Mosqueda v. BBR Investments, LLC et al
Filing
110
MEMORANDUM AND ORDER denying 80 Defendant Crawfords Motion for Partial Summary Judgment; denying 82 Defendant Crawfords Motion for Summary Judgment; denying 86 Sonic's Motion for Summary Judgment; denying 92 Sonic's Motion to Exclude testimony. Signed by District Judge Richard D. Rogers on 3/6/14. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES MOSQUEDA,
PLAINTIFF,
v.
)
)
)
)
)
)
)
MICHELLE CRAWFORD,
SONIC OF NEWTON, INC.
Defendants.
Case No. 12-1450-RDR
MEMORANDUM AND ORDER
This
is
jurisdiction.
a
personal
injury
action
based
upon
diversity
This action arises from a collision on June 10,
2011 between plaintiff, who was riding a bicycle on a sidewalk,
and
a
car
driven
by
defendant
Michelle
Crawford,
who
was
a
business visitor exiting a Sonic drive-in restaurant in Newton,
Kansas.
The
restaurant
Newton, Inc. (“Sonic”).
several motions.
was
operated
by
defendant
Sonic
of
This case is now before the court upon
The first motion the court shall address is
Sonic’s motion for summary judgment.
I.
SONIC’S MOTION FOR SUMMARY JUDGMENT SHALL BE DENIED.
A.
Summary judgment standards
Summary judgment is warranted if the materials on record
show that there is “no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.”
the
FED.CIV.P. 56(a).
light
most
favorable
The court views “all of the facts in
to
the
non-movant
and
reasonable
inferences from the record must be drawn in favor of the non-
Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.
moving party.”
2007).
“Once a properly supported summary judgment motion is made,
the opposing party may not rest on the allegations contained in
the complaint, but must respond with specific facts showing the
existence of a genuine factual issue to be tried.... These facts
may be shown by any of the kinds of evidentiary materials listed
in
Rule
56(c),
except
the
mere
pleadings
by
themselves.”
Southway v. Central Bank of Nigeria, 149 F.Supp.2d 1268, 1273
(D.Colo.2001), aff'd, 328 F.3d 1267 (10th Cir.2003).
“Summary
judgment
is
.
.
.
appropriate
when
the
court
concludes that no reasonable juror could find for the non-moving
party
based
response.”
on
the
Southway,
evidence
149
presented
F.Supp.2d
at
in
1273.
the
motion
“The
and
operative
inquiry is whether, based on all documents submitted, reasonable
jurors could find by a preponderance of the evidence that the
plaintiff is entitled to a verdict.... Unsupported allegations
without ‘any significant probative evidence tending to support
the complaint’ are insufficient ... as are conclusory assertions
that
factual
disputes
quotations omitted).
exist.”
Id.
(interior
citations
and
The evidence presented must be based on
more than mere speculation, conjecture, or surmise to defeat a
motion for summary judgment.
Rice v. United States, 166 F.3d
1088, 1092 (10th Cir. 1999).
2
B.
Uncontroverted facts
Sonic operates a drive-in restaurant at 1215 North Main
Street in Newton, Kansas.
The restaurant was built in 1970.
In
that year, there was no structure on the south adjoining lot at
1201 North Main Street.
The restaurant was designed so that
traffic
premises
would
enter
the
through
a
north
driveway,
circle around the restaurant, and exit through a south driveway.
Currently, Bud & Steve Auto Service operates a business on
the south adjoining lot at 1201 North Main.
In 1972, that
business constructed a building at that address.
remains today.
that
the
bordered
The court assumes for the purposes of this order
south
the
The building
driveway
property
building sits.
of
where
the
Sonic
the
Bud
restaurant
&
Steve
has
Auto
always
Service
Sonic acquired the franchise in 1982 or 1983 and
has operated the restaurant ever since.
In 2008, the original
Sonic building at 1215 North Main Street was torn down and a
modernized building was constructed in its place.
The design of
the location remained mostly but not entirely the same.
For the
purposes of the motion for summary judgment, the court shall
assume
that
as
part
of
the
renovations
the
south
driveway
exiting the business was made narrower, but still bordered the
property line with 1201 North Main.
On June 10, 2011, plaintiff was riding a bicycle north on a
sidewalk
heading
towards
the
exit
3
of
the
Sonic
restaurant.
Defendant Crawford was driving a vehicle which was exiting the
restaurant using the south driveway.
the
side
of
defendant
Crawford’s
Plaintiff collided into
vehicle
and
suffered
substantial injuries.
Plaintiff had the right-of-way on his bicycle.
