Kathrynn Pals, as personal representative of the Estate of Jamison B. Pals v. Tony Weekly, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 20-2505
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Kathrynn Pals, as personal representative of the Estate of Jamison B. Pals and
personal representative of the Estate of Ezra A. Pals; Gordon Engel, as personal
representative of the Estate of Kathryne L. Pals, personal representative of the
Estate of Violet J. Pals, and personal representative of the Estate of Calvin B. Pals
lllllllllllllllllllllPlaintiffs - Appellants
v.
Tony Weekly, Jr.; Bohren Logistics, Inc.; Interstate Highway Construction, Inc.;
D.P. Sawyer, Inc.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: June 16, 2021
Filed: September 13, 2021
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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Five members of the Pals family died in a car accident in a construction zone
on Interstate 80 after Tony Weekly, Jr., drove his semi-truck into the back of the Pals’

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vehicle. Kathrynn Pals and Gordon Engel are Personal Representatives for the
deceased Pals family members. They commenced a wrongful death and negligence
action against Weekly, his employer, Bohren Logistics, Inc.1 (“Bohren”), and two
contractors involved in the highway construction project, Interstate Highway
Construction, Inc. (“IHC”) and D.P. Sawyer, Inc. (“Sawyer”). IHC and Sawyer
successfully moved for summary judgment. Plaintiffs appeal the district court’s2
judgment. We affirm.
I. BACKGROUND
IHC contracted with the Nebraska Department of Roads (the “Department”)
to re-pave a section of Interstate 80. The Department designed the project’s traffic
control plan, closing the westbound lanes and diverting traffic across the median into
the eastbound lanes. The plan created a “two-way, two-lane” configuration in what
were ordinarily two eastbound lanes. IHC subcontracted with Sawyer to implement
the Department’s traffic control plan. Under the subcontract Sawyer installed
temporary traffic signs, barriers, cones, and other devices used to route traffic through
the construction zone and provided 24-hour surveillance of traffic control devices.
On July 31, 2016, at around 11:30 a.m., a vehicle with five members of the Pals
family was traveling west on Interstate 80 within the head-to-head section of the
construction zone. The vehicles in front of the Pals had slowed or come to a stop, and
the Pals’ vehicle did the same. The record reflects that traffic backed up a half mile
to the point of collision.
1Weekly and Bohren have settled Plaintiffs’ claims against them and take no
position on this appeal.
2The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, now deceased.
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Weekly was driving a semi-truck directly behind the Pals. Immediately prior
to the accident, Weekly was driving approximately 62 mph on cruise control and
talking to his wife on his cellphone, while drinking a soda. Weekly, who suffers from
after-effects of a previous hand injury, took his eyes off the road to put his soda into
a cupholder. While so engaged, Weekly failed to see the Pals’ vehicle slow to a stop
in time and struck the vehicle from behind. The Pals’ vehicle caught fire, and all five
of the family members inside the vehicle died.
Plaintiffs’ expert estimated Weekly collided with the Pals’ vehicle at a speed
of at least 59 mph, which shows Weekly failed to brake until immediately before
impact. Photographs of the scene show Weekly’s tires were all within the driving
lane at the point of impact, indicating Weekly failed to take evasive action such as
turning into the open shoulder area to his right. While other drivers were also
exposed to the slow-down or stop, Weekly was the only driver who was unable to
stop his vehicle in a safe manner. Weekly was criminally charged and convicted for
his role in the accident.
In their claim against IHC and Sawyer the Personal Representatives contend
the two contractors had a contractual obligation to report to the Department that
weekend stoppages and backups were occurring, and failed to make those reports.
They further allege that if the reports had been properly made, the Department would
have erected more prominent signage (or amended the traffic control plan to allow
IHC or Sawyer to put up more signs), which would have warned drivers of the
stoppages. They assert that with this additional signage the accident would not have
occurred.
IHC and Sawyer moved for summary judgment. The district court granted their
motion, finding that even if IHC and Sawyer owed a duty to the Pals, and even if they
breached that duty (questions the district court did not decide), the negligence claim
against the two contractors would necessarily fail because Weekly’s negligence in
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causing the accident was an efficient intervening cause under Nebraska law. The
district court further held that, although a series of discovery disputes had resulted in
sanctions against IHC, one of which remained unresolved, IHC’s alleged misconduct
did not preclude a grant of summary judgment to IHC and Sawyer because there was
no inference the court could draw from the missing evidence or other appropriate
sanction that would negate the finding of an efficient intervening cause. Plaintiffs
appeal.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo and we view
the facts and draw all reasonable inferences in a light most favorable to the
nonmoving party. Heinz v. Carrington Mortg. Servs., LLC, ___ F.4th ___, 2021 WL
2878322, at *3 (8th Cir. July 9, 2021). Summary judgment is appropriate where there
is no dispute of material fact and reasonable fact finders could not find in favor of the
nonmoving party as a matter of law. See Fed. R. Civ. P. 56(a).
Because we apply the law of the forum state in diversity actions, we apply
Nebraska law. Heatherly v. Alexander, 421 F.3d 638, 641 (8th Cir. 2005). In order
to succeed on a negligence claim in Nebraska, the plaintiff must show a legal duty
owed by the defendant to the plaintiff, a breach of that duty, proximate causation, and
damages. Wilke v. Woodhouse Ford Inc., 774 N.W.2d 370, 379 (Neb. 2009). To
establish proximate cause, the plaintiff must show that “(1) [w]ithout the negligent
action, the injury would not have occurred, commonly known as the ‘but for’ rule; (2)
the injury was a natural and probable result of the negligence; and (3) there was no
efficient intervening cause.” Id. at 382.
