Efthemes v. Amguard Insurance ( 2022 )

Case: 21-30556 Document: 00516447905 Page: 1 Date Filed: 08/25/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 25, 2022
No. 21-30556 Lyle W. Cayce
Clerk
Anthony R. Efthemes,
Plaintiff—Appellant,
versus
Amguard Insurance Company; Apex Transit, L.L.C.;
Malik Aleem,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:19-CV-1409
Before Clement, Graves, and Costa, Circuit Judges.
Per Curiam:*
A Louisiana state trooper severely injured his hand while deploying
tire deflation devices to stop a high-speed chase. He brought a negligence
action in Louisiana state court against a truck driver, the driver’s former
employer, and the employer’s commercial liability insurer, alleging that the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-30556 Document: 00516447905 Page: 2 Date Filed: 08/25/2022
No. 21-30556
driver’s negligence caused his hand injury. The defendants removed the case
to federal district court and filed a motion for summary judgment.
The district court granted the defendants’ motion for summary
judgment and dismissed the action with prejudice. The plaintiff timely
appealed. We VACATE and REMAND for further proceedings.
I.
On May 19, 2018, there was a high-speed police chase in pursuit of a
fleeing suspect traveling eastbound on I-10 in Calcasieu Parish. Moving
eastbound on I-10 at that same time was defendant Malik Aleem, who was
driving a 79,000-pound tractor trailer.
Dashcam footage of the chase shows several squad cars—making use
of their audible and visual signals—pursing the suspect vehicle from the rear
in both the left and center lanes.1 At the 9:36 mark of the dashcam video, Mr.
Aleem’s truck comes into view, occupying the center lane at an
undetermined distance ahead of the pursuit. The pursuit closes in on Mr.
Aleem’s truck until about the 10:11 mark, at which point Mr. Aleem yields
the right-of-way by transitioning his truck into the right lane and beginning to
brake.
Just up ahead near milepost 19, two Louisiana State Troopers—Randy
Walters and plaintiff Anthony Efthemes—had parked their squad cars on the
north and south shoulders of I-10 E, respectively. They exited their vehicles
and prepared to set up tire deflation devices—called Stop Sticks—to bring
the pursuit to an end.2
1
The dashcam footage can be found at
https://www.youtube.com/watch?v=vGKn2LZe_8U.
2
A Stop Stick device consists of three nylon bags that are connected to each other.
Inside of each bag is a set of spikes. The bags are attached to a reel enclosing a spool of
2
Case: 21-30556 Document: 00516447905 Page: 3 Date Filed: 08/25/2022
No. 21-30556
As the police pursuit and Mr. Aleem’s truck approached the location
where Troopers Walters and Efthemes were parked, Troopers Walters and
Efthemes each deployed a set of Stop Sticks—one from either side of the
highway.3 The Stop Sticks punctured the suspect vehicle’s tires. Very
shortly thereafter, as Trooper Efthemes was pulling his set of Stop Sticks
towards him to get them off the highway, Mr. Aleem’s truck hit Trooper
Efthemes’ Stop Sticks.
According to Trooper Efthemes’ expert, when Mr. Aleem’s truck hit
Trooper Efthemes’ Stop Sticks, it “kicked [the Stop Sticks] up in the air,”
causing slack in the line. Then, when the Stop Sticks fell back down toward
the ground, the line wrapped around Trooper Efthemes’ finger and the slack
tightened. This severely injured Trooper Efthemes’ finger.
In May 2019, Trooper Efthemes brought a negligence action against
Amguard Insurance Co.; Apex Transit, LLC; and Mr. Aleem in Louisiana
state court. Apex Transit was Mr. Aleem’s employer at the time of the
incident, and Amguard is its commercial liability insurer. The defendants
timely removed the action to the United States District Court for the
Western District of Louisiana.
The district court granted summary judgment in the defendants’
favor, determining that there was no genuine issue of material fact as to
string. The purpose of the reel is to enable the operator of the Stop Sticks to place the nylon
bags on one side of a road, set the enclosed line of string across the road, and then stand on
the opposite side of the road. Then, when a target vehicle approaches, the operator can use
the handle of the reel to pull the bags into the road and in front of the target vehicle.
Troopers Walters and Efthemes were trained to use Stop Sticks. Instead of using
their hand to pull the Stop Sticks toward them, they were trained to “take off running”
with the handle so that the line always remained taut.
3
The bodycam footage can be found at
https://www.youtube.com/watch?v=byllDaQb-Q0.
3
Case: 21-30556 Document: 00516447905 Page: 4 Date Filed: 08/25/2022
No. 21-30556
whether Mr. Aleem’s alleged negligence caused Trooper Efthemes’ injury.
Efthemes v. Amguard Ins., No. 2:19-CV-01409, 2021 WL 3559684, at *3 (W.D.
La. Aug. 11, 2021). It accordingly dismissed the action with prejudice. Id.;
Trooper Efthemes timely appealed.
II.
