Carter v. Nat'l R.R. Passenger Corp.

• Decision Date: 08 August 2014
• Docket Number: Case No. 13–cv–00809–JCS
• Citation: 63 F.Supp.3d 1118
• Court: U.S. District Court — Northern District of California
• Parties: Kimberly Carter, et al., Plaintiffs, v. National Railroad Passenger Corporation, et al., Defendants.

63 F.Supp.3d 1118

Kimberly Carter, et al., Plaintiffs

v.National Railroad Passenger Corporation, et al., Defendants.

Case No. 13–cv–00809–JCS

United States District Court, N.D. California.

Signed August 8, 2014

Jennifer L. Fiore, Mary E. Alexander, Mary Alexander & Associates P.C., San Francisco, CA, Robert L. Pottroff, Pottroff Law Office, P.A., Manhattan, KS, for Plaintiffs.

B. Clyde Hutchinson, Scott Owen Lafranchi, Lombardi, Loper and Conant, LLP, Oakland, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Re: Dkt. No. 118

JOSEPH C. SPERO, United States Magistrate Judge

I. INTRODUCTION

This case involves the tragic death of Gary Carter, who was struck and killed by a passenger train on December 3, 2011. In this action, his wife and minor child assert wrongful death and survivor claims against National Railroad Passenger Corp. (“Amtrak”) and Union Pacific Railroad Company (“Union Pacific”) arising out of the death of their husband/father.¹ Amtrak and Union Pacific now bring a Motion for Summary Judgment, or, in the Alternative, Partial Summary Judgment (“Motion”). A hearing on the Motion was held on August 1, 2014. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.²

II. BACKGROUND

A. Facts

1. Events of December 3, 2011

On the morning of December 3, 2011, Gary Carter drove himself and his three dogs to the Silliman Sports Complex, in Newark California, near Mowry Avenue and Stevenson Boulevard. Declaration of Kimberly Carter in Opposition to Defendants' Motion for Summary Judgment (“Carter Decl.”), ¶¶ 2, 9. He and his wife Kimberly, along with their son Grant, frequently walked in a nearby nature area, often with their three dogs. Id., ¶ 2; Declaration of Scott O. LaFranchi in Support of Defendant Union Pacific Railroad Company and National Railroad Passenger Corporation's Motion for Summary Judgment (“LaFranchi Decl.”), Ex. A (K. Carter Dep.) at 25–26 (testimony by Kimberly Carter that she and her husband had gone to this area to walk the dogs approximately 300 times and that Grant had come along about 150 to 200 of those times). According to Kimberly Carter, when they went to the nature area they always parked at the Silliman Sports Complex parking lot, by two palm trees at the end of a long gravel section of the lot that runs along a baseball and soccer field on the east and the railroad track on the west. Carter Decl., ¶ 3 & Ex. 1(A).³

It is undisputed that Mr. Carter walked from his car to the area of impact, which occurred approximately 508 feet south of the Stevenson Boulevard private grade crossing. Joint Statement of Undisputed Material Facts (“JSUMF”), No. 2. According to Kimberly Carter, her husband would have walked the way they had always walked, heading south on a trail that began near their regular parking spot, walking for a short distance alongside the track on that trail and then turning right onto a “worn, beaten path” across the railroad tracks. Carter Decl., ¶¶ 5–7 & Ex. 1 (B-E); see also Declaration of Jennifer L. Fiore in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment (“Fiore Decl.”), Ex. 1 (K. Carter Dep.) at 30. After crossing to the west side of the railroad tracks, Mr. Carter likely would have walked on a dirt road that ran parallel to the tracks, crossing a wooden bridge that was the only bridge across a channel. Carter Decl., ¶ 8 & Ex. 1 (G–H).

The raw data from the Amtrak train that struck and killed Mr. Carter was recorded on the train's event recorder (“Event Recorder”). See Declaration of Leo Caniezo in Support of Union Pacific Railroad Company and National Railroad Passenger Corporation's Motion for Summary Judgment (“Caniezo Decl.”), ¶ 2–3; see also Declaration of Foster J. Peterson in Support of Union Pacific Railroad Company and National Railroad Passenger Corporation's Motion for Summary Judgment (“Peterson Decl.”), ¶¶ 2–4 & Ex. A (Data Table created using Wabtec Railway Electronics Data Analysis Software (“DAS”), translating raw data from event recorder).⁴ Amtrak also installs video cameras on the front of its trains and thus, there is video footage that shows some of what occurred that day. Caniezo Decl., ¶ 4 (establishing chain of custody for video); Declaration of Clyde Moore, II in Support of Defendants National Railroad Passenger Corporation and Union Pacific Railroad Company's Motion for Summary Judgment (“Moore Decl.”), Ex. A (copy of video downloaded from Amtrak locomotive involved in incident for December 3, 2011 (“Locomotive Video”) ). Nonetheless, many of the basic facts about the events that occurred in the last moments before impact, particularly with respect to timing, are in dispute.⁵ For example, the parties' experts do not agree on whether the train operator applied the brakes before or after striking Mr. Carter. See Motion at 4 (stating that Lobato applied the brakes approximately 3 seconds before impact (citing Declaration of Brian P. Heikkila in Support of Defendant Union Pacific Railroad Company and National Railroad Passenger Corporation's Motion for Summary Judgment (“Heikkila Decl.”), Ex. A (Heikkila preliminary expert witness report (“Heikkila Report”) ) §§ 3.5, 3.9) ); but see Opposition at 5 (stating that “Lobato and Battles did not apply any braking mechanism until after striking Mr. Carter and his dog” (citing Declaration of Paul Byrnes Submitted in Opposition to Defendants' Motion for Summary Judgment (“Byrnes Decl.”), ¶¶ 8, 20) ).

