[00:00:00] Speaker 02:
The State of Laura Ratley versus Awad et al.

[00:00:32] Speaker 02:
Okay, council for the appellant, the podium is yours.

[00:00:37] Speaker 03:
Thank you, and may it please the court, council.

[00:00:41] Speaker 03:
My name is Matt Bretz, and on behalf of all the plaintiffs, I will be addressing the first issue regarding foreseeability.

[00:00:48] Speaker 03:
Mr. Denton will be addressing the issue of Shamrock Trucking's independent negligence.

[00:00:54] Speaker 03:
I will be mindful of the clock, but I will attempt to take eight minutes and reserve four for Mr. Denton and three for Rebellion.

[00:01:04] Speaker 03:
Under Oklahoma law, which is well settled, defendants owed a duty of care to all persons who were foreseeably endangered by their conduct.

[00:01:13] Speaker 03:
That's the Wulford case.

[00:01:16] Speaker 03:
And then the Oklahoma Supreme Court in Lockhart v. Lucent says, whether a negligent events in jury's consequences could have been reasonably foreseen presents a jury question.

[00:01:27] Speaker 03:
Unfortunately, the district court didn't allow the jury to decide that question.

[00:01:33] Speaker 03:
and took it as a matter of law that someone getting drowsy and falling asleep at the wheel is not foreseeable.

[00:01:41] Speaker 03:
There are three elements to something being a supervening act.

[00:01:46] Speaker 03:
One, that Folcher got drowsy, that it was independent of a wad's negligence.

[00:01:51] Speaker 03:
Two, that Folcher's actions were adequate to bring about the result.

[00:01:55] Speaker 03:
And three, that Folcher drifting out of the lane onto the emergency shoulder was not reasonably foreseeable.

[00:02:01] Speaker 03:
And if the intervening act was foreseeable or should have been anticipated, then under the law it is not a supervening act and the defendant's original negligence remains the proximate cause of the injury.

[00:02:16] Speaker 03:
And here it's the second and third elements that prevent summary judgment and prevent this from being a supervening act.

[00:02:24] Speaker 03:
The second element, the expert testimony in the data recorder established

[00:02:29] Speaker 03:
that about one second before impact, the Fulcher van drifted onto the rumble strips.

[00:02:36] Speaker 03:
The data recorder then shows that between .2 and .1 seconds before impact, the rumble strips worked and Mr. Fulcher was steering to the left.

[00:02:49] Speaker 03:
There would not have been a collision.

[00:02:51] Speaker 03:
He would

[00:02:53] Speaker 03:
He was already steering to the left.

[00:02:54] Speaker 03:
There could not have been a collision.

[00:02:56] Speaker 06:
Is it your position that the, I appreciate your position that causation is generally a jury question unless the law squarely determines causation on the facts, on disputed facts.

[00:03:08] Speaker 06:
So is it your position here that Mr. Poulter was not asleep?

[00:03:13] Speaker 03:
Certainly not.

[00:03:14] Speaker 03:
No, certainly not.

[00:03:15] Speaker 03:
He acknowledged that he was drowsy.

[00:03:17] Speaker 03:
He acknowledged that he went to sleep.

[00:03:20] Speaker 03:
And the data recorder shows that the Rommel strips did their job.

[00:03:24] Speaker 03:
They woke him up and he started steering to the left and he admitted in his deposition that just a moment before impact, he saw the back of the semi.

[00:03:35] Speaker 03:
There's no doubt about that.

[00:03:38] Speaker 02:
Of course, that's foreseeable.

[00:03:40] Speaker 02:
Up until this time, it appears to me that the state law of Oklahoma has been that if there's a car in the road,

[00:03:49] Speaker 02:
And you can see it in time to evade it or stop or whatever it takes.

[00:03:55] Speaker 02:
That if you hit it, it's on you.

[00:03:58] Speaker 02:
How do we get past that in this case where

[00:04:03] Speaker 02:
I mean, it's seemingly more innocent conduct on behalf of the truck than if the truck was just stopped in the traffic lane and they could see it.

[00:04:12] Speaker 03:
I'm glad you asked that question.

[00:04:15] Speaker 03:
Because I struggled with it myself when I read their brief.

[00:04:20] Speaker 03:
And then I realized something.

[00:04:22] Speaker 03:
Why were they citing cases from 1958, from 1961, from 1966?

