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Foster v. USIC Locating Services, LLC

United States District Court, D. Kansas

July 30, 2019

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 Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for New Trial (Doc. 213). After a two-week trial, a jury awarded plaintiff Randall W. Foster $354, 090 in damages after determining defendant was partially liable for negligence in failing to mark a buried power line, which resulted in plaintiff's injuries after he struck the buried and unmarked power line with a shovel. Defendant claims there are several legal reasons why it is entitled to judgment as a matter of law, or, in the alternative, reasons why it was prejudiced in the first trial and is entitled to a new trial. For the reasons set forth below, the court denies defendant's motion.

         I. Background

         The facts of this case are well known to the court and the parties. Highly summarized, the relevant facts are as follows. Plaintiff was 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. A jury trial commenced on September 10, 2018. On September 21, 2018, the jury returned its verdict, finding defendant 37 percent at fault, plaintiff 15 percent at fault, plaintiff's employer Rylie Equipment & Contracting Company 37 percent at fault, and Kansas City Power and Light (“KCP&L”) 11 percent at fault. (Doc 210.) Defendant then timely filed the present motion.

         II. Legal Standards

         A. Renewed Motion For Judgment As A Matter Of Law

         In reviewing a motion for judgment as a matter of law, this court must determine whether the evidence, viewed in the light most favorable to the nonmoving party, presents a disagreement sufficient to mandate submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1045 (10th Cir. 1993). The court is mindful that judgment as a matter of law should be “cautiously and sparingly granted.” Black v. M & W Gear Co., 269 F.3d 1220, 1238 (10th Cir. 2001) (quoting Weese v. Schukman, 98 F.3d 542, 547 (10th Cir. 1996)). Granting such a motion is appropriate only if the evidence “points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.” Sanjuan v. IBP, Inc., 275 F.3d 1290, 1293 (10th Cir. 2002) (quotation omitted); see also Freeman v. Gerber Prods. Co., 506 F.Supp.2d 529, 534-35 (D. Kan. 2007). The court does not weigh the evidence, pass on the credibility of the witnesses, or substitute its conclusions for those of the jury. Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir. 2001) (quotation omitted). However, judgment as a matter of law must be entered if there is no legally sufficient evidentiary basis with respect to a claim or defense under the controlling law. Roberts v. Progressive Indep., Inc., 183 F.3d 1215, 1219-20 (10th Cir. 1999) (citing Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir. 1996)).

         B. New Trial

         Motions for new trials are “not regarded with favor and should only be granted with great caution.” United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991). The court should grant a new trial only in limited circumstances where “the court believes the verdict is against the weight of the evidence, prejudicial error has occurred, or substantial justice has not been done.” Wirtz v. Kan. Farm Bur. Servs., Inc., 311 F.Supp.2d 1197, 1226 (D. Kan. 2004) (internal quotation marks and citation omitted); Fed.R.Civ.P. 59(a).

         III. Analysis

         Defendant moves for judgment as a matter of law on the following issues: (1) plaintiff failed to present sufficient evidence to support the existence or breach of a legal duty (2) plaintiff failed to demonstrate proximate cause, and (3) plaintiff did not present legally sufficient evidence regarding damages. In the alternative, defendant requests a new trial for the following reasons: (1) the Boyd Smith testimony was prejudicial, (2) defendant was prejudiced by the court's failure to give an intervening and superseding causation instruction, and (3) the verdict was against the weight of the evidence.

         A. Judgment As A Matter Of Law

         a. Duty

         Defendant claims he is entitled to judgment as a matter of law because plaintiff failed to establish the existence of a legal duty or breach of that duty. Defendant first argues that it owed no duty to plaintiff to locate and mark the buried power line at issue because, pursuant to the Pretrial Order, plaintiff's negligence claim was based on defendant's alleged breach under the Kansas Underground Utility Damages Prevention Act (“KUUDPA”), K.S.A. § 66-1801. Defendant alleges that under the KUUDPA, the duty is placed on the facility operator to locate underground power lines. Under the statute, the facility operator is the company that owns the underground lines, which here, is KCP&L. Therefore, as the locating service hired by the operator, it owes no duty to plaintiff under the statute.

         Plaintiff, however, responds that his negligence claim was not predicated on the KUUDPA and defendant owed him a common-law duty to exercise reasonable care while performing the ...


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