254 memoinsupportmotionforsummaryjudgement kcsr kmart by Milton Sandy

Case: 1:11-cv-00103-GHD-DAS Doc #: 254 Filed: 10/07/13 1 of 33 PageID #: 2521

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION VS.

PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-DAS

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS LLC; THE KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION

DEFENDANTS

______________________________________________________________________________ MEMORANDUM OF AUTHORITIES IN SUPPORT OF DEFENDANT THE KANSAS CITY SOUTHERN RAILWAY COMPANY’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ INTRODUCTION Plaintiff Kmart Corporation (“Plaintiff” or “Kmart”) alleges that negligent acts and/or omissions by Defendants proximately caused the flooding damages Plaintiff sustained at its Kmart Store #4883 in Corinth, Mississippi, on May 2, 2010, during an extraordinary flood that covered large parts of Corinth. As to Defendant, The Kansas City Southern Railway Company (“KCSR”), Kmart alleges that KCSR negligently allowed excessive debris to collect beneath its railroad bridge over Elam Creek, and that the resulting blockage caused the water level at the Kmart store, located some 2100 feet upstream, to be higher than it would have been otherwise. Complaint at 8 (Exhibit A). KCSR is entitled to summary judgment because Plaintiff has failed to show any material negligent act or omission which constitutes a breach of any duty to Plaintiff or, even assuming arguendo a breach, that such breach contributed to or proximately caused damages to Plaintiff. 1

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First, Plaintiff offers no evidence that KCSR was negligent in inspecting or maintaining its Elam Creek bridge at any time prior to the May 2, 2010 flood event. The only evidence in the record is that KCSR met, and exceeded, its own policies, promulgated pursuant to federal guidelines, for inspecting its bridges for debris, and acted promptly to maintain those bridges when KCSR became aware of any debris. Plaintiff has no evidence such was not reasonable. Second, to support its negligence claim against KCSR, Plaintiff relies solely on the testimony of its engineering expert John R. Krewson to establish, at the time of the May 2, 2010 flood, the alleged existence of debris beneath the railroad bridge, the amount of such debris, and whether such debris affected the flood level at the Kmart store. As set forth fully in KCSR’s Motion to Exclude Testimony of John R. Krewson [Doc 240], and Memorandum in Support [Doc 241], which are incorporated herein by reference, Krewson’s testimony as to KCSR is inadmissible under FRE 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and its progeny. And even if Krewson’s testimony as to KCSR is admitted and considered, it only shows that Krewson’s engineering models, in his own words, “tell one nothing” about whether the alleged acts or omissions of KCSR contributed to flooding at Kmart. Finally, the extraordinary rainfall in Corinth at the time of the flood made the flood an unforeseeable Act of God (which Krewson admits), so Plaintiff cannot show proximate causation. In short, Plaintiff is without any admissible evidence establishing that KCSR breached a duty to Plaintiff or, assuming arguendo a breach, that such breach proximately caused Plaintiff’s damages in this case. As such, KCSR is entitled to summary judgment because Plaintiff cannot prove its case. KCSR, however, has submitted admissible evidence that KCSR did, in the months prior to the May 2, 2010 flood, reasonably inspect the area beneath its Elam Creek bridge for 2

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excessive debris, and further that, assuming arguendo the amount of debris asserted (actually, assumed) by Plaintiff’s expert was present at the time of the May 2, 2010 flood event, such would have had no impact on flood levels at Kmart Store #4883. For these reasons also, KCSR is entitled to summary judgment. FACTUAL AND PROCEDURAL BACKGROUND The May 2, 2010 Flood in Corinth, Mississippi KCSR operates a railroad line, which runs generally from northwest to southwest, in Corinth, Mississippi. KCSR’s track crosses Elam Creek via a bridge at KCSR mile marker 328.13. KCSR Dep at 18 (Exhibit B). The KCSR bridge is approximately 2100 feet downstream of Plaintiff’s Kmart Store #4883. Affidavit of Blake Mendrop at ¶4 (Exhibit C). A bridge at this location has been there since at least the early 1900’s. See Huwe Dep at 27-28 (Exhibit D). The current bridge over Elam Creek was constructed in 1966. KCSR Dep at 75 (Ex. B). Based on local rainfall collection data in the Corinth area, radar data, and National Oceanic and Atmospheric Administration (NOAA) data, starting on May 1, 2010 and continuing to approximately mid-afternoon on May 2, approximately nine (9) inches of rain fell in Corinth and the surrounding area. Mendrop Aff. at ¶ 3 (Ex. C). As a result, Elam Creek flooded, along with several other creeks in the Corinth area. Id. Vast areas of Corinth flooded, including areas both downstream and upstream of the KCSR bridge. Huwe Dep at 147-150 (Ex. D). Official storm data from NOAA establishes the widespread nature of the flash flooding that occurred in Corinth and the surrounding area on May 2, 2010: Heavy rain produced widespread flash flooding across Alcorn County. Numerous roads were flooded or washed out as a result. One fatality occurred when the vehicle lost control and went into a ditch off of 3

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Shiloh Road near Shiloh Ridge Golf Course. The vehicle became fully submerged and the driver drowned as a result. Numerous additional water rescues were made as a result of the flooding. Portions of Highway 72 in Downtown Corinth were flooded. Flood waters went into at least 40 businesses including K-Mart and Kroger. At least 8 homes were destroyed from flood waters. In addition, seventy homes sustained major damage with two receiving minor damage. An apartment complex containing 40 units also sustained major flood damage. NOAA Storm Data and Unusual Weather Phenomena at 274. (Exhibit E). 1

Kmart, like

numerous other businesses, residences, and local government properties which sustained flood damages, was impacted with approximately twenty-two (22) inches of flood water. Kmart Dep at 109 (Exhibit G). The May 2, 2010 Flood Was (at Least) a 100-Year Flood As explained by hydrologist Blake Mendrop, the “100-year flood,” also known as the “base flood,” is the benchmark used by the Federal Emergency Management Agency (FEMA) to establish base flood elevations and provides the national standard used by the National Flood Insurance Program (NFIP) and all federal agencies for the purposes of requiring the purchase of flood insurance and regulating new development in special flood hazard areas. Mendrop Affidavit at ¶ 5 (Ex. C).

The base flood elevation is the computed elevation to which

floodwater is anticipated to rise during the base flood. Id. A 100-year flood is defined as having a one percent chance of being reached or exceeded in any single year. Id. at ¶ 6. The 100-year rainfall event for the Corinth area is approximately 7.6 inches within a 24-hour period. Id. Based on the best available data for this weather event, the rainfall event, with more than 9 1

The document, which bears a seal of the U.S. Department of Commerce and a signature of Thomas R. Karl, Director, National Climatic Data Center, is self-authenticating pursuant to Fed. R. Evid. 902(1).