He was
familiar with the sidewalk in front of the Sonic restaurant
because he had visited the restaurant on previous occasions and
had walked on the sidewalk multiple times.
For the purposes of
the summary judgment motion, the court shall assume that as
plaintiff approached the south driveway on his bicycle, he could
not see vehicles beginning to exit Sonic because of the Bud &
Steve Auto Service building, and that defendant Crawford could
not see plaintiff approach on his bicycle because of the Bud &
Steve
Auto
Service
building.
There
were
no
warning
signs,
traffic control signs or mirrors on the Sonic premises prior to
the accident in question.
C. The court will not grant summary judgment on the basis
of the statute of repose.
Sonic’s first argument for summary judgment is that all of
plaintiff’s claims against it must be dismissed because they are
time-barred by Kansas’ statute of repose, K.S.A. 60-513.
statute provides in part:
(a) The following actions shall be brought within two
years: . . .
(4) An action for injury to the rights of another, not
arising on contract, and not herein enumerated. . . .
4
This
(b) . . . the causes of action listed in subsection
(a) shall not be deemed to have accrued until the act
giving rise to the cause of action first causes
substantial injury, or, if the fact of injury is not
reasonably ascertainable until some time after the
initial act, then the period of limitation shall not
commence until the fact of injury becomes reasonably
ascertainable to the injured party, but in no event
shall an action be commenced more than 10 years beyond
the time of the act giving rise to the cause of
action.
Sonic contends that the alleged “act giving rise to the
cause of action” was the original design of the driveways at the
Sonic restaurant and that the exact same conditions existed as
early as 1972 and more than ten years before the accident in
question in this case.
To determine if the statute of repose is applicable, it
must
be
action”
decided
when
occurred.
the
There
“act
giving
appear
to
rise
be
to
the
unresolved
questions which may to relevant to that decision.
down
its
restaurant
building
in
2008,
cause
rebuilt
of
factual
Sonic tore
a
modernized
restaurant building, and may have redesigned its location to
some
degree,
although
the
south
edge
of
the
exit
driveway
remained along the property line with Bud & Steve Auto Service.
There
is
evidence
that
in
addition
to
a
constructing
building and awnings, Sonic narrowed the driveways.
a
new
It may be
argued that the redesign of the Sonic location is the act giving
rise to the cause of action.
There appears to have been a
renovation according to new plans, although those plans were
5
similar to the previous design.
If it is determined that the
act giving rise to the cause of action was the design of the
restaurant in 1970, then the statute of repose would apply to
some of plaintiff’s claims.
Here, however, the record is not
sufficiently
court
clear
for
the
to
determine
upon
summary
judgment whether the design of the restaurant location in 1970
or the redesign in 2008 was the act giving rise to a cause of
action.
Plaintiff’s
citations
to
various
Kansas
cases,
including Klose v. Wood Valley Racquet Club, Inc., 975 P.2d 1218
(Kan.
1999),
involve
are
distinguishable
renovation,
remodeling
because
or
those
redesign
suggested in the record of this case.
cases
to
the
do
not
degree
The court also notes that
in Taney v. Independent School District No. 624, 673 N.W.2d 497
(Minn.App.
2004),
the
court
held
that
a
10-year
statute
of
repose began to run from date of remodeling, not the date of
original
construction,
even
though
the
alleged
hazardous
condition was not altered by the remodeling process.
We remark further that the statute of repose would not
operate to bar plaintiff’s claims of failure to warn and failure
to
maintain,
if
the
failure
to
warn
or
failure
to
maintain
occurred within ten years of the accident and if the failure to
warn or maintain gave rise to plaintiff’s cause of action.
See
Dunn v. Unified School District No. 367, 40 P.3d 315, 320 (Kan.
App.
2002)(claim
for
failure
to
6
protect
against
“ancient
premises hazard” is not barred by statute of repose even if the
hazard – unsafe plate glass doors – was created more than 10
years before the injury alleged by plaintiff).
In
sum,
although
the
court
acknowledges
that
the
application of the statute of repose is a question of law, the
court
cannot
decide
that
question
upon
the
summary
judgment
record because there are factual uncertainties as to the range
or
extent
of
the
location in 2008.
apply
to
maintain
modernization
redesign
of
the
Sonic
In addition, the statute of repose does not
plaintiff’s
Sonic’s
and
claim
premises
of
a
if
breach
the
of
duty
alleged
to
warn
breach
or
caused
plaintiff’s injury.
D.
Plaintiff has properly alleged a breach of duty in
some but not all respects.
