Cuiksa v. Hallmark Hall of Fame Productions, Inc.

Citation252 F.Supp.2d 1166
Decision Date14 March 2003
Docket NumberNo. 00-1389-JAR.,00-1389-JAR.
PartiesJason Eric CUIKSA, Plaintiff, v. HALLMARK HALL OF FAME PRODUCTIONS, INC., and McGee Street Productions, Inc. Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

Troy H. Gott, Gary E. Patterson, Patterson, Gott & Graybill, Wichita, KS, John P. Sheehy, Michael C. Snyder, Meshbesher & Spence, Ltd., Minneapolis, MN, for plaintiff.

Philip R. Dupont, Ronald D. Marney, II, Husch & Eppenberger, LLC, Kansas City, MO, Michael J. Mohlman, Sly James Firm, Trial Lawyers, PC, Kansas City, MO, Kirsten Roth, Blackwell Sanders Peper Martin LLP, Two, Kansas City, MO, for defendants.


ROBINSON, District Judge.

This matter is before the court on defendants' McGee Street Productions, Inc. ("McGee") and Hallmark Hall of Fame Productions, Inc. ("Hallmark") Motion(s) for Summary Judgment (Docs. 117 and 116), brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff has filed a response (Doc. 129) and defendants have filed replies to plaintiffs response (Docs. 138 and 139). Additionally, plaintiff filed a Surreply including a Motion To Strike New Issue raised by defendants in their reply memorandums (Doc. 142) and defendants filed Motions to Strike the Surreply of plaintiff, or in the alternative, responses to plaintiffs Surreply (Docs. 143 and 145). Finally, plaintiff filed a motion to consider new evidence (Doc. 147). Plaintiffs complaint alleges claims of negligence against both McGee and Hallmark.


The following facts concerning plaintiffs claims are either uncontroverted or, if controverted, are construed in the light most favorable to plaintiff.

McGee is a wholly owned subsidiary of Hallmark, established for the production of Hallmark movies. McGee is incorporated and has its principal place of business in California. Hallmark is a Delaware corporation, with its principal place of business in Missouri. Plaintiff is a resident of Kansas. All incidents relevant to plaintiffsclaim occurred in Osage County, Kansas.

McGee contracted with Hallmark in January of 1998 to produce Sarah Plain and Tall: Winters End ("Sarah III"). McGee came to Osage County, Kansas in February of 1999 to film Sarah III. McGee contracted with a local land owner for the use of his property during the period of filming. (Pl.Ex. 3). D & D Equipment & Sales, Inc. ("D & D") rented, sold and leased heavy equipment. McGee contracted with D & D for the use of its equipment during the production of Sarah III. The contract between McGee and D & D included repair and replacement services. Plaintiff was employed by D & D when the events giving rise to this action occurred.

One piece of equipment supplied by D & D, the Condor telescoping manlift ("Condor"), malfunctioned on April 16,1999. An unknown person on the set of Sarah III hot-wired the Condor and moved it off to the side of the road. At the time the Condor was hot-wired, no D & D employees were on the production set of Sarah III. The unknown person parked the Condor adjacent to or partially beneath a high voltage (11,000 volts), uninsulated power line so that the Condor was within 27 feet of the power line, while unextended. The transportation department and the electric department on the production set decided to park the Condor at this location because it was a "safe place to park it out of harm's way." (Pl.Ex. 19, p. 32, 1-12). A parking lot was available, but did not have enough room to park the Condor. Steve Pape, a supervisor on the McGee set, knew the Condor was parked adjacent to the power lines.

McGee contacted D & D to advise them that unless D & D could replace or repair the Condor by the following morning, McGee would seek out another machine. That evening, D & D sent plaintiff and Kelly Brown ("Brown") to the movie set in Osage County, to repair the Condor. When plaintiff and Brown arrived at the set, a "flagger" stopped them at the entrance and had them wait for a disputed period of time, to allow for a break in filming. The "flagger" told Brown and plaintiff to use only their parking lights in traveling to the site of the Condor so as not to interfere with the filming. By this time, it was dark outside.

