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, PIPELINE CONSTRUCTION & MAINTENANCE, INCORPORATED; ZURICH AMERICAN INSURANCE COMPANY, Intervenors–Appellants. versus UNION PACIFIC RAILROAD COMPANY; UNION PACIFIC RAILROAD CORPORATION; KINDER MORGAN G.P., INCORPORATED; KINDER MORGAN ENERGY PARTNERS, L.P., Defendants–Appellees.
No. 18-30824
United States Court of Appeals for the Fifth Circuit
December 16, 2019
Before OWEN, Chief Judge, JONES and SMITH, Circuit Judges.
Appeal from the United States District Court for the Middle District of Louisiana
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
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 crossbuck3 at the Crossing, though it stopped short of taking further precautionary measures—such as lights, gates, or contract flaggers—that it
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.”
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.
Although Louisiana statutory law requires owners of public rail crossings to install various visual safety devices, see, e.g.,
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[.]”
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
Nevertheless, “it is not for us to adopt innovative theories of recovery under state law,” “[e]ven in the rare case where a course of [Louisiana] decisions permits us to extrapolate or predict with assurance where that law would be had it been declared[.]” Meador, 911 F.3d at 264. The only Louisiana case to speak directly to the respective duties surrounding private versus public rail crossings is approaching its centennial. See Townsend v. Mo. Pac. R.R. Co., 3 La. App. 598, 603–04 (1925). Being a federal court, “out of the mainstream of [Louisiana] jurisprudential development,” we decline to issue a holding so broad as to affect tort duties relating to all private rail crossings. Meador, 911 F.3d at 264.
B.
It is not a novel supposition, however, that Louisiana law imposes on owners and operators an extra-statutory
Although the plaintiffs cite a variety of “dangerous conditions” at the Oil & Gas Crossing, they do not contend that motorists must venture dangerously close to the tracks to obtain a line-of-sight with an oncoming train. Therefore, as a matter of Louisiana law, the Crossing is not a “dangerous trap.” See Davis, 137 So. 3d at 13.
Even so, Union Pacific might be held liable should the Oil & Gas Crossing constitute a “unique hazard.” Beyond the “dangerous trap” doctrine, a railroad may be found liable—notwithstanding “compliance with statutory provisions“—for providing inadequate safety devices at distinctly dangerous crossings. Duncan, 773 So. 2d at 676; but cf. Davis, 137 So. 3d at 13. In Duncan, 773 So. 2d at 677, the Louisiana Supreme Court held that a high-volume, high-speed intersection created “visual clutter” amounting to a “unique hazard,” against which “the jury could have reasonably concluded that [the railroad] had a duty to plaintiffs to protect[.]” The plaintiffs do not allege that the Oil & Gas Crossing is beset by such visual clutter, but we must consider whether other “unique” conditions might qualify it as critically hazardous. See id.
The aforementioned “dangerous conditions” of the Oil & Gas Crossing, though not relevant to the “dangerous trap” doctrine, would inform our “unique hazard” inquiry. The plaintiffs claim that an elevation change and curve in the track, combined with surrounding vegetation, reduces the distance at which motorists can view oncoming southbound trains. They further contend that noise from oil field equipment and vehicles impedes motorists’ ability to hear a train horn. Under such conditions, the plaintiffs estimate that “a motorist would have less than four seconds to see and hear [a southbound] train” traveling at the sixty-mile-per-hour limit. Further, the proximity of the Crossing between the public highway and the locked gate leaves limited space for large commercial vehicles.7 Union Pacific knew that such vehicles regularly traversed the Crossing and that one of them had already collided with a train. Under the totality of the circumstances, we believe a “jury could [ ] reasonably conclude[] that [Union Pacific] had a duty to plaintiffs to protect against the unique hazard presented by the [Oil & Gas] crossing.” Id.
The mere existence of a duty would not be enough to establish liability; the plaintiffs must also prove, among other things, that Union Pacific breached that duty. See id. at 675–76. Plaintiffs assert that if Union Pacific had provided “active warnings“—such as lights, gates, or flaggers—the accident “likely would not have occurred.” But the railroad would be required to take all possible precautions to prevent any collision.8
The plaintiffs have not presented evidence indicating otherwise. Although not necessarily required to do so, Union Pacific cleared surrounding vegetation in compliance with Louisiana statutory law for public crossings. See
Neither have the plaintiffs presented facts suggesting that Union Pacific violated a voluntarily assumed duty. “Unique hazard” doctrine notwithstanding, once Union Pacific had “voluntarily assumed” a duty to warn motorists, Louisiana law requires it perform that duty “with due care.” Saldana v. Larue Trucking, LLC, 268 So. 3d 430, 437 (La. App. 2d Cir. 2019), writ denied, 2019 La. LEXIS 2389 (La. Oct. 1, 2019). Plaintiffs do not dispute that Union Pacific installed warning signs or even that the decedents saw those signs.10 Instead, they assert that Union Pacific‘s signage was in fact counterproductive, as “most [recent] incidents at private crossings occur at crossings with stop signs.” But correlation does not imply causation—stop signs are the most common passive warning device.11 Neither are we convinced by the plaintiffs’ proffered studies questioning the general efficacy of stop signs based on poor compliance rates or deleterious traffic effects: The decedents did stop at the sign, and the traffic buildup on the other side of the Crossing resulted from the gate, not the sign.
