Lauing v. Rapid City, Pierre & E. R.R., Inc.
| Decision Date | 08 July 2022 |
| Docket Number | 3:19-CV-03006-RAL |
| Citation | 610 F.Supp.3d 1203 |
| Parties | John Dustin LAUING, Bernard Lauing, Eugenie Lauing, Plaintiffs, v. RAPID CITY, PIERRE AND EASTERN RAILROAD, INC., a Subsidiary of Genesee & Wyoming, Inc., a Connecticut Corporation, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Vincent A. Purtell, Scott N. Heidepriem, Matthew A. Tysdal, Heidepriem, Purtell, Siegel & Hinrichs LLP, Sioux Falls, SD, for Plaintiffs.
Steven Thomas Williams, Knight Nicastro MacKay, LLC, Billings, MT, Cassidy M. Stalley, Jeffery D. Collins, Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, SD, Chad M. Knight, Pro Hac Vice, Charlotte A. Johnston, Pro Hac Vice, Knight Nicastro MacKay LLC, Boulder, CO, for Defendant.
Plaintiffs John Dustin Lauing, Bernard Lauing, and Eugenie Lauing sued Rapid City, Pierre, and Eastern Railroad, Inc. (RCPE), over a fire that spread over several hundred acres of their land. The Lauings allege that a passing RCPE train started the fire in RCPE's right-of-way and that the fire then spread to their abutting property. They claim that RCPE was negligent in operating and maintaining its train and by failing to keep its right-of-way reasonably free of combustible material. RCPE moved for summary judgment, arguing that the Lauings lack evidence that it was negligent and that their claims fail without expert testimony that its train caused the fire. This Court denies RCPE's motion for summary judgment because there are genuine disputes of material fact on whether RCPE was negligent and the facts are simple enough that a lay person would not need an expert's help to decide whether RCPE's train caused the fire.
Darrell Peterman and his wife Elaine were hunting rattlesnakes south of Blunt, South Dakota on the afternoon of August 25, 2018. Doc. 45-1 at 2–3; Doc. 45-2 at 2. Two individuals familiar with the area led the Petermans to a pasture where they could find some snakes. Doc. 58-2 at 2–3; Doc. 58-1 at 3. Southwest of the Petermans’ location was a railroad track owned by RCPE. Doc. 45-1 at 4. The Petermans were parked on a hill located about a half mile to a mile from the tracks when Elaine saw a train approaching from the south. Doc. 45-1 at 5; Doc. 45-2 at 2; Doc. 58-1 at 10. As the train passed the Petermans, Elaine saw smoke appear on the far side of the tracks near the back of the train, followed momentarily by flames. Doc. 45-2 at 3–6; Doc. 58-1 at 6, 10; Doc. 45-1 at 5–6; Doc. 58-2 at 6–7. Darrell testified that the smoke was coming from a point close to the tracks and that the flames spread quickly from there. Doc. 45-1 at 7; Doc. 58-2 at 6–7. One of the men who had led the Petermans to the pasture called the Blunt Fire Department. Doc. 45-1 at 8.
The Petermans testified that before the train arrived, they did not see any vehicles or people in the area of the fire, although Elaine acknowledged that they hadn't been parked on the hill long and that she did not know who may have been through the area before they arrived. Doc. 45-1 at 10; Doc. 45-2 at 6–7; Doc. 58-1 at 11–12. Darrell remembered a strong wind blowing from the southeast but said that it was otherwise a nice day with clear skies. Doc. 45-1 at 7, 10–12. He also remembered that the "engine was working, you know, trying to gain speed" as the train passed them, Doc. 45-1 at 7, but said that he did not see any smoke or sparks coming from the train or anything hanging down from the train that could have caused a spark, Doc. 58-2 at 6–8. Other than testifying to seeing smoke on the far side of the tracks as the train passed and then seeing flames, Elaine said that she did not know how the fire started and that she did not see anything come off the train or any smoke on the locomotive or railcars. Doc. 58-1 at 6, 9.
