Betty Jean Hargrove v. Missouri Pacific Railroad Co. Consolidated With Ricky Haley v. Missouri Pacific Railroad Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-818

BETTY JEAN HARGROVE, INDIVIDUALLY AND AS NATURAL TUTRIX
OF JESSICA BANKS

VERSUS

MISSOURI PACIFIC RAILROAD CO., ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-129-97
HONORABLE WENDELL R. MILLER, DISTRICT COURT JUDGE

**********
ULYSSES GENE THIBODEAUX
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Oswald A. Decuir, and Jimmie C.
Peters, Judges.

REVERSED IN PART, AFFIRMED IN
PART AND REMANDED FOR TRIAL
ON THE MERITS.

Elizabeth Sheridan Hardy
Thomas & Hardy
2380 Lake St.
Lake Charles, LA 70601
Telephone: (337) 433-4903
COUNSEL FOR:
Plaintiff/Appellant - Betty Jean Hargrove

Sera Hearn Russell, III
P. O. Box 53866
Lafayette, LA 70505-3866
Telephone: (337) 237-7171
COUNSEL FOR:
Appellee - Ricky Haley
John Edmund McElligott, Jr.

Davidson, Meaux, Sonnier & McElligott
P. O. Box 2908
Lafayette, LA 70502-2908
Telephone: (337) 237-1660
COUNSEL FOR:
Defendants/Appellees - Southern Pacific Transportation Company,
Tommy Comeaux, Union Pacific Railroad Company, Missouri
Pacific Railroad Company, and Tommy Comeaux

Thomas Joseph Solari
Woodley, Williams, Boudreau, Norman, Brown & Doyle
P. O. Box 3731
Lake Charles, LA 70602-3731
Telephone: (337) 433-6328
COUNSEL FOR:
Defendant/Appellee - Progressive Security Insurance Company

LaVon Denise Raymond
Bureau of Legal Services
P. O. Box 3836
Baton Rouge, LA 70821-3836
Telephone: (225) 342-3425
COUNSEL FOR:
Defendant/Appellee - State of Louisiana, Department of Health &
Hospitals

Thomas E. Townsley
711 Pujo Street
Lake Charles, LA 70601
Telephone: (337) 430-0994
COUNSEL FOR:
Plaintiff/Appellant - Betty Jean Hargrove

THIBODEAUX, Judge.

This appeal arises out of an automobile/train accident which occurred at

the intersection of Cary Avenue and Union Pacific Railroad Company’s (Union

Pacific) mainline track in Jennings, Louisiana. On September 26, 1996, a vehicle

operated by Ricky J. Haley (Haley), collided with a Union Pacific train. Betty Jean

Hargrove, individually and as natural tutrix of Jessica Banks, who were passengers in

the Haley vehicle, filed suit for personal injuries against both Haley and Union

Pacific. One of their claims is that the warning devices at the crossing were

inadequate and that Union Pacific should be held liable. Union Pacific countered that

the crossing warnings and signage were installed pursuant to a federally-funded

project and, therefore, any state law claims that the plaintiffs have with respect to

inadequate warning devices at the crossing are preempted by federal law. Union

Pacific filed a motion for partial summary judgment and motion in limine requesting

that the trial court dismiss the plaintiffs’ claims regarding inadequate railroad crossing

warning signals and to preclude the plaintiffs from addressing any issues with respect

to the crossing signals at trial.

The trial court concluded that the project to install the advance warning

signs at the Cary Avenue railroad crossing in Jennings, Louisiana, used federal funds

and, therefore, any state claims against the railroad with respect to the inadequacy of

the signage was preempted by federal law. Therefore, the trial court granted Union

Pacific’s motions for summary judgment and in limine. The plaintiffs now appeal.

For the reasons stated below, we reverse the summary judgment granted by the trial

court, affirm the trial court judgment on the use of documents relating to highway

safety information pursuant to 23 U.S.C. § 409, and remand for trial on the merits.

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I.

ISSUES

We shall consider:

(1) whether the trial court erred in finding that Union
Pacific met its burden of proving that federal law
preempted state law in this railroad crossing collision
case; and,

(2) whether 23 U.S.C. § 409 creates a privilege which
prohibited Union Pacific from introducing
documents related to highway safety information to
show the source of funds used to install warning
signage at a railroad crossing.

II.

