Opinion
2022 CA 0796
08-16-2023
LELA HERRINGTON, JOY HERRINGTON PETERS, LISA HERRINGTON SMITH, CRISTY HERRINGTON AND LAURA HERRINGTON v. UNION PACIFIC RAILROAD COMPANY, JARED BABIN, CARRON A. BOURGEOIS, PAUL D. REED, ABC INSURANCE COMPANY, AND XYZ COMPANY
Robert M. Lucky Michael Malinowski Baton Rouge, Louisiana Attorneys for Appellants Leia Herrington, et al. Crystal E. Domreis Brodie G. Glenn Terrance A. Prout Christopher R. Handy Bradley R. Belsome New Orleans, Louisiana Attorneys for Appellees Union Pacific Railroad Company, et al.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Eighteenth Judicial District Court In and for the Parish of Iberville State of Louisiana No. 76304 The Honorable Tonya S. Lurry, Judge Presiding
Robert M. Lucky Michael Malinowski Baton Rouge, Louisiana Attorneys for Appellants Leia Herrington, et al.
Crystal E. Domreis Brodie G. Glenn Terrance A. Prout Christopher R. Handy Bradley R. Belsome New Orleans, Louisiana Attorneys for Appellees Union Pacific Railroad Company, et al.
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
HOLDRIDGE, J.
This is an appeal by the plaintiffs, Leia Herrington, Joy Herrington Peters, Lisa Herrington Smith, Cristy Herrington, and Laura Herrington, from the granting of a motion for summary judgment filed by the defendants, Union Pacific Railroad Company, Corron A. Bourgeois, Paul D. Reed, and Jered Babin, dismissing this lawsuit arising from a collision between a vehicle operated by decedent, John Herrington, and a Union Pacific train. After review, we affirm.
The defendants' names were misspelled in the petition as Carron A. Bourgeois and Jared Babin.
FACTS AND PROCEDURAL HISTORY
On the afternoon of October 11, 2015, John Herrington was killed when his truck was struck by a Union Pacific train as he attempted to cross the railroad tracks at a private crossing on private land in White Castle, Louisiana. For reasons unknown, Mr. Herrington failed to stop at the crossing, which was marked with a standard "PRIVATE RAILROAD CROSSING/NO TRESPASSING" sign as well as a standard "STOP" sign.
Mr. Herrington's surviving wife and major children (collectively, the Herringtons) filed suit on October 11, 2016, naming as defendants Union Pacific, the three crew members who were manning the train, Corron A. Bourgeois, Paul D. Reed, and Jered Babin (collectively, Union Pacific), and two unnamed insurance companies. The Herringtons alleged that various negligent acts and omissions on the part of the crew regarding the operation of the train, as well as Union Pacific's maintenance of the crossing, were the direct and proximate cause of the accident and death of Mr. Herrington.
Union Pacific answered the petition, generally denying the allegations. It alleged as an affirmative defense that the sole legal and/or proximate cause of the accident and death of Mr. Herrington was his own negligent acts and omissions.
On April 15, 2021, Union Pacific filed a motion for summary judgment, claiming there was no triable issue of fact for a jury to decide as the sole legal and proximate cause of the accident was Mr. Herrington's actions. Union Pacific also claimed the indisputable evidence demonstrated that it was not responsible for the maintenance of the private rail crossing. The Herringtons opposed the motion, arguing that genuine issues of material fact remained concerning Union Pacific's duties and breach of those duties that resulted in Mr. Herrington's death.
We note that the summary judgment law was recently amended by 2023 La. Acts No. 422, effective August 1, 2023.
On November 9,2021, the trial court held a hearing on Union Pacific's motion for summary judgment. Following arguments, the trial court made an oral ruling declaring there was no issue of genuine material fact and granting the motion for summary judgment. On November 30, 2021, the trial court signed a judgment in accordance with that ruling and dismissed the Herringtons' claims with prejudice. The Herringtons devolutively appealed the trial court's judgment.
DISCUSSION
Motion for Summary Judgment
After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La.App. 1 Cir. 2/21/20), 298 So.3d 191, 194-95, writ denied, 2020-00480 (La. 6/22/20), 297 So.3d 773. A fact is "material" when its existence or non-existence may be essential to a plaintiff s cause of action under the applicable theory of recovery. A material fact is one that would matter at a trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Collins , 298 So.2d at 195.
