293 memoinsupportresponsetomotionforsummaryjudgement kcsr kmart by Milton Sandy

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants KMART’S MEMORANDUM IN SUPPORT OF RESPONSE TO KANSAS CITY SOUTHERN RAILWAY COMPANY’S MOTION FOR SUMMARY JUDGMENT May It Please the Court: Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Response to Kansas City Southern Railway Company’s Motion for Summary Judgment. KCSR’s Motion should be denied because material issues of fact exist regarding whether KCSR breached a duty owed to Kmart when it failed to maintain its railroad underpass at Elam Creek in Corinth, Mississippi and whether that breach contributed to the damages incurred by Kmart during a May 2, 2010 flood event. I.

Background Kmart has alleged that KCSR “failed to maintain a railroad underpass in the vicinity of Store

4883 by leaving it cluttered with debris, which prevented water flow and displacement, thereby contributing to the flood damages incurred by Store 4883 on May 2, 2010.”1 Specifically, Kmart alleged that KCSR permitted excessive debris to collect at its railroad bridge at mile 328.13 over Elam Creek and that the debris blockage contributed to flooding damage at Kmart’s store.

See Kmart’s Complaint, Doc. 1, ¶ 36.

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Kmart retained John R. Krewson, an engineering expert, to investigate the causes of the flooding at Kmart’s store following the May 2, 2010 flood event. Mr. Krewson visited the site of the KCSR railroad underpass and noted that there was a “considerable debris field” at the underpass and that the “debris blocked approximately the lower quarter of the bridge opening.”2 Mr. Krewson took photographs of the debris field, which are attached to his Initial Report. Mr. Krewson also interviewed the Floodplain Administrator for the City of Corinth, Mr. David Huwe. Mr. Huwe indicated to Mr. Krewson 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.”3 Based on his observations of the site, his discussion with Mr. Huwe, and general hydrological engineering principles, Mr. Krewson opined that “[t]he lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.”4 In connection with the assignment, Mr. Krewson also prepared HEC-RAS (Hydrological Engineering Centers River Analysis System) models to determine the impact of the neighboring Kroger store on the flooding at the Kmart store, the results of which were discussed in his Initial Report. Mr. Krewson did not include the KCSR bridge or the debris field in the underpass in his HEC-RAS models and did not otherwise quantify the specific impact of the debris field at the underpass on the flooding at Kmart’s store. His conclusion that there was an impact of the railroad

See Initial Flooding Evaluation of John R. Krewson, dated September 20, 2012, attached as Exhibit A to Kmart’s Response to KCSR’s Motion for Summary Judgment, at 5. 3

Id. at 6.

Id. at 7.

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underpass on the flooding is based on his expertise and understanding that obstructions downstream of the Kmart store impeded the flow of water during the storm, causing a backup of floodwater, which increased the depth of flooding at Kmart’s store. On May 22, 2013, the defendants deposed Mr. Krewson. Mr. Krewson was questioned regarding the HEC-RAS models and it was discovered for the first time by Mr. Krewson and Kmart that his models contained inconsistent flow rates and his conclusions in his Initial Report regarding the impact of the Kroger store on the flooding at Kmart were flawed. Mr. Krewson was also shown a photograph dated May 2, 2010 at his deposition by counsel for KCSR, which depicts the KCSR railroad bridge covered by floodwater and shows a lack a floating debris in that area. 5 After being made aware of the mistake in the HEC-RAS models at his deposition, Mr. Krewson re-ran his models to address the error and prepared an Amended Flooding Evaluation (“First Amended Report”).6 Kmart filed a motion for leave to file the First Amended Report on July 23, 2013. In addition to addressing the errors in his HEC-RAS models, Mr. Krewson also noted that the photograph of the railroad that he was shown at the deposition supported his contention that the debris field in the railroad underpass existed at the time of the May 2, 2010 flood.7 Mr. Krewson observed that there was no debris field floating upstream of the KCSR bridge in the photograph.8 He stated that for the debris to have resulted from the flood, there would have to have been a

See Exhibit 9 to Mr. Krewson’s deposition, photograph, Bates labeled Corinth00106, attached as Exhibit B to Kmart’s Response to KCSR’s Motion for Summary Judgment. 6

See John R. Krewson’s Amended Flooding Evaluation, dated July 23, 2013, attached as Exhibit C to Kmart’s Response to KCSR’s Motion for Summary Judgment. 7

Id. at 8.

Id.

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considerable amount of floating debris trapped behind the bridge when the water level dropped.9 The lack of floating debris in the picture suggests that debris found behind the bridge after the flood was present prior to the flooding and that because the debris did not rise and float off during the flood, it was likely there long enough for the debris to become embedded behind the bridge.10 The defendants opposed Kmart’s motion for leave to file Mr. Krewson’s First Amended Report. After hearing on the matter, Magistrate Judge David Sanders issued a ruling denying Kmart leave to amend Mr. Krewson’s report. Thereafter, Kmart filed objections to the magistrate judge’s ruling. On September 27, 2013, this Court issued a ruling stating that it would consider an amendment of mathematical errors in Mr. Krewson’s Initial Report. On October 11, 2013, pursuant to this Court’s Order, Kmart filed a motion for leave to file a second Amended Report to amend the mathematical errors in Mr. Krewson’s Initial Report (“Second Amended Report”). KCSR retained Mendrop Engineering Resources to address Kmart’s allegations and Mr. Krewson’s findings and to analyze the impact of the alleged debris at the KCSR bridge underpass in Elam Creek on the flooding at Kmart’s store during the May 2010 flood event. Mr. Mendrop, the owner of Mendrop Engineering Resources, prepared a report in connection with the assignment, in which he opined that a 25% blockage at the KCSR railroad underpass would have had no impact on the flooding at Kmart’s store during the May 2010 flood event.11

Id.