LAW AND DISCUSSION

Federal Railroad Preemption Requirements
Under 23 C.F.R. §§ 646.214(b)(3) and (4)

Recently, the Supreme Court in Norfolk Southern Ry. Co. v. Shanklin,

529 U.S. 344, 348, 120 S.Ct. 1467, 1471 (2000), explained the enactment of the

Federal Railroad Safety Act (FRSA) as follows:

In 1970, Congress enacted the . . . FRSA “to promote
safety in every area of railroad operations and reduce
railroad-related accidents and incidents.” 49 U.S.C. §
20101. The FRSA grants the Secretary of Transportation
the authority to “prescribe regulations and issue orders for
every area of railroad safety,” § 20134(a). The FRSA also
contains an express pre-emption provision, which states:

“Laws, regulations, and orders related to
railroad safety shall be nationally uniform to
the extent practicable. A State may adopt or
continue in force a law, regulation, or order
related to railroad safety until the Secretary of
Transportation prescribes a regulation or
issues an order covering the subject matter of
the State requirement.” § 20106.

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The court further explained the purpose of the enactment of the Highway Safety Act

of 1973, § 203, which created the Federal Railway-Highway Crossings Program

(Crossings Program) at issue in the present case:

[The Crossings Program] makes funds available to States
for the “cost of construction of projects for the elimination
of hazards of railway-highway crossings.” § 130(a).

Shanklin, 120 S.Ct. at 1471.

The regulations implementing the Crossings Program which was

promulgated by the Secretary through the Federal Highway Administration (FHWA)

at issue in this case are 23 C.F.R. §§ 646.214(b)(3) and (4). These regulations address

the adequacy of warning devices installed under the Crossings Program.1

At the time of the accident, the Cary Avenue crossing was equipped with

advance warning signs and an oversized stop sign. The plaintiffs assert that this

signage was inadequate and brought personal injury claims based on Louisiana law.

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Sections 646.214(b)(3) and (4) provide in full:

(3)(I) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds
participate in the installation of the devices are to include automatic gates with flashing light
signals when one or more of the following conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or
locomotive so as to obscure the movement of another train approaching the crossing.

(C) High Speed train operation combined with limited sight distance at either single or multiple
track crossings.

(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.

(E) Either a high volume or vehicular traffic, high number of train movements, substantial
numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight
distance, continuing accident occurrences, or any combination of these conditions.

(F) A diagnostic team recommends them.

(ii) In Individual cases where a diagnostic team justifies that gates are not appropriate, FHWA
may find that the above requirements are not applicable.

(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of
warning device to be installed, whether the determination is made by a State regulatory
agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.

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Union Pacific urges that the plaintiffs’ state law claims are preempted. The Shanklin

decision dealt with the State of Tennessee’s installation of warning devices at a

railroad crossing and preemption of state law. The Supreme Court concluded:

Sections 646.214(b)(3) and (4) “cover the subject
matter” of the adequacy of warning devices installed with
the participation of federal funds. As a result, the FRSA
pre-empts respondent’s state tort claim that the advance
warning signs and reflectorized crossbucks installed at the
. . . crossing were inadequate. Because the TDOT used
federal funds for the signs’ installation, §§ 646.214(b)(3)
and (4) governed the selection and installation of the
devices. And because the TDOT determined that warning
devices other than automatic gates and flashing lights were
appropriate, its decision was subject to the approval of the
FHWA. Once the FHWA approved the project and the
signs were installed using federal funds, the federal
standard for adequacy displaced Tennessee . . . law
addressing the same subject, thereby pre-empting
respondent’s claim.

Shanklin, 120 S.Ct. at 1477 (emphasis added).

Guided by the above principles, it is clear that if federal funds were used

to install warning devices at the Cary Avenue crossing, then §§ 646.214(b)(3) and (4)

governed the selection of those devices. Thus, state laws regarding the adequacy of

those devices are preempted by federal law. In the present case, since the warning

devices, other than automatic gates and flashing lights, were present at the Cary

Avenue crossing, approval of the project by the FHWA was necessary and “[o]nce the

FHWA approved the project and the warning signs were installed with federal funds,

the federal standard for adequacy displaced [Louisiana law] addressing the same

subject, thereby preempting [Plaintiffs’] claim.” Shanklin, 120 S.Ct. at 1477. Thus,

in this case, it is not the mere source of funding of a crossing project that is the

determinant of whether state law is preempted by federal regulations regarding the

adequacy of railroad crossing warning devices; rather, it is also whether the warning

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signs used were approved by the FHWA. With this in mind, we turn our attention to

whether the trial court’s grant of summary judgment was proper.