A
plaintiff
elements:
in
a
negligence
action
must
prove
four
a duty owed to the plaintiff, breach of that duty,
the breach of duty was the cause of the injury to the plaintiff,
and damages suffered by the plaintiff.
P.3d 1, 6 (Kan. 2013).
five “duties”:
Shirley v. Glass, 308
Plaintiff claims that Sonic breached
1) Sonic failed to refrain from creating a view
obstruction which might cause foreseeable harm to users of a
public right of way – see Boudreaux v. Sonic Industries, Inc.,
729
P.2d
514
(Okla.App.
1986);
2)
Sonic
constructed
and
maintained structures on its land so that they endangered the
7
safety of travelers using the sidewalk in a lawful manner – see
P.I.K.4th Civil § 126.50; 3) Sonic failed to act with reasonable
care in maintaining its property – see P.I.K.4th Civil § 126.02;
4) Sonic failed to use reasonable care in keeping its business
place safe and to warn of dangerous conditions – see P.I.K.4th
Civil § 126.03; and 5) Sonic breached its duty as possessor of
land to others outside of the land for physical harm caused by a
structure or other artificial condition on the land when Sonic
realized or should realize that there was an unreasonable risk
of
harm
which
Sonic
created
or
a
third
person
created
with
Sonic’s consent – see Restatement (Second) of Torts § 364.
Doc.
No. 77, pp. 13-14.
1. Plaintiff has properly alleged facts to support a
violation of the duty described in P.I.K.4th Civil § 126.50.
Plaintiff contends that Sonic had a duty to construct and
maintain the structures on its land so that they do not endanger
the safety of travelers using the sidewalk in a lawful manner.
Sonic does not deny that this duty is recognized under Kansas
law.
But, Sonic contends that the duty does not apply to these
facts since it is undisputed that the obstruction to plaintiff’s
view was not built by Sonic and did not sit on property owned or
controlled by Sonic.
The duty in question is described in the model pattern
instruction approved by the Kansas Judicial Council as follows:
8
“it is the duty of an owner of land adjacent to or abutting upon
a highway, street or sidewalk to construct and maintain the
structures on his or her land so that they do not endanger the
safety of travelers using the highway, street or sidewalk in a
lawful
P.I.K.4th
manner.”
contention
is
maintenance
of
that
a
Civil
Sonic’s
“structure”
§
126.50.
construction,
(the
exit
Plaintiff’s
placement
driveway)
on
and
Sonic’s
property so that drivers’ view was obstructed by a building on
an adjoining lot endangered the safety of travelers such as
plaintiff who lawfully used the sidewalk.
This argument appears
consistent with the duty described in § 126.50.
Counsel for
Sonic points out that the cases collected to illustrate § 126.50
do not involve a building on adjoining land controlled by a
third party.
Sonic contends that the dangerous condition was
not located on Sonic’s property and therefore this case falls
outside the language of § 126.50.
But, the location of the exit
driveway on Sonic’s property is alleged to have been one of the
causes
of
the
dangerous
condition.
The
court
finds
that
defendant Sonic did owe a duty to plaintiff as described in §
126.50.
Whether that duty was breached and caused injury to
plaintiff is a matter for a jury’s consideration.
2. The Boudreaux case does not provide an independent
basis to find a breach of duty in Kansas.
9
In
Boudreaux
v.
Sonic
Industries,
Inc.,
729
P.2d
514
(Okla.App. 1986), the Oklahoma Court of Appeals held that:
“A
property owner . . . owes a duty to maintain his property in
such a manner that when it is put to its normal business use, it
does not create an unreasonable hazard to travelers upon the
abutting roadway.”
729 P.2d at 516.
Plaintiff cites this case
as support for one of the “duties” plaintiff argues was breached
by Sonic in this case.
We agree with Sonic that Oklahoma case
authority does not control in this case, although it may be
considered persuasive.
as
setting
forth
an
Here, we do not view the Boudreaux case
independent
duty
of
care
as
much
as
providing some insight as to how to interpret the duties of care
which are already set forth for possessors of land in Kansas.
3.
Restatement (Second) of Torts § 364 does not
provide an independent basis to find a breach of duty in
this case.
Sonic further argues that plaintiff does not owe a duty
under Restatement (Second) of Torts § 364.
This section of the
Restatement states that:
A possessor of land is subject to liability to others
outside of the land for physical harm caused by a
structure or other artificial condition on the land,
which the possessor realizes or should realize will
involve an unreasonable risk of such harm, if:
(a)
the possessor has created the condition, or (b) the
condition is created by a third person with the
possessor’s consent or acquiescence while the land is
in his possession or (c) the condition is created by a
third person without the possessor’s consent or
acquiescence, but reasonable care is not taken to make
10
the condition safe after the possessor knows or should
know of it.