See Report of Mendrop Engineering Resources, dated June, 2013, attached as Exhibit D to Kmart’s Response to KCSR’s Motion for Summary Judgment.

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Mr. Mendrop’s opinion is based on modeling that he prepared using the HEC-RAS system.12 To prepare the HEC-RAS models, Mr. Mendrop utilized data he obtained from the Federal Emergency Management Agency (“FEMA”) that was prepared by FEMA to create the 1981 Flood Insurance Rate Maps for the area around Elam Creek in Corinth, Mississippi.13 Specifically, Mr. Mendrop obtained hard copy printouts of the HEC-2 modeling prepared by FEMA to create the 1981 FIRM maps. (The HEC-2 modeling system is the predecessor to the HEC-RAS system.14) The KCSR bridge was in place before the hydraulic models were developed by FEMA, and thus was included as part of the HEC-2 hydraulic models used to establish the base flood elevations in the subject area.15 Importantly, the HEC-2 modeling data relied on by Mr. Mendrop to prepare his HECRAS models was created prior to 1981, and, according to Mr. Mendrop, probably in the late 1970s, and is thus over thirty years old.16 Mr. Mendrop converted the thirty-plus-year-old HEC-2 data used by FEMA to prepare his HEC-RAS models to purportedly evaluate “normal existing conditions” and analyze the impact of the 25% blockage at the KCSR underpass on the Kmart store during a 100-year storm event and a 500-year storm event.17 He prepared two different HEC-RAS models. “Model A” was a base model and reflected the existing 100-year flood event water surface elevations and the 500-year flood event 12

See id. at 8.

See id.

See id. at 5-6.

See Excerpts to Deposition of Blake Kelly Mendrop, dated September 5, 2013, attached as Exhibit E to Kmart’s Response to KCSR’s Motion for Summary Judgment, p. 89, l. 11-21. 17

See Ex. D, Report of Mendrop at 8-9.

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water surface elevations.18 “Model B” was developed to represent a condition of 25% blockage at the underpass of the KCSR bridge in Elam Creek.19 Mr. Mendrop compared the alleged “existing conditions” in Model A to the 25% blockage in Model B to identify any impacts of the debris blockage at the underpass on the existing floodplain.20 According to Mr. Mendrop, the HEC-RAS modeling indicated that a 25% blockage at the underpass in Elam Creek would not have caused a rise in the floodwaters at the Kmart site as a result of the May 2010 flood event.21 At his deposition, Mr. Mendrop admitted that he did not conduct any surveying on the KCSR bridge to obtain the current existing condition of the bridge before preparing his HEC-RAS models.22 Moreover, aside from the channel of Elam Creek, Mr. Mendrop did not conduct any surveying on the 2100-foot area between the KCSR underpass and the Kmart store.23 Rather, Mr. Mendrop relied on the thirty-plus-year-old HEC-2 data produced by FEMA to create the 1981 FIRM maps. Thus the data used by Mr. Mendrop to represent the KCSR bridge and the area between the bridge and the Kmart store in the HEC-RAS modeling does not represent “normal existing conditions,” but rather, represents the KCSR bridge and the area between the bridge and Kmart’s store as it existed over thirty years before the May 2010 flood event.

See id.

See Ex. E, Depo. of Mendrop at p. 79, l. 8 - p. 80, l. 21.

See id. at p. 90, l. 20 - p. 91, l. 1.

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II.

Law and Argument A.

Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”24 The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact.25 If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.26 Unsupported allegations, conclusory facts, and conclusions of law are insufficient to support a motion for summary judgment.27 Moreover, a court must resolve all reasonable factual inferences from the record in favor of the non-movant.28 Summary judgment is improper when the court merely believes it unlikely that the non-moving party will prevail at trial.29 The district court must not “resolve factual disputes by weighing conflicting evidence, since it is the province of the jury to assess the probative value of the evidence.”30 As demonstrated below, there are genuine issues of material fact regarding KCSR’s

Fed. R. Civ. Proc. 56(c).

See Ford-Evans v. Smith, 206 Fed. Appx. 332, 334 (5th Cir. 2006).

See id.

See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

Id.

Nat. Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962).

Kennett-Murray Corp. v. Bone, 622 F.2d 887, 882 (5th Cir. 1980) (citations omitted).

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negligence in maintaining the railroad underpass in Elam Creek, and therefore, KCSR’s motion for summary judgment should be denied. B.

Summary judgment is not appropriate because there are issues of fact regarding whether KCSR breached a duty to Kmart when it failed to maintain the railroad underpass at Elam Creek.

Kmart’s allegations against KCSR are based on common law negligence. Under Mississippi law, “[a] claim of negligence has four elements: duty, breach, causation, and damages.”31 In order to prevail on a negligence claim, “a plaintiff must prove by a preponderance of the evidence each element of negligence: duty, breach of duty, proximate causation and injury.”32 Here, there are genuine issues of material fact regarding whether KCSR was negligent when it failed to maintain the railroad underpass in Elam Creek and keep it free from debris. Moreover, issues of fact remain as to whether KCSR’s failure to maintain the underpass contributed to Kmart’s damages during the May 2, 2010 flood event. Summary judgment is improper and KCSR’s motion should be denied. 1.

