Lopez v. Union Pacific R. Co.

• Decision Date: 25 February 1997
• Docket Number: No. 940524,940524
• Citation: 932 P.2d 601
• Parties: 311 Utah Adv. Rep. 31 Esteban G. LOPEZ, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD CO., American Nutrition, Inc., and Evans Grain and Elevator Co., Defendants and Appellees.
• Court: Utah Supreme Court

Page 601

932 P.2d 601

311 Utah Adv. Rep. 31

Esteban G. LOPEZ, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD CO., American Nutrition, Inc., and Evans Grain and Elevator Co., Defendants and Appellees.

No. 940524.

Supreme Court of Utah.

Feb. 25, 1997.

David B. Havas, Ogden, for plaintiff and appellant.

J. Clare Williams, Morris O. Haggarty, Salt Lake City, for defendant and appellee.

HOWE, Justice:

Plaintiff Esteban G. Lopez appeals from the trial court's grant of summary judgment dismissing his personal injury action against defendant Union Pacific Railroad Co. on the ground that Utah Code Ann. § 56-1-18.5 (1994) bars his action.

"Before we recite the facts, we note that in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). "We state the facts in this case accordingly." Id.

FACTS

Lopez was an SOS Temporary Services employee at the American Nutrition, Inc. (ANI), plant in Ogden. The plant is located in an industrial area serviced by several sets of railroad spur tracks belonging to the occupants of the adjacent businesses. Some of the tracks run between the buildings and the parking lots, and "cuts" of several railroad cars awaiting switching are sometimes parked on these tracks, blocking access. Workers in the area habitually crossed over the cuts of cars to reach other buildings and the parking lots. Union Pacific Railroad train crews had observed these workers climbing between the parked rail cars, and Railroad management was also aware of the practice. The minutes of a Railroad Safety Committee Meeting on February 6, 1989, noted that employees of ANI and Evans Grain and Elevator Company (Evans) "are crossing between rail cars while cars are being switched. Management of both firms should be made aware of the situation and this practice must be stopped immediately." Union Pacific later noted again that ANI employees were "crawling and jumping through cuts of cars." Apparently, however, neither ANI nor its employees ever received a communication or warning on the subject from the Railroad.

On February 8, 1992, Lopez was working the night shift. He left the plant at about 12:30 a.m. to eat lunch in a vehicle parked in a lot across the railroad tracks from the plant. Meanwhile, a Union Pacific train crew was switching rail cars parked on the spur track belonging to Evans. Before moving the cars, the two crew members who were on the ground looked back along the cut of cars to verify that no one was near. They did not see Lopez. The crew gave no auditory warning by bell or whistle that the cars were about to be moved. Unaware of the switching operation, Lopez attempted to reach the parking lot by crossing between two of the rail cars. As he was climbing onto or across the coupling mechanism, the cars moved suddenly, throwing him off balance and down onto the rail. The moving train car ran over his legs, both of which were subsequently amputated between the knee and the ankle.

Lopez does not assert that he received express permission to cross between the cars, but stated at deposition, "I would see everybody doing it, so I just did the same thing they did." When questioned whether he could have walked around the train to reach the parking lot, he replied, "I really don't think so, because it was a very long train." The crew members involved testified at deposition that they had been trained to sound a warning in compliance with the Railroad's safety manuals and that they had seen ANI employees climbing between parked rail cars on previous occasions.

Lopez filed this action against Evans, ANI, and Union Pacific Railroad. The trial court granted summary judgment to the Railroad, ruling, "There is no factual dispute that plaintiff did not have express authority to be on the rail car as contemplated in Utah Code Ann. § 56-1-18.5(1); and no evidence that the Railroad intended any injury to plaintiff nor had actual knowledge of plaintiff's presence as contemplated by § 56-1-18.5(2)(a)." Summary judgment was also granted in favor of ANI on the ground that plaintiff had been awarded workers' compensation under coverage carried by SOS Temporary Services and that such award was his exclusive remedy. Lopez settled with Evans and appealed the grants of summary judgment. We summarily affirmed the summary judgment in favor of ANI on the basis that the issues raised on appeal were too insubstantial to merit further proceedings and consideration. We now review the trial court's grant of summary judgment in favor of Union Pacific.

