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Kates v. CSAA General Insurance Co.

United States District Court, D. Kansas

July 3, 2019

JAMES KATES, Plaintiff,
v.
CSAA GENERAL INSURANCE COMPANY, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Defendant's motion for summary judgment. (Doc. 35.) The motion is fully briefed and is ripe for review. (Docs. 36, 37.) For the reasons stated herein, the motion for summary judgment (Doc. 35) is DENIED.[1]

         I. Facts

         In keeping with the standards governing motions for summary judgment, the following statement of facts views the evidence, and all reasonable inferences therefrom, in the light most favorable to Plaintiff, the non-moving party.

         On December 27, 2017, Plaintiff was the front-seat passenger in a Ford Fusion driven by his wife, Lawana Martin (“Martin”), when they were involved in an automobile accident at the intersection of 47th Street South and Washington Street in Wichita, Kansas. Martin was traveling westbound on 47th Street South and was making a left turn onto southbound Washington. Roberto Velasco-Lopez (“Velasco”) was traveling eastbound on 47th Street in a Volkswagen Jetta. Martin turned left in front of Velasco's vehicle, which struck the passenger side of Martin's vehicle. The traffic light for Martin's left turn was a solid green signal. Under Kansas law, this signal required Martin to yield to oncoming traffic before entering the intersection.

         The circumstances leading to the accident were as follows. As Martin approached the intersection to turn, she was traveling about 15 or 20 miles per hour. (Doc. 35-1 at 34.) She had a clear view; there was no traffic in front of her. (Id.) When she began to turn, she saw Velasco's Jetta approaching. (Id.) She had not seen the vehicle up to that point. (Id. at 35.)

         Plaintiff, in the passenger seat, could not see Velasco's vehicle before Martin began her turn.[2] As Martin was turning, Plaintiff saw Velasco's vehicle approaching and hollered, “Hit it!” (Doc. 35-1 at 42.) He meant for Martin to step on the accelerator to get clear of Velasco's car. Plaintiff saw Velasco's vehicle was traveling at a high rate of speed. He estimates the Jetta was going sixty miles per hour. (Doc. 35-1 at 28.) The next thing Plaintiff remembered after that was that he was in an ambulance.[3] (Id. at 23, 28.)

         Martin does not know how fast Velasco's vehicle was going, but thinks it was going faster than the posted speed limit of 40 miles per hour. (Doc. 35-1 at 38.)

         Makenzie Tamrakar was working as a server at an IHOP south of the intersection on the date of the accident. She was waiting for customers to arrive and was looking out a window. (Doc. 35-1 at 49.) She “saw a person going eastbound, I could see them speeding.” (Doc. 35-1 at 50.) The car she saw speeding was passing another vehicle that was also headed east. She estimates the speeding car - which a jury could reasonably conclude was Velasco's - was going 50 or 60 miles per hour. (Doc. 35-1 at 62-63.)[4] Tamrakar had worked at IHOP for about eight months and had seen thousands of vehicles traveling eastbound on this portion of 47th Street South, where the speed limit was 40 miles per hour. (Doc. 35-1 at 65.) Tamrakar saw a vehicle “turning in” and saw the accident involving the speeding car. (Id. at 50.)

         There were no pre-impact skid marks from either vehicle. (Doc. 35-1 at 70.) The right rear wheel of the Fusion was knocked off from the impact. (Id.) Both vehicles had to be towed from the scene. (Id.)

         Plaintiff asserts eight specific contentions of negligence against Velasco in the Pretrial Order: a. Driving at a speed in excess of the posted speed limit; b. Inattentive operation of a motor vehicle; c. Failure to maintain a proper lookout; d. Failure to drive with reasonable care; e. Failure to give warning; f. Failure to drive at a safe speed; g. Failure to maintain control of a motor vehicle; and h. Failure to take evasive action. (Doc. 34 at 3.)

         None of Plaintiff's witnesses have any special expertise in visual estimation of vehicle speed or in accident reconstruction. Defendant cites the opinion of Ron Blevins, an accident reconstructionist retained by Defendant, who opines that there is no scientifically reliable method available of calculating the speed of Velasco's vehicle. (Doc. 35-1 at 74.)

         II. Summary Judgment Standards

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Sotunde v. Safeway, Inc., 716 Fed.Appx. 758, 761 (10th Cir. 2017). The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmovant must then bring forth specific facts ...


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