April 2022

LaGrange v. Boone

Court of Appeal of Louisiana, Third Circuit

April 6, 2022, Decided

21-560

Reporter

2022 La. App. LEXIS 552 *; 21-560 (La. 04/06/22)

GABRIEL LAGRANGE AND AMANDA LAGRANGE, INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILDREN COLLIN LAGRANGE, JAYCE LAGRANGE, AND LINDSAY LAGRANGE VERSUS HARLEY E. BOONE, ROAMER TRANSPORT, INC., HUM INTERNATIONAL TRANSPORTATION INSURANCE SERVICES, INC., KLLM TRANSPORT SERVICES, LLC D/B/A KLLM LOGISTICS SERVICES, AMERICAN HONDA MOTOR CO., INC., AND PROGRESSIVE SECURITY INSURANCE COMPANY

Notice: THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

Prior History: [*1] APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 90887-B. HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE.

Disposition: AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Core Terms

Transport, broker, motor carrier, Plaintiffs’, preemption, negligent-hiring, carrier, summary judgment motion, trial court, summary judgment, genuine issue of material fact, preempts, documents, time of an accident, negligence claim, factual support, employer-employee, freight, burden of proof, broker-carrier, regulation, Logistics, arranged, regulatory authority, brokerage services, motor vehicle, tort claim, mover

Case Summary

Overview

HOLDINGS: [1]-In a personal injury claim from a tractor-trailer and motorcycle accident, the trial court correctly dismissed the plaintiffs’ vicarious liability claim against defendants because defendant had sufficiently pointed out plaintiffs’ absence of factual support for an essential element of the vicarious-liability claim which was that tractor-trailer driver was employed under La. Code Civ. Proc. Ann. art. 2320 by defendant; [2]-Trial court’s judgment granting the defendant’s motion for summary judgment was affirmed because a valid broker-carrier agreement existed since defendant clearly took actions indicating its acceptance of the broker-carrier agreement and an affidavit testimony stated that defendant was in fact the broker, under FAAAA for the load that was being hauled by tractor-trailer driver on behalf of a roamer transport at the time of the accident.

Outcome

Judgment affirmed in part; reversed in part and remanded.

LexisNexis® Headnotes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Appeals > Summary Judgment Review > Standards of Review

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Entitlement as Matter of Law, Appropriateness

In reviewing the trial court’s decision on a motion for summary judgment, an appellate court applies the de novo standard of review using the same criteria applied by the trial court to determine whether summary judgment is appropriate.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Legal Entitlement

Entitlement as Matter of Law, Appropriateness

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966(A)(3).

Civil Procedure > … > Summary Judgment > Opposing Materials > Accompanying Documentation

Civil Procedure > … > Summary Judgment > Supporting Materials > Affidavits

Opposing Materials, Accompanying Documentation

The only documents that may be filed in support of or in opposition to the motion for summary judgment are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. Proc. Ann. art. 966(A)(4).

Torts > Vicarious Liability > Employers > Scope of Employment

Employers, Scope of Employment

In relevant part, La. Code Civ. Proc. Ann. art. 2320 states that masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

Torts > Vicarious Liability > Employers > Scope of Employment

Employers, Scope of Employment

There are two essential elements for liability under La. Code Civ. Proc. Ann. art. 2320: (1) the existence of an employer-employee relationship, and (2) the tortious act of the employee was committed during the course and scope of the employment by the employer sought to be held liable.

Evidence > Burdens of Proof > Allocation

Torts > … > Employers > Scope of Employment > Factors

Burdens of Proof, Allocation

The single most important factor to consider in deciding whether the employer-employee relationship exists, for purposes of La. Code Civ. Proc. Ann. art. 2320, is the right of the employer to control the work of the employee. It is the right of control of the time and physical activities in the other party and the existence of a close relationship between the parties which determine that one is a servant. Servant must be interpreted as that particular kind of agent who has a very close economic relation to, and is subject to very close control by, the principal. A servant is one who offers his personal services for a price. He is an integral part of his employer’s business and must submit to the control of his physical conduct as well as of his time. The four primary evidentiary factors considered in deciding whether such an employer-employee relationship exists relate to whether the alleged employer has the right or duty, relative to the employee, of: (1) selection and engagement; (2) payment of wages; (3) power of dismissal; and (4) power of control. However, no one factor is controlling; rather, the totality of the circumstances must be considered, and the burden of proof is on the party seeking to establish an employer-employee relationship.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Torts > Vicarious Liability > Employers

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Entitlement as Matter of Law, Appropriateness

Summary judgment on a vicarious-liability claim is appropriate when the uncontested facts show that an alleged tortfeasor was not an employee of the defendant.

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Transportation Law > Carrier Duties & Liabilities > Definitions

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Particular Actors, Circumstances, & Liabilities, Motor Carriers

The Federal Aviation Administration Authorization Act of 1994 (FAAAA) defines a broker as a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation. 49 U.S.C.S. § 13102(2). By contrast, the term carrier means motor carrier. 49 U.S.C.S. § 13102(3). The FAAAA defines a motor carrier as a person providing motor vehicle transportation for compensation. 49 U.S.C.S. § 13102(14). Accompanying federal regulations further define motor carrier as a for-hire motor carrier or private motor carrier. 49 C.F.R. § 387.5. In turn, for-hire carriage refers to the business of transporting, for compensation, the goods or property of another. Thus, an entity is a motor carrier only when it was operating as a for-hire motor carrier at the time of the accident.

