Van Moreau v. Burlington Northern Santa Fe

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 05-675

VAN MOREAU

VERSUS

BURLINGTON NORTHERN SANTA FE, ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2003-508
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

AFFIRMED.

Lawrence N. Curtis
Curtis & Lambert
P. O. Box 80247
Lafayette, LA 70598-0247
(337) 235-1825
Counsel for Plaintiff/Appellant:
Van Moreau

David Andrew Fraser
Attorney at Law
P. O. Box 4886
Lake Charles, LA 70606
(337) 478-8595
Counsel for Defendant/Appellee:
Union Pacific Railroad Company

Adam L. Ortego, Jr.
Assistant Attorney General
901 Lakeshore Dr., #820
Lake Charles, LA 70601
(337) 491-2844
Counsel for Defendant/Appellee:
State of Louisiana, through DOTD

Roderick Gregory Bertrand
Assistant District Attorney
P. O. Box 839
Oberlin, LA 70655
(337) 639-2641
Counsel for Defendant/Appellee:
Allen Parish Police Jury

Randall Brian Keiser
Keiser Law Firm
P.O. Box 12358
Alexandria, LA 71315-2394
(318) 443-6168
Counsel for Defendant/Appellee:
Town of Kinder

SAUNDERS, Judge.

Plaintiff, Van Moreau, was injured when he was involved in an automobile-

locomotive collision on August 28, 2005. Plaintiff was traveling on Highway 190 in

the Town of Kinder when he came to a stop on the railroad tracks. He claims that his

view of the approaching train was obstructed and that due to this obstruction, he was

unable to prevent the accident. Plaintiff filed suit against the Burlington Northern

Santa Fe Railway Company, Union Pacific Railroad Company, the Town of Kinder,

Allen Parish, and the State of Louisiana through the Department of Transportation

and Development. Plaintiff alleged that the Town of Kinder had a duty to install

proper signalization and to remove obstructions from the railroad crossing. The trial

court, after examining all the documentary evidence and testimony, found that the

Town of Kinder had no duty to maintain the railroad crossing. Based on this

conclusion, the trial court determined that there was no genuine issue of material fact

and granted summary judgment in favor of the Town of Kinder. We affirm.

FACTS AND PROCEDURAL HISTORY

The accident giving rise to this litigation occurred around 12:25 p.m. on

August 28, 2002, when Plaintiff’s truck was stuck by a train at a railroad grade

crossing on Highway 190 in the Town of Kinder. Plaintiff, Van Moreau, was

traveling in a northerly direction on Highway 190 when, according to Plaintiff, the

car in front of him “suddenly” stopped, and he was forced to stop on the railroad

tracks. When Plaintiff looked to his left, he saw a train approaching and tried to

avoid the collision by backing up, but his attempt was unsuccessful. Plaintiff

sustained various physical injuries including injuries to his head, neck, and spine as

well as injuries to his central nervous system. He also suffers from fear, anxiety,

humiliation and embarrassment as a result of the accident.

Plaintiff brought an action against the Town of Kinder, Burlington Northern

Santa Fe Railway Company, Union Pacific Railroad Company, Allen Parish, and the

State of Louisiana through the Department of Transportation and Development to

recover damages for injuries sustained in the accident. In his petition, Plaintiff

alleged that the Town of Kinder was negligent in failing to install adequate

signalization at the Highway 190 railroad grade crossing, and in failing to remove

sight obstructions from the right-of-way, which prevented Plaintiff from seeing the

approaching train.

On January 27, 2005, the Town of Kinder filed a motion for summary

judgment, arguing that there was a lack of factual support for duty and causation, both

requisite elements of Plaintiff’s claim. The trial court granted summary judgment,

finding that the Town of Kinder had no duty to maintain the signalization on the

highway since Plaintiff offered no evidence to show that it was “unduly hazardous

such that a stop sign should have been erected before the crossing.” In addition, the

trial court ruled that Plaintiff did not rebut the causation element of its claim.

Plaintiff now appeals.

ASSIGNMENTS OF ERROR

1) The trial court erred in weighing the evidence and relying upon evidence

that was subject to conflicting interpretations.

2) The trial court erred in finding that the Town of Kinder owed no duty with

respect to the signalization at the crossing.

STANDARD OF REVIEW

Appellate courts conduct a de novo review of rulings on motions for summary

judgment. “It is well established that a summary judgment shall be rendered if the

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pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to material fact, and

that the mover is entitled to judgment as a matter of law.” Alfred Palma, Inc. v.

