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Trotter v. Harris

United States District Court, D. Kansas

June 20, 2017

ROBERT TROTTER JR., Plaintiff,
v.
JULIAN T. HARRIS, TITUS TRANSPORTATION, LP d/b/a AIR RIDE TRANSPORT, and FAST LANE EXPRESS CARRIER, LLC, Defendants.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE

         This 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.

         I. Legal Standard

         Summary 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)).

         The 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)).

         If the 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)).

         Summary 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).

         II. Uncontroverted Facts

         The 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 (2007).

         Plaintiff 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.

         Adrian 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.

         Adrian 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.

         Around 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.

         Clinton 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 ...


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