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Defendant's Attorney: Anastasia Wagner, David J. Schmitt

Description: Omaha, Nebraska pro se plaintiff, who fired all of her lawyers, sued Defendant on an auto negligence theory claiming to have been injured and/or damaged in a car wreck caused by the Union Pacific employee.


At 8:00 a.m. on March 6, 2018, Plaintiff departed Lincoln, Nebraska in her vehicle and headed westbound on Interstate 80 (“I-80”). (Filing No. 99-6.) At around 2:45 p.m., when she was located near Sidney, Nebraska, Plaintiff called 911 to ask for assistance in finding a gas station because she was running low on gas. (Filing Nos. 99-6, 99-7.) On Plaintiff's route, there were 29 exits on I-80 with gas stations. (Filing Nos. 99-6, 99-8.) Plaintiff testified during her deposition that she normally refuels her vehicle when the gas gauge is around one-half empty. (Filing No. 996.) Plaintiff stated that she began looking for a gas station approximately 30 minutes before she made the 911 call. (Filing No. 99-6.) At the time she made the call, Plaintiff had been driving for around 61/2 hours. (Filing No. 99-6.) Plaintiff's car was not out of gas at the time of the 911 call and it was running during her conversation with the dispatcher. (Filing Nos. 99-6, 99-7.) Plaintiff's vehicle was not experiencing any mechanical problems. (Filing Nos. 99-6, 99-7.)

While Plaintiff was on the phone with 911, Defendant's employee, Chris Klemme (“Mr. Klemme”), was driving one of Defendant's vehicles westbound in the driving lane of I-80. (Filing No. 99-5.) Mr. Klemme was traveling at the posted 75 mile per hour speed limit. (Filing No. 995.) It was a windy day with wind gusts exceeding 60 miles per hour. (Filing No. 99-5.) According to Mr. Klemme, semi-trucks were traveling around 60 to 65 miles per hour. (Filing No. 99-5.) As he was driving in the driving lane, Mr. Klemme approached a semi-truck also traveling in the driving lane of I-80 pulling two trailers. (Filing No. 99-5.) Mr. Klemme stated that because the semi-truck was traveling slower than he was, he intended to pass it. (Filing No. 99-5.) As Mr. Klemme prepared to pass, the semi-truck moved to the left-lane and Mr. Klemme struck the rear of Plaintiff's vehicle which was also in the driving lane of I-80.[2] (Filing Nos. 99-3, 99-5, 103-3.)

Following the collision, Mr. Klemme went to Plaintiff's vehicle and found her unresponsive. (Filing No. 99-5.) Mr. Klemme testified that the gearshift of Plaintiff's vehicle was in park at that time. (Filing No. 99-5.) Plaintiff testified during her deposition that she was not stopped on I-80 at the time of the collision. (Filing No. 99-6.) Plaintiff testified that she does not recall how fast she was driving at the time of the accident. (Filing No. 99-6.) Plaintiff has no recollection of the collision. (Filing No. 99-6.)

The moments just before the collision can be heard on the recording of the 911 call. (Filing No. 99-7.) On the recording, an unidentified male passerby can be heard speaking to Plaintiff. (Filing No. 99-7.) It is difficult to decipher what the passerby said to Plaintiff. (Filing No. 99-7.) Plaintiff told the passerby that she was calling 911 and the passerby left the area. (Filing No. 997.) The dispatcher then began to explain to Plaintiff where the nearest gas station was located. (Filing No. 99-7.) Plaintiff asked the dispatcher to send police to the scene because she was afraid her car might stop at any time. (Filing No. 99-7.) The dispatcher asked Plaintiff if she wanted a tow truck to bring her gas. (Filing No. 99-7.) Plaintiff responded that she would like that if possible because “once it's dead, then I cannot drive.” (Filing No. 99-7.) The dispatcher can then be heard asking Plaintiff if she was stopped alongside the road and Plaintiff stated, “Uh, I'll do it now.” (Filing No. 99-7.) A couple seconds later, what appears to be a car horn can faintly be heard in the distance and then sounds of impact. (Filing No. 99-7.) Around 12 seconds passed from the time Plaintiff told the dispatcher that she would move her vehicle to the side of the road to the time of the collision. (Filing No. 99-7.) Approximately 2 minutes elapsed from the time the 911 call began to the time of impact. (Filing No. 99-7.)

Defendant's expert witness, Adam Michener, issued a report stating that the black box recorder data from Mr. Klemme's truck showed that Mr. Klemme was traveling at 75 miles per hour from approximately 2.5 to 1 second prior to impact and that the brakes were applied at approximately 1 to .5 seconds prior to impact. (Filing No. 99-8.) It also showed that Mr. Klemme's vehicle slowed to 59 miles per hour at approximately .5 seconds prior to impact. (Filing No. 99-8.) No data was recoverable from Plaintiff's vehicle. (Filing No. 99-8.)

Plaintiff filed her Complaint in this case on November 22, 2019, alleging the accident was caused by Mr. Klemme's negligence in (1) operating his vehicle too fast for the conditions; (2) failing to yield the right of way; (3) failing to keep his vehicle under proper control; (4) failing to maintain a proper look-out; and (5) following too closely. (Filing No. 1.) Defendant filed its Answer on December 19, 2019, denying that Mr. Klemme was negligent and affirmatively alleging that any loss sustained by Plaintiff was due to her contributory negligence. (Filing No. 6.)

SUMMARY JUDGMENT STANDARD

“Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016). “The movant bears the initial responsibility of informing the district court of the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (quotation omitted). If the movant does so, “the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial.” Id.

“On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Id. The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. “In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit.” Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (quotation omitted). “The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could reasonably find for the nonmovant.” Barber v. C1 Truck DriverTraining, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011) (quotation omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Torgerson, 643 F.3d at 1042 (quotation omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Id.
Jing Xiong v. Union Pac. R.R. Co. (D. Neb. 2022)

Outcome: Motion for summary judgment denied.

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