A picture is worth a thousand words. Attached as Exhibit F are photographs, along with a legend, authenticated by David Huwe, Director of Community Development and Planning for the City of Corinth, see Huwe Dep. at 149155 (Ex. D), that illustrate the vast extent of the May 2, 2010 flood in the Corinth area.

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inches falling within a 24-hour period, exceeded the 100-year flood mark, and in all probability, significantly so. Id. at ¶¶ 3, 6. Given that buildings in floodplains established by FEMA are built with reference to the base flood elevations determined by the 100-year flood benchmark, structures located within the floodplain, as Kmart Store #4883 is, will typically experience flooding in the context of such an extraordinary event that exceeds the 100-year benchmark. Id. at ¶ 7. Plaintiff’s expert John R. Krewson agrees that the May 2, 2010 flood exceeded the 100year flood mark. Quoting Krewson: Q.

Was [the May 2, 2010 flood event] a 100-year rainfall event?

I believe it was, yes.

That’s your opinion that it was?

At least that.

Krewson Dep at 84 (Ex. H) (emphasis added).

The May 2, 2010 Flood Was Unforeseeable The (at least) 100-year-flood in Corinth, Mississippi on May 2, 2010 was an unforeseeable Act of God. Plaintiff’s own documents (which were not produced until the last day of discovery) establish that the May 2, 2010 flash flood event in Corinth, Mississippi, was not reasonably foreseeable. In an email dated May 2, 2010 (2:30 pm) and entitled “Severe Storms – Flash Flood Warnings,” and directed to his team, Anthony Armato, Crisis & Emergency Manager for Sears Holdings 3, noted that “[a] severe thunder storm currently located over the central region is producing heavy rain accumulation which has initiated flash flood 3

Sears Holdings is the parent corporation of Kmart Corporation. Kmart Dep at 7 (Ex. G).

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warnings in Mississippi through Ohio.” May 2, 2010 Armato Email at 10 (Exhibit I). 4 Mr. Armato further indicated that “[r]eports from the [Corinth Kmart] store team indicate that 2 feet of water is throughout the store; water entered the store within 20 minutes – no indication of flood potential prior to impact.” Id. (emphasis added). In a post-flood report dated May 3, 2010, Mr. Armato further indicated that as a “Flood Risk Store,” the Corinth Kmart store is to “initiate the flood preparation protocol in the event a Flash Flood warning is issued in the area, or potential flood conditions are present.” May 3, 2010 Armato Email at 2 (Exhibit J). As of 9:30 am, when “ . . . Flash Flood warnings were not issued in the area[,] . . . the store team did not perceive the rain accumulation as a threat.” Id. Then at approximately 10:00 am, “the two rear overhead receiving doors were breached by flash flood waters” and “within 30 minutes up to 4 feet of water was throughout the interior of the store.” Id. The report goes on to stay that “[d]ue to the lack of warning/limited time frame on Sunday morning the store was unable to execute the final flood prep protocol. (Sandbag, elevate merchandise, etc).” Id. Mr. Armator further indicated that “[o]ther retailers within 1 mile were also impacted by the flood waters and have remained closed; Kroger, JCP, Belks, and Maurices.” Id. Krewson also testified that the May 2, 2010 flood was an Act of God that was not reasonably foreseeable. Again, quoting Krewson: Q.

And you state that this May 2 – May 1st/May 2nd storm and flood was a 100-year flood event.

The May 2, 2010 and May 3, 2010 emails from Mr. Armato were produced by Plaintiff itself, and thus are presumed to be authenticated for summary judgment purposes. See McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 562 (5th Cir. 1998) (document produced by plaintiff in discovery was properly authenticated for purposes of defendant’s summary judgment motion).

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I think I said that I thought the flood event probably exceeded the 100-year flood event.

... Q.

Would you consider that event to be an act of God?

Yes.

And how do you define an act of God?

. . . I would say the 100-year storm or the 1 percent chance storm is very infrequent. And when you exceed that, obviously, it’s even less frequent. So, it’s a storm that occurs in which flooding is outside of control and causes excessive damage and occurs very rarely.

...

Krewson Dep at 86-87 (Ex. H) (emphasis added). Specifically, according to Krewson, such an Act of God that exceeds the 100-year flood mark is “not reasonably foreseeable.” Id. at 221. Like Plaintiff Kmart, KCSR had no knowledge of any flash flood potential in the Corinth, Mississippi, area prior to the flood event and learned of the flooding only after it occurred on May 2, 2010. KCSR Response to Plaintiff’s Interrogatories at 8 (Exhibit K). KCSR’s Proper Inspection and Maintenance of its Elam Creek Bridge At the time of the May 2, 2010 flood, the Federal Railroad Administration (FRA) had in effect an advisory statement which “d[id] not have the force of regulations” but which suggested that railroads develop and implement programs to ensure the safety of railroad bridges. See 49 C.F.R. § 213 (Docket No. FRA-2008-0158) (Policy on the Safety of Railroad Bridges). The FRA suggested that railroads establish the frequency of bridge inspections, but mandated no particular inspection frequency. See id. Subsequently, on July 15, 2010, the FRA issued, in 49 C.F.R Parts 213 and 237, a Final Rule on “Bridge Safety Standards,” effective September 13, 2010 (after the flood event that is the subject of this litigation), stating, “Each bridge 7

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management program shall include a provision for scheduling an inspection for each bridge in railroad service at least once in each calendar year with not more than 540 days between any successive inspections.” 49 C.F.R. § 237.101 (emphasis added). At the time of the May 2010 flood event, KCSR’s internal policies required that KCSR bridge inspectors inspect the bridges in their assigned territories once per calendar year, at a minimum, and if any excessive debris was noted during such inspections, the bridge inspector was either to remove such debris or arrange for such debris to be removed. KCS Bridge Inspection Procedures at 1 (Exhibit L); KCSR Maintenance of Way and Signal Department Rules at 2 (Exhibit M). See also KCSR’s Response to Plaintiff’s Interrogatories at 3-4 (Exhibit K).

