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Stohr v. Scharer

United States District Court, D. Kansas

May 23, 2019

CYNTHIA STOHR, et al., Plaintiffs,
v.
PETER SCHARER, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendant David Farris's motion for summary judgment. (Doc. 92.) The motion is fully briefed and is ripe for decision. (Docs. 93, 102, 105.) Also before the court is Plaintiffs' motion in limine (Doc. 75) and Defendant's response. (Docs. 77, 78.) For the reasons stated herein, Defendant's motion for summary judgment (Doc. 92) is GRANTED IN PART and DENIED IN PART. Plaintiffs' motion in limine (Doc. 75) is DENIED.

         I. Background

         Plaintiffs are the heirs of Ernest A. Stohr, who died on March 30, 2015. They assert negligence claims against the remaining defendant, David Farris (“Defendant”).[1] Plaintiffs allege that Defendant negligently started a fire, on a property adjoining theirs, and that the fire caused Ernest Stohr to suffer smoke inhalation and complications that ultimately caused his death two weeks later. (Doc. 82 at 7.) Plaintiffs seek actual damages of just over $3 million, including economic damages of about $2.4 million, as well as punitive damages. (Id. at 12.)

         In his summary judgment motion, Defendant argues Plaintiffs cannot prevail because they cannot establish the cause and origin of the fire. Alternatively, Defendant seeks summary judgment insofar as Plaintiffs assert a wrongful death claim, arguing Plaintiffs have no expert testimony to show that Ernest Stohr's death was caused by smoke inhalation. (Doc. 93.)

         II. Facts

         The court finds the following facts to be uncontroverted for the purposes of summary judgment. In keeping with summary judgment standards, where there is conflicting evidence or where a fact depends upon the credibility of a witness, the court adopts the version of the facts most favorable to Plaintiffs. The court does so because “[c]redibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge” in ruling on summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         A. Origin of the fire.

         Peter and Shawnee Scharer, individually and as trustees of the Scharer living trust, owned property at 610 E. 85th St., Hutchinson, Reno County, Kansas. Plaintiff Cynthia Stohr and her husband Ernest A. Stohr owned property just to the north of the Scharer property at 9002 N. Plum St., Hutchinson, Reno County, Kansas.

         Defendant worked and lived on the Scharer property. His duties included mowing the pasture, which he did using the Scharers' tractor. The tractor was blue and gray with a cab. Defendant regularly used the tractor to maintain the pasture. Defendant was the only one known to have access to the tractor and its key at the time of the fire. (Doc. 105 at 3.)

         Peter Scharer wanted all of the cedar trees out of his pasture. He would typically gather up cedar trees in piles in the pasture and burn them. Defendant had watched Peter Scharer burn the piles on at least one occasion prior to March 16, 2015.

         On March 16, 2015, the day of the fire, Peter and Shawnee Scharer were out of the State. Defendant was the only other person living on the Scharer property at that time. There were piles of cedars out in the pasture that day.

         Sometime in mid or late morning on March 16, 2015, Mike Ratzloff was outside walking about 300 yards away from the Scharer property. He saw someone in the Scharers' blue and gray tractor pushing brush onto a pile on the Scharer property. Shortly thereafter, he saw a man with a hat standing by the tractor looking at one of the brush piles. Ratzloff could see three or four brush piles. (Doc. 102-9 at 1.) Later in the day, Ratzloff saw smoke coming from the Scharer pasture. He saw the pasture was on fire, with the wind blowing the fire to the north, and the brush piles were burning. There was somebody on the tractor pulling a disc on the south side of the fire in an apparent effort to create a buffer.[2] Ratzloff subsequently heard the sirens of approaching fire trucks.

         Defendant drove a white pickup truck. Soon after the fire began, a white pickup truck resembling Defendant's was seen by a neighbor being driven on the Scharer property on the north side of the fire. (Doc. 105 at 5.) A neighbor also saw a white pickup parked in the vicinity of the brush piles after the fire had started. (Doc. 102-4 at 6.) The neighbor went upstairs in his house to get a better view of the fire. Based on what he saw, he thought the fire had started in the area of the brush piles on the Scharer property, in the same area where brush piles had previously been burned on that property. (Id. at 5-6.)

         In addition to his job on the Scharer property, Defendant had a job working at Reins of Hope, an organization that provided horseback rides to children and adults with disabilities. Defendant testified that on March 16, 2015, he worked at his job at Reins of Hope from 7 a.m. to 3:00 p.m., before returning to the Scharer property. Defendant denies having started the fire. (Doc. 93-7 at 6.) In his deposition, Defendant testified he was in his room at the Scharer property around 4:45 p.m. when he first saw smoke, went outside, and saw the fire. (Doc. 102-5 at 31.)

         Initially, Defendant testified in his deposition that when he first saw the fire, he saw no fire trucks, and he proceeded to call Shawnee Scharer, who told him to call 911. After being shown a transcript of a statement he had previously given to investigators, Defendant changed his deposition testimony to say that when he first saw the fire, the fire trucks were already present, so he called his employer Shawnee Scharer instead of calling 911. (Doc. 105 at 9.) Defendant denied having driven his pickup truck around the fire. (Doc. 93-7 at 6.) He testified that after he saw the fire he went to the tractor and hooked up the “drag” behind it and pulled it through parts of the pasture to try to create a firebreak. (Id.)

         The fire was reported to Reno County Emergency Services at about 4:35 p.m. on March 16, 2015.

         Detective Richard Jennings of the Reno County Kansas Sheriff's Office investigated the fire but “inactivated” the investigation because he was “unable to determine exactly when or where the fire started.” (Doc. 93-6.)

         B. Circumstances of Ernest Stohr's death.

         After learning of the fire, Ernest Stohr's son and daughter-in-law assisted him in going to an area of town where there was no smoke. After the fire department cleared the area, Cynthia Stohr returned with Ernest to their home. Smoke was still very thick around the home when they returned. They stayed the night in the home because they could not find any vacant handicap-accessible hotel rooms in the area. During the night, a fire restarted on their property and they worked to put it out, with Ernest using a hose in an attempt to keep the fire from getting to the house. They were outside most of the night.

         During the week of March 16 to March 23, 2015, Ernest was using rescue inhalers. He lost about ten pounds that week and was coughing, wheezing, nauseated, and suffering shortness of breath and fatigue. These symptoms started 24 to 48 hours after the fire and progressed throughout the week.

         Ernest Stohr was admitted to the hospital on March 23, 2015, complaining of shortness of breath. At the time, he was suffering from chronically high blood pressure, peripheral vascular disease, diabetes, ...


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