United States District Court, D. Kansas
RANDALL W. FOSTER, Plaintiff,
USIC LOCATING SERVICES, LLC, Defendant.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
Renewed Motion For Judgment As A Matter Of Law
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)).
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).
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.
Judgment As A Matter Of Law
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.
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 ...