[00:04:27] Speaker 03:
And it dawned on me that all of the cases they cite

[00:04:32] Speaker 03:
deal with when Oklahoma used to have contributory negligence.

[00:04:38] Speaker 03:
But Oklahoma got rid of contributory negligence in 1973.

[00:04:42] Speaker 03:
And every one of the cases they cite were from crashes that occurred before 1973.

[00:04:48] Speaker 02:
Fair enough.

[00:04:49] Speaker 02:
Do you have any cases, though, that have said that those cases are not good law?

[00:04:56] Speaker 02:
because the Oklahoma negligence scheme changed from contributory negligence to comparative negligence.

[00:05:04] Speaker 03:
What we have are cases after them which deal with factual issues.

[00:05:09] Speaker 03:
And the court talks about the factual issues in the jury being required to decide comparison of fault.

[00:05:15] Speaker 03:
All of the cases that plaintiffs cite in the brief deal with factors that a jury may consider, such as in John Long,

[00:05:26] Speaker 03:
where the defendant didn't have its lights on, didn't use flares, reflectors, dirt, et cetera, much in the same way.

[00:05:33] Speaker 03:
Mr. Watt, in this case, did not have his lights on.

[00:05:36] Speaker 03:
Well, that would go to the question of whether you could see them.

[00:05:40] Speaker 03:
It certainly does.

[00:05:41] Speaker 03:
But it also goes to the issue of a jury looking at this and comparing the fault.

[00:05:46] Speaker 03:
Because now, under comparison of fault, jurors are supposed to make that apportionment.

[00:05:51] Speaker 03:
It's no longer a question of, is there

[00:05:54] Speaker 03:
Any evidence, is there any way that the plaintiff can't be partially at fault under a contributory negligence?

[00:06:00] Speaker 02:
Is Oklahoma a pure comparative fault state?

[00:06:04] Speaker 03:
It's modified comparative.

[00:06:05] Speaker 02:
Okay.

[00:06:06] Speaker 03:
And so here the judge, ultimately the district court weighed that evidence and concluded that 100% of the fault that it was an intervening or superseding incident.

[00:06:15] Speaker 03:
But all of the cases we cite in plaintiff's brief deals with factors that the jury must consider.

[00:06:22] Speaker 03:
and from which they address that use of comparison of fold.

[00:06:26] Speaker 03:
And many of them are very factually similar to this case, where the defendant didn't have its lights on, where the defendant didn't put out the flares or the fuses or the triangles, where there was mixed visibility, such as with fog or freezing rain or something like that.

[00:06:44] Speaker 03:
And here, we have many of those same factors.

[00:06:50] Speaker 03:
So we had, I'm sorry, go ahead.

[00:06:52] Speaker 02:
You agree that the truck being parked on the shoulder and even in the middle of the rumble strip was outside the traffic lane?

[00:06:59] Speaker 02:
Absolutely, it was.

[00:07:00] Speaker 02:
And that's why we have rumble strips.

[00:07:01] Speaker 02:
And there was no legal violation for being parked there?

[00:07:06] Speaker 03:
I disagree with that, Your Honor.

[00:07:07] Speaker 03:
He was parked illegally for two reasons.

[00:07:09] Speaker 03:
He was parked illegally, one, because he didn't have lights on.

[00:07:13] Speaker 03:
Two, because he didn't put out triangles within 10 minutes of being stopped.

[00:07:17] Speaker 03:
In fact, he was parked hours.

[00:07:19] Speaker 02:
Okay, the triangles is a federal regulation violation.

[00:07:23] Speaker 02:
What about the lights?

[00:07:26] Speaker 03:
Also a regulation.

[00:07:27] Speaker 03:
Okay.

[00:07:27] Speaker 03:
Also a regulation.

[00:07:28] Speaker 02:
As a matter of state law, though, he wasn't breaking any laws.

[00:07:32] Speaker 03:
No, I would submit that federal law probably applies.

[00:07:36] Speaker 03:
And I shouldn't be joking about it.

[00:07:38] Speaker 02:
I think the state traffic law is probably really important in some ways.

[00:07:43] Speaker 02:
But let me ask you a question.

[00:07:44] Speaker 02:
And you would also agree that when your client went outside the lane of traffic, that was a violation.

[00:07:54] Speaker 03:
It was.

[00:07:55] Speaker 03:
But it's also foreseeable.

