AFFILIATED FM INSURANCE CO., Plaintiff, v. LTK CONSULTING SERVICES, INC., Defendant.
CASE NO. C06-1750JLR
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
April 16, 2014
JAMES L. ROBART
I. INTRODUCTION
Before the court is Defendant LTK Consulting Services, Inc.’s (“LTK”) motion for summary judgment (Dkt. # 172). Two of the arguments LTK raises in its present motion are variations of arguments that LTK has previously raised, including that (1) the factual allegations in that Plaintiff Affiliated FM Insurance Co.’s (“AFM”) complaint are false, and (2) AFM’s claims are barred by the statue of limitations,. (Compare Mot. (Dkt. # 172) with 5/1/12 Mot. (Dkt. # 80).) The remaining arguments LTK raises on summary
II. BACKGROUND
This action arises out of a fire that occurred on May 31, 2004, that damaged the Blue and Red Trains of the Seattle Monorail as the Blue Train was leaving the Seattle Center Station. (See Not. of Rem. (Dkt. # 1) at 7-11 (Compl. ¶¶ 1.1, 3.2).) Plaintiff Affiliated FM Insurance Company (“AFM”) paid its insured, Seattle Monorail System (“SMS”), $3,267,861.00 for damages resulting from the fire. (Id. ¶ 5.1.) AFM, as the equitable and contractual subrogee of SMS, brings this action against LTK, which provided certain engineer services related to the Monorail, to recover damages associated with the May 31, 2004, fire. (Id.) In its complaint, AFM alleges:
In 2001, the City of Seattle contracted with . . . LTK . . . to refurbish the [SMS]. As part of this refurbishment, LTK . . . recommended that the grounding system for the Blue and Red Trains that made up the [SMS] be changed. This change to the grounding system for the Blue and Red Trains was completed in 2002.
(Id. ¶ 3.1.) AFM further alleges that “[t]he electrical ground fault responsible for causing the fire in the Blue Train on May 31, 2004 would have been avoided if the electrical
AFM provides evidence that the original 1961 design of the Monorail employed a “floating” grounding system, which is a system in which the ground is not actually connected to the earth or another circuit ground. (5/21/12 Way Decl. (Dkt. # 95) ¶¶ 3, 6.) Because car bodies of the Monorail were “floating” or electrically isolated, the metal car bodies did not carry current. (Id. ¶ 6.)
During the course of discovery in this action, AFM responded to a contention interrogatory from LTK by indicating that the City of Seattle had contracted with LTK in 1997 to provide engineering services related to the SMS. (See 3/30/12 Wahtola Decl. (Dkt. # 52, 62) ¶ 25, Ex. 5 (attaching AFM’s Ans. to Int. No. 4).) In addition, despite the allegations in its complaint that LTK recommended changing the Monorail’s grounding system in 2002, AFM stated in its discovery response and elsewhere that it was during the course of this earlier project in 1997 or 1998 that LTK initially redesigned the Monorail’s grounding system from a floating to a “body ground to negative rail” grounding system, also known as a “grounded” or “bonded” grounding system. (See id. ¶ 25, Ex. 5; 5/21/12 Way Decl. ¶ 7(c).)
Part of the evidence at issue arises out of the 2005 insurance coverage suit between AFM and SMS. The insurance coverage lawsuit arose out of a dispute over certain costs SMS claimed were related to the fire and covered by its insurance through AFM. (See id. ¶ 18.) During the course of the coverage suit, counsel for AFM deposed
LTK points out that AFM filed the present complaint within approximately one year of Mr. Barney’s deposition in the insurance coverage lawsuit. (Mot. at 3.) LTK emphasizes that the sole basis for AFM’s claim against LTK is the allegation that LTK recommended changing the grounding system for the Blue Train pursuant to LTK’s 2001 contract to refurbish the Monorail and that the fire would not have occurred if LTK’s recommended “change” to the grounding system had not been implemented in 2002. (Id. (citing Compl. ¶¶ 3.1, 3.3, 4.2).) LTK complains that the allegations in the complaint are contrary to the testimony of Mr. Barney in both the underlying insurance coverage lawsuit referenced above and more recently in the present lawsuit that LTK did not recommend a change in the Monorail’s grounding system in 2002. (Mot. at 3-4 (citing 4/20/12 Wahtola Decl. (Dkt. # 76) Ex. 1 (attaching 4/10/12 Barney Dep. at 59:19-60:25; 196:1-197:3 (explaining that the Monorail’s grounding system could not have been
In late 1998 or early 1999, Mr. Barney became aware that members of the SMS maintenance staff were experiencing electrical shocks while working on the Monorail and there had been instances of electrical “arcing” occurring between the vehicle car body and the station. (Id. at 80:6-82:25; 126:9-127:11.) As a result of these events, Mr. Barney began investigating why the shocks and electrical arcing were occurring. (Id.) As a result of the investigation, Mr. Barney learned as early as March 2000 that the electrical grounding system for the Monorail was “grounded” or “bonded” rather than “floating.” (Id.)