The Code of Civil Procedure places the burden of proof on the party filing the motion for summary judgment. See La. C.C.P. art. 966(D)(1). The mover can meet this burden by filing supporting documentary evidence, and the mover's supporting documents must prove the essential facts to carry the mover's burden. Thus, in deciding a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material factual issues. Jenkins v. Hernandez, 2019-0874 (La.App. 1 Cir. 6/3/20), 305 So.3d 365, 370-71, writ denied, 2020-00835 (La. 10/20/20), 303 So.3d 315.
Once the mover demonstrates the absence of factual support for one or more elements essential to the adverse party's claim, the burden shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Jenkins , 305 So.3d at 371. If the non-moving party fails to prove the existence of a genuine issue of material fact, La. C.C.P. art. 966(D)(1) mandates the granting of the motion for summary judgment. Id.
Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3); Turner v. Rabalais, 2017-0741 (La.App. 1 Cir. 12/21/17), 240 So.3d 251, 255, writ denied, 2018-0123 (La. 3/9/18), 237 So.3d 1193.
Negligence
The Herringtons allege that Union Pacific's negligence or alternatively, its crew's negligence, was the proximate cause of the accident and subsequent death of Mr. Herrington. Louisiana courts use a duty-risk analysis in negligence cases to determine whether liability exists under the facts of a particular case. Under this analysis, a plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. LeJeune v. Union Pacific R.R., 97-1843 (La. 4/14/98), 712 So.2d 491, 494. Under the duty-risk analysis, all four inquiries must be affirmatively answered for a plaintiff to recover. Id.
In this case, we will first examine the duties owed by the railroad to Mr. Herrington. Under Louisiana law, railroad companies have a general duty to operate safe crossings, including private crossings, such that they can be safely traversed by motorists using reasonable care. See Dehart v. Burlington Northern and Santa Fe R. Co., 2003-279, 2003-280 (La.App. 5 Cir. 10/28/03), 860 So.2d 248, 257, writ denied, 2003-3251 (La. 2/6/04), 865 So.2d 732. An additional duty may be placed upon the railroad when the plaintiff can prove that a "dangerous trap" exists. In those cases, a jurisprudential duty is imposed upon the railroad company to take unusual precautions, such as reducing the speed of the train, or increasing its warning devices. See Rivere v. Union Pacific Railroad Company, 93-1132 (La.App. 1 Cir. 10/7/94), 647 So.2d 1140,1145, writ denied, 95-0292 (La. 3/24/95), 651 So.2d 295. Under the "dangerous trap" doctrine, a crossing is considered a "dangerous trap" when it is unusually dangerous because the view of the motorist is so obstructed as to require that he place himself in a position of peril dangerously near the tracks, before he has a view of the oncoming train. Id.
Duties are imposed on railroads by federal law, state law, and jurisprudence. Although federal law "substantially subsumes" some aspects of state law, see e.g. Ryder v. Union Pacific Railroad Company, 945 F.3d 194, 203 (5 Cir. 2019), in this case both state and federal law apply as well as the state jurisprudential rule of the "dangerous trap" doctrine.
Next, we will consider the duty owed by the train crew to Mr. Herrington. It is well established that a train crew can presume that a vehicle approaching a railroad crossing will obey the law and stop in time to avoid an accident. Lejeune , 712 So.2d at 495. The train need not slow down at all or attempt to stop upon seeing a vehicle approaching an upcoming crossing. Id.
If a crew member notices that the driver of the approaching vehicle is oblivious of the on-coming train or for some other reason does not intend to stop, the train crew then becomes responsible for immediately doing everything in its power to avert the collision. Id. The train crew can assume a driver will bring his vehicle to a stop unless the vehicle's approach is so unusual as to place an ordinarily prudent person on notice that the vehicle cannot be brought to a stop in time to avoid a collision. Id.
