Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Jackson County, Missouri The
Honorable S. Margene Burnett, Judge.
Before: Zel M. Fischer, Special Judge, Presiding, Cynthia L.
Martin, Judge and Gary D. Witt, Judge.
D. Witt, Judge.
appeals from the Jackson County Circuit Court's grant of
summary judgment in favor of Union Pacific Railroad and
Timothy Espy (collectively "Union Pacific") on
claims of negligence and negligence per se. K.L.S.
argues that the trial court erred in granting summary
judgment in favor of Union Pacific because it was error to
rule as a matter of law that Union Pacific did not have a
duty to K.L.S. K.L.S. further argues that the trial court
erred in failing to strike two affidavits submitted by Union
Pacific on its Motion for Summary Judgment because they did
not comply with Rule 74.04 as they were false or misleading.
and Procedural History
Tauvar ("Tauvar") owns three properties located in
close proximity to one another within Kansas City at the
following addresses: 413 N. Park, 410 N. Olive Street, and
2325 Guinotte Ave. The properties were primarily used for
storage of items, much of which was not located within a
building or structure and included several inoperable school
buses. The southern two properties of land consist of 413 N.
Park and 410 Olive Street and adjoin each other. Union
Pacific has an easement for its railroad right-of-way running
along the south side of these two properties. There is a
public alleyway along the north side of these two properties,
controlled by the City of Kansas City, Missouri
("City"), which intersects Park Street on the west
and Olive Street on the east. The third property, 2325
Guinotte, is located north of the other two properties,
separated from them by the public alleyway. There are no
railroad right-of-ways or tracks that run adjacent to the
property located at 2325 Guinotte, nor does that property
abut any property owned or controlled by Union Pacific.
properties were in violation of certain fencing requirements
of Chapter 80 of the City's Code ("Zoning
Code") as well as other code violations. The Zoning Code
required that since the property was used for storage, a
cyclone-type fence at least eight feet in height is required
to enclose the property to keep it from public access and
view. A dispute arose between Tauvar and Union Pacific
regarding the exact property line between Union Pacific's
easement and Tauvar's two properties abutting the
easement. Tauvar alleged that he had installed fencing to
comply with the Zoning Code but Union Pacific had repeatedly
removed portions of the fence in the area that abutted the
City notified Tauvar multiple times over many years, starting
in 1995, of the requirement to fence the property because it
was being used for the exterior storage of materials and
alleging that he was in violation of the Zoning Code. Tauvar
notified the City of the boundary line dispute between he and
Union Pacific and his allegation that Union Pacific had been
removing his fence. K.L.S. was an employee of the City who
worked in the zoning compliance area and was the main person
with the City attempting to obtain compliance for these
properties were in a high crime area. In 2009 an inspection
found that at least one homeless person was living in one of
the busses stored on the property and a methamphetamine lab
was being operated out of one of the unused buildings on the
property. From 2008 through the incident in 2012 there were
continuing correspondence and conversations between K.L.S. on
behalf of the City, Tauvar, and Union Pacific regarding the
zoning violations, the boundary line dispute, and the
required fencing of the properties.
e-mail correspondence between Union Pacific and Tauvar
regarding the ongoing property dispute, Tauvar asked Union
Pacific to "keep an eye out" for an identified
male who used to help Tauvar but had recently been seen by
neighbors parking on the railroad tracks and going into the
east side of Tauvar's building. Tauvar believed he was
stealing or otherwise committing criminal offenses on the
property. The message was forwarded by Espy, a Union Pacific
Police Officer, to others who worked for Union Pacific,
asking if Union Pacific could help Tauvar by increasing
patrols near his property.
had visited Tauvar's property approximately 30 times to
check on zoning compliance. On January 26, 2012, around 11:30
a.m., K.L.S. drove to the area of Tauvar's properties to
photograph zoning violations on the property. K.L.S. parked
and exited her vehicle on Olive Street. K.L.S. was in the
public alleyway, preparing to take a photograph, when she was
hit with a blunt object in the back of the head by an unknown
assailant and knocked unconscious. The attacker then
proceeded to beat K.L.S., sexually assault her at knifepoint,
and steal items of personal property belonging to her and to
the City. K.L.S. was then again knocked unconscious. She
regained consciousness around 1:30 p.m. and called the
police. The assailant was never identified or prosecuted.
