Union Pacific R. Co. v. General Foods Corp.

• Decision Date: 20 February 1987
• Docket Number: No. 82-4304.,82-4304.
• Citation: 654 F. Supp. 1074
• Court: U.S. District Court — District of Kansas
• Parties: UNION PACIFIC RAILROAD COMPANY, Plaintiff, v. GENERAL FOODS CORPORATION, Defendant.

654 F. Supp. 1074

UNION PACIFIC RAILROAD COMPANY, Plaintiff, v. GENERAL FOODS CORPORATION, Defendant.

No. 82-4304.

United States District Court, D. Kansas.

February 20, 1987.

Eidson, Lewis, Porter & Haynes, Thomas Haney, Topeka, Kan., for plaintiff.

Steve Fabert, Fisher, Patterson, Sayler & Smith, Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a diversity action. Plaintiff, Union Pacific Railroad Company, seeks contribution from the defendant, General Foods Corporation, for monies paid by Union Pacific in the settlement of a wrongful death lawsuit brought against them. Union Pacific contends that it is entitled to contribution based on the provisions of a contract entered into with General Foods. This matter is presently before the court upon General Foods' motion for summary judgment.

The factual background of this action was set forth in our order of March 17, 1986, as follows:

On October 21, 1969, Union Pacific and General Foods entered into an industry track contract on a form provided by Union Pacific. Pursuant to the industry track contract, Union Pacific generally furnishes railroad service to General Foods' plant in Topeka, Kansas. Paragraph two of section nine of the industry track contract provides:

The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of Industry, its employees or agents, to the personal property of the parties hereto and their employees and agents, and to the person or property of any other person or corporation, while on or about the Track; and if any claim or liability other than from fire shall arise from the joint or concurring negligence of the parties hereto (or of any two or more of them if there are more than two), it shall be borne equally by the parties at fault.

On April 29, (sic) 1979, an employee of General Foods, Dale Eugene Karns, was killed when an outside door from a box-car belonging to Union Pacific fell on the decedent during the course of his employment at the General Foods plant. Following the accident, General Foods made certain payments to the family of the decedent pursuant to the Kansas Workmen's Compensation Act. On September 21, 1979, the heirs of Karns commenced litigation in this court for damages arising out of the death of Karns. Union Pacific was named a defendant in that case, along with the manufacturers of the boxcar and the door. General Foods was immune from liability under the Workmen's Compensation Act and was not a named defendant in that case. Union Pacific informed General Foods of the status of settlement negotiations between the parties in the case and made a formal demand upon General Foods to indemnify Union Pacific in accordance with the terms of the industry track contract. General Foods refused to provide indemnification, denying liability to Union Pacific under the industry track contract. Eventually, a settlement agreement was entered into between the manufacturers of the door and the boxcar and the heirs of Karns and approved by the court. Thereafter, a settlement agreement was entered into between Union Pacific and the heirs of Karns. This agreement was also approved by the court. Following the settlement, General Foods asserted its rights to subrogate out of the settlement proceeds the amount which it had paid under the Workmen's Compensation Act to decedent's heirs. Under its settlement agreement with the decedent's heirs, Union Pacific was required to and did reimburse the heirs in the amount of such subrogation interest, which amount was repaid by the heirs to General Foods.

In the order of March 17, the court interpreted the aforementioned provision of the industry track contract. The court concluded that General Foods would be liable in this action if both Union Pacific and General Foods were concurrently negligent in causing the accident on April 19, 1979. Union Pacific contends that General Foods' employees acted negligently or were negligently trained or supervised in using a forklift truck to open the door on the boxcar. In the instant motion, General Foods contends that it is entitled to summary judgment because the discovery record reveals no evidence of any negligence by General Foods' employees in using a forklift to start the movement of the boxcar door or causing the door to fall and kill Karns.