SMS was required to “maintain” and “repair” the Monorail pursuant to its Concession Agreement with the City of Seattle. (See id. at 40:15-41:18, 92:19-93:5.) On October 6, 2000, LTK issued a proposal to the City of Seattle to provide services in connection with a Monorail renovation project that included a survey of the Monorail vehicles to document the existing grounding system. (Id. at 49:10-51:11.) SMS was to provide the funds to pay for LTK’s services. (Id. at 47:22-51:11.) The City accepted LTK’s proposal. (See 5/1/12 Wahtola Decl. Ex. 3.) Mr. Barney, however, voiced concerns about whether the work LTK proposed to perform was appropriate to correct the problems previously identified by SMS relating to the electrical grounding systems. (4/20/12 Wahtola Decl. Ex. 1 (attaching 4/10/12 Barney Dep. at 52:7-54:7).)
On June 29, 2001, the Blue Train lost power after experiencing an incident of electrical “arcing.” (Id. at 91:4-93:5.) In addition, the Blue Train suffered property
On August 31, 2001, LTK issued a draft copy of its “Grounding and High Voltage Auxiliary Survey” to Mr. Barney. (4/20/12 Wahtola Decl. Ex. 1 (attaching 4/10/12 Barney Dep. at 94:8 – 95:19).) In the survey, LTK specifically states that it is not recommending that the existing bonded grounding system be returned to the original floating design. (See 5/1/12 Wahtola Decl. Ex. 8 at 3 (“We are not recommending the reinstallation of the original grounding system.”).) AFM asserts that LTK documented the 1997 change in the Monorail’s grounding system in this survey without expressly acknowledging LTK’s role in the 1997 design change. (See 3/30/12 Wahtola Decl. ¶ 25, Ex. 5.) Instead, LTK recommended replacing the multiple points of connection in which the Monorail car bodies were bonded to the high voltage negative return systems with a “single point of contact.” (5/1/12 Wahtola Decl. Ex. 8 at 3; see id. Ex. 10.) LTK rerouted all of the grounding connections on the Monorail, and reorganized the grounding system, so that all of the grounded connections were run through a newly designed terminal board. (Way Decl. (Dkt. # 95) ¶ 10.) This reorganization retained the bonded grounding system, which LTK redesigned from its original configuration in 1998. (Id.) Thus, although LTK apparently reorganized the grounding system in 2001, the
On March 10, 2002, Mr. Barney issued a letter to the City of Seattle objecting to the work performed by LTK relating to the electrical grounding system. (Id. at 109:22-112:13); 5/1/12 Wahtola Decl. Ex. 12.) In this letter, Mr. Barney refused to reimburse the City of Seattle for LTK’s services relating to the design of the electrical grounding system on the basis that SMS deemed such services to be “unacceptable.” (5/1/12 Wahtola Decl. Ex. 12.) Specifically, SMS objected to the fact that LTK failed to “incorporate recommended changes to the [grounding] system.” (Id.)
