Campbell v. Union Pac. R.R. Co.

• Decision Date: 24 November 2020
• Docket Number: WD 83328
• Parties: Judith Ann CAMPBELL, As Guardian and Conservator of Krista Molly Barnhart, Appellant, v. UNION PACIFIC RAILROAD COMPANY; Richard Louis Alsbury and William Lamar Woodward, Respondents.
• Court: Missouri Court of Appeals

616 S.W.3d 451

Judith Ann CAMPBELL, As Guardian and Conservator of Krista Molly Barnhart, Appellant,

v.UNION PACIFIC RAILROAD COMPANY; Richard Louis Alsbury and William Lamar Woodward, Respondents.

WD 83328

Missouri Court of Appeals, Western District.

Filed: November 24, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied December 22, 2020

Application for Transfer Denied March 2, 2021

Louis C. Accurso, Burton Haigh, Clayton E. Gillette, KCMO; Terry M. Evans, William S. Lewis, Miles B. Figg, Smithville; John J. Benson, Kirksville, for appellant.

Thomas E. Jones, Harlan A. Harla, Bellville, IL; Craig M. Leff, KCMO, C. David Rouner, Kirksville, for respondent.

Before Division Two: Lisa White Hardwick, Presiding Judge, Alok Ahuja and Karen King Mitchell, Judges

Lisa White Hardwick, Judge

Judith Campbell, guardian and conservator of Krista Molly Barnhart, appeals the circuit court's entry of two summary judgments in favor of Union Pacific Railroad Company, Richard Alsbury, and William Woodward on her negligence and punitive damages claims against them. Campbell contends that genuine issues of material fact remain precluding summary judgment and that the court's exclusion of the opinions of five of her experts was erroneous. We find that the circuit court erroneously granted summary judgment on Campbell's claims that Union Pacific, Alsbury, and Woodward failed to give an adequate audible warning; erroneously granted summary judgment on Campbell's punitive damages claim associated with the horn audibility claims; and erroneously excluded testimony from one of Campbell's experts concerning the horn's audibility. Therefore, the court's grant of summary judgment on the horn audibility claims and the punitive damages claim associated with those claims is reversed, as is the court's decision to exclude the expert's opinion concerning the horn's audibility. The cause is remanded for further proceedings consistent with this opinion. The judgments are affirmed in all other respects.

FACTUAL AND PROCEDURAL HISTORY

On the morning of April 11, 2015, Barnhart was driving her car on Gate Place Road in Mercer County. Gate Place Road intersects with Union Pacific's railroad tracks, resulting in the grade crossing designated as AAR/DOT crossing #605631A ("the crossing"). In the northeast quadrant of the crossing, there was a sign post with a crossbuck¹ and a red-and-white yield sign that faced westbound traffic. As Barnhart's westbound car approached the crossing, a southbound Union Pacific freight train, operated by engineer Alsbury and conductor Woodward, was approaching. The train was traveling between 46 and 47.5 miles per hour. The train crew began sounding the locomotive horn 19 seconds before the train reached the crossing.

Barnhart drove her car onto the crossing, and the train collided with her car. Neither Alsbury nor Woodward saw Barnhart's car approach the crossing. When the train hit Barnhart's car, both men heard a loud thump. Barnhart's car first appeared on the locomotive's Track Image Recorder ("TIR"), a fixed-mount video camera pointed in the direction of the train's travel, 2.3 seconds before the collision. During the 2.3 seconds, her car was traveling at a speed of 22 miles per hour. Woodward went to investigate, saw glass on the platform of the train, and alerted Alsbury, who engaged the emergency brake. Barnhart suffered permanent injuries from the collision.

Barnhart's mother, Campbell, subsequently filed this suit against Union Pacific, Alsbury, and Woodward, as Barnhart's guardian and conservator. Campbell asserted several claims against Union Pacific, including that Union Pacific was negligent in the construction and maintenance of an ultrahazardous crossing because it failed to maintain the crossing and failed to install or maintain adequate signage or warning devices; Union Pacific was negligent per se for failing to maintain the vegetation within the right-of-way at a public grade crossing; Union Pacific was negligent for the dangerous operation of a train because, among other things, its employees operated the train at a high rate of speed, failed to slow or slacken the train's speed, and failed to provide Barnhart with an adequate audible warning in accordance with federal and state law and regulations; and Union Pacific was negligent per se for dangerously operating the train in violation of state and federal statutes and federal regulations. Campbell also asserted negligence claims against Woodward and Alsbury for dangerously operating the train, which included allegations of operating the train at a high rate of speed, failing to slow or slacken the train's speed, failing to keep a proper lookout, and failing to provide an adequate audible warning. Lastly, Barnhart asserted a claim for punitive damages against Union Pacific.

