Opinion
NUMBER 2023 CA 0311
10-04-2023
Sasha RICKETSON, Tina Ramus, on Behalf of Madison Ricketson and Xander Ramus, and Daniell Berry on Behalf of Dylan Berry, Individually and on Behalf of Stephen Ricketson v. Anita MCKENZIE, Robert D. Frank, Illinois Central Railroad Company, State of Louisiana Through Department of Transportation and Development, Parish of Tangipahoa, Town of Amite City
Frank Tomeny, III, Jennifer Kinberger, Baton Rouge, LA, Nathan Karlin, Manhattan, KS, Marcus J. Plaisance, Mark D. Plaisance, Prairieville, LA, Counsel for Plaintiffs/Appellants, Sasha Ricketson, Tina Ramus, on behalf of Madison Ricketson and Xander Ramus, and Daniell Berry on behalf of Dylan Berry individually and on behalf of Stephen Ricketson Virginia J. McLin, Kirk L. Landry, Baton Rouge, LA, Counsel for Plaintiff/Intervenor/2 nd appellant, Louisiana Construction & Industry Self Insurers Fund Timothy F. Daniels, Claire A. Noonan, Carlos A. Benach, Kelly Juneau Rookard, Troy Bell, New Orleans, LA, Counsel for Defendant/Appellee, Illinois Central Railroad Company Christopher M. Moody, Albert D. Giraud, Hammond, LA, Counsel for Defendant/Appellee, Town of Amite
Appealed from the Twenty-First Judicial District Court, In and for the Parish of Tangipahoa, State of Louisiana, Suit Number 2016-0001308, Honorable Brian K. Abels, Presiding
Frank Tomeny, III, Jennifer Kinberger, Baton Rouge, LA, Nathan Karlin, Manhattan, KS, Marcus J. Plaisance, Mark D. Plaisance, Prairieville, LA, Counsel for Plaintiffs/Appellants, Sasha Ricketson, Tina Ramus, on behalf of Madison Ricketson and Xander Ramus, and Daniell Berry on behalf of Dylan Berry individually and on behalf of Stephen Ricketson
Virginia J. McLin, Kirk L. Landry, Baton Rouge, LA, Counsel for Plaintiff/Intervenor/2nd appellant, Louisiana Construction & Industry Self Insurers Fund
Timothy F. Daniels, Claire A. Noonan, Carlos A. Benach, Kelly Juneau Rookard, Troy Bell, New Orleans, LA, Counsel for Defendant/Appellee, Illinois Central Railroad Company
Christopher M. Moody, Albert D. Giraud, Hammond, LA, Counsel for Defendant/Appellee, Town of Amite
BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.
GUIDRY, C.J.
3In this wrongful death and survival action, plaintiffs, Sasha Ricketson, Tina Ramus, on behalf of Madison Ricketson and Xander Ramus, and Daniell Berry, on behalf of Dylan Berry, individually and on behalf of Stephen Ricketson, appeal from a trial court judgment granting summary judgment in favor of defendant, Illinois Central Railroad Company (Illinois Central) and dismissing their claims with prejudice. For the reasons that follow, we reverse and remand.
Intervenor, Louisiana Construction & Industry Self Insurers Fund, has also appealed, claiming as the party who provided the workers’ compensation benefits of Ricketson’s employer, KCJS Trucking, LLC, it is entitled to reimbursement for payments made to plaintiffs and a credit against any future workers' compensation obligation owed to plaintiffs.
FACTS AND PROCEDURAL HISTORY
On May 10, 2015, Stephen Ricketson was operating a Ford F-750 truck westbound on Pope Lane in the Town of Amite City (the Town). While attempting to traverse a railroad crossing at Pope Lane, which was owned by Illinois Central, Rick- etson was struck by a southbound Amtrak passenger train and died as a result of injuries sustained in the collision.
