Duncan v. Union Pacific Railroad

Bowers; Bowers; Shelly Sherry court, “dealing it it fornia where found was Monica Henwood, individually personal and as previously litigant who not has with representative of the Estate of Ramon ordered, up as but who to appear failed to deceased; Henwood; Henwood, Phyllis very fugitive jus- time remains Henwood, Ap- and Owen unwilling to Apparently, he is re- tice. pellants, he spond to a order with which dis- court agrees, appeal” but seeks obtain on Casaus, more result. Tobin v. favorable UNION PACIFIC RAILROAD COMPA- 588, 275 P.2d Cal.App.2d Utah; NY, corporation; The State of Kleinman; through Paul and Does 1 100, inclusive, Respon- Defendants and appellant hold has 30

We therefore dents. days from the date of the issuance process

opinion bring within the herself No. 890291-CA. appellant submits of the trial court. If Appeals Court of of Utah. court, trial she should be herself to offer alternatives opportunity allowed April judgment. protect to the trial court

Appellant may persuade the court should judgment amount trust disputed

hold the appeal on the

until a resolution of this appellant persists

merits.

secreting the trial herself violation of orders, appeal her will be dismissed

court’s expiration 30-day period. JJ., ORME, concur.

GARFF DUNCAN, individually per- and as

Lewis representative of the Estate of

sonal Duncan, deceased; E.

Patrick Jason

Duncan, through minor his Duncan; Litem; Alice No- ad

Guardian Duncan; Duncan; Michael Tim

reen Duncan;

Duncan; Brian Dun- Kevin

can; Bowers, individually and Michelle representative personal of the Estate deceased; Bowers, Jefrey and Nicole Bowers; Hanson; Florence

Judson (argued),

Michael A. Katz Burbidge & Mitchell, City, Salt appellants. Lake (argued), J. Clare Larry Williams A. Gan- tenbein, City, respondents Salt Lake Union Pacific R. Co. and Paul Kleinman. (argued), Barlow, Allan L. Larson Craig Swenson, Snow, Anne Christensen & Marti- neau, City, Dam, Salt Lake R. Paul Van Gen., Atty. Sorenson, State Stephen J. Gen., Atty. Asst. City, Salt Lake for re- spondent State of Utah. JACKSON, JJ.,

Before prioritization BENCH of the State’s rail- BULLOCK,1 Judge. Senior District to receive safety additional

improvements, lights such as electrified OPINION and crossbars. The heirs of the accident victims sued BULLOCK,