STANDARD OF REVIEW

Summary judgment is appropriate only when there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); Higgins, 855 P.2d at 235. We review the trial court's conclusions of law for correctness, granting them no deference. Ferree v. State, 784 P.2d 149, 151 (Utah 1989). On appeal, "[w]e determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact." Id.

ANALYSIS

The summary judgment awarded Union Pacific Railroad was premised on section 56-1-18.5 of the Utah Code, which at the time of plaintiff's injury provided: ¹

(1) A person other than a railroad employee may not ride or climb or attempt to ride or climb on, off, under, over, or across a locomotive, railroad car, or railroad train without authority from the owner or operator of the railroad.

(2) A person other than a railroad employee who is injured while violating Subsection (1) may not recover damages for his injury from the owner or operator of the railroad unless:

(a) the injury was caused by an intentional act of the owner or operator of the railroad with knowledge of the presence of the person; and

(b)(i) the circumstances under which the injury occurred were such that a reasonable person would believe that serious injury would probably result from the act of the owner or operator of the railroad; or

(ii) the owner or operator of the railroad acted with a wanton and reckless disregard of the probable result of his act.

Plaintiff assails the summary judgment, asserting that while workers at ANI did not have express authority from the Railroad, they had implied or implicit authority to cross between the parked cars because the Railroad parked its trains so that workers had to cross over the cars and that the Railroad knew of that practice but did nothing to discourage it. Plaintiff further contends that the Railroad owed him the common law duty of reasonable care because he and other workers were frequent trespassers on a particular or confined part of Railroad property. Finally, plaintiff asserts that if section 56-1-18.5 is interpreted to bar any action by him against the Railroad, it violates article I, section 11 of the Utah Constitution, commonly referred to as the open courts provision. Union Pacific urges us to affirm summary judgment on the ground that the statute does not recognize implied or implicit authority to be on railroad equipment and therefore the Railroad owed plaintiff no duty of care in the absence of the train crewmen's actual knowledge of his presence.

We need not and do not address whether subsection (1) of the statute requires express authority or whether implied or implicit authority will suffice. We decide this case on other grounds.

Pursuant to subsection (2), a plaintiff without authority to be upon railroad equipment may nevertheless recover if his injury was caused by an intentional act of the owner or operator of the railroad with knowledge of the presence of the plaintiff and the circumstances under which the injury occurred were such that a reasonable person would believe that serious injury would probably result from the act of the owner or operator. Union Pacific argues that plaintiff cannot recover under that part of the statute because the train crew looked for persons who might be on or near the equipment but saw no one. When the cars began to move, the crew had no knowledge that plaintiff was on the equipment. Union Pacific further asserts that the statute does not alter, but merely codifies, the common law general rule that a trespasser cannot recover unless his presence is known to the landowner and the owner then willfully or recklessly injures him. ²

However, the common law recognized an exception to the general rule relied upon by Union Pacific. That exception is succinctly stated in the Restatement (Second) of Torts § 334 (1965):

A possessor of land who knows, or from the facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.

This exception, which heightens the duty owed by an owner to a trespasser, has been explained by Prosser and Keeton as recognizing a balance of burden and benefit so that if the "burden is very slight, and the risk of harm to trespassers is correspondingly very great, there may be good reason to hold the defendant liable. This has been true first of all in the case of frequent trespass upon a limited area." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 58, at 395 (5th ed.1984). The burden is decreased if "trespassers in substantial number" habitually enter the land at a particular point, with the knowledge of the occupier of the land, and traverse a small area. Id. at 395-96. In that case, "the burden of looking out for them is reduced, and the risk of harm perhaps increased, so that many courts have held that there is a duty of reasonable care" to discover and protect the habitual trespassers in their activities. Id. at 396. "The typical case is...