United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
matter comes before the court on defendants Julian T. Harris,
Titus Transportation, LP, and Fast Lane Express Carrier,
LLC's Motion for Summary Judgment (Doc. 40). Plaintiff
Robert Trotter Jr. has responded (Doc. 47), and defendants
replied (Doc. 49). For reasons explained below, the court
denies defendants' Motion.
judgment is appropriate if the moving party demonstrates that
“no genuine dispute [about] any material fact”
exists and that it “is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). When applying this
standard, the court views the evidence and draws inferences
in the light most favorable to the non-moving party.
Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th
Cir. 2010). A disputed “issue of fact is
‘genuine' ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party' on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). And an “issue of fact is ‘material'
‘if under the substantive law it is essential to the
proper disposition of the claim' or defense.”
Id. (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
moving party bears “‘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.'” Kannady v. City of Kiowa, 590
F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th
Cir. 2002)). To carry this burden, the moving party
“‘need not negate the non-movant's claim, but
need only point to an absence of evidence to support the
non-movant's claim.'” Id. (quoting
Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121,
1125 (10th Cir. 2000)).
moving party meets its initial burden, the non-moving party
“‘may not rest upon its pleadings, but must set
forth specific facts showing a genuine issue for trial [on]
those dispositive matters for which it carries the burden of
proof.'” Id. (quoting Jenkins v.
Wood, 81 F.3d 988, 990 (10th Cir. 1996)); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248-49. “To accomplish
this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits
incorporated therein.” Adler, 144 F.3d at 671
(citing Thomas v. Wichita Coca-Cola Bottling Co.,
968 F.2d 1022, 1024 (10th Cir. 1992)). “Unsubstantiated
allegations carry no probative weight in summary judgment
proceedings.” Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing
Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th
Cir. 1992)). To survive summary judgment, the non-moving
party's “evidence, including testimony, must be
based on more than mere speculation, conjecture, or
surmise.” Id. (citing Rice v. United
States, 166 F.3d 1088, 1092 (10th Cir. 1999)).
judgment is not a “disfavored procedural
shortcut.” Celotex, 477 U.S. at 327. To the
contrary, it is an important procedure “designed
‘to secure the just, speedy and inexpensive
determination of every action.'” Id.
(quoting Fed.R.Civ.P. 1).
following facts are uncontroverted or, where controverted,
are stated in the light most favorable to plaintiff as the
nonmoving party. Scott v. Harris, 550 U.S. 372, 378
brings this wrongful death claim under Kan. Stat. Ann. §
60-1901 on behalf of his son, Adrian Trotter. Sometime in the
afternoon on November 22, 2013, Adrian and his friend, Joshua
Rogers, were at Adrian's mother's home with other
family members. Joshua saw Adrian take at least one swig of
alcohol at his mother's house before the pair left to
pick up Adrian's brother and take Joshua home.
planned to take westbound Interstate 470, but he mistakenly
merged onto southbound Interstate 335 (“I-335”)
near mile marker 177. Adrian did not take a toll ticket.
According to Joshua, Adrian was “agitated”
because he missed his turn and was driving “slightly
erratic.” Doc. 43-1 at 11. Joshua soon became
concerned. Id. According to Joshua, Adrian was
looking for somewhere on the interstate where he could turn
around, and he was becoming more and more agitated.
Id. Joshua testified in his deposition that he felt
Adrian's driving was “unsafe” because he was
“[s]peeding and weaving in and out of traffic, passing
everyone, more or less legally.” Id.
eventually found a spot to turn around and entered the toll
plaza near I-335 mile marker 147. Adrian spoke with the toll
representative via the tollbooth intercom and explained that
he mistakenly entered the turnpike and did not have a ticket.
Meanwhile, Joshua, fearing for his safety because of
Adrian's erratic driving, got out of the car and began
pacing. The toll representative told Adrian to ask Joshua to
get back in the car. Joshua did not want to get back into the
car because of the way Adrian had been driving, but he
obliged. With Joshua back in the car, Adrian began driving
north toward Topeka. Joshua testified that he thinks Adrian
was driving 90 miles per hour.
mile marker 167.5 on northbound I-335, Adrian lost control of
the car and, at least twice, struck the concrete barrier
dividing the north and south bound lanes. Unable to open the
car doors, Adrian and Joshua exited the car through the back
driver's side window. Joshua started walking down an
embankment on the right hand side of northbound I-335. Joshua
eventually laid down in a cornfield and stayed there until
the next morning. He does not remember seeing Adrian after
they climbed out of the car.
Hutchins, an engineering technician for the Kansas Department
of Transportation (“KDOT”) was driving to
Lawrence from El Dorado the same evening and witnessed
Adrian's crash. He had first noticed Adrian's car
behind him in his rearview mirror. Mr. Hutchins was in the
right lane, and Adrian passed him in the left lane. He then
watched as Adrian's car struck the median barrier twice,
sending up a shower of sparks. Mr. Hutchins slowed down,
pulled over to the right shoulder of the highway, turned on
his hazard lights, and watched as the two men crawled out of
the vehicle. Mr. Hutchins watched as Joshua walked down the
embankment, and he saw ...