Business & Corporate Compliance > … > Contracts Law > Contract Formation > Execution & Delivery

Contract Formation, Execution & Delivery

There is a jurisprudential exception to the rule under La. Civ. Code Ann. art. 1837 when one party has signed the agreement and the other party has availed himself of the agreement or taken actions evidencing acceptance thereof.

Civil Procedure > … > Defenses, Demurrers & Objections > Affirmative Defenses > Burdens of Proof

Evidence > Burdens of Proof > Allocation

Constitutional Law > Supremacy Clause > Federal Preemption

Affirmative Defenses, Burdens of Proof

Preemption is an affirmative defense. A party defendant who asserts an affirmative defense bears the burden of proof thereof.

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Interstate Commerce > Federal Preemption

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Defenses

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Supremacy Clause, Federal Preemption

The Federal Aviation Administration Authorization Act of 1994 would otherwise preempt negligent-hiring claims against brokers, but the safety exception saves these claims from preemption.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > Rates & Tariffs

Transportation Law > Interstate Commerce > Federal Preemption

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Rates & Tariffs

Common Carrier Duties & Liabilities, Rates & Tariffs

49 U.S.C.S. § 14501(c)(1) preempts state laws that are related to a price, route, or service of any motor private carrier, broker, or freight forwarder with respect to the transportation of property. 49 U.S.C.S. § 14501(c)(1).

Transportation Law > Carrier Duties & Liabilities > Definitions

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Carrier Duties & Liabilities, Definitions

The selection of motor carriers is one of the core services of brokers. 49 U.S.C.S. § 13102(2) defines broker, as it is used in the Federal Aviation Administration Authorization Act of 1994, to mean a person, other than a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation; 49 C.F.R. § 371.2 defines brokerage service as the arranging of transportation.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Transportation Law > Interstate Commerce > Federal Preemption

Constitutional Law > Supremacy Clause > Federal Preemption

Business & Corporate Compliance > … > Transportation Law > Interstate Commerce > State Powers

Commercial Drivers & Vehicles, Maintenance & Safety

49 U.S.C.S. § 14501(c)(2) is the safety regulation preemption exception. This exception provides that the Federal Aviation Administration Authorization Act of 1994’s preemption shall not restrict the safety regulatory authority of a State with respect to motor vehicles. 49 U.S.C.S. § 14501(c)(2)(A).

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Governments > Courts > Common Law

Torts > Transportation Torts

Commercial Drivers & Vehicles, Maintenance & Safety

The safety regulatory authority of a State is not defined in the Federal Aviation Administration Authorization Act of 1994 nor is there anything in the statute’s text which clarifies its scope. In general, however, courts have construed the safety exception broadly. The safety regulatory authority of a State’ encompasses common-law tort claims.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Torts > Procedural Matters > Preemption > Implied Preemption

Transportation Law > Interstate Commerce > Federal Preemption

Constitutional Law > Supremacy Clause > Federal Preemption

Commercial Drivers & Vehicles, Maintenance & Safety

In enacting the safety exception, Congress intended to ensure that its preemption over states’ economic authority did not restrict the states’ existing power over safety. That power includes the ability to regulate safety through common-law tort claims.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Interstate Commerce > Federal Preemption

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Commercial Drivers & Vehicles, Maintenance & Safety

Negligence claims against brokers arising out of motor vehicle accidents satisfy the with respect to motor vehicles language in the statute. With respect to is synonymous with relating to. 49 U.S.C.S. § 14501(c)(2) exempts from preemption safety regulations that have a connection with motor vehicles, whether directly or indirectly.

Business & Corporate Compliance > … > Commercial Drivers & Vehicles > Transportation Law > Commercial Vehicles

Torts > Transportation Torts > Motor Vehicles > Particular Actors, Circumstances, & Liabilities

Transportation, Commercial Drivers & Vehicles

Under the Federal Aviation Administration Authorization Act of 1994, a motor vehicle is defined in relevant part as a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation. 49 U.S.C.S. § 13102(16).

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Constitutional Law > Supremacy Clause > Federal Preemption

Commercial Drivers & Vehicles, Maintenance & Safety

The safety exception exempts Louisiana’s power to regulate safety through state-law tort claims.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Defenses

Commercial Drivers & Vehicles, Maintenance & Safety

The safety regulation preemption exception in 49 U.S.C.S. § 14501(c)(2) applies to negligent-hiring claims against brokers.

Counsel: Joseph E. Ritch, Elliott & Ritch, LLP, Corpus Christi, Texas, Counsel for Plaintiffs/Appellants: Gabriel LaGrange and Amanda LaGrange, Individually and on Behalf of the Minor Children, Collin LaGrange, Jayce LaGrange, and Lindsay LaGrange.

Jared Dunahoe, Natchitoches, Louisiana, Counsel for Plaintiffs/Appellants: Gabriel LaGrange and Amanda LaGrange, Individually and on Behalf of the Minor Children, Collin LaGrange, Jayce LaGrange, and Lindsay LaGrange.

Jack E. Truitt, Lou Anne Milliman, Michelle Mayne Davis, Lauren A. Duncan, The Truitt Law Firm, LLC, Covington, Louisiana, Counsel for Defendant/Appellee: KLLM Transport Services, LLC, d/b/a KLLM Logistics Services.

Judges: Court composed of Sylvia R. Cooks, Chief Judge, Van H. Kyzar and Charles G. Fitzgerald, Judges.

Opinion by: CHARLES G. FITZGERALD

Opinion

[Pg 1] FITZGERALD, Judge.

The issue on appeal is whether the trial court erred in granting the defendant’s motions for summary judgment and dismissing the plaintiffs’ negligence claims.

