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Gregory v. Creekstone Farms Premium Beef, LLC

United States District Court, D. Kansas

July 26, 2017

PHYLLIS N. GREGORY, individually and as the personal representative of the estate of RICHARD D. GATES, deceased, Plaintiff,
v.
CREEKSTONE FARMS PREMIUM BEEF, LLC, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This is a wrongful death and survival action over which the Court has diversity jurisdiction. Plaintiff Phyllis Gregory is the mother and sole heir to the decedent, Richard Gates. Gates was a cattle truck driver who was injured on Defendant Creekstone Farms Premium Beef LLC's (“Creekstone's”) property while delivering a load of cattle. Gates later died from his injuries. This case is now before the Court on Defendant's Motion for Summary Judgment (Doc. 77). Defendant asserts, among other things, that it did not owe Gates a duty of care. Because the Court finds that Defendant did not owe Gates a legal duty to protect him from known and obvious dangers, the Court grants Defendant's motion.

         I. Factual and Procedural Background

         The Accident

         Plaintiff Phyllis Gregory is the mother and sole heir of the decedent, Richard Gates. At the time of Gate's death, Plaintiff was 73 years old. Gates was a cattle truck driver working as an independent contractor for Butler Trucking. In the early morning hours of July 18, 2013, Gates arrived at Defendant's beef slaughtering and processing facility in Arkansas City, Kansas, to deliver a load of cattle.

         The majority of cattle deliveries at Defendant's facility occur during the evening shift, from 10 p.m. to 5 a.m. The facility has two receiving pens that truck drivers unload cattle into- an east pen and west pen. The pens run north to south and are separated by a handler alley. Truck drivers unload cattle at the north end of the receiving pen, and then the cattle exit the receiving pen through a gate at the south end and walk into a holding pen.

         Defendant's environmental health and safety manager is not aware of any safety protocols for the cattle receiving department at Defendant's facility other than humane handling guidelines for cattle. However, Defendant's supervisor for the cattle receiving department, Butch Fulton, testified that he instructs employee not to get into the receiving pens for safety reasons. Fulton has never observed one of his employees in the receiving pens. He is also not aware of any truck drivers assisting Defendant's receivers in moving cattle through the pen. Fulton testified that he specifically instructs receivers not to allow truck drivers to help them. However, one of Defendant's cattle receivers, Jeremy Irvin, testified that truck drivers would assist in moving cattle after they were unloaded from the trucks once or twice a week.

         Gates was experienced at working with cattle. He had been around them since his childhood. He previously worked as the manager of a farm and ranch in Oklahoma that had a large cattle operation. He also previously owned his own herd of about 50 head with a neighbor. In the two to three years preceding his death, Gates drove his cattle truck with his friend Sheila Miller. Miller testified that Gates hauled cattle for Butler Trucking for a year or two before his death. She also testified that he was experienced in loading and unloading cattle. When they picked up cattle, she and Gates would help herd them and move them onto the truck. When Miller and Gates arrived at a destination with cattle, Miller and Gates would herd the cattle out of the truck and then help herd the cattle into a corral, building, or pen. According to Miller, it was part of their job to move cattle to a holding pen. In some facilities, such as feed lots, Miller and Gates were required to unload the cattle and move them as much as 300 to 400 yards into a holding pen. They would do this by walking behind the cattle at a far enough distance not to be kicked but there were no obstructions between them and the cattle.

         Gates and Miller arrived at Defendant's facility sometime around 3 a.m. on July 18. Irvin, who was 5'10” in height and weighed 510 pounds, was the only cattle receiving employee present. Another Creekstone employee, Casey Phillips, was monitoring wastewater in a nearby area. Phillips testified that he told Irvin some time before the accident that Irvin should tell Creekstone management to get him some help receiving cattle.