KCSR breached its duty of reasonable care to avoid injury to Kmart.

Mississippi jurisprudence establishes that an individual owes a duty of reasonable care to avoid injury to nearby property owners. For example, in Rhaly v. Waste Management of Mississippi, Inc.,33 property owners brought suit against a waste management company that served the neighboring store.34 The plaintiffs claimed that the company placed a dumpster too close to a ditch and that during a flood, the dumpster obstructed the ditch and caused overflow of its banks, which 31

Schepens v. City of Long Beach, 924 So. 2d 620, 623 (Miss. App. 2006) (quoting Price v. Park Management, Inc., 831 So. 2d 550 (¶5) (Miss. App.2002)). 32

Id. (quoting K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975 (¶ 14) (Miss.1999)).

43 So.3d 509 (Miss. Ct. App. 2010).

Id. at 511.

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resulted in flooding to plaintiff’s property.35 The court found that a genuine issue of material fact existed as to causation and that there was a triable question as to the negligence of the waste management company.36 Similarly, genuine issues of fact exist regarding whether KCSR breached its duty of reasonable care to Kmart. KCSR had a basic duty to refrain from taking any action that would cause injury to Kmart. Kmart has presented competent evidence in the form of Mr. Krewson’s testimony which demonstrates that KCSR failed to keep the railroad underpass free from debris prior to the May 2, 2010 storm. Kmart has also presented evidence that the debris caused a displacement of water and a rise in the water level, which resulted in flood damage to Kmart’s store. Moreover, KCSR had a duty under the City of Corinth’s Code of Ordinances to refrain from obstructing the drainage of the City. Section 26-1 of the Corinth Code of Ordinances provides that “It shall be unlawful for any railroad company to obstruct the drainage of the city in any way or by any means whatsoever.” The testimony of Mr. Krewson establishes that KCSR’s failure to keep the underpass of its bridge over Elam Creek free from obstruction violated this ordinance. KCSR’s violation of its statutory duty contributed to the damage incurred by Kmart during the May 2, 2010 flood. 2.

Kmart has presented competent evidence that there was debris in the railroad underpass at the time of the flood event and that the debris contributed to the flooding damage at Kmart’s store.

Contrary to KCSR’s arguments, summary judgment is not appropriate because Kmart has presented admissible evidence through Mr. Krewson that there was debris in the underpass of the

Id.

Id. at 517.

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Elam Creek bridge prior to the May 2, 2010 flood event and that the obstruction in the creek contributed to Kmart’s damages. Mr. Krewson opined that debris existed in the underpass prior to the May 2, 2010 flood. Mr. Krewson explained that, based on sound hydrological principles, when there are obstructions, such as a debris field, in a creek, such as Elam Creek, those obstructions will impede the flow of water and contribute to the depth of flooding in an area. The KCSR railroad underpass is located in Elam Creek downstream of Kmart’s store. Any obstruction in the creek at the time of the flood would have impeded the flow of water during the storm. That impediment caused the floodwaters to backup, which contributed to the depth of flooding at Kmart’s store. Mr. Krewson’s opinion that “[t]he lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010”37 is based on sound, general principles of hydrology. a.

Mr. Krewson’s testimony is admissible.

KCSR argues that Mr. Krewson’s testimony is inadmissible and that Kmart, therefore, has failed to present competent evidence that there was debris in the underpass or that the debris contributed to Kmart’s flood damage. As more fully explained in Kmart’s Response to KCSR’s Motion to Exclude Testimony of John R. Krewson, the testimony of Mr. Krewson presented by Kmart in support of its claims against KCSR is admissible. The admission of expert testimony is governed by Federal Rule of Evidence 702, which provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and 37

See Ex. A, Initial Report of Krewson at 7.

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methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.38 As the United States Supreme Court has interpreted Rule 702, the Rule requires the Court to make three preliminary determinations. First, the expert witness must be qualified as an expert by virtue of his knowledge, skill, experience, training or education.39 Second, the expert’s opinion must be reliable, i.e., based on scientific, technical, or otherwise specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue.40 Third, the expert’s opinion must be relevant to the facts at issue.41 These preliminary determinations are often referred to as the “qualifications,” “reliability,” and “relevance” components of Rule 702. Trial courts should “ensure expert witnesses have employed reliable principles and methods in reaching their conclusions,” but the courts should not judge the expert’s conclusions.42 Indeed, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”43 “As a general rule, questions relating to the bases and sources of an expert’s opinion

FED. R. EVID. 702 (emphasis added).

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993).

See id. at 589-91.

See id. at 591.

Riley v. Ford Motor Co., 2011 WL 2728266, *4 (S.D. Miss. 2011), citing Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). 43

U.S. v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996).