Crane Servs. Inc., 03-0614, p.3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774, quoting

Shelton v. Standard/700 Associates, 01-587, p.5 (La. 10/16/01), 798 So.2d 60, 64-65;

La.Code Civ.P. art. 966(B).

LAW AND ANALYSIS

Assignment of Error 1:

Plaintiff argues that the trial court erred in weighing the evidence and relying

upon evidence that was subject to conflicting interpretations. The trial court relied on

photographs of the railroad grade crossing that were attached to Plaintiff’s deposition

in order to determine whether or not Plaintiff’s view was, in fact, obstructed. These

photographs were introduced for the limited purpose of identification of the railroad

crossing. When the pictures were attached to the deposition to be introduced at trial,

Plaintiff’s counsel objected to the writing on the sides of the photographs purporting

to describe the direction the photographer was facing. Defense counsel agreed to “cut

the writing off,” leaving only the photographs of the crossing with no reference as to

what the photos were depicting. The trial court relied on its own review of the

photographs that were attached to Plaintiff’s deposition in rejecting his testimony that

his view was obstructed. There is no evidence in the record indicating when the

photographs were taken, who took the photographs, or the location of the

photographer when the photographs were taken. On a hearing for a Motion for

Summary Judgment, Plaintiff was shown one of the photographs and was asked

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whether anything had changed with respect to the buildings shown in the photograph

since the accident. Plaintiff responded, “I don’t know.”

When a trial court decides a motion for summary judgment, “the trial court

cannot make credibility determinations,” nor may it “determine or even inquire into

the merits of the issues raised.” Lazard v. Foti, 02-2888 (La. 10/21/03), 859 So.2d

656, 663; Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App. 2 Cir. 4/4/01), 785

So.2d 101, 104. “If evidence presented is subject to conflicting interpretations,

summary judgment is not proper.” Federated Rural Elec. Ins. Corp. v. Gulf S. Cable,

2002-0852 (La.App 3 Cir. 12/11/02), 833 So.2d 544, 546; National Gypsum Co. v. Ace

Wholesale, Inc., 96-215, pp. 4-5 (La.App. 5 Cir. 11/26/96), 685 So.2d 306, 308, writ

denied, 96-3055 (La. 2/7/97), 688 So.2d 502.

The photographs of the railroad grade crossing were subject to conflicting

interpretations, as there was no reference with respect to the circumstances under

which the photographs were taken and whether they properly reflected the viewpoint

of Plaintiff at the time of the accident. We find that the trial court weighed the

photographs against Plaintiff’s testimony and inappropriately granted a summary

judgment based upon conflicting interpretations.

Moreover, the trial court found that Plaintiff was “duty bound” to look both

ways before crossing the railroad tracks under La.R.S. 32:171(E) and La.R.S.

32:175(A). Although Plaintiff may have a duty to look before crossing the railroad

tracks, his negligence in not doing so will not bar him from recovering from

defendants who may be held liable to him. Under Louisiana’s comparative fault

scheme, enumerated in La.Civ.Code art. 2323, Plaintiff’s negligence does not defeat

his cause of action. His recovery will simply be reduced by the amount of fault

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allocated to him by the trial court. Accordingly, Plaintiff’s negligence is not

dispositive of the issue. We find that the trial court erred in issuing a summary

judgment based on Plaintiff’s negligence, as comparative negligence preempts

summary judgment.

Assignment of Error No. 2:

Plaintiff argues that the trial court erred, as a matter of law, in limiting the

town’s duty to responding to “unduly hazardous” conditions. He argues that under

La.R.S. 32:41 and La.R.S. 32:235, a municipality’s authority is not limited to dealing

with “unduly hazardous” conditions. Defendant, on the other hand, contends that the

duty to regulate railroad crossings on state highways is placed upon the railroad

companies and the State, through the Department of Transportation and Development,

and that the Town of Kinder has no duty to regulate the crossing.

Louisiana Revised Statutes 48:386.1 states in pertinent part:

B. . . . all railroad companies operating in this state
shall maintain their rights-of-way at any public road or
highway railroad grade crossing that is not protected by an
active warning device that includes lights and cross-arms in
such a manner that the vegetation and structures and other
obstructions do not obstruct the view of the motorists
approaching such public road or highway railroad grade
crossing.

C. Railroad companies shall cut vegetation and
remove structures and other obstructions that obstruct the
view of the operator of any motor vehicle approaching any
public road or highway railroad grade crossing that is not
protected by an active warning device that includes lights
and cross-arms, from either direction and that are located
within the maintenance width and maintenance length of the
crossing.

