CSX Transp., Inc. v. Pasco County

• Decision Date: 23 August 1995
• Docket Number: No. 94-00822,94-00822
• Citation: 660 So.2d 757
• Parties: 20 Fla. L. Weekly D1933 CSX TRANSPORTATION, INC., Appellant, v. PASCO COUNTY, R.E. Purcell Construction, Inc., and Donald E. Murphy, Appellees.
• Court: Florida District Court of Appeals

Page 757

660 So.2d 757

20 Fla. L. Weekly D1933

CSX TRANSPORTATION, INC., Appellant, v. PASCO COUNTY, R.E. Purcell Construction, Inc., and Donald E Murphy, Appellees.

No. 94-00822.

District Court of Appeal of Florida Second District.

Aug. 23, 1995.

Edward M. Rooks, of Melkus & Fleming, Tampa, and Stephen H. Shook, Jacksonville, for appellant.

Peter Wansboro, Assistant County Attorney, New Port Richey, for appellee Pasco County.

No appearance for appellees Purcell Construction and Murphy.

QUINCE, Judge.

CSX Transportation, Inc. (CSX) appeals from the entry of a summary judgment in favor of Pasco County (the County), the sole appellee who was still a defendant. We reverse because there are material issues of fact in dispute, making summary judgment inappropriate.

Beginning in February 1991, Pasco County was in the process of constructing a road known as the Zephyrhills ByPass (the ByPass). The County entered into a contract with CSX for an easement across the right-of-way and tracks owned and maintained by CSX for a highway crossing. The contract provided that the County would require its contractors to purchase and maintain throughout the crossing construction railroad protection liability insurance and commercial liability insurance with CSX listed as an insured. These policies were not procured prior to the incident giving rise to this litigation.

When Purcell, the County's contractor, began construction, the County closed off access to the ByPass from State Road 54 by placing barricades at the intersection of the two roads. Later the barricades were moved further down the ByPass toward the tracks near the parachute center. Purcell, at the direction of the County, required a subcontractor to remove all trees and shrubs as a part of general clearing of the area around the end of the roadway and CSX's tracks. A two-foot trench, located six feet from the rails on each side of the tracks, was dug along both sides of the tracks.

On February 19, 1991, Donald Murphy was operating a motor vehicle on the ByPass. He struck the railroad tracks, causing substantial damage which led to a train derailment. Mr. Murphy indicated when he turned off State Road 54 onto the ByPass there were no barricades or other obstructions to the entrance of the road. There was striping on the road which led him to believe it was a normal, open road. As he travelled further on the ByPass, he still did not encounter any warnings, barricades or other indications that the road was under construction. He operated his vehicle to a point just prior to the railroad tracks where the paved portion of the ByPass ended. He struck the tracks and landed on the opposite side of the tracks.

Although Mr. Murphy indicated he did not encounter any barricades on the ByPass, the project superintendent indicated at 5:00 p.m. on February 18, 1991, there were end-to-end barricades across that road near the parachute center. He also stated splintered barricades were found on the side of the road on the morning of February 19, 1991. However, no barricade fragments were found on Mr. Murphy's car, and no paint markings from his car were found on the splintered barricades.

CSX initiated an action against the County, R.E. Purcell Construction, Inc. and Donald Murphy to recover for losses sustained in the derailment. The amended complaint against the County alleged breach of contract, negligence and trespass. In granting the County a final summary judgment on all counts, the trial court found, inter alia, that the County was not engaged in constructing the crossing at the time of the accident, that the County had not waived sovereign immunity, and that the trespass alleged did not contribute to the injury or damages. We reverse because the trial court in reaching these conclusions resolved factual issues which are not appropriate on a motion for summary judgment.

The purpose of a motion for summary judgment is to determine whether any genuine issues of material fact exist for resolution by the trier of fact. A. & G. Aircraft Service, Inc. v. Drake, 143 So.2d 703 (Fla. 2d DCA 1962). The initial burden is on the movant to demonstrate the nonexistence of any material fact. If genuine issues of fact exist, these issues may not be resolved in the summary proceeding. Mutual of Omaha Ins. Co. v. Eakins, 337 So.2d 418 (Fla. 2d DCA 1976).

In the instant case, CSX argues there is a genuine issue concerning whether the County had begun construction of the railroad crossing when this incident occurred. This factual issue is material to the resolution of all counts of the amended complaint, particularly breach of contract since the insurance was to be obtained and maintained during construction of the railroad...