Sonic argues that this section of the Restatement has never
been adopted by Kansas courts.
This appears correct.
No Kansas
court has expressly adopted this section as Kansas law, although
the Kansas Supreme Court did refer to the section and dismiss
its applicability to the facts asserted in Glaser ex rel Glaser
v. Emporia Unified School Dist., 21 P.3d 573, 578 (Kan. 2001).
This section of the Restatement is not expressed in terms
of a “duty” owed by a land possessor to others outside of the
land.
the
We also note that the principles of liability recited in
§
364
reasonable
are
care
not
inconsistent
described
P.I.K.4th Civil § 126.02.1
in
with
P.I.K.4th
the
general
Civil
§
duty
126.50
of
and
With this in mind, the court shall
rule that Kansas has not adopted § 364 as a separate duty owed
by a possessor of land to others outside of the land, but that §
364 may be considered in construing Sonic’s duty of reasonable
care.
4. Plaintiff does not allege that Sonic had a duty to
protect plaintiff from the negligence of business invitees.
Sonic asks for judgment upon the grounds that Sonic owes no
duty to protect plaintiff from the alleged negligent acts of
business invitees.
Kansas
law
Doc. No. 91 at pp. 26-32.
requires
drivers
of
1
vehicles
Sonic notes that
emerging
from
a
Section 126.02 reads in part: “An occupier of land owes a duty to others of
reasonable care under all the circumstances.”
11
business’s driveway to stop immediately prior to driving onto a
sidewalk.
K.S.A. 8-1555.
Sonic does not claim, however, that
it is uncontroverted that the driver in this case, Michelle
Crawford, violated the law immediately before the collision in
this case.
This appears to be an undecided factual dispute.
The final pretrial order does not reflect that plaintiff is
claiming the duty described by Sonic.
Because of this, and
because Sonic’s argument is based on an unresolved fact issue,
the court finds that the argument does not provide a proper
basis
for
Michelle
summary
Crawford
judgment.
will
be
The
in
alleged
all
negligence
likelihood
a
of
matter
the
of
comparison in this case.
5. The alleged open and obvious nature of the danger
in this case does not extinguish Sonic’s duty of care.
Sonic argues that it did not owe a duty of reasonable care
to
plaintiff
obvious.
1261,
dangers.”
the
hazardous
condition
was
open
and
As recognized in Crowe v. True’s IGA, LLP, 85 P.3d
1266
possessor
because
(Kan.App.
of
land
has
2004),
no
“the
duty
to
general
remove
rule
is
known
and
that
a
obvious
Nevertheless, “the possessor of land may have an
affirmative duty to minimize the risk of an open and obvious
danger when there is reason to expect that an invitee will be
distracted, will forget the discovered danger, or will fail to
protect against the danger.”
Id.
12
In Crowe, the court held that
the possessor of land upon which there were gasoline pumps had a
duty of reasonable care to a woman who slipped and fell on a
gasoline spill, even though the gasoline spill was open and
obvious
to
the
woman
or
any
reasonable
person.
The
court
reasoned that because the gasoline spill surrounded the woman,
there was reason to believe she would fail to protect against
the danger of walking through the spill.
Here, it could be
anticipated (in other words it was arguably foreseeable) that
vehicles would exit east through the Sonic driveway and that
bicyclists would travel north on the sidewalk even though their
vision was obstructed.
Therefore, Sonic maintained a duty of
reasonable care which was not extinguished by the nature of
danger.
506
See also, Miller v. Zep Manufacturing Company, 815 P.2d
(Kan.
1991)(jury
issue
existed
as
to
whether
general
contractor breached duty to diminish open and obvious danger of
a 6-feet wide, 10-feet long, 10-feet deep pit situated in a
concrete floor of an industrial building under construction).
The court has examined the Kansas cases cited by Sonic.
These cases are distinguishable on their facts.
The only case
involving a traffic situation is Craven v. Shively, 2010 WL
597018 (Kan.App. 2/12/2010).
In Craven, the court found that a
defendant school district had no duty to prevent or diminish the
danger of a pedestrian being backed into while walking behind a
vehicle parked in a fire lane.
The court found that there was
13
nothing which prevented the plaintiff from seeing the vehicles
in the fire lane.
In fact, the plaintiff was aware of the
vehicle that struck her and its driver before she walked behind
the vehicle.
