Opinion
CIVIL ACTION No. 02-2116-CM
March 17, 2004
MEMORANDUM AND ORDER
The instant action arises out of an incident occurring on March 15, 2000, at which time an AMTRAK train derailed, and some of its cars overturned. On February 10, 2004, the court granted in part and denied in part the Motion of Defendant Burlington Northern Santa Fe Railway Company for Summary Judgment. This matter is before the court on defendant's Motion for Reconsideration (Doc. 32).
I. Standard
Defendant filed its Motion for Reconsideration within ten days of the court's order on summary judgment. Accordingly, defendant's motion must be construed as a motion to alter or amend the judgment under Rule 59(e). See Venable v. Haislip, 721 F.2d 297, 299 (10th Cir. 1983); Fed.R.Civ.P. 59(e). Motions for reconsideration under Rule 59(e) must either clearly establish a manifest error of law or must present newly discovered evidence. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
II. Discussion
In its ruling on defendant's motion for summary judgment, the court pointed out that both parties had cited to Ralph Pagel's deposition testimony, but neither party attached to their briefs the relevant portions of that deposition. Defendant states that the failure to attach these transcripts to the original motion was a clerical oversight. Defendant now requests the court to reconsider its ruling and has attached both Ralph and Karen Pagel's deposition testimony. The court has reviewed the entirety of both depositions and concludes, as it did before, that summary judgment on plaintiffs' trespass, nuisance, negligence, breach of contract, and fraudulent misrepresentation claims is not appropriate.
With regard to plaintiffs' trespass and nuisance claims, the court cannot determine from Ralph Pagel's deposition testimony the extent of his consent to the cleanup activity. There are portions of Ralph Pagel's testimony which tends to indicate that he consented to the cleanup (Ralph Pagel Deposition, pg. 60), yet there are other portions of his testimony suggesting that he either was not asked or did not consent to certain activities that took place during the cleanup ( Id., pgs. 55, 62, 65, and 70). There still exists a material issue of fact regarding the scope of Ralph Pagel's consent.
Additionally, neither deposition resolves the factual dispute regarding whether any employee of defendant either was present or placed derailment debris or trash on plaintiffs' land. It appears from both depositions that defendant's employees were the primary individuals with whom plaintiffs had contact about the cleanup activities. As such, the court cannot determine as a matter of law whether defendant's personnel or equipment in fact entered plaintiffs' property and, if so, the extent to which defendant may or may not have participated in the cleanup efforts.
Likewise, summary judgment is precluded on plaintiffs' negligence claim. Neither Ralph nor Karen Pagel gave testimony suggesting that the defendant's employees did not participate in the cleanup. While defendant is not liable for the acts of its independent contractor, Hulcher Services, Inc., defendant may be liable to the extent it participated in the cleanup and undertook to carry out certain duties in that capacity.
Finally, the court turns to plaintiffs' breach of contract and fraudulent misrepresentation claims. Ralph Pagel testified that one of defendant's employees, Dave Bealy, stated that "they would clean up my farm as good or better than it was before, and he would bring in a landscaper and take care of all that." ( Id., pg. 109). The court ruled summary judgment inappropriate upon an assumption that such a representation was indeed made and, as such, the deposition testimony recently provided does not affect the court's ruling reasoning in its prior opinion.
IT IS THEREFORE ORDERED that defendant's Motion for Reconsideration (Doc. 32) is denied.