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,
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.
from the United States District Court for the Middle District
OWEN, Chief Judge, JONES and SMITH, Circuit Judges.
E. SMITH, Circuit Judge
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.
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.
relevant railroad crossing ("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. 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.
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 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.
bereaved families initiated this federal diversity action
against Union Pacific,  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
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.
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).
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.
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."
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.
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. 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[.]"
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.
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 ...