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Pals v. Weekly

United States District Court, D. Nebraska

January 14, 2020

KATHRYNN PALS, et al.; Plaintiffs,
v.
TONY WEEKLY JR., BOHREN LOGISTICS, INC., INTERSTATE HIGHWAY CONSTRUCTION, INC., and D.P. SAWYER, INC., Defendants. JUAN PAUBLO VELEZ, MARTINIANA VELEZ, and PAOLA VELEZ, Plaintiffs,
v.
BOHREN LOGISTICS, INC., TONY WEEKLY JR., INTERSTATE HIGHWAY CONSTRUCTION, INC., and D.P. SAWYER INC, Defendants.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motion for Summary Judgment filed by Defendant D.P. Sawyer, Inc. (“Sawyer”), ECF No. 201;[1] 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.

         BACKGROUND

         In 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.[2] 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.

         On July 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.

         Weekly 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.

         Plaintiffs Kathryn Pals[3] and Gordon Engel[4] 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'[5] wrongful death and negligence claims against them (Counts VI-IX).

         STANDARD OF REVIEW

         “Summary 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).

         In 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)).

         In 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. 2015)).

         DISCUSSION[6]

         “To 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)).

         IHC and 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 them.

         Plaintiffs 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.

         Assuming, without deciding, that IHC and Sawyer owed a duty to Plaintiffs, Plaintiffs' claims against IHC and ...


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