Fill and Sign the Law Summary Judgment Form

- 1 - IN THE ______________ COURT OF ______________ COUNTY STATE OF ________________ ) ) ) Petitioner/Plaintiff, ) ) ) NO. Vs. ) ) ) Respondent/Defendant ) ) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY FACTS On or about the ______ day of ____________, 20____, Plaintiff ___________________ was operating a vehicle in which his wife, Plaintiff ___________________ was a passenger; they were traveling ______ along _________ Road, in the City of ____________, ____________ County, ____________. Said vehicle proceeded into the intersection of _________ Road and Highway _________, with the right of way under the protection of a green traffic signal. The Defendant's driver, ___________________ while in the course of his employment with ___________________ and driving an 18-wheel Freightliner semi-tractor trailer rig owned by ___________________ was traveling in a southerly direction along Highway ________; disregarded a red traffic signal and without maintaining proper control of said vehicle he entered the intersection of _________ Road and Highway ________ and struck the Plaintiff's vehicle as it proceeded through said intersection under the protection of a green - 2 - traffic signal. The resulting collision caused severe damage and injury to said ___________________ and his wife/passenger, ___________________On the ______ day of ____________, 20____, a trial was conducted in the Municipal Court of _____________, ____________ County, _______________, wherein ___________________ was represented by competent legal counsel. After a full hearing, the Court, Judge ___________________ presiding, found ___________________ guilty of running a red traffic signal at the intersection of _________ Road and Highway _________ on the ______ day of ____________, 20____, when he struck the vehicle in which the Plaintiffs were riding. The Court levied a fine of $________. The fine was paid. The conviction was not appealed and became final. The proceedings were stenographically recorded and have be en transcribed. The Plaintiffs filed their Complaint on the ______ day of ____________, 20____, against ___________________, alleging injuries proximately caused by the negligence of the employee of said defendant, ___________________ .The defendant was properly served with process on the ______ day of ____________, 20____. The Defendant filed an Answer on the ______ day of ____________, 20____, admitting that the vehicle operated by ___________________ on the ______ day of ____________, 20____, collided with the Plaintiffs; that the vehicle operated by ___________________ was owned by ___________________ and that the operator of the truck, ___________________ was an employee of ___________________ and was operating the vehicle within the course and scope of his employment with said ___________________ at the time of the accident. - 3 - ARGUMENT The Plaintiffs charge that the Defendant's employee, ___________________, while in the course and scope of his employment, caused injury to the Plaintiffs when he collided wit h the vehicle in which Plaintiffs were traveling through an intersection under protection of a gre en traffic signal, negligently failing to maintain proper control of his vehicle and running a red signal in violation of State law. The violation of this statute, ____________ Code Ann., Sections ____________, and ____________, which are intended to prevent the type of injuries suffered by your Plaintiffs on the ______ day of ____________, 20____, constitutes negligence per se ._________ v. _________, _______ (____. ____). The Defendant's employee, ___________________, was convicted in the Municipal Court of ___________, ____________ County, _____________, on the ______ day of ____________, 20____, of entering an intersection in disregard of a red traffic signal, in violation __________ Code Ann., Sections ________ and ________. It is the Plaintiff's position that the finding of the Municipal Court that the Defendant's employee was guilty of vi olating the aforementioned Statutes is a final binding decision on the issue of whether the employee of the Defendant ran the red traffic signal, and that the Defendant is precluded from litigati ng this issue a second time under the doctrine of collateral estoppel. The controlling authority on the application of collateral estoppel is the case of _________ v. _________, _______ (____. ____). ___________ involved a civil action for Assault and Battery. The defendant had been previously convicted of raping the plaintiff. The Supreme Court found that the defendant was collaterally estopped from re-litigating the fact of whether he had committed the rape. - 4 - The doctrine of collateral estoppel is not invoked casually, but when the elements of estoppel