FACTS AND PROCEDURAL HISTORY

This is a personal injury suit [*2] arising from a tractor-trailer and motorcycle accident that occurred in Natchitoches Parish in April 2018. The accident was allegedly caused when a tractor-trailer being driven by Harley E. Boone collided with a motorcycle being driven by Gabriel LaGrange. As a result of the accident, LaGrange and his wife, individually and on behalf of their minor children, filed suit against numerous defendants, including KLLM Transport Services LLC d/b/a KLLM Logistics Services.

Plaintiffs’ petition alleges that KLLM “contracted the services of Roamer Transport Inc. and its employee Harley E. Boone to provide transport services.” The petition also alleges that Boone was an employee of Roamer Transport. But Plaintiffs then allege that KLLM is liable for the negligent acts of its employee Harley E. Boone under the doctrine of respondeat superior. Additionally, Plaintiffs allege that KLLM is negligent in hiring and retaining Roamer Transport; in hiring and retaining Boone as a driver for KLLM; in failing to develop, implement, and enforce a reasonable and prudent carrier safety program to include driver screening, training, and management; and in failing to adhere to safety statutes and regulations. [*3]

On May 21, 2020, KLLM filed a motion for summary judgment in which it argued that Plaintiffs had no evidence that it (KLLM) had any role in the transportation services provided by Roamer Transport and carried out by Boone, [Pg 2] and that Boone was not an employee of KLLM at the time of the accident. Thus, KLLM contended that Plaintiffs’ vicarious liability claim should be dismissed.

The very next day, on May 22, 2020, KLLM filed a second motion for summary judgment. In this motion, KLLM argued that Plaintiffs’ negligent-hiring claims should be dismissed because of federal preemption.

The hearing on both motions was held in April 2021. After taking the matter under advisement, the trial court granted summary judgment and dismissed all of Plaintiffs’ claims against KLLM with prejudice. In granting KLLM’s first motion, the trial court stated that “any state-law claims by Plaintiff sounding in respondeat superior must be dismissed based on KLLM’s status as broker and not as employer of Mr. Boone.”

As to KLLM’s second motion for summary judgment, the trial court first concluded that federal law preempts state-law negligence claims against freight brokers. The trial court then turned its attention [*4] to the “safety exception” to the federal preemption law and concluded that the exception does not encompass this type of claim. Thus, Plaintiffs’ negligent-hiring claims against KLLM were also dismissed.

A written final judgment was signed by the trial court on May 31, 2021. This appeal by Plaintiffs followed.

On appeal, Plaintiffs assert three assignments of error: (1) whether the trial court erred in finding that there was no genuine issue of material fact as to the broker status of KLLM; (2) whether the trial court erred in finding that the negligent-hiring claims against KLLM were preempted by federal law; and (3) whether trial court erred in finding that the safety exception to the federal preemption law did not apply.

[Pg 3] LAW AND ANALYSIS

In reviewing the trial court’s decision on a motion for summary judgment, we apply the de novo standard of review using the same criteria applied by the trial court to determine whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880.

motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

The [*5] burden of proof in summary-judgment proceedings is set forth in La.Code Civ.P. art. 966(D)(1), which states:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

to a document shall be raised in a timely filed opposition or reply memorandum.” La.Code Civ.P. art. 966(D)(2).

[Pg 4] I. KLLM’s First Motion for Summary Judgment

The trial court correctly dismissed the Plaintiffs’ vicarious liability claim against KLLM.

asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

There are two essential elements for liability under Article 2320: “(1) the existence of an employer-employee relationship and (2) the tortious act of the employee was committed during the course and scope of the employment by the employer sought to be held liable.” Maze v. Grogan, 96-1413, p. 2 (La.App. 1 Cir. 5/9/97), 694 So.2d 1168, 1170.

KLLM’s first motion for summary judgment points out that Plaintiffs lack factual support for the first element—that Boone was employed by KLLM. The Louisiana Supreme Court recently addressed the employer-employee relationship in Bolden v. Tisdale, 21-224, at 13 (La. 1/28/22), So.3d , , explaining as follows:

primary evidentiary factors considered in deciding whether such an employer-employee relationship exists relate to whether the alleged employer has the right or duty, relative to the employee, of: (1) selection and engagement; (2) payment of wages; (3) power of dismissal; and (4) power of control. Hillman v. Comm-Care, Inc., 01-1140, p. 8 (La. 1/15/02), 805 So.2d 1157, 1162. However, no one factor is controlling; rather, the totality of the circumstances must be considered, and the burden of proof is on the party seeking to establish an employer-employee relationship. Hillman, 01-1140 at pp. 8-9, 805 So.2d at 1163.

Put simply, facts show that an alleged tortfeasor was not an employee of the defendant. Morales v. Davis Bros. Constr. Co., 94-902 (La.App. 4 Cir. 12/15/94), 647 So.2d 1302; see also Franklin v. Dick, 51,479 (La.App. 2 Cir. 6/21/17), 224 So.3d 1130 (granting summary judgment in favor of a taxicab lessor because the uncontested facts showed that the cabdriver was not an employee of the lessor).

Here, the summary-judgment evidence used by KLLM to point out that Plaintiffs lack factual support to establish an employer-employee relationship between KLLM and Boone includes the affidavit of Cassie Icamina, who is KLLM’s vice president of logistics. Icamina’s affidavit states in part that KLLM did not pay Boone; that KLLM did not have an employment contract with Boone; that KLLM had no contractual right to exercise supervision and control over Boone; that KLLM did not exercise any supervision or control over Boone; and that KLLM had no role in the transportation of freight.

