Duncan v. Union Pacific R. Co.

• Decision Date: 06 April 1992
• Docket Number: No. 900233,900233
• Citation: 842 P.2d 832
• Parties: Lewis DUNCAN, individually and as personal representative of the Estate of Patrick Duncan, deceased, et al., Plaintiffs and Petitioners, v. UNION PACIFIC RAILROAD COMPANY, a corporation; State of Utah; Paul Kleinman; and Does 1 through 100, inclusive, Defendants and Respondents.
• Court: Utah Supreme Court

Page 832

842 P.2d 832

Lewis DUNCAN, individually and as personal representative of

the Estate of Patrick Duncan, deceased, et al., Plaintiffs and Petitioners, v. UNION PACIFIC RAILROAD COMPANY, a corporation; State of

Utah; Paul Kleinman; and Does 1 through 100,

inclusive, Defendants and Respondents.

No. 900233.

Supreme Court of Utah.

April 6, 1992.

Rehearing Denied Dec. 24, 1992.

Michael A. Katz, Salt Lake City, for Lewis Duncan and Patrick Duncan.

J. Clare Williams, Larry A. Gantenbein, Salt Lake City, for Union Pacific R.R.

Paul Kleinman, Stephen J. Sorenson, Craig L. Barlow, Allan L. Larson, Anne Swensen, Salt Lake City, for State of Utah.

HOWE, Associate Chief Justice:

We granted certiorari to review the court of appeals' decision which affirmed the trial court's grant of summary judgment in favor of all defendants. Duncan v. Union Pacific R.R., 790 P.2d 595 (Utah Ct.App.1990).

A complete statement of the facts is contained in the court of appeals' opinion, and we will here briefly restate the most significant of them. On April 9, 1983, at about 8:50 p.m., an automobile driven by Patrick Duncan containing three passengers was struck by a Union Pacific freight train. All four persons in Duncan's car were killed. The accident occurred in rural Tooele County on Droubay Road, which is essentially a straight two-lane road running north and south through the county. The rails traverse Droubay Road at an angle of slightly over 43 degrees on the north and 136 degrees on the south. The Duncan car approached the crossing from the south at the oblique angle of 136 degrees. Three warning signs were in place at the time of the accident: a railroad advance warning sign (a circular yellow sign with a large black X and R) located 305 feet from the crossing, and two on either side of the road (white cross-bars with "railroad crossing" printed in black letters) located 19 feet from the crossing. No active warning device, such as flashing lights or an automatic gate, was in place. However, nothing obstructed a motorist's view of the tracks for several thousand feet.

Plaintiffs brought this wrongful death action on behalf of the four occupants. The trial court awarded summary judgment to Union Pacific and its engineer, Paul Kleinman, on the ground that as a matter of law, they were not negligent and to the State of Utah on the ground of governmental immunity. The court of appeals affirmed.

DUTY OF UNION PACIFIC

Plaintiffs assail the court of appeals' decision in favor of Union Pacific on the basis that the court did not apply the proper standard of care to the railroad to protect highway motorists crossing its tracks. Plaintiffs concede that the State, through its Department of Transportation (UDOT), not Union Pacific, has the authority to determine at which crossings automatic warning lights and gates shall be installed and maintained under Utah Code Ann. §§ 54-4-14 to -15.1. However, plaintiffs argue that UDOT's responsibility under the statute should not relieve Union Pacific from the duty to petition and urge UDOT to upgrade the adequacy of the warning signs at dangerous crossings because it is Union Pacific who is or should be aware of the danger. Plaintiffs further suggest that in extreme cases a railroad should have the duty to bring suit to compel UDOT to do so.

The court of appeals properly observed that under our case law a railroad cannot be held liable for crossing conditions unless the crossing is "more than ordinarily hazardous." Duncan v. Union Pacific R.R., 790 P.2d at 598 (citing Bridges v. Union Pacific R.R., 26 Utah 2d 281, 488 P.2d 738 (1971); English v. Southern Pacific Co., 13 Utah 407, 45 P. 47 (1896)). The court of appeals further explained:

In the case of railroad crossings, the costs of eliminating the hazard, such as by installing overpasses at all railroad crossings, including rural ones, does not warrant a duty of care so rigorous that simply having a railroad cross a street is tortious. Rather, for a railroad to be liable for a crossing mishap, there must be something about the railroad's right of way that creates a hazard to motorists greater than the hazard presented by the simple fact that the railroad and the street intersect.

