Baumann v. Zhukov

• Decision Date: 01 October 2015
• Docket Number: No. 14–2981.,14–2981.
• Citation: 802 F.3d 950
• Parties: Bradley B. BAUMANN, et al., individually and as co-special administrators, Plaintiffs–Appellants v. Vladimir ZHUKOV, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

802 F.3d 950

Bradley B. BAUMANN, et al., individually and as co-special administrators, Plaintiffs–Appellants

v.Vladimir ZHUKOV, et al., Defendants–Appellees.

No. 14–2981.

United States Court of Appeals, Eighth Circuit.

Submitted June 9, 2015.

Filed Oct. 1, 2015.

James H. Chalat, argued and on the brief, Denver, CO, for Appellant.

Michael B. Langford, argued, R. Jay Taylor, Jr., on the brief, Indianapolis, IN, for Appellee Long Haul Trucking, Inc.

Krista M. Carlson, argued, Stephen L. Ahl, Erin C. Duggan Pemberton, on the brief, Lincoln, NE, for Appellees Vladimir Zhukov, Swift–Truck Lines, Ltd., and MTR Express, Inc.

Before LOKEN, BYE, and KELLY, Circuit Judges.

Opinion

LOKEN, Circuit Judge.

A deadly crash involving truck drivers Vladimir Zhukov and Keith Johnson rendered westbound Interstate 80 impassible near Potter, Nebraska, in the early hours of September 9, 2012. Approximately forty minutes later, Christopher and Diana Schmidt and their two children were stopped at the end of the nearly mile-long traffic jam when a truck driven by Josef Slezak smashed into their vehicles, tragically killing them and Diana's unborn child. The administrators of the Schmidts' estates sued, among others, Zhukov, Zhukov's equipment provider, and Zhukov's and Johnson's employers, alleging that the negligence of Zhukov and Johnson in causing the first crash proximately caused the second. Plaintiffs appeal the district court's¹ grant of summary judgment for these defendants. Reviewing the grant of summary judgment de novo, we agree with the district court that the Schmidts' injuries were not proximately caused by the negligence of Zhukov or Johnson because the unanticipated negligence of Slezak was an “efficient intervening cause.” Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153, 164 (2014). Accordingly, we affirm.

I. Background

We state the facts in the light most favorable to plaintiffs, the nonmoving parties. Shortly before 4:20 a.m. on September 9, 2012, Zhukov was driving a tractor-trailer rig westbound on Interstate 80 near Potter, Nebraska, when he struck an object in the road. His vehicle lost air-brake pressure, causing its spring-powered parking brakes to apply automatically. Zhukov stopped with the full rig, or at least a large part of the trailer, in the right-hand lane. Two experts opined that he could have pulled completely onto the shoulder before stopping. Zhukov turned on his hazard lights and placed warning reflectors behind the rig, but left them much closer to the trailer than federal regulations require and in a formation that guided traffic towards the right shoulder rather than the unobstructed left lane. See 49 C.F.R. § 392.22(b). At 4:34 a.m., a semi-tractor-trailer driven by Keith Johnson crashed into the rear of Zhukov's trailer. Johnson did not slow down or attempt to change lanes before hitting Zhukov. The crash killed Johnson, caused a fire, and scattered debris, resulting in a complete blockage of both westbound lanes.

A sheriff's deputy arrived on the scene of the accident at 4:40 a.m.; the first firefighting unit arrived at 4:49 a.m. A traffic jam 0.86 miles long formed behind the crash. The Schmidts, traveling westbound in two cars, safely stopped at the end of the long line. Vehicles in the lineup—including both Schmidt cars and the truck immediately in front of them—activated hazard lights, and police, fire, and ambulance vehicles had overhead lights flashing. Nevertheless, at 5:14 a.m., a semi-tractor-trailer driven by Josef Slezak smashed into Christopher Schmidt's car at approximately seventy-five miles per hour. The collision propelled Christopher's car into Diana Schmidt's car, propelling it under the semi-trailer stopped in front of the Schmidts. All four vehicles caught fire. The entire Schmidt family perished.

The weather on September 9 was clear, with no precipitation. Plaintiffs' First Amended Complaint alleged that, at the time of the second accident, the “line of traffic stopped due to the Zhukov/Johnson collision was visible for no less than one mile to approaching traffic, and users of citizens band radios, both westbound and eastbound, were warning oncoming drivers that traffic had come to a stop ahead.”² A fire truck, with lights and siren on, passed the end of the traffic jam on its way to the first crash scene less than a minute before the second crash. Despite these multiple warning signs, Nebraska State Trooper and accident reconstructionist Travis Wallace determined that Slezak did not brake or attempt to avoid the Schmidts' cars before crashing into them. Slezak had been driving for at least fourteen hours at the time of the crash—three more than is permitted by federal regulation. See 49 C.F.R. § 395.3(a)(3)(i). Wallace concluded Slezak was fatigued, inattentive, and unable to operate a motor vehicle safely.

