Terrell v. Cent. Wash. Asphalt, Inc.
| Decision Date | 20 July 2015 |
| Docket Number | Case No. 2:11-cv-00142-APG-VCF |
| Parties | WILLIAM TERRELL, Guardian Ad Litem for QUENTIN SLAGOWSKI, a minor, ANIKA SLAGOWSKI, a minor, and ROWAN SLAGOWSKI, Plaintiffs, v. CENTRAL WASHINGTON ASPHALT, INC.; DONALD HANNON, JAMES WENTLAND, and JERRY GOLDSMITH, Defendants. AND ALL RELATED MATTERS. |
| Court | U.S. District Court — District of Nevada |
(Dkt. #386, #418)
This case arises out of a multi-vehicle accident that resulted in the death of Jon Michael Slagowski and injury to others. Third party defendant Mitchell Zemke previously moved for summary judgment on defendants/third party plaintiffs' contribution and indemnity claims against him. I denied that motion to allow the parties to depose two of the drivers alleged to have caused the accident. (Dkt. #323.)
Zemke renews his motion for summary judgment, contending there is no evidence he was negligent or that his negligence contributed to the accident. Rather, he contends all evidence shows defendants/third party plaintiffs Central Washington Asphalt, Inc., Donald Hannon, James Wentland, and Jerry Goldsmith (the "CW defendants") caused the accident. The CW defendants respond that there is evidence Zemke was speeding and not keeping a proper lookout because he did not notice headlights in his lane until just moments before the accident. The CW defendants also move for leave to file a supplemental opposition based on the deposition testimony of expert witness John Howell, who was deposed after the CW defendants filed their opposition to Zemke's renewed summary judgment motion.
This case arises out of an accident that occurred on a two-lane highway in Nevada. (Dkt. #386-7 at 6.) The speed limit for that stretch of highway is 70 miles-per-hour. (Dkt. #391-1 at 50.) The road is straight and fairly level, although there is a curve approximately 2.4 miles north of the accident site. (Id. at 50-51, 56.) It was dark at the time of the accident. (Dkt. #386-8 at 4.) Accident reconstruction expert John Howell opines that "[i]n this situation[,] with the roadway being straight and no obstructions of visibility[,] the human eye should be able to distinguish two oncoming illuminated headlights at a distance of 3.26 miles." (Dkt. #391-1 at 59; see also id. at 51 () Another accident reconstruction expert, Thomas Shelton, opined that after coming out of the curve, oncoming headlights would have been visible up to 3,600 feet away. (Id. at 71.)
Defendant Donald Hannon was driving a truck in the southbound lane. (Dkt. #386-7 at 6.) He was behind two other vehicles: a truck driven by defendant James Wentland and a white SUV driven by plaintiff Doreen Law. (Id. at 6-7; Dkt. #391-1 at 107.) Hannon and Wentland both work for defendant Central Washington Asphalt, Inc. and were driving company trucks at the time. (Dkt. #386-7 at 6-7; Dkt. #391-1 at 11.) Wentland, Law, and Hannon drove southbound in that order until they came upon a truck being driven by third party defendant Chip Fenton. (Dkt. #386-7 at 7.) Wentland moved into the northbound lane to pass Fenton. (Id.) After Wentland completed his pass, he contacted Hannon over CB radio and told him it was clear for him to do so as well. (Id.)
Hannon pulled into the northbound lane and observed four vehicles in the southbound lane: the Law SUV, the Fenton truck, and two flatbed trucks. (Id.) Hannon overtook the Law vehicle and started passing the Fenton truck. (Id.) Fenton states that as Hannon was starting to pass him, he saw oncoming headlights in the northbound lane, so he told Hannon over the CB that it was not clear to pass. (Dkt. #386-4 at 3.) According to Hannon, Fenton sped up to preventHannon from passing him and told Hannon over the CB that he was not going to let Hannon back into the southbound lane. (Dkt. #386-7 at 5, 7; Dkt. #391-1 at 17.) Hannon states Fenton narrowed the distance between Fenton's truck and the flatbed truck to less than a car length, and thus Hannon had no room to get back into the southbound lane. (Dkt. #386-7 at 7.)
According to Hannon, it was about the time that Fenton refused to let him back into the southbound lane that Hannon noticed oncoming headlights in the northbound lane. (Id.) Hannon states he responded over the CB, "I'm in trouble out here," and requested Fenton let him back into the southbound lane, but Fenton did not respond or slow down. (Dkt. #391-1 at 18; Dkt. #386-7 at 7.) Fenton denies that Hannon requested he slow down or that he refused to allow Hannon back into the southbound lane. (Dkt. #386-4 at 5.) According to another witness, Hannon could have gotten back into the southbound lane. (Dkt. #386-3 at 3.)