In addition, the plaintiff in Craven could have
avoided the condition by walking farther away from the parked
vehicles.
We find this case distinguishable from the case at
hand because there is a fact question as to whether plaintiff
and Ms. Crawford were able to see each other and because the
alleged dangerous condition may not have been so easily avoided.
6. Plaintiff has properly alleged facts supporting a
duty to warn.
Sonic makes more or less the same arguments to ask for
judgment against any claim of a breach of a duty to warn.
The
court rejects these arguments because the court believes it is
reasonable
to
conclude
that
persons
would
enter
the
blind
intersection alleged in this case without protecting themselves
from the danger.
Sonic asserts that plaintiff has not presented
any evidence of this.
But, there is evidence in the summary
judgment record that a substantial number of motorists do not
stop as they are leaving the exit driveway.
M.
Doc. No. 103, Ex.
The record also does not preclude a reasonable jury from
concluding that reasonable persons in plaintiff’s position would
not
stop
bicycling
before
entering
alleged in this case.
14
the
blind
intersection
7.
The issue of proximate cause is a matter for a
jury’s decision on this record.
Sonic argues on the basis of Toumberlin v. Haas, 689 P.2d
808 (Kan. 1984) that summary judgment should be granted in favor
of
Sonic
because
Sonic’s
conduct
could
proximate cause of plaintiff’s injuries.
not
have
been
the
In Toumberlin, two
pickup trucks collided in an uncontrolled rural intersection.
The plaintiffs (a husband and wife in one of the trucks) sued
the Board of Commissioners of Franklin County, Kansas alleging,
in part, that the County should have placed proper warning signs
at the intersection.
The court held that the absence of a
traffic control sign had no bearing on the cause of the accident
because
the
plaintiffs
testified
that
they
stopped
at
the
intersection even though a sign was not present.
In addition,
the
through
plaintiffs
testified
that
they
traveled
the
intersection almost every day and, therefore, were very familiar
with it.
Sonic argues that plaintiff in this case was familiar
with
intersection
the
of
the
sidewalk
and
the
Sonic
exit
driveway, and that both plaintiff and Ms. Crawford testified
that they would not have done anything differently if they had
observed a sign warning of vehicular or pedestrian traffic.
The court believes the Toumberlin case is distinguishable
on the following grounds.
First, plaintiff argues that Sonic
failed to exercise reasonable care in ways other than failing to
15
post warning signs.
Second, there is evidence that defendant
Crawford did not stop, contrary to her statement, as she was
exiting on the driveway.
This is a fact issue which bears upon
the meaning and credibility of any statement that she would have
done
nothing
differently
if
there
had
been
warning
signs.
Third, it is not clear from the evidence what Crawford could
have seen if she did stop.
even if she stopped.
Her view could have been obstructed
Finally, as plaintiff notes, the issue of
causation is one generally assigned to a jury.2
See St. Clair v.
Denny, 781 P.2d 1043, 1045 (Kan. 1989)(stating the general rule
although deviating from it because there was no evidence to
support a question of fact).
For this reason and the other
above-mentioned reasons, summary judgment cannot be ordered on
the basis of causation.
8.
Summary judgment shall not
plaintiff’s punitive damages claim.
Sonic
asks
for
summary
judgment
be
granted
against
against
plaintiff’s
punitive damages claim on the grounds that plaintiff has offered
no evidence that Sonic acted in a wanton manner.
Sonic asserts
that plaintiff has no evidence of prior accidents which might
put Sonic on notice of a hazardous condition or other evidence
of
prior
knowledge
of
a
danger.
2
The
court
disagrees
and
Sonic cites Lambel v. City of Florence, 222 P. 64 (Kan. 1924) for the
proposition that an issue of proximate cause may be decided by the court
where the facts are “admitted by demurrer.” Here, we believe there are fact
questions regarding what was seen and whether persons exercised reasonable
care. These questions have a bearing on proximate cause.
16
believes
that
a
jury
question
exists
as
to
whether
Sonic’s
knowledge of the blind intersection on its premises is such that
a reasonable jury could find that Sonic knew or should have
known that it created a hazardous situation which forced its
business invitees to exit Sonic’s premises so that they drove
past
a
“blind
spot”
preventing
pedestrians using the sidewalk.
denying
Sonic’s
motion
to
them
from
seeing
northbound
As with the court’s prior order
dismiss,
the
court
believes
the
following cases provide support for denying Sonic’s arguments
for summary judgment against plaintiff’s punitive damages claim:
Cerretti v. Flint Hills Rural Elec. Co-op. Ass’n, 837 P.2d 330,
345-46 (Kan. 1992)(sustaining punitive damages award against an
electric utility which was aware of its hazardous power line
strung too low over a lake which hosted sailboats); Gruhin v.
