United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge.
March 1, 2016, an electrical line belonging to the City of
Augusta, Kansas fell across railroad tracks owned by BNSF
Railway Company. The line sent a high-voltage current through
the tracks, damaging BNSF signaling equipment, and generating
the present lawsuit. BNSF alleges the line fell because of a
faulty clamp, and that the City failed to properly inspect,
maintain and ensure the safety of the power line. BNSF also
advances a claim of trespass, as it gave no permission for
the City to run the line across its property.
matter is before the court on the City's motion for
summary judgment (Dkt. 57). The City argues (1) it is immune
for its discretionary acts under the Kansas Tort Claims Act,
K.S.A. 75-6104(e); (2) plaintiff BNSF has failed to show that
the accident happened because of flawed maintenance or
inspection; (3) res ipsa loquitor is inapplicable; (4) it had
a prescriptive easement to place the line across BNSF
judgment is proper where the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, show there is no genuine issue as to any
material fact, and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). In
considering a motion for summary judgment, the court must
examine all evidence in a light most favorable to the
opposing party. McKenzie v. Mercy Hospital, 854 F.2d
365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment
beyond a reasonable doubt. Ellis v. El Paso Natural Gas
Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving
party need not disprove plaintiff's claim; it need only
establish that the factual allegations have no legal
significance. Dayton Hudson Corp. v. Macerich Real Estate
Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
resisting a motion for summary judgment, the opposing party
may not rely upon mere allegations or denials contained in
its pleadings or briefs. Rather, the nonmoving party must
come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant
probative evidence supporting the allegation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the
moving party has carried its burden under Rule 56(c), the
party opposing summary judgment must do more than simply show
there is some metaphysical doubt as to the material facts.
"In the language of the Rule, the nonmoving party must
come forward with 'specific facts showing that there is a
genuine issue for trial.'"
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P.
56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses, and
the rule should be interpreted in a way that allows it to
accomplish this purpose. Celotex Corp. v. Catrett,
477 U.S. 317 (1986).
City of Augusta, Kansas, an incorporated municipality with
home rule power under the Constitution of the State of
Kansas, owns and operates its own electrical plant and
distribution system. This system includes power lines that
extend along and across BNSF's property.
about the morning of March 1, 2016, a “hot line
clamp” that attaches a tap line into the main power
conductor that crosses over BNSF's railroad tracks
failed. This resulted in a one-time high resistance
connection that caused localized melting of the hot line
clamp's primary vise. This high resistance connection burned
and severed one of the main power lines that crosses
BNSF's tracks. The severed power line then fell onto
BNSF's tracks and energized the tracks resulting in
damage to BNSF's signal equipment.
response to the City's motion relies on the conclusions
of its expert, Andrew Neuhalfen (Ph.D.). According to
Neuhalfen, the hot line clamp-an eye bolt providing pressure
on a primary vise mechanism-acts as an electrical junction to
transfer electricity from the main power line to the
residential tap line. Here, according to Neuhalfen, the clamp
was subjected to “electrical fault” activity
outside of normal operating conditions. Such a fault includes
overvoltage conditions where electrical voltage rises to such
a level that various equipment subject to that overvoltage
condition become damaged. Neuhalfen states that the fault
fractured the shaft of the eye bolt and loosened the
connection between the clamp and the power line. This loose
connection, in turn, caused the high-resistance connection
which generated the heat which severed the power line.
is a dispute as to how much warning time might have been
available to the City. According to Neuhalfen, this heating
would not have been instantaneous, but occurred over
“an extended period of time, ” which he defined
as “days or hours.” He further testified that,
with proper instrumentation, one can observe a heating
City's expert, Ghattis Bitar, testified that, given the
approximate melting temperature of aluminum and the much
higher temperature produced by this arcing event, the
hot-line clamp would have begun to melt almost
instantaneously. The City's other expert, Gerald Hager,
stated that inspecting the clamp might have prevented the
accident, but he did not know: “if you inspect them
[hot line clamps], there's no assurance that it would
have prevented the failure. It could have broken and failed
shortly after you inspect it, and it still wouldn't
guarantee that you would prevent failure.” This
incident occurred between Mile Post 184 and Mile Post 186 in
the Emporia Subdivision of the Kansas Division Line near the
BNSF Station located in Augusta.
downed power conductor automatically de-energized within less
than a second due to the safety relay system that the City of
Augusta employed. However, there is some evidence that, even
if the current energized the rails for less than a second, it
could still have caused significant property damage.
failure of the hot line clamp and severed power line caused
the power to go out throughout the City of Augusta, including
at city hall. After the incident, the City began to receive
phone calls notifying it that the power was out in the City.
The City Clerk, Erica Jones, also received a call on her
personal cell phone from a BNSF employee notifying her that
the there was a power line down on BNSF's tracks. City
maintenance workers responded to the site and, within
approximately 45 minutes, had repaired the downed power line.
to this incident, the City had received no reports of any
problems, abnormalities, customer concerns, or emergency
calls from customers served by the main or tap lines in
question. It was not notified of any reports of blinking
lights from electric customers served by the tap fed by the
subject hot line clamp prior to its failure.
the primary methods of identifying potential failures or
reliability issues in power lines and related components is
to conduct visual surveillance.
City's electrical distribution department employees
conduct visual surveillance on the City's power lines and
related equipment throughout their work days.
employees of other City departments such as the police
department, help the inspection process by reporting
incidents such as arcing on the lines at night.
National Electrical Safety Code (NESC), adopted by reference
under K.A.R. § 82-12-2, leaves decisions regarding
frequency and methods of inspection schedules to the
discretion of the City.
uncontroverted that the City's inspection practices are
consistent with the majority of small municipal and rural