Dietz v. Atchison, Topeka and Santa Fe Ry. Co.

• Decision Date: 27 December 1991
• Docket Number: No. 66179,66179
• Citation: 823 P.2d 810,16 Kan.App.2d 342
• Parties: Elda I. DIETZ, et al., Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Appellees.
• Court: Kansas Court of Appeals

Page 810

823 P.2d 810

16 Kan.App.2d 342

Elda I. DIETZ, et al., Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Appellees.

No. 66179.

Court of Appeals of Kansas.

Dec. 27, 1991.

Review Denied March 10, 1992.

Syllabus by the Court

1. To recover for negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered.

2. Violation of a statute alone does not establish negligence per se. The party alleging negligence per se must also establish that an individual right of action for injury arising out of the violation was intended by the legislature. Statutes enacted to protect the public, therefore, do not create a duty to individuals injured as a result of a statutory violation.

3. Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration.

4. Interpretation of a statute is a question of law, and an appellate court's review of conclusions of law is unlimited.

5. A plain reading of K.S.A. 66-176 indicates the legislature intended to create, on behalf of any person or corporation injured as a direct result of a common carrier's violation of provisions of law regulating common carriers, an individual right of action against the common carrier. This right is in addition to the potential imposition of other penalties.

6. The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.

7. Whether conduct in a given case is the cause in fact or proximate cause of an injury is normally a question of fact for the jury. However, where the facts are such that they are susceptible to only one inference, the question is one of law and may be disposed of summarily by the court when the plaintiff has failed to establish the necessary burden of proof.

8. As a general rule, a pretrial order controls the subsequent course of action unless such order is modified at trial to prevent manifest injustice.

9. Ordinarily, the presence of a train on a railroad crossing is of itself an adequate warning to the driver of a vehicle on a highway. However, unusually dangerous conditions can exist where mere presence of a train on a railroad crossing may not adequately warn users of the highway of the danger in time to avoid a collision.

10. In a wrongful death action in which plaintiffs appeal from the district court's order granting summary judgment in favor of defendants, it is held the driver of a tanker containing hazardous materials was negligent per se in failing to comply with his statutorily imposed duty to stop, look, and listen before proceeding across a railroad crossing. For the class of drivers who are statutorily required to stop, look, and listen at railroad crossings before proceeding, the presence of a moving train on the tracks blocking the crossing is adequate warning of its presence. As a matter of law, there is no need for any additional warning unless some condition at the crossing would make it impossible for a stopped driver to observe the train blocking the roadway. While plaintiffs argued the crossing was unusually dangerous because it lacked active warnings and lights, they did not allege there was anything that would prevent a driver stopped at the crossing from perceiving a moving train blocking the road. Active warnings at the crossing to alert a stopped driver that a train was in fact on the track would have served no additional purpose. The driver's negligence per se was the proximate cause of his damages.

James C. Morrow and Timothy W. Monsees, Law Offices of Gordon N. Myerson, P.C., Kansas City, Mo., for appellants.

Paul R. Hoferer and Nola Wright Viola, Topeka, for appellee The Atchison, Topeka and Santa Fe Ry. Co.

Theresa A. Pasek, Staff Atty., for appellee Kan. Dept. of Transp.

Before BRISCOE, C.J., and ELLIOTT and GERNON, JJ.

BRISCOE, Chief Judge:

In a wrongful death action, plaintiffs Elda Dietz, Randy Dietz, Gary Dietz, and Verla McGinnes appeal from the district court's order granting summary judgment in favor of defendants The Atchison, Topeka & Santa Fe Railway Co., the State of Kansas, the Kansas Department of Transportation, and Horace Edwards, Secretary of Transportation.

Vernon Dietz drove a tractor trailer truck into the side of a slow-moving freight train and was killed instantly. At the time of the accident, Dietz was operating his truck pursuant to authority granted by the Kansas Corporation Commission to Vernon Dietz, d/b/a Dietz Motor Lines. The truck was hauling a nearly empty anhydrous ammonia tanker. Kansas motor carrier safety regulations require drivers hauling hazardous materials to stop their trucks at railroad crossings and to look and listen in each direction before crossing the tracks (K.A.R. 82-4-3[a]. Dietz's truck left more than 300 feet of skid marks before the crossing, indicating he had attempted to stop. An accident reconstruction expert testified the evidence indicated that Dietz realized a train was at the crossing when he was about 500 feet from the track. The crossing was marked with an advance warning sign and an advance pavement sign 872 feet before the railroad crossing, an advance pavement sign 272 feet before the crossing, and a cross buck sign 12 feet before the crossing. The warning signs meet the mandatory minimum requirements listed in the Manual on Uniform Traffic Control Devices (1988).

Plaintiffs brought this wrongful death action, alleging defendants were negligent in failing to place active warning devices such as flashing lights or electronic signals at the crossing that would warn motorists of the presence of a train. In granting defendants' motion for summary judgment, the district court found that Dietz, a driver of a tanker containing hazardous materials, was negligent per se in failing "to comply with his legally imposed duty to stop, look and listen before proceeding across the crossing" and that the direct and proximate cause of the accident was his failure to stop at the crossing. The court further found that, even if defendants were negligent in some way, as a matter of law, Dietz was 50 percent or more negligent; thus, any recovery was barred under the Kansas comparative fault statute.

Scope of Review

"Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. [Citations omitted.]" Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).

To recover for negligence, plaintiffs must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991). Negligence Per Se

Plaintiffs argue the regulation requiring drivers of hazardous materials to stop, look, and listen before proceeding at railroad crossings is clearly designed to protect the public at large from the dangers of hazardous material accidents and, therefore, violation of the regulation provides neither a private right of action for defendants nor a defense for defendants in an action brought by a driver.

"[V]iolation of a statute alone does not establish negligence per se. The [party alleging negligence per se] must also establish that an individual right of action for injury arising out of the violation was intended by the legislature. Statutes enacted to protect the public, therefore, do not create a duty to individuals injured as a result of a statutory violation. [Citation omitted.]

"Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. [Citation omitted.]" Kansas State Bank & Trust Co. v. Specialized Transp. Serv., Inc., et al., 249 Kan. 348, ----, 819 P.2d 587 (1991).

"[A] statute which does not purport to establish civil liability but merely makes provision to secure the safety and welfare of the public does not establish civil liability." Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 125, 804 P.2d 978 (1991). Interpretation of a statute is a question of law (NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 [1989], and this court's review of conclusions of law is unlimited (Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan.App.2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 [1988].

K.S.A. 66-1,112(b) and K.S.A.1990 Supp. 66-1,129 authorize the Kansas Corporation Commission to adopt regulations governing all motor carriers of property or of passengers. Regulations adopted pursuant to these statutes and at issue in this case include K.A.R. 82-4-2 and 82-4-3(a)(3), which require drivers of tankers containing hazardous materials to comply with 49 C.F.R. § 392.10(a) (1990),...