Oakley v. A.L. Logistics, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

STEPHANIE OAKLEY, as )

administrator of the Estate of Wyman )

Lucicus, deceased, )

)

Plaintiff, )

)

v. ) Case No. 2:20-cv-85-RAH

) [WO]

A.L. LOGISTICS, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

In this standing vehicle case, Plaintiff’s son, the decedent, died during the

early morning hours of July 20, 2017, when his vehicle drifted over the fog line on

an interstate and struck a broken-down tractor-trailer that was parked on the shoulder

within inches of the fog line. Stephanie Oakley, as administrator of the Estate of

Wyman Lucicus (the Estate) filed suit under the Alabama Wrongful Death Act, Ala.

Code § 6-5-410, asserting negligence and wantonness. The Defendant, A.L.

Logistics, LLC (ALL), has moved for summary judgment. The motion is fully

briefed and ripe for review. It will be granted in part.

II. JURISDICTION AND VENUE

The Court exercises subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1332. The parties do not contest personal jurisdiction or venue, and the

record supports both.

Hl. BACKGROUND

On July 19, 2017, Ricardo Diaz was driving his tractor-trailer (rig), heading

south on I-65 in Butler County, Alabama, when it broke down on the interstate. Diaz

parked the rig on the shoulder on top of the rumble strip within inches of the fog line

and therefore within inches of passing traffic. (Doc. 64-6 at 4, 8, 11, 12; Doc. 72-

1.)

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(Doc. 72-1.) Both Diaz and ALL decided to have the rig repaired on the side of the

interstate instead of having it towed to another location. (Doc. 72-3 at 26, 45; Doc.

73-4 at 93-94.) At the time of the accident made the basis of this lawsuit, the rig

had been on the side of the interstate for over 12 hours. (Doc. 73-4 at 94; Doc. 64-

5 at 12.)

During the early morning hours of July 20, 2017, Wyman Lucicus was driving

south on I-65 from Tennessee to Brewton, Alabama. At around 2:15 a.m., Lucicus,

for unknown reasons, apparently began to drift to the right shoulder of the interstate

and over the fog line. The right front of his vehicle struck the left rear of Diaz’s rig.

(Doc. 72-1; Doc. 72-3 at 50; Doc. 72-2 at 9.) Lucicus died because of the injuries

he suffered in the accident.

Another truck driver witnessed the crash. In his deposition, taken six years

after the accident, the witness stated that Lucicus had passed him going south and

struck the back of the rig. (Doc. 72-2 at 8.) He also stated that there were no

emergency or warning triangles placed behind the rig, nor were the rig’s lights turned

on.1 (Doc. 72-2 at 10–11, 14–17.) Diaz testified differently, stating that he did turn

his lights on and did set out emergency triangles. (Doc. 72-3 at 41–42, 50–51.)

Trooper Jeremy Burkett of the Alabama Law Enforcement Agency (ALEA)

arrived at the scene several hours after the accident and investigated. (Doc. 64-5 at

11.) At the scene, he observed that the rig was parked on the shoulder of the

interstate just outside of the fog line but on top of the rumble strip, that three warning

triangles were placed behind the rig, that the rig’s parking lights were on, and that

the rig had the appropriate reflective tape. (Doc. 64-5 at 17, 21.) Burkett also stated

that the rig was legally parked but that it should have been towed to the next exit to

be repaired due to safety reasons. (Doc. 64-5 at 30–31.)

IV. STANDARD OF REVIEW

Summary judgment is proper if there is “no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Fed. R. Civ. P. 56(a). The

1 The witness’s testimony about the lack of warning triangles differed from a sworn statement he

gave several weeks after the accident. (Doc. 64-9 at 6; Doc. 72-2 at 17, 20.)

moving party “always bears the initial responsibility of informing the district court

of the basis for its motion,” and should rely on submissions “which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at

323. Once the moving party has met its burden, the nonmoving party must “go

beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324.

Both the party “asserting that a fact cannot be,” and a party asserting that a fact is

genuinely disputed, must support their assertions by “citing to particular parts of

materials in the record,” or by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B).

To avoid summary judgment, the nonmoving party “must do more than

simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On

the other hand, the evidence of the nonmovant must be believed and “all justifiable

inferences must be drawn in its favor.” Anderson v. Liberty Lobby, 477 U.S. 242,

255 (1986).

