Berry v. Union Pac. R.R. Co.
| Decision Date | 24 June 2022 |
| Docket Number | Civil Action H-22-331 |
| Parties | MILDRED BERRY, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Terrell Michelle Thomas suffered serious injuries at a Union Pacific Railroad Company rail yard in August 2020. (Docket Entry No 1-3 at ¶ 6). Mildred Berry, as guardian and next friend of Terrell Michelle Thomas, sued Union Pacific for those injuries, alleging negligence per se and gross negligence. (Id. at 1, 2-3). The court granted Union Pacific's motion to dismiss on the basis that Berry's complaint did not plead that she had authority to sue on behalf of Thomas. (Docket Entry No. 7). Although the court recognized that Union Pacific argued several other bases for dismissal, and that Berry had responded that she thought the deficiencies could be cured, the court did not opine on the merits of any additional arguments and responses. The court's order permitted Berry to do what she requested-file an amended complaint that identified the basis for her authority to bring suit on behalf of Thomas and cure other pleading deficiencies.
Berry has now filed her first amended complaint-only four pages long-adding an allegation that she holds power of attorney for Thomas and brings suit as Thomas's “next friend.” (Docket Entry No. 10 at ¶ 2). Union Pacific no longer contests Berry's authority to bring suit on Thomas's behalf. Union Pacific argues that Berry's first amended complaint still fails to state a claim for negligence, negligence per se, and gross negligence. (Docket Entry No. 12). Berry has responded. (Docket Entry No. 15). The court heard argument on June 1, 2022, and the parties submitted supplemental briefing on June 3, 2022. (Docket Entry Nos. 16, 17, 18).
After careful consideration of the pleadings, the parties' arguments, and the applicable law, the court grants Union Pacific's motions to dismiss. The dismissal is with prejudice as to the negligence and gross negligence claims based on failure to maintain the premises and as to the negligence per se claim, because amendment would be futile. The dismissal is without prejudice and with leave to amend as to the negligence and gross negligence claims based on Union Pacific's failure to warn Thomas by sounding a signal for the approaching train. This dismissal is without prejudice because there is an inadequate basis to conclude that Berry could not amend to state a plausible claim for negligence for failing to warn Thomas of an approaching train. Berry may amend to attempt to plead her claim plausibly.
The reasons are explained below.
Union Pacific Railroad Company maintains a rail yard in Harris County. (Docket Entry No. 10 at ¶ 4). On August 13, 2020, Terrell Michelle Thomas entered the rail yard through an opening that was not at a gate or other intended entrance. Union Pacific allegedly “failed to maintain the fencing and gates surrounding its rail yard,” permitting “public access.” (Id. at ¶ 4).
Thomas was “struck by a rail car and subsequently run over,” while “in the process” of walking through the yard and over a track. (Id.). Thomas sustained severe injuries. (Id. at ¶ 5).
Berry alleges that the injuries resulted from Union Pacific's failures to:
(Id.). Berry does not allege specific facts supporting these conclusions.
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
“A complaint ‘does not need detailed factual allegations,' but the facts alleged ‘must be enough to raise a right to relief above the speculative level.'” Cicalese v. Univ. Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (alterations omitted) (quoting Twombly, 550 U.S. at 558).
A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
Berry does not specify whether her negligence claim is based on a negligent activity theory or a premises defect theory. “When distinguishing between a negligent activity and a premises defect, [the Texas Supreme Court] has focused on whether the injury occurred by or as a contemporaneous result of the activity itself-a negligent activity-or rather by a condition created by the activity-a premises defect.” Sampson v. Univ. of Texas at Austin, 500 S.W.3d 380, 388 (Tex. 2016) (citation omitted). A negligent activity claim requires a plaintiff to allege facts that could show that she was “injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (citations omitted).
Berry asserts both premises liability and negligent activity claims. To the extent she takes issue with the Union Pacific rail yard signage and fencing, she asserts a premises liability claim because she is alleging failures relating to the conditions of the railroad's premises. To the extent she takes issue with Union Pacific's failure to reasonably warn Thomas by sounding an audible signal of the oncoming train, she is asserting a negligent activity claim because she is alleging that she was injured by the contemporaneous activity of Union Pacific failing to warn. The court addresses each in turn.
1. Premises Liability
Under Texas law, failure to fence and provide proper warning signage or “maintain the rail yard” are the bases of a premises liability claim because they are failures to warn about the condition on the land-in this case, the presence of active train tracks. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (). “Premises liability is a special form of negligence where the duty owed to the plaintiff depends upon the status of the plaintiff at the time the incident occurred.” W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (citing M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295-96 (Tex. 1983)). A plaintiff generally falls in one of three status categories: trespasser, licensee, or invitee. See, e.g., Lechuga v. S. Pac. Transp. Co., 949 F.2d 790, 794 (5th Cir. 1992) (per curiam). “[S]tatus is a legal question except when sufficient issues of fact exist to warrant submission to a jury.” Id.
Union Pacific argues that the facts Berry has alleged show only that Thomas was a trespasser when she entered the rail yard. “A trespasser is ‘one who enter[s] upon property of another without any legal right or invitation, express or implied.'” Foote v. Texcel Exploration, Inc., 640 S.W.3d 574, 582 (Tex. App.-Eastland 2022, no pet.) (alteration in original) (quoting State v. Shumake, 199 S.W.3d 279, 285 (Tex. 2006)). Berry alleges that Thomas entered the rail yard because Union Pacific did not “maintain the fencing and gates surrounding its rail yard.” (Docket Entry No. 10 at ¶ 4). That fact alone supports the conclusion that Thomas was a trespasser because no allegation supports an inference that Thomas had a legal right or invitation, express or implied, to enter the rail yard. In her response to Union Pacific's motion to dismiss, Berry does not contest that Thomas was a trespasser.
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