United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for Summary Judgment
filed by Defendant D.P. Sawyer, Inc. (“Sawyer”),
ECF No. 201; the Motion for Summary Judgment filed by
Defendant Interstate Highway Construction, Inc.
(“IHC”), ECF No. 207; and the Motion to Stay All
Further Proceedings filed by Plaintiffs Kathryn Pals and
Gordon Engel, ECF No. 324. For the reasons stated below, the
Motions for Summary Judgment will be granted and the Motion
to Stay will be denied.
February 2015, the Nebraska Department of Roads
(“Department”) contracted with IHC for the
removal and replacement of the roadway and shoulders on a
section of Interstate 80 (“I-80”). See
Contract, ECF No. 202-7, Page ID 2769-70. The project was
known as the Big Springs Project (“Project”). The
Department owned the Project and designed the Project's
Traffic Plan. The Traffic Plan was part of the Project's
“Plans for Construction.” In 2016, the Traffic
Plan closed the westbound lanes of I-80 and diverted
westbound traffic across the median into the eastbound lanes,
resulting in head-to-head traffic in the two eastbound
lanes. IHC contracted with Sawyer to implement
the Traffic Plan and provide 24-hour surveillance of the
temporary traffic control devices. IHC and Sawyer could not
unilaterally modify or vary from the Traffic Plan.
31, 2016, at around 11:30 a.m., the Pals vehicle entered the
Project traveling west on I-80. The posted speed limit was 65
miles-per-hour. Other vehicles in front of the Pals vehicle
had slowed or come to a stop in the section of the Project
where traffic was operating in the head-to-head
configuration. Eyewitnesses described the traffic backup as
at least a half-mile long, Cavalzani Depo, ECF No. 202-3,
Page ID 2392-93, and as far as the eyewitness could see,
Albergo Depo., ECF No. 202-4, Page ID 2464. At approximately
mile marker 113 within the Project, Defendant Tony Weekly,
Jr., driving a semi-truck, struck the Pals vehicle from
behind. Crawford Investigation, ECF No. 232-9, Page ID 4512.
Jamison, Ezra, Kathryne, Violet, and Calvin Pals died as a
result of the collision.
had been a truck driver for 14 years and was employed by
Bohren Logistics, Inc. (“Bohren”). At the time of
the accident, Weekly was in full control of his semi-truck,
knew he was in a construction zone, and would have stopped
his truck safely had he perceived the slowed traffic in time.
Kathryn Pals and Gordon Engel filed a wrongful death
action against Weekly, Bohren, IHC, and Sawyer. Kathryn Pals
and Gordon Engel allege Defendants' negligence caused the
death of Jamison, Ezra, Kathryne, Violet, and Calvin Pals.
Defendants Sawyer and IHC moved for summary judgment, seeking
dismissal of Plaintiffs' wrongful death and negligence
claims against them (Counts VI-IX).
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884
(8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary
judgment is not disfavored and is designed for every
action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(en banc)). In reviewing a motion for summary judgment, the
Court will view “the record in the light most favorable
to the nonmoving party . . . drawing all reasonable
inferences in that party's favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing
Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.
2004)). Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, “Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than the mere
existence of some alleged factual dispute” between the
parties in order to overcome summary judgment. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir.
2016) (quoting Vacca v. Viacom Broad. of Mo., Inc.,
875 F.2d 1337, 1339 (8th Cir. 1989)).
other words, in deciding “a motion for summary
judgment, facts must be viewed in the light most favorable to
the nonmoving party only if there is a genuine dispute as to
those facts.” Wagner, 788 F.3d at 882 (quoting
Torgerson, 643 F.3d at 1042). Otherwise, where the
Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving
party, ” there is no “genuine issue of material
fact” for trial and summary judgment is appropriate.
Whitney, 826 F.3d at 1076 (quoting Grage v. N.
States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir.
recover in a negligence action, ‘a plaintiff must show
a legal duty owed by the defendant to the plaintiff, a breach
of such duty, causation, and damages.'” Pohl v.
Cty. of Furnas, 682 F.3d 745, 751 (8th Cir. 2012)
(quoting A.W. v. Lancaster Cty. Sch. Dist. 0001, 784
N.W.2d 907, 913 (Neb. 2010)).
Sawyer argue they did not owe a duty to Plaintiffs and that
Plaintiffs cannot establish that Sawyer's and IHC's
actions caused Plaintiffs' damages. IHC and Sawyer also
argue they are entitled to summary judgment because they
followed the Department's Traffic Plan, they had no duty
to judge the sufficiency of the Traffic Plan, and they had no
duty to anticipate Weekly's negligence. Finally, they
argue that acquired immunity should bar the claims against
do not contend that the 2015 Traffic Plan was defective nor
that IHC and Sawyer had a unilateral duty to judge, revise,
or modify the Traffic Plan. Instead, Plaintiffs argue that
IHC and Sawyer had a duty to monitor the Traffic
Plan continually and to report frequent traffic
backups to the Department, which likely would have resulted
in changes to the Traffic Plan, such as the addition of
“prepare to stop” signage.
without deciding, that IHC and Sawyer owed a duty to
Plaintiffs, Plaintiffs' claims against IHC and ...