J. ROBERT Senior District engineer Union Pacific and Kleinman for Judge. train, negligent operation of the appeal summary judg- Plaintiffs from a maintenance of the dismissing wrongful ment their death ac- Droubay crossing, Road en- arising tion out of a train-automobile colli- trusting operation of alleg- the train to an sion. We affirm. edly employee. unfit heirs The also sued Droubay thorough- Road ais two-lane State, claiming safety improve- that the running fare north and in rural south crossing inadequate. ments at were County. point, Tooele At one it intersects All of summary the defendants moved for ap- the Union Pacific Railroad tracks at judgment, granted and the district court proximately 43-degree angle on the north complaint. their motions and dismissed the 136-degree angle and a on the south. appealed. signs Three roadside warn mo- crossing, sign torists of the one located CLAIMS AGAINST UNION PACIFIC about 300 feet from the and two on either side of the road 19 feet from the In defense the motions for sum- crossing. flashing lights There are no or mary judgment, filed an affi- crossing mechanical devices at the to warn Crommelin, davit of one Robert a traffic train, approaching of an nothing but ob- safety engineer. opinion, In Crommelin’s structs a motorist’s view of the tracks for warning present “the crossing at the several thousand feet. clearly inadequate” were and “the intersec- ” 9, 1983, clearly tion ‘extra hazardous.’ The evening April On the at about [was] court, however, p.m., district struck Crommelin’s operated by 8:50 a Union Pacific train grounds affidavit on the that 23 Paul Kleinman U.S.C. struck automobile and (Supp.1989) occupants killed all four forbade admission into of the vehicle at § Droubay evidence of factual basis for Cromme- crossing. Road There is no conclusions, lin’s and Utah Rule of Civil neg- evidence to indicate that the train was 56(e) permits only Procedure affidavits ligently improperly operated, and its bells, which state “such facts as would admis- headlight, warning be and whistles were opinion sible in Crommelin’s activated well in advance of the evidence[.]” Kleinman, partly gained on information engineer, The was based averred that he Droubay from records of the Road approach crossing saw car be- crossing. To facilitate candor in adminis- stop. lieved that it would When it became highway safety trative evaluations of haz- apparent going the car was not ards, prevents a stop, 23 U.S.C. 409 court from stop it was too late for him to § receiving records of such evaluations into train. Therefore, evidence.2 under this federal Department The Transportation Utah statute, documents from which (UDOT)periodically Droubay evaluated the large part Crommelin obtained crossing planning Road the allocation of reaching data used his conclusions were resources, including its funding, federal inadmissible. improvements. highway state-wide Under time, basis, the methods used at the On that the district court struck However, high enough Road did not rank in Crommelin’s affidavit. the dis- Bullock, Judge, legislative purpose 1. J. Robert Senior District be sit- of section 409 can 100-27, gleaned H.Conf.Rep. ting by special No. appointment pursuant 104th to Utah 172-173, Cong. reprinted in 78-3-24(10) 1st Sess. 1987 U.S. (Supp.1989). Code Ann. Cong. Code & Admin.News 156-57. that, trict court if the affi- condition safe to motorists also ruled even who traverse considered, crossings.4 davit were the case should be them established lack clarity these there seems be a about dismissed its merits. Faced with result, required the standard of care of the rail- alternative for the we grounds same duty, the observance of in this rest our appeal choose case to apparent clarity lack of has led to take decision on the merits. We will thus criticism of the of care some Utah standard opinion at value. Crommelin’s face ap- it was understood.5 Since we must con Even if affidavit is Crommelin's determining ply a standard of care sidered, plaintiffs did not show that Union duty, whether Union Pacific breached its any Pacific care breached attempt clearly state extent Droubay collision at the Road right a which railroad must make its of alleged negligence opera Plaintiffs in the way safe for to cross. motorists and, through by tion of the train Kleinman concerning the stan confusion The Pacific, by respondeat superior, Union as meaning care in the dard of centers of by in em negligence well as Union Pacific hazardous,” ordinarily “more words than ploying operator train and in main unfit applying which were used the standard taining right way. its also of Plaintiffs cases, care in two Bridges of Utah v. Un sought punitive damages Pacif from Union Co., 281, 26 488 ion R.R. Utah 2d Pacific Plain ic for willful and reckless conduct. (1971), English P.2d 738 and v. Southern that tiffs introduced no evidence to show Co., 407, (1896). 13 45 P. Utah 47 Pacific negligently operated, the train much impose These words were never intended to willfully that less the collision was higher ordinary of a standard care than recklessly caused, and no to show evidence care, degree by of care exercised operate that was unfit Kleinman to person reasonable under circumstance that operated train. Kleinman avers he Thus, required take s.6 railroad is to course, properly. train Of Kleinman’s tes injury crossing to precautions prevent biased, timony is there are no known person motorists a reasonable in the rail surviving witnesses than crash other position precaut take road’s would such Nevertheless, employees. Union Pacific ions.7 lacking contrary, any evidence In determining what is reasonable neg conclude that failed to show of under the circumstances a railroad ligence in operating the train or in entrust every it is railroad operation obvious ing its to Kleinman.3 hazardous, but, crossing is since it is claim Pacif Union practicable to eliminate all railroad cross on which ic evidence was introduced was simple ings, the existence of a railroad the claim for maintenance of the crossing duty is not in itself breach of way, supported, railroad of everyday Much presents of care. of life view, plaintiffs’ point of Cromme- hazards; walking driving along a street proceed lin’s affidavit. We therefore hazardous, stairs, electricity, are are and so consider claim. many things, other but we tolerate impracticabili It is settled that railroad has those hazards because of duty rights way determining In ty eliminating tort maintain its in a them. Roofing Asphalt Paving English, See Ron & Co. v. Case 45 P. at 6. 50. 1382, 1989); Blomquist, (Utah P.2d 773 1385 Co., Apartments Creekview Ins. State Farm Univ., Young Brigham 7. See Meese 771 693, (Utah Ct.App.1989). P.2d 695 Co., (Utah 1981); Whitman v. W.T. Grant 720 16 81, (1964); Utah 2d Restatement Co., 4. Gleave v. & Rio W. Denver Grande R.R. (Second) 283 Torts (Utah Ct.App.1988). 662-64 Co., 5. Wilde v. & Rio Denver Grande W.R.R. No. C-83-149J, (D.Ut. slip op. at WL17370 3, 1985). April mishap involving imposition duty