On June 25, 2002, Mr. Barney wrote a letter to Ms. Stephanie Van Dyke of the City of Seattle. (Id. Ex. 17.) In this letter, Mr. Barney stated that he did not believe that LTK’s services with respect to the Monorail’s grounding system were performed adequately. (4/20/12 Wahtola Decl. Ex. 1 (attaching 4/10/12 Barney Dep. at 140:25 – 141:23).) In particular, Mr. Barney explained that he did not believe that the bonded grounding system as designed by LTK would prevent electrical “arcing” from burning holes in the Monorail’s car bodies or prevent electrical shocks to passengers or SMS technicians. (See id. at 141:24-142:25; see also 5/1/12 Wahtola Decl. Ex. 17.) He also stated that he believed that LTK had “misrepresented” what its design for the Monorail grounding system would accomplish. (5/1/12 Wahtola Decl. Ex. 17 (“While LTK may have performed the specific requirements of the Task Force for this project, it should be
On July 15, 2002, Mr. Barney, representing SMS, attended a meeting convened by the City of Seattle for the specific purpose of discussing the Monorail’s grounding system as designed by LTK. (4/20/12 Wahtola Decl. Ex. 1 (attaching 4/10/12 Barney Dep. at 146:13-147:15).) At this meeting, Mr. Barney, on behalf of SMS, advocated for a floating grounding system, while representatives of LTK and another electrical engineering firm argued that the grounded or bonded system LTK had designed for the Monorail should remain. (Id. at 147:5-149:17; 152:22-153:4.) As a result of the meeting, the City of Seattle determined that the bonded grounding system designed by LTK would remain in place. (See id. at 156:18-157:16; 151:23-25.)
After the meeting on the same day, Mr. Barney issued a memorandum to the City of Seattle, entitled “Notice of Agreement Termination,” in which he stated that he was terminating SMS’s agreement to reimburse the City of Seattle for LTK’s services. (See 5/1/12 Wahtola Decl. Ex. 27; 4/20/12 Wahtola Decl. Ex. 1 (attaching 4/10/12 Barney Dep.) at 160:19-163:3).) Mr. Barney did not believe that SMS should be obligated to pay for services that it deemed unacceptable. (Id.) He also believed that he should not have to pay for LTK’s services because the grounding system it recommended posed a safety hazard to passengers and maintenance staff and would result in additional instances of electrical arcing causing property damage to vehicles. (Id.)
LTK contends, based on the facts recited above, that it is entitle to summary judgment on three grounds: (1) that the facts alleged in the complaint are false (Mot. at 14-19), (2) that AFM’s claims are barred by the statute of limitations (id. at 19-21), and (3) that SMS failed to mitigate its damages and assumed the risks relating to the Monorail grounding system (id. at 21-24). The court addressed each argument in turn.
III. ANALYSIS
A. Standards on Summary Judgment
Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where the moving party demonstrates (1) the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. See
If the moving party meets its burden of production, the burden shifts to the nonmoving party to designate specific facts demonstrating the existence of genuine issues for trial. Celotex, 477 U.S. at 324. The “mere existence of a scintilla of evidence in support of the plaintiff‘s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether the factfinder could reasonably find in the nonmoving party’s favor, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 150 (2000).
B. Adequacy of the Factual Allegations
LTK’s first argument for summary judgment is one that is familiar to the court. The gravamen of LTK’s argument can be summarized as follows: AFM alleged in its complaint that LTK negligently recommended changing the grounding system for the Monorail during the 2001/2002 timeframe (Compl. ¶¶ 3.1, 3.3, 4.2). The evidence produced during discovery, however, demonstrates that this allegation is incorrect. During discovery, the evidence revealed that (1) LTK initially changed in the Monorail’s grounding system from a “floating” to a “bonded” or “grounded” system in the
This is the fourth time that LTK has advanced this argument to the court. The court rejected the argument the first two times that LTK raised it in the context of discovery motions. (See 5/1/12 Order (Dkt. # 82) at 9-10; 5/25/12 Order (Dkt. # 96) at 9-10.) LTK raised the argument a third time in a previous motion for summary judgment. (2d SJ Mot. (Dkt. # 80) at 17-21.) The court opted not to rule on the issue in the context of LTK’s previous summary judgment motion because the court disposed of the motion on other grounds. (6/14/12 Order (Dkt. # 103) at 9-10.) Now, LTK has raised the issue for a fourth time in its present motion for summary judgment. To quote Yogi Berra: “It’s like déjà vu all over again.” This time, however, the court reaches the issue on summary judgment, and its twice-stated previous conclusion that the argument is not well stated endures.