[00:07:56] Speaker 03:
In fact, NHTSA, the National Highway Transportation Safety Administration,

[00:08:01] Speaker 03:
says it's foreseeable.

[00:08:04] Speaker 03:
And of course, this court's allowed to take judicial notice of publications, but NHTSA and the U.S.

[00:08:09] Speaker 03:
Department of Transportation says, Rundle strips, a wake-up call for drowsy drivers.

[00:08:15] Speaker 03:
The sound and vibration can wake a sleeping driver, giving him or her time to regain control of the vehicle.

[00:08:20] Speaker 03:
These run-off road crashes take a large toll, accounting for one-third of all traffic fatalities nationwide.

[00:08:27] Speaker 06:
Was this before the district court?

[00:08:28] Speaker 03:
This was not, and under three different 10th Circuit Court of Appeals cases, this court is allowed to consider official government publications.

[00:08:37] Speaker 03:
That'd be the Standing of Kimbo case, the High Desert case, and also the Clapper case.

[00:08:43] Speaker 02:
I do just want to warn you that you were wanting some rebuttal and to give your opposing counsel some time, but it's yours.

[00:08:50] Speaker 02:
You do what you want.

[00:08:51] Speaker 03:
I'm going to step on his toes for just a minute.

[00:08:53] Speaker 03:
Okay.

[00:08:53] Speaker 03:
Thank you.

[00:08:54] Speaker 03:
Because I think it's important, because the federal government says that what Mr. Folter did is foreseeable.

[00:09:01] Speaker 03:
The federal government says that it accounts for about a third of all traffic fatalities nationwide, or at least a contributing circumstance.

[00:09:10] Speaker 03:
And another one, NETSA.

[00:09:12] Speaker 03:
says NHTSA estimates that in 2017, 91,000 police reported crashes involved drowsy drivers.

[00:09:21] Speaker 03:
These crashes led to an estimated 50,000 people injured and nearly 800 deaths.

[00:09:28] Speaker 03:
The district court said it's not foreseeable that Mr. Folter would drift out of his lane, he might get drowsy, he might fall asleep, drift out of his lane onto the shoulder.

[00:09:37] Speaker 03:
How is it possibly not foreseeable when it happened

[00:09:41] Speaker 03:
91,000 times in the year that this incident happened.

[00:09:46] Speaker 03:
It's patently foreseeable.

[00:09:50] Speaker 03:
And it's important to note that it's a jury question because it's something that it is foreseeable.

[00:09:57] Speaker 03:
That's why we have rumble strips.

[00:09:59] Speaker 03:
There are a variety of reasons somebody might drift out of the lane, whether it's because the kids in the back seat are making noise, or maybe choking on food, or whether it's because there's something wrong with the car, a mechanical problem or a tire blows out, or a siren that they hear and craning their neck to see what's causing the siren, and they drift onto the shoulder.

[00:10:18] Speaker 03:
People drift out of the lanes.

[00:10:20] Speaker 03:
I'd submit if everyone was asked to raise their hand if they've ever gotten drowsy behind the wheel,

[00:10:25] Speaker 03:
or if they've ever drifted onto the shoulder and the rumble strips alerted them and caused them to drive back, I'd submit that everyone in this room would raise their hand.

[00:10:34] Speaker 03:
It's because it's foreseeable.

[00:10:35] Speaker 03:
And if it's foreseeable, it's not a supervening act, and it's a jury question under compare-default.

[00:10:43] Speaker 03:
Thank you.

[00:10:43] Speaker 03:
I'll yield to Mr. Dibble.

[00:10:50] Speaker 04:
Good afternoon, judges.

[00:10:52] Speaker 04:
I'm Michael Denton on behalf of all plaintiffs.

[00:10:54] Speaker 04:
I'm going to address briefly section two of our brief.

[00:10:58] Speaker 04:
And one of the reasons it's so brief is because it doesn't matter if section one fails.

[00:11:02] Speaker 04:
If Mr. Brett's arguments fail, arguing about whether or not we should have had the pleadings stricken at the motion to dismiss stage is moot.

[00:11:11] Speaker 04:
That's a de novo review.

[00:11:13] Speaker 04:
I wanted to point out one quick thing.

[00:11:15] Speaker 04:
There was a motion to certify a question that was filed.

[00:11:19] Speaker 04:
And I know that hasn't been brought up.

[00:11:20] Speaker 04:
And I don't know if that's, I'm not here to argue.