Further, KCSR’s internal “On-Track Inspection Procedures” provided that during the

course of routine track inspections, (which occur at least once per week on the bridge) (see Affidavit of Michael Schmidt at ¶ 3, Exhibit N) the track inspector “is responsible for observation of bridges for accumulation of driftwood and sedimentation and or other unusual conditions.” KCSR MW-102 Rules at 2. (Exhibit O). Moreover, KCSR’s policy required that bridge crews, maintenance of way (i.e. track maintenance), or any other employees working in the vicinity of a particular bridge to be on the lookout for problems such as excessive debris under a bridge, and if excessive debris under a bridge was observed, the employee was to either remove the debris or report the debris so it could be removed. KCSR Dep at 180-181 (Ex. B).; KCSR’s Response to Plaintiff’s Interrogatories at 3 (Exhibit K). Furthermore, in practice, KCSR actually exceeded its own policy of performing an annual inspection of its bridges by routinely inspecting its bridges two (2) times per year, approximately every six months. Schmidt Aff. at ¶ 4 (Ex. N). In the eighteen months preceding the May 2, 2010 flood, KCSR bridge inspectors conducted inspections of the Elam Creek bridge 8

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approximately every six (6) months – on January 21, 2009, June 23, 2009, and January 6, 2010. Bridge Inspection Reports (Exhibit P). No problems with excessive debris were noted on these dates. Id. See also KCSR Dep at 103, 181 (Ex. B). Thus, by routinely inspecting its bridges twice per year, KCSR not only met, but exceeded, its own standard in effect at the time of the flood, as well as the current standard promulgated pursuant to 49 C.F.R. § 237.101, which now requires that railroads inspect bridges once per calendar year, not to exceed 540 days between inspections. Beyond this, KCSR was not aware of any excessive debris accumulation beneath its bridge over Elam Creek in the weeks or days prior to the May 2, 2010 flood event. KCSR Response to Plaintiff’s Interrogatories at 1 (Ex. K); KCSR Dep at 33-64 (Ex. B). KCSR had received no complaints of debris beneath its Elam Creek bridge at any time prior to the May 2, 2010 flood event that would have put it on notice of any excessive debris at that location. Ex. K at 5; Ex. B at 33-64. Plaintiff’s Negligence Claim Against KCSR Plaintiff’s Complaint names several defendants 5, including KCSR, and seeks in excess of $3.3 million in alleged damages relating to the May 2, 2010 flood. 6 Complaint (Ex. A). Against KCSR, Plaintiff’s sole allegation of negligence is that KCSR failed to reasonably maintain the area beneath its downstream Elam Creek bridge free of excessive debris and that alleged 5

In addition to KCSR, Plaintiff sued three other private parties as well as the City of Corinth and the Federal Emergency Management Agency (FEMA). The City of Corinth and FEMA have now been dismissed by this Court. [Docs 50, 209]. The primary allegations against remaining Defendants, other than KCSR, is that they each participated in or acquiesced to a grocery store being built/located in the floodway of Elam Creek, and each participated in or acquiesced to a 2005 revision/amendment to the floodway that was approved by FEMA.

In its Complaint, Plaintiff initially sought damages for damages allegedly sustained by an April 2011 flood event. Subsequently, via letter to counsel, Plaintiff has stipulated that it will not pursue damages for the April 2011 event. See Ex. Q.

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resulting debris prevented water flow and caused water backup, thereby contributing to the flood damages incurred by Plaintiff. Id. at 8. Kmart’s Sole Reliance on its Expert John R. Krewson to Establish KCSR’s Negligence To prove its case against KCSR, Kmart relies solely upon its retained expert, John R. Krewson. 7 See Kmart’s Responses to KCSR’s Interrogatories at 4-5, 18 (Exhibit R); Kmart 30(b)(6) Dep at 112-113 (Ex. G). Krewson opines, as to KCSR, that (1) there was excessive debris under the bridge at the time of the flood and this assumed excessive debris caused a 25% blockage under the bridge; and that (2) this assumed blockage contributed to the flood level at Kmart Store #4883. See Krewson Dep at 154-160 (Ex. H); Krewson Expert Report (Exhibit S). Krewson, as a basis for these opinions, relies solely on an informal conversation with City of Corinth employee David Huwe and his own post-flood investigation and photographs taken after the flood. See id. KCSR has filed a Daubert motion [Doc 240] and memorandum in support [Doc 241] to exclude the opinions of Krewson on the basis that they are both unreliable and irrelevant. For the reasons set forth in KCSR’s Daubert motion, and given that Plaintiff relies solely on 7

After Plaintiff’s deposition, Plaintiff moved to file a supplemental report by Krewson that changed his opinions and the basis for his opinions [Doc 176]. The Magistrate Judge denied Plaintiff’s motion in its entirety, and specifically as to KCSR, the Magistrate Judge’s order disallowed Krewson to rely upon an additional post-flood photograph as a basis for opining there was excessive debris under the KCSR bridge at the time of the flood. The Magistrate Judge’s Order with regard to this photograph found the Plaintiff had possession of this photograph for months prior to Plaintiff’s expert designation deadline so there was no basis for allowing supplementation as to this photograph. [Doc 213]. This was the sole change in the report that related to Krewson’s opinions as to KCSR. When Plaintiff objected to the Magistrate Judge’s ruling, Plaintiff did not raise any objection to the Magistrate Judge’s ruling as to the photograph pertaining to KCSR [Doc. 227], and in the District Judge’s ruling on Plaintiff’s objections to the Magistrate Judge’s ruling, the District Judge said that “the Court will consider an amendment of mathematical errors only.” [Doc 243]. The District Judge’s ruling in no way affects the Magistrate Judge’s ruling as to KCSR since the photograph does not constitute a “mathematical error,” and the mathematical errors that Plaintiff alleges go to Krewson’s HEC-RAS models which do not address KCSR’s alleged liability in this case since Krewson did not model the KCSR bridge or debris under the bridge in his original or supplemental report. Thus, as to KCSR, Krewson’s original report and his deposition are still the only evidence from Krewson available to Plaintiff. For a more detailed explanation, see KCSR’s Supplement to its Motion to Exclude Testimony of Krewson [Doc 251].

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Krewson, Plaintiff has no evidence of a breach of duty or causation, so summary judgment should be entered in favor of KCSR. However, even if Krewson is not excluded as an expert under Daubert, his testimony as to KCSR does not create a triable issue of fact, as shown below. Krewson’s Inadmissible and Erroneous Assumption of Debris Beneath the KCSR Bridge At Krewson’s deposition, he testified that his post-flood conversation with Mr. David Huwe of the City of Corinth was just an informal conversation, and that any comments made by Mr. Huwe were not tied to the May 2, 2010 flood. Quoting Mr. Krewson’s deposition: Q.

But you have no idea what time frame Mr. Huwe was talking about [i.e. during the conversation with Huwe by Krewson in Huwe’s office after the flood]?

That’s correct.

You cannot say that there was debris under the KCS bridge on May 2nd, 2010, can you?

I cannot.

But yet you assumed that there was debris under the bridge on May 2nd, 2010, in forming you opinions with regard to KCS, didn’t you?

Based on my conversation with Mr. Huwe, yes.

And Mr. Huwe did not tell you there was 25 percent blockage, did he?

No.

He did not tell you that there was blockage on May 2nd, or May 1st, 2010, did he?

No.

So that 25 percent assumption [in his report] on your part is just speculation, isn’t it?