         Gates backed his truck up to the west receiving pen upon arrival, which was already full from a previously delivery. Another truck was unloading cattle into the east pen. After that truck left, Irvin moved the cattle from the west receiving pen into the holding pen. He did not ask Gates to help him. To move the cattle from the west receiving pen, Irvin walked down the center handler alley and opened the gate at the south end of the west end of the receiving pen. At that time, Gates was standing at the north end of the pens, in the walkway. Gates then stepped into the west receiving pen at the north end, behind the cattle. As the cows moved out of the west pen, Irvin got into the pen behind them at the halfway point and followed them into the holding pen. Irvin does not know what Gates did at that point because he had his back to Gates. Gates did not walk with Irvin to help him move the cows out of the west pen.

         After the cattle from the west receiving pen were in the holding pen, Irvin returned to the south end of the receiving pens and opened the south gate of the east pen. Irvin then closed the south gate of the west pen and walked back north in the west pen, crossing into the handler alley at the middle of the receiving pens. At that time, Gates had moved to the north end of the east receiving pen. The cattle were at the south end of the east receiving pen.

         The cattle became bunched up at the south end of the receiving pen, so Irvin walked south in the handler alley shaking his paddle to get them moving. As Irvin was doing this, he last saw Gates standing at the north end of the east pen. Irvin did not say anything to Gates about having problems moving the cattle or otherwise.

         Irvin was able to get the cattle moving. He then saw a lone cow moving at a “quick trot” through the pen. Irvin began walking north toward the midway point of the pen and noticed Gates lying on the ground. Irvin went to check on him and found him face down with blood coming out of his nose and mouth area.

         Irvin instructed Phillips, who had just arrived in the receiving area, to call 911. When EMS arrived, Gates “initially had a weak carotid pulse and shallow, slow respirations.” Gates stopped breathing at some point, and EMS started performing chest compressions on him. Gates was transported to the hospital, where he was pronounced dead at 4:32 a.m. The emergency room records indicate that when Gates arrived at the hospital EMS was still performing chest compressions and that he was still unresponsive.

         The Alleged Blind Alley in the Creekstone Receiving Pens

         Plaintiff designated John George as a liability expert witness in this case. George is an agricultural engineer, who describes his professional activities as work on renewable energy, ventilation, surveying, geotechnical work, manure waste handling, and feed lots. According to George, the path south out of Creekstone's receiving pens leads to a 90 degree turn left (or east) toward the holding chutes. George opined that this turn is a design flaw known as a “blind alley”-“one in which the cattle's perspective does not reveal to them that the alley leads to an exit.” According to George, the blind alley at the south end of the receiving pen and the water puddling in that area are design flaws that primarily cause the cattle to bunch up and balk at or near the exit of the pen. George testified at his deposition that when a receiver opens the gate out of the east receiving pen, the cattle closest to the gate could probably see an opening and way to leave. But, he also stated that the cattle may bunch up for other reasons.

         George further testified that in his opinion, the area at the south end of the east receiving pen constituted a blind alley because “the whole concept of blind alley is that as you're in the alley and you look for an escape. Unless you're looking at the south end in this case you can't see that there is a pathway out. And that's what makes it a blind alley. And cattle don't want to proceed up a blind alley if they can't perceive an exit.” George could not, however, offer an opinion that the cattle bunched up on the night of Gates' death because of the presence of a blind alley. George testified that he has no way of knowing why the cow came back and injured Gates.

         Defendant designated Joseph Zulovich as its expert. He works as an extension agricultural engineer and defines his responsibility as primarily educational. In his deposition, Zulovich made multiple statements regarding George's opinions. He agreed with George's conclusion that an agitated or fearful animal often turns around and seeks to escape in the direction from which it came. He found nothing that contradicts George's conclusion that the animal's attempt to escape played a role in Gates' injury. He further testified that it was reasonable for George to presume that a cow kicked, butted, ran over, or stepped on Gates on its way north in the receiving pen. Finally, Zulovich agreed that the blind alley and water puddling at the south end of the receiving pen could possibly be design flaws that cause animals to periodically bunch up or balk at or near the exit of the receiving pen. But he later stated that he did not know this for sure because he did not know how frequently the problem occurred.

