United States District Court, C.D. Illinois, Urbana Division
Decided March 18, 2014
For Scott Kibler, Tina Kibler, Plaintiffs: David V Dorris, LEAD ATTORNEY, DORRIS LAW FIRM PC, Bloomington, IL.
For USA, doing business as Army Corps of Engineers, Defendant: David H Hoff, LEAD ATTORNEY, U.S. ATTY, Urbana, IL.
HAROLD A. BAKER, U.S. DISTRICT JUDGE.
Plaintiffs, Scott and Tina Kibler, filed this Complaint (#1) pursuant to the Federal Tort Claims Act (28 U.S.C. § 2671, et seq.) alleging negligence and wanton and willful conduct on the part of Defendant, United States of America d/b/a the Army Corps of Engineers, for injuries sustained by Plaintiffs. Defendant filed a Motion for Summary Judgment (#36) on September 30, 2013, arguing that judgment should be entered in its favor based on sovereign immunity under the Flood Control Act of 1928 (33 U.S.C. § 702c) and the discretionary function exception to the Federal Tort Claims Act liability afforded by 28 U.S.C. § 2680(a). Plaintiffs filed their Response (#58) on October 21, 2013, and Defendant filed its Reply (#59) on November 1, 2013. For the following reasons, Defendant's Motion for Summary Judgment (#36) is GRANTED.
This case concerns an incident that occurred at Lake Shelbyville in Moultrie County, Illinois, at approximately 3 p.m. on July 19, 2009. Plaintiff Scott Kibler and his family went to Lake Shelbyville to go boating. Plaintiffs proceeded to the F.W. " Bo" Woods boat dock at Lake Shelbyville that was owned, operated, and maintained by Defendant. Plaintiffs had
to use the open high water boat ramp to launch their boat onto Lake Shelbyville. After launching the boat, Plaintiff Scott Kibler then attempted to walk down the low water boat ramp to swim over to his boat. Scott stepped onto the low water boat ramp and slipped on the slick ramp, apparently striking his head. Plaintiff Tina Kibler, Scott's wife, motored their boat over to the low boat ramp and saw Scott unconscious on the ramp, with his face below the water line. Scott was eventually rescued and pulled out of the water. Plaintiffs filed suit against Defendant alleging negligence and wanton and willful conduct.
Defendant's List of Statement of Undisputed Material Facts and Plaintiff's Objections Before reciting the factual background of this case, the court must first address which facts are qualified to be " undisputed material facts" suitable for consideration on summary judgment. Defendant's Motion for Summary Judgment contained 201 " undisputed material facts." Each fact was accompanied by extensive citation to the record, whether it be Plaintiff's deposition, the declarations of various employees of the U.S. Army Corps of Engineers, or Army Corps of Engineers policy manuals. In Plaintiffs' Response, Plaintiffs admitted that the following facts from Defendant's list qualify as undisputed material facts: 1-5, 9-22, 23-27, 29, 32, 34-45, 52-58, 61, 71, 72, 75, 78, 79, 81, 82, 88-91, 100-118, 120-125, 127, 130, 136-143, 145-147, 149-151, 153-156, 183-185, 188-191, 194, and 199. These facts are deemed admissible and will be considered for summary judgment purposes. Plaintiffs objected to the remaining facts. Plaintiffs disputed some of the objected-to facts and believed others were immaterial. The court must now determine whether those objected-to facts should be admissible at summary judgment.
Local Rule 7.1(D)(1)(b) of the Central District of Illinois states that a motion for summary judgment must include a section labeled " material facts claimed to be undisputed," and that the movant must
" List and number each undisputed material fact which is the basis for the motion for summary judgment. Include as exhibits to the motion all relevant documentary evidence. For each fact asserted, provide citations to the documentary evidence that supports it, appropriately referencing the exhibit and page.
A WORD OF CAUTION: Material facts are only those facts which bear directly on the legal issue raised by the motion." Local Rule 7.1(D)(1)(b)."
The proper form for responding to the movant's statement of undisputed material facts is similarly spelled out in detail:
" Response to Undisputed Material Facts:
In separate subsections state the following:
(1) Undisputed material facts:
List by number each fact from Section B of the motion for summary judgment which is conceded to be undisputed and material.
(2) Disputed Material Facts:
List by number each fact from Section B of the motion for summary judgment which is conceded to be material but claimed to be disputed. Each claim of disputed fact must be supported by evidentiary
documentation referenced by specific page. Include as exhibits all cited documentary evidence not already submitted by movant.
(3) Disputed Immaterial Facts:
List by number each fact from Section B of the motion for summary judgment which is claimed to be both immaterial and disputed. State the reason the fact is immaterial. Support the claim that the fact is disputed with evidentiary documentation referenced by specific page. Include as exhibits all cited documentary evidence not already submitted by the movant.