In June 2019, Union Pacific, Woodward, and Alsbury (hereinafter collectively referred to as "Union Pacific") moved for partial summary judgment on the ground that federal and state law preempts Campbell's claims regarding the adequacy of the warning devices at the crossing and the allegedly hazardous or dangerous nature of the crossing. In August 2019, Union Pacific moved for partial summary judgment on all of Campbell's remaining claims except her negligence per se claim for failing to maintain the vegetation at the crossing. Additionally, Union Pacific filed motions to exclude the opinions of several of Campbell's expert witnesses.

After these motions were fully briefed and argued, the court entered an order sustaining both of Union Pacific's summary judgment motions. The court found, inter alia , that Campbell's claims regarding the adequacy of the warning devices at the crossing and the hazardous or dangerous nature of the crossing are preempted by the Federal Railway Safety Act ("FRSA") and state law; her claims based on Union Pacific's operation of the horn are preempted by the FRSA; her claims regarding the placement of the horn are preempted by the federal Locomotive Inspection Act ("LIA") and fail as a matter of law because there is no evidence that the horn's placement could have prevented the accident; her claims based on the train's excessive speed are preempted by the FRSA; her claims that the train crew failed to keep a careful lookout and to slacken the train's speed fail as a matter of law because there is no evidence that such failure caused or contributed to cause the accident; and her claims for punitive damages fail as a matter of law because she cannot establish the underlying tort claims and cannot establish that Union Pacific's actions justify the imposition of punitive damages.

In addition to sustaining Union Pacific's motions for summary judgment, the court sustained Union Pacific's motions to bar the opinions of five of Campbell's expert witnesses. Campbell filed this appeal. After filing her appeal, she voluntarily dismissed without prejudice any remaining claims.

Campbell raises eleven points on appeal, which we will address out of order. We will first address her points challenging the court's grant of summary judgment on her claims, then we will address her points challenging the exclusion of the opinions of five of her expert witnesses.

STANDARD OF REVIEW

Appellate review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Rule 74.04(c). "Only genuine disputes as to material facts preclude summary judgment." Goerlitz v. City of Maryville , 333 S.W.3d 450, 453 (Mo. banc 2011).

Where, as in this case, the movant is the defendant, the movant establishes the right to judgment as a matter of law by showing one of the following:

(1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to—and will not be able to—produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support [its] properly pleaded affirmative defense.

Roberts v. BJC Health Sys. , 391 S.W.3d 433, 437 (Mo. banc 2013).

In determining whether the movant has met this burden, we review the summary judgment record in the light most favorable to the party against whom the judgment was entered and accord that party the benefit of all reasonable inferences. Goerlitz , 333 S.W.3d at 453. We "do not weigh conflicting evidence or make credibility determinations." Brentwood Glass Co. v. Pal's Glass Serv., Inc. , 499 S.W.3d 296, 302 (Mo. banc 2016). "Instead, summary judgment tests ‘simply for the existence, not the extent’ of genuine issues of material fact." Id. (quoting ITT , 854 S.W.2d at 378 ). "A factual question exists if evidentiary issues are actually contested, are subject to conflicting interpretations, or if reasonable persons might differ as to their significance." Id. (citation omitted).

"Only evidence that is admissible at trial can be used to sustain or avoid summary judgment." Jones v. Union Pac. R.R. Co. , 508 S.W.3d 159, 162 (Mo. App. 2016) (citation omitted). "Hearsay statements cannot be considered in ruling on the propriety of summary judgment." Id. (citation omitted). The Supreme Court has quoted with approval Jones ’s description of the summary judgment principles underlying Rule 74.04:

[1] Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework. [2] Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record. [3] Affidavits, exhibits, discovery, etc. generally play only a secondary role, and then only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) record. [4] [S]ummary

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