Summary Judgment

In Louisiana, summary judgment is now favored and it shall be used to

secure the just, speedy, and inexpensive determination of all actions, except those

specifically excluded in La.Code Civ.P. art. 969. La.Code Civ.P. art. 966(A)(2). A

summary judgment shall be rendered if the pleadings, depositions, interrogatory

responses, and admissions, together with any affidavits, show that there is no genuine

issue of material fact and that the mover is entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(B). Material facts are those that have the potential to insure

or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of

a legal dispute. Rambo v. Walker, 96-2538 (La.App. 1 Cir. 11/7/97), 704 So.2d 30.

Appellate courts review summary judgments de novo applying the same criteria as the

trial court to determine whether summary judgment is appropriate. Schroeder v. Bd.

of Sup’rs, 591 So.2d 342 (La.1991).

Despite the legislative mandate now favoring summary judgments,

“factual inferences reasonably drawn from the evidence must be construed in favor

of the party opposing the motion, all allegations of the party opposing the motion must

be taken as true, and all doubt must be resolved in his favor.” Independent Fire Ins.

Co. v. Sunbeam Corp., 99-2181, 99-2257, pp. 16-17 (La. 2/29/00), 755 So.2d 226,

236. Therefore, the party moving for summary judgment has the burden of

affirmatively showing absence of genuine issue of material fact and any doubt as to

whether the moving party has met that burden should be resolved against granting the

motion. Bradford v. Louisiana Downs, Inc., 606 So.2d 1370 (La.App. 2 Cir. 1992).

Thus, according to the prior jurisprudence of this court and of others, summary

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judgment is not appropriate in cases where questions of subjective facts such as

motive, intent, malice, good faith and/or knowledge will determine the outcome. Nor

does the likelihood that a party will prevail on the merits constitute a basis for

granting a motion for summary judgment. Claiborne v. Conagra, Inc., 96-482

(La.App. 3 Cir. 10/30/96), 682 So.2d 851.

A hearing was held regarding Union Pacific’s federal preemption claim

at which both Union Pacific and the plaintiffs presented exhibits. Following a review

of the exhibits, the trial court determined that Union Pacific proved the expenditure

of federal funds at the Cary Avenue crossing so as to support a claim of federal

preemption. We disagree with the trial court’s conclusions.

The principles of summary judgment are clear that the burden to prove

the non-existence of material factual issues is on the party moving for summary

judgment. In this case, it is Union Pacific. To support its motion, Union Pacific

presented voluminous documents from the files of the Louisiana Department of

Transportation and Development (DOTD) as well as the affidavit of Lester LeBlanc,

a District Construction Engineer in the DOTD’s district 07 office. A thorough review

of the DOTD documents reveals merely that a federal grant to fund the Cary Avenue

crossing project was submitted. Although the affidavit of Lester LeBlanc states that

the Cary Avenue crossing project was implemented “pursuant to and as part of the

Federal Railroad Safety Program,” there is nothing to show that any federal money

was used to install warning devices specifically at the Cary Avenue crossing. Further,

the documents do not reveal whether the warning devices used at the Cary Avenue

crossing, project number 737-04-14, were ever approved by the federal government

pursuant to its Crossings Program. Thus, even if during the installation of the warning

devices at the Cary Avenue crossing a federal funds grant was under consideration,

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it is unclear from the evidence presented whether any federal funds were utilized to

pay for the work done at that particular crossing.

Shanklin makes it clear that state tort claims are preempted when warning

devices at railroad crossings are installed with the participation of federal funds and,

in some instances, the approval of the FHWA. However, the evidence presented by

the defendants does not support an unequivocal conclusion that the warning devices

used at the Cary Avenue crossing in Jennings, Louisiana was installed with federal

funds or approved by the FHWA. In the absence of such proof, we cannot say that the

plaintiffs’ state law negligence claims are preempted by federal law at this juncture

of the proceedings. Summary judgment was, therefore, inappropriately granted.

23 U.S.C.A. § 409 Privilege

Although we have determined that the trial court erred in granting Union

Pacific’s motion for summary judgment on the basis that the plaintiffs’ state law

claims are preempted by federal law, we will address the plaintiffs’ argument that the

documents used by Union Pacific to support its motion should not have been

considered by the trial court pursuant to 23 U.S.C.A. § 409. That statute provides:

Notwithstanding any other provision of law, reports,
surveys, schedules, lists, or data compiled or collected for
the purpose of identifying evaluating, or planning the safety
enhancement of . . . railway-highway crossings, . . . or for
the purpose of developing any highway funds shall not be
subject to discovery or admitted into evidence in a Federal
or State court proceedings or considered for other purposes
in any action for damages arising from any occurrence at a
location mentioned or addressed in such reports, surveys,
schedules, lists, or data.