January 2015, K.L.S. filed suit alleging negligence and
negligence per se against Tauvar and negligence
and negligence per se against Union Pacific and
certain of its employees and "liability for unlawful
acts" against Union Pacific.
Pacific filed a Motion for Summary Judgment on March 21,
2017. K.L.S. filed a Response and Suggestions in Opposition
on May 22, 2017. On July 13, 2017, K.L.S filed a Motion to
Strike Defendants Summary Judgment Affidavits, which included
affidavits from Roger Poteet ("Poteet") and Steven
Whitaker ("Whitaker"), which were among the
exhibits submitted in support of Union Pacific's Motion
for Summary Judgment. K.L.S. argued that Poteet's
affidavit was untrue, or at best incompetent, because he gave
sworn statements in the affidavit regarding the location of
Union Pacific's northern ballast line between 1992 and
2011, but testified at a later deposition that the location
was merely his assumption and he does not know the dimensions
of the right-of-way. K.L.S. argued that Whitaker's
affidavit was false and misleading because in the affidavit
Whitaker testified that his opinion was based upon a
Commissioners' Report from a case where land was
condemned for a railroad right-of-way, but testified at a
later deposition he actually relied on a survey conducted by
the railroad in 1911 and he could not testify that any land
was actually condemned.
24, 2017, Union Pacific filed a Suggestion in Opposition to
Plaintiffs' Motion to Strike Summary Judgment Affidavits.
In the Suggestions, Union Pacific withdrew and did not, for
purposes of its summary judgment pleadings, "rely on Mr.
Poteet's Affidavit testimony concerning [Union
Pacific's] 'Highline', or 'Lowline'
railroad tracks, the ballast under those tracks, those
tracks' subgrade and land underneath the ballast from
1992 when Mr. Poteet entered the [Union Pacific] Claims
Department to his retirement in September 2011." In the
Suggestions, Union Pacific also withdrew "any argument
from its summary judgment pleadings or references in Mr.
Whitakers' Affidavit that any land was actually condemned
in the action underlying the Commissioners' Report."
August 18, 2017, Union Pacific filed a Motion to Limit the
Scope of the Courts Review of its Two Pending Motions for
Summary Judgment. In the Motion, Union Pacific
"specifically withdraws from its Response/Reply to
Plaintiffs' Additional Statement of Materials [sic] Facts
reliance upon the Affidavit of Roger Poteet or the Affidavit
of Steven Whittaker." On August 21, 2017, K.L.S. filed
Motions for Sanctions due to the false or misleading
affidavits by Poteet and Whittaker. On February 2, 2018, a
hearing was held on Union Pacific's Motion for Summary
Judgment. On July 6, 2018, the court granted the motion in
favor of Union Pacific and its employees. This timely appeal
The trial court makes its decision to grant summary judgment
based on the pleadings, record submitted, and the law;
therefore, this Court need not defer to the trial court's
determination and reviews the grant of summary judgment
de novo. ITT Commercial Fin. Corp. v.
Mid-America Marine Supply Corp., 854 S.W.2d 371, 376
(Mo. banc 1993); Rule 74.04. In reviewing the decision to
grant summary judgment, this Court applies the same criteria
as the trial court in determining whether summary judgment
was proper. Id. Summary judgment is only proper if
the moving party establishes that there is no genuine issue
as to the material facts and that the movant is entitled to
judgment as a matter of law. Id. The facts contained
in affidavits or otherwise in support of a party's motion
are accepted "as true unless contradicted by the
non-moving party's response to the summary ...