The administrator plaintiffs sued Zhukov, the companies for which he was driving, MTR Express and Swift Truck Lines, and Johnson's employer, Long Haul Trucking, alleging theories of direct and vicarious liability. Plaintiffs claimed that the negligence of Zhukov and Johnson caused the first collision, resulting in a traffic stoppage that created conditions which reasonably and foreseeably led to the Schmidts' deaths from the second collision. The district court granted defendants' motion for summary judgment, concluding that plaintiffs could not satisfy the element of proximate causation because “Slezak's negligence was an efficient intervening cause, which severed any causal connection between Defendants' conduct and the injuries sustained by Plaintiffs.” Plaintiffs appeal, arguing that Slezak's negligence was not unforeseeable as a matter of law and therefore a jury should determine whether defendants' negligence proximately caused the Schmidts' injuries. After plaintiffs settled their separate claims against owner-operator Slezak and the trucking company that engaged him, final judgment was entered, giving us appellate jurisdiction under 28 U.S.C. § 1291.

II. Discussion

The law of Nebraska, the forum state, governs this diversity action. Heatherly v. Alexander, 421 F.3d 638, 641 (8th Cir.2005). “In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.” A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907, 913 (2010). Proximate cause “consists of three elements: that (1) but for the negligence, the injury would not have occurred, (2) the injury is the natural and probable result of the negligence, and (3) there is no efficient intervening cause.” Heatherly, 421 F.3d at 641–42. “An efficient intervening cause is new and independent conduct of a third person, which itself is a proximate cause of the injury in question and breaks the causal connection between the original conduct and the injury.” Latzel, 846 N.W.2d at 164. “The causal connection is severed when (1) the negligent actions of a third party intervene, (2) the third party had full control of the situation, (3) the third party's negligence could not have been anticipated by the defendant, and (4) the third party's negligence directly resulted in injury to the plaintiff.” Id. (quotation omitted).

Only the third element of an efficient intervening cause is disputed here—whether the intervening negligence of Slezak in colliding with the stopped Schmidt vehicles was a reasonably foreseeable consequence of the negligent acts of Zhukov and Johnson that caused the first accident. Foreseeability is ordinarily a question for the trier of fact, but where reasonable minds could not differ, “foreseeability determinations can properly be made as a matter of law.” Id. at 165.

“[W]hen one engaged in the lawful use of the highway causes an obstruction to be placed upon it in such a manner as to be dangerous to traffic, he must use ordinary care to prevent injury to others where he knows that said obstruction is calculated to do injury to travelers.” Brown v. Neb. Pub. Power Dist., 209 Neb. 61, 306 N.W.2d 167, 170 (1981) (quotation omitted). In determining proximate cause, “[i]t is sufficient if what occurs is one of the kind of consequences which might reasonably be foreseen.” Id. at 171 (quotation omitted). Pointing to statistical analysis and expert testimony in the summary judgment record, plaintiffs argue that the Schmidts' deaths were the kind of consequences defendants could (and did) reasonably foresee because “traffic flow interruptions including prior collisions [are] a leading cause of serious/fatal [highway] crashes.”

We have found no Nebraska decision addressing whether a third party's intervening negligence that caused a second collision was a reasonably foreseeable consequence of the negligence that caused an initial collision resulting in a traffic stoppage. In a number of cases, however, the Supreme Court of Nebraska has held as a matter of law that the negligence of a landowner or a government agency that created a hazardous road condition was not the proximate cause of a highway accident because a driver's negligence was an efficient intervening cause that severed any causal connection. In Latzel, the court held that landowners' negligence in planting corn that obstructed drivers' views of an unmarked intersection was not the proximate cause of a subsequent collision because the landowners—

were not bound to anticipate that drivers would disregard the obvious danger of traversing a visually obstructed unmarked intersection without being able to see what they needed to see to do so safely. Reasonable minds cannot differ that the drivers' actions could not have been anticipated by the landowners and that as a matter of law, the drivers' negligence constituted an efficient intervening cause of the collision.

846 N.W.2d at 167. Similarly, in Malolepszy v. State, 273 Neb. 313, 729 N.W.2d 669, 677 (2007), the Court held that the State's allegedly negligent design and management of a construction site did...