United States District Court, D. Kansas
MELISSA STONEBARGER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF VERONICA HOGLE, DECEASED, KIATONA TURNER, AND THERMAN TURNER, JR., Plaintiffs,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
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. 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). 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.
I. Summary Judgment Standard
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." A fact is only material under this standard if a dispute over it would affect the outcome of the suit. An issue is only genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." 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."
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. 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. "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."
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. 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. 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." In setting forward these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. 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." Put simply, the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts."
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."
II. Evidentiary Objections
The parties have objected to the admissibility of certain evidence submitted in support of summary judgment. The Court addresses them at this time.
A. Objections to Affidavits Offered by Union Pacific
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. Also, Fed.R.Civ.P. 56(c) requires that affidavits be made on personal knowledge and "set forth such facts as would be admissible in evidence.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." "Under the personal knowledge standard, an affidavit is inadmissible if the witness could not have actually perceived or observed that which he testifies to.'" Statements of "mere belief in an affidavit must be disregarded."
Plaintiffs object to the affidavit of Albert Cathcart, who was employed by the Kansas Department of Transportation ("KDOT"),  and Paul Fulsom, a private contractor. 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." 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." 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. Plaintiffs' objections are overruled.
B. Objection to Expert Report of James Loumiet
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. 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. 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. 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." 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 the facts cannot be presented in an admissible form. Accordingly, the Court will consider Mr. Loumiet's expert report on summary judgment.
III. Uncontroverted Facts
Before reaching the uncontroverted facts, the Court addresses Plaintiffs' failure to comply with the local rule for summary judgment responses, which requires: "if the party opposing summary judgment relies on any facts not contained in the movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above." As noted by Union Pacific, Plaintiffs have included numerous factual matters that they claim create a genuine issue of material fact, but do not set forth any statement of additional facts in the manner required by the rule. Instead of setting forth the additional facts in separately numbered paragraphs, supported by references to the record, Plaintiffs refer to the evidence in the argument portion of their response brief. Under D. Kan. Rule 56.1(b)(2), the Court considers only those facts that the parties include in their statement of facts, in numbered paragraphs with proper record citation and support. The Court does not consider facts that the parties discuss only in the argument section of their briefs and not in the statement of facts.
The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiffs, the non-moving parties.
On October 29, 2012, at approximately 9:55 a.m., Therman Turner was driving a 1999 Ford F-150 east on 260th Road in Hiawatha, Kansas. Veronica Hogle was a passenger in the truck. As Turner drove the truck east over the 260th Road railroad crossing, DOT Crossing No. 814-762E ("the Crossing"), it was struck by a Union Pacific train that was traveling north. Both Therman and Hogle were pronounced dead at the scene of the crash.
On the date of the accident, two Union Pacific Claims Representatives, Clint Pebsworth and William Herring, responded to and investigated the accident. As part of their investigation, the Claims Representatives took measurements and photographs at the scene. Two reflectorized crossbuck signs were located at the Crossing, one at the southwest corner, the other at the northeast corner. The series of photographs were taken while positioned 50, 25, and 15 feet west of the near rail at the crossing, with the camera facing south. Shown in the photographs at 25 feet is an approaching freight train and a railroad crossbuck sign. The photographs also depict the trees and other brush that existed at the time of the accident. Stephen Spare owns the property adjacent to the southwest quadrant of the crossing.
From 1970 until his retirement in 2008, Albert D. Cathcart was employed by KDOT. Cathcart's work at KDOT included working in the position of Coordinating Engineer for KDOT's Bureau of Design from 1994 to 2008. Cathcart was 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 Northeast Kansas & Missouri Railroad Company ("NEKM") railroad grade crossings in several counties in Kansas, including Brown County. Cathcart was the Coordinating Engineer for the Project.
The KDOT Plan of Proposed Railroad Crossing Signing-Federal Aid Project document for the Project ("the Plan") contains a table that identifies each of the NEKM crossings within Brown County, Kansas, at which warning devices were to be installed under the Project and for each crossing identified, the specific type and number of warning devices to be installed. The Crossing was to receive two reflectorized crossbuck signs and two advance warning signs as part of the Project. KDOT bid out the work of placing the reflectorized railroad crossbuck signs and advance warning signs called for in the Project to private contractors. The private contracting company that won the bid for this work was Paul J. Fulsom, Inc. Paul J. Fulsom, Inc. completed the work for the Project, including the work in Brown County, Kansas, in accordance with the Plan and specifications for the Project in a satisfactory manner and in compliance with all applicable Federal and State rules and regulations on or before June 10, 1997, and KDOT accepted and approved the work performed by Paul J. Fulsom, Inc. on or before July 10, 1997. KDOT paid Paul J. Fulsom, Inc. in full for all work performed as part of the Project, and all work was complete and approved on or before August 1, 1997.
FHWA Project STP X192-(201) is the Federal Highway Administration ("FWHA") designation for KDOT Project 106 X-1922-01. The Federal government funded 80% of the Project's costs for railroad right-of-way sign installation, i.e., reflectorized crossbuck signs, for FWHA Project STP X192-(201); the railroad funded the remaining 20% of costs. The Federal government funded 100% of the cost of the Project's costs for installing advance warning signs. In other words, 80% of the costs of installing each reflectorized crossbuck sign at each crossing that was included in FWHA Project STP X192-(201) and/or the KDOT Project was paid for with Federal government money. The Federal government did not pay for the installation of reflectorized crossbuck signs at 80% of the crossings included in the Project, nor did the railroad pay for 20% of the crossings included in the Project. KDOT did not attempt to apportion the funding of grade crossing improvements in a manner that allocated 100% of federal funds for the improvement of 80% of the crossings within a specified crossbuck upgrade project, with the remaining 20% of the crossings funded entirely by the railroads.
Several sections of track and the railroad grade crossings that intersected that trackage, which were formerly owned by the NEKM, were purchased by Union Pacific in 1999. The former NEKM trackage and Crossing at issue in this case was included in that 1999 purchase.
Paul Fulsom was the project superintendent for a construction company known as Paul J. Fulsom, Inc. Paul J. Fulsom, Inc. was selected by KDOT through a bid process to perform the work called for in the KDOT Project. As project superintendent, Paul Fulsom personally managed and oversaw the work done by Paul J. Fulsom, Inc. on the Project. As part of the Project, Paul J. Fulsom, Inc. placed reflectorized crossbuck and advance warning signs at public grade crossings in Brown County, Kansas, unless these public grade crossings were already signalized with electronic signals, i.e., flashing lights and crossing gates. The work of Paul J. Fulsom, Inc. for the Project included the removal of existing crossbucks at public grade crossings along NEKM railroad tracks in various counties in the State of Kansas, and the installation of new reflectorized crossbucks for those public grade crossings. Pursuant to its contract with KDOT regarding the Project, Paul J. Fulsom, Inc. placed reflectorized crossbucks and advance warning signs at the railroad grade crossing that intersects 260th Road in Brown County, Kansas, known as DOT Crossing No. 814-762E, on or before June 10, 1997. Fulsom ...