The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant United States of America's ("Defendant") Motion for Summary Judgment (the "Motion"). After considering the moving, opposing, replying papers, and oral argument, the Court hereby DENIES Defendant's Motion.
On May 30, 2001, Plaintiff was riding her bicycle in the southbound bicycle lane of Magnolia Street in Fountain Valley, California. Plaintiff alleges that while lawfully riding her bicycle she was struck by a U.S. Postal Service delivery vehicle ("the delivery vehicle"). Allen C. Van House ("Van House"), a U.S. Postal Employee, was driving the delivery vehicle at the time of the collision. Plaintiff alleges that, at the time of the collision, Van House negligently failed to yield the right of way.
Plaintiff sued Defendant under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80, seeking general damages, compensatory damages, medical expenses, property damage, costs of the suit, and compensation for loss of income. Plaintiff is requesting judgment in the amount of $1,531,542.34.
In the Instant Motion, Defendant moves for summary judgment, asking this Court to find that it was not negligent as a matter of law.
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548 (1986). When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).
Once the moving party meets its burden, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-49. Furthermore, a party cannot create a genuine issue of material fact simply by making assertions in its legal papers. There must be specific, admissible evidence identifying the basis for the dispute. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1980). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Anderson, 477 U.S. at 252.
"Whether a person exercises the required degree of care is ordinarily one for the jury." Shivers v. Van Loben Sels, 109 Cal.App.2d 286, 289 (1952). "Although questions of negligence are usually reserved for the fact finder, summary judgment is proper where the facts are undisputed and only one conclusion may reasonably be drawn from them. Negligence then becomes a matter of law." See, e.g., Flying Diamond Corp. v. Pennaluna & Co., Inc., 586 F.2d 707, 713 (9th Cir. 1978)(citing Yellowstone Pipe Line Co. v. Kuczynski, 283 F.2d 415, 419 (9th Cir. 1960). At issue in the instant Motion is not whether Plaintiff was negligent, as California has adopted a comparative negligence standard under which a plaintiff's negligence is not a bar to recovery but a factor to be considered in measuring the amount of recovery. Bradfield v. Trans World Airlines, Inc., 88 Cal.App.3d 681,686 (1979). Instead, Defendant must summarily prove that there are no genuine issues of material fact as to whether or not Defendant's negligence contributed to the accident at issue. Defendant has not met this burden.
Under Section 1346(b) of the FTCA and 28 U.S.C. § 2674, liability for negligence requires proof of an actionable duty, causation and recoverable damages in the law of the state wherein the conduct complained of occurred. Because the alleged acts occurred in California, California state law applies. Under California law, in order to present a viable negligence claim a Plaintiff must prove that Defendant owed Plaintiff a duty, that such duty was breached by Defendant, and that such breach was both the legal and the proximate cause of Plaintiff's injuries.
Under the common law doctrine of negligence per se (codified in Evidence Code § 669), statutes may, in some circumstances, be used to establish a duty or standard of care in negligence actions. See, e.g., Elsner v. Uveges, 34 Cal.4th 915, 927-28 (2004). Defendant attempts to argue that Plaintiff, not Defendant, was negligent per se in this case as it violated Cal. Veh. Code § 21802. Plaintiff ...