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BNSF Railway Co. v. City of Augusta

United States District Court, D. Kansas

October 29, 2018

BNSF Railway Co., Plaintiff,
v.
City of Augusta, Kansas, Defendant.

          MEMORANDUM AND ORDER

          J. Thomas Marten, Judge.

         On 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.

         The 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 property.

         Summary 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).

         In 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).

         Findings of Fact

          The 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.

         On or 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.[1] 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.

         BNSF's 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.

         There 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 connection occurring.

         The 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.

         The downed power conductor automatically de-energized within less than a second due to the safety relay system that the City of Augusta employed.[2] 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.

         The 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.

         Prior 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.

         One of the primary methods of identifying potential failures or reliability issues in power lines and related components is to conduct visual surveillance.

         The City's electrical distribution department employees conduct visual surveillance on the City's power lines and related equipment throughout their work days.

         The 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.

         The 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.

         It is uncontroverted that the City's inspection practices are consistent with the majority of small municipal and rural ...


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