Hale v. Wait

Decision Date27 March 2012
Docket NumberNo. SD 31536.,SD 31536.
Citation364 S.W.3d 720
CourtMissouri Court of Appeals
PartiesAmber HALE f/k/a Amber Koester, Appellant, v. Steve E. WAIT, Lance V. Frost, and BNSF Railway Company, Respondents.

OPINION TEXT STARTS HERE

Supreme Court Denied

April 17, 2012.

Application for Transfer

Denied May 29, 2012.

Douglas L. Healy, for Appellant.

Laurel E. Stevenson, Thomas E. Jones, Harlan A. Harla, Heath H. Hooks, for Respondent.

BARNEY, J., BATES, J., and SCOTT, J.

PER CURIAM.

This appeal arises out of the collision of a train and an automobile that took place on the evening of March 23, 2008, at an un-gated crossing in Webster County, Missouri, which resulted in physical injuries to the driver of the automobile, Appellant Amber Hale f/k/a Amber Koester (Plaintiff).

On May 21, 2009, Plaintiff brought her petition against Respondents BNSF Railway Company (“the Railroad”), train engineer Steve E. Wait (Mr. Wait), and train conductor Lance V. Frost (Mr. Frost) (collectively Defendants) alleging sixteen causes of action sounding in negligence against Mr. Wait and Mr. Frost and seventeen causes of action sounding in negligence against the Railroad. Plaintiff also requested “aggravating/punitive damages” against all Defendants. Defendants answered by denying Plaintiff's allegations of negligence and asserting over twenty affirmative defenses. Defendants then filed their motion for summary judgment with an attendant statement of uncontroverted material facts which was duly traversed by Plaintiff in her response to Defendants' statement of uncontroverted material facts. See Rule 74.04(c)(2).1 Following a hearing, the motion court granted Defendants' motion for summary judgment and dismissed Plaintiff's petition with prejudice.

Plaintiff now raises her sole point relied on complaining of motion court error by its entry of summary judgment in favor of Defendants. She asserts there were genuinely disputed issues as to several material facts among which was whether Mr. Wait and Mr. Frost failed to give an adequate and timely warning—both visually and audibly—of the forthcoming approach of the train to the crossing. We determine that part of Plaintiff's third prong of her sole point relied on regarding whether or not Plaintiff heard an audible warning from the train prior to the collision has merit and raises a fact question to be resolved by a trier-of-fact. Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 266 (Mo.App.2002) (holding that the question of a breach of duty is one of fact for the jury to determine). Additionally, “where, as here, the non-movant/plaintiff's petition alleges alternate theories of recovery on the same claim, summary judgment on the claim is not proper unless the movant/ defendant can establish a case for summary judgment on each theory pled.” Guffey v. Integrated Health Servs. of Kansas City at Alpine North, 1 S.W.3d 509, 517 (Mo.App.1999); see also Robinson v. Missouri State Hwy. and Transp. Comm'n, 24 S.W.3d 67, 73 (Mo.App.2000). Accordingly, we reverse the motion court's summary judgment and remand the matter for further proceedings.

In reviewing a trial court's grant of a motion for summary judgment, we employ a de novo standard of review.” Neisler v. Keirsbilck, 307 S.W.3d 193, 194 (Mo.App.2010). As such, we will not defer to the trial court's decision, Murphy v. Jackson Nat'l Life Ins., Co., 83 S.W.3d 663, 665 (Mo.App.2002), but rather, we will use the same standards the trial court should have used in reaching its decision to grant the motion for summary judgment. Stormer v. Richfield Hospitality Servs., Inc., 60 S.W.3d 10, 12 (Mo.App.2001). We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record.” Neisler, 307 S.W.3d at 194–95;see ITT Comm'l Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). To be entitled to full summary judgment, a defending party employing one of the three means 2 for obtaining summary judgment, must allege undisputed facts demonstrating that the plaintiff cannot recover on any theory pled. Allen, 197 S.W.3d at 622) (internal citation omitted); see ITT, 854 S.W.2d at 381.