In Palacios v. Louisiana & Delta R.R. Inc., 98-2932, p. 6 (La. 7/2/99), 740 So.2d 95,

98, the Louisiana State Supreme Court explained:

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[C]ourts throughout the nation have surmised that section
409 was enacted to encourage active evaluation of highway
and railway safety hazards. We have previously held that,
by enacting section 409, Congress intended to “[f]oster the
free flow of safety-related information by precluding the
possibility that such information later would be admissible
in civil suits. The interest to be served by such legislation
is to obtain information with regard to the safety of
roadways free from the fear of future tort actions.”
Reichert, p. 4, [96-1419 (La. 5/20/97), 694 So.2d 193] 694
So.2d at 197, quoting Perkins v. Ohio Dept. of Transp., 65
Ohio App.3d 487, 584 N.E.2d 794 (1989). See also, Fry v.
Southern Pacific Transp. Co., 30,540 (La.App. 2 Cir.
6/24/98), 715 So.2d 632. The statute serves to “facilitate
candor in administrative evaluations of highway safety
hazards.” Stephens v. Town of Jonesboro, 25,715, p. 6-7
(La.App. 2 Cir. 8/19/94), 642 So.2d 274, 279, quoting
Robertson v. Union Pacific Railroad Co., 954 F.2d 1433,
1435 (8th Cir.1992) and Duncan v. Union Pacific Railroad
Co., 790 P.2d 595, 597 (Utah Ct.App.1990), aff'd 842 P.2d
832 (Utah 1992). Additionally, the statute has been
considered to prohibit the use of federally required
record-keeping from being used as a tool in private
litigation. Stephens, supra citing Robertson, supra. See
also, Harrison v. Burlington Northern Railroad Co., 965
F.2d 155, 156 n. 3 (7th Cir.1992); Light v. State, 149
Misc.2d 75, 560 N.Y.S.2d 962, 965 (N.Y.Ct.Cl.1990); and
Taylor v. St. Louis Southwestern Railway Co., 746 F.Supp.
50, 54 (D. Kan. 1990).

In Kitts v. Norfolk & Western Railroad Co., 152 F.R.D. 78 (S.D. W.Va.

1993), the court faced the issue of whether 23 U.S.C.A. § 409 should be liberally or

strictly construed. After stating the general principle that “the public . . . has a right

to every man’s evidence, except for those persons protected by a constitutional,

common-law, or statutory privilege,” Kitts, 152 F.R.D. at 80, quoting, United States

v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090 (1974), the Kitts court concluded that

because 23 U.S.C.A. § 409 deprives factfinders of some relevant evidence, it should

be strictly construed to accord protection for documents and data prepared for safety

purposes. However, a strict construction interpretation should not apply to documents

compiled for some other purpose, even if the contents of those other documents

become a part of a safety enhancement program or project.

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The reasoning expressed in Kitts reveals that it is the purpose for which

the documents were compiled and/or prepared that determines whether the privilege

of 23 U.S.C.A. § 409 attaches to those documents. In Shanklin, the introduction of

the documents, similar to those in the present case were not barred from discovery or

admission by the provisions of Section 409 because those documents were compiled

or collected for the purpose of obtaining approval from the Secretary of

Transportation of particular warning devices at the crossing as opposed to safety

enhancement purposes. The Palacios court set out four criteria for determining when

the protection offered by Section 409 will apply to certain documents:

(1) reports, surveys, schedules, lists or data,

(2) compiled or collected,

(3) for the purpose of identifying, evaluating, or
planning the safety enhancement of . . .
railway-highway crossings,

(4) pursuant to 23 U.S.C. § 130.

Palacios, 740 So.2d at 99. Thus, as it pertains to the present case, if any of these four

factors are absent, the protections afforded by Section 409 are inapplicable regardless

of whether it is the defendant or plaintiff who wishes to use the documents.

Factor number three is relevant here. If the documents were compiled

or collected for the purpose of obtaining approval of the crossing project at the Cary

Avenue crossing, then the documents are not protected from discovery or admission

into evidence by Section 409. However, if the documents were compiled or collected

for safety enhancement purposes, Section 409 protects its discovery and admission.

In the present case, it appears that the documents were compiled and used by Union

Pacific to show compliance with 23 C.F.R. §§ 646.214(b)(3) and (4). Thus, we cannot

say that the trial court improperly allowed Union Pacific to use the documents to

support its summary judgment motion.

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IV.

CONCLUSION

For the reasons above, the judgment of the trial court granting Union

Pacific’s motion for summary judgment and motion in limine is reversed and set aside.

Costs of this appeal are assessed to the defendant, Union Pacific.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED

FOR TRIAL ON THE MERITS.

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