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affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.”44 Mr. Krewson’s testimony regarding debris blockage beneath the KCSR bridge prior to the May 2, 2010 flood event has a reliable basis and is not “sheer speculation” on the part of Mr. Krewson. Mr. Krewson did not merely assume the debris existed on May 2, 2010 because he observed a debris field days after the flood event. Rather, Mr. Krewson’s opinion that debris existed at the time of the flood is based on his observation that there was debris embedded in the underpass, which suggested a permanence of the debris field. His expert opinion is also based on his conversation with Mr. Huwe, the City’s Floodplain Administration, regarding KCSR’s failure to maintain the underpass prior to the flood event. Moreover, Mr. Krewson’s opinion regarding the existing debris field was confirmed by the photograph that was shown to Mr. Krewson by KCSR’s counsel at his deposition, which suggests that because there is no floating debris, the debris field was present at the time of the flood event. Mr. Krewson’s opinions regarding the debris field are reliable and would assist the trier of fact in deciding whether the debris field was indeed present at the time of the flood event. In Mr. Krewson’s expert opinion, his observations in the days following the flood event suggested that the debris was present in the underpass at the time of the flood. KCSR relies on deposition testimony by Mr. Krewson in which he states that the debris field could have been from the flood itself as opposed to the debris field being an indication that the debris existed prior to the flood event. However, Mr. Krewson qualified his statement and testified further that there was a level of permanence to the debris field that supported his opinion that the debris was present on May 2, 2010. 44

Id. at 1077.

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Specifically, Mr. Krewson testified that “[t]he debris under the bridge was intermingled with stones and gravel, and it appeared to have some permanence. There was more loose timber on top, and then there was kind of a heavier layer underneath.”45 Thus, Mr. Krewson’s opinion that the debris was present prior to the flood event was not merely based on the fact that there was debris present days after the flood event. Mr. Krewson’s experience led him to conclude that the level of permanence of the debris field suggested the debris field existed on May 2, 2010. Mr. Krewson’s opinion regarding the debris field is both relevant and reliable, and therefore helpful to the trier of fact. Mr. Krewson’s reliance on his conversation with Mr. Huwe only further supports his opinion that there was a debris field in the underpass at the time of the May 2, 2010 flood event. According to Mr. Krewson, when he mentioned the debris field to Mr. Huwe, Mr. Huwe indicated that the City had an ongoing problem with KCSR keeping the underpass free from obstruction.46 Mr. Huwe testified that Mr. Krewson’s recollection of their conversation regarding KCSR was a fair and accurate assessment.47 Moreover, Mr. Huwe agreed that the problem with debris in the railroad underpass existed prior to the May 2, 2010 flood.48 Mr. Huwe’s statements coupled with the permanent condition of the debris field following the flood event led Mr. Krewson to conclude that the debris field existed prior to the flood event.

See Deposition of John R. Krewson, attached as F to Kmart’s Response to KCSR’s Motion for Summary Judgment, at p. 159, l. 2-5. 46

See id. at p. 28, ll. 17-24.

See Deposition of David Huwe, attached as Exhibit G to Kmart’s Response to KCSR’s Motion for Summary Judgment, at p. 88, l. 24 - p. 89, l. 14. 48

See id. at p. 96, l. 8 - p. 97, l. 3.

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KCSR relies on Braswell v. Illinois Central Railroad Co.49 to argue that there is no reliable basis for Mr. Krewson’s opinion regarding that the debris field was present at the time of the flood, but the facts in that case are distinguishable from the facts in this matter. In Braswell, the plaintiff alleged that a railroad was negligent in maintaining a bridge over a waterway, resulting in debris accumulation under the bridge, which restricted flow of flood waters and caused damage to plaintiff’s property.50 The plaintiff’s expert, based on his personal observation of the river after the flood, concluded the railroad’s negligence resulted in the flood damages to the plaintiff’s property.51 The district court granted the defendant’s Daubert motion and, after trial, issued a directed verdict for the defendant.52 The Fifth Circuit Court of Appeals affirmed the district court’s dismissal of the plaintiff’s case against the railroad, finding that no eyewitnesses could explain what occurred at the bridge at the time of flooding.53 The Fifth Circuit did not, however, address whether the plaintiff’s expert was properly excluded because the plaintiff did not appeal that issue.54 The Fifth Circuit noted that the photographs of the flooding two days after the event did not assist the jury in determining whether there was debris at the time of the flooding and whether it obstructed the river’s flow at the time of the flood.55

250 F.3d 738 (5th Cir. 2001).

Braswell, 250 F.3d 738, *1.

Id.

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In Braswell, the Fifth Circuit did not address whether the plaintiff’s expert’s testimony was admissible because the plaintiff did not appeal the trial court’s exclusion of the expert testimony.56 Here, however, KCSR calls into question the reliability and admissibility of Mr. Krewson’s testimony. The Fifth Circuit reviewed the trial court’s grant of dismissal and determined there was no expert testimony or other facts to assist the jury to determine whether there was debris at the time of the flooding in that case.57 Here, however, there is a photograph that was taken on the date of the flood event that supports Mr. Krewson’s conclusion that the debris field was present in the KCSR underpass at the time of the flood.58 Mr. Krewson had already formed this opinion prior to being shown the photograph at his deposition by KCSR’s own counsel. When Mr. Krewson went to prepare his Amended Report to address the errors in his HEC-RAS modeling regarding the impact of the Kroger store on the flooding at Kmart, he reflected upon the photograph and determined that it supported his opinion that the debris field existed on May 2, 2010. Although KCSR would have this Court ignore the very photograph that it introduced at Mr. Krewson’s deposition, the photograph is relevant evidence that is informative regarding the condition of the railroad underpass at the time of the flood. The photograph shows that there was no debris field floating upstream of the KCSR bridge in the photograph. For the debris to have resulted from the flood, there would have to have been a considerable amount of floating debris trapped behind the bridge when the water level dropped. The lack of floating debris in the picture suggests that debris found behind the bridge after the flood was present prior to the flooding and that because the debris did not rise and float off

Id.