[00:11:22] Speaker 04:
I want to remind the court that's pending a resolution.

[00:11:25] Speaker 01:
And lastly- Well, I have a question about the motion to certify counsel.

[00:11:28] Speaker 01:
If, you know, cause that obviously just involves claim four.

[00:11:33] Speaker 01:
Would you still be pursuing that relief to satisfy a question or certify the question regarding that claim if we were to grant you relief on claims one through three?

[00:11:43] Speaker 04:
Yes.

[00:11:44] Speaker 01:
Because you want to sort of put a pause to litigation just to get an answer about the interpretation of Jordan v. Crane.

[00:11:51] Speaker 04:
We certainly don't want to pause.

[00:11:52] Speaker 04:
There's been enough of that due to COVID and everything else.

[00:11:55] Speaker 04:
But there are currently, I think, two different cases in front of the Oklahoma Supreme Court waiting for a ruling on this issue.

[00:12:02] Speaker 04:
There's an opinion that was issued 10 days ago by Judge Dishman in the Western District, which, by the way, affirmed the Stalmacher opinion that the 10th Circuit judge came down with.

[00:12:14] Speaker 04:
It's an issue that needs to be addressed at some point in time.

[00:12:17] Speaker 04:
I know I heard yesterday in oral arguments in Denver that how do we keep this from happening again and again?

[00:12:22] Speaker 04:
You keep coming back with the same arguments.

[00:12:24] Speaker 04:
Here we are.

[00:12:25] Speaker 04:
This keeps occurring, and you can see from the conflicts in authority, this is an issue that keeps occurring.

[00:12:31] Speaker 04:
In fact, I've read one of the opinions that talked about the Jordan versus Cates application suffered from chronic incorrectness.

[00:12:38] Speaker 04:
So it's time for the Oklahoma Supreme Court to speak on that.

[00:12:43] Speaker 04:
I realize this court can't make it do so, but it can certainly certify yet another question.

[00:12:47] Speaker 01:
In the question that you suggested in your motion to certify, do you think that particular question would give us the answer we need to apply the law subjectively to this claim?

[00:12:57] Speaker 04:
With regard to negligent hiring, negligent retention, negligent supervision, negligent retention, yes.

[00:13:05] Speaker 04:
Negligent trustment is settled.

[00:13:07] Speaker 04:
There's no doubt about that.

[00:13:09] Speaker 04:
I further don't believe the others are in doubt,

[00:13:11] Speaker 04:
I'm prepared to discuss those.

[00:13:14] Speaker 04:
We're running very short on time.

[00:13:17] Speaker 04:
Jordan vs. Cates was limited in facts.

[00:13:23] Speaker 04:
A unanimous Oklahoma Supreme Court in Fox vs. Mize said that.

[00:13:28] Speaker 04:
We've got no fewer than four different judges and federal judges in Oklahoma who say, well, it doesn't really mean that.

[00:13:34] Speaker 04:
I don't know how it doesn't mean that.

[00:13:36] Speaker 04:
I'm not going to read it to you because you guys have that available to read you.

[00:13:41] Speaker 04:
In our brief, in this case, at page 34, footnote 18, we cited to a law review article from the Virginia Law Review that says, when a confined case's facts recur, the case will continue to be treated as good law in all other factual scenarios.

[00:14:01] Speaker 04:
However, the confined case will be regarded as having been overruled.

[00:14:06] Speaker 04:
And we reserve the remaining time for Mr. Bretz.

[00:14:09] Speaker 04:
Thank you, Counsel.

[00:14:09] Speaker 04:
Thank you.

[00:14:21] Speaker 00:
Thank you, Your Honors.

[00:14:22] Speaker 00:
My name is Janice Proctor Murphy with the law firm of Fenimore Craig representing Shamrock Foods Company.

[00:14:29] Speaker 00:
With me is Chris Davis of Crow and Dunleavy, who is with Mr. Awad.

[00:14:35] Speaker 00:
I will be arguing today on behalf of both defendants at Pelvis.

[00:14:40] Speaker 00:
As Judge Carson recognized, controlling Oklahoma law is that Ryan Fulcher was the superseding cause of this accident.

[00:14:51] Speaker 00:
There are three undisputed facts that compel this conclusion.

[00:14:56] Speaker 00:
One, he admitted that he fell asleep and he admitted that the only reason he did not see the tractor trailer was because he fell asleep.

