IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT



                                               No. 97-30569



STEPHEN RAY ESTES,
individually and as the natural parent
and tutor, on behalf of JOLIE ESTES,
on behalf of STEPHEN JAMES ESTES,
on behalf of JONATHAN ESTES,
on behalf of JUSTIN ESTES,
on behalf of MIRIAM ESTES;
LANELL ESTES

                                                                                      Plaintiffs-Appellants,

                                                    versus

USA TRUCK INCORPORATED;
ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,

                                                                                      Defendants-Appellees.



                              Appeal from the United States District Court
                                 for the Western District of Louisiana
                                               (96-CV-1807)

                                             October 29, 1998
Before JOLLY, WIENER, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

        Appellant Stephen Ray Estes, his wife Lanell Estes, and their minor children (collectively “the

Esteses”) seek monetary damages from appellees USA Truck, Inc. and its insurer St. Paul Fire and

Marine Insurance Co. (“USA Truck”) for personal injuries suffered by Stephen Ray Estes (“Estes”).



    *
     Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not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 CIR R. 47.5.4.
Appellees pled comparative fault as an affirmative defense to the Estes’ claims of negligence. Trial

was held limited to the issues of liability and apportionment of fault. At the close of appellants’ case

in chief, appellees moved for judgment as a matter of law pursuant to F.R.C.P. 50. The district court

granted appellees’ motion.

                                    FACTUAL BACKGROUND

         Estes was struck by an automobile driven by Marjorie Trant2 while lending assistance to Willie

Henry (“Henry”), the operator of an 18-wheel truck owned by USA Truck. The accident occurred

on February 5, 1996 at approximately 11:00 p.m. Henry was attempting to deliver goods to Estes

and was having trouble negotiating a left turn from the street on which Henry was traveling onto

Estes’s street. While Estes helped guide the truck onto his street, Trant struck Estes while he was

standing in the southbound lane; the truck was then wholly in the northbound lane. Trant’s lane of

travel, the southbound lane, was completely unimpeded by the truck at the time of the accident.

         The parties stipulate that Trant saw the truck and, before coming completely upon it, realized

that it was stopped in the northbound lane. At trial, Trant testified that she was approximately one-

half mile up the road heading south when she first saw the truck, and she could tell at that point that

it was stopped. Trant also testified that she was a “pretty good distance” from the truck when she

first began applying her brakes. The parties also stipulate that, at all relevant times, Henry had his

headlights and hazard flashers on; however, Henry failed to place any reflective triangles or flares in

the roadway to indicate that the truck was temporarily stopped.



                                            DISCUSSION

I.       Standard of Review

         We review the grant of judgment as a matter of law de novo, applying the same legal standard

that applies to the district court. See Omnitech Int’l Inc. v. Clorox Co., 

, 1322-23 (5th


     2
    Trant is not a party to this litigation, although the jury was allowed to assign a percentage of fault
to her.

                                                    2
Cir. 1994). Judgment as a matter of law is warranted after a party has been fully heard by the jury

on a given issue, and “there is no legally sufficient evidentiary basis for a reasonable jury to have

found for the party with respect to that issue.” Fed. R. Civ. P. 50(a). On review, the record is to be

viewed in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc.,

, 253-55 (1986); Foreman v. Babcock & Wilcox Co., 

, 804 (5th Cir.

1997); Boeing Co. v. Shipman, 

, 374 (5th Cir. 1969) (en banc). The propriety of a

district court’s granting of a motion for judgment as a matter of law, however, “should not be decided

by which side has the better of the case, nor should [it] be granted only when there is a complete

absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence

to create a jury question.” 

.

II.     Sufficiency of the Evidence

        A.      Negligence Per Se

        The Federal Motor Carrier Safety Regulations (“the Safety Regulations”), 49 C.F.R. § 350

et seq., provide the following:


        Whenever a co mmercial motor vehicle is stopped upon the traveled portion of a
        highway or the shoulder of a highway for any cause other than necessary traffic stops,
        the driver of the stopped commercial motor vehicle shall immediately activate the
        vehicular hazard warning signal flashers and continue the flashing until the driver
        places . . . warning devices . . . . The flashing signals shall be used during the time the
        warning devices are picked up for storage before movement of the commercial motor
        vehicle. The flashing lights may be used at other times while a commercial motor
        vehicle is stopped in addition to, but not in lieu of, the warning devices . . . .