See Ex. B, photograph.

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during the flood, it was likely there long enough for the debris to become embedded behind the bridge. The photograph, therefore, confirms Mr. Krewson’s initial opinion that the debris field was present at the time of the flood event. Mr. Krewson’s opinion that the obstructions in Elam Creek, including the debris field at the KCSR railroad underpass, contributed to the flooding is based on his expertise and basic hydrological principles. The fact that Mr. Krewson did not conduct modeling to quantify the impact of the debris field in the railroad underpass on the flooding at Kmart’s store does not render his opinion unreliable. Mr. Krewson’s opinion that “[t]he lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010”59 is based on sound, general principles of hydrology. That a debris field will contribute to the depth of flooding in an area is evidenced by the fact that the HEC-RAS program has a model for determining the impact of a debris field. KCSR’s expert, Kelly Blake Mendrop, acknowledged in his affidavit attached to KCSR’s motion that the HEC-RAS model has a routine for modeling debris called the “floating pier debris” that is used to model the effect of debris blockage at a bridge for its impact on an upstream structure.60 Indeed, even Mr. Huwe, the City’s Floodplain Administrator, recognized this basic concept: Q:

And we were talking about the debris field and Elam Creek near the Kansas City Southern Railroad track. That’s not something that the City wants to be in the creek; right?

See Ex. A, Initial Report of Krewson at 7.

See Ex. F to Kmart’s Response to KCSR’s Motion for Summary Judgment, Affidavit of Mendrop

¶ 9.

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They would always like their creeks to be clear of all debris.

And why is that?

It’s unsightly, for one thing. But, you know, you would think that any debris that does get caught up will tend to impede the water flow.61

It is not disputed that Mr. Krewson did not prepare a model to quantify the specific impact of the debris field under the KCSR bridge, but that does not mean that there was no impact. Mr. Krewson explained at his deposition that because the bridge is a complex structure, it could not be modeled using conventional HEC-RAS modeling without manipulating the model. Mr. Krewson testified: The problem with the railroad bridge is it didn’t match the model — the computer model itself did not fit that type of configuration. And I would have had to trick the model or come up with some sort of composite section or otherwise come up with something and the result would be unreliable in this condition, in a legal condition. I could not say, as we talked about when you filled, you said what if it was an inch, or what if it was 4 inches, or what if it was an inch. I didn’t think that anything I did with the railroad bridges would give me a number that would work that I could stand on and say that was good.62 Mr. Krewson chose not to model the railroad to quantify the exact impact of the debris field on the flooding at Kmart because he determined that to do so would have required him to stretch the model to a point that might not draw reliable conclusions. Nonetheless, Mr. Krewson’s opinion that the debris field would have impacted the flooding at the Kmart store by causing a backup of floodwaters upstream is admissible because, as discussed, it is based on general and reliable

See Ex. G, Depo. of Huwe at p. 102, l. 15 - p. 103, l. 1 (emphasis added).

See Ex. F, Depo. of Krewson at p. 285, ll. 2-14.

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hydrological principles. Further, while KCSR maintains that Mr. Krewson’s opinion is unreliable because he did not model the bridge and debris field, Mr. Krewson is of the contrary opinion that his model would become unreliable if he were forced to model the bridge with its stuck debris field. This is the classic example of two competing theories. Kmart submits that the proper way to deal with them is to present them to the trier of fact and see which one is accepted. Summary judgment is, therefore, in appropriate. C.

Summary judgment is not proper because genuine issues of material fact exist regarding whether KCSR’s negligence contributed to the damages at Kmart’s store. 1.

Kmart has shown but-for causation.

KCSR argues that Kmart cannot show that but for its negligence, the Kmart store would not have incurred flood damage during the May 2, 2010 flood. But, as discussed, Kmart has presented competent and admissible evidence that the debris in Elam Creek that existed prior to the flood contributed to the damages at Kmart’s store and that but for KCSR’s negligence in maintaining the creek, Kmart would not have sustained the level of damage it sustained during the flood event. The City of New Albany v. Barkley63 case relied on by KCSR is distinguishable. In that case, the owner of a business brought a negligence claim against the city for to recover for damages he incurred during an extraordinarily heavy rainfall.64 The plaintiff alleged that the city failed to maintain a culvert, which caused water to be diverted on his property.65 The court found that the plaintiff “offered no real evidence to show that the blocked culvert was the cause of his flooding.

510 So. 2d 805 (Miss. 1987).

Id. at 806.

Id.

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[He] merely asserted that since the culvert was clogged, that in itself sufficient proof that the flood waters were thereby caused to drain onto his property.”66 Here, however, Kmart has not merely asserted that the fact that the store flooded was proof alone that the flooding was caused by KCSR’s negligence. Rather, Kmart has presented admissible evidence in the form of the expert testimony of Mr. Krewson that shows that KCSR’s failure to maintain the underpass contributed to the flooding damage at Kmart’s store. 2.

KCSR’s reliance on Mr. Mendrop’s testimony is flawed because Mr. Mendrop’s testimony is inadmissible.