[00:15:07] Speaker 00:
Two, plaintiffs have admitted there was nothing to obstruct Mr. Poulter's view of the parked tractor trailer and visibility was at least a quarter of a mile.

[00:15:19] Speaker 00:
And three plaintiffs admit that the tractor trailer was parked entirely off the roadway.

[00:15:25] Speaker 00:
These three factors combined compel the conclusion that he was the superseding cause and there is no jury question.

[00:15:36] Speaker 00:
Repeatedly, Oklahoma has said that when a sleeping or otherwise inattentive driver drives into the back of a visible parked vehicle, particularly one that is parked off the roadway, they are the superseding cause.

[00:15:53] Speaker 00:
The Sturtivant case is controlling here, Your Honors, and I understand the position raised for the first time now in oral argument.

[00:16:01] Speaker 00:
that contributory negligence is a factor here.

[00:16:04] Speaker 00:
It is not.

[00:16:05] Speaker 00:
It has been repeatedly held by courts, including federal district courts, up until just very recently, 2019, discussing this fact and discussing this law.

[00:16:19] Speaker 00:
So there really is no question that this is the controlling law here.

[00:16:24] Speaker 00:
In Sturtevant,

[00:16:25] Speaker 00:
The facts were analogous and controlling.

[00:16:28] Speaker 00:
In that case, the defendant's truck was parked partially on the highway.

[00:16:33] Speaker 00:
The plaintiff driving easily could have seen this vehicle, but failed to do so.

[00:16:38] Speaker 00:
He looked away, he acknowledged that it was his fault in looking away, and he ran into the vehicle.

[00:16:46] Speaker 00:
And the court said in those circumstances, because you saw the vehicle, could have avoided it and didn't, you are the superseding cause of this accident.

[00:16:56] Speaker 00:
And the defendant's underlying negligence in parking illegally is not relevant.

[00:17:03] Speaker 00:
Why is there not a jury question on foreseeability here though?

[00:17:06] Speaker 00:
There isn't a question on foreseeability because of these unique facts.

[00:17:11] Speaker 00:
And given these unique facts, it is something that can be decided by the court properly as matter of law.

[00:17:18] Speaker 01:
Well, but if the argument turns upon the unique facts, can't you easily distinguish dirt event?

[00:17:23] Speaker 01:
You said in that case the truck driver was parked on the side of the highway.

[00:17:26] Speaker 01:
I don't recall that to be true.

[00:17:28] Speaker 01:
I thought the truck driver was going to work at a school and do maintenance and it was essentially a driveway into the school.

[00:17:33] Speaker 01:
And here we have a commercial trucker, who by the way is somewhat mysteriously states away from where he's supposed to be and somehow got lost in 2017.

[00:17:45] Speaker 01:
who is a violation of federal regulatory law about what he is supposed to do on the side of the highway.

[00:17:51] Speaker 01:
So if the argument turns upon facts, can't we weigh those two cases very differently?

[00:17:57] Speaker 00:
I don't think that you can interpret these facts any differently, but let me address Sturdimant to you.

[00:18:03] Speaker 00:
He was actually parked in the highway.

[00:18:05] Speaker 00:
The back of the truck was parked in the highway.

[00:18:09] Speaker 00:
He was turning into a school or a construction site, got stuck in the mud.

[00:18:14] Speaker 00:
So a portion of the truck was in the roadway.

[00:18:17] Speaker 00:
So it was sticking out.

[00:18:19] Speaker 00:
And even though it was a violation of the law for his truck to be parked there in the

[00:18:26] Speaker 00:
because it was illegal for him to do that.

[00:18:30] Speaker 00:
The court said nonetheless, even if he was negligently parked, because the plaintiff could have seen the vehicle, could have avoided it, and didn't, they were the superseding cause.

[00:18:45] Speaker 02:
What about moat?

[00:18:48] Speaker 00:
What about moat, Your Honor?

[00:18:49] Speaker 02:
Yes, what about moat?

[00:18:52] Speaker 02:
Do you want me to ask a more specific question, or do you want to run with that?

[00:18:55] Speaker 00:
No, no, no.

[00:18:57] Speaker 00:
I will run with Moat.

[00:18:58] Speaker 00:
Moat, there was a situation where he was stopped at the crest of the hill.

[00:19:03] Speaker 00:
He could, at that point, see the vehicle parked.

[00:19:07] Speaker 00:
He went driving down the hill.