LTK relies primarily on Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223 (9th Cir. 2000). Cline, however, is easily distinguishable. Cline involved a purported class action lawsuit in which the critical issue was whether the subject employee benefit plan qualified as an individual retirement
Unlike the plaintiffs in Cline, AFM has not contradicted the allegations in its complaint. It has alleged that the LTK recommended a change to the grounding system for the Blue and Red Trains. (Compl. ¶ 3.1.) It has also alleged that “[t]he electrical ground fault responsible for the fire in the Blue Train on May 31, 2004[,] would have been avoided if the electrical grounding system for the Blue Train had not been changed at the direction of LTK . . . .” (Id. ¶ 3.3.) As both AFM and this court has previously noted, the Ninth Circuit has characterized the salient allegations in AFM’s complaint as “alleg[ing] that the fire [on the Monorail] was a result of LTK’s negligent design.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 556 F.3d 920, 920 (9th Cir. 2009). The Washington Supreme Court characterized the gravamen of AFM’s complaint as “claiming that LTK was negligent in changing the electrical ground system for the Blue and Red Trains.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 243 P.3d 521, 524 (Wash. 2010). Unlike the plaintiffs in Cline, AFM has not abandoned this fundamental allegation concerning LTK’s negligence nor contradicted it.
In any event, LTK’s argument is inconsistent with modern pleading practice. Prior to the modern era of notice pleading, “pleading requirements were strict and variances of proof were not generally tolerated.” See Health Care & Retirement Corp. of Am. v. St. Paul & Marine Ins. Co., 621 F. Supp. 155, 162 (S.D. W.Va. 1985). A complaint under modern rules, however, is required only to put the defendant on notice of a claim showing that the pleader is entitled to relief or to have “facial plausibilty.”
Even prior to the modern era of notice pleading, however, courts did not consider even large discrepancies in dates or timing to be fatal variances between pleading and
Most importantly, LTK has asserted no prejudice with respect to any discrepancies concerning timing or dates in AFM’s complaint (see generally Mot. at 14-19), nor can it. LTK has been aware of AFM’s refined theory of liability since at least December 2011, when AFM responded to LTK’s interrogatories. (See 3/30/12 Wahtola Decl. ¶ 22, 25-26, Exs. 3, 5.) Thus, LTK has had ample opportunity to prepare with respect to AFM’s claims, including a period of time when discovery was reopened following remand from the Ninth Circuit Court of Appeals. (See Dkt. ## 150, 153, 167.)
Finally, in response to LTK’s motion, AFM presents an August 25, 2001, draft report, prepared by LTK’s engineers, which provides some evidence that LTK did recommend a change in the Monorail’s grounding system in the 2001/2002 timeframe. The draft report states, in part:
It is not entirely clear what the original intent was for the grounding system, but the current system is close to industry standard for vehicle grounding systems. There is a safety ground system which connects electrical equipment to the vehicle frame . . . . The high voltage and low voltage negative returns are floating, except for an intentional jumper between the
safety ground and the high voltage negative return . . . . This system should be improved on by replacing the present wire labeling; removing any unintended connections between safety ground, low voltage negative return, and high voltage negative return; and installing missing cables, particularly on the blue train. The original low voltage negative returns were labeled “LG” for low ground, and the high voltage negative returns were labeled “HG” for high ground. The LG cables were tied to the frame of the vehicle at many points. When the low voltage system was replaced, much of the LG wiring was left in place, and is now acting as the safety ground, bonding equipment to the frame of the vehicle. These cables should now be relabeled “SG” for safety ground. The high voltage negative return should be relabeled “HV-“, [sic] and the low voltage negative return should be relabeled “LV-“ [sic]. The safety ground, low voltage negative return, and the high voltage negative return should be bonded together at one location at the high voltage auxiliary panel.
