Haddan v. Norfolk S. Ry. Co., 1190976

CourtSupreme Court of Alabama
Writing for the CourtSTEWART, JUSTICE.
PartiesYulanda Haddan v. Norfolk Southern Railway Company and Norfolk Southern Corporation
Docket Number1190976
Decision Date04 February 2022

Yulanda Haddan

Norfolk Southern Railway Company and Norfolk Southern Corporation

No. 1190976

Supreme Court of Alabama

February 4, 2022

Appeal from Lee Circuit Court (CV-18-900253)



Yulanda Haddan appeals from a summary judgment entered by the Lee Circuit Court in favor of Norfolk Southern Railway Company and Norfolk Southern Corporation (collectively referred to as "Norfolk Southern"). She also seeks review of an order of the circuit court striking certain deposition testimony. Haddan was injured when a pickup truck in which she was riding collided with a Norfolk Southern train at a railroad crossing. In its summary judgment, the circuit court concluded that Haddan could not recover against Norfolk Southern because, it determined, the driver of the truck failed to stop, look, and listen before entering the crossing and that failure was the sole proximate cause of Haddan's injury. For the reasons set forth herein, we affirm the circuit court's order striking the testimony, but we reverse the summary judgment and remand the matter to the circuit court.

I. Facts

On December 1, 2016, shortly after 9:00 p.m., Scott Lindsey Cox was driving a Ford Ranger pickup truck on Lee County Road 430 ("CR 430") in Smiths Station. Haddan was riding in the passenger seat. The portion of CR 430 on which they were traveling runs parallel to Norfolk


Southern's railroad line ("the track"). Lee County Road 243 ("CR 243") runs parallel to the track on the other side. Lee County Road 927 ("CR 927"), also known as "Jones Rd.," crosses CR 430, the track, and CR 243. At the time of the collision, the intersection of CR 927 and the track ("the crossing") was marked with "STOP" signs and crossbucks, which are X-shaped white signs that display the words "RAILROAD CROSSING" in black letters. The crossing was not marked with lights or gates, but signs on both CR 430 and CR 243 warned that the crossing had "NO LIGHTS OR GATES."

Cox turned from CR 430 onto CR 927 toward the crossing. At the time, Cox and Haddan had been discussing whether to bring Haddan's dog, which was in the back of the truck, into the cab. Cox stopped at the "STOP" sign, approximately 22 feet from the track. From that position, Cox had a clear view of the track. As the truck approached the crossing, Cox finally agreed to open his door and to let the dog into the cab of the truck.

Meanwhile, a Norfolk Southern train operated by engineer Troy Rogers approached the crossing. Although the speed limit for trains was


60 miles per hour at the location at issue, the train was traveling only 36 miles per hour. The train's headlights were on bright, its ditch lights --additional lights below the headlights on both sides of the front of the train -- were flashing, and the train's bell was ringing. Just as the train was about to enter the crossing, Cox drove the truck in front of the train. The train struck the truck on the front passenger side, flipping it into a ditch. Haddan was severely injured.

Haddan sued Cox, Rogers, and Norfolk Southern. She asserted a wantonness claim against Cox, but the circuit court concluded that Cox had never been properly served and had never appeared in the action. The circuit court, thus, ruled that Cox had never become a party to the action. Haddan asserted negligence and wantonness claims against Norfolk Southern and Rogers, alleging that Norfolk Southern had failed to install lights and gates at the crossing and that Rogers had failed to blow the train's horn while approaching the crossing.