[00:19:09] Speaker 00:
Two cars were parked in the roadway talking to each other.

[00:19:13] Speaker 00:
He rode down the roadway, braked too late.

[00:19:18] Speaker 00:
So to avoid hitting that one, he swerved and then he hit the oncoming car.

[00:19:23] Speaker 00:
And again, the court said, you are the superseding cause because you saw the vehicle, it was visible to you.

[00:19:31] Speaker 00:
You could have avoided the accident, but you didn't.

[00:19:36] Speaker 00:
And therefore, the negligence there of parking in the road is not relevant.

[00:19:42] Speaker 00:
You are superseding cause and you cannot recover.

[00:19:48] Speaker 02:
So I guess you would say with respect to the two federal regulation violations, you don't disagree that those were violations of federal regulations, do you?

[00:20:00] Speaker 02:
The cones or the placards and the lights?

[00:20:04] Speaker 00:
We do on one, Your Honor.

[00:20:05] Speaker 00:
In fact, there is

[00:20:06] Speaker 00:
video that the lights were on when the trooper drove up.

[00:20:10] Speaker 02:
OK, so that's a fact dispute.

[00:20:12] Speaker 00:
But regardless, we assumed for purposes of this argument.

[00:20:15] Speaker 02:
Give me two violations for my hypothetical.

[00:20:19] Speaker 02:
We've got two violations of federal law.

[00:20:21] Speaker 02:
I guess your position would be that Sturtevant, because Sturtevant also dealt with a car sticking into the road that was violating the law, that Sturtevant would take care of that issue.

[00:20:32] Speaker 00:
Correct.

[00:20:35] Speaker 00:
And I think also, Your Honor, with the triangles, he was asleep.

[00:20:41] Speaker 00:
So because he was asleep, whether the triangles were out or not would not be dispositive here.

[00:20:52] Speaker 02:
OK, I guess I don't understand why that would be.

[00:20:54] Speaker 00:
Well, Your Honor, he was asleep.

[00:20:56] Speaker 00:
The purpose of the triangles are to be reflective, to be visual, to warn someone.

[00:21:02] Speaker 00:
Oh, the driver.

[00:21:03] Speaker 00:
If he is asleep, the fact that the triangles are there aren't going to happen.

[00:21:07] Speaker 02:
All right, I thought you were talking about the trucker, sorry.

[00:21:09] Speaker 00:
No, sorry.

[00:21:10] Speaker 02:
No, that's all right.

[00:21:10] Speaker 06:
Counsel, what do you say to the appellant's argument that made during the presentation this morning that

[00:21:19] Speaker 06:
The federal government says that what Mr. Fulcher did is foreseeable.

[00:21:22] Speaker 06:
How should we be thinking about these authorities that the appellant has asked us to take judicial notice of in resolving this case?

[00:21:30] Speaker 00:
I appreciate that, Your Honor.

[00:21:31] Speaker 00:
I think the response to that is this court sitting in diversity applies Oklahoma law.

[00:21:38] Speaker 00:
And Oklahoma says based on these three undisputed facts that he is the superseding cause.

[00:21:45] Speaker 00:
If the Oklahoma legislature would like to change the law, then the Oklahoma legislature is free to do that.

[00:21:52] Speaker 00:
But there's no indication that that is happening, and there's no indication that the court is backing away from this doctrine.

[00:21:59] Speaker 02:
Okay.

[00:21:59] Speaker 02:
Let me see if I can understand how this plays out.

[00:22:01] Speaker 02:
So, for matters of

[00:22:09] Speaker 02:
Just generally, do you agree that it's foreseeable that someone's going to go out of the traffic lane onto the rumble strip?

[00:22:17] Speaker 00:
Your Honor, as a purely hypothetical, do I agree that drivers can be inattentive?

[00:22:23] Speaker 00:
Yes.

[00:22:24] Speaker 00:
Do I believe that?

[00:22:24] Speaker 02:
You've probably hit a rumble strip yourself.

[00:22:26] Speaker 00:
It's foreseeable that if we're not going to talk about my driving record.

[00:22:35] Speaker 00:
So.

[00:22:36] Speaker 00:
It's foreseeable that there could be an inattentive driver.

[00:22:40] Speaker 00:
What isn't foreseeable is that inattentive driver will drive off the road and collide into a fully visible vehicle parked off the roadway.