Upon learning of the fire, Bernard and Eugenie Lauing went to their pasture and moved their cattle away from the flames. Doc. 63 at ¶ 8; Doc. 62-3 at 2; Doc. 64 at ¶ 8. The Blunt Fire Department arrived around two in the afternoon. Doc. 45-3 at 2–3. It took five hours, forty people, and twenty-one firefighting apparatuses to fully contain the fire. Doc. 45-3 at 3. Blunt Fire Chief Travis Heuertz testified that the fire started "right along the tracks within that hundred foot or so of the [railroad] bridge." Doc. 45-3 at 2. Heuertz determined this was so because the wind was blowing out of the "east-southeast" at about 25 miles per hour and thus would not have allowed the fire to back burn "much if at all." Doc. 45-3 at 2. When asked if he could determine whether the fire started on RCPE's right-of-way, Heuertz testified that the fire "probably" started "within 20 to 30 feet of the tracks." Doc. 45-3 at 2. He further explained that the "railroad tracks probably had the best fuel there was in the right-of-way," and that the fuel pattern supported his determination that the fire started within twenty to thirty feet of the tracks. Doc. 45-3 at 2. Heuertz also testified that aerial photographs showing RCPE's right-of-way and the portion of the Lauing ranch that was burned by the fire suggested that the right-of-way may have had more abundant vegetation than the Lauings’ pasture. Doc. 45-3 at 4–5; Doc. 45-13 at 4. Heuertz acknowledged, however, that he did not know what caused the fire to ignite and that he was unaware of anything that RCPE did negligently to cause the fire. Doc. 39 at ¶¶ 4–5; Doc. 44 at ¶¶ 4–5; Doc. 58-4 at 6–8.
According to an affidavit from John Dustin Lauing, RCPE's right-of-way in the area Heuertz believes the fire started measures about 97 feet from the edge of the ballast rock to the fence line. Doc. 46 at ¶¶ 7–8. John Dustin testified that a few days after the fire, he observed tall vegetation, broken railroad ties, and spray paint cans in RCPE's right-of-way. Doc. 45-4 at 2. The railroad ties were still smoldering. Doc. 45-4 at 2. Bernard Lauing testified that RCPE did not do anything to control the vegetation. Doc. 45-5 at 2. The Lauings cite to pictures of RCPE's right-of-way to support their claim that it contained combustible materials. Doc. 43; Doc. 45-16.
The Blunt Fire Department sent RCPE an invoice for the costs of fighting the fire because it believed that the fire started on RCPE's right-of-way. Doc. 45-3 at 6–7. RCPE did not pay the invoice. Doc. 45-3 at 7.
Daniel Dalton, RCPE's general manager, learned of the fire a few days after it occurred. Doc. 45-8 at 2. Dalton ordered an inspection of the inductor tubes and carbon traps on the locomotives for cleanliness and carbon build up. Doc. 45-8 at 3. Mike Harms, a locomotive mechanic for RCPE, examined the locomotives in Rapid City. Doc. 58-6 at 2, Doc. 45-9 at 3. Harms did not know how the locomotives arrived in Rapid City from Huron nor how long after the fire his inspection occurred. Doc. 45-9 at 2–3. He testified that the exhaust stacks "looked good," that the carbon buildup on the inductor tube was not "anything more than normal," and that his inspection indicated that the locomotives did not cause the fire. Doc. 58-6 at 4, 8–9. Harms did not create a written report of his inspection and did not examine anything on the locomotives beyond the exhaust stacks and inductor tubes. Doc. 45-9 at 3. Workload reports from RCPE show that one of the locomotives required repairs in May 2018 for a defect that caused a "large cable" to burn, and the other locomotive required repairs in July 2018 for a defect that caused a coil to burn. Doc. 45-8 at 6–7; Doc. 45-14.
Dalton wanted the railcars on the train inspected but believes that some of them were not inspected because of problems locating them. Doc. 45-8 at 3, 7. He also reviewed the rear-facing camera from the train but did not see anything noteworthy. Doc. 58-3 at 2. His investigation of the fire thus consisted of viewing the rear-facing camera footage, having the inductor tubes and carbon traps examined, and having the railcars RCPE could find inspected. Doc. 45-8 at 4. Dalton believed that his investigation was sufficient to rule out RCPE's train as the cause of the fire. Doc. 45-8 at 5.
The Lauings’ expert rebuttal witness Brandon Ogden disagreed, opining that RCPE's investigation was too cursory and untimely to be able to conclude that its train did not start the fire. Doc. 48-10 at 5–10; Doc. 45-11 at 2. Ogden explained that locomotive and rail car inspections should occur immediately after a fire because evidence can become difficult to detect even a few days later. Doc. 48-10 at 8; Doc. 45-11 at 3. In Ogden's view, RCPE's "failed inspection and investigation protocol" meant that "many common railroad causes of sparks that can ignite a fire cannot be ruled out as a potential cause." Doc. 48-10 at 8. Ogden also opined that RCPE failed to reasonably maintain its right-of-way. Doc. 48-10 at 9.
The Lauings sued RCPE, claiming it was negligent by, among other things, failing to properly operate, maintain, control, and monitor its train and equipment and failing to keep its right-of-way reasonably free of combustible matter. Doc. 1 at ¶ 13. RCPE moved for summary judgment, arguing that the Lauings lack evidence that it was negligent and that their claims fail without expert testimony that it caused the fire. Docs. 36, 37. RCPE also moved to exclude Ogden as an expert witness. Doc. 40.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56(a) places the burden initially on the moving party to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has...
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