United States District Court, E.D. Oklahoma
WHITE UNITED STATES DISTRICT JUDGE
the court is the motion for partial summary judgment of the
defendant William Sweetin. This lawsuit involves a motor
vehicle accident which took place in early August, 2016 in
Ada, Oklahoma between a vehicle operated by plaintiff and a
vehicle operated by defendant Sweetin (an employee of
Cutter). As to Sweetin, plaintiff brings a claim
for negligence and also seeks an award of punitive damages.
The present motion seeks dismissal of the claim for punitive
standard regarding motions for summary judgment is set forth
in Rule 56(a) F.R.Cv.P. The court must view the evidence in
the light most favorable to the nonmoving party. See
Sidlo v. Millercoors, LLC, 2018 WL 1180500, *4
vehicle was stationary, having stopped at a red light. The
vehicle driven by Sweetin struck plaintiff's vehicle from
behind. Plaintiff alleges he suffered traumatic brain injury,
and underwent a lumbar fusion surgery. Photographs do not
reflect major damage to plaintiff's vehicle (an
automobile), however. In Sweetin's deposition, he
testified that he also stopped his vehicle (a dump truck) at
the red light. The light then turned green and Sweetin's
vehicle began moving forward for a right turn. Sweetin
testified he saw plaintiff's vehicle, and Sweetin sought
to also begin a right turn. Sweetin looked to his left for
traffic. When he looked back, plaintiff's vehicle had
stopped and Sweetin's vehicle “bumped into”
plaintiff's vehicle, despite Sweetin
“slamming” his brakes. (#44-3 at pages 3-5 of 7
in CM/ECF pagination). Sweetin estimated his speed at three
or four miles an hour and said he was still in first gear.
(Id. at page 6 of 7).
plaintiff's deposition, he testified that he did not know
the speed of Sweetin's vehicle. (#55-1 at page 4 of 5).
He also testified, however, that he believed it to be more
than seven miles per hour. (Id. at page 5 of 5).
Plaintiff's deposition was taken on January 18, 2018. On
January 22, 2018 (i.e., four days later) plaintiff executed a
declaration pursuant to 28 U.S.C. §1746, stating
affirmatively that Sweetin's vehicle had a speed of at
least ten miles per hour. (#49-1 at page 1 of
He further states “[b]ased on the force and speed at
which the dump truck struck my vehicle, Mr. Sweetin could not
have brought his vehicle to a stop behind me at any point in
time.” Id. He further states that the rear
bumper of plaintiff's vehicle was “folded, ”
the left corner of the bumper was “crushed” and
the trunk was damaged. Id. at page 2 of 6.
asks that plaintiff's post-deposition declaration be
disregarded. A declaration may not be disregarded simply
because it conflicts with the affiant's prior sworn
statements. Ralston v. Smith & Nephew Richards,
Inc., 275 F.3d 965, 973 (10th Cir.2001). A
district court may disregard a contrary affidavit when it
concludes the affidavit constitutes an attempt to create a
sham fact issue. Factors relevant to the existence of a sham
fact issue include whether the affiant was cross-examined
during his earlier testimony, whether the affiant had access
to the pertinent evidence at the time of his earlier
testimony or whether the affidavit was based on newly
discovered evidence, and whether the earlier testimony
reflects confusion which the affidavit attempts to explain.
Id. Moreover, “[t]o prevent ‘sham'
affidavits from improperly prolonging litigation, we require
the affidavit to explain why the affiant did not mention the
matter at an earlier time when one would fully expect it to
have been mentioned.” Genberg v. Porter, 2018
WL 1004603, *10 (10th Cir.2018).
court declines to disregard the plaintiff's declaration,
simply because the court does not view the declaration as
contradictory. Plaintiff testified in his deposition that the
speed of Sweetin's vehicle was above seven miles
per hour; in the declaration he now states ten miles per
hour. The two statements are not contradictory. Although
plaintiff stated in his deposition that he had no idea if the
truck was going more or less than ten miles per hour, and
said any estimate of speed by him would be a “complete
guess, ” he also asserted a factual basis for his
earlier estimates. Plaintiff's estimate of speed came
from the effect of the impact on him. (#55-1 at pages 4-5 of
5)(the impact “slung me around” and “back
and forth, ” knocked off his sunglasses and threw him
toward his passenger). Much the same appears in the
declaration (#49-1 at page 1 of 6)(“a speed of at least
ten miles per hour based on the impact and force at which he
struck my vehicle.”). This was the same basis expressed
for plaintiff's conclusion that Sweetin did not bring his
vehicle to a stop before the crash. Id. The court
finds this sufficient personal knowledge for purposes of Rule
punitive damages statute, 23 O.S. §9.1, provides for the
recovery of punitive damages where the jury finds by clear
and convincing evidence that the defendant acted, at a
minimum, with reckless disregard for the rights of others. A
person acts in reckless disregard for the rights of others if
he “was either aware, or did not care, that there was a
substantial and unnecessary risk that [his] conduct would
cause serious injury to others.” Raborn v.
Johnston, 2017 WL 4681792, *4 (N.D.Okla.2017)(quoting
Gowens v. Barstow, 364 P.3d 644, 652 (Okla.2015)).
The trial court must determine as a matter of law whether the
plaintiff has produced sufficient evidence that a reasonable
jury could find that a defendant acted with reckless
disregard before instructing the jury as to punitive damages.
Id. (citing Badillo v. Mic Century Ins.
Co., 121 P.3d 1080, 1106 (Okla.2005)).
damages may be assessed where oppressive intent can be
inferred from gross negligence. Hinds v. Warren
Transport, Inc., 882 P.2d 1099, 1102
(Okla.Civ.App.1994). The mere happening of an accident as a
result of inadvertence on the part of the responsible party
is insufficient to constitute gross negligence. Id.
Only where there is evidence in the record supporting an
inference of gross negligence or reckless disregard and/or
indifference for the safety of others must the issue of
punitive damages be submitted to the jury. Id.
issue is a close one. First, the court must express its
substantial doubt that a dump truck traveling at ten miles
per hour and striking another vehicle would result in the
minimal damage that the photographs of plaintiff's
vehicle reflect. Moreover, as stated, plaintiff's burden
on this point is one of clear and convincing evidence. The
court is required to view the evidence in the light most
favorable to plaintiff. In that light, did the dump truck
stop at any point prior to impact? Plaintiff states it did not,
but this is an inference based upon “the force
and speed at which the dump truck struck my vehicle.”
The court finds the inference dubious in light of the
photographs of the vehicular damage. Plaintiff does not state
that he saw Sweetin's vehicle approaching the
stop light, except when the dump truck was still far away.
Sweetin testified he came to a complete stop. Clear and
convincing evidence is that measure of degree of proof which
will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegation sought to be
established. State ex rel. Oklahoma Bar Ass'n v.
Hine, 937 P.2d 996 n.12 (Okla.1997). Even viewed in the
light most favorable to plaintiff, the court is not persuaded
that a reasonable jury could find by clear and convincing
evidence there was “reckless disregard” or
“gross negligence” on the part of
the order of the court that the motion of defendant Sweetin
for partial summary judgment (#44) is hereby granted.
Plaintiff's claim against defendant Sweetin for punitive
damages is dismissed.
Somewhat strikingly, the parties
dispute the date of the accident (#49 at 1; #55 ...