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Sandifer v. City of Kenner

Court of Appeals of Louisiana, Fifth Circuit

May 31, 2017

LORRIE SANDIFER, PAMELA JOHNSON, SHARON OGDEN, VANESSA DAVIS
v.
THE CITY OF KENNER, R & R TRAIN COMPANY, INC., RICHARD T. JACOBS, FERNAND WEBBER STATE OF LOUISIANA MARVINE SHEDRICK AND LC SHEDRICK
v.
CITY OF KENNER, FERNAND WEBBER AND R & R TRAIN COMPANY

         ON 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 Vincent.

          COUNSEL FOR DEFENDANT/APPELLEE, CITY OF KENNER Alvin J. Bordelon, Jr., Regina S. Wedig.

          Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst.

         AFFIRMED

         FHW

         SMC

         SJW

          FREDERICKA HOMBERG WICKER JUDGE.

         This 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[1]-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.[2]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 judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         On May 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.

         On 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.[3]

         On 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 negligence.

         On 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 prejudice.

         On 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 consortium.

         Plaintiffs' claims against R & R Train Company, Inc., were automatically stayed on February 21, 2014, when the company filed for Chapter 7 bankruptcy.

         The First Bench Trial

         On May 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.

         Although 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.

         Plaintiffs 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 him.[4] 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 -
A. Yeah.
Q. -if I understand correctly, the track can pop up and right back down?
A. Yeah.
Q. And visually -
A. You'll never ...

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