whether a one of those The of a tort on the rail- tortious, question hazards is is not road to vegetation remove or maintain the existed, whether rather a hazard clearly was therefore correct. whether, prevailing community stan- dards, In nothing the defendant should bear the re- there is to indi sponsibility to discover and ameliorate a cate what could have Pacific’s made.Union hazard, light practicability of do- right way crossing safer to motorists society so and the costs benefits to Droubay path Road. The of the train is requiring the defendant so to act.8 clearly visible to motorists. crossings, the case of railroad the cost of suggest that Union Pacific hazard, eliminating such install- placed warning signs should have and de ing overpasses crossings, all Road, including vices on automat ones, including rural does not warrant a gates blocking ic traffic on the Road from rigorous simply having care so crossing ap the tracks when a train was a railroad cross a street is tortious. Rath- not, however, proaching. respon It is er, for a railroad to be liable for a sibility place signs of the railroad to mishap, something there must be about the devices on the road. The railroad right way railroad’s of that creates a haz- right way, maintain must its own of but it greater hazard ard to motorists than the any duty place signs is not under to or presented simple by the fact that the rail- public on the devices road. road and the street intersect. design and maintenance of state determining In reasonable what is and the of traffic roads control on state require liability to of a railroad its tort responsibilities pre- roads are UDOT’s crossings, for it would thus be error to hold law, rogatives.10 responsi- At common this right way that the railroad of cannot cross bility at railroad was shared with a street. for such a Thus, in English, the railroad.11 the rail- required every railroad is to take reason failing flag was found for to road liable safety action able to assure of motor intersecting city motorists on an street. reasonably expected ists who can be to however, English, UDOT has been Since right way. determining cross the of established, Legislature and the invested what is reasonable under the circumstances “power pre- determine and UDOT with to case, specific of a the trier of fact must protection scribe the manner ... of ... of ultimately weigh the burden on the rail 12 responsi- crossing.” Although each that road, indirectly public, requir on the of bility way in no reduces the railroad’s re- ing precautions, against added the benefits right way,13 sponsibility to maintain its of by public large that would derived be nevertheless, ordinary circum- would precautions. example, in from such For stances, place the railroad the role of case,9 vegetation the Gleave wild on the meddler, usurper if trespasser, or the rail- right of obscured trains put signs public road road were to on crossing. from motorists at the The cost public or forbid traffic on the road removing maintaining vegetation of or way. its of Union Pacific compared minimal was to enormous place no or public being therefore had benefit to the able to see Road, roadblocking approaching frequent train at a Co., Although Walgreen Drug the railroad does not Erickson v. 120 Utah 11. we hold that 8. See 31, 210, (1951); authority responsibility place signs Wag or or 232 P.2d 31 A.L.R.2d 177 road, public Waterslide, Inc., we note that the roadblocks on the 744 P.2d oner (Utah public protecting road con cost of users of 1987). App. pursuant railroad tinues to be shared with the (1990). § to Utah Code Ann. 54-4-15.3 Co., R.R. 9. Gleave v. Denver & Rio Grande W. (Utah 1988). 749 P.2d 662-64 54-4-15(2) (1990). § 12. Utah Code Ann. Gleave, 664. 10. Utah Code Ann. 54-4-15.1 749 P.2d at pathbreaking came in tort for its failure Bowen after Stan and it not liable City so. Corp., do v. Salt Lake diford (Utah 1980), did not cite Standi- CLAIMS AGAINST UDOT “governmental refer test for to its ford ' function,” threshold Governmental held that plain analysis. principal defense14 im determining governmental sov tiffs. Governmental shields the test ereign policy-making and from munity activity discretion is “whether the under con damage generally pre claims unique state-law that it sideration is such a nature damage performance cluding liability for performed by can be function, subject to certain essential the core of agency or it is statutorily enumerated waivers.15 activity.” Standiford, 605 test, we exam 1236-37. Under governmental immuni- Resolution of the itself, activity nature not the ine the case is ty question controlled activ identity person performing Gleave, govern- that'UDOT which held example, ity. In this pre- mentally determining immune in question designing and main consists persons in warning method to used cise be taining analysis a road. It