Christoff v. Union Pacific R. Co.

• Citation: 36 Cal.Rptr.3d 6,134 Cal.App.4th 118
• Decision Date: 27 October 2005
• Docket Number: No. C047961.,C047961.
• Court: California Court of Appeals
• Parties: Steven J. CHRISTOFF, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.

36 Cal.Rptr.3d 6

134 Cal.App.4th 118

Steven J. CHRISTOFF, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.

No. C047961.

Court of Appeal, Third District.

October 27, 2005.

Law Office of Jonathan J. Zerin and Jonathan J. Zerin, Grass Valley, CA, for Plaintiff and Appellant.

Reed Smith and Jayne E. Fleming, Oakland; Union Pacific Railroad Company, Michael L. Whitcomb, Montery Park, William H. Pohle, Jr., Roseville, and Joseph P. Mascovich for Defendant and Respondent.

SIMS, Acting P.J. Plaintiff Steven J. Christoff appeals from summary judgment entered in favor of defendant Union Pacific Railroad Company (Union Pacific), in plaintiff's action alleging he was injured by a passing train while walking across a railroad bridge. Plaintiff contends triable issues exist regarding duty to warn and duty to remedy a danger. We shall affirm the judgment.

SUMMARY JUDGMENT

A motion for summary judgment should be granted if the submitted papers show that "there is no triable issue as to any material fact," and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c) (section 437c).) A defendant meets his burden of showing that a cause of action has no merit if he shows that an element of the cause of action cannot be established, or that there is a complete defense. (§ 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)

In cases where the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant moving for summary judgment must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true, or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 854, 861, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

We review the record and the determination of the trial court de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30.) "`First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. . . .'" (Waschek v. Dept. of Motor Vehicles (1997) 59 Cal.App.4th 640, 644, 69 Cal.Rptr.2d 296.)

THE COMPLAINT

On November 7, 2002, plaintiff filed a complaint alleging that, at 8:30 p.m. on March 12, 2002, he was injured by a passing Union Pacific train while he walked on a "pedestrian walkway" adjacent to train tracks on a railroad bridge that crosses over Arcade Creek parallel to Roseville Road. The air blast and suction from the passing train knocked plaintiff down and caused injuries. Plaintiff alleged defendant was aware that air blasts and suction from trains posed a danger to pedestrians on the pedestrian walkways, which was not readily apparent to persons unfamiliar with being in close proximity to moving trains. Defendant owed a duty to remove the danger or post warnings, and defendant breached the duty by failing to remove the danger, failing to post warnings, and negligently operating a train.

THE SUMMARY JUDGMENT MOTION

Defendant moved for summary judgment. The notice of motion stated as grounds that defendant (1) acted with reasonable care, and (2) was not a legal cause of plaintiff's injuries. The memorandum of points and authorities argued (1) defendant had no duty to warn plaintiff of open and obvious dangers on its property; (2) defendant acted with reasonable care to prevent injury to trespassers, and (3) there was no evidence defendant's alleged failure to warn of danger was a cause-in-fact of plaintiff's injuries.¹

The separate statement of undisputed facts asserted:

On the evening of March 12, 2002, plaintiff was walking along Roseville Road. Because the sidewalk narrowed as the road crossed Arcade Creek, plaintiff was concerned for his safety and decided to use the nearby Union Pacific railroad bridge to cross the creek. He had an unobstructed view of the train tracks, which ran in a straight line. The metal grid area on the side of the bridge is three feet, 10 inches wide. (Copies of photographs are attached to this opinion as an appendix.) Plaintiff walked on the walkway portion of the metal grid area, which is one foot, nine inches wide. Plaintiff understood he did not have Union Pacific's permission to use the bridge and it would be hazardous to be on the bridge while a train was crossing it. While plaintiff was on the bridge, a Union Pacific freight train approached from the opposite direction at a speed of approximately 50 miles per hour (which was less than the speed limit). The conductor first saw plaintiff when he was about 200 feet away. The engineer sounded the horn. Plaintiff saw the train's lights and heard the horn, but he did not take evasive action. As the train passed, it either struck plaintiff or threw him to the ground. Plaintiff admitted there was nothing Union Pacific's train crew could have done to avoid the accident. Union Pacific has a "zero tolerance" policy towards trespassing on railroad property, responds to reports of trespassing with warnings or arrests when possible, and sponsors community awareness programs about the risks of trespassing on railroad property. Standard chain-link fences are not an effective deterrent against trespassing. A tamper-proof fence would cost about $1 million per mile and could endanger people in the event of a derailment.

