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GRESSER v. UNION PACIFIC R. CO.

January 22, 2001

SCOTT GRESSER, PLAINTIFF,
v.
UNION PACIFIC RAILROAD CO., DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

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.

Factual Background

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 reads:

Q. Okay. Can you put an X on this photograph where you tripped?
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
A. Yes.
Q. All right. And is that the only thing that caused you to trip, that lip right there?
A. I believe so, yes.

(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 ...

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