have been satisfied, the Court in the subsequent proceeding should consider only that the prior decision was final, and should not inquire whether it was erroneous. _________ v. _________, _______ (____. ____), at page ____. The decision relied upon as preclusive must be a reliable decision. There must exist a mutuality of interest in both proceedi ngs and there must have existed an incentive for the party against whom the doctrine is to be invoke d to have to litigate the issues in the prior proceeding. In addition, the party should have been effect ively represented by counsel. _________ v. _________, _______ (____. ____). In the case sub judice: 1. The Defendant's employee, ___________________, who was charged with the violation of statute, was represented by counsel who conducted a spirited defense on behalf of ___________________, as can be seen from the transcript of the Municipal Court proceedings, attached as an exhibit to the Plaintiff's Motion. 2. Whether ___________________, who was admittedly an employee of the Defendant and acting in the course and scope of this employment, entered the intersection in disregard of a red traffic signal in violation of State law was the issue in the prior proceeding and is an issue in the case sub judice. 3. The Defendant and the Defendant's employee had common interests and were both aware at the time of the Municipal Court proceeding that claim was being made by your Plaintiff's against both parties for injuries sustained as a result of running the red traffic signal and colliding with the vehicle in which the Plainti ffs were traveling. The Plaintiff's attorneys, in separate letters to each dated the ______ day of ____________, 20____, notified both that Plaintiffs had secured legal representation to assert their rights in connection with the ______ day of - 5 - ____________, 20____, collision; copies of these documents are attached as exhibits to the Motion of the Plaintiffs. The only possible objections to applying collateral estoppel to this misdemeanor conviction are lack of incentive to resist, and lack of counsel. See: _________ v. _________, _______ (____. ____). However, in the case sub judice, there is a clear showing of the fact of a vigorous resistance of the Municipal Court action by ___________________, with representation and participation by competent counsel. There is no reasonable basis for revisi ting the issue decided by the Municipal Court beyond a reasonable doubt. Plaintiffs concede that this does not conclude the Defendant from submitting evidence at trial on the issue of damage s, including contributory negligence. See: _________ v. _________, _______ (____. ____). The Defendant admits in his Answer and in Discovery, and the Defendant's employee _________ v. _________, _______ (____. ____) admits in his deposition, that the 18- wheel rig driven by ___________________ on the ______ day of ____________, 20____, collided with the vehicle containing Plaintiffs after entering the intersection of ________ Road and Highway ________, and that the Plaintiffs were damaged to some extent. Therefore, the Defendant's employee, having entered the intersection against a red signal in violation of _____________ Code Ann., Sections ________ and _________, is guilty of negligence per se, and is liable for such damages as the Plaintiffs suffered, _________ v. _________, _______ (____. ____). CONCLUSION By operation of collateral estoppel, there is no issue of fact as to whether the Defe ndant's employee, ___________________, entered the intersection of _______ Road and Highway ________ in violation of; Statute. ___________________’s violation of Statute constitutes - 6 - negligence per se. There is no issue of fact whether the Defendants vehicle collided with the Plaintiffs, nor that the Plaintiffs suffered some damage. Wherefore, premises considered, the Plaintiffs contend that the issue of whether the Defendant's employee, ___________________ is liable in tort to the Plaintiffs is controlled by the finding of the Municipal Court of ___________, ___________ County, ______________, entered on the ______ day of ____________, 20____, and that the Honorable Court should sustain the Plaintiff's Motion For Summary Judgment, setting this cause for trial on the issue of damages. Respectfully submitted, Dated: Name: Title: Address: Address: City, State, Zip: Phone: Fax: E-Mail: Attorney No.: CERTIFICATE OF SERVICE I, ______________________________, do hereby certify that I have this day mailed, U.S. Mail, postage prepaid, a true and correct copy of the above and foregoing to __________________________________, at the following address; ___________________________________________________________________ THIS the ____ day of _____________, 20____. _________________________________