Holloway v. Kansas City Southern Ry. Co., 43,318-CW.
| Decision Date | 13 August 2008 |
| Docket Number | No. 43,319-CW.,No. 43,318-CW.,43,318-CW.,43,319-CW. |
| Citation | 988 So.2d 854 |
| Parties | D. Brennan HOLLOWAY, Plaintiff v. KANSAS CITY SOUTHERN RAILWAY COMPANY, et al., Defendants. David Holloway and Susan Holloway, Plaintiffs v. Kansas City Southern Railway Company, et al., Defendants. |
| Court | Court of Appeal of Louisiana — District of US |
Patrick A. Talley, Jr., Carl E. Hellmers, III, Louis M. Grossman, Arthur R. Carmody, Jr., Bobby S. Gilliam, Misty Futrell, for Defendants-Respondents, Kansas City Southern Railway Company.
Elizabeth S. Hardy, Pat Barrett, Chuck Trascher, for Plaintiffs-Respondents, D. Brennan Holloway, David Holloway, and Susan Holloway.
Eugene J. Sues, Brandon A. Sues, for Defendant-Respondent, Madison Parish Police Jury.
Before BROWN, GASKINS and CARAWAY, JJ.
After a fatality and injuries in a collision at a railroad crossing, the State of Louisiana, through the Department of Transportation and Development ("DOTD"), was sued along with the two owners of the roadway and rail line. Plaintiffs alleged that DOTD had assumed duties regarding the crossing and was responsible in tort with the owners for the unreasonably dangerous condition of the crossing. DOTD filed a motion for summary judgment with evidence indicating that DOTD's only involvement with the off-system railroad crossing was for compliance with federal railroad safety legislation and regulations. Plaintiffs filed no opposition to the motion. After the trial court denied DOTD's motion, we granted this supervisory review. We now reverse the judgment of the trial court and grant summary judgment in favor of DOTD dismissing it from the suit.
On the evening of March 19, 2003, Brennan Holloway's 1994 Ford Explorer collided with a Kansas City Southern Railway Company ("KCS") locomotive as Holloway traversed a railroad crossing on Mound Road in Madison Parish. As a result of the collision, Holloway was seriously injured. Passenger Leigh Anne Holloway, Brennan's sister, was killed.
Brennan Holloway and his parents, David and Susan Holloway, (hereinafter "plaintiffs") filed separate suits against KCS, the Madison Parish Police Jury ("Police Jury") and DOTD on March 17, 2003.1 In their claims against KCS and the Police Jury, plaintiffs alleged that the Mound Road crossing was jointly maintained by these defendants and that they failed to properly evaluate, investigate and correct multiple unreasonably dangerous conditions. These included inadequate warnings for approaching trains and the "multiple substandard geometries" of the location for the crossing. Specifically, plaintiffs alleged that KCS failed to take measures to compensate for improper operation of trains, to maintain grade crossing safety or evaluate near misses, or adopt rules and regulations which would require a reduction in train speeds. Plaintiffs alleged that the Police Jury failed to properly evaluate, investigate and correct multiple substandard conditions at the Mound Road crossing or take available steps to require KCS to safely operate their trains over the crossing.
Regarding DOTD, the plaintiffs alleged that DOTD's "acceptance and use of federal funds under 23 C.F.R. § 646.214(b)(3), (4) constituted an assumption of the responsibility to properly sign and place adequate warning devices at Mound Road Crossing...." Plaintiffs further alleged that DOTD "negligently administered federal safety funds by allowing the expenditure of federal funds on warning devices at Mound Road Crossing #302414L without complying with the mandates of federal law," namely, the failure to have adequate warning devices at the crossing. Plaintiffs further contended that DOTD failed to take steps to "eliminate the unreasonable risk of harm at Mound Road Crossing #302414L," to properly evaluate the warning device needs at this crossing, and to timely evaluate changing conditions and needs for additional warning devices at the crossing. Plaintiffs finally contended that DOTD knew or should have known about prior accidents, parallel roads, substantial traffic exposure, limited sight distances, high train speed and other geometries and operational conditions which rendered the crossing unreasonably dangerous.