That was the condition it was in when I arrived at the site [i.e. days after the flood].

But that is no indication of what the condition of it was on the day of the flood; is that correct? 11

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I have no way to know.

Krewson Dep at 159-160 (Ex. H) (emphasis added). Further, Mr. Huwe’s deposition establishes that he himself has no personal knowledge of the condition of the underpass beneath KCSR’s bridge at any particular time, on or before May 2, 2010. Huwe Dep at 158 (Ex. D). Mr. Huwe’s only knowledge of any problems with alleged debris at the KCSR bridge was an informal conversation with another City employee (i.e. inadmissible hearsay) wherein the City employee referred to some prior upkeep problems at the bridge, and without any specifics as to the extent of the problems or the timeframe of such problems. Id. Krewson himself agrees with Mr. Huwe’s testimony in that he admits that the information provided to him by Mr. Huwe could have referred to problems occurring years before the May 2, 2010 flood. Quoting Krewson: Q.

And I think you testified earlier that – I’ll just refer to your reports. On page 5 of your report . . . you said, “Mr. David Huwe, Director of Community Development and Planning for the City of Corinth, stated during an interview in his office that the railroad had a poor record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event.” You have no idea what time period he’s talking about, do you?

No.

It could have been two years prior to the flood, right?

Well, I do have – Since I wrote this, I got the data on the Reaves report from 2001 – the floods during 2001 in which he comments on the debris under the bridge.

But you have no idea what time frame Mr. Huwe was talking about?

That’s correct.

Krewson Dep at 153 (Ex. H) (emphasis added).

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Moreover, Mr. Huwe never told Krewson that he himself had knowledge of debris under the KCSR bridge around the time of the May 2, 2010 flood event or at any other time, much less did he tell Krewson that there was a 25% blockage at that location at the time of the flood event. Huwe Dep at 158-159 (Ex. D). Thus, Krewson’s assumption of any excessive debris, much less 25% blockage, under the KCSR bridge at the time of, or just before, the May 2, 2010 flood, based on his informal conversation with Mr. Huwe, is without reliable support and is just speculation. As Krewson himself says, he “has no way to know” the amount of debris present (if any) at the time of the May 2, 2010 flood. Krewson Dep at 160 (Ex. H). Further, Krewson, at his deposition, acknowledged that the “debris field” he himself allegedly saw after the flood and the post-flood photographs he reviewed told him nothing about the debris, if any, under KCSR’s bridge at the time of the flood. Again, quoting Krewson’s deposition: Q.

You say on page 6 of your report that, “Pictures taken during an initial investigation, Figure 19 through 21 show a debris field upstream of the ridge.” I guess you meant “bridge”; is that right?

Yes.

Pictures 19 through 21, who took those pictures?

I did.

These were taken on May 6th or May 7th? Do you remember which day of 2010?

I believe these were taken on May 7th.

So they show the debris that was present after the flood; is that correct?

That’s correct.

Krewson Dep at 154-155 (Ex. H) (emphasis added). Further, Krewson also admits that the debris that existed after the flood was not a reliable indication of any debris that may have been 13

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present at the time of or just before the flood, since the debris field he saw was just as likely caused by the flood itself bringing debris from upstream. Quoting Krewson: Q.

And what I’m getting to, at the KCS bridge, the flood itself could have caused debris to gather underneath the KCS bridge, right?

That’s true.

And the flood itself could deposit debris up and down the Elam Creek; is that correct?

It could.

And the debris field you saw could have been just as likely from the flood itself, as opposed to an indication of what the debris was prior to the May 2nd flood?

It could have been all or part. It’s impossible to tell.

Krewson Dep at 157-158 (Ex. H). 8 Krewson’s Failure to Model Debris Beneath the KCSR Bridge The hydraulic computer model Krewson used, and the basis for his opinion, is called a Hydrologic Engineering Center River Analysis System (HEC-RAS) model. As set forth in the Affidavit of Blake Mendrop, use of the HEC-RAS model is the accepted method within the engineering community for modeling water flow and hydraulic events. Mendrop Aff. at ¶ 9 (Ex. C). Plaintiff has asserted that there was debris under KCSR’s bridge. Even assuming arguendo debris under a bridge like KCSR’s, the existence of such debris in no way means the debris would contribute to a flood level 2100 feet upstream. Id. Without modeling the bridge in question, and the amount of debris alleged to exist under the bridge, there is no way a person can 8

Indeed, according to Blake Mendrop, industry-accepted methodology does not allow any inferences regarding a debris field which existed subsequent to a flood event to be drawn regarding the presence of a debris field at the time of a flood event since the debris field is just as likely the result of debris brought downstream by the flood as it is an indication of debris present at the time of the flood. Ex. C at ¶ 11.

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reliably opine as to the effect of the debris under a bridge on a particular structure upstream. Id. The HEC-RAS model has a routine for modeling the bridge and a routine for modeling debris, the latter called the “floating pier debris” routine. Id. at ¶ 12. The accepted methodology within the industry requires that both of these routines in the HEC-RAS program be used to effectively model any effect of debris blockage at a bridge for its impact on an upstream structure. 9 Id. The key to reliable calculations relative to the impact of debris on upstream flood elevations is proper data input into the computerized HEC-RAS model. Id. at ¶ 10.. Krewson’s deposition makes it clear he did not model either the KCSR bridge or the assumed debris under the bridge, so his models tell one nothing about the KCSR bridge or any debris that might have been under it: Q.

Well, let me ask you this: What did you put into your model that pertains to KCS? I mean, as far as bridges?

Or as far as blockage that you attribute to the railroad?

I didn’t have anything in the models as far as blockage.

So your models do not tell anything about backup at Kmart with regard to blockage that you attribute to KCS?

That’s correct.

So a person looking at your models learns nothing about the Kmart flood as it pertains to KCS?

Say that again. I’m sorry.

By looking at your models, you can tell nothing about the Kmart flood as it pertains to KCS?

I think that’s true as far as the models are concerned, yes.

Krewson does not dispute that the HEC-RAS can be used to model bridges and debris, and that the floating debris module provides the proper methodology to account for debris at a bridge. He simply chose not to use those aspects of the HEC-RAS. Krewson Dep at 149-150 (Ex. H).