would make the public approaching tautological design the activity to define crossing. We follow and hold maintaining govern add, in this case. We UDOT immune road.16 mental however, a to address the few comments arguments of in this particular counsel sepa- Judge points in his As Jackson out case. opinion, the concurring rate absence a could Bowen of reference cite Bowen Riverton Standiford procedural pos- a the simply be result of (Utah 1982) 656 P.2d 434 in an at City, Possibly of the case. the ture Bowen tempt governmental immunity. to avoid court in were the issues before the Bowen Bowen, Supreme the Utah Court reversed case, prima of Bowen’s facie summary in elements judgment a favor of Riverton govern- did reach the issue of a the court not in a tort action. Bowen asserted that defense, it a sign busy a mental because stop Riverton intersection prima of facie lying ground on as and rather than an element the was Bowen However, emphasis Riv- vehicle in the Bowen’s another collided intersection. case. issue, logically immunity of is not in nor have 14. We do not reach the affirmative officials governmental immunity plaintiffs arguments defense of determining without first raised constitutional such presuming plaintiff or that a has University as those considered in Condemarin v. prima case. established facie See Ferree (Utah 1989). Hospital, 775 P.2d 348 Utah, (Utah 1989). How- State ever, 784 P.2d 149 of prima liability while was governmental facie adopting func- its test for 16.In perhaps implicitly presumed the district tion, in govern- the earlier renounced Standiford reasoning, district did not ex- court’s court mental/proprietary of in- distinction because prima pressly plaintiffs’ review claim facie developed that had over the course consistencies against UDOT. are delve into We reluctant to application. of its the trial has not ex- an issue pressly court test, governmen- Like ruled, explained the reasons in Zions for tal/proprietary originally meant distinction Co., Nat’l Bank v. National Am. Title Ins. First governmental application of im- restrict the to munity. Therefore, (Utah 1988). we time, However, governmen- in governmental choose to rest decision on our analysis degenerated tal/proprietary real from argu- presume purposes meaning simple categorization thought of its (but hold) plaintiffs do that the ment involving golf question in prima negligence by stated a facie case course, extent, park, hospital, etc. To some Utah, UDOT. See Kirk v. State consequences a facile the same can result from (Utah App.1989). categorization approach under the Standiford entry 15. See Utah Code Ann. § 63-30-10 We decline to make an test. therefore se, laundry per governmental list functions scope governmental immunity a eliminating issue thought all in future cases of in this case is limited. Plaintiffs have not sued any governmental personnel, therefore, test basic established Standiford. duty erton’s to maintain government streets becomes is not liable in tort for its disingenuous lip rather if service Riverton failure to better maintain or to enhance the a viable defense of im- signage. signage If the cogniza- has some munity against liability all based on that warning ble effect in controlling traffic duty. While procedurally important it is hazard, at a clear its maintenance and im- observe the distinction between provement are functions for prima defenses, facie case and defendant’s government which the is immune from suit sense, in a more ultimately basic what is in Utah courts. important scope re- Highway maintenance improvement which, sponsibility, in a well-pleaded are predominately17 Every fiscal matters. prima function both of liability facie highway probably could be made safer and available defenses. It would also seem expenditures, further but we will not hold to be a waste of resources to reverse and (and implicitly, UDOT the legislature) neg- remand Bowen for a negligence trial on the ligent having to strike a difficult bal- question if there was no for Bowen to ance between the greater safety need for recover due to immunity. funding and the burden of improvements. emphasis Bowen’s on the pointed As we out in and as UDOT government’s duty in tort to assure safe emphasizes here, there are hundreds of entirely streets is consistent with Standi- Utah, unelectrified railroad ford, accept premise fiscally is not equip feasible to them decision whether to any exert control at all all with the possible best means of assur- over intersecting govern traffic is not a Rather, traffic safety. priori- UDOT giving mental function rise to tizes the crossings allocating the limited words, liability. tort In other funds crossing improvements. available for government may be held liable in tort to judiciary The role of the prioritiza- provide some warning effective or control tion and process allocation