City
of
Overland
Park,
836
P.2d
1222,
1225-26
(Kan.App.
1992)(evidence that golf club employees had knowledge of a deep
and hazardous hole on the course and took few steps to prevent
cart drivers from striking the hole, was sufficient to support
claim of wanton negligence and reckless disregard).
E.
Conclusion
In summary, the court finds that plaintiff should not be
allowed to allege an independent duty of care on the basis of
the Boudreaux case or Restatement (Second) of Torts § 364.
17
But,
otherwise,
Sonic’s
arguments
for
summary
judgment
shall
be
TESTIMONY
OF
denied.3
II.
SONIC’S MOTION TO EXCLUDE THE
PLAINTIFF’S EXPERT SHALL BE DENIED.
Sonic
has
filed
a
motion
to
REPORT
AND
exclude
the
testimony of plaintiff’s expert Dr. Brian A. Coon.
report
and
Defendant
asserts that the report and testimony should be excluded under
the provisions of FED.R.EVID. 702 and the principles of the
Daubert case.
FED.R.EVID. 702 provides:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d)
the
expert
has
reliably
applied
the
principles and methods to the facts of the case.
The
Daubert
case
requires
the
court
to
reliability and relevance of expert testimony.
v. Carmichael, 526 U.S. 137, 152 (1999).
determine
the
Kumho Tire Co.
As for reliability,
the court must decide if the expert “is qualified by knowledge,
skill, experience, training, or education to render an opinion.”
3
Sonic makes arguments for summary judgment which are repeated in its motion
to exclude the testimony of plaintiff’s expert witness.
Sonic also adopts
arguments made in motions for summary judgment filed on behalf of defendant
Crawford. The court rejects these arguments as detailed in the remainder of
this order.
18
U.S. v. Orr, 692 F.3d 1079, 1091 (10th Cir. 2012) cert. denied,
133
S.Ct.
1300
(2013).
“[I]f
the
expert
is
sufficiently
qualified, the court must determine whether the expert’s opinion
is
reliable
by
assessing
the
underlying
reasoning
and
U.S. v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.)
methodology.”
cert. denied, 558 U.S. 815 (2009).
It must be shown that the
expert’s testimony shall be “based on a methodology that was
‘scientifically sound and that the opinion is based on facts
which satisfy Rule 702’s reliability requirements.’”
Orr, 692
F.3d at 1092 (quoting Nacchio, 555 F.3d at 1241).
As for relevance, the court must decide whether an expert’s
testimony
will
assist
the
fact-finder
evidence or determining a fact in issue.
Pharmaceuticals,
Inc.,
509
U.S.
579,
in
understanding
the
Daubert v. Merrell Dow
591
(1993).
“Relevant
evidence” means evidence having “any tendency to make a fact
more or less probable than it would be without the evidence
[when] the fact is of consequence in determining the action.”
FED.R.EVID.
relationship
401.
“A
between
trial
the
court
evidence
must
look
proffered
at
and
the
the
logical
material
issue that evidence is supposed to support to determine if it
advances the purpose of aiding the trier of fact.”
Bitler v.
A.O. Smith Corp., 400 F.3d 1227, 1234 (10th Cir. 2004) cert.
denied, 546 U.S. 926 (2005).
19
Plaintiff
witness
in
doctorate
has
this
in
engaged
case.
Dr.
Dr.
Brian
Coon
A.
is
Coon
an
mechanical/transportation
as
an
attorney,
expert
holds
engineering,
is
a
an
accredited traffic accident reconstructionist and a certified
professional traffic operations engineer.
as a part-time police officer.
as
an
associate
warrant
traffic
studies
bicycle lanes.
for
He is also certified
He works for the City of Wichita
engineer.
In
signalization
his
and
job,
signage,
he
performs
and
designs
To prepare his report in this case, Dr. Coon
observed and took photographs of the accident site, reviewed
witness statements and accident reports, examined real estate
records,
municipal
reviewed
documents
ordinances,
and
produced
consulted
by
books
Sonic,
referred
regarding
to
roadway
design.