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Krewson Dep at 287-88 (Ex. H) (emphasis added). As set forth fully in KCSR’s companion Motion to Exclude Testimony of John R. Krewson and Memorandum in Support [Docs 240 and 241], Krewson’s testimony is inadmissible under FRE 702 and Daubert, but even if considered, does not satisfy Plaintiff’s burden to come forward with specific evidence showing negligence and causation against KCSR. See Firman v. Life Insurance Co. of North America, 684 F.3d 533, 538 (5th Cir. 2012) (plaintiff must set forth specific facts showing the existence of a genuine issue concerning every essential component of its case). Given that Krewson’s testimony forms the sole predicate for its negligence claim against KCSR, Plaintiff’s claim fails as a matter of law. KCSR’s Dispositive Expert Testimony As previously stated, KCSR has designated hydrologist Blake Mendrop as its expert in this case. Mr. Mendrop examined the HEC-RAS models run by Mr. Krewson and agrees with Mr. Krewson’s deposition testimony that Krewson’s models – because he did not model the KCSR bridge or any debris beneath the bridge – tell one nothing about the effect of the KCSR bridge or alleged debris beneath it on the flood level at Kmart Store #4883 on May 2, 2010. Mendrop Affidavit at ¶ 13 (Ex. C). Further, Mendrop did model the KCSR bridge and the alleged debris blockage beneath it. Id. at ¶ 14. Using the industry-accepted methodology of employing the HEC-RAS routines for modeling both the bridge and debris (the floating pier debris module), Mendrop modeled both the KCSR bridge and a twenty-five percent (25%) debris blockage beneath the bridge that Krewson assumed. Id. Mendrop’s model showed that even assuming arguendo the 25% debris blockage beneath the KCSR bridge that Krewson assumed (with no reliable basis for such an 16

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assumption), there would have been no rise in the water level 2100 feet upstream at the Kmart site. Id. Thus the undisputed testimony in this case is not only that Krewson’s models tell the trier of fact nothing about the impact of alleged debris beneath KCSR’s bridge on flooding at Kmart Store #4883, but also that, even assuming arguendo there was a blockage as alleged by Plaintiff, such blockage would have had no impact on the water levels at the Kmart store. SUMMARY JUDGMENT STANDARD Plaintiff bears the burden of proof as to each essential element of its negligence claim against KCSR. McKee v. Bowers Window & Door Co., Inc., 64 So.3d 926, 939-40 (Miss. 2011) (to survive summary judgment plaintiff must show by a preponderance of the evidence KCSR’s duty and breach thereof, proximate causation, and damages). To overcome Defendant KCSR’s Motion for Summary Judgment, Plaintiff must demonstrate that a fact is genuinely disputed by citing to “particular parts of material in the record” or by “showing that the materials cited [by Defendant KCSR] do not establish the absence [ ] of a genuine dispute.” Fed.R.Civ.Pro. 56(c). Plaintiff’s burden will not be satisfied by “some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Davis v. Chevron U.S.A., Inc. 14 F.3d 1082 (5th Cir. 1994)). Indeed, to survive summary judgment, Plaintiff “may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice . . . [Rather, it] must set forth specific facts showing the existence of a genuine issue concerning every essential component of its case.” Firman v. Life Insurance Co. of North America, 684 F.3d 533, 538 (5th Cir. 2012) (emphasis added). Otherwise, summary judgment shall be entered for Defendant KCSR. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“In 17

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our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no ‘genuine’ issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”). Furthermore, where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, summary judgment should be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The Fifth Circuit has cautioned that “conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy” the nonmovant’s burden in a motion for summary judgment. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002). Indeed, expert testimony predicated on such speculation, conjecture, or a guess is not sufficient to create an issue of material fact that will allow the nonmovant to survive summary judgment. Silver Dream, LLC v. 3MC, Inc., 2013 WL 115343 at * 2 (5th Cir. 2013). ARGUMENT I. KCSR IS ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF CANNOT SHOW THAT KCSR BREACHED ANY DUTY TO REASONABLY MAINTAIN THE AREA BENEATH ITS ELAM CREEK BRIDGE FREE OF EXCESSIVE DEBRIS. Plaintiff Kmart’s claim against KCSR is a negligence claim, namely that KCR failed to properly maintain its bridge, and as a result, excessive debris accumulated under the bridge which contributed to the flood level at Kmart, and Kmart’s resulting damages. Complaint at 8 (Ex. A). Under Mississippi law, a finding of duty and breach thereof are essential elements of a 18

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claim of negligence. See e.g. May v. V.F.W. Post No. 2539, 577 So. 2d 372, 375 (Miss. 1991). “Only when the first two items [duty and breach] are shown is it possible to proceed to a consideration of proximate cause . . . .” Id. (quoting Foster v. Bass, 575 So. 2d 967, 972 (Miss. 1990)). See also Patterson v. T. L. Wallace Const., Inc., 2013 WL 1831788 (Miss. May 2, 2013) (affirming, en banc, the circuit court’s grant of summary judgment where, even assuming arguendo a construction company’s duty to maintain a highway free of debris, a plaintiff motorcyclist failed to put forth any evidence that company negligently allowed debris to collect on the highway). 10 Plaintiff has no evidence that KCSR has committed any negligent act or omission in relation to its inspection and maintenance of the Elam Creek bridge. To the contrary, the undisputed evidence demonstrates that KCSR, by inspecting its bridges (including the Elam Creek bridge) every six months, complied with – and exceeded – all of its own policies governing railroad bridge inspections in effect at the time of the May 2, 2010 flood event and that KCSR’s own policies actually exceed the current FRA requirements, implemented subsequent to the flood event. See pp. 7-9, supra.

Further, it is undisputed that KCSR cleaned

up debris under a bridge anytime it was observed, regardless of whether there was a formal inspection or not. Id. Plaintiff has no evidence to refute this testimony, or to show that KCSR’s inspection/maintenance of the bridge with regard to debris was not reasonable and accurate. Plaintiff thus cannot carry its burden to set forth specific facts showing the existence of a genuine dispute as to KCSR’s reasonable inspection and maintenance of its Elam Creek bridge. See

For purposes of its summary judgment motion only, KCSR assumes arguendo that it has a duty to reasonably maintain the area beneath its bridge over Elam Creek free of excessive debris. KCSR reserves the right to assert such duty was actually assumed by the Elam Creek Drainage District and/or the Tombigbee Water Management District. See KCSR’s Response to Plaintiff’s Interrogatories at 2 (Ex. K).

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Firman v. Life Insurance Co. of North America, 684 F.3d 533, 538 (5th Cir. 2012) (party, to avoid summary judgment, cannot rely on bare allegations of complaint or unsubstantiated assertions). II.

KCSR IS FURTHER ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF CANNOT SHOW THERE WAS EXCESSIVE DEBRIS UNDER KCSR’S ELAM CREEK BRIDGE AT THE TIME OF THE MAY 2, 2010 FLOOD EVENT.