V. DISCUSSION

The Estate’s negligence and wantonness claims fall into two general

categories: (1) those theories relating directly to the crash itself and Diaz’s and

ALL’s actions immediately preceding it—like parking the rig within inches of the

fog line and passing traffic for an extended period of time and into the night, without

displaying any lights or setting out any warning triangles or cones, and without

towing the rig to another location—and (2) other theories relating to ALL’s business

operations, truck maintenance and inspection, record-keeping, drug-testing, and

hiring, training, and supervision of Diaz.

ALL moves for summary judgment on all claims. It argues that Diaz did not

act negligently or wantonly and that no negligent or wanton act by Diaz was the

proximate cause of the accident. Instead, according to ALL, it was Lucicus’s own

actions in drifting out of his lane of traffic and over the fog line that was the

proximate and intervening cause of the accident. ALL also argues there is no

evidence that ALL negligently or wantonly maintained or inspected the rig or that

Diaz was an incompetent driver, and that the Estate’s other theories of negligence

and wantonness are not actionable.

In response, with little discussion of the law and heavy reliance on alleged

facts, the Estate focuses on photographs of the rig parked just off the interstate’s lane

of travel, the testimony of two witnesses (the eye-witness and the investigating

trooper) concerning the location of the rig together with the lack of illuminating

lights and warning triangles, and Diaz’s decision to leave the rig on the side of the

interstate for over 12 hours and into the darkness of the night within inches of passing

traffic—instead of having the rig towed to a safer location. The Estate also cites to

ALL’s failure to timely drug-test Diaz, issues with the rig’s maintenance and

inspection records and logbooks, and Diaz’s commercial driver’s license status, all

to raise genuine issues of material facts.

As to the second category of negligence and wantonness—like negligent and

wanton maintenance, inspection, hiring, training, supervision, and retention—ALL

is entitled to summary judgment. ALL points to the Estate’s lack of evidence of

proximate causation; that is, that the alleged instances of negligence and wantonness

in the inspection and maintenance of the rig or in the hiring, training, retention, and

supervision of Diaz did not proximately cause the accident under the facts presented

here. The Estate does little, if anything, to respond. Instead, the Estate’s response

focuses on Diaz’s decision to park and leave the rig for an extended duration into

the night without illuminating lights and warning triangles: allegations that go

directly to the Estate’s first category of claims—its negligence and wantonness

claims targeting the events of the crash itself.

In not responding, or at least not sufficiently responding, to ALL’s summary

judgment arguments on its second category of theories and claims, the Estate has

abandoned them. Clark v. City of Atlanta, 544 F. App’x 848, 855 (11th Cir. 2013)

(holding that district court properly treated claims as abandoned where they were

alleged in the complaint but not addressed in opposition to a motion for summary

judgment). But even if the Estate’s response could be construed as sufficiently

addressing these theories, the Estate has not shown a question of fact on Diaz’s

competence to drive a commercial vehicle or ALL’s knowledge of his alleged

incompetence. The record is devoid of evidence that Diaz was incompetent, that any

such incompetence played any role in the accident, or that ALL was aware of or

should have been aware of that incompetence. See, e.g., Bishop v. R.A. Wagner

Trucking, Inc., Nos. 4:11-cv-2457, 4:12-cv-2003, 2014 WL 636987 (N.D. Ala. Feb.

18, 2014). And the Estate fails to show or provide any legal argument whatsoever

showing why the status of Diaz’s driver’s license, if assumed true and standing

alone, is admissible or relevant to the issue of Diaz’s negligence or wantonness, or

to the accident in general. See, e.g., Chattahoochee Valley Ry. Co. v. Williams, 103

So. 2d 762, 767 (Ala. 1958); Mason v. New, 475 So. 2d 854, 856 (Ala. 1985).

Accordingly, ALL’s summary judgment motion on the Estate’s theories and claims

concerning negligent and wanton hiring, training, supervision, and retention of Diaz

and the failure to maintain or inspect the rig, to have or enforce adequate policies

and procedures, to educate Diaz, to periodically audit or check drivers, to

periodically audit driver logs for hour violations, or to design systems that drivers

are trained is due to be granted. (Doc. 29 at 2, ¶¶5–7).

