APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 644-220, DIVISION
"K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, LORRIE SANDIFER, PAMELA
JOHNSON, SHARON OGDEN & VANESSA DAVIS Edward J. Womac,
Jr., Joseph Damrich, Stephen M. Huber, Brian P. Marcelle,
Gina M. Palermo.
COUNSEL FOR PLAINTIFF/APPELLANT, MARVINE SHEDRICK W. Jared
COUNSEL FOR DEFENDANT/APPELLEE, CITY OF KENNER Alvin J.
Bordelon, Jr., Regina S. Wedig.
composed of Susan M. Chehardy, Fredericka Homberg Wicker, and
Stephen J. Windhorst.
FREDERICKA HOMBERG WICKER JUDGE.
appeal arises out of a judgment of the district court
dismissing plaintiffs' personal injury claims against the
City of Kenner ("Kenner") with prejudice.
Plaintiffs-Lorrie Sandifer, Pamela Johnson, Sharon Ogden,
Vanessa Davis, and Marvine Shedrick-were passengers on a
miniature amusement park train when it derailed and flipped,
allegedly causing plaintiffs' injuries. In two separate
actions which were later consolidated, plaintiffs petitioned
for damages against (1) park and track owner Kenner, (2)
miniature train owner and operator R&R Train Company,
Inc., (3) Richard T. Jacobs, who owned R & R Train
Company, Inc., and (4) Fernand Webber, the individual who
operated the train ride at the time of the accident. After
the district court dismissed Richard T. Jacobs from the
action and a Chapter 7 bankruptcy automatically stayed the
action with respect to R & R Train Company, the district
court conducted a bench trial.Thereafter, the court entered a
judgment in favor of Kenner. The district court later granted
plaintiffs' motion for new trial to consider additional
evidence related to the theory of res ipsa loquitur.
After considering the testimony of plaintiffs' expert in
miniature train operation, maintenance, and derailment, the
district court dismissed plaintiffs' claims against
Kenner with prejudice. Because we find no error in the
district court's conclusion that plaintiffs failed to
meet their burden to prove Kenner's negligence caused
their alleged injuries, we affirm the district court's
AND PROCEDURAL BACKGROUND
12, 2006, Jefferson Parish's Head Start Program held a
field trip for students and teachers at Veterans Park on
Williams Boulevard in Kenner, Louisiana. To add to the
festivities, R & R Train Company, Inc., which owned and
operated a miniature train ride at the park, donated free
rides for the children and their chaperones. At around 1
p.m., plaintiffs-all of whom were chaperones working for
Jefferson Parish Head Start-along with two other adults and
one child boarded the train for the last ride of the day. As
the train approached the first curve of the tracks, the train
operator, Fernand Webber, "felt some jiggling."
When he glanced over his shoulder, he saw one of the cars
starting to tip over. He immediately applied the brakes and
"killed" the throttle to the engine in order to
stop the train. By the time the train had stopped, both cars
had tipped over, thrusting passengers into a fence which
bordered the tracks. The train's locomotive, however,
remained on the tracks.
April 27, 2007, plaintiffs Lorrie Sandifer, Pamela Johnson,
Sharon Ogden, and Vanessa Davis (the "Sandifer
plaintiffs") filed a petition for damages in Case No.
644-220, Twenty-Fourth Judicial District Court, Division K,
against Kenner, R & R Train Company, Inc., Richard T.
Jacobs, and Fernand Webber. On November 7, 2007, Jefferson
Parish filed a petition for intervention, seeking
reimbursement of workers' compensation indemnity benefits
and medical expenses paid to plaintiffs.
January 24, 2011, R & R Train Company, Inc., Richard T.
Jacobs, and Fernand Webber filed a cross claim against
Kenner, alleging negligent representation and failure to
properly defend and arguing that they are entitled to
indemnification should they be found liable for any
March 14, 2013, Richard T. Jacobs filed a peremptory
exception of no cause of action. Thereafter, on April 23,
2013, the district court granted the exception and issued a
judgment dismissing all claims against Richard T. Jacobs with
Kenner's motion and with the consent of all parties, the
district court issued an order on June 14, 2013,
consolidating the Sandifer case with Shedrick,
et al. v. City of Kenner, et al., No. 644-777,
Twenty-Fourth Judicial District Court, Division. Marvine
Shedrick was also a train passenger at the time of the
accident. Her husband, LC Shedrick, alleged loss of
claims against R & R Train Company, Inc., were
automatically stayed on February 21, 2014, when the company
filed for Chapter 7 bankruptcy.
First Bench Trial
30, 2015, the district court conducted a bench trial. Each of
the five plaintiff-passengers testified that she faced
forward during the train ride, that she did not move in a
manner that would cause the train to flip over, and that she
did not see any other passenger move in a manner that would
cause the train to flip. Indeed, plaintiff Marvine Shedrick
testified that, although she sat in the last seat on the
train and could see everyone in front of her, she did not
stand or jostle the train and did not remember seeing any
other passenger stand or jostle the train in any way.
Moreover, she denied seeing anyone leaning on the side of the
train at any time.
all of the plaintiffs denied seeing any rotten or loose
"rail ties" (alternatively, referred to as
"cross ties")-that is, pieces of wood to which the
track is affixed for the purpose of maintaining the proper
distance between the two rails-plaintiffs' counsel
heavily emphasized two "Amusement Ride Safety Inspection
Report[s]" issued by the Louisiana Office of the State
Fire Marshal, one issued six months before the accident and
the other issued several weeks after the accident. The first
report, dated December 6, 2005, and signed by inspector Ruven
St. Pierre, indicated that "some rail ties are loose and
rotten" and ordered for those rail ties to be replaced
within 30 days. The second report, issued on May 30, 2006,
ordered, among other things, that "all wood cross
ties" be replaced "prior to operation." This
report was signed by inspector Claude Ray. The parties
stipulated to the admission of both reports into evidence.
also offered and the district court admitted into evidence
the deposition testimony of Richard T. Jacobs, the owner of R
& R Train Company, who was deemed unavailable after
plaintiffs made diligent efforts to subpoena
At his deposition, Mr. Jacobs testified that it was
Kenner's responsibility to make repairs to the track,
that he notified Kenner of the State Fire Marshall's
December 6, 2005 report ordering the replacement of
"some" loose and rotten cross ties, and that Kenner
did not make the requested repairs. Although Mr. Jacobs did
not witness the accident, Mr. Jacobs acknowledged three
possible causes of the train derailment: (1) excessive speed,
(2) a shift in passenger weight at the curve in the tracks,
or (3) a track failure. During his deposition, Mr. Jacobs
seemed to indicate that a track failure could occur without
leaving any visual traces:
Q. Okay. Let's talk very quickly about the rail ties.
What is the function of a rail tie?
A. The cross tie is to hold the track in gauge and to support
the weight of the train while it's moving down the track.
Q. Okay. If a rail tie fails, the track can shift right?
A. Yes, to some degree. But you're going to have to have
more than one rail tie failure.
Q. Fair enough. If you have multiple rail tie failures -
Q. -if I understand correctly, the track can pop up and right
Q. And visually -
A. You'll never ...