Duncan, 790 P.2d at 599. In the instant case, the trial court found that the crossing was not "more than ordinarily hazardous" because plaintiffs could not demonstrate, or even suggest, what more Union Pacific In English v. Southern Pacific Co., we pointed out that a crossing might be found to be more than ordinarily hazardous if it was in a thickly populated portion of a city; if the view of the tracks was obstructed because of the railroad itself or because of natural objects; if the crossing was frequented by heavy traffic so that approaching trains could not be heard; or if, for any reason, devices employed at the crossing were rendered inadequate to warn the public of the danger of an approaching train. English, 13 Utah at 419-20, 45 P. at 50. Recently our court of appeals found a crossing more than ordinarily hazardous and held the railroad liable for a crossing accident because it had allowed wild vegetation on the right-of-way to obscure the vision of oncoming trains from approaching motorists. Gleave v. Denver & Rio Grande Western R.R., 749 P.2d 660 (Utah Ct.App.1988). The cost of removing the vegetation was minimal compared to the public benefit of being able to see an approaching train.

could have done to make this crossing safer, short of installing automatic warning lights and signs and gates, which admittedly was not its responsibility.

Plaintiffs' contention that Union Pacific should have a duty to petition, urge, and even bring suit against UDOT to compel it to improve the adequacy of the warning devices at a crossing is unavailing. Active warning devices are funded 90 percent from federal funds and 10 percent from the entity with jurisdiction over the highway in question. Federal funding is generally available only for eight to ten projects in Utah each year. UDOT has developed and uses a hazard index rating approved by the Federal Highway Administration as one means of determining the priority of crossings for upgrading the adequacy of warning devices presently in place. UDOT's team, with the railroad and local government representatives, makes on-site inspections of crossings throughout the state, using the hazard index. Priorities are then established, based on the degree of hazard found at the crossings surveyed. In view of this careful and orderly approach to the safety problem at crossings, we decline to impose a duty on railroads to circumvent that process by petitioning, urging, or bringing suit against UDOT to change the order of its prioritizations.

On Utah's roads and highways, there are more than 1,000 railroad crossings which lack active warning devices. Requiring a railroad to petition UDOT in order to improve the signage at one crossing without considering whether a greater hazard exists at other crossings would make little sense. The Droubay Road crossing had been inspected by UDOT and assigned a priority rating. Other crossings inspected at that time were given a higher priority rating because the potential hazard was thought to be greater than that of the Droubay crossing. The public is better served by a system such as that devised by UDOT, which takes into consideration all the crossings in Utah. We conclude that the court of appeals did not err in affirming the summary judgment in favor of Union Pacific.

IMMUNITY OF THE STATE

The court of appeals affirmed the summary judgment granted in favor of the State under the authority of its earlier decision in Gleave v. Denver & Rio Grande Western Railroad, 749 P.2d 660 (Utah Ct.App.1988). That case held that UDOT was immune from suit in determining the type of warning devices which should be required at railroad crossings. The determination of UDOT was held to be the exercise of a discretionary function for which immunity has been reserved by Utah Code Ann. § 63-30-10(1)(a). The court, in turn, relied upon our decision in Velasquez v. Union Pacific Railroad, 24 Utah 2d 217, 469 P.2d 5 (1970), where we held that the alleged failure of the public service commission (which at that time had the responsibility now reposed in UDOT) to require more adequate warning devices at a railroad crossing involved the exercise of a discretionary function for which immunity had not been waived. Gleave, 749 P.2d at 669. In Velasquez, we emphasized the statutory directive to the public service commission which was to prescribe the installation of "appropriate" safety or other devices, and held that this language indicated a legislative intent to confer discretion on the commission in discharging that statutory duty. 24 Utah 2d at 219, 469 P.2d at 6.

Plaintiffs now contend that Velasquez v. Union Pacific should be overruled because our later decision in Standiford v. Salt Lake City Corp., 605 P.2d 1230 (Utah 1980), narrowed governmental immunity. Plaintiffs urge that UDOT's decision to defer any improvement in the warning device at the Droubay Road crossing was an operational rather than a discretionary decision and that Velasquez has been overruled sub silentio by three later decisions of this court. We will consider these contentions in order.

Our decision in Standiford v. Salt Lake City did not in any way impinge upon our prior decision in Velasquez. In Standiford, we clarified and narrowed the type of activities carried on by governmental entities which could properly be termed "governmental functions." In the instant case, plaintiffs do not contend that UDOT's duty to determine the type of warning devices to be placed at a particular crossing is not a governmental function. Standiford did not deal with the further issue of whether, in the exercise of a governmental function, a particular duty is discretionary or operational.

Plaintiffs' contention that UDOT's decision to defer...