“A motorist negotiating a railroad crossing is burdened with the responsibility of seeing and hearing that which he could have seen and heard, and he is presumed in law to have seen and heard what he could have seen and heard.” Glisson v. Mo. Pac. R.R. Co., 165 So. 2d 289, 291 (La. 1964). Although the plaintiffs cite dangerous conditions to support application of a potential duty to warn motorists approaching the Oil & Gas Crossing, they have not shown why the signs Union Pacific installed were insufficient to fulfill any such duty.12
IV.
The plaintiffs also claim that Union Pacific was negligent in operating the locomotive
A.
The Federal Railroad Safety Act (“FRSA“),
Federal law “substantially subsumes” the subject of train-horn operation in emergencies. The relevant regulation states that “a locomotive engineer may sound the locomotive horn to provide a warning to animals, vehicle operators, pedestrians, trespassers or crews on other trains in an emergency situation if, in the locomotive engineer‘s sole judgment, such action is appropriate in order to prevent imminent injury, death, or property damage.”
First, the plaintiffs suggest that Union Pacific‘s internal horn-sequence rules14 were created per
Nor do we accept the plaintiffs’ assertion that Union Pacific issued its internal policy on horn patterns “pursuant to” Section 222.23. Although that regulation subsumes the subject matter of horn blasting in emergency situations, it does not impose a duty or even suggest that a railroad instruct its engineer on a precise horn sequence. Its plain language in fact suggests the opposite: Engineers should maintain “sole” discretion in use of the horn. That such horn use might take the form of a particular sequence is immaterial.15
The plaintiffs cite Carter v. National R.R. Passenger Corp., 63 F. Supp. 3d 1118 (N.D. Cal. 2014), to suggest that their claims are not preempted. That case, however, involved a public crossing subject to Section 222.21. See Carter, 63 F. Supp. 3d at 1157. Having discussed at length the distinction between private and public crossings in the realm of visual safety devices and Louisiana law, we are hardly willing to abandon the distinction when reading federal regulation. And even then, Union Pacific‘s internal rule could not have been made “pursuant to” Section 222.21, because that section prescribes a horn sequence different from that described in Union Pacific‘s rule.16 Because the plaintiffs have failed to identify an applicable regulation or order under which Union Pacific issued its internal rule regarding horn sequences, their “claim is preempted by federal law.” Hesling, 396 F.3d at 638.
Similarly preempted is the plaintiffs’ claim that Union Pacific violated a duty to train its employees on the limitations and effectiveness of locomotive horns in emergency situations. The plaintiffs style their claim as alleging that Union Pacific failed to apprise its employees of its own rules, and it is correct that Section 217.11 requires a railroad to instruct its employees as to the company‘s internal operating rules. But the plaintiffs fail to cite an applicable internal rule.17 It thus appears that the true issue they raise is that an engineer‘s training does not require that he be informed of horn effectiveness—a claim that is preempted by federal regulation.18
B.
As to horn volume, it is undisputed that
In support of their claim that the locomotive horn was insufficiently loud, the plaintiffs provide two forms of evidence. First, they assert that witnesses to the collision either did not hear the horn or heard it only briefly. Second, they attack the validity of Union Pacific‘s horn tests showing adherence to federal audibility standards by noting that the railroad did not record background noise during those tests.
Testimony from aural witnesses may create a genuine dispute of material fact as to the loudness of the horn. In one case, witnesses used a ten-point numeric scale to testify that the train horns sounded louder during actual operation than during the horn tests. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 513 (5th Cir. 1999), superseded by statute on other grounds, as noted in Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002). Those witnesses also heard the horns on many occasions, including during both testing and normal operation, rather than just one time. Id. at 512–14. Such testimony, notwithstanding the railroad‘s testing documentation, was enough to preclude summary judgment. Id. at 513–15.
The testimonial evidence in this case, however, is not. Unlike in Rushing, the plaintiffs’ witnesses did not hear the horn during both testing and regular operation, and their statements speak not to the loudness of the horn but of its timing and presence—that is, when they heard the horn, if at all.19 And plaintiffs have provided no evidence comparing what their witnesses heard (or did not hear) with what they would have heard had the horn met federal audibility standards.
In the absence of evidence suggesting the horn failed to meet federal audibility standards, it is not enough for the plaintiffs to call into question the validity of Union Pacific‘s tests. “[T]here must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252(1986). If we accept that the horn tests were worthless for failing to record background noise levels, the plaintiffs would only have negated evidence demonstrating the horn‘s compliance with federal standards; they would not have presented evidence suggesting non-compliance. Even presented in a light most favorable to the plaintiffs, the evidence would provide a factfinder with no basis for deciding that the horn did not meet federal audibility standards.
“While this matter involved a tragic accident, based on the evidence presented, we find there existed no genuine [dispute] of material fact that if proven at the trial would or could, under [Louisiana‘s] duty-risk analysis, demonstrate [Union Pacific‘s] liability for the fatal accident.” Davis, 137 So. 3d at 13. The summary judgment is AFFIRMED.