His report discusses the circumstances of the accident, the
design of the exit driveway, the desirability of unobstructed
sight triangles at intersections, and the possibility of posting
signs or mirrors to reduce the chance of an accident.
four conclusions at the end of his report:
He listed
1) that plaintiff
was traveling between five and ten miles per hour at the time of
the accident; 2) that the proximity of the Sonic exit to the
adjacent building created an unreasonable hazard to users of the
sidewalk by obscuring the view of both motorists and users of
the sidewalk; 3) that the lack of warning signs or mirrors made
20
the exit an unreasonable hazard to both motorists and users of
the sidewalk; and 4) defendant Crawford failed to maintain an
adequate lookout and failed to exercise due care under K.S.A. 81535.4
He has also testified that Sonic’s exit driveway should
have a “bump out” or “bulge out” which would cause drivers to
drive away from the Bud & Steve Auto Service building.
Dr.
Coon
does
not
have
experience
or
credentials
in
designing fast-food restaurant driveways.
Sonic’s first argument for excluding Dr. Coon’s report and
testimony is that his opinion is unreliable because Dr. Coon
does not have the necessary experience in designing a fast-food
exit driveway or private driveway.
In making this argument
Sonic does not identify a specific fast-food industry standard
or explain why such a standard would be different from standards
consulted by traffic engineers.
Dr. Coon’s report discusses the
importance of unobstructed sight triangles at intersections and
notes
that
recognized
this
by
the
is
a
common
American
Transportation Officials.
traffic
Association
engineering
of
State
concept
Highway
and
Dr. Coon’s knowledge and experience
in traffic engineering provides a reliable basis to assist a
trier of fact to understand the evidence and fact issues in this
4
K.S.A. 8-1535 provides in part that “every driver of a vehicle shall
exercise due care to avoid colliding with any pedestrian and shall give
warning by sounding the horn when necessary . . .”
21
case.
So, the court shall reject Sonic’s first argument to
exclude Dr. Coon’s report and testimony.
Next, Sonic argues that Dr. Coon’s report and testimony
should be excluded because Dr. Coon admitted in his deposition
that he did not know the exact position of the collision.
may be a consideration upon cross-examination.
does
not
testimony
believe
that
regarding
this
Dr.
available
methods
renders
to
This
But, the court
Coon’s
report
increase
range
and
of
vision or to warn of obstructed vision irrelevant to a decision
as to whether Sonic exercised reasonable care.
Sonic further argues that part of Dr. Coon’s report and
testimony is based upon a Sonic map for a different location
than where the accident occurred.
Sonic contends that this
means Dr. Coon’s testimony is not relevant.
This is another
matter for cross-examination in the court’s opinion.
It does
not render Dr. Coon’s report and testimony immaterial.
Finally, Sonic asserts that Dr. Coon’s report and testimony
is irrelevant because it does not speak to the main issues in
this
case
evidence.
merely
and
will
not
assist
a
jury
in
understanding
the
The gist of this argument appears to be that Dr. Coon
makes
observations
that
any
lay
person
could
make
regarding the obstructed view and the absence of signage, and
that
his
driveway.
conclusions
do
not
concern
the
design
The court disagrees with this argument.
22
of
the
exit
Dr. Coon’s
conclusion that the “proximity of the Sonic exit to the building
to the south created an unreasonable hazard” is a criticism of
the
design
analysis
of
the
regarding
signage
and
exit
driveway.
sight
mirrors
Furthermore,
triangles
may
provide
and
his
Dr.
Coon’s
experience
assistance
to
a
with
jury
in
examining the issues in this case.
For the above-stated reasons, the court shall deny Sonic’s
motion
to
exclude
the
report
and
testimony
of
plaintiff’s
expert.
III.
DEFENDANT CRAWFORD’S MOTION FOR SUMMARY JUDGMENT
PLAINTIFF’S CLAIM FOR FUTURE LOST WAGES SHALL BE DENIED.
ON
Defendant Crawford argues that plaintiff’s claim for future
lost
wages
plaintiff
should
has
background.5
at
least
had
be
dismissed
on
summary
an
unstable
work
history
judgment
and
a
because
criminal
Crawford notes that plaintiff has been terminated
five
times,
has
had
arrests
or
convictions
for
possession of marijuana, DUI and driving while on a suspended
license, and that he has not had a valid driver’s license since
2008.
Crawford does not deny that plaintiff was working at a
full-time job, although for only one week, at the time of the
accident in this case.
The
issue
before
the
court
is
whether
it
has
been
demonstrated that plaintiff will be unable to produce evidence
5
Sonic has joined in this motion.
Doc. 91, p. 39.
23
to support a claim of lost wages if this case goes to trial.
Here, Crawford admits that plaintiff was working at the time of
the accident and there is evidence that he has been unable to
work since the accident.