That leaves for discussion the real issues in the case—the decision to park the

rig within inches of passing traffic for an extended period of time and into the night

instead of having it towed; the presence or lack of warning measures such as lights

and warning triangles; and Lucicus’s own actions in drifting out of his lane of traffic.

Some of these factual issues are disputed and some turn on issues of proximate cause

and foreseeability.2 From ALL’s perspective, it argues that it is entitled to summary

judgment as a matter of law because Diaz did not act negligently or wantonly, and

even if he did, that negligence or wantonness was not the proximate cause of the

accident because it was Lucicus’s own intervening actions in drifting out of his lane

that caused the accident.

A. The Negligence Claim

Since this case is filed in federal court on diversity jurisdiction grounds,

Alabama law applies to the substantive issues and federal law to the procedural

issues. Hanna v. Plumer, 380 U.S. 460, 465 (1965); Erie R.R. Co. v. Tompkins, 304

U.S. 64, 80 (1938). To prevail on a negligence claim in Alabama, a plaintiff must

show that the defendant owed the plaintiff a legal duty, that the defendant breached

that duty, that the plaintiff suffered a loss or injury, and that the defendant's breach

was an actual and proximate cause of the injury. QORE, Inc. v. Bradford Bldg. Co.,

25 So. 3d 1116, 1124 (Ala. 2009). “Proximate cause is an act or omission that in a

natural and continuous sequence, unbroken by any new and independent causes,

produces an injury or harm and without which the injury or harm would not occur.”

Morgunson v. 3M Co., 857 So. 2d 796, 800 (Ala. 2003). (citing Dillard v. Pittway

Corp., 719 So. 2d 188, 192 (Ala. 1998)). “The cornerstone of proximate cause is

foreseeability.” Id. (citations omitted). Generally, a defendant owes a duty of care

to all persons who are foreseeably endangered by his conduct with respect to all risks

which make the conduct unreasonably dangerous. Foreseeability establishes a zone

2 ALL also argues that the Estate raises issues of negligence that were not explicitly pleaded in the

Amended Complaint and should therefore be ignored. The Court generally agrees that a plaintiff

cannot amend a complaint through briefing. However, the Amended Complaint cannot be so

narrowly construed as ALL argues. Indeed, if that is the measure by which negligence pleadings

must be pleaded in federal court, then ALL’s contributory negligence affirmative defense suffers

the same infirmity and should be ignored.

of risk, which is to say that it forms a basis for assessing whether the conduct creates

a generalized and foreseeable risk of harming others. It “must be based on the

probability that harm will occur, rather than the bare possibility.” Ex parte Wild

Wild West Social Club, Inc., 806 So. 2d 1235, 1241 (Ala. 2001) (citing 65 C.J.S.

Negligence § 4(3) (1966)).

“In Alabama, the issue of proximate causation hinges on foreseeability and

is intertwined, analytically, with the concept of intervening cause.” Springer v.

Jefferson Cnty., 595 So. 2d 1381, 1384 (Ala 1992). An intervening cause is “one

which occurs after an act committed by a tortfeasor and which relieves him of his

liability by breaking the chain of causation between his act and the resulting injury.”

General Motors Corp. v. Edwards, 482 So. 2d 1176, 1194 (Ala. 1985) (citing Vines

v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala. 1976)), overruled on other

grounds by Schwartz v. Volvo North America Corp., 554 So. 2d 927 (Ala. 1989).

Stated otherwise, a negligent party is accountable only to those injured as a

proximate result of such negligence, and “[w]here some independent agency

intervenes and is the immediate cause of the injury, the party guilty of prior

negligence is not liable.” Hall v. Booth, 423 So. 2d 184, 185 (Ala. 1982). To say

that an event occurring after a defendant's negligence was the “sole proximate cause”

of the plaintiff's injury is simply another way of saying that the event was an

intervening cause that prevents the defendant from being liable for the injury. See

General Motors Corp, 482 So. 2d at 1194. “If an intervening cause could have

reasonably been foreseen at the time the tortfeasor acted, it does not break the chain

of causation between his act and the injury.” Id.at 1195. “In the same respect, if the

intervening cause is not sufficient to be considered the sole ‘cause in fact’ of the

injury, if it is not in and of itself sufficient to stand as the ‘efficient cause’ of the

injury, the causal chain is not broken; but, if the intervening cause was alone

sufficient to produce the injury complained of, it is deemed the proximate cause of

the injury[.]” Id.