Thereafter, on May 9, 2016, plaintiffs, Ricketson’s surviving spouse and minor children, filed a wrongful death and survival action, naming as defendants: the train engineers, Anita McKenzie and Robert Frank; Illinois Central Railroad Company; the State of Louisiana through the Department of Transportation and Development (DOTD); the Parish of Tangipahoa; and the Town. Plaintiffs alleged there was a sight obstruction at the crossing, which deprived Ricketson of an adequate "crossing sight distance," and therefore Illinois Central was negligent in failing to maintain and/or provide an adequate "crossing sight distance" at the Pope Lane crossing and in failing to maintain its right of way to prevent diminished 4grossing sight distance. Plaintiffs further alleged that Ricketson’s truck got stuck on the railroad track due to a defect in the road surface for which DOTD and/or Tangipahoa Parish and/or the Town were liable. Furthermore, plaintiffs asserted that the accident was caused by the negligence of DOTD and/or Tangipahoa Parish and/or the Town in failing to post proper and sufficient warning signs indicating the danger of the railroad crossing, failing to adequately mark the road and surrounding area indicating the existence and presence of a railroad crossing to approaching motorists, failing to maintain the elevated crossing so that vehicles would not be impeded or "bottom out" on the track while crossing, and failing to maintain the condition of the road surface at the railroad intersection.
Tangipahoa Parish was dismissed by judgment dated January 17, 2017, McKenzie and Frank were dismissed by judgment dated July 29, 2019, and DOTD was dismissed by judgment dated August 5, 2019.
Illinois Central, McKenzie, and Frank subsequently filed a motion for summary judgment, asserting that the plaintiffs had no evidence to support any of their allegations of negligence against them, and the only available evidence in the case, the locomotive video from the Amtrak train, demonstrates that the sole cause of the accident was Ricketson’s failure to yield the right of way to the approaching Amtrak train as he was required to do by law. The Town also filed a motion for summary judgment simply "join[ing] in with and adopt[ing] the motion for summary judgment of co-defendants … and plead[ing] same herein by reference, as if copied in extenso" and attaching no additional argument or evidence. Plaintiffs opposed the motions, offering the affidavit and expert report of James Loumiet, an expert in transportation accident reconstruction.
Following a hearing on the motions for summary judgment, the trial court denied the motions, finding there were issues of fact concerning the cause of the accident, particularly regarding the hazards at the crossing, which made summary judgment inappropriate.
Thereafter, plaintiffs filed an amended petition, adding allegations that the Town was negligent in failing to close the crossing and provide alternative access as 5agreed with Illinois Central, failing to install necessary active warning devices (lights and gates) at the crossing, and failing to work with Illinois Central and DOTD in installing active warning devices or closing this crossing. With regard to Illinois Central, plaintiffs added allegations that Illinois Central was negligent in failing to inspect and maintain the signage at this crossing, leading to a severely faded and non-functioning stop sign at the time of the collision; failing to install necessary active warning devices (lights and gates) at this crossing; improperly maintaining this crossing, resulting in an extremely humped crossing that necessarily diverts a driver’s attention; failing to properly maintain a safe crossing under Louisiana Revised Statutes Chapter 32; failing to maintain a smooth and even crossing surface and failing to close this crossing and provide alternative access as agreed to with the Town; and failing to work with the Town and DOTD in installing active warning devices or closing this crossing.
On December 30, 2021, Illinois Central filed its second motion for summary judgment, again asserting that plaintiffs had no evidence to support any of their allegations of negligence against it and the only available evidence in this case demonstrates that the sole cause of the accident was Ricketson’s failure to yield the right of way to the approaching Amtrak train. Illinois Central submitted with its motion the locomotive video; the affidavit of the investigating officer, Sergeant Toni Cuti; photographs; the affidavit of McKenzie; and excerpts of the deposition of Teresa Brown, an eyewitness to the accident. The Town filed a motion for summary Judgment on January 4, 2022, again joining in with and adopting the motion for summary judgment filed by Illinois Central and pleading same therein by reference as if copied in extenso.
Illinois Central thereafter filed a supplemental memorandum in support of the motion for summary judgment on March 21, 2022, reasserting that despite the new allegations, all claims against it should be dismissed because Ricketson’s failure to 6stop and yield at the Pope Lane crossing was the sole cause of the accident and plaintiffs have provided no factual evidence of negligence by Illinois Central related to the accident.
In opposing Illinois Central’s motion, plaintiffs asserted that genuine issues of material fact remain regarding the cause of the collision and Illinois Central’s own comparative fault. In particular, plaintiffs asserted that there are genuine issues regarding the sight distance and quality of the track at the crossing. Plaintiffs alleged that the new evidence offered by the defendants, Sgt. Cuti’s affidavit and Brown’s deposition, should not change the prior court’s ruling denying summary judgment and finding genuine issues of material fact exist in this case. Furthermore, plaintiffs attached the expert report of Loumiet; an excerpt from Brown’s deposition; and the affidavit of William Hughes, an expert in rail safety, grade crossings, rail needs assessments, grade crossing inventory and other railroad related areas.