The railroad companies clearly have a primary duty to keep the right-of-way on public

streets and highways clear. Under La.R.S. 48:386.1D(1), the Department of

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Transportation and Development has the authority to “periodically inspect and

evaluate all state highway railroad grade crossings on state highways” to determine

whether they are maintained and are in compliance with the provisions of Section

386.1. In Section 383.1D(2), municipalities are given the authority to inspect “all

nonstate public road or highway railroad grade crossings located within its

jurisdiction.”

Plaintiff contends that under La.R.S. 32:41A(11), the municipality has a duty

to erect stop signs, with the written approval of the Department of Transportation and

Development, if a crossing is “particularly dangerous.” Under La.R.S. 32:41(13)(C),

a municipality “may adopt ordinances regulating traffic on state maintained highways

within their corporate limits, so long as such ordinances do not establish regulations

different from, or in addition to, the provisions of this Chapter and the regulations of

the department and the commissioner adopted pursuant thereto.” If a municipality

chooses to adopt a regulation or ordinance that supplements or compliments one of the

provisions of Title 32, Chapter 1, then the municipality must obtain written approval

of the ordinance or regulation from the commissioner and the Department of

Transportation and Development.

Plaintiff also argues that the Town of Kinder owed a duty to him under La.R.S.

32:235. That statute provides in pertinent part:

B. Local municipal and parish authorities in their
respective jurisdictions shall place and maintain such traffic
control devices upon highways under their jurisdiction as
they may deem necessary to indicate and to carry out the
provisions of this Chapter, regulations of the department
and commissioner adopted pursuant hereto, and local traffic
ordinances adopted pursuant to the authority granted by
R.S. 32:41 and R.S. 32:42.
C. No local municipal or parish authority shall place
or maintain any traffic control device upon any state

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maintained highway without having first obtained the
written approval of the department.

Similarly, under La.R.S. 32:235, if a local municipality wishes to place or maintain

any traffic control devices on a highway that is maintained by the State, the

municipality must obtain written approval from the Department of Transportation and

Development. It is clear under La.R.S 32:41(13)(C) and La.R.S. 32:235 that with the

written approval of the department, a municipality may adopt an ordinance that

supplements one of the provisions of Title 32. The question now becomes whether

there is a duty on the part of the Town of Kinder to pass such an ordinance.

It is incumbent on Plaintiff to show such a duty on the part of the Town of

Kinder. Plaintiff’s contention that La.R.S. 32:41(13)(C) and La.R.S. 32:23 create a

duty upon a municipality to pass ordinances regulating railroad crossings on state

highways appears to be res novo, as we have found no case dealing with this

contention. A reading of this statute clearly does not create a direct duty upon a

municipality, but rather gives it authority to request permission from the state to take

action when it is put on notice that action needs to be taken. The question then

becomes, when does a duty visit upon a municipality to exercise its discretion and

request permission from the state to perform work on a railroad right-of-way. Plaintiff

has not suggested and has shown no authority to suggest the circumstances under

which such a duty would be imposed upon a municipality. Indeed, it could be argued

that inasmuch as the passage of ordinances is a discretionary function of a

municipality, and in view of the fact that the primary responsibility for the railroad

crossing is put by statute upon the railroad companies and secondarily upon the

Louisiana Department of Transportation and Development, that no duty is placed upon

the municipality to enact ordinances to assist the department and the railroad

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companies in performing their statutory duties. It seems clear that, at the very least,

no such duty exists upon the municipality to pass such an ordinance unless a showing

is made that there was a known danger to the motoring public, and, moreover, that this

knowledge has been brought to the attention of the municipality in a timely fashion

so that reasonable prudence would require them to pass an ordinance regulating a

railroad crossing on a state highway. In the present case, Plaintiff has presented no

evidence to suggest that any knowledge of a dangerous or hazardous condition at the

intersection existed and was known by the governing authority prior to the accident

in question. Accordingly, in the absence of prior knowledge of a hazardous condition,

the Town of Kinder had no statutory duty to enact an ordinance requesting permission

from the Louisiana Department of Transportation and Development to erect a stop

sign or to maintain the railroad crossing. This being so, our finding of error in our

discussion of Plaintiff’s first assignment of error is rendered academic, as there has

been no showing of prior knowledge of a hazard which would have required the town

to take action. In absence of a duty to act, the Town of Kinder cannot be held liable

to Plaintiff. We affirm the trial court’s granting of summary judgment in favor of the

Town of Kinder.

CONCLUSION

The judgment of the trial court is affirmed. Costs of the appeal are assessed

against Plaintiff/Appellant.

AFFIRMED.

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