Biggers on Behalf of Key v. Southern Ry. Co.
| Decision Date | 17 March 1993 |
| Docket Number | Civ. No. 1:90-CV-1710-JEC. |
| Citation | 820 F. Supp. 1409 |
| Parties | Lesa Key BIGGERS, On behalf of minors Timothy Byron KEY, Jennifer Lorraine Key, and William Jason Key, Plaintiff, v. SOUTHERN RAILWAY COMPANY, and City of Duluth, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
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Christopher David Langley, Decatur, GA, for plaintiff.
Edgar A. Neely, Jr., William C. Thompson, Neely & Player, R. Clay Porter, Craig Peter Siegenthaler, Dennis, Corry, Porter & Gray, Atlanta, GA, for defendants.
This case is presently before the Court on plaintiff's motion for leave to file supplemental reply brief # 81-1, plaintiff's motion to strike "Exhibit H" to defendant City of Duluth's reply # 77-1, # 64-1, plaintiff's motion for partial summary judgment # 72-1, # 40-1, defendant City of Duluth's motion to file motion to dismiss # 66-1, plaintiff's motion to reopen record to allow rebuttal evidence to "Exhibit H" # 64-2, defendant City of Duluth's motion for summary judgment # 38-1, defendant Southern Railway Company's motion for summary judgment # 39-1, 39-2, defendant Southern Railway's motion to file excess pages limitation # 44-1, and plaintiff's motion to strike defendant Southern Railway's brief in support of motion for summary judgment # 41-1.
The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, grants plaintiff's motion for leave to file supplemental reply brief # 81-1, denies plaintiff's motion to strike "Exhibit H" to defendant City of Duluth's reply # 77-1, # 64-1, denies plaintiff's motion for partial summary judgment # 72-1, # 40-1, denies defendant City of Duluth's motion to file motion to dismiss # 66-1, denies plaintiff's motion to reopen record to allow rebuttal evidence to "Exhibit H" # 64-2, grants defendant City of Duluth's motion for summary judgment # 38-1, grants in part and denies in part defendant Southern Railway Company's motion for summary judgment # 39-1, 39-2, denies defendant Southern Railway's motion to file excess pages limitation # 44-1, and denies plaintiff's motion to strike defendant Southern Railway's brief in support of motion for summary judgment # 41-1.
On August 4, 1989 at approximately 12:40 a.m., Stephen Key, the decedent, was involved in a fatal collision involving his van and a train owned and operated by Southern Railway. The decedent was employed as a welder by Southeastern Railway, and his work shift on the night of the collision ended at approximately 12:30 a.m. The railroad crossing where the collision occurred is located within the geographical limits of the City of Duluth, Georgia and is sometimes referred to as "Parson's Crossing." Plaintiff asserts that a railroad crossbuck sign and a stop sign were the only signs on the west entrance to Parson's Crossing. Duluth and Southern Railway contend, however, that there were two crossbuck signs and a stop sign.
On March 4, 1988, Southern Railway and the Georgia Department of Transportation had entered into an agreement concerning the installation of signals at Parson's Crossing. The contract was modified in February 1989. The new signals had not been installed by the time of this incident, however.
The plaintiff, Lesa Key Biggers, has brought suit on behalf of her three minor children against Southern Railway Company ("Southern Railway") and the City of Duluth ("Duluth"). Plaintiff alleges that both the City of Duluth and Southern Railway were negligent and caused the accident.
Originally, two other plaintiffs were also parties to the suit, but those plaintiffs have dismissed their claims. Plaintiff Lesa Biggers has filed an amended complaint that reflects the dismissal of the other plaintiffs. Because the parties have expressed some confusion as to which complaint controls in this case, the Court declares that the amended complaint is the operative complaint for the suit.
After it had filed a motion for summary judgment, Defendant Duluth filed a "Motion for Leave to file a Motion to Dismiss." Duluth asserted that it had recently learned that the 1990 amendment to Article I, Section II, Paragraph IX of the Georgia Constitution removed Duluth's waiver of sovereign immunity and provided that a city would be immune from a torts-based lawsuit unless the Georgia General Assembly passed a State Tort Claims Act which specifically waived a city's sovereign immunity. In its motion to dismiss, Duluth cited several Georgia Superior Court orders in which the Superior Court judges had found that the constitutional amendment applied to incidents that occurred before the amendment became law.