“The propriety of summary judgment is purely an issue of law.” Id. at 376. [T]he key to a summary judgment is the undisputed right to a judgment as a matter of law; not simply the absence of a fact question.’ Birdsong v. Christians, 6 S.W.3d 218, 223 (Mo.App.1999) (quoting Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo.App.1995)). A summary judgment motion must be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Rule 74.04(c)(6). “A genuine issue of material fact” exists where the record contains competent evidence that two plausible, but contradictory, accounts of essential facts exist. Amusement Centers, Inc. v. City of Lake Ozark, 271 S.W.3d 18, 19 (Mo.App.2008). “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Robinson v. Mo. State Highway & Transp. Comm'n, 24 S.W.3d 67, 76 (Mo.App.2000). In that summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party's day in court. ITT, 854 S.W.2d at 377.

Noting that [s]ummary judgment is often inappropriate in negligence cases,” Bartel v. Central Markets, Inc., 896 S.W.2d 746, 748 (Mo.App.1995), it is settled law that [t]o make an adequate claim for common law negligence, a plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant's failure proximately caused injury to the plaintiff.” Sill v. Burlington N. Railroad, 87 S.W.3d 386, 391 (Mo.App.2002).

In her petition Plaintiff alleges, inter alia, that the members of the train crew were negligent [i]n failing to sound an adequate and timely warning.” “By statute, a railroad is required to continually sound a whistle or horn on its locomotives within a distance of 80 rods from any place where the tracks intersect a road.” Griffin v. Kansas City S. Ry. Co., 965 S.W.2d 458, 462 (Mo.App.1998) (internal footnote omitted); see § 389.990, RSMo.2000. “Failure to sound one or the other of the prescribed signals results in liability by the railroad for all damages proximately caused by its omission.” Koehler v. Burlington N., Inc., 573 S.W.2d 938, 943 (Mo.App.1978).

Here, Mr. Wait and Mr. Frost both testified in depositions that they sounded the horn as they approached the intersection with the roadway crossing and presented other evidence supporting this proposition. However, Plaintiff testified at her deposition that she did not hear such an audible warning. This constitutes a clearly disputed issue of a material fact that Defendants have failed conclusively to negate. See ITT, 854 S.W.2d at 381.

As previously related, we view the record in the light most favorable to Plaintiff and we accord Plaintiff the benefit of all inferences which may reasonably be...

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7 cases
  • Hale v. Burlington N. & Santa Fe Ry. Co.
    • United States
    • Missouri Court of Appeals
    • 3 d5 Dezembro d5 2021
    ...C.J.This appeal, the third in this case, see Hale v. Burlington N. & Santa Fe Rwy. Co. , 524 S.W.3d 603 (Mo. App. 2017) ; Hale v. Wait , 364 S.W.3d 720 (Mo. App. 2012), arises from a collision ("the collision") between a motor vehicle driven by Amber Hale and a train operated by BNSF Railwa......
  • Hale v. Burlington N. & Santa Fe Ry. Co.
    • United States
    • Missouri Court of Appeals
    • 31 d1 Julho d1 2017
    ...appealed, and we reversed and remanded, finding genuine issues of material fact that precluded summary judgment. See Hale v. Wait , 364 S.W.3d 720, 721, 723 (Mo.App. 2012).2 At jury trial thereafter, it was established that Hale could have seen the train when she was 300 feet from the cross......
  • State ex rel. Hale v. Hendrickson
    • United States
    • Missouri Court of Appeals
    • 5 d4 Julho d4 2018
    ...summary judgment in favor of Defendant and dismissed Plaintiff’s suit. Plaintiff appealed and we reversed and remanded. Hale v. Wait , 364 S.W.3d 720 (Mo.App. S.D. 2012). Following the retirement of Judge Sims, the case was assigned to Judge Michel O. Hendrickson in January 2013. The case s......
  • Hale v. Burlington N. & Santa Fe Ry. Co.
    • United States
    • Missouri Court of Appeals
    • 31 d1 Julho d1 2017
    ...and wereversed and remanded, finding genuine issues of material fact that precluded summary judgment. See Hale v. Wait, 364 S.W.3d 720, 721, 723 (Mo.App. 2012).2 At jury trial thereafter, it was established that Hale could have seen the train when she was 300 feet from the crossing, but did......
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