[00:22:52] Speaker 00:
And Oklahoma says this repeatedly.

[00:22:55] Speaker 02:
OK, let me ask you this.

[00:22:56] Speaker 02:
Sure.

[00:22:56] Speaker 02:
So do you think that we could say it is foreseeable

[00:23:01] Speaker 02:
that a drowsy driver, that an innocent driver is going to go off outside the traffic lane and hit the rumble strip.

[00:23:10] Speaker 02:
But it doesn't matter, because Oklahoma has said that that's a superseding event.

[00:23:16] Speaker 00:
Exactly.

[00:23:17] Speaker 02:
Right, Your Honor.

[00:23:18] Speaker 02:
So it can be most foreseeable

[00:23:21] Speaker 02:
and a superseding event.

[00:23:23] Speaker 00:
Correct, Your Honor.

[00:23:24] Speaker 00:
But again, I think there's a difference between someone being momentarily inattentive and someone falling asleep.

[00:23:33] Speaker 06:
Why is that so?

[00:23:35] Speaker 00:
Why is that an important distinction between momentarily?

[00:23:39] Speaker 00:
Well, I think in this case, it resulted in criminal negligence charges against him.

[00:23:44] Speaker 00:
But for purposes of the application of Oklahoma law?

[00:23:46] Speaker 00:
For purposes of Oklahoma law, I think it doesn't matter if you're inattentive for two seconds or inattentive for five minutes.

[00:23:54] Speaker 00:
If you're inattentive and you're responsible for the crash, then you are the one that's the superseding cause.

[00:24:02] Speaker ?:
OK.

[00:24:04] Speaker 01:
I'm sorry, I'm just struggling with one aspect of this.

[00:24:07] Speaker 00:
Sure.

[00:24:07] Speaker 01:
There have been several points of the discussion where I've heard either you or opposing counsel talk about factual disputes.

[00:24:15] Speaker 01:
For example, a moment ago Judge Carson asked you about different federal regulations that the driver may have violated and you said, well, there's a factual dispute on one of these.

[00:24:25] Speaker 01:
When I hear factual dispute,

[00:24:27] Speaker 01:
I think, well, the district court here at summary judgment is to make some factual determinations.

[00:24:32] Speaker 01:
They had to do so and view those facts in a light most favorable to the other side, not to your side, because of your being the moving party.

[00:24:42] Speaker 01:
So why wasn't it an error for the district court to resolve these factual disputes in a manner that was not taking them to a light most favorable to the plaintiffs?

[00:24:53] Speaker 00:
Well, it's not

[00:24:55] Speaker 00:
In this case, let me talk about the triangles.

[00:24:59] Speaker 00:
The triangles, again, aren't relevant in this case.

[00:25:01] Speaker 00:
Not cause and fact, because his eyes were closed.

[00:25:04] Speaker 00:
He couldn't see them.

[00:25:05] Speaker 01:
So there were no material facts.

[00:25:06] Speaker 00:
Correct.

[00:25:07] Speaker 00:
That's exactly right.

[00:25:08] Speaker 00:
That would preclude summary judgment in our favor.

[00:25:11] Speaker 00:
On legal cause, not factual cause.

[00:25:13] Speaker 00:
Exactly right.

[00:25:13] Speaker 00:
Exactly right, Your Honor.

[00:25:15] Speaker 00:
I want to be 100% clear on that.

[00:25:17] Speaker 00:
We think that because these are undisputed material facts,

[00:25:22] Speaker 00:
And on the basis of the three facts that I started this argument with, and I will close this argument with, this court can affirm the summary judgment in favor of the defendants at police.

[00:25:34] Speaker 00:
And those facts are he admitted he fell asleep, and the only reason he did not see the tractor trailer was because he was asleep.

[00:25:43] Speaker 00:
that visibility was not an issue.

[00:25:46] Speaker 00:
He could have seen the tractor trailer had his eyes been opened.

[00:25:50] Speaker 00:
There was no obstructions, no factual issue there.

[00:25:55] Speaker 00:
And finally, this vehicle was parked entirely outside the roadway.

[00:26:01] Speaker 00:
In those three circumstances,

[00:26:04] Speaker 00:
Even, and I want to respond to Judge Carson's question, he was not cited by the state police in this case for no violation.

[00:26:14] Speaker 00:
There was no violation of state law.

[00:26:16] Speaker 00:
And if you have no other questions, I'll sit down.