A train crew's duty must be determined in light of the duty imposed on a driver regarding railroad crossings. LeJeune, 712 So.2d at 495. As a general rule, a driver approaching a railroad crossing must look and listen for possible oncoming trains before traversing the crossing. LeJeune, 712 So.2d at 494. Under Louisiana law, a driver is required to stop within fifty feet but not less than fifteen feet from the nearest rail of a railroad when, among other things, there is a stop sign erected at the approach to a railroad grade crossing, an approaching train is plainly visible, or an approaching train emits a signal. La. R.S. 32:171(A)(3)-(5). At any railroad grade crossing provided with railroad cross buck signs, the driver of a vehicle shall, in obedience to the railroad cross buck sign, yield the right-of-way and slow down to a speed reasonable for the existing conditions and shall stop, if required for safety, and shall not proceed until he or she can do so safely. La. R.S. 32:171(E). If a driver is involved in a collision at a railroad crossing after driving past the railroad cross buck sign, the collision is prima facie evidence of the driver's failure to yield the right-of-way. La. R.S. 32:171(E). Further, a driver is statutorily required to slow down to a reasonable speed or stop if necessary, look in both directions, listen, and yield the right-of-way to any approaching train and then shall proceed only upon exercising due care and upon being sure that it is safe to proceed. See La. R.S. 32:175(A).
In conducting our de novo review, we will consider the evidence properly filed with the parties' memoranda in support of and in opposition to the motion for summary judgment as mandated by La. C.C.P. art. 966(D)(2). This evidence includes: (1) the affidavit of Elisa Tubbs; (2) the deposition of Paul Reed; (3) the deposition of Corron Bourgeois, Jr.; and (4) the deposition of Jared Dane Babin.
Louisiana Code of Civil Procedure article 966(D)(2) provides that a court "may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made" in deciding a motion for summary judgment.
We note that Union Pacific submitted the deposition of Frank Sotile, who owed property on both sides of the private road where the accident occurred. However, this deposition was not attached to Union Pacific's motion for summary judgment, nor was it submitted in opposition to the motion for summary judgment. The record reflects that the deposition was introduced at the hearing on the motion for summary judgment. The law is clear that under the applicable version of La. C.C.P. art. 966(D)(2), we may consider only those documents specifically filed in support of or in opposition to a motion for summary judgment, even if these documents appear elsewhere in the record. See Duran v. Roul's Deli Juicy Juicy, L.L.C., 2021-1600 (La.App. 1 Cir. 8/8/22), 348 So.3d 735, 737. The parties may not introduce summary judgment evidence at the hearing on the motion, and in our de novo review, this court may not consider such evidence. See La. C.C.P. art. 966(D)(2) and Comments-2015(k); see also Huggins v. Amtrust Insurance Company of Kansas, Inc., 2020-0516 (La.App. 1 Cir 12/30/20), 319 So.3d 362, 366, n.l. Because Mr. Sotile's deposition was not properly filed with the memoranda in support of or in opposition to the motion for summary judgment, we will not consider that deposition in ruling on the propriety of the granting of the motion for summary judgment.
As explained in the recent Supreme court case of Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So.3d 457, 478, in most cases the defendant will owe some duties to the plaintiff. In this case, Union Pacific owed duties with state and federal law to Mr. Herrington. Similarly, Mr. Herrington also had a duty to act in conformity with state and federal law. The question this court must answer is whether, under the evidence presented in the motion for summary judgment, any reasonable juror or trier of fact could find that the defendants breached any duty owed to Mr. Herrington. If not, summary judgment in favor of the defendants "is mandated." Farrell , 359 So.3d at 480.
Ms. Tubbs, a Union Pacific Sr. Risk Management Representative, attested that, on October 11,2015, she responded to the accident at DOT Crossing #448942T near White Castle, in Iberville Parish. She stated that the crossing is a private crossing not maintained by Union Pacific. She further attested that the private crossing was marked with a standard "PRIVATE RAILROAD CROSSING/NO TRESPASSING" sign and a standard "STOP" sign.
Mr. Babin, one of the train's crew members, testified that, at the time of the collision, he was a fireman, training to be an engineer under Corron Bourgeois. He stated he remembered coming up to the crossing and seeing a truck pull out. The truck was approximately two vehicle lengths from the crossing, so it had ample time to stop and ample time to get across the crossing. As he was blowing the horn and the train got closer to the crossing, Mr. Babin began to panic because the truck was neither slowing down nor speeding up. He kept holding the horn longer, but the truck's driver never slowed down and he never stopped. When the truck disappeared in front of the train and they felt the impact, Mr. Babin plugged the train, which put the train into an emergency stop. The impact occurred about 20 seconds from the time Mr. Babin saw the truck. Mr. Babin stated a tree line runs all the way down the track, but it is kept cleaned approximately 50 or 60 feet from the track.