The general outline of the relevant events is as follows: the Amtrak train that struck Mr. Carter was travelling southbound, having already passed the Mowry Crossing; it was approaching the Mowry Control Point and switch (which were south of the Mowry crossing) and beyond that, the Stevenson Crossing. See Byrnes Decl., ¶ 6; FioreDecl., Ex. 3 (Lobato Dep.) at 34–35; Fiore Decl., Ex. 7 (Battles Dep.) at 32–33. The train passed a whistle board (which tells the crew of a train travelling over 45 mph to begin sounding the horn for a train crossing, see Byrnes Decl., ¶ 6) that was approximately a quarter mile north of the Stevenson Crossing, and at that point the crew began to sound the horn. Id. The train proceeded through the Stevenson Crossing and continued to travel southbound. Id.

Mr. Carter, in the meantime, had already crossed the tracks from the east side of the tracks (where he was parked, near the Silliman Sports Complex) to the west side of the tracks (where the open-space nature area was located) and was walking with his three dogs along the dirt road that ran parallel to the tracks. See Carter Decl., ¶¶ 3–8. Engineer Lobato testified that he first saw Mr. Carter and a large dog “walking between the gauge of the tracks” “sometime between the whistle board and the [Stevenson] crossing.” LaFranchi Decl., Ex. B (Lobato Dep.) at 34. He further testified that as he was approaching the crossing he saw “the gentleman and the dog walk off to my left, off the ... tracks, clear of the tracks, and then as [the train] passed the crossing, [he] saw the gentleman start walking back up on to the tracks and—bending over to ... pick up a smaller dog.” Id. ; see also Fiore Decl., Ex. 7 (Battles Dep.) at 56–58 (testifying that before passing through the Stevenson crossing Battles saw Mr. Carter between the gauge of the track and then, within 5 to 10 seconds Mr. Carter moved off the tracks). The parties disagree as to how many seconds before impact Mr. Carter returned to the tracks to save the dog that was still on the tracks. See Motion at 4 (stating that Mr. Carter returned to the tracks 3 seconds before impact (citing Heikkila Decl., Ex. A (Heikkila Report), §§ 3.2, 3.7, Locomotive Video and Event Recorder); Opposition at 4 (stating that Mr. Carter returned to the tracks “at least five seconds before impact” (citing Byrnes Decl., ¶ 20) ).

At some point before impact (how many seconds before impact is disputed) Lobato sounded an emergency horn to warn Mr. Carter of the oncoming train. Byrnes Decl., ¶ 15 (stating that emergency horn was sounded 1–2 seconds before impact); Reply at 16 n. 12 (citing Event Recorder Data Table) in support of assertion that emergency horn was sounded “at least 6 seconds before impact”).

Both Mr. Carter and his dog were struck and killed.

2. Area Where the Events Occurred

The area at issue in this case runs from the Mowry Avenue Crossing, at approximately Mile Post (“MP”) 33.23 to approximately MP 34, which is “a moderate distance compass point south of the Stevenson Boulevard crossing.” Declaration of Dale Bray in Support of Defendants National Railroad Passenger Corporation and Union Pacific Railroad Company's Motion for Summary Judgment (“Bray Decl.”), ¶ 22 (describing this area as the “Subject Area”).⁶ It is undisputed that the incident occurred on Union Pacific's Coast Subdivision on tracks owned by Union Pacific. JSUMF, No. 3. It is also undisputed that Amtrak does not own any of the tracks or right of way in this area. Id.

Defendants have presented evidence that this area is “a relatively remote and industrial location with almost no residential and only limited commercial activity in the surrounding properties.” Bray Decl., ¶ 5. Further, according to Union Pacific patrolman Dale Bray, Union Pacific has taken an “aggressive approach to the issue of trespassing” and “does not allow people on its right of way in the Subject Area without express permission and authorization.” Id., ¶ 3. Bray states that prior to the incident, Union Pacific's Police Department employed special agents to remove trespassers from its rights of way and also engaged in public outreach “dealing with the issue of trespassing on railroad property.” Id., ¶ 4. He further states that he reviewed the records of the Union Pacific Police Department for the period between January 1, 2009 and December 31, 2011, and that based on his review, he could attest that there “was minimal reporting of trespasser activity in the Subject Area and...