Stonebarger v. Union Pac. R.R. Co.
| Decision Date | 02 January 2015 |
| Docket Number | Case No. 13–2137–JAR–TJJ. |
| Citation | 76 F.Supp.3d 1228 |
| Parties | Melissa STONEBARGER, Individually and as Representative of the Estate Veronica Hogle, Deceased, Kiatona Turner, and Therman Turner, Jr., Plaintiffs, v. UNION PACIFIC RAILROAD COMPANY, Defendant. |
| Court | U.S. District Court — District of Kansas |
George H. Pearson, III, Topeka, KS, Richard Reagan Sahadi, Wigington Rumley Dunn & Ritch, LLP, Corpus Christi, TX, for Plaintiffs.
Christopher C. Confer, Craig M. Leff, Gregory F. Maher, Spencer L. Throssell, Yeretsky & Maher, LLC, Overland Park, KS, for Defendant.
Plaintiffs Kiatona Turner and Therman Turner, Jr. bring this wrongful death and survival action to recover damages arising from the collision between a Union Pacific train and a pickup truck operated by their father, Therman Turner.1 Melissa Stonebarger brings this action individually and as the Representative of the Estate of Veronica Hogle, to recover for the wrongful death and survival of her daughter, who was a passenger in Mr. Turner's vehicle. The accident underlying this case occurred on October 29, 2012, at a railroad grade crossing in Brown County, near Hiawatha, Kansas. This matter is presently before the Court upon Defendant Union Pacific Railroad Company's (“Union Pacific”) Motions for Summary Judgment 1) seeking dismissal of Plaintiffs' negligence claims on the grounds that they are either preempted by the Federal Railroad Safety Act, 49 U.S.C. § 20101 et seq. (“FRSA”), or otherwise fail as a matter of Kansas law (Doc. 83); 2) seeking dismissal of Plaintiffs' claims on the grounds that they are barred by the Kansas Statute of Repose, K.S.A. 60–513(b) (Doc. 85); and 3) seeking an order that Plaintiffs' survival claims fail as a matter of law (Doc. 87).2 For the reasons discussed in detail below, the Court grants in part Union Pacific's motion with respect to preemption of Plaintiffs' inadequate warning devices claim; denies the motion with respect to Plaintiffs' unusually dangerous/ultrahazardous crossing claim under Kansas law; denies the motion with respect to Union Pacific's statute of repose defense; and grants Union Pacific's motion with respect to Plaintiffs' claims for punitive damages based on their survival claims.
Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”3 A fact is only material under this standard if a dispute over it would affect the outcome of the suit.4 An issue is only genuine if it “is such that a reasonable jury could return a verdict for the nonmoving party.”5 The inquiry essentially determines if there is a need for trial, or whether the evidence “is so one-sided that one party must prevail as a matter of law.”6
The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact.7 When the moving party does not have the ultimate burden of persuasion at trial, it has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.8 “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the non-moving party's claim, or by showing that the non-moving party does not have enough evidence to carry its burden of persuasion at trial.”9
Conversely, if the moving party has the burden of proof, a more stringent summary judgment standard applies. Where the movant bears the burden of proof on a claim or defense, to obtain summary judgment, it cannot force the nonmoving party to come forward with “specific facts showing there [is] a genuine issue for trial” merely by pointing to parts of the record that it believes illustrate the absence of a genuine issue of material fact.10 Instead, the moving party must establish, as a matter of law, all essential elements of the issue before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.11 In this case, Union Pacific bears the burden on two affirmative defenses—preemption and statute of repose.
If the moving party properly supports its motion, the burden shifts to the non-moving party, “who may not rest upon the mere allegation or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.”12 In setting forward these specific facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”13 If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted.14 A party opposing summary judgment “cannot rely on ignorance of the facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.”15 Put simply, the nonmoving party must “do more than simply show there is some metaphysical doubt as to the material facts.”16
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”17
The parties have objected to the admissibility of certain evidence submitted in support of summary judgment. The Court addresses them at this time.
Plaintiffs object to the affidavits of Albert Cathcart and Paul Fulsom on the grounds that they are not based on personal knowledge and are thus inadmissible under Fed.R.Evid. 602. Rule 602 requires that a testifying witness “ha[ve] personal knowledge of the matter” testified to.18 Also, Fed.R.Civ.P. 56(c) requires that affidavits be made on personal knowledge and “Under the personal knowledge standard, an affidavit is inadmissible if ‘the witness could not have actually perceived or observed that which he testifies to.’ ”19 Statements of “mere belief in an affidavit must be disregarded.”20
Plaintiffs object to the affidavit of Albert Cathcart, who was employed by the Kansas Department of Transportation (“KDOT”),21 and Paul Fulsom, a private contractor.22 Plaintiffs urge that Cathcart and Fulsom lack personal knowledge of the work done on the particular subject crossing at issue in this case, and that their testimony is based on merely looking at documents.
Rule 602 recognizes that the personal knowledge requirement can be provided by the witness himself, stating “[e]vidence to prove personal knowledge may consist of the witness's own testimony.”23 Here, both witnesses attest that they have “personal knowledge of the matters set forth in [their] Declaration[s] and [were] competent to testify thereto.” “Rule 56 [ (c) ]'s requirements of personal knowledge and competence to testify may also be inferred if it is clear from the context of the affidavit that the affiant is testifying from personal knowledge.”24 Here, it is clear from the context of the declarations that both Cathcart and Fulsom are competent to testify to the matters discussed in their respective declarations.
Cathcart was a long time KDOT employee, and responsible for administering projects and maintaining KDOT's project files regarding federally funded highway-railroad grade crossing sign placement projects for the State of Kansas. In the early 1990's, KDOT undertook Project 106 X–1922–01 (“the Project”), which used federal funds to install new reflectorized crossbucks and advance warning signs at various railroad grade crossings in several counties in Kansas, including Brown County. Cathcart was the Coordinating Engineer for the Project. Fulsom was the project superintendent for the private contractor that was awarded work done on the Project, Paul J. Fulsom, Inc., and “was personally involved with this work and was present at the locations where this work was performed.” The Court finds that personal knowledge of the subject matter attested to can be inferred based on the declarants' respective positions with KDOT and Paul J. Fulsom, Inc. Further, the statements made in both declarations are particular and detailed, which further supports their attestations of personal knowledge.25 Plaintiffs' objections are overruled.
Union Pacific objects to the consideration of James Loumiet's unsworn expert report to avoid summary judgment. Although Mr. Loumiet executed a separate affidavit summarily stating his opinion on the sight-restrictions, it does not verify or incorporate his expert report.26 This court has repeatedly emphasized that, when tested at summary judgment, the proponent of expert testimony may not simply present the unsworn report of the proposed expert.27 Plaintiffs' failure is compounded by their failure to include this evidence in a separate statement of additional facts, as discussed below. Nevertheless, Mr. Loumiet's unverified report is cited in Union Pacific's statement of uncontroverted facts and attached to its memorandum in support of summary judgment.28 Rule 56(c) states that “[a] party may object that the material cited to support or dispute a fact must be presented in a form that would be admissible in evidence.”29 There is no dispute at this point that the facts contained within the expert report could be reduced to admissible evidence at trial, since at this point there have been no Daubert motions filed and Mr. Loumiet would presumably testify at trial; Rule 56(c) states that the objection is proper only when...
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