Mr. Reed was the train conductor at the time of the collision. He testified that he saw the truck slowly pulling off the highway and coming towards the crossing. According to Mr. Reed, the truck kept coming slowly, but it seemed like the driver was going to stop; he just never did. Mr. Babin sounded the horn. When Mr. Reed lost sight of the truck, he and Mr. Babin plugged the train at the same time. Mr. Reed stated the truck's driver should have been able to see the train, but he was not paying attention.
Mr. Bourgeois was the third crew member on the Union Pacific train on the day of the accident. According to Mr. Bourgeois, a trackside detector went off and the conductor, Mr. Reed, who was sitting in front of him, was writing down the message as required. Mr. Bourgeois was leaning to the left of him and looking ahead, when the when Mr. Reed said, "oh no, he didn't." He testified that Mr. Babin blew the horn; however, he was unable to ascertain the exact time period when the horn started blowing until the point of impact. Mr. Bourgeois was aware that someone had plugged the train and put it into emergency; he did not know if it was Mr. Babin, Mr. Reed, or both of them. Mr. Bourgeois testified that he did not see Mr. Herrington's vehicle prior to impact, and he did not know that the train had hit a vehicle. Prior to that day, he had probably taken that route a thousand times, minimum, so he was very familiar with it. The area of the train route where the collision occurred ran along the highway. It was all sugarcane fields, no houses. Before this accident, Mr. Bourgeois had never seen another vehicle cross or attempt to cross at that crossing.
Upon examining the evidence on the motion for summary judgment, we find that the uncontroverted testimony of the train's crew indicates that Mr. Herrington's view was not so obstructed that it required him to place himself in a position of peril dangerously near the tracks, before he had a view of the oncoming train. There is no evidence on the motion for summary judgment demonstrating that Union Pacific breached its duty to maintain a safe crossing. Rather, the evidence shows Mr. Herrington should have been able to plainly view the train under the prevailing conditions at the railroad crossing. Mr. Babin testified that the tree line running along the tracks was maintained and was 50 or 60 feet from the track. Further, Ms. Tubbs attested in her affidavit that the private crossing was marked with a standard "PRIVATE RAILROAD CROSSING/NO TRESPASSING SIGN" and a standard "STOP" sign. The summary judgment evidence demonstrates that Mr. Herrington had ample opportunity from a position of safety to see the approaching train had he been paying attention. The Herringtons failed to establish the existence of any genuine issues of fact that would prove the railroad breached any duty owed to Mr. Herrington or that a dangerous trap condition was present at the private crossing on the day of the accident.
We further find that the evidence indicates the train crew acted reasonably under the circumstances and the Herringtons offered no evidence suggesting otherwise. The uncontroverted testimony of Mr. Reed, and the engineer-in-training, Mr. Babin, establish that, after Mr. Herrington turned off the highway onto the dirt road, he drove slowly toward the crossing, which suggested that he would stop before attempting to cross. It was not unreasonable for the crew to presume that Mr. Herrington would bring his truck to a stop in time to avoid a collision. His approach was not so unusual as to place the crewmen on notice that the truck could not be brought to a stop. All three crew members testified that Mr. Babin blew the locomotive's horn as the truck approached the crossing. Under LeJeune and applicable state laws, Mr. Herrington had a duty to exercise due care by looking and listening for an approaching train. He also had a duty to maintain control of his vehicle by slowing down or stopping if necessary. When it became evident that the truck's driver was not going to stop, Mr. Babin and Mr. Reed put the train into an emergency stop but, by that time, the train could not possibly have been stopped in time to avoid the accident. The Herringtons presented no competent summary judgment evidence that the crew's actions were unreasonable under the circumstances or that they breached any duty owed to Mr. Herrington.
Due to our finding that no reasonable juror could find that the defendants breached any duty owed to Mr. Herrington, we pretermit any discussion as to whether Mr. Herrington's conduct was the sole cause-in-fact of the accident.