(4) Undisputed Immaterial Facts:
List by number each fact from Section B of the motion for summary judgment which is undisputed but is claimed to be immaterial. State the reason the fact is immaterial.
(5) Additional Material Facts:
List and number each additional material fact raised in opposition to the motion for summary judgment. Each additional fact must be supported by evidentiary documentation referenced by specific page. Include as exhibits all relevant documentary evidence not already submitted by the movant.
(6) A failure to respond to any numbered fact will be deemed an admission of the fact." Local Rule 7.1(D)(2)(b).
A party responding and disputing the movant's statement of undisputed material facts must support its own factual allegations with citation to evidence in the record. Factual allegations not supported by the record are nullities. Malec v. Sanford, 191 F.R.D. 581, 583 (N.D.Ill. 2000). Naked denials are insufficient to controvert an adverse party's properly supported Local Rule 7.1(D)(1)(b) statement of undisputed material fact. See Robledo v. City of Chicago, 778 F.Supp.2d 887, 899 (N.D.Ill. 2011). The Seventh Circuit has held that local rules governing summary judgment statements of material fact are to be strictly applied, and any facts asserted by the movant and not contradicted by in the manner specified by the rule are deemed admitted. See Valenti v. Qualex, Inc., 970 F.2d 363, 368-69 (7th Cir. 1992) (emphasis added). Further, in reference to the Northern District of Illinois version of the local rule regarding responses to a movant's statement of undisputed material facts on summary judgment, a " responsive statement that is a flat denial, without reference to supporting materials, or with incorrect or improper references, and containing irrelevant additional facts, has no standing under [the local rule]." Valenti, 970 F.2d at 369.
Responses must also be specific. " Conclusory allegations by the party opposing the motion cannot defeat the motion[,]" rather " [t]he party opposing the motion must come forward with evidence of a genuine factual dispute." Hedberg v. Indiana Bell Telephone Company, 47 F.3d 928, 931 (7th Cir. 1995). Further, unsupported speculation does not meet a party's burden of providing some defense to a summary judgment motion. Hedberg, 47 F.3d at 931-32. " Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is the primary goal of summary judgment." Hedberg, 47 F.3d at 932 (emphasis in original). At summary judgment " saying so doesn't make it so[,]" but rather " summary judgment may only be defeated by pointing to admissible evidence in the summary judgment record that creates a genuine issue of material fact[.]" United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010).
Here, the vast majority of Plaintiffs' responses to Defendant's statement of undisputed material fact are inadequate under the local rule and Seventh Circuit case law.
The court will address specifically the facts disputed by Plaintiffs.
Facts 6, 7, 30, 33, 126, 129, 131, 133, 134, 135, 197
These facts are material facts that Plaintiffs have disputed. Plaintiff disputes these facts because, for the most part, they concern Defendant's contentions that the low boat ramp at Bo Wood was closed to the public at the time of Scott's accident and that the closure was amply indicated to the public via warning signs, barricades, and caution tape. Plaintiffs dispute this assertion by citing to Scott Kibler's deposition in the record, where Scott denies that the warning signs and barricades were present at the time of his accident. Plaintiffs also dispute Defendant's assertion that Scott entered the water, citing to Scott's deposition testimony that he approached the water with the intent of going in, but had no recollection from that point forward. Plaintiffs' dispute of these material facts is supported with citation to Scott Kibler's deposition testimony. Therefore, to the extent the court considers Defendant's statement of those facts, the court will also consider Plaintiffs' objections and Scott's testimony.
Facts 28, 31, 46, 47-51, 59, 60, 74, 76-77, 80, 160
These undisputed material facts listed by Defendant are objected to by Plaintiff, but the objections contain no reference to documentary evidence from the record. For example, in response to Defendant's claim that " [a]ll water in Lake Shelbyville above elevation 599.70' is exclusively flood water retained in Lake Shelbyville for flood control purposes," supported by a citation to the Declaration of hydraulic engineer and occasional Acting Chief of Water Control Operations for the St. Louis District of the Mississippi Valley Division of the U.S. Army Corps of Engineers Russell Errett (Defendant's Exhibit 3), Plaintiffs simply respond in objection:
" [t]he factual statement that all water above a certain elevation is 'exclusively flood water' is not accurate. It is not possible to determine what water in a lake is flood water versus non-flood water. An accurate factual statement is that the lake is considered to be at flood stage when its elevation is above 599.70'."
Plaintiffs do not cite to evidentiary documentation referenced by specific page to refute the statement in Errett's declaration. A further example is Defendant's fact 46, which states " [e]xcept for the high flood water in Lake Shelbyville exclusively for flood control purposes ***, this primary low water concrete boat ramp at Bo Wood would have been dry concrete on the afternoon of July 19, 2009, instead of being coated with flood water and the extremely slick natural coating of that concrete boat ramp caused by the fluctuating flood water levels on that boat ramp." This fact is supported with ...