KCSR argues that even if the debris did exist, its expert has shown that the debris would not have had an impact on the flooding at the Kmart store. But KCSR’s reliance on Mr. Mendrop’s findings is flawed. Mr. Mendrop’s testimony is inadmissible because the models on which his opinions are based use insufficient and unreliable data. Federal Rule of Evidence 702 requires that there be sufficient facts or data underlying proffered expert testimony.67 An expert’s opinion is not sufficiently reliable to be admissible if the expert’s opinion is not based on sufficient facts or data.68 “[A]ny step that renders the analysis unreliable...renders the expert testimony inadmissible.”69 Here, Mr. Mendrop’s analysis is unreliable because it is based on data that does not accurately reflect the conditions of the KCSR bridge or the area between the bridge and the Kmart store as those conditions existed at the time of the May 2010 flood event. Rather, the data relied on

Id. at 807. FED. R. EVID. 702.

Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (citing Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 671 (5th Cir. 1999)). 69

Id. at 388 (citing Curtis, 174 F.3d at 670-71.)

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by Mr. Mendrop to prepare his HEC-RAS models reflects those conditions as they existed over thirty years before the May, 2010 flood event. Because Mr. Mendrop’s opinion is based on insufficient and unreliable data, his testimony is inadmissible under Federal Rule of Evidence 702. Mr. Mendrop did not conduct any surveying on the KCSR bridge to obtain data on the current condition of the bridge to input in his HEC-RAS models.70 Mr. Mendrop explained that he did not have “track time” to access the right of way to perform surveying on the bridge.71 According to Mr. Mendrop, for him to obtain “track time” to conduct the surveying would have required KCSR to stop any train utilizing the track over Elam Creek. Mr. Mendrop admitted that he did not do any investigation into any changes or additions to the bridge structure from the late 1970s and early 1980s to the present and did not account for any alterations or changes in the bridge in his report.72 Despite using thirty-year-old data and failing to account for any changes or additions to the KCSR bridge in that thirty-plus-year span of time, Mr. Mendrop alleges that his base HEC-RAS model, “Model A”, represents normal “existing conditions.”73 “Model A,” however, cannot represent “existing conditions” because the model represents the KCSR bridge not as it currently exists, but as it existed over thirty years ago. The geometry of the KCSR bridge could be completely different than it was in the late 1970s or early 1980s, when the data relied on by Mr. Mendrop was developed. Without a current survey of the bridge, Mr. Mendrop could not have made an accurate

See Ex. E, Depo. of Mendrop, p. 54, ll. 2-4.

See id. at p. 53, l. 5 - p. 54, l. 1.

See id. at p. 79, l. 8 - p. 80, l. 21.

See Ex. D, Report of Mendrop at 8.

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assessment of the impact of the bridge on the flooding at Kmart’s store because it is unknown whether the bridge was exactly the same in May 2010 as it was over thirty years ago. Mr. Mendrop also relied on the thirty-plus-year-old data to model the area around the Kmart store, despite the fact that the data was created more than ten years before the Kmart store was even built. Mr. Mendrop did not conduct a survey of the area around the Kmart store to determine the actual existing condition of that area prior to preparing his HEC-RAS models. He did not survey the parking lot for the Fulton Shopping Center, the fill area behind the shopping center or the detention pond near the shopping center.74 Indeed, the only surveying conducted by Mr. Mendrop on the Kmart store was limited to a finished floor location of the Kmart store.75 The Kmart and Kroger stores were constructed in 1991, at least ten years after FEMA developed the HEC-2 data relied on by Mr. Mendrop. The as-built drawings created in connection with the construction of the Kmart and Kroger buildings show that the conditions at the Fulton Shopping Center site were significantly different in 1991 than they were before the Kmart and Kroger stores were built.76 For example, an “Existing Conditions Plan - Composite,” “Demolition Plans,” and a “Site Plan” were prepared in connection with the construction. The “Existing Conditions Plan - Composite” shows the condition of the Fulton Shopping Center site prior to construction of the Kmart and Kroger stores.77 The “Demolition Plan” drawings indicate which

See Ex. E, Depo. of Mr. Mendrop, p. 87, l. 1-11.

Id. at p. 84, l. 13-18.

See construction drawings, attached in globo as Exhibit H to Kmart’s Response to KCSR’s Motion for Summary Judgment. 77

See id. at KM-01071-01072.

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existing buildings were to be demolished in connection with the construction.78 The “Site Plan” drawing shows the Fulton Shopping Center site after construction of the Kmart and Kroger stores.79 A review of these drawings clearly shows that prior to construction of the Kmart and Kroger stores in 1991, there were several buildings located in the area that is now the parking lot for the Fulton Shopping Center. The buildings were demolished to create the flat-surfaced lot. Thus the construction plans demonstrate that in the ten years between the creation of the data relied on by Mr. Mendrop and the construction of the Kmart and Kroger stores, the area in front of the Fulton Shopping Center was altered dramatically from containing several buildings in the area to a flatsurfaced parking lot with no buildings. Mr. Mendrop’s models, however, assume that the area in front of the Kmart and Kroger stores contains several buildings when in fact the area is a flat surface. This change alone would impact the hydrology in and around the area of the Kmart store. Mr. Mendrop’s failure to conduct a comprehensive survey of the area surrounding the Kmart store renders his modeling unreliable because it does not reflect the condition of the Fulton Shopping Center as it existed in 1991 when the Kmart store was built, much less the condition of the area during the May 2010 flood event. Mr. Mendrop also failed to survey the area between Fulton Drive and Elam Creek to obtain current and reliable data points for that area to use in his HEC-RAS modeling.80 Moreover, aside

See id. at KM-01071 and KM-01073-01074.

See id. at KM-00027.

See Ex. E, Depo. of Mendrop, p. 87, l. 16-23.