In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the opposing party. Barber v. General Electric Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981). The standard for granting summary judgment is the same as the standard for granting a directed verdict under Fed. R.Civ.P. 50(a). Celotex Corp. v. Catrett, ___ U.S. ___, ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The mere existence of a scintilla of evidence in support of plaintiff's position will not be sufficient; there must be evidence on which a jury could reasonably find for the opposing party. Anderson v. Liberty Lobby, Inc., ___ U.S. ___, ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Many of the pertinent facts to the instant motion are undisputed. The court shall set forth these facts and then discuss any other facts which remain disputed. On April 19, 1979, Dale Karns was employed by General Foods at its facility at 2400 Brickyard Road in Topeka, Kansas. Karns had worked for General Foods for two and one half years. He had been working on the warehouse crew for approximately six weeks. On April 19, 1979, Karns was working with Calvin Porter. Porter was a more experienced employee. He had worked for General Foods for nine years. On that day, Karns and Porter were assigned to load boxcars. They began by opening the doors on the boxcars. Karns approached Union Pacific boxcar number 490972. He turned the door's opening lever and attempted to open the plug type door. The door popped towards Karns but would not slide along the tracks which guide the door alongside the boxcar. Porter saw that Karns was not succeeding in opening the door by hand. He tried to help Karns push the door, but they were unsuccessful. Porter assumed that the door would not roll due to rust. Porter had visually inspected the door prior to their efforts to open it and had not noticed any defects or other problems. Porter decided to use a forklift to start the door moving. He raised the forks to halfway of the height of the door and gave the door a little push. The door started to move. The door then rolled by itself or was gently pushed by the forklift to one-third open. Karns then pushed the door by himself to a position within one foot of being fully opened. Porter dismounted the forklift truck and entered the boxcar to inspect the interior after observing the door come to a complete stop as Karns pushed it open. From inside the boxcar, Porter heard Karns operating the door opening lever. He thought Karns was trying to get the door completely open. He next heard a loud noise. He rushed out of the boxcar and saw that the door of the boxcar had fallen off. He discovered that Karns was underneath the door. Karns eventually died as a result of the door falling on him.

This accident was investigated, reviewed and analyzed by a number of individuals. The court has carefully considered the entire discovery record provided by the parties. The court has read every deposition, report and statement given by the various lay witnesses and expert witnesses. Further, the court has carefully viewed every photograph, drawing and diagram generated by the investigations of this accident. In sum, the court has thorough knowledge of the information that has been obtained during discovery.

General Foods contends that all of the expert witnesses who have studied this accident have concluded that the boxcar door fell because of a faulty weld in the hood which retains the door at the top. They contend that the discovery record fails to provide credible evidence that the use of the forklift was negligent or that its use caused the accident. Union Pacific contends that the discovery record does indeed show that use of the forklift was negligent. They further argue that the discovery record supports a finding that the use of the forklift was the proximate cause of the accident based on three alternative theories. First, they suggest that the discovery record supports their allegation that the forklift caused the deformation which contributed to the accident. Second, they assert that the discovery record supports their theory that if the forklift had not been used to open the boxcar door, then the accident would not have occurred. Third, Union Pacific asserts that the failure of General Foods to establish and enforce reasonable safety procedures was the proximate cause of the accident.

The court shall first consider whether summary judgment should be granted to General Foods because, as a matter of law, the use of the forklift did not constitute negligence. Negligence, of course, is the lack of due care and encompasses an act of commission or omission, wrongful in itself. Owings v. Gifford, 237 Kan. 89, 697 P.2d 865, 869 (1985). The question of negligence is ordinarily an issue for the jury. Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585, 598 (1982). Union Pacific points to three facts in the discovery record to support its contention that the use of the forklift constituted negligence. First, the employees of General Foods had been warned not to use forklifts to open or close the doors of boxcars. Second, a poster inside the boxcar involved in this case stated: "Don't use fork lifts to open doors or move bulkheads." Third, an OSHA regulation, 29 C.F.R. § 1910.178(m)(6), prohibited the use of forklifts to open and close boxcar doors.

General Foods has responded that the discovery record shows that, despite the aforementioned warnings, forklifts were commonly used to open the doors of boxcars. General Foods' position is...