United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge.
the Court is Defendant Clifton Stafford's Motion for
Summary Judgment. (ECF No. 16). Plaintiff Jay Ragan filed a
response. (ECF No. 19). Defendant filed a reply. (ECF No.
27). Plaintiff filed a sur-reply. (ECF No. 30). The Court
finds the matter ripe for consideration.
morning of April 22, 2016, Plaintiff's vehicle struck a
black cow in the roadway on Arkansas Highway 24, between
DeQueen, Arkansas, and Horatio, Arkansas. It is undisputed
that the cow belonged to Defendant and was pastured and
fenced with other cattle on Defendant's nearby land. The
cow escaped the pasture after breaking the top strand of a
barbed-wire fence and pushing over a four-foot section of the
fence. Following the accident, Plaintiff traveled by
ambulance to the DeQueen Regional Medical Center. Soon after,
Defendant repaired the broken section of fence by fixing and
tightening the broken barbed-wire strand, putting in two new
posts, and pulling up the rest of the knocked-over section of
October 14, 2016, Plaintiff filed this lawsuit, alleging that
he suffered personal injury and damages as a result of,
inter alia, Defendant's negligent failure to
have, maintain, inspect, and repair safe fencing in order to
keep his cattle enclosed and off the nearby state highway. On
October 25, 2016, Defendant filed an answer to the complaint.
In November 2016, Defendant used a backhoe to remove the
entire fence around his land and replaced it with a new
fence. Defendant discarded the original, removed fence.
February 22, 2017, the parties filed their joint Rule 26(f)
report, which contained no reference to Defendant removing
the original fence. On July 6, 2017, Defendant answered
certain interrogatories inquiring about repairs and
replacements to the fence by stating that he decided to
replace the fence because it was “older.” (ECF
No. 21-3). On July 19, 2017, Defendant testified in his
deposition that he took the old fence down and built a new
fence on his land.
August 9, 2017, Defendant filed a motion for summary
judgment, arguing that the Court should grant summary
judgment in his favor because Plaintiff has not presented any
evidence that Defendant breached any duty of care with
respect to the kind and quality of fence enclosing
Defendant's property. On August 23, 2017, Plaintiff filed
a motion for sanctions, arguing that Defendant committed
spoliation of evidence by removing and disposing of the fence
at issue. On October 20, 2017, the Court granted in part and
denied in part Plaintiff's motion for sanctions and held
in part that it would instruct the jury that it may find that
the disposed-of section of fence at issue was favorable to
Plaintiff and unfavorable to Defendant.
standard for summary judgment is well established. When a
party moves for summary judgment, “[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Krenik v. County of LeSueur, 47 F.3d 953, 957
(8th Cir. 1995). This is a “threshold inquiry of . . .
whether there is a need for trial-whether, in other words,
there are genuine factual issues that properly can be
resolved only by a finder of fact because they reasonably may
be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is
material only when its resolution affects the outcome of the
case. Id. at 248. A dispute is genuine if the
evidence is such that it could cause a reasonable jury to
return a verdict for either party. Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enterprise Bank v. Magna Bank,
92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must
then demonstrate the existence of specific facts in the
record that create a genuine issue for trial.
Krenik, 47 F.3d at 957. However, a party opposing a
properly supported summary judgment motion “may not
rest upon mere allegations or denials . . . but must set
forth specific facts showing that there is a genuine issue
for trial.” Id. at 256.
argues that the Court should grant summary judgment in his
favor because Plaintiff has not and cannot offer evidence
that Defendant “breached a duty with respect to the
kind and quality of the fence enclosing the cow, or that any
act or omission by [Defendant] proximately caused the cow to
escape the enclosure.” (ECF No. 17). Defendant argues
that the fact that the cow was on the highway does not
establish liability, and that Plaintiff must put forth
evidence of negligence. Defendant argues further that
Plaintiff's deposition testimony shows that Plaintiff had
no personal knowledge as to whether the condition of the
fence allowed the cow to escape. Defendant concludes that,
because Plaintiff failed to present evidence as to negligence
and causation, there is no genuine issue of material fact and
Defendant is entitled to judgment as a matter of law.
responds that he has presented sufficient evidence to create
a genuine issue of material fact. Specifically, Plaintiff
states that the evidence in this case shows that Defendant
was aware that the fence was over fifty years old, that it
was not made of new materials, and that he had knowledge of
the disrepair and failure of the fence because he had already
repaired certain sections of the fence in the months prior to
Court finds that a genuine issue of material fact exists in
this case. In the Court's order granting in part and
denying in part Plaintiff's motion for sanctions, the
Court found that Defendant committed spoliation of evidence
when he removed and discarded the relevant section of the
fence after the commencement of litigation and prior to the
initiation of discovery in this matter. The Court also stated
that, subject to a reasonable rebuttal by Defendant, the
Court would instruct the jury that it may find that the
disposed-of section of fence at issue was favorable to
Plaintiff and unfavorable to Defendant. In light of this
adverse instruction, the Court finds that a ...