49 C.F.R. § 392.22(a) (1998) (emphasis added). The Safety Regulations further mandate that

commercial vehicles must carry three (3) bidirectional emergency reflective triangles, six (6) fuses,

or three (3) liquid-burning flares. See 

and (ii). They also describe the specific

placement of the warning devices. See 

        The Esteses argue that the district court erred in finding that there was not sufficient evidence

for a reasonable jury to find that the negligence, if any, of the appellees was a cause in fact and a legal

cause of Estes’s injuries. The Esteses assert that appellees were per se negligent because Henry failed

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to place warning devices in the roadway as mandated for commercial vehicles by the Safety

Regulations. The Louisiana Supreme Court has, however, rejected the term “negligence per se.” See

Faucheaux v. Terrebonne Consolidated Government, 

, 292 (La. 1993); Weber v.

Phoenix Assurance Co. of New York, 

, 33 (La. 1963). Thus, under Louisiana law,

“[t]he violation of a statute or regulation does not automatically, in and of itself, impose civil

liability.” 

. Consequently, a party will not be held to have been

negligent merely because of a finding of a cause in fact and/or a statutory or regulatory violation

without an additional finding that the party’s actions were a legal cause of the injuries inflicted. See

.

         Despite the fact that Henry’s violation of the safety regulations did not constitute negligence

per se, the Esteses are nonetheless not foreclosed from showing that his inaction amounted to

ordinary negligence.

B.       Ordinary Negligence

         In Louisiana, a plaintiff est ablishes a prima facie case of negligence by demonstrating the

existence of the following element s: duty, breach, cause in fact, legal cause, and damages. See

Fowler v. Roberts, 556 So.2d 1,4 (La. 1990); see also Roberts v. Benoit, 

, 1041 (La.

1992); David W. Robertson,3 The Vocabulary of Negligence: Continuing Causation Confusion 58

LA. L. REV. 1, 4, n. 12 (1997). There is no dispute between the parties as to whether Henry, the

driver of the truck, breached his duty under the Safety Regulations. The dispute here concerns

whether that breach was a cause in fact and a legal cause of Estes’ injuries.

                1.      Factual Causation

         In determining whether the breach of duty committed by the defendant is the cause in fact of

the plaintiff’s injuries, one asks the classic “but-for” question: “Would the plaintiff’s injuries have been

avoided but for the action or inaction of the defendant?” In the instant case, the question is

     3
    W. Page Keeton Chair in Tort Law, University of Texas at Austin. This article is a revision of
a paper delivered to the Summer School for Judges conducted by the Louisiana Judicial College in
June 1997.

                                                     4
formulated thusly: would Estes have been struck (or at least would he have been struck with less

force) had Henry placed the requisite warning signals in the roadway?

        Trant, the driver of the vehicle that struck Estes, testified that, although she was able to see

the flashing hazard lights of the truck from some distance—and notwithstanding the fact that the

truck’s headlights were blinding her—she only slightly reduced the speed of her car (from 45 miles

per hour to 40). Appellees contend that this fact proves that, had there been more extensive warning

apparatuses in the road, Trant would not have slowed down any further. Despite, appellees’

assertion, it appears that one could reasonably conclude otherwise. For instance, one could conclude

that additional warning apparatuses would have given Trant reason to reduce her speed even more,

as she had already testified that she was inclined to reduce her speed when some warning was

provided. Thus, it appears that a reasonable jury could have found that Henry’s inaction was a cause

in fact of Estes’ injuries.