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from the creek and channel of Elam Creek, Mr. Mendrop did not perform any surveying on any of the 2100-foot area between the KCSR bridge and the Kmart store.81 Mr. Mendrop’s reliance on the thirty-plus-year-old data instead of actual current surveyed conditions shows that, contrary to his assertion, his HEC-RAS models do not reflect “existing conditions.” Mr. Mendrop has not taken any action to account for any changes in the topography of the area in the thirty-year span of time and his opinions are, therefore, based on a model that relies on outdated and unreliable data that has no relevance to the actual condition of the subject area. Mr. Mendrop has presented expert testimony relying on what is, for all practical purposes, a completely different site than what existed at the time of the May 2010 flood. Even if Mr. Mendrop’s testimony regarding the impact of the debris field is admissible, his opinions directly conflict with the opinions of Mr. Krewson. The conflicting evidence regarding whether the debris field contributed to Kmart’s flood damage creates a genuine issue of material fact, making summary judgment inappropriate. 3.

Kmart has made a sufficient showing of legal causation.

KCSR contends that it is entitled to summary judgment because Kmart cannot show that any alleged act or omission on the part of KCSR was the legal cause of the damages sustained by Kmart because the May 2, 2010 flood event was an unforeseeable act of God that exceeded the 100-year flood mark for the City of Corinth. But summary judgment is inappropriate as KCSR has not met its burden of proving its act of God defense because issues of fact remain regarding whether Kmart’s injuries could have been prevented by KCSR’s use of reasonable care and foresight in maintaining the railroad underpass. 81

Id., p. 89, l. 2 - p. 90, l. 12 and p. 90, l. 20 - p. 91, l. 1.

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KCSR bears the burden of proving its act of God defense and “must establish ‘beyond peradventure all of the essential elements of the ... defense.’”82 An act of God is “an injury due directly and exclusively to natural causes without human intervention, which could not have been prevented by the exercise of reasonable care and foresight. “In other words, ‘[t]his defense applies where an injury is attributable solely to natural cause.’”83 “An act ‘which may be prevented by the exercise of ordinary care is not an act of God.’”84 “However, if the injury is caused by an act of God, in connection with which the negligence of the defendant is a concurring cause, and the injury would not have occurred except for such negligence, then defendant is liable.”85 The damages incurred by Kmart were the result of KCSR’s failure to maintain the underpass of the KCSR bridge over Elam Creek. KCSR asserts that it cannot be held liable for the flood incurred at Kmart’s store as the May 2, 2010 flood resulted from acts of God. Here, the cause of the flooding is a contested issue of fact. While KCSR argues that the flood resulted from an act of God, Kmart has presented evidence that establishes the flooding resulted in part from KCSR’s negligence. The evidentiary determination regarding the cause of flooding at Kmart’s store is not properly resolved by a motion for summary judgment. Whether the May 2, 2010 flood event was an act of God is an issue of fact not appropriate for summary judgment. The May 2, 2010 flood event was not an unprecedented flooding event for

Biloxi Yacht Club, Inc. v. Grand Casinos of Miss., Inc. - Biloxi, 2009 WL 801635, *4 (S.D. Miss. 2009) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). 83

Id.(citing Shields v. Easterling, 676 So. 2d 293, 296 (Miss. 1996)).

Id. (citing King v. Miss. Power & Light Co., 244 Miss. 486, 142 So. 2d 222, 224-25 (1962)).

Id. (citing McFarland v. Entergy Miss., Inc., 918 So. 2d 679, 701 (Miss.App. 2004) (rev’d by 919 So.2d 894 (Miss. 2005)).

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the Corinth, Mississippi area. The City of Corinth has experienced, within the last twelve years, the type of flooding that occurred on May 2, 2010. In the September 26, 2010 issue of Bridge, Phillips, Elam Drainage District News, a newsletter authored by Milton Sandy, Jr., the purpose of which is to “get something done about the repetitive flooding in Corinth and Alcorn County,” mentioned a December 1, 2001 article in the Northeast Mississippi Daily Journal.86 This article states, in pertinent part: Corinth — Flash Flood Part II might well be the name of Thursday’s weather bashing in Corinth and Alcorn County. It was a repeat of what some called a 100-year flood recorded about six weeks ago. The chief estimated that 10 inches of rain fell within a 24-hour period. Last month, the same area was inundated by what [Corinth Police Chief Fred Johnson] called a 100-year flood. “This time, we may have had a 200-year flood,” he said, only halfjokingly....87 The May 2, 2010 flood was not, as evidenced by the above-referenced news article, an unprecedented flooding event for Corinth, Mississippi. In fact, the article noted that prior to the November 30, 2001 “200-year flood,” the city of Corinth experienced a similar flood a mere six weeks earlier.88 Mr. Sandy, the author of the article and the commissioner of the Elam Creek Drainage District, was identified by Kmart as a potential witness with knowledge of the history of flooding in and around the City of Corinth. But the Defendants did not bother to depose Mr. Sandy regarding the history of flooding in Corinth.

See Bridge, Philips, Elam Drainage District News, dated September 26, 2010, attached as Exhibit I to Kmart’s Response to KCSR’s Motion for Summary Judgment at 6. 87

Id.