Regarding ALL’s summary judgment motion, the Court must determine

whether ALL has shown there is no genuine issue of material fact concerning the

proximate cause of the crash. First, it must be noted that the “question of proximate

cause is almost always a question of fact to be determined by the jury,” and it “must

go to the jury if reasonable inferences from the evidence support the theory of the

complaint.” Marshall Cnty. v. Uptain, 409 So. 2d 423, 425 (Ala. 1981). “[I]t is only

when the facts are such that [a reasonable person] must draw the same conclusion

that the question of proximate cause is one of law for the courts.” Giles v. Gardner,

249 So. 2d 824, 826 (Ala. 1971). It becomes a legal question for a court’s decision

only when “the facts of the cause are not conflicting, and where there can be no

reasonable difference of opinion as to the conclusion to be reached upon them[.]”

Alabama Power Co. v. Moore, 899 So. 2d 975, 979 (Ala. 2004) (citation omitted).

Further, while the issue of foreseeability in the context of an intervening cause

may be decided as a matter of law, it too is more commonly a question for the trier

of fact. Peters v. Calhoun Cnty. Comm’n, 669 So. 2d 847, 850 (Ala. 1995).

Here, genuine issues of material fact exist concerning foreseeability and the

proximate cause of the crash and Lucicus’s death. First, when viewing the evidence

in a light favorable to the Estate, a reasonable jury could find that Diaz, when he

parked his rig on the shoulder of a busy interstate within inches of passing traffic for

an extended period of time and into the night, and/or doing so with no hazard lights

or reflective triangles in place, could have foreseen that an oncoming vehicle may

drift and run into the rear of his rig and that serious injuries could result. Interstate

drivers may be intoxicated, distracted, blinded by the sun or weather, sleepy or sick,

and may therefore drift off the roadway. If they do so at interstate speeds and collide

with another vehicle parked alongside the interstate, they are likely to be injured or

injure other occupants of the vehicles, or both. The foreseeability of such collisions

is precisely the reason why Department of Transportation regulations require the use

of flashers and warning triangles and why rules are in place requiring the removal

of vehicles from the shoulder of busy interstate highways after a certain period, why

rumble strips and guardrails are used, and why trees and other stationary structures

are generally prohibited within a certain area around an interstate. (See, e.g., Doc.

64-5 at 19; Doc. 64-13 at 2–10; Doc. 72-5 at 69.) E.g., Ala. Code §§ 32-5-51, 32-

10-1(c).

ALL contends that Diaz’s actions were a remote cause and that Lucicus’s own

actions were an intervening cause that severed any chain of causation that may have

existed from Diaz’s conduct. Resolution of that issue involves the same

foreseeability analysis. The act of drifting from the traveled portion of an interstate

road into the shoulder or emergency lane and at night is not so egregious a departure

from ordinary standards of care as to be unforeseeable as a matter of law. This is

true even if the driver can offer no reason for leaving the road. A jury should decide

whether Lucicus’s actions in drifting out of his lane of traffic under the

circumstances here was so far outside the bounds of reasonable driving as to be

unforeseeable by Diaz, or that it constituted contributory negligence.

That Diaz was not in violation of a specific rule, regulation, or statute at the

time he parked his rig on the shoulder of the interstate does not immunize him from

liability for negligence. And that the accident here occurred partly on the shoulder

of the interstate rather than the traveled portion of the interstate is not enough to

establish as a matter of law that Lucicus was the sole proximate cause of the accident.

Actors are responsible not only for the likely consequences of their acts or omissions,

but also for the consequences that might reasonably be anticipated; that is, those

consequences that are reasonably foreseeable. If an injury is foreseeable from the

original negligent act or omission, the intervening act of an independent agency will

not constitute a defense because it does not cut off the chain of causation, and the

party guilty of the original act or omission will be held responsible.

