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Ryder v. Union Pacific Railroad Co.

United States Court of Appeals, Fifth Circuit

December 16, 2019

MICHAEL TODD RYDER, both individually and as natural Father on behalf of MICHAEL TODD RYDER, II; LORI POWELL, both individually and as natural Mother on behalf of MICHAEL TODD RYDER, II; NELL THERESA RYDER, both individually and as natural Mother on behalf of JOHN CAMERON WATSON; HERBERT PAUL BARRAS, JR., both individually and as natural Father on behalf of HERBERT PAUL BARRAS, III; LISA BARRAS, both individually and as natural Mother on behalf of HERBERT PAUL BARRAS, III, Plaintiffs-Appellants,
v.
UNION PACIFIC RAILROAD COMPANY; UNION PACIFIC RAILROAD CORPORATION; KINDER MORGAN G.P., INCORPORATED; KINDER MORGAN ENERGY PARTNERS, L.P., Defendants-Appellees. PIPELINE CONSTRUCTION & MAINTENANCE, INCORPORATED; ZURICH AMERICAN INSURANCE COMPANY, Intervenors-Appellants.

          Appeal from the United States District Court for the Middle District of Louisiana

          Before OWEN, Chief Judge, JONES and SMITH, Circuit Judges.

          JERRY E. SMITH, Circuit Judge

         It is alleged that Union Pacific Railroad Company and Union Pacific Corporation ("Union Pacific") negligently contributed to a fatal railroad collision. The plaintiffs and intervenors ("plaintiffs") appeal a summary judgment for Union Pacific. We affirm.

         I.

         On a dreary winter's afternoon in rural Louisiana, three coworkers drove through rain and fog as the last in a caravan of four commercial trucks that approached their job site, a local oil and gas pipeline facility, via a private gravel road. Just before reaching a cattleguard gate, the caravan had to cross railroad tracks. One-by-one, each of the first three trucks paused at the stop sign for the railroad crossing, slowly crossed the tracks, then stopped at the gate to wait for someone from the lead truck to unlock it. The last truck followed suit, but, as the first three parked trucks had left insufficient room for the last truck to clear the crossing, the driver stopped his truck on the tracks. Seconds later, a southbound Union Pacific train approached at a speed of fifty-one miles per hour. Hearing the train's horn too late, if at all, the three occupants were killed in the subsequent collision.

         The relevant railroad crossing[1] ("the Oil & Gas Crossing" or "the Crossing") provides the sole route for vehicles to access a local pipeline and wells, which are operated by three different businesses.[2] After exiting Louisiana Highway 5, motorists drive seventy feet east to the Oil & Gas Crossing, whence it is a further eighty-five feet to the gate. The private drive intersects with the railroad tracks at close to a right angle, but a gentle curve and elevation change, coupled with trees and vegetation, slightly obscures an oncoming southbound train from motorists' view until it should come within 350 feet of the Crossing. Trains regularly traverse the Crossing at speeds approaching sixty miles per hour.

         Union Pacific owns the Oil & Gas Crossing. Sometime after another truck collision in 2008 (and a near-miss in 2009), Union Pacific management inspected the Crossing and deemed it to be "private [ ] with public characteristics." The railroad then installed a stop sign and crossbuck[3] at the Crossing, though it stopped short of taking further precautionary measures-such as lights, gates, or contract flaggers-that it employed for other crossings in the immediate area.

         The bereaved families initiated this federal diversity action against Union Pacific, [4] alleging that the railroad had negligently contributed to the collision. Decedents' employer and insurance company intervened as plaintiffs to recover disbursed benefits. Union Pacific filed two motions for summary judgment that, together, covered all claims against it. The district court granted both, and the plaintiffs appeal.

         II.

         This court "review[s] summary judgment de novo, applying the same legal standards as the district court." Prospect Capital Corp. v. Mut. of Omaha Bank, 819 F.3d 754, 756-57 (5th Cir. 2016). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

         In reviewing whether there be a genuine dispute of material fact, the court is to "consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Instead, we must read all evidence in the light most favorable to the nonmoving party and likewise draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If there be any genuine dispute of material fact that a trier of fact may reasonably resolve in favor of either party, then summary judgment must be denied. Id. At the same time, "[s]ummary judgment may not be thwarted by conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence." Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015).

         "When, as in this case, subject matter jurisdiction is based on diversity, federal courts apply the substantive law of the forum state . . . ." Id. For guidance, we turn first to Louisiana's highest court and otherwise look to its intermediate courts to determine how the highest court should likely rule. Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018). If guidance be lacking still, this court is not to innovate new "theories of recovery." Id. The plaintiffs' allegations against Union Pacific broadly encompass (1) breach of a duty to install sufficient visual warning devices at the Crossing and (2) negligent operation of the locomotive horn. We consider each in turn.

         III.

         "In order to determine whether liability exists under the facts of a particular case, [the Louisiana Supreme] Court has adopted a duty-risk analysis." Duncan v. Kansas City S. Ry. Co., 773 So.2d 670, 675 (La. 2000). To recover, 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." Id.

         The plaintiffs claim that Union Pacific breached a duty to provide adequate visual warning devices at the Oil & Gas Crossing. "[W]e begin our [ ] analysis by examining the duty owed," if any, "by [Union Pacific] to the plaintiffs." Id. at 676.

         A.

         Although Louisiana statutory law requires owners of public rail crossings to install various visual safety devices, see, e.g., La. Rev. Stat. Ann. § 32:169, it is less clear what duties apply to owners of private crossings. Certain language suggests that-with narrow exception-all duties of rail crossing owners arise by statute, which would leave owners of private crossings generally free from any duty.[5] But other language suggests that the Louisiana Civil Code "place[s] duties upon" the owner of a rail crossing-private or public-to "maintain[] the safety of the intersection" with reasonable care, the breach of which "may serve as the basis for a tort claim[.]"[6]

         Such passages might be reconciled by holding that the Louisiana Civil Code attaches a general duty for owners and operators to maintain safety at crossings, which, for public crossings, is presumptively satisfied by statutory compliance. At public crossings, there must be a crossbuck installed, and the Louisiana Department of Transportation and Development may order the installation of additional warning devices "[w]henever [it] determines that a particular traffic control device needs to be installed[.]" La. Stat. Ann. § 32:169(A), (E)(1). A railroad's reliance on and deference to the Agency's regulatory mandate would be reasonable, and any extra warning device would be an "unusual precaution[]" required only in exceptional circumstances. Rivere, 647 So.2d at 1145.

         Were the Oil & Gas Crossing a public crossing, Louisiana's regulatory authorities might or might not have required Union Pacific to install warning devices beyond the crossbuck, such as lights or gates. See La. Stat. Ann. § 32:169(E)(1). Instead, it fell solely on Union Pacific to determine what devices, if any, were reasonably required to "maintain[] the safety of the intersection." Holloway, 988 So.2d at 858. And Union Pacific acted accordingly- it was its agents, not Louisiana's, who inspected the Crossing and made recommendations to install various signs in the wake of the 2008 truck collision and the 2009 near-miss. Perhaps those signs ...


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