“An efficient intervening cause is new and independent conduct of a third
person, which itself is a proximate cause of the injury in question and breaks the
causal connection between the original conduct and the injury. The causal connection
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is severed when (1) the negligent actions of a third party intervene, (2) the third party
had full control of the situation, (3) the third party’s negligence could not have been
anticipated by the defendant, and (4) the third party’s negligence directly resulted in
injury to the plaintiff.” Latzel v. Bartek, 846 N.W.2d 153, 164 (Neb. 2014) (citations
omitted).
Here, only the third element is in dispute: whether Weekly’s negligence could
have been anticipated by the defendants. In clarifying the third element, the Nebraska
Supreme Court has explained that an act is intervening and cuts off the tortfeasor’s
liability “only when the intervening cause is not foreseeable” and if the negligence
“is reasonably foreseeable, then the third party’s negligence is not an efficient
intervening cause as a matter of law.” Id. (quoting Wilke, 774 N.W.2d at 383).
While “[f]oreseeability is ordinarily a question for the trier of fact,” “where
reasonable minds could not differ, foreseeability determinations can properly be made
as a matter of law.” Baumann v. Zhukov, 802 F.3d 950, 954 (8th Cir. 2015) (internal
quotations omitted).
Plaintiffs contend a jury could reasonably find Weekly’s negligence was
foreseeable and the district court erred when it concluded that Weekly’s negligence
constituted an efficient intervening cause as a matter of law. Because Nebraska takes
a particularly narrow view of foreseeability when the original negligence involves the
creation of a hazardous road condition and the potentially efficient intervening cause
is a negligent driver who ignores the hazard and causes an accident, we disagree.
In Malolepszy v. State, 729 N.W.2d 669 (Neb. 2007), a driver negligently
pulled in front of another driver from the shoulder in a construction area, causing an
accident. The non-negligent driver and his wife sued the State, arguing, in part, that
the signage in the construction zone was inadequate. Id. at 672. In affirming
summary judgment in favor of the State, the Nebraska Supreme Court held that
“[w]hether the signage placed by the State in the construction zone was adequate is
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a disputed fact that is of no importance. . . . The State was not bound to anticipate that
a vehicle stopped along the shoulder of the road would suddenly pull out in front of
oncoming traffic. . . . [The negligent driver’s] negligent behavior was unforeseeable
to the State and constituted an efficient intervening cause of the collision.” Id. at 677.
The Nebraska Supreme Court reached a similar conclusion in Latzel,
846 N.W.2d 153 (Neb. 2014). There, landowners planted corn up to the ditches that
ran alongside a road. Id. at 157. When two drivers negligently drove through an
intersection and, unable to see each other because of the corn, collided, the Nebraska
Supreme Court determined the drivers’ negligence constituted an efficient intervening
cause of the collision because landowners were not bound to anticipate drivers would
disregard the obvious danger of traversing a visually obstructed unmarked
intersection. Id. at 167.
In yet another example, the Nebraska Supreme Court affirmed the trial court’s
judgment in favor of a county that had failed to replace a downed stop sign. Zeller
v. County of Howard, 419 N.W.2d 654 (Neb. 1988). The court explained that, even
if the county had a duty to replace the stop sign (and breached its duty), the driver’s
negligence was unforeseeable to the county and his conduct therefore constituted an
efficient intervening cause. Id. at 659. The court observed the county “was not
bound to anticipate, and could not have contemplated, that [the driver] would totally
and unreasonably disregard the obvious danger inherent in vehicular travel into a
visually obstructed intersection of public roads and fail to take appropriate measures
to avoid the collision.” Id.
These cases establish that, under Nebraska law, the creators of roadway hazards
are not expected to foresee any extraordinarily negligent driving. Weekly’s
negligence was extraordinary. IHC and Sawyer could not be reasonably expected to
anticipate that a truck driver would drive through a construction zone on cruise
control, with his eyes off the road for multiple seconds, all while talking to his wife
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on the phone, such that he almost completely failed to see a stoppage that extended
for at least half a mile when every other driver saw the congestion in time to stop
safely. Weekly’s extraordinary negligence constituted an efficient intervening cause.
Because reasonable minds cannot differ on this point, summary judgment in favor of
IHC and Sawyer was appropriate.
Plaintiffs also contend the district court abused its discretion in denying their
motion to stay pending the filing and resolution of their fourth sanctions motion. The
course of discovery in this case was controverted. On a third motion for sanctions,
the court authorized Plaintiffs to conduct a forensic examination on IHC’s servers and
electronic data but before the examinations could be conducted, IHC sold the laptops
of five employees. Although the magistrate judge granted Plaintiffs leave to bring a
fourth motion for sanctions related to the sold laptops, the district court determined
that the discovery issue was immaterial to its decision to grant summary judgment.
The district court observed that its decision turned on the facts related to Weekly’s
negligence, so any adverse inference that it could draw related to the contents of the
laptops would be irrelevant.
We agree that the determinative facts on summary judgment relate to Weekly’s
negligent conduct. The question here is an objective one: was Weekly’s negligence
reasonably foreseeable? The district court concluded that it “cannot infer that any
evidence on the laptops could alter” its intervening cause conclusion. Plaintiffs do
not refer us to specific evidence that would refute the district court’s finding. The
district court did not abuse its discretion in denying Plaintiffs’ motion to stay. See
Cottrell v. Duke, 737 F.3d 1238, 1248 (8th Cir. 2013) (standard of review).
III. CONCLUSION
We affirm the judgment of the district court.
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