Plaintiff not only has no evidence of a negligent act or omission in KCSR’s inspection and/or maintenance of its Elam Creek bridge, but it also has no evidence that such alleged negligent act or omission (assuming arguendo any such act or omission occurred) resulted in excessive debris beneath KCSR’s railroad bridge over Elam Creek at the time of the May 2, 2010 flood event. It is undisputed in this litigation that Plaintiff has no eyewitness testimony that there was any amount of debris beneath KCSR’s railroad bridge at the time of the May 2, 2010 flood event. Kmart Dep at 197-199 (Ex. G); Plaintiff’s Responses to KCSR Interrogatories at 5 (Ex. R). It is further undisputed that Plaintiff relies on no photographs of debris beneath the railroad bridge taken just prior to or during the flood event. Kmart Dep at 197-199 (Ex. F); Plaintiff’s Responses to KCSR’s Interrogatories at 14 (Ex. R).

In addition, Plaintiff has

identified no individual who will offer admissible testimony at the trial of this matter that there was excessive debris beneath KCSR’s bridge at the time of the flood. Moreover, Plaintiff is without any evidence demonstrating that there had been complaints to KCSR regarding debris beneath the bridge prior to the May 2, 2010 flood event. To the contrary, the undisputed evidence in this case is that KCSR had no complaints – and was not otherwise aware of – debris accumulation beneath its Elam Creek bridge in the weeks or days prior to the May 2, 2010 flood

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event. KCSR Response to Plaintiff’s Interrogatories at 1, 5 (Ex. K); KCSR Dep at 33-64 (Ex. B). As a preliminary matter, to the extent Krewson bases his opinion that there was excessive debris beneath KCSR’s bridge at the time of the flood on hearsay statements regarding past maintenance issues at the bridge that were not tied to the May 2, 2010 flood event, such expert testimony is itself inadmissible. As explained supra at 11-13, Krewson bases his opinion that there was a 25% debris blockage beneath KCSR’s bridge at the time of the flood, at least in part, on his post-flood conversation with David Huwe, who in turn based his comments on an earlier informal conversation with another City employee regarding alleged upkeep problems at the bridge, at some unspecified time in the past. Because these alleged statements by Huwe regarding past maintenance problems at the bridge are not the type of information reasonably relied on by experts in the field of hydrology to establish the existence of an obstruction at the time of a flood event, Krewson’s opinion itself is inadmissible. Where an expert’s opinion is based on facts not admissible in evidence, the expert may not “parrot impermissible hearsay” but must “form his own opinions by applying his extensive experience and a reliable methodology to the inadmissible materials.” Factory Mutual Insurance Co. v. Alon USA L.P., 705 F.3d 518, 523 (5th Cir. 2013) (citations omitted)). 11 Krewson fails to meet this standard. The only thing he did was adopt the vague statements as to what someone else said to Huwe about prior problems (without any reference to time, as explained in detail supra at 12), and accept the hearsay statements as true without any analysis or the application of any hydrology methodology to corroborate their reliability, and “parroted” them back. Thus,

As set forth more fully in KCSR’s Daubert motion and memorandumin support [Docs 240, 241], Krewson failed to apply any reliable methodology in forming his opinions.

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Krewson’s reliance on this inadmissible hearsay is not an allowable basis for his opinions, so his opinion testimony, based on his conversation with Huwe, is also inadmissible, and cannot be used to defeat KCSR’s motion for summary judgment.

See also Snapt Inc. v. Ellipse

Communications Inc., 2011 WL 2496686 at *3 (5th Cir. 2011) (expert testimony relying on inadmissible hearsay statements themselves based on unreliable and irrelevant statements insufficient to establish an issue of material fact precluding summary judgment in favor of defendant). Beyond this, Plaintiff’s reliance on debris observed after the flood to support its theory that debris existed at the time of the flood is speculative, and thus inadmissible. As the Fifth Circuit Court of Appeals explained in the similar case of Braswell v. Illinois Cent. R.R. Co., 250 F.3d 738 (5th Cir. 2001), In ruling from the bench, the district court summarized: no eyewitnesses could explain what had occurred at the bridge at the time of the flooding, and the court had excluded Braswell’s experts (those who could explain why the flooding occurred; Braswell does not appeal that ruling); therefore the evidence was insufficient to send the case to the jury. Furthermore, [t]he pictures [of the scene following the flood] are certainly graphic in describing and showing the amount of debris that was present there, but that was taken two days later. The court nor the jury has any way of determining whether, in fact, that debris was present, or whether it obstructed the river’s flow at the time of the flood.” Likewise here, it is undisputed that Plaintiff’s expert, Krewson, bases his opinion regarding the existence and amount of debris beneath KCSR’s bridge at the time of the flood on his informal interview with David Huwe and his own post-flood observations and photographs, neither of which is a reliable basis for his assumption of debris under the bridge. As Krewson’s own testimony establishes, Krewson’s interview with Mr. Huwe in no way indicates there was 22

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excessive debris under the bridge on May 2, 2010, much less a 25% blockage. Krewson Dep at 160 (Ex. H). 12 Mr. Huwe himself also confirms he did not tell Krewson there was debris under the bridge on May 2, 2010, much less that there was a 25% blockage. 13 And as Krewson admits, the photographs taken after the flood just as likely show debris brought down by the flood, not debris present at the time of the flood. Krewson Dep. at 157-158 (Ex. H). 14 The testimony of Plaintiff’s only expert Krewson thus does not meet the Daubert standard, and for this reason his testimony is not admissible. See Defendant KCSR’s Motion to Exclude Testimony of John R. Krewson [Doc 240] and Memorandum in Support [Doc 241]. Even if Krewson’s testimony is considered, such does not constitute sufficient evidence to defeat summary judgment on the critical issue of whether Plaintiff can meets its burden to show excessive debris existed under the bridge at the time of the May 2, 2010 flood because Krewson outright admits “he has no way to know” whether there was debris at the time of the May 2, 2010 flood. Krewson Dep at 159-160 (Ex. H). See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, summary judgment should be granted). Given the foregoing, there is no evidence, much less reliable evidence, that there was excessive debris under KCSR’s bridge at all, much less that there was a 25% blockage at the bridge. Plaintiff thus is without any admissible evidence whatsoever to support its allegation that KCSR breached a duty to maintain its railroad bridge free of excessive debris. Silver Dream, LLC v. 3MC, Inc., 2013 WL 1153431 at * 2 (5th Cir. 2013) (conclusory allegations, speculation,

12 13 14

See quoted Krewson testimony, pp. 11-12, supra. See p. 12, supra. See quoted Krewson testimony, p. 12, supra.

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and unsubstantiated assertions made by an expert witness are inadequate to satisfy Plaintiff’s burden in the summary judgment context). III.

EVEN ASSUMING ARGUENDO PLAINTIFF HAS EVIDENCE OF A NEGLIGENT ACT OR OMISSION BY KCSR OR OF EXCESSIVE DEBRIS UNDER THE BRIDGE, KCSR IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THE UNDISPUTED EVIDENCE SHOWS THAT NO ALLEGED ACT OR OMISSION BY KCSR WAS THE CAUSE (“BUTFOR” OR LEGALLY) OF PLAINTIFF’S DAMAGES.