                2.       Legal Causation

        In determining whether Henry’s failure to comply with the safety regulations was a legal cause

of Estes’ injuries, one must perform a "scope of protection inquiry" which entails ascertaining the

following: “Was the rule of law violated by the defendant designed to protect the plaintiff’s general

class of persons against the harm the plaintiff suffered?” 

; see also Mathieu

v. Imperial Toy Corp. 

, 322 (La. 1994).

        The Esteses argue that Estes was among the class of persons that the Safety Regulations were

meant to protect. However, the administrative history of the Safety Regulations states that they were

put into place in order “to reduce deaths due to rear end collisions between oncoming traffic and

disabled vehicles.” 37 Fed.Reg.5038 (March 9, 1972) (emphasis added). This information suggests

that Henry’s failure to comply with the safety regulations, though a breach of duty, and possibly a

cause in fact of Estes’ injuries, could not have reasonably been found to be a legal cause of the

injuries because the regulations were put in place solely to protect those driving in the same lane of

traffic as the disabled commercial vehicle. If we accept this reasoning, neither Trant nor Estes was


                                                   5
among the class of persons that the Safety Regulations were meant to protect, and no reasonable jury

could find that the appellees’ inaction was a legal cause of Estes’s injuries. Thus, the Estes’ claim

for damages would fail as a matter of law.

        We have trouble accepting the proposition that the regulations were put in place solely to

protect those driving in the same lane of traffic as the disabled commercial vehicle. If the regulations

were intended only to guard against rear end collisions, why do they require drivers o f disabled

vehicles to place one triangle in front of the vehicle? We cannot ascribe surplusage to statutes or

regulations, yet the forward triangle would be just that if the sole purpose of the Safety Regulations

were to keep same-lane traffic from rear-ending a stopped truck. Clearly, a motorist approaching

from the rear would not be able to see such a warning.

        Furthermore, in interpreting a Louisiana regulation almost identical to the federal one at issue

in this case, Louisiana courts have fashioned a much broader purpose for the requirement of warning

triangles, flares, and torches: “The statute is a safety measure designed to protect life and property

on the highways by providing some type of warning signals to motorists approaching disabled

vehicles.” Nelson v. Powers, 

, 134 (La. Ct. App. 1981). Finally the Supreme Court

has warned against relying too heavily on legislative or administrative history when statutory language

is clear. See, e.g., Salinas v. United States, 

, 474 (1997); Ardestani v. INS, 

, 135-36 (1991).

        Whereas a reasonable construction of the regulation might be that it was intended to protect

only against rear-end collisions, it seems at least equally, if not more, plausible that—as the Esteses

urge—the requirement of warning triangles was designed to protect the disabled vehicle, other

vehicles, and any person, including the driver, who might be attending to a problem with the disabled

vehicle, regardless of the direction from which the “warnee” might be approaching. As the Esteses

insist, “[f]or the regulation to be meaningful at all it has to encompass not only the stopped truck and

the approaching motorists but persons who might reasonably be expected to be in the vicinity.”




                                                   6
       Louisiana law establishes a rebuttable presumption that the causation issue will go to the jury

“unless reasonable minds could not differ.” Williams v. State of Louisiana, 

, 493 (La.

1991). As we have demonstrated above, the Estes submitted sufficient evidence of causation to be

entitled to have their claim decided by the jury.

III.   Comparative Fault

       The Esteses argue that the district court committed reversible error when it granted appellees’

motion for judgment as a matter of law because there existed well-pled issues of comparative fault

under La.C.C.Art. 2323. It is unnecessary for us to determine the percentage of fault absent an actual

finding of negligence. We have merely found that Estes submitted sufficient evidence of causation

to go to the jury. If the jury finds that the defendants were negligent, it will then be proper for them

to consider the issue of comparative fault. See Murray v. Ramada Inns, Inc., 

, 1136

(La. 1991).

                                          CONCLUSION

       There exists legally sufficient evidentiary bases for the jury to have found for Estes with

respect to the issue of negligence on the part of the appellees. Therefore, the district court’s

granting of judgment as a matter of law in favor of appellees is REVERSED and the case is

REMANDED for further proceedings consistent with this opinion.




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