United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
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.
are the heirs of Ernest A. Stohr, who died on March 30, 2015.
They assert negligence claims against the remaining
defendant, David Farris
(“Defendant”). 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.)
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.)
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
Origin of the fire.
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
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.)
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.
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.
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. Ratzloff subsequently heard the sirens of
approaching fire trucks.
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.)
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.)
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
fire was reported to Reno County Emergency Services at about
4:35 p.m. on March 16, 2015.
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.)
Circumstances of Ernest Stohr's death.
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.
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.
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, ...