, indicated Mr. Hester was possibly traveling almost twenty miles over the 35 mph speed limit. Detective Ellis noted other “tell-tale” signs of Mr. Hester’s speed included: the broken windows, the smashed vehicle interior, the deployed airbags, and the extraction of Mr. Hester’s body from the vehicle. Detective Ellis indicated that even if Mr. Hester was driving ten miles over the speed limit the damage to his vehicle would not have been that extensive. Further, Detective Ellis noted he visually inspected the inside of Mr. Hester’s vehicle and noticed a cell phone case in his right hand.

*2 **3 Additionally, defendants submitted testimony from their transportation and safety expert, Rex Smith, who stated Mr. Walker followed proper driving practices and made the left turn maneuver in the manner of a reasonably prudent commercial motor vehicle operator. Finally, defendants submitted real-time video of the accident from surveillance cameras in front of BlueLinx’s facility, as well as the affidavit of BlueLinx’s branch manager who authenticated the video.

Plaintiffs opposed the motion. They argued the tractor-trailer was stopped, and was not making a left turn at the time of the accident. Plaintiffs relied on Mr. Walker’s testimony, which indicated he stopped approximately sixty feet from the break in the median to wait for one of two tractor-trailers to exit BlueLinx’s driveway before he turned in. Further, plaintiffs noted Mr. Walker testified that even after oncoming traffic had passed, he continued to wait until one of the tractor-trailers exited BlueLinx’s driveway so he could turn into the facility.

Plaintiffs also asserted defendants offered only conjecture regarding Mr. Hester’s rate of speed at the time of the accident. In support, they noted Detective Ellis admitted he was unable to determine Mr. Hester’s exact speed.

After a hearing, the district court denied defendants’ motion for summary judgment. Defendants sought supervisory review. The court of appeal denied the writ, with one judge dissenting.

Upon defendants’ application, we ordered briefing and argument pursuant to the provisions of La. Code Civ. P. art. 966(H).

DISCUSSION
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. **4 Beer Industry League of Louisiana v. City of New Orleans, 2018-0280 (La. 6/27/18), 251 So.3d 380, 385–86; Duncan v. U.S.A.A. Ins. Co., 2006-0363 (La. 11/29/06), 950 So.2d 544, 546.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of civil actions (with the exception of certain domestic matters) and is favored in our law. La. Code Civ. P. art. 966(A)(2); Murphy v. Savannah, 2018-0991 (La. 5/8/19), 282 So.3d 1034, 1038; Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669, 686.

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 2006-1181 (La. 3/9/07), 951 So.2d 1058, 1070. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ. P. art. 966(B); Kennedy, 935 So.2d at 686.

On a motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. La. Code Civ. P. art. 966(D)(2); Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), 171 So.3d 851, 854; Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.

*3 **5 Because plaintiffs will bear the burden of proof at trial, defendants’ burden on summary judgment is to show an absence of factual support for one or more elements essential to plaintiffs’ claim. Defendants assert they have satisfied this burden through uncontroverted evidence showing they did not breach any duty under La. R.S. 32:141(A) because Mr. Walker did not stop, park, or leave his tractor-trailer standing in the roadway.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La. 3/10/06), 923 So.2d 627, 633; Meany v. Meany, 1994-0251 (La. 7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 1998-1601, 1998-1609 (La. 5/18/99), 733 So.2d 1198, 1204; Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La. 1993); Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La. 1993). In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. Lemann, 923 So.2d at 633; See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991).

Plaintiffs assert defendants violated the duty imposed by La. R.S. 32:141(A), which provides:
A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway. [emphasis added].

We have long held that this statute is designed to protect against the risk that a driver, whether cautious or inattentive, would collide with a stationary vehicle. **6 Laird v. Travelers Insurance Co., 263 La. 199, 211, 267 So.2d 714, 718 (1972); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 488, 137 So.2d 298, 304 (1962).