We review a district court’s order granting a motion for summary
judgment de novo, applying the same standard as the district court. Hyatt v.
Thomas, 843 F.3d 172, 176 (5th Cir. 2016). Summary judgment is appropriate
when “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 disputed
fact is material if it “might affect the outcome of the suit under the governing
law[.]” Hyatt, 843 F.3d at 177 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). “We construe all facts and inferences in the light most
favorable to the nonmoving party[.]” Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010) (quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)).
III.
The only question on appeal is whether the district court erred by
granting summary judgment in the defendants’ favor with respect to Trooper
Efthemes’ negligence claim. Under Louisiana law, to prevail on a negligence
claim, a plaintiff must prove the following elements:
(1) the defendant had a duty to conform his or her conduct to a
specific standard of care (the duty element); (2) the defendant
failed to conform his or her conduct to the appropriate standard
(the breach of duty element); (3) the defendant’s substandard
conduct was a cause-in-fact of the plaintiff’s injuries (the
cause-in-fact element); (4) the defendant’s substandard
conduct was a legal cause of the plaintiff’s injuries (the scope
of liability or scope of protection element); and, (5) actual
damages (the damages element).
4
Case: 21-30556 Document: 00516447905 Page: 5 Date Filed: 08/25/2022
No. 21-30556
Rando v. Anco Insulations Inc., 2008-1163, p. 26–27 (La. 5/22/09); 16 So. 3d
1065, 1086 (citing Davis v. Witt, 02–3102, p. 11 (La. 7/2/03); 851 So. 2d 1119,
1127).
Before the district court, the defendants disputed only the second,
third, and fourth elements. See Efthemes, 2021 WL 3559684, at *2. Without
deciding whether Mr. Aleem breached a duty owed to Trooper Efthemes, the
district court held that Trooper Efthemes failed to present sufficient
summary judgment evidence “in satisfaction of the causation element.” Id.
at *3. Specifically, it held that there was “no evidence to show that changing
lanes a few seconds earlier would have given Aleem sufficient time to stop his
vehicle before hitting the stop sticks or Efthemes time to move them out of
the way.” Id. We disagree.
A.
The Louisiana State Code provides the duty of a motorist in the
presence of emergency vehicles:
Upon the immediate approach of an authorized emergency
vehicle making use of audible or visual signals, or of a police
vehicle properly and lawfully making use of an audible signal
only, the driver of every other vehicle shall yield the right-of-
way and shall immediately drive to a position parallel to, and as
close as possible to, the right-hand edge or curb of the highway
clear of any intersection, and shall stop and remain in such
position until the authorized emergency vehicle has passed,
except when otherwise directed by a police officer.
La. Stat. Ann. § 32:125(A). “This duty arises when a motorist observes
or hears, or under the circumstances should have observed or heard, the audible
or visual warnings.” Griffin v. City of Monroe, 46,229, p. 5 (La. App. 2 Cir.
4/13/11); 61 So. 3d 846, 850 (emphasis added).
5
Case: 21-30556 Document: 00516447905 Page: 6 Date Filed: 08/25/2022
No. 21-30556
Neither party disputes that Mr. Aleem was driving in the center lane
when the police pursuit approached his truck from the rear. It is clear from
the dashcam video that he stayed in the center lane for around 35 seconds as
the police pursuit gained on him. Moreover, he testified at his deposition
that he “checked [his] mirrors and that’s when [he] saw them gaining up on
[him].” Even still, he testified, he “maintained the middle lane.”
In view of motorists’ statutory duty to immediately yield the right-of-
way upon the approach of an authorized emergency vehicle and begin
braking, a reasonable jury could find that Mr. Aleem breached his duty by not
changing lanes and braking sooner than he did. Notably, he did not testify
that he was unable to immediately switch lanes or begin slowing down. Nor
did he testify that he could not hear the police sirens, or that he did not see
the police pursuit gaining on him. And even if he had so testified, the
question remains regarding what he should have done, heard, or observed. See
Griffin, 61 So. 3d at 850; Anderson v. Metro. Prop. & Cas. Ins., 2004-717, p. 5
(La. App. 3 Cir. 12/8/04); 890 So. 2d 677, 680 (“The statute does not allow
the driver any leeway to ponder, to size up the situation, and to then select
the best place to pull off the road.”).
Accordingly, the evidence raises a genuine issue of material fact as to
whether Mr. Aleem breached his duty to Trooper Efthemes.
B.
The evidence also raises a genuine issue of material fact as to whether
Mr. Aleem’s breach was the cause-in-fact of Trooper Efthemes’ injuries. To
establish cause-in-fact, Trooper Efthemes must prove that his injuries
“would not have occurred but for [Mr. Aleem’s] substandard conduct.”
Bonin v. Ferrellgas, Inc., 2003-3024, p. 6 (La. 7/2/04); 877 So. 2d 89, 94.