(Pierson Decl. (Dkt. # 189) ¶ 3, Ex. A at ¶ 2.1).) AFM is correct that this evidence is sufficient to raise an issue of fact concerning whether LTK recommended a change to the Monorail’s grounding system in 2001/2002 timeframe (see Resp. at 12-13) as alleged in AFM’s complaint (see Compl. ¶¶ 3.1, 3.3, 4.2).4 This is so even though the final report
C. Statute of Limitations
LTK’s second ground for summary judgment is also a variation on LTK’s prior argument that AFM’s claim is barred by the statute of limitations. (Compare Mot. at 19-21 with 5/1/12 SJ Mot. (Dkt. # 80) at 21-24.) On June 14, 2012, the court granted LTK’s motion for summary judgment with respect to the statute of limitations. (See generally 6/14/12 Order (Dkt. # 102).) The court found that Mr. Barney knew all the salient facts necessary for SMS to assert a claim against LTK based on LTK’s alleged negligent redesign of the Monorail by at least July 15, 2002. (Id. at 13.) Specifically, the court
The Ninth Circuit reversed. The Ninth Circuit held that “[t]o the extent that [AFM] claims that the fire was caused by LTK’s alleged negligence in changing from a floating to a bonded grounding system in 1998, the district court correctly concluded that [AFM’s] claim is time-barred.” (9th Cir. Mem. Disp. at 3.) The Ninth Circuit noted, however, that AFM’s theory, at least in part, was that negligence occurred in the design and installation of the terminal board in 2001 and 2002 and that the redesign of the terminal board was the proximate cause of the 2004 fire. (Id.) LTK argued that at least one of the series of electrical events referenced above occurred after the terminal board installation and was sufficient to start to the limitations period running. (Id.) However, the Ninth Circuit held:
The record is unclear about the extent, significance, and cause of the alleged of the alleged post-installation incidents and, indeed, whether they actually occurred post-installation. Conflicting inferences may be drawn from the monorail manager’s correspondence and testimony about the events. . . . Given the disputed facts, and drawing inferences in favor of [AFM], we conclude that genuine issues of material fact exist precluding summary judgment.
This time around, following remand from the Ninth Circuit, LTK argues that the statute of limitations began to run on October 30, 2002, when SMS paid thousands of dollars to reimburse the City of Seattle for LTK’s electrical engineering services related to the Monorail grounding system that SMS deemed to have been improperly and negligently performed. (Mot. at 20.) LTK argues that “this payment constitutes actual and appreciable harm on the part of SMS thereby resolving the only question of fact identified by the Ninth Circuit in its Memorandum.” (Id. at 20-21.) Because AFM did not file suit until more than three years after October 30, 2002, LTK once again asserts that AFM’s suit is barred by the statute of limitations.5 (See id. at 21.)
In Washington, the discovery rule states that the statute of limitations starts to run on a negligence claim when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, facts giving rise to the cause of action. See Hipple v. McFadden, 255 P.3d 730, 735 (Wash. Ct. App. 2011) (citing Peters v. Simmons, 552 P.2d 1053, 1056 (Wash. 1976)); 1000 Va. Ltd. P’ship, 146 P.3d at 428 (stating that under the “discovery rule of accrual, . . . a cause of action accrues when the plaintiff discovers, or in the reasonable exercise of diligence should discover, the elements of a cause of action.”). LTK fundamentally misapprehends that nature of the harm that SMS must
Instead, it was SMS’s alleged continuing problems with the electrical and/or grounding systems of the Monorail about which Mr. Barney complains at length in the course of his July 15, 2002, letter that arguably placed SMS on notice of its claim. (See Wahtola Decl. (Dkt. # 173) Ex. A at 100.) Those issues included “mild electrical shocks to staff and passengers, and electrical arcing and burning of the train car bodies.” (Id.) The Ninth Circuit, however, has already ruled that “[t]he record is unclear about the extent, significance, and cause of the alleged post-[terminal board]-installation incidents and, indeed whether they actually occurred post-installation.” (9th Cir. Mem. Disp. at 4.) Because the Ninth Circuit has concluded that “[c]onflicting inferences may be drawn from the monorail manager’s correspondence and testimony about the events” (id.), the court must deny LTK’s second motion for summary judgment based on expiration of the
D. Mitigation of Damages and Assumption of Risk
LTK asserts that it is entitled to summary judgment because SMS failed to mitigate its damages and assumed the risk of the Monorail’s bonded grounding system. (Mot. at 21-24.)