         The Current Lawsuit

         Plaintiff filed this wrongful death and survival action almost two years after the accident. In the Pretrial Order, Plaintiff lists 15 different ways she believes Defendant was responsible for Gates' death. These can be summarized into three general categories as follows. First, Plaintiff contends that Defendant had no safety rules, regulations, or protocols in place regarding the safe transfer of cattle from the receiving pen to the holding pens; that Defendant had no rules prohibiting truck drivers from assisting Creekstone employees in the cattle receiving area; that Defendant provided no training or other instruction to truck drivers; and that Irvin violated Fulton's policy of allowing truck drivers in the receiving pens to help with moving the cattle. Second, Plaintiff contends that Irvin had difficulty accessing the handler alley due to his physical stature; that his failure to use the handler alley was the reason that truck drivers assisted him in moving cattle in the receiving pens; and that Irvin's failure to use the handler alley was a major cause of Gates' assistance in the receiving pen. And third, Plaintiff claims that a sharp turn at the end of the receiving pens was a design flaw that created the propensity for cattle to bunch up, which resulted in a dangerous condition for anyone inside the pen trying to move cattle. Defendant has filed a motion for summary judgment on Plaintiff's claims. The Court held a hearing on Defendant's motion on July 6, 2017.

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[1]A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.[2] The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim.[3] If the movant carries its initial burden, the nonmovant may not simply rest on its pleading but must instead “set forth specific facts” that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.[4]These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment.[5] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[6]

         III. Analysis

         Defendant makes several arguments as to why it is entitled to summary judgment. First, Defendant argues that the Court should grant summary judgment on all of Plaintiff's claims because it did not owe a duty of care to Gates. Second, Defendant argues that to the extent Plaintiff relies on the existence of a blind alley to support her claims for negligence, it is entitled to summary judgment because there is no evidence that the blind alley caused Gates' death. Third, Defendant argues that the Court should grant summary judgment on all claims for pecuniary loss extending beyond Plaintiff's lifespan. Finally, Defendant claims that it is entitled to judgment on Plaintiff's claims for conscious pain and suffering because there is no evidence that Gates suffered such damages.

         A. Duty of Care

         Under Kansas law, a plaintiff must establish the following elements to recover for negligence: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the breach of that duty was the actual and proximate cause of the plaintiff's injuries; and (4) the plaintiff suffered damages.[7] Negligence claims generally present a question of fact for the jury to determine.[8] But, the question of whether a duty of care exists is a legal determination for the court.[9]

         At this point in the litigation, it is still not clear what Plaintiff's negligence claims are. Neither the Pretrial Order nor Plaintiff's response to Defendant's motion for summary judgment clearly articulate what duty Defendant owed Gates, how Defendant breached that duty, and how the breach of that duty was the actual and proximate cause of Gates' injuries. When the Court asked Plaintiff's counsel at oral argument to explain her claims, this is the response:

Plaintiff's Counsel:
What our claim - and, of course, in our complaint we list all the duties that we think that there was a violation of, which they deny all of them except for one. But, really, what it all boils down to, when you peel away all the layers of the onion on this thing, is the fact that Creekstone, through its supervisor, Butch Fulton, recognized it was a hazard, that this is a dangerous and hazard endeavor in processing cattle through a beef processing plant. It's not like moving cattle out in a corral, open corral. You're in a confined area. And when you look at that receiving area, it indicates, you know, the nature of how dangerous this can be because it has metal pipes separating an alley for the employees to walk down. And Creekstone, through its own Robert Sullivan, who is in charge of PR and HR-not PR, HR, and safety, said we never established any safety protocols for that most dangerous area that we have in our plant, and that is receiving cattle and moving cattle through the plant.
But the receiving supervisor, Butch Fulton, recognized that. And he said, “I had a policy. You don't get in. . . . You don't get in the receiving alley. I instructed Jeremy Irvin, when he was hired, and I trained him and instructed him, that you don't get in there. You don't get in there, and I don't want you letting the truck drivers in there, because they don't know our policies and procedures. We don't want them in there either, because it's too risky.”
The Court:
Do you think Creekstone's own internal policies give rise to a legal duty ...

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