This supports a claim of lost wages.
The cases cited by Crawford (Boody v. U.S., 706 F.Supp.
1458 (D.Kan. 1989) and Garay v. Missouri Pacific R. Co., 60
F.Supp.2d 1168 (D.Kan. 1999)) do not involve summary judgment
motions.
In Boody, after a bench trial, the court determined
that the evidence of lost wages was speculative because the
decedent’s past job record and future plans did not support a
lost
future
damages
award.
Although
there
are
arguable
similarities with this case, it is a critical distinction that
the court was considering a complete record after a bench trial,
not deciding whether a material issue of fact was present upon a
summary judgment motion.
In Garay, the court was considering a
motion in limine to exclude the testimony of an economic expert
who assumed that the decedent (who was in the country illegally)
would have been continuously employed for the next 40 years.
The court determined that the failure of the expert to take into
account the decedent’s illegal status rendered his opinion as to
future
lost
wages
unreliable.
Here,
we
are
not
asked
determine whether an expert’s opinion is admissible.
is
to
determine
whether
there
is
an
issue
of
fact
to
Our task
present
regarding whether plaintiff’s economic loss included lost wages.
24
We believe that such a material issue of fact exists because it
has not been shown that plaintiff will fail to present evidence
showing a future wage loss.
For these reasons, Crawford’s motion for summary judgment
against plaintiff’s claim for future lost wages shall be denied.
IV. DEFENDANT CRAWFORD’S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S CLAIM FOR WENTLING DAMAGES SHALL BE DENIED AS TO ANY
CLAIM FOR LOSS OF HOUSEHOLD SERVICES.
Crawford
has
filed
a
motion
for
plaintiff’s claim for Wentling damages.6
damages
take
their
name
from
Wentling
summary
judgment
Doc. No. 82.
v.
Medical
on
These
Anesthesia
Services, 701 P.2d 939 (Kan. 1985) where the Kansas Supreme
Court held that a plaintiff-husband in a wrongful death action
could
recover
for
the
loss
of
household
services
that
his
deceased wife would have provided had she not been victimized by
medical malpractice.
Of course, this is not a wrongful death
action and plaintiff admits that he has never been married and
never had children.
So, the question which has developed as
this motion has been briefed is not what kind of wrongful death
damages are available to plaintiff, but whether plaintiff may go
forward with a claim for household services damages.
There
is
evidence
in
the
record
before
the
court
that
plaintiff has permanent physical restrictions which will limit
his ability to perform various kinds of work.
6
Sonic has joined in Crawford’s arguments.
25
There is also
Doc. No. 91 at pp. 38-39.
evidence in the record that plaintiff does perform some kinds of
work around his brother’s house, where plaintiff is currently
living.
There is no evidence in the record, to the court’s
knowledge, of the household services plaintiff performed before
his injuries in this case.
Crawford contends that the evidence
of loss of household services is insufficient to permit such a
claim to continue.
The
issue
on
summary
judgment
is
whether
there
is
an
absence of evidence to support plaintiff’s claim for household
services
damages.
Strong
evidence
services has not been demonstrated.
plaintiff’s
ability
to
perform
of
a
loss
of
household
But, there is evidence that
labor
restricted by the injuries he suffered.
of
all
kinds
has
been
A reasonable factfinder
might conclude that these restrictions extended to labor around
the household.
While no evidence has been presented to support
a specific monetary value of the lost household services, the
Kansas Supreme Court has held that triers of fact are presumed
capable of converting the losses of household services into a
monetary figure.
Wentling, 701 P.2d at 948.
Accordingly, the
court finds that the evidence in the record is sufficient to
deny Crawford’s motion for summary judgment as to a claim for
loss of household services.
26
V.
SUMMARY
In
motion
accordance
for
summary
with
this
judgment
memorandum
(Doc.
No.
and
86)
opinion,
shall
be
Sonic’s
denied.
Sonic’s motion to exclude the report and testimony of Dr. Coon
(Doc. No. 92) shall be denied.
Defendant Crawford’s motion for
partial summary judgment on plaintiff’s claim for future lost
wages (Doc. No. 80) shall be denied.
And, defendant Crawford’s
motion for summary judgment on plaintiff’s claim for Wentling
damages (Doc. No. 82) – treated as a motion for summary judgment
on plaintiff’s claim for household services damages – shall be
denied.
IT IS SO ORDERED.
Dated this 6th day of March, 2014, at Topeka, Kansas.
s/ Richard D. Rogers
Richard D. Rogers
United States District Judge
27
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