On this record, it would be improper to declare as a matter of law that

Lucicus’s actions were not reasonably foreseeable and amounted to an intervening

cause, especially when the Court is obligated to draw all inferences in favor of the

Estate. Reasonable minds may differ on the questions here, and summary judgment

is not appropriate. The Estate’s negligence claim directly relating to the operative

events of July 19 and 20, 2017, will proceed.

B. The Wantonness Claim

ALL also seeks summary judgment on the Estate’s wantonness claim relating

to the events of July 19 and 20, 2017. In addition to arguing the lack of a duty on

Diaz’s part and intervening fault on Lucicus’s part, ALL argues its entitlement to

summary judgment because the facts do not support a triable claim of wantonness.

The Estate, for its part, advances the same facts here as it did to support its claim for

negligence. And, again, the Estate makes no legal argument. It just cites the

evidence.

Under Alabama law, “[w]antonness is the doing of some act or the omission

to do some act with reckless indifference that such act or omission will likely or

probably result in injury.” IMAC Energy, Inc. v. Tittle, 590 So. 2d 163, 168 (Ala.

1991); accord Blizzard v. Food Giant Supermarkets, Inc., 196 F. Supp. 2d 1202,

1208 (M.D. Ala. 2002) (citations omitted); see also Ala. Code § 6-11-20(b)(3)

(defining wantonness as “[c]onduct which is carried on with a reckless or conscious

disregard of the rights or safety of others”). Wantonness requires evidence of a

defendant’s reckless or conscious disregard of the rights and safety of others. See

Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 653 (Ala. 1998). And

“[w]antonness may arise [when one has] knowledge that persons, though not seen,

are likely to be in a position of danger, and with conscious disregard of known

conditions of danger and in violation of law brings on disaster.” Smith v. Bradford,

512 So. 2d 50, 52 (Ala. 1987) (alteration in original) (citation omitted).

Even though wantonness requires a conscious or an intentional act, “the

actor's knowledge may be proved by showing circumstances from which the fact of

knowledge is a reasonable inference; it need not be proved by direct evidence.”

Hicks v. Dunn, 819 So. 2d 22, 23 (Ala. 2001) (quoting Scott v. Villegas, 723 So. 2d

642, 643 (Ala. 1998)). “[I]t is not essential to prove that the defendant entertained a

specific design or intent to injure the plaintiff.” Alfa Mut. Ins. Co. v. Roush, 723 So.

2d 1250, 1256 (Ala. 1998) (per curiam).

In the context of motor vehicle accidents, including a standing vehicle

accident such as this one, wantonness depends on the particular facts presented in

each case. Cheshire v. Putnam, 54 So. 3d 336, 342 (Ala. 2010) (per curiam). And,

under Alabama law, there is a rebuttable presumption that a driver does not act

wantonly in causing a car accident. See Thomas v. Heard, 256 So. 3d 644, 657–58

(Ala. 2017) (per curiam). That is because people “act in their own self-interest,” and

thus, a driver has “no consciousness that an injury would likely occur from his

actions because presumably he would not engage in activity that would knowingly

result in harm to himself.” Id. at 658.

However, where a driver’s actions are more dangerous to other parties than to

himself, the presumption against self-destructive behavior—and therefore

wantonness—does not apply. See McCutchen v. Valley Home, Inc., 100 F. Supp. 3d

1235, 1240 (N.D. Ala. 2015) (finding that the fact a driver acknowledged that the

driver of an 18–wheeler is generally safer in a collision than the driver of the other

vehicle meant that the presumption against self-destructive behavior did not apply);

Griffin v. Modular Transp. Co., No. 2:12–CV–2378–WMA, 2014 WL 896627, at

*4 (N.D. Ala. Mar. 6, 2014) (determining that “[a] collision between a car and the

flatbed portion of a tractor trailer does not carry the same risk of injury to the trailer

driver as it does to the car driver[,]” and therefore the presumption against self-

destructive behavior was inapplicable).

Moreover, even when the presumption against self-destructive behavior

applies, this presumption may be overcome by showing the driver’s judgment was

impaired or that the conduct at issue was so inherently reckless that a court might

otherwise attribute to the driver depravity consistent with disregard of instincts of

safety and self-preservation. “Inherently reckless behavior, for example, might be

driving in reverse on a major interstate; driving through an intersection at a very fast

speed after ignoring a stop sign; or abruptly moving from the right lane into the left

lane after seeing a video store on the left and deciding to stop and get a movie.”

