Ragan v. Stafford et al

Filing 34

MEMORANDUM OPINION denying 16 Motion for Summary Judgment. Signed by Honorable Susan O. Hickey on October 20, 2017. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JAY RAGAN
v.

PLAINTIFF
Case No. 4:16-cv-4097

CLIFTON STAFFORD

DEFENDANT
MEMORANDUM OPINION

Before the Court is Defendant Clifton Stafford’s Motion for Summary Judgment. (ECF
No. 16). Plaintiff Jay Ragan filed a response. (ECF No. 19). Defendant filed a reply. (ECF No.
27). Plaintiff filed a sur-reply. (ECF No. 30). The Court finds the matter ripe for consideration.
I. BACKGROUND
On the morning of April 22, 2016, Plaintiff’s vehicle struck a black cow in the roadway on
Arkansas Highway 24, between DeQueen, Arkansas, and Horatio, Arkansas. It is undisputed that
the cow belonged to Defendant and was pastured and fenced with other cattle on Defendant’s
nearby land. The cow escaped the pasture after breaking the top strand of a barbed-wire fence and
pushing over a four-foot section of the fence. Following the accident, Plaintiff traveled by
ambulance to the DeQueen Regional Medical Center. Soon after, Defendant repaired the broken
section of fence by fixing and tightening the broken barbed-wire strand, putting in two new posts,
and pulling up the rest of the knocked-over section of fence.
On October 14, 2016, Plaintiff filed this lawsuit, alleging that he suffered personal injury
and damages as a result of, inter alia, Defendant’s negligent failure to have, maintain, inspect, and
repair safe fencing in order to keep his cattle enclosed and off the nearby state highway. On
October 25, 2016, Defendant filed an answer to the complaint. In November 2016, Defendant
used a backhoe to remove the entire fence around his land and replaced it with a new fence.

Defendant discarded the original, removed fence.
On February 22, 2017, the parties filed their joint Rule 26(f) report, which contained no
reference to Defendant removing the original fence. On July 6, 2017, Defendant answered certain
interrogatories inquiring about repairs and replacements to the fence by stating that he decided to
replace the fence because it was “older.” (ECF No. 21-3). On July 19, 2017, Defendant testified
in his deposition that he took the old fence down and built a new fence on his land.
On August 9, 2017, Defendant filed a motion for summary judgment, arguing that the Court
should grant summary judgment in his favor because Plaintiff has not presented any evidence that
Defendant breached any duty of care with respect to the kind and quality of fence enclosing
Defendant’s property. On August 23, 2017, Plaintiff filed a motion for sanctions, arguing that
Defendant committed spoliation of evidence by removing and disposing of the fence at issue. On
October 20, 2017, the Court granted in part and denied in part Plaintiff’s motion for sanctions and
held in part that it would instruct the jury that it may find that the disposed-of section of fence at
issue was favorable to Plaintiff and unfavorable to Defendant.
II. STANDARD
The standard for summary judgment is well established. When a party moves for summary
judgment, “[t]he court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Krenik v. County of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). This is a “threshold
inquiry of . . . whether there is a need for trial—whether, in other words, there are genuine factual
issues that properly can be resolved only by a finder of fact because they reasonably may be
resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A
fact is material only when its resolution affects the outcome of the case. Id. at 248. A dispute is

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genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either
party. Id. at 252.
In deciding a motion for summary judgment, the Court must consider all the evidence and
all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving
party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The
moving party bears the burden of showing that there is no genuine issue of material fact and that
it is entitled to judgment as a matter of law. See Enterprise Bank v. Magna Bank, 92 F.3d 743,
747 (8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts
in the record that create a genuine issue for trial. Krenik, 47 F.3d at 957. However, a party
opposing a properly supported summary judgment motion “may not rest upon mere allegations or
denials . . . but must set forth specific facts showing that there is a genuine issue for trial.” Id. at
256.
III. DISCUSSION
Defendant argues that the Court should grant summary judgment in his favor because
Plaintiff has not and cannot offer evidence that Defendant “breached a duty with respect to the
kind and quality of the fence enclosing the cow, or that any act or omission by [Defendant]
proximately caused the cow to escape the enclosure.” (ECF No. 17). Defendant argues that the
fact that the cow was on the highway does not establish liability, and that Plaintiff must put forth
evidence of negligence. Defendant argues further that Plaintiff’s deposition testimony shows that
Plaintiff had no personal knowledge as to whether the condition of the fence allowed the cow to
escape. Defendant concludes that, because Plaintiff failed to present evidence as to negligence
and causation, there is no genuine issue of material fact and Defendant is entitled to judgment as
a matter of law.

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Plaintiff responds that he has presented sufficient evidence to create a genuine issue of
material fact. Specifically, Plaintiff states that the evidence in this case shows that Defendant was
aware that the fence was over fifty years old, that it was not made of new materials, and that he
had knowledge of the disrepair and failure of the fence because he had already repaired certain
sections of the fence in the months prior to the accident.
The Court finds that a genuine issue of material fact exists in this case. In the Court’s order
granting in part and denying in part Plaintiff’s motion for sanctions, the Court found that Defendant
committed spoliation of evidence when he removed and discarded the relevant section of the fence
after the commencement of litigation and prior to the initiation of discovery in this matter. The
Court also stated that, subject to a reasonable rebuttal by Defendant, the Court would instruct the
jury that it may find that the disposed-of section of fence at issue was favorable to Plaintiff and
unfavorable to Defendant. In light of this adverse instruction, the Court finds that a genuine factual
issue exists as to the condition of the fence. This issue of fact can be resolved only by a finder of
fact because it reasonably may be resolved in favor of either party.
Accordingly, the Court finds that a genuine issue of material fact exists and that Defendant
is not entitled to judgment as a matter of law. As such, Defendant’s motion should be denied.
IV. CONCLUSION
For the reasons discussed above, the Court finds that Defendant’s Motion for
Summary Judgment (ECF No. 16) should be and hereby is DENIED.
IT IS SO ORDERED, this 20th day of October, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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