“However, where there are concurrent causes of an accident, the proper
inquiry is whether the conduct in question was a substantial factor in bringing
6
Case: 21-30556 Document: 00516447905 Page: 7 Date Filed: 08/25/2022
No. 21-30556
about the accident.” Id. The parties appear to disagree over which causation
standard applies.
Trooper Efthemes argues that but for Mr. Aleem’s failure to yield the
right-of-way and begin braking sooner, he would have been able to slow down
sufficiently so as to avoid hitting the Stop Sticks. Whereas Mr. Aleem argues
that a second, more substantial factor contributed to causing Trooper
Efthemes’ injury—principally, Trooper Efthemes’ own failure to deploy the
Stop Sticks properly.
But-for causation applies here. Mr. Aleem’s argument for substantial
factor causation depends entirely on his theory that Trooper Efthemes was
negligent in deploying the Stop Sticks. But, as Trooper Efthemes points out,
there is competent summary judgment evidence in the record that cuts
against that theory and suggests that Trooper Efthemes deployed the Stop
Sticks properly. And at this stage, the court must view the evidence in the
light most favorable to Trooper Efthemes. See Dillon, 596 F.3d at 266.
Assuming that Trooper Efthemes deployed the Stop Sticks properly, there is
no factor that either party alleges caused Trooper Efthemes’ injuries other
than Mr. Aleem’s breach of duty. Thus, we apply but-for causation. Roberts
v. Benoit, 605 So. 2d 1032, 1042 (La. 1991), on reh’g (May 28, 1992)
(explaining that “[c]ause in fact is generally a ‘but for’ inquiry” unless
“multiple causes are present”).
Turning to the evidence, Mr. Aleem’s best defense comes from a
report prepared by an accident reconstruction expert. The report contains a
forensic frame-by-frame analysis of the bodycam and dashcam footage, which
attempts to compute the speed at which Mr. Aleem’s vehicle was traveling.
Based on when Mr. Aleem yielded the right-of-way and began to brake in
relation to when Trooper Efthemes deployed the Stop Sticks, the report
concluded that “[i]t was absolutely impossible for the tractor trailer to avoid
7
Case: 21-30556 Document: 00516447905 Page: 8 Date Filed: 08/25/2022
No. 21-30556
the stop sticks[.]” Moreover, it concluded that “[t]here was no avoidance
path available when the sticks were deployed as the tractor trailer could not
utilize the right shoulder due to the presence of the Chevrolet Tahoe patrol
vehicle and a trooper on foot, nor could it move left due to emergency
vehicles being present.” Mr. Aleem offered the report to show that he simply
could not have slowed down at a faster rate or otherwise avoided the Stop
Sticks without causing a bigger accident.
The problem with this evidence is that the report calculated Mr.
Aleem’s speed, and the corresponding time it would have taken him to stop,
based on when Mr. Aleem transitioned to the right lane. It did not consider
or calculate whether Mr. Aleem would have been able to slow down
sufficiently to avoid the Stop Sticks had he transitioned to the right lane and
began braking earlier. In other words, Mr. Aleem’s report is flawed because
it assumes no breach. The report is of little use in determining what would—
or might—have happened had Mr. Aleem given himself more time and
distance to brake.
Mr. Aleem also argues that Trooper Efthemes has no evidence to
support his claim that Mr. Aleem’s breach caused his injuries. That is wrong.
Trooper Efthemes has the most telling evidence of all—footage of the
accident. It is abundantly clear from the dashcam footage that Mr. Aleem’s
truck hit the Stop Sticks right as Trooper Efthemes was pulling them off the
road. As a matter of mathematics and common sense, braking over a longer
distance and for a longer duration increases the time it takes to arrive at a
given destination. Had Mr. Aleem changed lanes and began braking earlier,
the Stop Sticks may well have been off the road by the time his truck got
there.
Given that a reasonable jury could find that Mr. Aleem breached his
duty, the question becomes: could a reasonable jury conclude that Mr. Aleem
8
Case: 21-30556 Document: 00516447905 Page: 9 Date Filed: 08/25/2022
No. 21-30556
would have been able to slow down sufficiently to avoid hitting the Stop
Sticks had he yielded the right-of-way and began breaking sooner? We think
so.
C.
That brings us to two disputed issues that the district court did not
reach: (1) Whether the risk of harm that befell Trooper Efthemes falls within
the scope of the duty imposed by § 32:125(A); and (2) Whether the
professional rescuer’s doctrine precludes recovery. We decline to resolve
these questions because, “as a ‘general rule,’ we do ‘not consider an issue
not passed upon below.’” Peña v. City of Rio Grande City, 879 F.3d 613, 621
(5th Cir. 2018) (quoting Humphries v. Elliott Co., 760 F.3d 414, 418 (5th Cir.
2014)). We are a “court of review, not first view.” United States v. Houston,
792 F.3d 663, 669 (5th Cir. 2015). Accordingly, we remand for the district
court to address these issues in the first instance.
IV.
For the foregoing reasons, we VACATE the judgment and the grant
of summary judgment, and we REMAND the case for further proceedings
consistent with this opinion.
9