At this point, KLLM has sufficiently pointed out Plaintiffs’ absence of factual support for an essential element of the vicarious-liability claim. Hence, the burden of production under La.Code Civ.P. art. 966(D)(1) now shifts to Plaintiffs to produce evidence of a material factual dispute. In attempting to meet this [Pg 6] burden, Plaintiffs submitted certain public records to show that KLLM has both a “broker” [*9] DOT number and “carrier” DOT number. The purpose of these documents, according to Plaintiffs, is to show that there is a factual dispute as to whether KLLM was acting as a broker or carrier at the time of the accident. And this brings us to Plaintiffs’ first assignment of error: that the trial court erred in finding that there was no genuine issue of material fact as to the broker status of KLLM. Indeed, a genuine dispute here would create a genuine issue of material fact as to the existence of an employer-employee relationship between KLLM and Boone.

Thus, before going further, we must determine whether KLLM is a broker or carrier within the meaning of the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”). The FAAAA defines a “broker” as a “person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2).

By contrast, the term “carrier means motor carrier[.]” 49 U.S.C. § 13102(3). The FAAAA defines a “motor carrier” as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). Accompanying federal [*10] regulations further define “motor carrier” as a “for-hire motor carrier or private motor carrier.” 49 C.F.R. § 387.5. In turn, “for-hire carriage” refers to “the business of transporting, for compensation, the goods or property of another.” Id. Thus, an entity is a motor carrier only when it “was operating as a for-hire motor carrier at the time of the accident.” Herrod v. Wilshire Ins. Co., 499 Fed. Appx. 753, 759 (10th Cir. 2012).

[Pg 7] KLLM contends that it was operating as a broker at the time of the accident. As a broker, it merely arranged for the transportation of the freight by a motor carrier. Roemer Transport, according to KLLM, was the motor carrier. And Roamer Transport, as the motor carrier, provided its own driver, and that driver was Harley Boone. This is KLLM’s argument.

As to the documents submitted by Plaintiffs in opposition to summary judgment—specifically, the documents reflecting that KLLM has both a federal broker DOT number and carrier DOT number—KLLM contends that this does not create a genuine issue of material fact. We agree. Although KLLM possesses broker and carrier status with the Federal Motor Carrier Safety Administration, Plaintiffs presented no evidence to show that in this instance KLLM was acting as a carrier.

Plaintiffs next attempt [*11] to meet their burden of producing factual support by arguing that the broker-carrier contract between KLLM and Roamer Transport was not signed by KLLM. The broker-carrier contract at issue is attached to the affidavit of KLLM’s vice president of logistics, Cassie Icamina. The contract is styled “KLLM Logistics Services Broker-Carrier Transportation Agreement.” And in the agreement, KLLM is identified as “Broker,” and Roamer Transport is identified as “Carrier”; Roamer Transport agreed to perform transportation services for KLLM; Roamer Transport is specifically identified as an independent contractor; and it is expressly stated that KLLM had no right to control the services provided by Roamer Transport or its employees.

So, does Plaintiffs’ argument as to KLLM’s failure to sign the agreement have merit? In answering this question, we turn to La.Civ.Code art. 1837, which states that “[a]n act under private signature need not be written by the parties, but [Pg 8] must be signed by them.” The trial court astutely points out that thereof.

For example, in Stevens Constr. & Design, LLC v. Hillman, 19-1329, 2020 La. App. Unpub. LEXIS 114 (La.App. 1 Cir. 6/12/20) (unpublished), a homeowner who signed a contract with Stevens Construction opposed summary judgment by arguing that there was a genuine issue of material fact regarding the existence of the contract because the construction company did not also sign the contract. The first circuit disagreed. The actions taken by Stevens Construction, including accepting an initial payment from the homeowner and undertaking work for several months, indicated its acceptance of the contract. Summary judgment was therefore affirmed.

In this case, KLLM clearly took actions indicating its acceptance of the broker-carrier agreement. The affidavit testimony of Icamina identifies the broker-carrier agreement at issue; Icamina states that she is familiar with the subject agreement, and that KLLM was in fact the broker for the load that was being hauled by Mr. Boone on behalf of Roamer Transport at the time of the accident. Accordingly, a valid broker-carrier agreement existed, and Plaintiffs’ argument that KLLM’s failure to sign the agreement created a genuine issue of material fact is without merit.

In the end, Plaintiffs were unable to produce factual support sufficient to establish [*13] the existence of a genuine issue of material fact. It is indisputable that KLLM was the “broker” and Roamer Transport was the “carrier” at the time of the accident. It is also indisputable that KLLM was not Harley Boone’s employer at the time of the accident. Thus, Plaintiffs’ first assignment of error is without merit, [Pg 9] and the trial court’s judgment granting the motion for summary judgment on vicarious liability is affirmed.

II. KLLM’s Second Motion for Summary Judgment

In its second motion for summary judgment, KLLM argues that the FAAAA preempts all state-law tort claims, including Plaintiffs’ negligent-hiring claims.

” Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127, 130 (3d Cir. 2018). “‘A party defendant who asserts an affirmative defense bears the burden of proof thereof.'” Fin & Feather, LLC v. Plaquemines Parish Gov’t, 16-0256, p. 9 (La.App. 4 Cir. 9/28/16), 202 So.3d 1028, 1034 (quoting New Amsterdam Cas. Co. v. Culotta, 230 So.2d 339, 341 (La.App. 4 Cir. 1970)). KLLM therefore has the burden of proving the affirmative defense of preemption.

A. FAAAA Preemption

In relevant part, the FAAAA provides:

(c) Motor carriers of property.–

(1) General rule.–Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, [*14] route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

(2) Matters not covered.–Paragraph (1)–

(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles[.]