The doctrine of mitigation of damages, or avoidable consequences, prevents an injured party from recovering damages that the injured party could have avoided if it had taken reasonable efforts after the wrong was committed. Transalta Centralia Generation LLC v. Sicklesteel Cranes, Inc., 142 P.3d 209, 212 (Wash. Ct. App. 2006); see Young v. Whidbey Island Bd. of Realtors, 638 P.2d 1235, 1238 (Wash. 1982). A person who has been injured by another’s wrongdoing is given wide latitude and is only required to act reasonably in mitigating his or her damages. Hoglund v. Klein, 298 P.2d 1099, 1102 (Wash. 1956); Tranalta Centralia, 142 P.3d at 212. Thus, whether a party properly mitigates his or her damages turns on a determination of reasonableness, and an issue about which reasonable minds could differ is a question for the jury. Id.
In Washington, the doctrine of assumption of risk has four facets: (1) express assumption of risk, (2) implied primary assumption of risk, (3) implied reasonable assumption of risk, and (4) implied unreasonable assumption of risk. Tincani v. Inland Empire Zoological Soc’y, 875 P.2d 621, 633 (Wash. 1994). The third and fourth aspects of assumption of risk are simply alternative names for contributory negligence, Scott v. Pacific West Mountain Resort, 834 P.2d 6, 13 (Wash. 1992), and LTK has placed neither at issue in the present motion (see generally Mot. at 21-24). Neither has LTK asserted that SMS expressly assumed the risk of LTK’s work with respect to the Monorail’s bonded grounding system. (Id.) Instead, LTK asserts that it is entitled to summary judgment with respect to AFM’s claims under implied primary assumption of risk. (Mot. at 22 (“Of particular importance to the present case, ‘Implied primary assumption of risk is a complete bar to recovery. . . .’”) (quoting Gregoire v. City of Oak Harbor, 244 P.3d 924, 928 (Wash. 2010)).) Both express and implied assumption of risk raise the same question: Did the plaintiff consent, before the accident or injury, to the negation of a duty that the defendant would otherwise have owed to the plaintiff? Home v. N. Kitsap Sch. Dist., 965 P.2d 1112, 1118 (Wash. Ct. App. 1998). If the answer is yes, “the defendant does not have a duty, there can be no breach and hence no negligence.” Id. (quoting Scott, 834 P.2d at 13).
Because implied primary assumption of risk is a complete bar to recovery, courts construe the doctrine narrowly. Lascheid v. City of Kennewick, 154 P.3d 307, 310 (Wash. Ct. App. 2008). To invoke the doctrine, LTK must show that SMS “knowingly and voluntarily chose to encounter the risk.” Home, 965 P.2d at 1119. The evidence must show that SMS (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter it. Id. Whether a plaintiff decides knowingly to encounter a risk turns on whether the plaintiff, at the time of
LTK argues that despite SMS’s stated concerns about LTK’s engineering with respect to the Monorail’s grounding system and continued electrical arcing in the system, SMS continued to operate and maintain the Monorail with a bonded grounding system in place and even reimbursed the City of Seattle for LTK’s work. (See Mot. at 24.) Thus, according to LTK, SMS (and therefore also AFM as SMS’s subrogee) knew of the dangers that were purportedly inherent in LTK’s work, but nevertheless assumed those risks or failed to mitigate its damages by continuing to operate the system. (Id.)
Here, however, there is evidence that in the face of SMS’s doubts about LTK’s engineering regarding the Monorail’s grounding system, LTK issued assurances of safety to SMS. For example in an email August 27, 2002, Mr. Barney stated:
. . . [E]lectrical engineers from . . .LTK . . . have confirmed that the existing grounding systems, for both the trains and the traction power system, meet all necessary safety requirements.
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. . . [E]lectrical engineers from . . . LTK . . . have confirmed that the protection devices built into the train grounding system, and the traction power supply system, will protect passengers from any injury resulting from electrical shock. We have been assured by these engineers that mild shocks to passengers is normal, and presents no danger.
(3/3/14 Pierson Decl. (Dkt. # 189) Ex. E.)
IV. CONCLUSION
Based on the foregoing, the court DENIES LTK’s motion for summary judgment (Dkt. # 172), and this matter will proceed to trial.
Dated this 16th day of April, 2014.
JAMES L. ROBART
United States District Judge