Illinois Central filed a reply memorandum on June 30, 2022, asserting that plaintiffs failed to address a critical, undisputed fact, namely, that Ricketson failed to stop at the Pope Lane crossing. Illinois Central also asserted that plaintiffs failed to present any evidence that Illinois Central breached any duties at the crossing. Furthermore, Illinois Central objected to Loumiet’s report on the basis that it was not competent summary judgment evidence under La. C.C.P. art. 966(A)(4) because it is hearsay and not self-proving. Illinois Central further argued that even if the report were considered, it is based on an investigation of the crossing two years after the accident and ignores that Ricketson failed to stop at the crossing.
The trial court held a hearing on the motions on July 5, 2022. At the beginning of the hearing, counsel for Illinois Central noted that it had filed objections to Loumiet's report as well as Hughes’s affidavit, and counsel for the Town stated that because it joined in Illinois Central’s motion it also adopted Illinois Central’s objections. The trial court noted defendants’ objections to plaintiffs’ exhibits and 7told defen- dants to proceed with arguing the merits of the motion. Following argument, in ruling in favor of defendants, the trial court stated that it "[didn’t] see anything—considering everything, everything both parties submitted, … showing any breach of duty on the part of either Illinois Central or the Town." Accordingly, the trial court signed a judgment on August 11, 2022, granting summary judgment in favor of Illinois Central and dismissing plaintiffs’ claims against it with prejudice. Plaintiffs now appeal from the trial court’s judgment.
STANDARD OF REVIEW
[1] After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Methvien v. Our Lady of the Lake Hospital, 22-0398, p. 4 (La. App. 1st Cir. 11/4/22), 354 So. 3d 720, 723.
The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). At the time of the hearing on Illinois Central’s motion for summary judgment, La. C.C.P. art. 966(A)(4) provided that the mover can meet its burden by filing supporting documentary 8evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. The mover’s supporting documents must prove the essential facts necessary to carry the mover’s burden. See La. C.C.P. art. 966(A)(3).
Louisiana Code of Civil Procedure article 966 was subsequently amended by 2023 La. Acts No, 317 § 1, effective August 1, 2023. In Ricketson v. McKenzie, 23-0314 (La. App. 1st Cir. 10/04/23), — So. 3d —, also handed down this date, we determined that the recent amendments change the law by permitting a party to reference documents in support of or in opposition to a motion for summary judgment that have been previously filed into the record rather than requiring that supporting documents be filed with the motion, provided that documents so specifically referenced be listed with the motion by document title and date of filing, that copies of the entire document shall be furnished to the court and to the opposing party concurrently with the filing of the motion with the pertinent part designated and with the filing information, and that a court shall consider only those documents filed or referenced and which are not excluded pursuant to a timely filed objection. See La. C.C.P. art. 966(A)(4)(a), (A)(4)(b), and (D)(2). Because we found these amendments to be substantive in nature and, as such, could not be applied retroactively, we apply the version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearing in the instant case.
[2] Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party’s claims, actions, or defenses if he will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1). Methvien, 22-0398 at p. 5, 354 So. 3d at 723. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1). The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its motion, 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. La. C.C.P. art. 966(D)(1); see also La. C.C.P. art. 966, comments-2015, comment (j). If the non-moving party fails to produce sufficient factual support in its opposition which proves the existence of a genuine issue of material fact, Article 966(D)(2) mandates the granting of the motion for summary judgment. White v. Herbert, 22-1333, p. 5 (La. App. 1st Cir. 6/2/23), 369 So. 3d 898, 902.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Succession of Hickman v. State through Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 16-1069, p. 5 (La. App. 1st Cir. 4/12/17), 217 So. 3d 1240, 1244. In deciding whether to grant or deny a motion for summary judgment, the trial court cannot make credibility determinations, evaluate testimony, or weigh 9conflicting evidence. Chevis v. Rivera, 21-0124, pp. 4-5 (La. App. 1st Cir. 9/24/21), 329 So. 3d 831, 834, writ denied, 21-01546 (La. 12/21/21), 330 So. 3d 317.
DISCUSSION
In filing its motion for summary judgment, Illinois Central asserted that plaintiffs did not have evidence to support any of their allegations of negligence against Illinois Central and that the only available evidence in this case demonstrates that the sole cause of the accident was Ricketson’s failure to yield the right of way to the approaching Amtrak train.