49 U.S.C. § 14501.

[Pg 10] The issue before us is a matter of first impression in Louisiana’s courts of appeal: whether the FAAAA preempts negligent-hiring claims brought against a freight broker by people who have been injured in motor vehicle accidents. The Ninth Circuit is the only federal appellate court to address this issue. Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020) (holding that the FAAAA would otherwise preempt negligent-hiring claims against brokers, but the safety exception saves these claims from preemption). And while many federal district courts have addressed FAAAA preemption challenges with respect to negligence claims against brokers, the decisions from these courts are divided.¹

B. Does 49 U.S.C. § 14501(c)(1) Preempt Plaintiffs’ Negligent-Hiring Claims?

Section 14501(c)(1) preempts state laws that are “related to a price, route, or service of any . . . motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). Thus, the key question is whether section 14501(c)(1)‘s text—preempting state laws that relate to a broker’s services with respect to transportation—encompass Plaintiffs’ negligent-hiring claims.

[Pg 11] In Miller, 976 F.3d 1016, the plaintiff sustained injuries when his vehicle was struck by a tractor-trailer. The plaintiff sued the freight broker that arranged for the tractor-trailer to transport the goods, alleging that the broker negligently selected an unsafe motor carrier. The Ninth Circuit held that the plaintiff’s negligence claim was related to the broker’s services within the meaning of the FAAAA’s preemption provision. In support of [*16] its holding, the court explained that

Id. at 1024 (footnote omitted).

Turning back to KLLM’s second motion for summary judgment. As a threshold matter, it is indisputable that KLLM is a broker under the FAAAA. KLLM, in support of its second motion, submitted the same documents that were attached to its first motion, including the affidavit of the company’s vice president of logistics. As a broker, KLLM arranged for the transportation of goods by the motor carrier.

Thus, we adopt the legal analysis given in Miller, and we hold that Plaintiffs’ [*17] negligent-hiring claims against KLLM relate to core broker services with respect to transportation and are thus within the scope of section 14501(c)(1). As such, these claims will be preempted unless the safety exception in section 14501(c)(2) applies.

[Pg 12] C. Do Plaintiffs’ Negligent-Hiring Claims Fall Within the Scope of 49 U.S.C. § 14501(c)(2)?

” 49 U.S.C. § 14501(c)(2)(A). The issue herein is twofold: first, whether “the safety regulatory authority of a State” encompasses state law tort claims. And second, whether negligence claims against brokers that stem from motor vehicle accidents are “with respect to motor vehicles.”

As to the first prong, the Ninth Circuit in Miller, 976 F.3d 1016, noted that the phrase “ the safety regulatory authority of a State” is not defined in the FAAAA nor is there anything in the statute’s text which clarifies its scope. “In general, however, courts have construed the safety exception broadly.” Id. at 1026 (citing City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L. Ed. 2d 430 (2002); Cal. Tow Truck Ass’n v. City & County of San Francisco, 807 F.3d 1008 (9th Cir. 2015); and VRC LLC v. City of Dallas, 460 F.3d 607 (5th Cir. 2006)). With this in mind, the Ninth Circuit held that “‘the safety regulatory authority of a State’ encompasses common-law tort claims.” Miller, 976 F.3d at 1026 (quoting 49 U.S.C. § 14501(c)(2)(A)).

The Miller court [*18] explained that in enacting the safety exception, Congress intended to ensure that its preemption over states’ economic authority did not restrict the states’ existing power over safety. “That power,” according to Miller, “includes the ability to regulate safety through common-law tort claims.” Id.

As to the second prong, the Miller court held that vehicles” language in the statute. Id. at 1030. The court explained that “with respect to” is synonymous with “relating to.” Id. at 1026. Thus, the safety exception in section 14501(c)(2) exempts from preemption safety regulations that have a connection with motor vehicles, whether directly or indirectly. Id.²

Once again, this court agrees with the legal analysis and conclusions given in Miller. We find that the safety exception exempts Louisiana’s power to regulate safety through state-law tort claims. We also find that Plaintiffs’ negligent-hiring claims against KLLM arise out of a motor vehicle accident and are therefore “with respect to motor vehicles.”

For these reasons, we hold that Because of our holding, Plaintiffs’ negligent-hiring claims against KLLM are not preempted by section 14501(c)(1) of the FAAAA.

Accordingly, Plaintiffs’ second and third assignments of error have merit, and the trial court’s grant of summary judgment as to preemption is reversed. In the end, even though KLLM established that there is no genuine issue of material fact, it failed to prove that it is entitled to summary judgment as a matter of law.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court granting KLLM’s motion for summary judgment as to Plaintiffs’ vicarious-liability claim.

However, we reverse the trial court’s judgment granting KLLM’s motion for summary judgment as to Plaintiffs’ negligent-hiring claims, and we remand this [Pg 14] matter to the trial court where Plaintiffs will be allowed to proceed with these claims.