Under Mississippi law, in order to prevail on the causation prong of its negligence claim, a plaintiff must establish two elements: (1) cause in fact, or “but-for causation,” which is satisfied only if the plaintiff demonstrates that its injury would not have occurred but for the defendant’s negligence; and 2) legal cause, which is satisfied if the injury is a reasonably foreseeable consequence of the defendant’s negligence. Comer v. Murphy Oil USA, Inc., 839 F.Supp. 2d 849, 867-868 (S.D. Miss. 2012). The “but-for causation” element means that the act or omission of the defendant was a substantial factor in bringing about the injury, and without it the harm would not have occurred. Id. The foreseeability prong of causation is fulfilled only if a person of ordinary intelligence would have anticipated the dangers that his negligent act created for others. A.B. ex rel. C.D. v. Stone County School Dist., 14 So. 3d 794, 800 (Miss. Ct. App. 2009). A. Plaintiff cannot prove but-for causation. Just as Plaintiff can produce no evidence showing a negligent act or omission by KCSR or excessive debris under the KCSR bridge, Plaintiff likewise has no evidence that any debris under the KCSR bridge contributed to the flood at the Kmart Store. The mere fact that there may be debris under a bridge does not establish that the debris contributed to a flood level in an upstream structure. See City of New Albany v. Barkley, 510 So. 2d 805 (Miss. 1987) (verdict in 24

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favor of plaintiff against the overwhelming weight of the evidence where plaintiff had no proof that the alleged debris in a culvert had an impact on the flood level on Plaintiff’s property).

determine, in this case, if the assumed debris under the KCSR bridge contributed to the level of water in Kmart, the purported obstruction – here, the bridge – must be modeled to determine what effect, if any, such obstruction may have had 2100 feet (nearly half a mile) upstream. Mendrop Aff. at ¶ 12. (Ex. C). Here, Krewson’s own testimony establishes that Plaintiff has no proof to establish but-for causation. Plaintiff’s sole “evidence” to satisfy “but for” causation against KCSR comes from Krewson’s testimony. Kmart’s Responses to KCSR’s Interrogatories (Ex. R); Kmart Dep at 112-113 (Ex. G).

But Krewson did not model KCSR’s bridge or the debris he assumed

(wrongly) to have been present. As explained fully in KCSR’s Motion to Exclude Testimony of John R. Krewson [Doc 240], and Memorandum [Doc 241] in support, it became clear at Defendants’ deposition of Krewson that not only was there no basis for Krewson’s assumption of debris at the KCSR bridge, but also that Krewson did not even model the KCSR bridge or the alleged “debris field” beneath the bridge. Therefore, it is impossible for Krewson to provide an admissible expert opinion that alleged debris at the KCSR bridge caused or contributed to flooding at the Kmart store. Krewson’s testimony on this point could not be clearer and merits quoting again: Q.

Well, let me ask you this: What did you put into your model that pertains to KCS?

I mean, as far as bridges?

Or as far as blockage that you attribute to the railroad?

I didn’t have anything in the models as far as blockage [under KCSR’s bridge]. 25

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So your models do not tell anything about backup at Kmart with regard to blockage that you attribute to KCS?

That’s correct.

So a person looking at your models learns nothing about the Kmart flood as it pertains to KCS?

Say that again. I’m sorry.

By looking at your models, you can tell nothing about the Kmart flood as it pertains to KCS?

I think that’s true as far as the models are concerned, yes.

Krewson Dep at 286-87 (Ex. H) (emphasis added). Since Kmart has acknowledged it relies solely on Krewson to establish the causal link between alleged debris beneath KCSR’s bridge at the time of the flood and Plaintiff’s flood damages, and because Krewson has admitted his models tell one nothing about whether alleged debris caused flooding at the Kmart store, Plaintiff is without any admissible causation testimony to establish the proximate cause element of its negligence claim against KCSR. See 3MC Inc., 2013 WL 115343 at * 2 (expert’s conjecture about causation not sufficient to create an issue of material fact that will allow plaintiff to survive summary judgment). The previously cited Mississippi case of City of New Albany v. Barkley is instructive on the issue of but-for causation in the matter sub judice. There, plaintiff brought a negligence action against the City to recover damages to the plaintiff’s business, which flooded during an extremely heavy rainfall, measured to be 7.32 inches of rain during a 24-hour period. 510 So. 2d at 806. Plaintiff discovered several days after the flood that a culvert located half a mile from his property was almost completely blocked and claimed that such blockage caused surface water to be diverted onto his property. Id. Following a judgment in favor of the plaintiff, on appeal, the 26

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Mississippi Supreme Court reversed the lower court judgment, holding that judgment in favor of the defendant City was appropriate because the plaintiff offered no evidence that, even assuming a blockage from debris, such blockage would have had any impact on flooding at his property. Id. at 807. This case is just like Barkley in that Plaintiff has no expert or other evidence of causation. This alone is sufficient for this Court to grant summary judgment.

And, as explained

immediately infra, there is credible, undisputed expert testimony in the record that the amount of blockage from debris which Krewson assumed (accepting the assumption arguendo only) did not contribute to the flood level at Kmart Store #4883. B. Based on the undisputed testimony of hydrologist Blake Mendrop, even assuming arguendo the 25% blockage beneath the bridge caused by debris put forth by Krewson, such blockage would have had no impact on flooding at the Kmart store. KCSR’s expert hydrologist Blake Mendrop has testified that the May 2, 2010 flood event in Corinth, Mississippi, during which more than nine (9) inches of rain fell during a 24-hour period, exceeded the 100-year flood mark – in all probability, significantly so -- and that structures located within the floodplain, as Kmart Store #4883 is, will typically experience some flooding in the context of such an extraordinary event. Ex. C at ¶¶ 6-7. As to Plaintiff’s allegations that debris beneath the KCSR bridge contributed to flooding at the Kmart site, Mendrop agrees with Krewson that Krewson failed to account for such alleged blockage in his models, making such models an unreliable basis for any opinion that debris beneath the KCSR bridge contributed to flooding at the Kmart site. Id. at ¶ 13. Further, Mendrop did himself prepare a model which included the KCSR bridge and the alleged debris blockage beneath it and

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has testified that, even assuming arguendo there was a blockage as put forth by Krewson, such blockage would have had no impact on the water levels at the Kmart store. Id. at ¶ 14. 15 Plaintiff herein has no evidence to rebut Mendrop’s testimony that, based on his models, which included the KCSR bridge and the assumed 25% blockage, no additional flooding to the Kmart store would be caused by a 25% blockage at the KCS bridge. Id. at ¶ 14. See Barkley, 510 So. 2d at 806-807.