The statute does not delineate any temporal period for determining whether a vehicle has been stopped. Nonetheless, the jurisprudence has recognized this provision does not apply to vehicles which are stopped on a highway on a temporary or momentary basis while waiting to turn. See Jenkins v. Hernandez, 2019-0874 (La. App. 1 Cir. 6/3/20), 305 So.3d 365, 373 (explaining the term “park” as used in La. R.S. 32:141(A) “does not comprehend or include a mere temporary or momentary stoppage, but rather connotes a stoppage with the intent of permitting the vehicle to remain standing for an appreciable length of time”); see also Garcia v. Stalsby, 2011-0350 (La. App. 3 Cir. 12/14/11), 78 So.3d 873, 877, writ denied, 2012-0422 (La. 4/9/12), 85 So.3d 703 (“We have found no case wherein this provision was applied to a situation where a vehicle is stopped in the roadway while waiting to turn.”).

We believe the reasoning of these cases is consistent with the spirit of the legislation, which is to prevent vehicles from causing an obstruction on the traveled portion of the roadway. Any interpretation which would apply the statute to a brief temporary stop made as a matter of necessity in the course of ordinary traffic would result in absurd consequences. It is a well-settled principle of statutory interpretation that “where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.” First National Bank of Boston v. Beckwith Machinery Co., 1994-2065 (La. 2/20/95), 650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 451, 115 So.2d 809, 814 (1959)).

*4 Applying this interpretation to case at bar, we find Mr. Walker’s testimony establishes he activated his left turn signal and was in the process of turning left into **7 the BlueLinx facility when the accident occurred. Mr. Walker’s testimony is corroborated by the surveillance video of the accident, which shows his tractor-trailer was stopped for only a very short period of time (approximately twenty-seven seconds) prior the collision. Plaintiffs have presented no contrary evidence establishing Mr. Walker intended to remain stopped for any appreciable period of time after it became safe for him to complete his turn. Therefore, we find no factual support for plaintiffs’ assertion that defendants breached any duty under La. R.S. 32:141(A).1

Moreover, La. R.S. 32:81(A) provides, “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” Our jurisprudence has long recognized “that a following motorist in a rear-end collision is presumed to have breached the standard of conduct prescribed in La. Rev. Stat. Ann. 32:81 and hence is presumed negligent.” Mart v. Hill, 505 So. 2d 1120, 1123 (La. 1987).

The testimony of the investigating officer in this case indicates Mr. Hester’s speed and inattention were the sole causes of the accident. Although the officer could not determine Mr. Hester’s exact rate of speed, he concluded the damage to the vehicles indicated Mr. Hester was possibly traveling almost twenty miles over the speed limit. He noted the impact evidence shows the front driver’s side corner of Mr. Hester’s vehicle collided with the right rear corner of Mr. Walker’s tractor-trailer, suggesting Mr. Hester made a last-second attempt to avoid the collision by swerving into the unobstructed right lane. The officer also noticed a cell phone case **8 in Mr. Hester’s right hand.2 Plaintiffs produced no contrary evidence. Under these circumstances, we find plaintiffs have failed to rebut the presumption that Mr. Hester was at fault for the accident.

In conclusion, we find plaintiffs have failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial. Accordingly, summary judgment in favor of defendants is mandated.

DECREE
For the reasons assigned, the writ is granted. The judgments of the lower courts are reversed. Summary judgment is hereby granted in favor of Bryant Walker, BlueLinx Corporation, and Zurich American Insurance Company, dismissing the claims of Synikia Hester, individually and on behalf of Kunta Hester, Jr., Kalen Hester, and Kaydon Hester, with prejudice.

All Citations
— So.3d —-, 2021 WL 1920965, 2020-01278 (La. 5/13/21)

Footnotes

1
We further see no merit to plaintiffs’ alternative argument that defendants breached 49 C.F.R. ‘392.22(a), which provides that a driver of a commercial motor vehicle stopped upon the traveled portion of the highway for any cause “other than necessary traffic stops” has a duty to activate warning devices. As we have explained, the stop in this case was in the nature of a brief and necessary traffic stop in connection with a turn.

2
In his deposition, the officer speculated that the impact of the collision may have knocked the cell phone out of its case.