is strictly limit- city for traffic at a intersection. seeking ed. In a judicial case review of provide some warning effective process, that administrative we would exer- distinguished control must be from more reviewing cise our function with deference than minimal maintenance and from en agency to the administrative under the “ar- providing hancement of the means of warn bitrary capricious” and standard. How- ing and control. The case of Richards v. ever, this, in a tort action such as the Leavitt, (Utah 1985) 716 P.2d (per 276 cu- governmental deference to a function is riam) required compliance the with notice waived, absolute unless and we do not re- requirements governmental view it at all principles. under tort for a claim allegedly inadequate based on case, stop sign. presented maintenance of a this we are not From a com with a parison traffic, any of Bowen and lack of effective Richards and in control light Gleave, long conclude that as since there are three warning or signage approaches control of a clear Road where it haz the railroad. ard is in enough existence and maintained recovery The basis asserted here for give effectiveness, it minimal against the UDOT is its failure to better warn every governmental 1981). activity 17. Not that affects the sources of funds to con- public the activity pay judgment fisc is a function. duct the an or to eventual functions, Clearly nongovernmental ques- such as do not the determine whether in recreation, providing utility services or or serv tion is a function. In this ing process, may part by disregarding be financed in funds the fact that the funds for railroad through governmental crossings may obtained tions, part public revenue exac- derive in from liability sources, performing and incurred in those we are nevertheless left with an over- ridingly question: spend functions will be satisfied out of the treasury. fiscal How much to Conger, See improved. v. 755 165 each railroad that could Schultz be (Utah 1988); governmental budgeting Dalton v. Salt Suburban Sani We believe that the Lake and Dist., (Utah tary 1984); spending deciding 676 P.2d 399 improve Thomas v. involved in how to (Utah 1982); City, 642 P.2d safety 737 John the of railroad suffice to make Clearfield (Utah city Corp., son v. Salt Lake 629 P.2d 432 that decision a function. analysis faulty governmen traffic at Since from the and control the Contrary major the issue. immune tal is we have concluded that UDOT characterization, supra at UDOT’s ity’s minimal failure to do than for its more con activity in case does not general control, plaintiffs warning and we hold that “designing maintaining and a road.” sist of or the State. cannot recover UDOT improve the and It consists of installation safety signs at ment of traffic CONCLUSION crossings. specific, for the railroad As that, hold even We therefore in this case UDOT, plain by purportedly act considering the Crommelin affidavit alleged negli that in this case UDOT tiffs light most considering the evidence in different, presum to install a gently failed plaintiffs, they failed favorable to safer, warning kind of traffic device ably in any negligence by Pacific show Union crossing. The same claims were a railroad right of design and of its maintenance plaintiff in v. Denver by raised Gleave for responsible Pacific is way. Union not W.R., (Utah & Rio Grande roads, and the controlling traffic on state denied, (1988). Ct.App.), P.2d 1278 cert. warning state, having given at least some recognizes, majority the outcome As the crossing, gov- is at this or control railroad in which this case is controlled ernmentally deciding immune whether to (1) activity in general we held that UDOT’s warning means of control improve the installing, maintaining, and im evaluating, crossing because of fiscal effects rail safety signals or devices at proving a decision. such crossings is a function (1986) Thus, Utah Code Ann. 63-30-3 not shown within these have § the test set forth in by the in the accident negligence (Utah City Corp., 605 P.2d 1230 Lake oncoming train Salt crossing, where the at this 1980); (2) specific act of UDOT clearly lengthy distance visible negligent, plaintiff claimed was which crossing, toward on the road i.e., upgrade safety devices at the failure to negli- train was not shown to have been crossing, out of particular railroad arose operated. Signs approach- gently notified function, discretionary of a the exercise drivers of but UDOT Div. test State under the Little Utah more having expended for not not liable Servs., (Utah Family im- making safety more extensive funds 1983), not been might prevented provements 63-30-10(l)(a) Code Ann. waived Utah holding net accident. The effect of if the railroad’s does train, the negligently obscure majority appears unaware of operated, visi- properly some train analysis used, example, two-step — age the