Craft v. Triumph Logistics, Inc., 107 F. Supp. 3d 1218, 1222 (M.D. Ala. 2015)

(cleaned up). “In each of these instances, something more than mere inattention,

that is, an exacerbating circumstance, contributed to the accident.” Id.

The question is whether there is sufficient evidence from which a jury could

reasonably find wantonness when the facts are viewed in the light most favorable to

the Estate. There is.

In this regard, a jury could find that Diaz made a conscious and deliberate

decision to park his rig in the location where he did, i.e., within inches of a busy

interstate lane of travel over an extended period of time and into the night and

without turning on his truck lights or placing out warning triangles, and that he and

ALL decided to have the rig repaired there instead of having it towed to another,

safer location, all of which exposed other drivers to an unnecessary and hazardous

risk.3

3 ALL has advanced legitimate reasons for Diaz’s decision to park his rig where he did and for not

having the rig towed to another location, and it has presented evidence suggesting that the rig’s

lights were on, and the warning triangles set out. But these are factual issues for consideration by

the jury. They are not appropriate for a dispositive ruling as a matter of law, especially when

Although ALL argues that Diaz’s actions, if true, were unavoidable and

reasonable—at worst mere inadvertence or negligence—which they may have been,

there are also facts in the record suggesting Diaz could have acted recklessly or with

conscious disregard for the safety of others. Whether he did is a fact-driven analysis

appropriate for a jury. See, e.g., Johnson v. ABF Freight Sys., Inc., No. 2:18-cv-

01835-MHH, 2021 WL 1320500, at *2–4 (N.D. Ala. Apr. 8, 2021) (denying

summary judgment on wantonness claim in motor vehicle accident case where truck

driver created a hazardous situation with his chosen method in attempting to make a

turn); Shows v. Redline Trucking, LLC., No. 2:18-cv-01692-AKK, 2020 WL

2527105, at *3–4 (N.D. Ala. May 18, 2020) (finding that plaintiff's contention that

defendant stopped his trailer in a lane of travel during a dark morning without

illuminating any lights was sufficient to preclude summary judgment on wantonness

claim); McCutchen, 100 F. Supp. 3d at 1240 (denying summary judgment on a

wantonness claim because a genuine dispute of material fact existed as to whether

the driver of tractor-trailer turned his large rig around on the highway in conscious

disregard of the alleged danger to traffic he was creating); Monroe v. Brown, 307 F.

Supp. 2d 1268, 1271–72 (M.D. Ala. 2004) (admonishing that courts should be

mindful of the Alabama Supreme Court’s holding that wantonness should be

submitted to the jury unless there is a “total lack” of evidence from which the jury

could reasonably infer wantonness). Thus, ALL’s motion for summary judgment is

due to be denied on the Estate’s wantonness claim directly relating to the operative

events of July 19 and 20, 2017.

VI. CONCLUSION

Accordingly, it is ORDERED as follows:

gauged against the favorable inferences for the Estate that must be employed at this stage of the

proceeding.

1. The Defendant’s Motion for Summary Judgment (doc. 63) is

GRANTED in part and DENIED in part as set forth above. Summary judgment

is denied as to the Estate’s claims for negligence and wantonness against Defendant

A.L. Logistics, LLC as they concern Ricardo Diaz’s actions on July 19 and 20, 2017:

parking and leaving the tractor-trailer in the position depicted in the record in the

location that he did for as long as he did, engaging the tractor-trailer’s lights, and

setting out warning triangles. Summary judgment is further denied to the extent

Defendant seeks summary judgment that Wyman Lucicus’s actions constitute

contributory negligence or an intervening act as a matter of law. Summary judgment

is granted in all other respects.

2. Plaintiff's Motion to File Sur-Reply (doc. 74) is GRANTED, and the

sur-reply is received as filed.

3. Defendant’s Motion in Limine (doc. 66) is DENIED as moot.

Defendant may refile the motion in advance of trial, directed to the remaining issues

in this case;

4. This case will be set for a jury trial on Plaintiff’s remaining claims by

a separate order.

DONE on this the 14th day of March 2024.

UNITED STATES DISTRICT JUDGE

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