On our de novo review, we find that the evidence on the motion for summary judgment establishes that the Herringtons will be unable to demonstrate, at a trial on the merits, that any reasonable juror could find that Union Pacific breached any duty to Mr. Herrington under the undisputed facts of this case. While this matter involves a tragic accident, based on the evidence presented, we find there existed no genuine issue of material fact that if proven at trial would or could, under the duty-risk analysis, demonstrate Union Pacific's liability for the fatal accident.
CONCLUSION
For the foregoing reasons, the November 30, 2021 judgment of the trial court granting the motion for summary judgment filed by the defendants, Union Pacific Railroad Company, Corron A. Bourgeois, Paul D. Reed, and Jered Babin, dismissing with prejudice the suit filed by the plaintiffs, Leia Herrington, Joy Herrington Peters, Lisa Herrington Smith, Cristy Herrington, and Laura Herrington, is affirmed. All costs are assessed to Leia Herrington, Joy Herrington Peters, Lisa Herrington Smith, Cristy Herrington and Laura Herrington.
AFFIRMED.
McClendon, J., concurring in part.
I respectfully concur to point out that the majority sets forth the mover's burden of proof on a motion for summary judgment as stated in LSA-C.C.P. art. 966(D)(1), but fails to set forth the burden applicable herein, where the mover will not bear the burden of proof at trial. Specifically, LSA-C.C.P. art. 966(D)(1) provides:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.
In all other respects, I agree with the majority.
GREENE, 3., concurring.
I concur with the result reached by the majority but write separately, because I respectfully disagree with the imposition of duties on the Union Pacific defendants and on Mr. Herrington, without direct authority indicating that those duties apply at both public and private railroad crossings and that those duties conform to applicable federal and state law.
As pointed out by the United States Fifth Circuit Court of Appeals, Louisiana law is unclear as to a railroad company's duties at a private crossing, such as the one in the present case. See Ryder v Union Pacific Railroad Company, 945 F.3d 194, 200 (5th Cir. 2019). Compounding this uncertainty is the issue of which federal laws preempt state laws as to a railroad company's duties and whether the preemption would apply at both public and private crossings. Further, a railroad company's duties at a private crossing must then be analyzed along with co-existing duties imposed by Louisiana state law upon a motorist who approaches a railroad crossing, some which appear to apply at both public and private crossings.
Louisiana statutory law imposes certain duties on railroad companies at public crossings. See, e.g.. La. R.S. 32:168, et seq. (requiring bells, whistles, horns, and signage); La. R.S. 45:323 (requiring maintenance of public streets adjacent to tracks); La. R.S. 48:386.1 (requiring maintenance of public rights-of-way); La R.S. 48:391 (prohibiting obstruction of public crossings). As to the preemptive effect of federal law, see generally, Van Arsdale, B.J., Preemptive Effect of Federal Railroad Safety Act, Exclusive of "Essentially Local Safety or Security Hazard"Savings Clause, 44 A.L.R. Fed.2d 261 (orig. pub'd 2010). Also see Lee, J.D. and Lee, C.L., Federal preemption of state tort law governing railroad crossings, generally - Effect on case evaluation and strategy, 6 Litigating Tort Cases §70:4 (Sept. 2022 Update). Also see Ryder, 945 F.3d at 203; Duncan v. Kansas City Southern Railway Co., 00-0066 (La. 10/30/00), 773 So.2d 670, 678-79.
See, e.g., La. R.S. 32:171 (applicable at specified railroad crossings); La. R.S. 32:172(A)(3) (applicable on state maintained highways or roads); La. R.S. 32:175 (applicable at public crossings).
At a minimum, under any applicable law, it appears that a railroad is bound to exercise reasonable care in the operation of its trains and to avoid injury to persons at all crossings, private as well as public. Guidry v. Texas &N.O.R. Co., (La.App. 1 Cir. 1945), 20 So.2d 637, 638 (emphasis added). And, if peculiar or extraordinary circumstances at a crossing are known to a trainman, prudence would require an approaching train to sound an alarm or signal. Id.
In any event, after reviewing relevant statutory and jurisprudential authorities, I agree with the majority that the admissible summary judgment evidence establishes that the Herringtons will be unable to demonstrate at a trial on the merits that Union Pacific breached any duty owed to Mr. Herrington.