[00:26:19] Speaker 00:
Thank you.

[00:26:20] Speaker 00:
Thanks.

[00:26:26] Speaker 03:
Go ahead.

[00:26:26] Speaker 03:
Thank you, Your Honor.

[00:26:30] Speaker 03:
The claim that there are undisputed facts or three undisputed facts is not accurate.

[00:26:36] Speaker 03:
Mr. Fulcher did not ever testify that he could have seen the truck with enough time to avoid hitting it.

[00:26:45] Speaker 03:
In fact, if the court looks at the briefing by the defendant on page 21 of the defendant's brief, where they make that representation to the court that Mr. Fulcher said that,

[00:26:58] Speaker 03:
The citation isn't even to Mr. Folcher's deposition testimony.

[00:27:03] Speaker 03:
The citation is to somebody else's deposition.

[00:27:05] Speaker 03:
And if you look at the language, that was not a question or an answer.

[00:27:09] Speaker 03:
It was never something that was said.

[00:27:11] Speaker 03:
Certainly, the district court.

[00:27:13] Speaker 03:
Do you dispute it?

[00:27:14] Speaker 03:
Oh, it's absolutely disputed.

[00:27:16] Speaker 03:
He said that when the rumble strips, when he hit the rumble strips a second before impact, when he hit those, that he opens his eyes and he sees it.

[00:27:28] Speaker 03:
But at that point, he's steering left already, and there's no way that somebody could avoid hitting him.

[00:27:33] Speaker 02:
I mean, isn't it not plausible, though, that he could have seen it earlier if he admits his eyes were closed when he hit the rumble strip?

[00:27:43] Speaker 03:
That would be a question of fact for the jury to draw conclusions from.

[00:27:47] Speaker 03:
Even the district court acknowledged that there was mixed visibility that night.

[00:27:51] Speaker 03:
And the Sturdivant case that they rely upon so heavily,

[00:27:55] Speaker 03:
is there were no weather or other conditions.

[00:27:58] Speaker 02:
Okay, let me ask you this though about Sturtevant, and I'm gonna let you go over a little bit here while we clear a couple of things up.

[00:28:04] Speaker 02:
Thank you.

[00:28:04] Speaker 02:
You agree that to the extent we're gonna try to make a case based on a violation of federal law that Sturtevant says the violation itself really doesn't matter?

[00:28:14] Speaker 03:
Sturtevant, pre-compare default, would suggest that.

[00:28:17] Speaker 03:
Okay.

[00:28:19] Speaker 03:
Yeah, and there are, I said there are two directions.

[00:28:21] Speaker 02:
Yeah, so your position is

[00:28:23] Speaker 02:
Let me try to give you a little easier one.

[00:28:25] Speaker 02:
So your position, whether it's dead on against you, it's at least adverse to you on that issue, on whether the violation of the law means anything.

[00:28:37] Speaker 03:
I'd say it's adverse.

[00:28:38] Speaker 03:
It's not determined, though.

[00:28:39] Speaker 03:
Fair enough.

[00:28:39] Speaker 03:
Because of the different factors.

[00:28:41] Speaker 03:
Here we have no lights.

[00:28:43] Speaker 03:
It was dark.

[00:28:44] Speaker 03:
It was rainy.

[00:28:45] Speaker 03:
There are no cones or triangles, which

[00:28:48] Speaker 03:
Granted, he may not have seen, but the testimony in the case was if he would have hit one of those cones at 70 miles an hour, it would have exploded.

[00:28:55] Speaker 03:
He would have had notice even before he got to the rumble strips that there was something parked there.

[00:29:01] Speaker 03:
So certainly, their absence of cones contributed to this, but they're all factors, whether it's under Sturtevant or Beasley or whether it's under the myriad of cases since comparative fault was adopted in Oklahoma.

[00:29:14] Speaker 03:
But there are factors from which a jury could conclude

[00:29:18] Speaker 03:
that there is fault, and that it's certainly foreseeable, not just based upon NHTSA or the DOT, but also based on jurors' common knowledge and experience.

[00:29:29] Speaker 03:
Okay.

[00:29:29] Speaker 03:
Thank you, counsel.

[00:29:30] Speaker 03:
Thank you.

[00:29:30] Speaker 03:
Thank you.

[00:29:31] Speaker 03:
The case is submitted.

[00:29:32] Speaker 02:
Counselor Excuse, thank you both for your time.