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Foster v. USIC Locating Services, LLC

United States District Court, D. Kansas

July 25, 2018

RANDALL W. FOSTER, Plaintiff,
v.
USIC LOCATING SERVICES, LLC, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         This matter comes before the court on defendant USIC Locating Services, LLC's Motion for Partial Summary Judgment (Doc. 115). Plaintiff Randall W. Foster brings this action against defendant for negligence after he was injured when he struck a buried and unmarked power line with a shovel. Defendant moves for summary judgment on plaintiff's spouse's claim for loss of consortium, on plaintiff's claim for punitive damages, and on claims and measures of damage that depend on expert testimony that defendant has sought to exclude. For the reasons set for the below, the court grants defendant's motion in part and denies it in part.

         I. Background

         Plaintiff is employed by Rylie Equipment & Contracting Company. On March 26, 2014, plaintiff and his co-worker were working on a project to run underground fiber optic cable into a State Farm office at 6011 Nieman Road in Shawnee, Kansas. Prior to beginning work on the project, plaintiff's supervisor contacted the Kansas One-Call system to have the underground utilities in the area located and marked. The locating work was performed by defendant's employee Randy Phienthamkan.

         Upon arriving at the scene to begin the project, plaintiff conducted a walk-through of the jobsite and reviewed an AT&T map of the area showing buried utilities, including an underground power line in the general area where the accident occurred. Plaintiff observed three streetlight poles and red markings that indicated a buried electric power line ran between the first and second poles. There were no markings in between the second and third poles, which, according to plaintiff, meant Phienthamkan had determined no underground services were buried in that area.

         Plaintiff began work in the unmarked area using an underground boring machine or horizontal directional drill. While plaintiff was operating the drill, the machine's striker alert system sounded an alarm. Plaintiff did not call the One-Call center, defendant, or the utility operator. Instead, plaintiff withdrew the drill and began digging by hand with a metal shovel in the area where the drill was located when the alarm sounded. The hole plaintiff was digging was filled with water and mud, and plaintiff could not see far into the hole. As he was digging, plaintiff struck a live wire and suffered an electrical shock. He was thrown back and briefly lost consciousness.

         Plaintiff filed this suit on March 18, 2016 for negligence based on defendant's failure to locate and mark the live electrical wire in the area he was working. He also made claims for punitive damages and loss of consortium for his spouse. Defendant now moves for partial summary judgment on the issue of loss of consortium, punitive damages, and any issues relating to expert testimony that defendant has moved to strike.

         II. Legal Standards

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A “genuine” factual dispute requires more than a mere scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party demonstrates an absence of evidence in support of an element of the case, the burden then shifts to the nonmoving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. The nonmoving party “may not rest upon the mere allegations or denials of his pleading.” Id.

         In making the summary judgment determination, the court must view the evidence and reasonable inferences in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Ultimately, the court evaluates “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 252.

         III. Analysis

         Defendant moves for partial summary judgment on three issues: (1) loss of consortium, (2) punitive damages, and (3) on any claims and measures of damage that depend on excluded expert testimony. Defendant filed three motions to exclude expert testimony (Docs. 109, 111, 113), and asks this court to grant judgment on any claims or damages that depend on this testimony. The court will issue more detailed orders on these three motions, but will briefly discuss how those decisions affect defendant's current motion.

         a. Loss of Consortium

         The court will first address defendant's motion for judgment on the issue of loss of consortium. Defendant argues that judgment is appropriate because plaintiff did not properly plead a claim for loss of consortium for his spouse. In the complaint and amended complaint, plaintiff included loss of consortium for his wife as part of his claim for damages, rather than as a separate cause of action. Defendant claims that under Kansas law, loss of consortium must be pleaded as an entirely separate action rather than a type of damage sought as a result of negligence. Plaintiff listed loss of consortium for his spouse as a claim in the pretrial order. Defense objected to this inclusion, arguing it was not properly pleaded. Defendant now argues that it would be prejudicial to let such claim continue because plaintiff's spouse was not listed in his initial disclosures and no discovery was conducted on ...


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