Norfolk Southern and Rogers filed motions for a summary judgment, asserting that Cox's negligence was the sole proximate cause of Haddan's injuries. Norfolk Southern and Rogers submitted depositions, affidavits,


photographs of the collision scene, and video footage and data from the train's "RailView" camera showing the collision. In response, Haddan submitted portions of her own deposition and an affidavit of William R. Hughes, a grade-crossing-safety expert. The circuit court granted Norfolk Southern's motion to strike part of Haddan's deposition testimony as hearsay. The circuit court subsequently entered a summary judgment in favor of Norfolk Southern and Rogers. On appeal, Haddan challenges the circuit court's order granting Norfolk Southern's motion to strike and the summary judgment with regard to Norfolk Southern but not with regard to Rogers. See Rule 4(a)(1), Ala. R. App. P. ("On an appeal from a judgment or order a party shall be entitled to a review of any judgment, order, or ruling of the trial court."); Robert S. Grant Constr., Inc. v. Frontier Bank, 80 So.3d 901, 902 (Ala. 2011) ("It is only in the context of an otherwise final and appealable judgment that an interlocutory order ... merges with the final judgment and becomes reviewable by way of appeal."). Further, Haddan challenges the summary judgment with regard to only her negligence claim, not her wantonness claim. Thus, the


only claim at issue in this appeal is Haddan's negligence claim against Norfolk Southern.

II. Summary-Judgment Standard of Review

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989)."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

III. Analysis



Before addressing the merits of the parties' substantive arguments regarding the summary judgment, we address Haddan's argument challenging an order of the circuit court order striking a portion of her deposition testimony as hearsay. "In reviewing a ruling on the admissibility of evidence, ... the standard is whether the trial court exceeded its discretion in excluding the evidence." Woven Treasures, Inc. v. Hudson Cap., L.L.C., 46 So.3d 905, 911 (Ala. 2009). In the circuit court, Norfolk Southern filed a motion seeking to strike that part of Haddan's deposition testimony in which she recounted statements that Cox purportedly made to her after the collision concerning whether he had heard the train's horn before the collision. Norfolk Southern contended that the testimony constituted inadmissible hearsay. The circuit court agreed and entered an order granting its motion. The circuit court determined that, because Haddan had not established proper service on Cox and because Cox had not appeared in the action, Cox was not a party to the action; thus, the circuit court concluded, the pertinent testimony was not exempt from the hearsay rule as an admission by a party opponent. See Rule 801(d)(2), Ala. R. Evid. ("A statement is not hearsay


if ... [t]he statement is offered against a party and is ... the party's own statement in either an individual or a representative capacity or ... a statement of which the party has manifested an adoption or belief in its truth ....").

On appeal, Haddan argues that that ruling was incorrect because, she contends, Cox was served with the summons and complaint. She cites the return of service on Cox contained in the record. Nothing on the face of the return, however, shows that the summons was left "at [Cox's] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein," Rule 4(c)(1), Ala. R. Civ. P. Haddan fails to demonstrate that the circuit court erred in ruling that she had not established proper service on Cox. Our Court of Civil Appeals has held that an unserved defendant is not a party to the action. Harris v. Preskitt, 911 So.2d 8, 14 (Ala. Civ. App. 2005). Haddan attempts to differentiate this case from Harris only by insisting that Cox had been served, which, as noted above, is not supported by the record. Haddan, therefore, has not shown that the circuit court exceeded its discretion in concluding that Cox was not a party, in determining that the hearsay exemption under Rule 801(d)(2)


was inapplicable, and in excluding the testimony in question as hearsay.


In its summary judgment, the circuit court ruled that Cox's failure to stop, look, and listen was the sole proximate cause of Haddan's injury. Haddan contends that that ruling was erroneous because, she says, the circuit court improperly imputed Cox's contributory negligence to her. She argues that the circuit court should have treated Norfolk Southern and Cox as concurrent tortfeasors.

To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a legal duty, that the defendant breached that duty, that the plaintiff suffered a loss or injury, that the defendant's breach was an actual cause of the injury, and that the defendant's breach was a proximate cause of the injury. QORE, Inc. v. Bradford Bldg. Co., 25 So.3d 1116, 1124 (Ala. 2009). The proximate-cause element is not met if another act...

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