On July 9, 2009, Plaintiff Richard Yoos ("Plaintiff" or "Yoos") and Plaintiff Judy Yoos (collectively, "Plaintiffs") commenced this diversity action against Defendants Better Life Technology, Inc. ("Defendant" or "Better Life"), Canadian Pacific Railway ("Defendant Canadian Pacific"), and Norfolk Southern Railway ("Defendant Norfolk Southern") (collectively, "Defendants"), alleging negligence against Better Life, and negligence and gross negligence against each of the other Defendants.*fn1 Dkt. No. 1 ("Complaint"). Presently before the Court is a Motion for summary judgment filed by Better Life on May 13, 2011. Dkt. No. 42 ("Motion"). Plaintiff opposes the Motion. Dkt. No. 49 ("Opposition"). For the reasons stated below, Better Life's Motion is denied.
In September 2008, Yoos was a truck driver employed by J.B. Hunt Trucking, Inc. ("J.B. Hunt"). Compl. ¶ 5; Pl.'s Dep. Tr. (Dkt. No. 42-7)20:10-16, 23:16-23. Better Life is a producer and supplier of vinyl flooring that is authorized to do business in the state of New York and has its corporate address in Lenexa, Kansas. Compl. ¶ 2; Answer ¶ 3. Better Life contracts with several vendors who sell the product that is manufactured and produced at Better Life's facility in Emporia, Kansas. Defendant's Statement of material facts (Dkt. No. 42-14) ("DSMF") ¶ 2. One of these vendors, Costco Wholesale Corporation ("Costco"), placed an order from Better Life for twenty pallets of heavy-duty polyvinyl garage floor covering that weighed approximately 43,600 pounds. Id. ¶ 4. Costco then hired J.B. Hunt to transport its order from the Emporia facility to a destination in Canada. Id. ¶ 13.
According to Richard Evans ("Evans"), a plant manager at the Emporia facility, when loading a trailer for shipment Better Life's employees advise the truck drivers as to Better Life's "recommended way of loading" the cargo so that its weight is evenly distributed along the axles, and the driver decides whether to follow their recommended procedures or not. Richard Evans Dep. Tr. (Dkt. No. 42-9) ("Evans Dep. Tr.") 40:9-12, 54:3-5. However, Better Life employees are responsible for physically loading the cargo into the trailer. Id. 40:13-14. According to Evans, a driver can refuse a load if Better Life does not load a container according to his or her preferences; at the same time, Evans testified that he may refuse, and on at least one occasion has refused, to load cargo when the driver insisted on a loading configuration that Evans believed would cause damage to Better Life's products.*fn2 Id. 72:6-73:10. Evans has also stated that, although he has never refused to load a vehicle when he believed a loading arrangement requested by a driver to be unsafe, he has recommended alternative loading specifications to drivers in such situations and the drivers usually follow his recommendations. Id. 76:3-13.
On or about September 12, 2008, pursuant to a contract between J.B. Hunt and Creel Trucking, Inc. ("Creel Trucking"), Jerry McCown ("McCown"), a driver for Creel Trucking, arrived at Better Life's Emporia facility to pick up Costco's order.*fn3 Compl. ¶ 7; Plaintiff's Statement of material facts (Dkt. No. 52) ("PSMF") ¶ 1.According to Evans, this cargo was loaded by Defendant onto the truck's container and sealed before being transported to a rail yard in the truck driven by McCown. Evans Dep. Tr. 40:13-17, 47:6--48:7, 59:20-24, 61:2-15. Although Evans does not specifically recall discussing the cargo at issue in this case with McCown, he reviewed the truck's "load sheet," which describes how a particular cargo's weight is distributed in a container, and testified that the loading configuration described on the sheet did not comport with Better Life's recommended procedure for loading such products in a trailer:
Q. Does that load sheet tell you how this particular trailer was loaded? A [Evans]. Yes.
Q. Is it loaded in some fashion other than Better Life Technologies' recommended way of loading the tractor? . . .
Q. Do you know why that was?
A. Because the driver wanted it loaded this way. . . . . . I know I was out there. I may have been the one that talked to him . . . .
Q. Do you remember talking to the driver about how the trailer was to be loaded?
A. No. I know we did because of the way it is loaded [according to the load sheet]. I mean, we talk to every driver.
Evans Dep. Tr. 50:22--52:20, 53:3-6; Def. Exh. H (Dkt. 42-11). Although Evans testified that he could not specifically recall meeting with McCown, he also later stated that he recalled advising McCown at one point that "it has been our experience that . . . this is the best way to load the particular product on the truck," but that he "didn't know if it would be unsafe" to load the cargo in the way that McCown preferred. Id. 74: 25--75:21. Evans also testified that he would have advised McCown to secure the ...