Kelly v. Brown, No. 05-06-00456-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Moseley
• Citation: 260 S.W.3d 212
• Decision Date: 17 July 2008
• Docket Number: No. 05-06-00456-CV.
• Parties: Alesa KELLY, Appellant v. Jerry Bob BROWN, Union Pacific Railroad Company, and Dallas, Garland and Northeastern Railroad, Inc., Appellees.

260 S.W.3d 212 Alesa KELLY, Appellant
v.
Jerry Bob BROWN, Union Pacific Railroad Company, and Dallas, Garland and Northeastern Railroad, Inc., Appellees. No. 05-06-00456-CV. Court of Appeals of Texas, Dallas. July 17, 2008.

[260 S.W.3d 214]

Michael T. Maher, Dallas, David C. Turner, Jr., Turner & Turner, LLP, Paris, for Appellant.

Leann Wainscott Diamond, Margaret E. Horton, Friedman & Feiger, L.L.P., Dallas, for Appellees.

Before Justices MOSELEY, O'NEILL, and LAGARDE.¹

OPINION

Opinion by Justice MOSELEY.

Plaintiff/appellant Alesa Kelly sued defendants/appellees Jerry Bob Brown, Union Pacific Railroad Company, and Dallas, Garland, and Northeastern Railroad, Inc. for damages sustained in an automobile-train collision. Appellees moved for summary judgment on both traditional and no-evidence grounds, which the trial court granted. Kelly appeals. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 24, 2003, Kelly left her home to go to work. Kelly's route to work took her over a railroad crossing on Craft Road in Grayson County. The crossing was equipped with railroad crossbuck signs, and had no gates or other warning devices. There is evidence she traversed that crossing about three times per week for about seven months.

At 5:25 a.m., Kelly's vehicle hit the side of a moving freight car at the railroad crossing. The freight car was owned by Union Pacific; it was the thirtieth car of a fifty-car freight train operated by engineer Brown on behalf of his employer, the Dallas, Garland and Northeastern Railroad, Inc. As a result of the collision, Kelly's vehicle was damaged, and she sustained personal injuries. Kelly sued for compensatory and punitive damages, alleging appellees "negligently failed to afford [her] warning of the presence of a train ... at the crossing...."

Appellees filed an amended motion for summary judgment asserting both traditional and no-evidence grounds. In their motion they stated that, through discovery, they ascertained that Kelly's failure to warn claim was based on their failure to install reflector tape on the side of the freight cars.

In their motion appellees asserted two principal grounds for summary judgment. First, they asserted that: (1) any duty to install reflector tape on the freight cars

260 S.W.3d 215

under the common law "reasonable care" standard was preempted by federal regulations that negated any such duty; (2) the evidence established as a matter of law that the lack of such tape did not cause Kelly's accident; and (3) there was no evidence the lack of such tape was a proximate cause of Kelly's accident.

Second, appellees asserted they were entitled to summary judgment based on their affirmative defense of contributory negligence on Kelly's part.² Appellees argued that: (1) Kelly violated Texas Transportation Code section 545.251(c), which governs the operators of vehicles approaching certain railroad crossings; (2) Kelly's violation of the statute was negligence per se on her part; (3) if Kelly had complied with the statute, the accident would not have occurred; and thus (4) Kelly's contributory negligence was the proximate cause of the accident.³ Appellees supported their motion with Kelly's deposition.

Kelly filed a response to appellees' motion, also supported by evidence. Kelly argued that: (1) there was neither express nor implied preemption as a matter of law; (2) she was not contributorily negligent per se because there was evidence of an excuse; (3) appellees failed to establish that section 545.251(c) was for their protection, and not the protection of motorists; and (4) the evidence showed the absence of reflector tape was a cause of the accident. She argued that the evidence that she did not see the freight car in time to avoid hitting it supported her argument that it was more likely than not that the presence of reflector tape on the freight car would have prevented the collision.

The trial court rejected appellees' first principal ground for summary judgment— that Kelly's negligence claim based on the failure to place reflector tape on the freight cars was preempted by federal law. However, in response to appellees' second principal ground for summary judgment, it found

as a matter of law that [Kelly] is contributorily negligent per se and that such negligence of [Kelly] was the proximate cause of her injuries. Further, it appears to the Court that, had [Kelly] not violated Texas Transportation Code § 545.251(c), then [Kelly's] accident and resulting injuries would not have occurred.

