The opinion of the court was delivered by: Mihm, District Judge.
This matter is before the Court on Defendant, Union Pacific Railroad
Company's ("Union Pacific"), Motion for Summary Judgment. For the reasons
stated herein, the Motion is GRANTED.
Jurisdiction and Applicable Law
This action was properly removed from the Circuit Court of McLean
County, Illinois, under 28 U.S.C. § 1441, et seq. This Court has
original jurisdiction on the basis of diversity pursuant to
28 U.S.C. § 1332 (a). Plaintiff, Scott Gresser ("Gresser"), was at
the time of filing and, is now, a citizen of Michigan. Union Pacific was
at the time of filing and, is now, incorporated under the laws of
Delaware with its principal place of business in Omaha, Nebraska. Gresser
seeks judgment against Union Pacific in an amount in excess of $75,000,
exclusive of interest and costs. This action arose from injuries Gresser
suffered in Bloomington-Normal, Illinois, from Union Pacific's alleged
negligent maintenance of a railroad crosswalk. Therefore, under Erie R.
Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its
progeny, this Court is required to apply the substantive law of Illinois.
This Court must first address those facts which are disputed between
the parties. Throughout this litigation, the parties appeared to agree
that Gresser's position was that he tripped and fell on the lip of the
crosswalk, the lip being created by the asphalt overlay meeting the
concrete crosswalk. On October 27, 2000, this Court held a hearing to
address concerns over presser's response to Union Pacific's Statement of
Undisputed Facts. Specifically, Union Pacific stated that, "Union
Pacific's expert, August Domel, Ph.D., has taken measurements of the lip
and determined that, at its highest point, the lip does not exceed
five-eighths (5/8) of an inch in height." (Def.Stat. of Undisputed
Facts, ¶ 36). Gresser responded by stating, "Plaintiff admits that
Defendant's expert has taken measurements and made certain
representations regarding said measurements. Plaintiff further asserts
that such expert is subject to cross-examination regarding his techniques
and his conclusions." (Plt.Response, ¶ 36).
It was not clear to this Court whether Gresser was admitting or denying
the statement. Further, the Court was concerned that Gresser had taken
the position that he could wait until trial to present facts which show
there is a genuine issue of material fact. Gresser explained during the
hearing that he was not disputing the measurement. However, he injected
that it was not only the lip which caused him to trip, but all the
defective conditions in the crosswalk, including a crack in the crosswalk
and the abutting concrete slab east of the asphalt. This Court allowed
the parties to submit supplemental briefs on the issue of what caused
Gresser to trip. Gresser fails to direct this Court to any evidence other
than evidence that he tripped on the lip. His own deposition testimony
supports such a finding. The relevant portions of Gresser's deposition
Q. Okay. Can you put an X on this photograph where
A. All's (sic) I know it was this general area
here, but specifically which spot I don't know.
Q. Okay. Can you circle the general area where you
fell. All right.
Now you've just circled the area and it runs from
one side of the sidewalk to the other of a lip
that's created by the asphalt, is that correct?*fn1
Q. All right. And is that the only thing that caused
you to trip, that lip right there?
(Dep. of Scott Gresser, p. 53).
Q. So as you sit here today you can't tell me that
that (sic) asphalt lip is what caused you to fall,
can you? Mr. O'Hara: Objection —
A. Yes, I can tell you that.
Mr. O'Hara: Wait a minute, that's argumentative. He
concluded that he tripped there because that's where
he tripped. He's entitled to that conclusion. The