The costs of the appeal are split equally between Gabriel LaGrange and Amanda LaGrange, individually and on behalf of their minor children, and KLLM Transport Services LLC d/b/a KLLM Logistics Services.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

End of Document

¹As explained in Bertram v. Progressive Southeastern Ins. Co., 2021 U.S. Dist. LEXIS 131251, 2021 WL 2955740, *2 (W.D. La. 2021):

The first group of courts found no FAAAA preemption of personal injury claims against brokers based on the conclusion that negligent hiring claims are not sufficiently “related to” the services of a [*15] broker. See, e.g., Scott v. Milosevic, 372 F. Supp. 3d 758, 769 (N.D. Iowa 2019); Mann v. C.H. Robinson Worldwide, Inc., 2017 U.S. Dist. LEXIS 117503, 2017 WL 3191516, at *7 (W.D. Va. July 27, 2017). The second group of courts rejected FAAAA preemption of common law negligence claims based on the safety regulatory exception. See, e.g., Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020); Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 512 (N.D. Tex. 2020); Popal v. Reliable Cargo Delivery, Inc., 2021 U.S. Dist. LEXIS 57592, 2021 WL 1100097 (W.D. Tex. Mar. 10, 2021); Grant v. Lowe’s Home Ctrs., LLC, 2021 U.S. Dist. LEXIS 16332, 2021 WL 288372, at *3 (D.S.C. Jan. 28, 2021). Finally, the third group of courts have found that negligence claims against freight brokers are preempted under the FAAAA and do not fall within the safety exception. See, e.g., Gillum v. High Std., LLC, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371 (W.D. Tex. Jan. 27, 2020); Loyd v. Salazar, 416 F. Supp. 3d 1290, 2019 WL 4577108, at *4 (W.D. Okla. Sept. 20, 2019); Creagan v. Wal-Mart Transp., LLC, 354 F. Supp. 3d 808, 812 (N.D. Ohio 2018).

² Under the FAAAA, a “motor vehicle” is defined in relevant part as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation.” 49 U.S.C. § 13102(16).

Sanchez v. Robert Heath Trucking

Court of Appeals of Kansas

March 18, 2022, Opinion Filed

No. 123,909

Reporter

2022 Kan. App. Unpub. LEXIS 168 *; 2022 WL 817513

GLORIA SANCHEZ, Individually and as Special Administrator of the Estate of Jose Montes, and as Natural Mother of Jose Montes, and JOSE MONTES SR., Individually and as Natural Father of Jose Montes, Appellants, v. ROBERT HEATH TRUCKING, INC. and DON D. JACKSON, Appellees.

Notice: NOT DESIGNATED FOR PUBLICATION.

PLEASE CONSULT THE KANSAS RULES FOR CITATION OF UNPUBLISHED OPINIONS.

Prior History: [*1] Appeal from Lyon District Court; W. LEE FOWLER, judge.

Disposition: Affirmed.

Core Terms

truck driver, district court, summary judgment, pre-impact, conscious, distress, collision, pain and suffering, speculation, injuries, semi, no evidence, proximate, driver’s, truck, grant summary judgment, emotional distress, negligence claim, interstate, correctly

Counsel: Michael W. Blanton, of Gerash Steiner P.C., of Evergreen, Colorado, and Stuart N. Symmonds, of Symmonds & Symmonds, LLC, of Emporia, for appellant Gloria Sanchez.

Phillip L. Turner, of Turner Law Office, of Topeka, and Stanley R. Ausemus, of Stanley R. Ausemus Chartered, of Emporia, for appellant/cross-appellant Jose Montes Sr.

Paul J. Skolaut and J. Philip Davidson, of Hinkle Law Firm LLC, of Wichita, for appellees/cross-appellees.

Judges: Before WARNER, P.J., CLINE, J., and RACHEL L. PICKERING, District Judge, assigned.

Opinion

MEMORANDUM OPINION

Per Curiam: Appellants are the parents of Jose A. Montes, who was killed in a motor vehicle accident while walking on Interstate 35 highway (I-35) near Emporia, Kansas. They sued both the truck driver and his employer, asserting various negligence claims. The district court first granted partial summary judgment against the parents on their damages claims for Montes’ pre-impact mental distress and conscious pain and suffering and their claims for negligent supervision and entrustment. The court later entered summary judgment on the parents’ remaining negligence claim after finding Montes was the proximate [*2] cause of the accident. The court found Montes was in the middle of I-35, with both THC and LSD in his system, and the parents did not establish the truck driver could have reasonably avoided the accident. The parents appeal both decisions. We find the district court appropriately granted summary judgment and affirm.

The Accident

In July 2018, around 2 a.m., Montes was struck by a semi tractor-trailer while walking on I-35 near Emporia, Kansas. The semi, which weighed about 77,000 pounds, was traveling around 70 mph at the time of the accident. Montes was without phone, shirt, pants, or shoes when he was struck.

After the accident, the truck driver immediately called 911. Law enforcement arrived within three minutes. The first officer who arrived at the scene found Montes motionless in the middle of the outside lane of the interstate, showing no signs of life. Paramedics observed no vital signs and pronounced Montes dead at the scene. None of the first responders reported any sign that Montes survived the initial collision with the semi, nor did the autopsy report reveal any.

Dr. Altaf Hossain, who performed the autopsy, did not find, within a reasonable degree of medical probability or [*3] certainty, any evidence of conscious pain and suffering in his examination of Montes. Dr. Hossain believed Montes lost consciousness and died at the same time.

The toxicology analysis identified a concentration of 6.4 ng/ml of THC and 0.67 ng/ml of LSD in Montes’ system. The parties agree the concentration of THC and LSD suggests Montes was impaired at the time of his death.

The truck driver spoke with law enforcement right after the accident. He said he was traveling in the outside lane and looked behind him because he thought he would be passed by another semi. When he looked back to the road, he saw Montes standing in the middle of his lane facing him. He “‘yanked’” the wheel towards the inside lane to avoid a collision. The truck driver said Montes moved in the same direction (still facing him), and they collided close to the middle of both lanes. The truck driver felt Montes was trying to intentionally get hit.