Defendant submitted deposition excerpts supporting the foregoing assertions. Of specific interest, plaintiff's deposition testimony showed:

"Q. Certainly you knew that it was a hazard to be on the railroad bridge if there was a train, correct?

"A. Yes.

"[¶] . . . [¶]

"Q. Did you view walking on the railroad bridge as a safe pathway?

"A. Yes.

"Q. Did you view walking on the railroad bridge a safe pathway if there was a train that would be occupying that bridge at the same time you would be on it?

"A. I wasn't sure if that would be safe or not. I'm used to riding the light rail, and trains pass within that far of me all the time on Light Rail. So I assumed it would be safe, yes."

Plaintiff also testified he did not see the train until it was 20 to 30 feet away. He could not explain why he did not notice the train earlier (other than to speculate the track might dip before it reaches the bridge). He said it "seemed like one second" that the train sounded its horn. When he saw the train "[t]here was nothing I could do. The train was moving at a high rate of speed, so there wasn't time." He did not remember whether he moved to the edge of the bridge. He did not remember if he fell down. He also said he continued to walk upon seeing the train. When asked why he did not hug the railing, he said, "There wasn't time." When asked, "There was time to continue walking, wasn't there?" he said he did not remember. When asked if he knew what caused him to fall, he said, "No, either the wind blast of the train or being struck by the train." He admitted he was guessing. He did not remember whether he was standing when the train passed him. When plaintiff heard the train whistle, he waved, because when he used to live near railroad tracks the train conductors would beep the whistle and he would wave. When asked whether, in his opinion, there was anything this train crew could have done to avoid the accident, plaintiff said, "No, I don't think there was."

Train conductor Patrick Marino testified in deposition that the walkway consisted of steel plate grating bolted to the bridge structure and was common on railroad bridges. Such walkways are not for pedestrians, but for railroad personnel in case the train breaks down. Marino never observed any warning signs or barricades that would prevent pedestrian use. He had observed non-employees using similar walkways on other bridges, but not the Arcade Creek bridge. He first saw plaintiff about 15 or 20 feet from the east end of the bridge and about 200 feet from the train. Plaintiff did not react to the horn but just kept walking. When asked if there was anywhere plaintiff could have moved back away from the train to avoid being struck, Marino said, "No," but then said, "He could have laid down," and that was the only thing he could have done to avoid being hit.

Union Pacific agent Blair Geddes testified there are no signs on the bridge, he has responded numerous times to reports of trespassers, and there was another incident in which two males were hit by a train on the same bridge as they ran from a confrontation with other men in the creek area. Defendant's director of police operations, George Slaats, estimated in a declaration that more than 95 percent of the trespassers are old enough to be aware of the risks of walking on or next to railroad tracks.

THE OPPOSITION TO SUMMARY JUDGMENT

Plaintiff filed an opposition to summary judgment. His response to defendant's separate statement of undisputed facts purported to dispute many of the factual assertions, but did not. For example, in response to the assertion that plaintiff understood it would be hazardous to be on the bridge while a train was crossing it, plaintiff responded, "This is a distorted misstatement of Plaintiff's testimony. Plaintiff testified only that there would be a hazard being on the bridge at the same time as a train."

As to more material disputes, in response to defendant's assertion that...