Louisiana Revised Statutes 32:171 and 32:175 set forth the duties of motorists approaching railroad crossings and provide, in pertinent part:
§ 171. Motor vehicles approaching railroad crossings; reporting violations; penalties
A. Whenever any person driving a motor vehicle approaches a railroad grade crossing under any of the circumstances stated in this Section, the driver of such vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:
* * *
(3) A railroad train or other on-track equipment approaching within approximately nine hundred feet of the highway crossing emits a signal in accordance with R.S. 32:168, and such railroad train or other on-track equipment, by reason of its speed or nearness to such crossing, is an immediate hazard.
(4) An approaching railroad train or other on-track equipment is plainly visible and is in hazardous proximity to such crossing.
(5) A stop sign is erected at the approach to a railroad grade crossing.
* * *
E. At any railroad grade crossing provided with railroad cross buck signs, without automatic, electric, or mechanical signal devices, crossing gates, or a human flagman giving a signal of the approach or passage of a train or other on-track equipment, 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, at a clearly marked stopped line or, if no line, within fifty feet but not less than fifteen feet from the nearest rail of the railroad and shall not proceed until he or she can do so safely. If a driver is involved in a colli- sion at a railroad crossing or interferes with the movement of a train or other on-track equipment after driving past the railroad cross buck sign, the collision or interference is prima facie evidence of the driver’s failure to yield the right of way.
10 § 175. Vehicles must yield at railroad grade crossings; exceptions; penalties for violations
A. The driver or operator of a vehicle approaching a rail-highway grade crossing identified by the presence of a railroad cross buck sign shall slow down to a speed reasonable for the existing conditions, or shall stop if necessary, before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, at a clearly marked stop line, or if none, then at the point nearest the intersecting rail of such railroad where the driver or operator has a clear view of any approaching train. The driver or operator shall listen and look in both directions along such track for any approaching train and for signals indicating the approach of a train. Having slowed or stopped in this manner, the driver or operator shall 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.
In support of its motion, Illinois Central submitted photographs of the Pope Lane crossing; a copy of the locomotive video showing the events leading up to the accident and the resulting collision; excerpts from the deposition testimony of Brown, an eyewitness to the accident; and the affidavit of the investigating officer, Sgt. Cuti. The photographic and video evidence presented by Illinois Central shows that the railroad crossing is marked with crossbuck signs and a stop sign, and that, prior to Ricketson turning toward the Pope Lane crossing, the Amtrak train was emitting a signal by blowing its horn, which continued until the collision. The video evidence further shows Ricketson’s track coming into view of the approaching train at the crossing and demonstrates that Ricketson failed to stop and yield the right of way at the railroad crossing prior to the collision. Brown also testified that Ricketson did not stop at the crossing, and she further testified that if he had stopped, he would have seen the approaching train. Finally, Sgt. Cuti stated that there were no visual obstructions at the Pope Lane crossing on the day of the accident.
Accordingly, from our review of the record, we find that Illinois Central pointed out an absence of factual support for plaintiffs’ negligence claim by presenting evidence that Ricketson was the sole cause of the resulting accident, and as such, the burden shifted to the plaintiffs to produce factual support establishing a 11genuine issue of material fact or that Illinois Central is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1).
In opposing Illinois Central’s motion, the plaintiffs submitted a report from their expert, Loumiet, which they alleged created a genuine issue of material fact as to the sight distance and quality of the track at the Pope Lane crossing. In the report, Loumiet found there were sight-restricting trees and vegetation in the northeast quadrant (the direction from which the train was approaching the Pope Lane crossing). Loumiet determined that the crossing was extrahazardous due to the unusually restricted track sight distance, steeped approaches and humped profile, narrow and rough approaches and uneven crossing surface, and unsafe and dilapidated traffic controls. Loumiet stated the grade crossing had unusually restricted sight distance down the tracks at the time of the collision due to trees and vegetation in the north- east and southeast crossing quadrants and the crossing’s horizontal geometry with Pope Lane and U.S. Highway 51 running close and parallel to the tracks. Loumiet stated that adequate track sight distance and sight triangles at crossings without signals are critical to motorists so they can make an appropriate go/no go decision, and that due to the restricted sight distance and the crossing’s horizontal geometry, which restricted motorists’ sight distance down the tracks even more, it was difficult if not impossible for motorists on Pope Lane to see approaching trains behind them. Loumiet stated that motorists turning onto the crossing in many cases would not be able to see approaching trains as they would not be able to square up to the tracks and see down the tracks until they were less than fifteen feet from the rear rail. Loumiet reviewed the train video and stated that Ricketson was unable to square up to the tracks as he approached and reached a position of fifteen feet from the rear rail so that Ricketson’s view to his right was restricted by the crossing’s horizontal geometry as well as by the trees and vegetation. Accordingly, Loumiet opined that the Pope Lane crossing did not provide motorists, including Ricketson, 12with adequate track sight distance or sight triangles to be able to see approaching trains in a timely manner.