The record reveals no explanation for why Montes was on the interstate in the middle of the night, partially naked. His parents contend he attended a party with some friends earlier that evening but left the party alone. Shortly before the collision, Montes sent a Snapchat [*4] photo of himself with blood on his head and said he had been jumped.

The Resulting Litigation

The parents sued both the truck driver and his employer for negligence. They contend the truck driver’s version of events was questionable because he had a criminal record which included crimes of dishonesty. They also contend the record showed that in the past the truck driver texted and watched safety videos on his phone while driving, although they admit there was no evidence to suggest he was texting or watching videos at the time of the accident.

The parents claim if the truck driver was paying attention while driving, he would have seen Montes earlier which would have allowed him more time and distance to try to avoid a collision. They question the truck driver’s assertion that he looked behind him before the accident because surveillance video shows the semi in the rear was more than 900 feet away. They claim it is “unlikely that a vehicle positioned more than 900 feet to the rear would draw the attention of a driver in such a way.” The parents also contend the truck driver stopped the semi without braking hard.

The truck driver and his employer moved for partial summary judgment seeking [*5] to narrow the issues for trial. They moved to exclude the parents’ claim for survival damages as well as their claims for negligent entrustment and negligent supervision for lack of evidence. The district court agreed, finding no evidence suggested Montes suffered any pre-impact distress, any pre-impact injury caused by such distress, or that he consciously experienced pain and suffering. It also noted that in Kansas, a plaintiff can only recover for negligent infliction of emotional distress if the distress independently causes a physical injury. Last, it found no evidence suggested the employer negligently supervised or entrusted the truck driver. The district court granted summary judgment on all three claims.

The truck driver and his employer then successfully moved for summary judgment on the remaining negligence claim. They contended the evidence failed to establish the truck driver acted negligently or that his actions proximately caused the accident. The parents claimed in response that the truck driver did not honk his horn or brake before the collision and that his explanation of the accident made little sense.

The district court found the parents established no negligence [*6] by the truck driver that would have contributed to or caused the accident. Instead, the court found Montes’ own actions—being in the middle of the interstate, in the middle of the night—were the proximate or legal cause of the accident.

The parents allege the district court erred in dismissing their claim for survival damages and their claim for negligence of the truck driver. They do not appeal the dismissal of their negligent entrustment and negligent supervision claims. Montes’ father also appeals the denial of two motions in limine, but we need not address these issues since we are affirming the dismissal of the case.

Standard of Review for Summary Judgment

Because we are reviewing the same evidence and are in the same position as the district court when it decided the summary judgment motions, we apply the same standards on appeal that the district court applied:

“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and supporting affidavits show that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. The district court must resolve all facts and reasonable inferences [*7] drawn from the evidence in favor of the party against whom the ruling [is] sought. When opposing summary judgment, a party must produce evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issue in the case.” GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 981-82,453 P.3d 304 (2019).

Claim for Pre-Impact Distress

The parents sought damages from the truck driver and his employer for Montes’ “pre-impact fright, mental anguish and fear for his life.” They acknowledge that Kansas courts have “not yet directly addressed whether Kansas recognizes a claim for pre-impact emotional distress.” They argue since the Kansas Supreme Court has not directly rejected such a claim, it is open to considering it. But we need not decide whether Kansas recognizes such a claim because, like in St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043 (1989), the parents failed to establish Montes actually suffered any pre-impact distress.

St. Clair involved a fatal automobile collision in which the decedent’s estate sought to recover for any pre-impact emotional distress the decedent might have suffered. The Kansas Supreme Court found it unnecessary to determine whether Kansas would recognize such a claim since it found insufficient evidence to [*8] support it. The only evidence presented was 60 feet of skid marks made by the decedent. The Supreme Court found our court correctly concluded that while the skid marks suggested the decedent “‘may have been aware of a possible collision momentarily prior to impact, that does not support a finding of emotional distress.’” 245 Kan. at 424 (quoting St. Clair v. Denny, No. 61,949, unpublished opinion filed January 27, 1989 [Kan. App.]).

Similarly, the district court correctly noted the parents presented no evidence to support a finding that Montes experienced any pre-impact distress. The parents speculate Montes suffered pre-impact distress because Dr. Hossain admitted in his deposition that it was a “possibility” Montes put his hands out before impacting the pavement and after impact with the truck. But mere speculation is insufficient to avoid summary judgment. Kincaid v. Dess, 48 Kan. App. 2d 640, 656, 298 P.3d 358 (2013). And like in St. Clair, such speculation only suggests Montes was aware of the impending impact—it does not support a finding that he experienced emotional distress because of the impending impact. Further, Dr. Hossain specifically noted he could not say Montes put his hands out in a defensive way, anticipating the impact.

The speculative possibility [*9] on which the parents rely in support of this claim is even less indicative of an awareness of impending impact than the skid marks in St. Clair. The district court correctly granted summary judgment on this claim.

Conscious Pain and Suffering

The parents also sought damages for Montes’ “conscious pain and suffering from the time of injury until his death.” They claim Dr. Hossain admitted in his deposition that some of Montes’ injuries, such as those on the palms of his hands, could have been defensive wounds from trying to catch himself from hitting the pavement. They point out “Dr. Hossain agreed that Mr. Montes could have been conscious for a period of multiple seconds between the time of the initial impact with the tractor-trailer and the subsequent impact with the pavement.”

