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K.L.S. v. Union Pacific Railroad

Court of Appeals of Missouri, Western District, Special Division

February 19, 2019

K.L.S., Appellant,

          Appeal 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.


          Gary D. Witt, Judge.

         K.L.S. 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. We affirm.

         Factual and Procedural History[1]

         Gary 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.

         Tauvar's 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 railroad easement.

         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.

         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.

         During 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.

         K.L.S. 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.

         In January 2015, K.L.S. filed suit alleging negligence and negligence per se against Tauvar[2] and negligence and negligence per se against Union Pacific and certain of its employees and "liability for unlawful acts"[3] against Union Pacific.

         Union 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.

         On July 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."

         On 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 followed.

         Standard of Review

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 ...

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