When Brown and plaintiff inspected the Condor, they found that it did not need repair. There was a simple reason why McGee employees could not keep the Condor running; someone had flipped the safety-kill switch. So, Brown reset the switch and asked plaintiff to "load the hydraulics" to make sure it worked properly. Deposition testimony revealed that to "load the hydraulics" means to test the movement of the machine up, down and from side to side. When plaintiff raised the bucket to test its functions, he came in contact with the uninsulated, high voltage power lines and was electrocuted. Plaintiff suffered severe burns and the amputation of both hands.

No one on the McGee set had warned plaintiff or Brown that the Condor was parked under or adjacent to the power lines. Both plaintiff and Brown testified that the lines were not visible against the night sky. Brown testified that he asked someone on the McGee lot, whose identity is disputed, whether there were any obstructions they should be aware of and was advised that there were none.

Any pertinent facts relating to the relationship between Hallmark and McGee will be included in Section IV below.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." 1 There is a "genuine" issue of material fact if a reasonable jury could return a verdict for the nonmoving party.2 Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."3

The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. This may be met by showing that there is a lack of evidence to support the nonmoving party's case.4 Once the moving party properly supports its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial.5 "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."6 Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.7 The Court must consider the record in the light most favorable to the nonmoving party.8


Because each defendant argues for summary judgment based on different theories, the defendants' motions will be taken in turn.9

A. Defendant McGee`s Motion for Summary Judgment

McGee seeks summary judgment based on the exclusive remedy provision of the Kansas Workers' Compensation Act ("KWCA").10 McGee also argues that it owed no duty to plaintiff under the rule set out in Dillard v. Strecker.11 These arguments are inextricably entwined as much of Dillard's analysis relies on the exclusive remedy provision of the KWCA and the policy behind that statute.

Kansas law provides that an employee may not recover twice from an employer for an injury that is covered by workers' compensation.

Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workers compensation is payable by such employer.12

The exclusive remedy provision protects both employers and employees. Employees are guaranteed a form of recovery against their employer; and employers are protected against paying for the employees damages twice—-once through workers' compensation and again through a civil action for damages. "The provisions of the Act are to be liberallyconstrued for the purpose of bringing a worker under the Act whether or not desirable for the specific individual's circumstances."


The Act extends to those employers who may not be the immediate employers of the injured party. The purpose of K.S.A. 44-503(a) is "to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as part of their trade or business."


Where any person (in this section referred to as principal) undertakes to execute any work which is a part of the principal's trade or business or which the principal has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any worker employed in the execution of the work any compensation under the workers compensation act which the principal would have been liable to pay if that worker had been immediately employed by the principal; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workers compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed. For the purposes of this subsection, a worker shall not include an...

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11 cases
  • Hauptman v. Wmc, Inc.
    • United States
    • Kansas Court of Appeals
    • January 29, 2010
    ...Moreover, the Kansas federal district court has specifically limited Dillard to its facts. See Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F.Supp.2d 1166, 1174-75 (D.Kan.2003); Martin v. MAPCO Ammonia Pipeline, Inc., 1994 WL 409591, at * 5-8 (D.Kan.1994) (unpublished opinion). Th......
  • Herrell v. Nat'l Beef Packing Co. Llc, 99,451.
    • United States
    • Kansas Supreme Court
    • August 12, 2011
    ...landowners, injured employees of independent contractors; issue not directly determinative); Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F.Supp.2d 1166, 1175 (D.Kan.2003) (limiting reach of Dillard to landowner defendants); Martin v. Mapco Ammonia Pipeline, Inc., Nos. CIV.A. 93–2......
  • Herrell v. Nat'l Beef Packing Co., 99
    • United States
    • Kansas Supreme Court
    • August 12, 2011
    ...landowners, injured employees of independent contractors; issue not directly determinative); Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F. Supp. 2d 1166, 1175 (D. Kan. 2003) (limiting reach of Dillard to landowner defendants); Martin v. Mapco Ammonia Pipline, Inc., Nos. CIV.A. 9......
  • Herrell v. National Beef Packing Co., LLC
    • United States
    • Kansas Court of Appeals
    • February 27, 2009
    ...WL 409591, at *7. Moreover, in adopting the Martin rationale, our Kansas federal district court in Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F.Supp.2d 1166, 1175 (D.Kan.2003), "Given this limitation by the [Dillard] court, and the interpretation of that limitation by this court......
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