Again, the parents overstate Dr. Hossain’s testimony. Dr. Hossain testified Montes suffered brush abrasions, revealing he was dragged on the concrete at or after impact. When the parents’ counsel asked, “Doctor, if someone’s being dragged or has their arms out in front of them as they’re going forward, would that be a defensive injury?” Dr. Hossain responded that Montes’ injuries did not suggest that was what Montes was [*10] doing. And when asked if the location of Montes’ brush abrasions was significant, Dr. Hossain said, “Yes, it is significant. It tells me he was dragged on the concrete or any other floor or any other place.” But he clarified again that he could not say from Montes’ injuries that Montes had his arms in front of him defensively. Dr. Hossain said the parents would need other evidence to prove that happened, because he could not say it did, based on the medical evidence.

Dr. Hossain’s testimony about the injuries on Montes’ palms was similar. He testified those injuries could have occurred from Montes hitting the ground; he could not say they occurred because Montes put his hands down before impact. Dr. Hossain also testified that he did not find, within any degree of medical probability or certainty, any evidence of conscious pain and suffering. He explained, “[I]n general, when you have multiple fracture of the bone and injury to the brain, you will die quickly or immediately. Is it one second, ten seconds, 20 seconds, I cannot answer that.”

Acknowledging the lack of direct evidence, the parents attempt to rely on our obligation to resolve all reasonable inferences drawn from the evidence [*11] in their favor. But Kansas courts have made it clear that “‘an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’” Deters v. Nemaha-Marshall Electric Cooperative Ass’n, 56 Kan. App. 2d 1170, 1185, 443 P.3d 1086 (2019) (quoting Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, 289, 138 P.3d 388 [2006]). The parents’ evidence of conscious pain and suffering, even when examined in a light most favorable to them, amounts to no more than mere conjecture or possibility. There is no real evidence Montes was conscious enough to experience any pain or suffering after impact with the semi. At best, Dr. Hossain admitted the parents’ posited scenario was one of a wide range of possible scenarios. But he also pointed out the medical evidence did not support it. And he said it was just as easily possible that Montes lost consciousness and died without suffering any conscious distress. The district court correctly granted summary judgment on this claim as well.

Negligence Claim

Last, the parents argue the district court erred when it found the truck driver was not legally liable for the accident because Montes was in the middle of the road when it occurred—essentially finding Montes was the “proximate cause” for the accident.

Proximate cause is a legal term, meaning “the cause that ‘in natural [*12] and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.’” Burnette v. Eubanks, 308 Kan. 838, 842, 425 P.3d 343 (2018) (quoting Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 [2006]). It has two components: causation in fact and legal causation. Burnette, 308 Kan. at 846. Cause in fact requires a plaintiff to prove a cause-and-effect relationship between the defendant’s conduct or actions and the plaintiff’s loss. The plaintiff must show that it was “‘more likely than not, but for defendant’s conduct, the plaintiff’s injuries would not have occurred.’” 308 Kan. at 846 (quoting Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 [2015]). Legal causation requires the plaintiff to show that it was “‘foreseeable that the defendant’s conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes was foreseeable.’” Burnette, 308 Kan. at 846 (quoting Droudhard-Nordhus, 301 Kan. at 623).

Generally, proximate cause is a factual question resolved by the trier of fact (normally, a jury). But it becomes a question of law when all the evidence on which a party relies is undisputed and only one reasonable inference can be made. Burnette, 308 Kan. at 846.

The parents rely heavily on testimony and a report from their expert witness, Steven Christofferson, who said the truck driver should [*13] have seen Montes earlier and, if he had, he would have been able to slow down and avoid the collision. This theory is based upon Christofferson’s description of the accident scene: “[T]he flat/straight approach of the IH-35 roadway in the area, the illumination provided by [the truck driver’s] headlights[,] the streetlighting in the area, and the clear and unfettered distance of nearly 1/4 mile between his truck and the one in front of him.”

The problem with this theory is it is simply too speculative to establish a genuine issue of material fact because it ignores crucial information—the actions of the two actors involved. There is no evidence of anything the truck driver did to cause the accident. And there is no conclusive evidence of anything he could have done to avoid it. As the district court noted, Montes was “in the middle of the highway, in the middle of the night.” While the parents argue the truck driver could have honked his horn or tried to swerve, the district court pointed out they failed to establish either of these actions would have made a difference.

The truck driver also correctly points out there is no evidence about the time he had to perceive and react to Montes. [*14] Neither Christofferson nor anyone else (if you discount the truck driver’s version of events, as the parents ask us to do) have any evidence as to the position of Montes’ body at the point he was first able to be seen on the interstate or at any time before impact. This evidence is crucial to the reasonableness of the inferences the parents asked the district court (and us) to draw.

While the parents are concerned the district court’s decision gives carte blanche to drivers to run over pedestrians with impunity, this is a strained interpretation. The district court simply and appropriately found the parents failed to provide sufficient evidence that the truck driver created a risk of harm to Montes or could have done anything to avoid Montes’ injuries. Under the circumstances, we agree. As with the survival damages claims, we find the district court properly granted summary judgment on the negligence claim.

Conclusion

Admittedly, summary judgment is uncommon in negligence actions because they usually involve very fact intensive situations. And under our justice system, judges decide the legal disputes and juries decide the factual ones. But the parents did not present a genuine factual [*15] dispute for a jury to decide. Instead, they offer mere speculation and conjecture about what Montes possibly may have felt and what the truck driver possibly may have done. While we may draw inferences from the facts (which we must draw in the parents’ favor), those inferences must have sufficient factual support to be reasonable. Here, the inferences the parents ask us to draw are unreasonable because they lack sufficient factual support.

Many courts (including our Kansas Supreme Court) have repeated the United States Supreme Court’s observation that “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). We find that is exactly what the district court did here and therefore we affirm.

Affirmed.

End of Document