In March 1992, plaintiff filed a motion for leave to file a supplemental reply brief to Duluth's motion. The Court now grants plaintiff's motion. In that motion, plaintiff submitted a copy of the Georgia Supreme Court opinion, Donaldson v. Department of Transportation of Georgia, 262 Ga. 49, 414 S.E.2d 638 (1992), which upheld the validity of the constitutional amendment and held that the amendment should not apply retroactively.
The Court denies Duluth's motion for leave to file a motion to dismiss, because the motion would be futile. The Georgia Supreme Court has now resolved the issue and, because the accident happened before the constitution was amended, sovereign immunity is not a defense for Duluth.
Plaintiff and Duluth object to several of each other's exhibits offered in support of the motions for summary judgment. Even though Rule 56(c) seems to prohibit the Court's consideration of any evidence other than pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, a court may consider any materials that would be admissible at trial when deciding a motion for summary judgment. Cash Inn of Dade, Inc. v. Metropolitan Dade Co., 938 F.2d 1239 (11th Cir.1991).
Plaintiff asserts that the Court should not consider six of the affidavits that defendant Duluth has offered. Plaintiff contends that the affidavits violate Rule 56(e) of the Federal Rules of Civil Procedure because the affiants did not have personal knowledge of the facts in the affidavits.1 In response, Duluth submitted new affidavits from the individuals in which the affiants specified more carefully that their testimony was based upon their personal knowledge. The Court holds that the new affidavits are sufficient under Rule 56(e) and overrules plaintiff's objection.
Plaintiff raises several other objections to Duluth's exhibits and arguments in support of summary judgment. In plaintiff's Objections 1 and 3, plaintiff does not object to the sufficiency of the evidence but instead argues about the credibility of the witnesses and the inferences to be drawn from the evidence. The Court will overrule plaintiff's objections to the extent that plaintiff seeks to preclude the Court from considering defendant's exhibits and arguments. Of course, the Court will consider plaintiff's contentions in determining if a question of fact exists.
Finally, plaintiff objects to Exhibit "H" in Duluth's reply brief. Exhibit H is a certified copy of a state map from the Georgia Department of Transportation. Plaintiff has moved for the Court to strike the exhibit or to allow plaintiff to rebut the evidence. Plaintiff claims that the map violates Rule 901 of the Federal Rules of Evidence, which requires authentication of documents. Defendant Duluth has offered the Treasurer of the Department of Transportation's certified statement declaring that the map is a true and accurate copy of the official highway and transportation map.
Rule 902(5) of the Federal Rules of Evidence provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to official public documents. The rule defines official public documents as "books, pamphlets, or other publications purporting to be issued by a public authority." FED.R.EVID. 902(5). The map at issue is published by the Georgia Department of Transportation and is a "publication purporting to be issued by a public authority" described in Federal Rule of Evidence 902(5). Since the map is admissible under Rule 902(5), the Court denies plaintiff's motion to strike the map.
Plaintiff has requested that the Court allow it to offer rebuttal evidence if the Court does not strike the map. Plaintiff, however, had the opportunity to challenge the content of the map in her response to defendant's motion for summary judgment. Moreover, the Court does not need rebuttal evidence in order to recognize the inherent limitations of such a map. Therefore, the Court denies plaintiff's motion.
Defendant Duluth has also objected to several of plaintiff's exhibits. First, Duluth has moved to strike plaintiff's Exhibit 3. Duluth asserts that a private company made the map, and therefore, the map is not an admissible public document under Rule 902(5). Further, plaintiff has not offered any affidavit or deposition testimony authenticating the document pursuant to Rule 901. Since the exhibit has not been authenticated pursuant to Rule 901 of the Federal Rules of Evidence, the Court grants defendant's objection and will not consider the map in deciding the motion for summary judgment.
Duluth also contends that plaintiff has not authenticated Exhibits "1" and "2" in its responsive pleadings. Exhibits 1 and 2 are plat maps that plaintiff has offered. Duluth asserts that plaintiff has not authenticated or laid a foundation for the maps. Rule 902(4) of the Federal Rules of Evidence provides that extrinsic evidence of authenticity is not necessary with respect to certified copies of public records. Plaintiff, however, has not offered certified copies of the plats or shown...
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