Nolde v. Hamm Asphalt, Inc.

• Decision Date: 10 May 2002
• Docket Number: No. 00-2243-DES.,00-2243-DES.
• Citation: 202 F.Supp.2d 1257
• Parties: Terry D. NOLDE, Plaintiff, v. HAMM ASPHALT, INC., Defendant/Third-Party Plaintiff, v. Dustrol, Inc., Third-Party Defendant.
• Court: U.S. District Court — District of Kansas

Page 1257

202 F.Supp.2d 1257

Terry D. NOLDE, Plaintiff, v. HAMM ASPHALT, INC., Defendant/Third-Party Plaintiff, v. Dustrol, Inc., Third-Party Defendant.

No. 00-2243-DES.

United States District Court, D. Kansas.

May 10, 2002.

Keith E. Renner, Barnett & Renner, PA, Auburn, KS, for Plaintiff.

Eric A, Van Beber, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, Lynn W. Hursh, Darren K. Sharp, Armstrong Teasdale LLP, Kansas City, MO, Daniel P. Hanson, Hanson & Gurney, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on Defendant/Third-Party Plaintiff Hamm Asphalt, Inc.'s ("Hamm") Motion for Summary Judgment (Doc. 83); Third-Party Defendant Dustrol, Inc.'s ("Dustrol") Motion for Summary Judgment (Doc. 78); and Hamm's Motion for Revisions to Pretrial Order (Doc. 88). Within this diversity action, plaintiff alleges Hamm is liable for injuries he sustained as a result of a motorcycle accident, which occurred on a section of public highway being reconditioned by Hamm and Dustrol. Hamm alleges it is entitled to be indemnified by Dustrol. For the following reasons, Hamm's motion for summary judgment is denied, Dustrol's motion for summary judgment is granted in part and denied in part, and Hamm's motion for revisions is granted.

I. BACKGROUND

At approximately 2:30 a.m., on June 15, 1998, while riding his motorcycle through a construction zone along Highway 75 in Brown County, Kansas, plaintiff was involved in a single motorcycle accident. Unfortunately, plaintiff has no memory of the events preceding the accident, the accident itself, or the days following the accident. Plaintiff was, however, accompanied on the ride by his friend and riding companion, Bobby Greeno ("Greeno"). Greeno was riding his own motorcycle ahead of plaintiff at the time of the accident. Due to plaintiff's complete memory loss, Greeno is the only available witness to the accident.

Within his Amended Complaint (Doc. 28), plaintiff alleges negligence against Hamm for its failure to maintain and warn of the condition of the roadway where plaintiff's accident occurred. In turn, Hamm filed a Third-Party Complaint (Doc. 26) against Dustrol claiming both common law and contractual rights to indemnification.

On December 31, 1997, Hamm entered into a contract with the Kansas Department of Transportation ("KDOT") to surface recycle and bituminous overlay the portion of Highway 75 at issue in this case. Thereafter, on January 16, 1998, Dustrol entered into a contract with Hamm to perform highway construction on the section of Highway 75 as a subcontractor under Hamm. It is controverted by all three parties as to the specific duties the Hamm/KDOT contract imposed on Hamm regarding the posting of certain warning signs and application of temporary edge markings. In any event, however, it is uncontroverted that at the time of the accident, only one sign was posted indicating the presence of a construction zone and no signs were posted indicating an uneven surface between the roadway and the shoulder. Furthermore, the straight edge¹ separating the roadway from the shoulder was not marked with any type of line or marker. Plaintiff alleges the drop-off between the roadway and the shoulder was three to six inches. While Hamm accepts there was a drop-off, it disputes the height of the drop-off and the origin of its creation.

Plaintiff describes the events surrounding his accident as follows:

[Plaintiff]'s motorcycle went off of the road (which had no edge marker marking where the road surface ended and the shoulder drop-off began) and onto the shoulder. The shoulder was three to six inches lower than the road surface. When [plaintiff] attempted to drive back onto the road, his motorcycle struck the three to six inch edge of the road surface, which caused him to lose control of his motorcycle. [Plaintiff] attempted to fight the motorcycle back under control, but was unsuccessful. As a result of losing control from hitting the drop-off, [plaintiff] crashed and suffered injuries.

(Pl.'s Response at 4, Statement of Uncontroverted Facts ¶ 23).

Hamm strongly disputes plaintiff's version of the facts. In particular, Hamm asserts plaintiff's description is based solely on conclusory statements made by Greeno. In fact, what caused plaintiff's accident is at the heart of the matter presently pending before the court. In short, Hamm alleges plaintiff has failed to present any evidence of causation to support his negligence claim, so Hamm moves for summary judgment. On the other hand, within Dustrol's motion, Dustrol argues Hamm has no claim for indemnification based on Kansas' comparative fault doctrine, so Dustrol moves for summary judgment.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).² The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. 2548. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (interpreting Fed. R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. 2548. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S.Ct. 2548.

A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) ("The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues."). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. 2505.

III. DISCUSSION

A. Hamm's Motion for Summary Judgment

1. Substantive Law and Essential Elements

Under Kansas law, plaintiff's prima facie case of negligence is composed of four necessary elements. In Nero v. Kansas State Univ., 253 Kan. 567, 861 P.2d 768, 772 (1993), the Kansas Supreme Court described the four elements as follows: "To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact." See also C.J.W. v. State, 253 Kan. 1, 853 P.2d 4, 9 (1993); Honeycutt v. City of Wichita, 251 Kan. 451, 836 P.2d 1128, 1136 (1992). Normally, the presence or absence of negligence is a question of fact reserved for the jury. Honeycutt v. City of Wichita, 247 Kan. 250, 796 P.2d 549, 551 (1990). These issues, however, may be resolved on summary judgment when the facts present only one reasonable conclusion. Lay v. Kansas Dep't of Transp., 23 Kan.App.2d 211, 928 P.2d 920, 924 (1996).

According to Hamm, plaintiff has failed to present sufficient evidence of causation in order for his claim to survive summary judgment. See generally Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548 (holding there can be no genuine issue as to any material fact when the plaintiff offers no proof concerning an essential element of their case); Eck, 256 F.3d at 1016-17 ("To avoid summary judgment, the nonmovant must make a showing sufficient to establish an inference of the existence of each element essential to the case."). Hamm, however, levies no argument regarding plaintiff's proffered evidence concerning Hamm's duty, Hamm's breach, or plaintiff's injury. Therefore, the court will confine its discussion only to the sufficiency of plaintiff's evidence relating to causation.

a. Causation

In regards to causation, Hamm lodges two arguments: (1) plaintiff has no evidence to demonstrate that a road condition caused plaintiff's motorcycle to leave the roadway; and (2) plaintiff has no...