The trial court also found there was no evidence that Brown was negligent. Thus, the trial court granted summary judgment against Kelly on all of her claims. Kelly appeals.

II. STANDARD OF REVIEW

In a traditional summary judgment motion, the moving party has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). We

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consider not only all those grounds the trial court ruled on, but also those grounds the trial court did not rule on but that are preserved for appellate review. Sefzik v. City of McKinney, 198 S.W.3d 884, 890 (Tex.App.-Dallas 2006, no pet.) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996)). To preserve the grounds, the party must raise them in the summary judgment proceeding and present them in an issue or cross-point on appeal. Cates, 927 S.W.2d at 626; Sefzik, 198 S.W.3d at 890.

In a no-evidence summary judgment motion, the movant contends that there is no evidence of one or more essential elements of the claims for which the non-movant would bear the burden of proof at trial. TEX.R. CIV. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (per curiam). A party cannot file a no-evidence motion for summary judgment based on a matter, such as an affirmative defense, on which it has the burden of proof. See Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 838 (Tex. App.-Dallas 2005, no pet.). The trial court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact as to the challenged elements. TEX.R. CIV. P. 166a(i).

We review the trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Knott, 128 S.W.3d at 215. We assume all evidence favorable to the non-movant is true and indulge every reasonable inference and resolve all doubts in the non-movant's favor, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See Knott, 128 S.W.3d at 215 (traditional motion); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006) (no-evidence motion); City of Keller v. Wilson, 168 S.W.3d 802, 824-25, 827 (Tex.2005) (stating standard and scope of legal sufficiency review).

III. PRELIMINARY MATTERS

A. Matters Not Contested on Appeal

Appellees moved for a traditional and no-evidence summary judgment as to any claim against Brown, and as to any claim that they negligently failed to sound the train's horn before the train entered the railroad crossing, "to the extent [Kelly's] petition can be construed to include" such a claim. Although the trial court's judgment does not expressly grant summary judgment on a failure to sound the horn claim, it states that all relief not expressly granted was denied and that it was a final judgment disposing of all issues and parties. Moreover, the trial court specifically found there was no evidence Brown was negligent and granted summary judgment in his favor on all of Kelly's claims against him, and only Brown, as the engineer of the train, would have been in the position to sound — or not sound — the horn.

On appeal, Kelly directs no issue or argument as to the summary judgment disposing of her claims against Brown and any claim based on the failure to sound the train's horn. Accordingly, we affirm the trial court's judgment as to these claims. See Smith v. Tilton, 3 S.W.3d 77, 83 (Tex. App.-Dallas 1999, no pet.) (summary judgment on claim affirmed if appellant does not properly challenge each independent ground for summary judgment asserted against that claim).

B. Preemption

As to Kelly's remaining claim— negligence based on the failure to install reflector tape — the railroad companies' motion asserted, among other things, that

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they had no duty to install reflector tape because any such duty under common law was expressly and negatively preempted under federal law. Preemption is an affirmative defense. Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (Tex.App.-Dallas 2000, pet. dism'd w.o.j) (citing Kiefer v. Cont'l Airlines, Inc., 882 S.W.2d 496, 497-98 (Tex.App.-Houston [1st Dist.] 1994), aff'd, 920 S.W.2d 274 (Tex.1996)). Thus, as the parties seeking summary judgment, the railroad companies had the burden to prove their preemption affirmative defense as a matter of law. See id.; Kiefer, 882 S.W.2d at 497.

On appeal the railroad companies repeat their preemption argument, and Kelly responds to the argument at length in her reply brief. However, the trial court expressly rejected the railroad companies' preemption affirmative defense, and on appeal they did not bring an issue or cross-point contending the trial court erred in denying them summary judgment on the basis of federal preemption. Therefore, the railroad companies' preemption argument was not preserved, and presents nothing for our review. See Sefzik, 198 S.W.3d at 890.

IV. KELLY'S NEGLIGENCE PER SE

The trial court disposed of Kelly's remaining claim — negligence based on the failure to install reflector tape — based on the railroad companies' affirmative defense of negligence per se predicated on Kelly's unexcused violation of section...