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KCSR relies on City of Pascagoula v. Rayburn89 to argue that it is not liable to Kmart because the May 2, 2010 storm was an unprecedented and unforeseeable event. But unlike in Rayburn, KCSR could have reasonably foreseen that its failure to maintain the underpass would contribute to flood damage at neighboring properties during a storm such as the one that occurred on May 2, 2010. In Rayburn, the plaintiff brought suit against the City of Pascagoula to recover for damages incurred to their home for the alleged negligence of the City to properly maintain a drainage ditch near their home.90 The Mississippi Supreme Court reversed the trial court’s verdict for the plaintiff, finding that the city was not liable for damages that resulted from an unprecedented rain event. The court took note that the city’s expert, “made a study relative to the records of rainfall in the City of Pascagoula and found no record of a rainfall as heavy as the one in this two hour period. Based upon his experience and these records, he was of the opinion that the expectancy of such a rainfall in a two hour period would be in excess of 100 years.”91 The court was also persuaded by testimony of witnesses that stated they had never seen as heavy of a rainfall in Pascagoula.92 The court held that the city was “ required to make provisions for and guard against such floods as may be reasonably expected. This expectancy is to be judged from such floods as have previously occurred.”93 As stated by the Rayburn court, KCSR had a duty to guard against floods that were reasonably expected, which expectance should be judged by floods that previously occurred in the

320 So. 2d 378 (Miss. 1975).

Id. at 379.

Id. at 381.

Id. Id.

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area. Here, unlike in Rayburn, the May 2, 2010 flood was not an unprecedented event because, as discussed, the City of Corinth experienced similar “100-year” flood events in years past. KCSR had a duty to guard against the May 2, 2010 flood, and breached that duty by failing to keep its railroad underpass free from debris prior to the flood event, which contributed to Kmart’s flood damages. Further, the act of God defense does not apply because Kmart’s damage is not attributable solely to the May 2, 2010, but resulted from the KCSR’s failure to keep the railroad underpass free from debris. In City of Jackson v. Brummett,94 the plaintiff’s private plane was parked at the city’s airport. The City agreed to provide a parking space and tie-down service for the plane. One day, “with very little warning, the wind velocity increased from 7 mph to 45 mph, and, ... at the airport, there were wind gusts up to 65 miles per hour.”95 There was disputed evidence regarding whether the ropes to tie the plane down were rotten.96 The plane blew over in the wind and was damaged. The City argued the sole cause was an act of God in the form of “a sudden, extraordinary and unprecedented wind.”97 The court affirmed the verdict for the plaintiff because there was evidence that the damage to the plane was not due exclusively to natural causes and that the damage could

80 So. 2d 827 (Miss. 1955).

Id. at 828.

Id.

Id. at 829.

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have been prevented by the exercise of reasonable care and foresight by the City to provide adequate ropes to tie the plane down.98 Thus, the court found the defendant was not entitled to judgment as a matter of law on the act of God defense.99 In Biloxi Yacht Club Inc. v. Grand Casinos of Mississippi Inc.-Biloxi,100 the plaintiff’s property was damaged when the defendant’s barge broke free during Hurricane Katrina and became dislodged form its moorings, striking the plaintiff’s property.101 The plaintiff brought an action for negligence against the defendant.102 The defendant argued that it was entitled to an act of God defense because Hurricane Katrina was an unprecedented storm.103 The plaintiff responded that the defense was not available because the defendant was negligent in failing to adequately secure the barge and that negligence contributed to the plaintiff’s loss.104 The court held that the defendant was not entitled to judgment in its favor based on the act of God defense because there remained disputes of fact as to whether the defendant was negligent and whether that negligence contributed to the plaintiff’s loss.105 Similarly, KCSR is not entitled to summary judgment based on its act of God defense because there are disputed issues of fact as to whether KCSR was negligent in its

Id.

100

2009 WL 801635 (S.D. Miss. 2009).

101

Id. at *1.

102

Id.

103

Id. at *4.

104

Id.

105

Id. at *5.

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maintenance of the railroad underpass, whether the flooding could have been otherwise prevented had KCSR acted with due care, and whether KCSR’s negligence contributed to Kmart’s damages. KCSR contends that it is not liable to Kmart because, as in Rayburn, it presented evidence that it had procedures in place to inspect the underpass and to clear any debris found during those inspections. KCSR’s inspection procedures to do not absolve it from liability because Kmart has presented evidence that there was debris in the underpass prior to the May 2, 2010 flood event and that the debris contributed to the flooding at Kmart’s store. KCSR’s corporate representative testified that the last time KCSR inspected the railroad bridge over Elam Creek prior to the flood event was in January 2010.106 Thus, there were four months between the time of the inspection and the flood event in which debris could have collected under the railroad bridge. Whether there was debris in the underpass prior to the storm is an issue of fact as Kmart has presented the testimony of Mr. Krewson, who opined that the debris was present prior to the flood event. Despite KCSR’s reliance on its inspection procedures, KCSR cannot conclusively show that there was no debris in the underpass prior to the storm. Summary judgment is, therefore, inappropriate. III. Conclusion Kmart has demonstrated that genuine issues of material fact exist regarding whether KCSR breached a duty to Kmart when it failed to keep its railroad underpass free from obstruction. Moreover, there are contested issues of fact over whether the debris field contributed to the flood damage at Kmart store. Summary judgment is, therefore, improper and KCSR’s motion should be denied.

106

See Deposition of Michael Schmidt, attached as Exhibit J to Kmart’s Response to KCSR’s Motion for Summary Judgment at p. 75, ll. 19-23.

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This the 30th day of October, 2013.

Respectfully submitted, /s/ Ryan O. Luminais ____________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION

CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 30th day of October, 2013. /s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS