Cardenas v. Kanco Hay, L.L.C.
| Decision Date | 18 July 2016 |
| Docket Number | Case No. 14-1067-SAC |
| Parties | CELESTINO CARDENAS, Plaintiff, v. KANCO HAY, L.L.C., Defendant. |
| Court | U.S. District Court — District of Kansas |
This is a personal injury action over which the court has diversity jurisdiction. Plaintiff, a self-employed trucker, was seriously injured on defendant's premises after falling while tarping a partial load of hay on his semi-trailer truck. This case is now before the court upon: defendant KanCo's motion for summary judgment (Doc. No. 67); plaintiff's motion for partial summary judgment (Doc. No. 64); and KanCo's motion in limine (Doc. No. 65). The court shall first discuss KanCo's motion for summary judgment.1
Summary judgment is warranted if the materials on record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.CIV.P. 56(a). The court views "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). The evidence presented must be based on more than mere speculation, conjecture, or surmise to defeat a motion for summary judgment. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999).
KanCo is a business which produces, sells and transports hay. It is located in Hamilton County, Kansas in or near Coolidge, Kansas. KanCo ships thousands of tons of hay from its premises to several states. It also has a tractor-trailer "fleet" which includes six power units and 12 semi-trailers.
In February 2012, KanCo sold approximately 150 tons of alfalfa hay to Core Business Solutions, LLC to be delivered to Mississippi. Core Business Solutions (CBS) required that the hay be covered with tarps while in transit.
KanCo hired a transportation company, Total Quality Logistics (TQL), to furnish the trucks to haul the hay to Mississippi. KanCo paid TQL for the transportation. TQL paid the truck driver. KanCo's agreement with TQL provided that the loads of hay be tarped. Prior to March 5, 2012, six loads of hay were transported to Mississippi for KanCo by six different trucks and drivers arranged for by TQL.
Plaintiff, the owner and sole employee of Cardenas Trucking, agreed with TQL to transport a load of hay from KanCo's premises to Mississippi. This would be a partial load to finish the contract between KanCo and CBS. Plaintiff had been a self-employed truck driver since 1997. He owned his truck and trailer. This was his first trip to KanCo's premises and he did not speak with anyone from KanCo before arriving there. On the date of his injuries in this case, plaintiff was 65 years old.
When plaintiff arrived at KanCo on March 5, 2012, he weighed his empty truck on a scales and then, with directions from a KanCo employee, he drove the truck to the loading site. A KanCo employee loaded hay onto the truck. It was approximately a one-half load and it was not stacked at a uniform height on the truck. At the front of the flatbed, the hay was stacked more than 13 feet above the ground.
After the truck was loaded, plaintiff drove back to the scales to measure the weight of the load - 23,400 pounds. A KanCo employee then told plaintiff where he could drive the truck (approximately 200 feet on KanCo's premises) to tarp the load. Plaintiff testified that he was not told beforehand he was going to have to tarp the load. He further testified that, before starting to tarp the load, he inquired about safety protection for when he had to climb on top of the load. But, none was provided. He further testified that he was told by a KanCo employee:
Plaintiff testified that he said he had never tarped a load like this without safety protection.
Another trucker who earlier drove a load of hay from KanCo to Mississippi has stated in an affidavit (Doc. No. 84-2) thathe was told by KanCo that he had to climb on top of the load to tarp it. He said he was told: "That's the rules" and "you have to do it that way, or we will take it off." Unlike plaintiff, the trucker asked for and received help, apparently from a couple of KanCo employees, one of whom climbed on top of the load.
KanCo offered a ladder to plaintiff for use in climbing the load. Plaintiff used that ladder, although his own ladder was tied to the truck. It is undisputed that plaintiff did not fall from the ladder when he was injured.
Plaintiff owned tarps, took his tarps with him to KanCo, and used his tarps to tarp the load. It is agreed that KanCo did not tell plaintiff how to secure the tarp on the load and plaintiff did not ask for direction or assistance after he was told there was no safety protection. There is evidence that a KanCo employee, in conformance with KanCo's past practice, used a machine to place plaintiff's rolled-up tarp at the top of the load. Plaintiff had experience tarping loads during his trucking career. He testified that nobody needed to tell him how to tarp his load. No KanCo employees were watching as plaintiff climbed on top of the hay.
Plaintiff unrolled the tarp over the front of the load. The tarp was not tied down at the time of plaintiff's injury. A few minutes after plaintiff was seen on top of his truckspreading the tarp out, he was discovered lying on the ground on the driver's side of the truck. There is no evidence that anyone saw plaintiff fall.
KanCo generally argues that it should be granted summary judgment because it did not owe a duty to plaintiff. Doc. No. 68, p. 12. More specifically, KanCo asserts that it did not have a duty to supply "fall protection" to protect plaintiff from the hazards which were incidental to the work which plaintiff contracted to perform. And, KanCo claims that it did not have a duty to protect plaintiff from an open and obvious danger.
In response, plaintiff claims that KanCo's arguments do not consider plaintiff's contention that KanCo was negligent in loading the hay onto plaintiff's truck. Plaintiff further claims that KanCo had a duty of care because of its control over the loading and tarping activity on its premises. Plaintiff also argues a duty of care arose because KanCo was aware that plaintiff would likely choose to encounter the danger of tarping the partial load without fall protection. Finally, plaintiff contends that a duty of care arose from the foreseeability of a serious risk harm on KanCo's premises, even if the danger was open and obvious.
The court applies Kansas substantive law and federal procedural law to this case. See Jones v. United Parcel Service, Inc., 674 F.3d 1187, 1195 (10th Cir.) cert. denied, 133 S.Ct. 413 (2012).
"A plaintiff in a negligence action must prove four elements: a duty owed to the plaintiff, breach of that duty, the breach of duty was the cause of the injury to the plaintiff, and damages suffered by the plaintiff." Shirley v. Glass, 308 P.3d 1, 6 (Kan. 2013). For a duty of care to exist, the plaintiff must be a foreseeable plaintiff and the probability of harm must be foreseeable. Berry v. National Medical Services, Inc., 257 P.3d 287, 290 (Kan. 2011). Whether a duty exists is a question of law and whether the duty has been breached is a question of fact. Nolde v. Hamm Asphalt Inc., 202 F.Supp.2d 1257, 1261 (D. Kan. 2002)(quoting Nero v. Kansas State University, 861 P.2d 768, 772 (Kan. 1993)). Summary judgment may be granted, however, when the facts present only one reasonable conclusion. Id.
Everyone is under a general duty to exercise reasonable care under the circumstances to avoid injury to others. See Striplin v. Kansas Gas & Electric Co., 461 P.2d 825, 828 (Kan. 1969); Alford Ranches, LLC v. TGC Industries, Inc., 2015 WL9591354 *10-11 (Kan. App. 12/31/2015). According to the RESTATEMENT (Second) OF TORTS § 302, Comment a (1965): "In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act."2 "Negligence" encompasses the concepts of duty and breach. Fieser v. Kansas State Board of Healing Arts, 130 P.3d 555, 558 (Kan. 2006).
[N]egligence is determined by weighing the magnitude of the risk involved against the utility of the actor's conduct. If the probability of the negligent conduct of another is relatively slight, or if the harm to be expected from it is relatively slight, and the utility of the actor's conduct is relatively great in proportion, the actor may be entitled to ignore the risk, and proceed on the assumption that others will act in a reasonable manner. On the other hand, if the actor knows or should realize that there is a serious chance of grave harm to valuable interests of others, and the utility of his own conduct is less than the risk, he is required to take precautions against the negligence of others which a reasonable man would take under like circumstances.
RESTATEMENT (Second) OF TORTS § 302A, Comment d, (1965); see also RESTATEMENT (Second) OF TORTS § 291 (1965). The court believes Kansas law is consistent with these provisions. For instance, the Kansas Supreme Court has held that a landowner is subject to liability if its direct negligence causes injury to an independent contractor's employee while the employee isworking on the landowner's property. See Herrell v. National Beef Packing Co., 259...
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