warning sign present on ble is Rocky Mt. and Stores Salt Gleave Thrift road, plaintiff then the is not entitled public (Utah 1989) Corp., 784 P.2d 459 City Lake in the cross- injury to relief tort for an at necessary governmen- to resolve a —that is do not outcome to be ing. We consider this immunity parties claim in which the tal tragedy in unjust, although any whether, harsh or activi- general even if the contest regrettable, impaired function, life is lost or is allegedly governmental the ty is a the cause. whatever arose the exercise of a negligent act out of “discretionary function” under section 63- is plaintiffs’ case The dismissal 30-10(1). general activity If the under con- affirmed. function is not sideration 63-30-3, meaning then section within BENCH, J., concurs. immunity. general activi- there is no If the JACKSON, Judge (concurring): function, then the ty is a Although I reached determine if applied concur in the result test must be Little analysis, negligent in act or majority specific, allegedly and of its by the most discretionary sec- separately myself purely under I write disassociate omission 63-30-10(l)(a). decision in Bigelow Ingersoll, purely prior tion If it is discre- on its tionary, immunity (Utah 1980), then has not been years 618 P.2d 50 decided two Bowen, 63-30-10(l)(a). waived section If it is Leavitt before court re- purely discretionary, then express affirmed that the waiver of immu- 63-30-10(1). has been waived section nity in section subject 63-30-8 is not to the 63-30-10(l)(a) discretionary section func- appreciate The failure to the difference exception immunity. tion to the waiver of inquiries appar between these two distinct The court thus read section 63-30-8 as ently majority’s confusing underlies the at expressing legislature’s view tempt to harmonize the results in Bowen v. act in govern- or omission the exercise of a (Utah 1982) City, Riverton “defective, mental function that created a Leavitt, and Richards v. unsafe, dangerous or condition” on (Utah 1985) curiam) (per with could never involve and Gleave. Governmental policy-making basic level for which immuni- Bowen, not even an issue in a case involv ty preserved by 63-30-10(l)(a). section allegedly negligent failure of the city stop sign to maintain a that had been Bige in Leavitt and plaintiffs Unlike the down, really surprising knocked so it is not low, however, exactly injured like the that no mention was made of Standiford. Gleave, plaintiff appellant and railroad in actually It is the substance of the issues P.2d at n. in 667 & assumptions raised in and the tacit made pleaded case have never contended Bowen, procedural posture, not the case’s discretionary analysis function important. summary judgment that is 63-30-10(l)(a) unnecessary section city, supreme in favor of the which the injuries the decedents’ irrelevant because Bowen, court granted reversed had been dangerous resulted from an unsafe or con city on the basis that the was not purview dition on a road within the facts; undisputed as a matter of law on the Instead, they asked the section 63-30-8. summary judgment granted was not trial court and to overrule one of the us any immunity. the basis of The first un Gleave holdings two aforementioned Bowen, spoken assumption in which was (1) evaluation, conclude either that UDOT’s in Leav subsequently express holding installation, maintenance, improvement itt, 716 P.2d at is that the maintenance safety signals or devices at railroad repair governmen of traffic is a is not function Leavitt, tal function. which also involved a 63-30-3; (2) fail within section municipality’s failure maintain a traffic upgraded safety ure to install intersection, highway control device at a did not arise subject issue not raised Bow addressed another 63-30-10(l)(a) discretionary out of a section en, i.e., whether for the exercise function. of that function been my colleagues and I unani- Since in Bowen statutorily waived. The court mously declined the invitation to abandon had, tacitly assumed that it or the summa majority that the is unfortunate ry judgment municipality favor of already adds confusion to an difficult area could have been affirmed on the alternate of Leavitt analysis of law its flawed The Leavitt court ground immunity. Bowen, disregarded as which should be immunity provided concluded that dicta. city by section for its activities 63-30-3 maintaining traffic control section 63-30-8 expressly been waived defective, any injury

“for caused un

safe, dangerous any high condition road, street, crosswalk,

way, alley, side

walk, culvert, tunnel, viaduct, bridge, Relying

other structure located thereon.”

Case Details

Case Name: Duncan v. Union Pacific Railroad

Court Name: Court of Appeals of Utah

Date Published: Apr 12, 1990

Citation: 790 P.2d 595

Docket Number: 890291-CA

Court Abbreviation: Utah Ct. App.