Illinois Central objected to Loumiet’s report in its reply memorandum, contending that it was not competent summary judgment evidence under La. C.C.P. art. 966(A)(4). At the hearing on its motion, Illinois Central reiterated that it had filed an objection to Loumiet’s report as hearsay, as well as to an affidavit from Hughes, another expert offered by plaintiffs. The trial court "noted the objection as to the plaintiffs’ exhibits" and told the parties to proceed with argument on the merits of the motions for summary judgment. At the conclusion of the hearing, the trial court stated that it didn’t "see anything—considering everything, everything both parties submitted" showing any breach of duty on the part of Illinois Central or the Town.
[3] Louisiana Code of Civil Procedure article 966(D)(2) provided that "[t]he court shall consider all objections prior to rendering judgment" and that "[t]he court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider." The record in the instant matter does not reveal any specific ruling, either at the hearing or in writing, regarding Illinois Central’s evidentiary objections. However, it does appear from the trial court’s oral ruling that it considered all evidence submitted by the parties. When the trial court does not rule upon the objections to summary judgment evidence and appears to have considered the objected-to evidence, the trial court’s silence is deemed as a denial or rejection of the objection. See Lucas v. Maison Insurance Company, 21-1401, p. 13 (La. App. 1st Cir. 12/22/22), 358 So. 3d 76, 89; Dynamic Environmental Services, LLC v. Marioneaux, 20-1172, p. 13 n.2 (La. App. 1st Cir. 4/16/21), 324 So. 3d 130, 138 n.2, writ denied, 21-00672 (La. 9/27/21), 324 So. 3d 94.
[4] On appeal, Illinois Central argues that Loumiet’s report is not competent summary judgment evidence. However, Illinois Central did not seek supervisory 13writs or file an answer to the appeal seeking review of the trial court’s adverse evidentiary ruling. Accordingly, the trial court’s ruling admitting Loumiet’s report and Hughes’s affidavit cannot be considered on appeal. See Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 17-1088, p. 9 n.2 (La. App. 1st Cir. 3/15/18), 244 So. 3d 441, 447 n.2, writ denied, 18-0583 (La. 6/1/18), 243 So. 3d 1062. Therefore, plaintiffs’ evidence offered in opposition to Illinois Central’s motion for summary judgment is evidence that must be considered for purposes of the motion for summary judgment. See La. C.C.P. art. 966(D)(2); Thompson, 17-1088 at p. 9, 244 So. 3d at 448.
[5, 6] In determining, de novo, whether the evidence creates a genuine issue of material fact, we are mindful that, like the trial court, we cannot make credibility determinations, evaluate testimony, or otherwise weigh the evidence. See Thompson, 17-1088 at p. 7, 244 So. 3d at 447. Accordingly, from our review of the evidence submitted by plaintiffs, we find it sufficient to establish a genuine issue of material fact as to the condition of the Pope Lane crossing and Ricketson’s ability to see the approaching train, and therefore it creates a genuine issue of material fact as to the cause of the accident at issue.
MOTION TO STRIKE
On appeal, plaintiffs filed a motion to strike certain references and portions of Illinois Central’s appellee brief that reference and incorporate documents not in the record. However, because we find that plaintiffs presented evidence sufficient to establish a genuine issue of material fact as to the cause of the accident at issue so as to defeat Illinois Central’s motion for summary judgment, we find plaintiffs’ motion to strike, which is related to alternative arguments made by the parties, to be moot.
14 CONCLUSION
For the foregoing reasons, we reverse the trial court’s judgment granting summary judgment in favor of Illinois Central Railroad and dismissing plaintiffs’ claims against it with prejudice. We further deny as moot plaintiffs’ motion to strike certain references and portions of Illinois Central’s appellee brief. We remand this matter to the trial court for further proceedings. All costs of this appeal are assessed to Illinois Central Railroad.
REVERSED AND REMANDED; MOTION TO STRIKE MOOT.
Chutz, J., concurs.