Hannon continued driving southbound in the northbound lane, accelerated beyond the Fenton truck and the first flatbed truck, and then reentered the southbound lane between the two flatbed trucks. (Dkt. #386-4 at 4; Dkt. #386-7 at 7.) Hannon states that after he reentered the southbound lane, he saw a vehicle's headlights go past him. (Dkt. #386-7 at 7.) That vehicle was driven by third party defendant Mitchell Zemke. (Dkt. #386-2 at 5-6.) Hannon estimates that when he returned to the southbound lane, Zemke's vehicle was still approximately 500 yards in front of him. (Dkt. #391-1 at 21-22.) Hannon also estimates he had been in the northbound lane for one to two minutes. (Id. at 27-28; see also id. at 58-59 ().) Although Hannon contends he reentered the southbound lane before Zemke passed by, other witnesses state that Hannon was still in the northbound lane when Zemke swerved off the road to avoid a head-on collision with Hannon's truck. (Dkt. #386-3 at 3; Dkt. #386-4 at 5-7.)
Just prior to the accident, Zemke was traveling 75 miles-per-hour. (Dkt. #391-1 at 76.) Zemke testified that he saw headlights from oncoming traffic traveling in the southbound lane, and he thought there must be a curve in the road because he also saw what appeared to be headlights in his own lane. (Dkt. #386-2 at 6, 8.) When he realized the headlights in fact were inhis own lane, he believed he had only "a split second to dodge or take a head-on collision." (Id. at 7.) His wife said, "There's headlights in our lane," and then Zemke said, "Oh, shit." (Id. at 7-8.) Zemke swerved off the road to the right and then steered back to the left. (Id.; Dkt. #391-1 at 55.) Zemke's car spun across the northbound travel lane and into the southbound travel lane, striking the rear of Fenton's vehicle. (Dkt. #386-2 at 7-8.) Zemke's car continued its spin and struck the Law vehicle. (Dkt. #391-1 at 55-56, 83-84.) Zemke's car was then struck by another vehicle that had been behind Zemke. (Id.) The accident caused severe injuries to several people in the various vehicles and resulted in the death of Jon Slagowski, who was a passenger in the Zemke vehicle. (Dkt. #143-1 at 9, 25, 30.)
After the collision, Hannon continued southbound and did not return to the scene of the accident. (Dkt. #386-3 at 3.) Hannon states he was unaware an accident had occurred. (Dkt. #386-5 at 6-7; Dkt. #386-7 at 8.) Wentland also denies he knew anything about the accident.1 (Dkt. #386-6 at 3; Dkt. #386-7 at 8.)
Following the accident, the injured parties filed three separate lawsuits against the CW defendants. Those lawsuits were consolidated into this action. The CW defendants in turn filed a third party complaint against Zemke, Law, Fenton, and Fenton Trucking, LLC for contribution and indemnity.
Zemke now moves for summary judgment, arguing that neither of the parties' versions of the accident support a finding that he was at fault. He argues that taking Hannon's version of the facts as true, Hannon did not cause the accident, and if Hannon is not liable, then Zemke cannot be liable to the CW defendants for contribution or indemnity. He then argues that if the other witnesses' versions of the accident are taken as true, Hannon caused the accident and there is no evidence Zemke caused or contributed to the cause of the accident.
The CW defendants respond that even though Hannon denies he caused the accident, they still may bring contribution and indemnity claims because a jury may not accept Hannon'sversion. The CW defendants also argue that there is testimony and evidence that Zemke was negligent because (1) he was speeding and (2) he did not notice the headlights in his lane until just before he swerved, despite evidence that Hannon was in the northbound lane for over a minute, the road was straight, and oncoming headlights should have been visible from a considerable distance.
The CW defendants also move for leave to file a supplemental opposition. The CW defendants seek to add argument and evidence based on the deposition of accident reconstruction expert Howell, who was deposed after the CW defendants filed their opposition. Zemke opposes, arguing Howell did not opine in any of his reports or at his deposition that Zemke caused or contributed to the cause of the accident.
The CW defendants move to supplement their opposition with the testimony of accident reconstruction expert Howell. They contend Howell was not deposed by the time they filed their opposition to Zemke's renewed summary judgment motion, and they therefore should be given 14 days to file a supplemental opposition based on his deposition testimony.
The CW defendants filed their opposition to Zemke's summary judgment motion on January 5, 2015. (Dkt. #391.) Howell was deposed on January 26, 2015. (Dkt. #420 at 7.) The CW defendants waited until April 2, 2015 to move for leave to file a supplement. Despite waiting over two months after the Howell...
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