DOTD answered the petition generally denying all allegations against it and asserted Holloway's contributory negligence. On October 23, 2003, DOTD filed a motion for summary judgment on the grounds that the crossing in question was not in the state highway system or under the custody or control of DOTD. DOTD also asserted that plaintiffs could produce no evidence suggesting that it had assumed this responsibility and that the privileged nature of the information under 42 U.S.C. § 409 in the possession of DOTD would preclude plaintiffs from developing any evidence to create a genuine issue of material fact.
The motion was held in abeyance pending final disposition of the issue of whether DOTD was in possession of any discoverable material pursuant to 42 U.S.C. § 409. In the course of that adjudication, DOTD was ordered to prepare a privilege log identifying the documents it asserted were covered by the privilege. The trial court eventually ruled that the documents on the privilege log were protected from discovery.2
DOTD argued its motion for summary judgment on December 17, 2007. Only KCS opposed the motion, unaccompanied by documentation. KCS claimed that the affidavit of William C. Shrewsberry, Jr., DOTD's civil engineer in charge of the Federal Railroad Safety Program, submitted in support of the summary judgment, established a genuine issue of material fact as to whether DOTD assumed a duty to maintain adequate warning signs and other safety enhancements at the crossing. Shrewsberry's affidavit noted in pertinent part as follows:
The roadway known as Mound Road is not on the State Highway System and is not under the custody or control of the State of Louisiana, through the Department of Transportation and Development. Railroad grade crossings like the roadway at Mound Road are known as off-system crossings.
DOTD did not construct the Mound Road/Kansas City Southern Railway System railroad crossing nor does DOTD own or maintain the Mound Road/Kansas City Southern Railway System railroad.
He has personally reviewed the documents referred to in plaintiffs' Interrogatories and Request for Production of Documents. The documents are solely for the purpose of developing and planning a railroad grade crossing improvement project that was susceptible to implementation utilizing Federal-Aid Highway Funds.
DOTD cannot comply with the Federal Railroad Safety Program requirements without the referenced documents. The referenced documents are compiled, collected, and maintained by DOTD solely pursuant to its ongoing evaluation of the Mound Road/Kansas City Southern Railway System crossing and for the purpose of developing potential federally funded safety enhancements.
Because the Mound Road/Kansas City Southern Railway System railroad crossing is not part of the State Highway System, any file and all information that DOTD has on the crossing only exists because of its participation in the Federal Railroad Safety Program. DOTD would possess no information and have no involvement with the Mound Road/Kansas City Southern Railway System railroad crossing but for DOTD's participation in the Federal Railroad Safety Program.
Concerning any federally-funded railroad improvement measures for the crossing, the trial court verbally opined that there apparently was "no evidence that ... a project was done at the site." Nevertheless, the trial court denied DOTD's summary judgment as follows:
And although it is a struggle, and the Court is very sensitive to keeping somebody in a case that needs to be released, I'm just not comfortable because to some extent the privilege hides the ball and keeps people from knowing what the whole story is. And maybe it's because I'm not sure what's behind the ball that I'm gonna keep DOTD in here now.
Thereafter, DOTD sought a timely writ application to this court which was granted and docketed for appeal.
On the motion for summary judgment, the burden of proof is on the mover. La. C.C.P. art. 966. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to plaintiff's claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material facts remain. La. C.C.P. art. 966(C)(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Wells v. Red River Parish Police Jury, 39,445 (La.App. 2d Cir.3/2/05), 895 So.2d 676. If the plaintiff fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662. Appellate review of the grant or denial of summary judgment is de novo. Wells v. Red River Parish Police Jury, supra.
We granted this supervisory writ of review on the belief that DOTD's motion for summary judgment did "point out" to the trial court an absence of factual support for plaintiffs' claim that DOTD owes a duty under our tort law relating to the condition of this railroad crossing. Plaintiffs filed no opposition evidence to the motion for summary judgment and therefore rest upon the allegations of the petition. With DOTD's lack of ownership of this off-system crossing, its lack of affirmative action regarding the crossing and its involvement limited to its role under federal railroad safety legislation and regulations, we find that the jurisprudence requires reversal of the trial court's ruling and...
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