Thus, it is undisputed not only that Plaintiff has no evidence of

causation, but also that KCSR has undisputed evidence in the record that Plaintiff’s alleged blockage at the KCSR bridge was not a cause of flooding at Kmart Store #4883. KCSR is entitled to summary judgment on Plaintiff’s claim against it. C. Even assuming arguendo that Plaintiff could establish but-for causation in this case, it cannot make a sufficient showing of legal cause because the May 2, 2010 flood event was not reasonably foreseeable. The undisputed evidence in this case demonstrates that the May 2, 2010 flood was an unforeseeable Act of God that was not reasonably foreseeable. See Bay Point High and Dry, L.L.C. v. New Palace Casino, L.L.C., 46 So. 3d 821, 835 (Miss. App. 2010) (An Act of God is an “event[] in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no warning of them [and] which reasonable precautions and/or the exercise of reasonable care by the defendant, could not have prevented the damage from the natural event.” As explained in detail supra at pp. 3-7, Plaintiff’s own documents and its own expert’s testimony establish that the rainfall amount in Corinth, Mississippi, on May 2, 2010, exceeded the 100-year flood event and was not reasonably foreseeable. That property both upstream and 15

Mendrop is a well-qualified hydrologist, having worked in the field for years, and having used the HEC-RAS models on numerous occasions in various contexts. Mendrop Dep at 1-25 (Ex. T). Mendrop’s CV setting forth his qualifications is attached to his affidavit.

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downstream of the KCSR’s bridge flooded and that other retailers, residences, and government properties experienced extensive flood damage further evidences that the flood was an Act of God which the exercise of reasonable care by KCSR could not have prevented. See supra at pp. 3-7. Since Plaintiff itself, which was best positioned to protect its property from flooding, had no advance notice of the flash floods, then there is no basis for Plaintiff’s claim that KCSR should have foreseen the flash flood and taken additional precautions. A Mississippi flooding case is directly on point. In City of Pascagoula v. Rayburn, 320 So. 2d 378 (Miss. 1975), homeowners brought suit against the City for damages to their home and furnishings due to the alleged negligence of the City in failing to properly maintain a drainage ditch near their home, which overflowed. The City argued that it maintained the ditch in the usual and accepted manner for municipalities in that area and further argued that the overflow of the drainage ditch was brought about by an unprecedented amount of rainfall in the nature of a flash flood which the City could not reasonably foresee. Id. at 380. The City retained an engineer and flood specialist, who testified that the 8.38 inches of rain the City received in a two-hour period was an extraordinary rain event in excess of the 100-year flood mark. Id. at 381. Other witnesses testified that the entire city was flooded, other streets and bridges were washed out and telephone poles were seen floating down the street. Id. In reversing the trial court’s verdict for the plaintiff, the Mississippi Supreme Court stated: Where it is shown that the city has notice that obstructions are accumulating in a drain, the city has a duty to use reasonable care under the circumstances to prevent flood damage which may result from its failure to properly maintain such drain. The city is required to make such provisions for and guard against such floods as may be reasonably to be expected. This expectancy is to be judged from such floods as have previously occurred. However, the city is not liable for damages which could not be guarded against by the exercise of reasonable care, such as unprecedented rain. 29

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Id. The Supreme Court, noting that the evidence established that the City had not neglected its drainage ditches, that it employed crews to work on drainage problems, and had a policy of handling any problems that developed, concluded that where the rainfall was extraordinary and the City had no notice of any obstruction in the ditch in question prior to the rainfall, the City was entitled to judgment in its favor. Id. at 381-382. As in Rayburn, where the City established that it did reasonably maintain and inspect its drainage ditches and promptly responded when it received complaints of debris, the undisputed testimony here is that KCSR actually exceeded its own policies in inspecting and maintaining the area beneath its Elam Creek bridge, promptly responded to remove debris when it learned of any such debris, and had received no complaints regarding debris beneath the bridge prior to the May 2, 2010 flood. Further, like the flood in Rayburn, the May 2, 2010 flood event in Corinth, Mississippi, produced extraordinary rainfall “in the nature of a flash flood which [Defendant KCSR] could not reasonably foresee.” 320 So. 2d at 379. See supra at pp. 3-7. Thus, Plaintiff cannot show that any alleged act or omission on the part of KCSR was the legal cause (i.e. proximate cause) of the damages Plaintiff sustained at its Kmart Store #4883, given that the flood was an Act of God that was not reasonably foreseeable. Finally, this is not the first time that Kmart has brought a flood lawsuit in the context of an unforeseeable Act of God in the form of a 100 plus-year-flood event. In a Louisiana federal district court case, Sears Holding, the parent corporation of Kmart, sued the City of Shreveport for flood damages sustained at one of its Sears & Roebuck stores during a major storm. Sears, Roebuck & Co. v. City of Shreveport, 2012 WL 243091 (W.D. La. Jan. 25, 2012). John Krewson testified as Sears’s expert engineer in that litigation, just as he is in this case. Id. at * 2. In 30

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Krewson’s deposition in that case, Krewson estimated that the storm exceeded a 100 year event, id., just as he does in this case. See Krewson Dep at 84 (Ex. K). There, the Louisiana district court, emphasizing Krewson’s agreement with the extraordinary nature of the rainfall in question, recognized that an unforeseeable flash flood was the substantial factor in Sears's injuries, and found that any negligence on the part of the City was not the proximate cause of Sears's injuries. Id. at *7-8. Accordingly, the court granted summary judgment in favor of the City of Shreveport. Id. at * 9. This Court should do the same here as to KCSR. CONCLUSION For the reasons set forth herein, KCSR requests this Court enter an order granting summary judgment as a matter of law in its favor on Plaintiff Kmart’s negligence claim again it, and that Plaintiff’s claims against KCSR be dismissed with prejudice. THIS the 7th day of October, 2013. Respectfully submitted, THE KANSAS CITY SOUTHERN RAILWAY COMPANY

BY:/s/Linda F. Cooper CHARLES E. ROSS (MSB #5683) W. McDONALD NICHOLS (MSB #3847) LINDA F. COOPER (MSB #102901) Attorneys for Defendant KCSR

OF COUNSEL WISE CARTER CHILD & CARAWAY, P.A. 600 Heritage Building 401 East Capitol Street Post Office Box 651 31

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Jackson, Mississippi 39205-0651 Telephone: (601) 968-5500 Facsimile: (601) 968-5593

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CERTIFICATE OF SERVICE I, Linda F. Cooper, one of the attorneys for Defendant, The Kansas City Southern Railway Company, do hereby certify a copy of the above and foregoing has been served on all known counsel of record with the Clerk of the Court using the CM/ECF system which will automatically send email notification to all known counsel of record.

This the 7th day of October, 2013. /s/Linda F. Cooper LINDA F. COOPER