National R.R. Passenger (Amtrak) v. H & P Inc.

• Decision Date: 05 November 1996
• Docket Number: Civil Action No. CV-96-D-122-N.
• Citation: 949 F.Supp. 1556
• Parties: NATIONAL RAILROAD PASSENGER CORPORATION, ("AMTRAK"), Plaintiff, v. H & P, INCORPORATED, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

949 F.Supp. 1556

NATIONAL RAILROAD PASSENGER CORPORATION, ("AMTRAK"), Plaintiff, v. H & P, INCORPORATED, et al., Defendants.

Civil Action No. CV-96-D-122-N.

United States District Court, M.D. Alabama, Northern Division.

November 5, 1996.

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Julia J. Weller, Robison and Belser, Montgomery, AL, for Plaintiff.

Steven A. Higgins, Nix, Holtsford and Vercelli, Montgomery, AL, for Defendants.

OPINION

VARNER, District Judge.

This cause is now before the Court on Plaintiff's Motion for Summary Judgment filed herein on August 5, 1996, along with supporting briefs and materials; and on Defendants' opposition thereto filed herein on August 22, 1996, along with supporting briefs and materials; and on Plaintiff's Motion to Strike and Objection to the Affidavit of Tony Ray Frazier filed herein on August 30, 1996; and on Defendants' opposition thereto filed herein on September 19, 1996.

Before proceeding with a discussion of the undisputed facts, the Court must first determine the Plaintiff's Motion to Strike and Objection to the Affidavit of Tony Ray Frazier. "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e).

The first portion of Tony Ray Frazier's ("Frazier") affidavit to which the Plaintiff objects and moves to strike states: "It is my opinion that the accident was caused by the obstructed view available at the railroad crossing to the south and the manner in which the Amtrak train was being operated prior to and at the time of the accident." Opp. Brief to Amtrak's Motion for Summ. Judgm't, Exh. A, Aff. of Tony Ray Frazier. As a general rule, opinion testimony by a lay witness is inadmissible. Fed.R.Evid. 701. Because this testimony would not be admissible in evidence, the Plaintiff's motion to strike this portion of Frazier's affidavit is due to be GRANTED; accordingly, Plaintiff's objection to this portion is due to be SUSTAINED.

The second portion of Frazier's affidavit to which the Plaintiff objects and moves to strike states: "There was vegetation at the crossing which made it difficult to see down the entire length of the track." Aff. of Tony Ray Frazier. Frazier states that he stopped, looked, and listened within a few feet of the track, saw or heard no train, and drove his truck onto the track. The problem with this part of Frazier's affidavit is that it appears to be such as, in its disputed sense, would not be believable to a reasonable juror. Other witnesses do not testify to obstruction of view by vegetation. A photograph of the scene, properly identified, taken on the day of the accident and not questioned by Frazier or any other witness, demonstrates clearly that no such obstruction to view existed when the picture was taken. The picture itself demonstrates a wide shouldered, built-up railroad right-of-way along which one who stopped and looked within 20 feet of the track could obviously have observed northbound rail traffic for a great distance down the track. Additionally, J.H. Driggers, an Alabama State Trooper who made an affidavit, observed the scene shortly after the accident, walked up and down the road from whence Frazier stated he had come, and reported that there was insofar as he could see no obstruction to visibility along the track. Plaintiff's motion to strike this portion of Frazier's affidavit is due to be GRANTED; accordingly, Plaintiff's objection to this portion is due to be SUSTAINED.

Third, the Plaintiff objects to and moves to strike Frazier's statement that "[a]s my tractor-trailer began to cross the tracks, I heard a train horn and saw a train approach from my left at an extremely high rate of speed." Aff. of Tony Ray Frazier. Frazier's statement that he saw the train approach is made on personal knowledge and would be admissible in evidence. However, Frazier failed to present a factual basis for his opinion that the train was moving "at an extremely high rate of speed." Because such opinion testimony, unsupported by facts, would not be admissible in evidence, the clause, "at an extremely high rate of speed," should be stricken. Admittedly, Frazier did not yield the right-of-way to oncoming traffic as required by law, as hereinafter fully discussed. Thus, the Plaintiff's motion to strike this third statement is due to be GRANTED in part and DENIED in part; accordingly, the Plaintiff's objection to this third statement is due to be SUSTAINED in part and OVERRULED in part.

Finally, the Plaintiff objects to and moves to strike Frazier's statement that "[i]t is my understanding that there have been other accidents or near-misses at this crossing." Aff. of Tony Ray Frazier. This statement is opinion testimony without a basis in fact. Furthermore, Frazier makes no showing that this statement is based on personal knowledge. The statement is hearsay, and thus is not admissible in evidence. Plaintiff's motion to strike this portion of the affidavit is due to be GRANTED; accordingly, Plaintiff's objection to this portion is due to be SUSTAINED.

I. Background

In deciding this Motion for Summary Judgment, the court has carefully examined all submissions by the parties and has construed them in a light most favorable to the defendant.

On January 31, 1994, Frazier was operating a tractor-trailer for his employer H & P, Inc. ("H & P"). As he was traveling west across a railroad crossing on Prattville Junction Road in Elmore County, Alabama, Frazier was struck by an Amtrak train which was traveling north. The accident occurred at approximately 11:50 a.m. on a clear day with no fog, rain, or smoke.

Amtrak filed a complaint on January 23, 1996, against H & P and Frazier. Amtrak alleges that Frazier and H & P negligently or wantonly operated the tractor trailer and caused damage to Amtrak's train and engine resulting in loss of use and repair and replacement costs. Amtrak also alleges that H & P negligently or wantonly entrusted the tractor trailer to Frazier and caused said damages to Amtrak. Finally, Amtrak alleges that H & P negligently or wantonly failed to maintain and/or repair the tractor trailer and caused damages to Amtrak.

Frazier answered the complaint and filed counterclaims on February 26, 1996. Frazier asserts that Amtrak, and its employees, negligently or wantonly operated the train and caused damage to Frazier in the form of personal injury and emotional distress, expenses for repair and replacement of the tractor trailer, and loss of use of the tractor trailer. Frazier also asserts that Amtrak negligently or wantonly maintained the railroad crossing grade and the surrounding area thereby creating or allowing an unsafe condition, an obstructed vision of the track due to vegetation, and inadequate safety and warning devices.

On August 5, 1996, Amtrak moved for summary judgment as to liability on all counts of its complaint and as to Frazier's counterclaims.

II. Summary Judgment Standard

Under Fed.R.Civ.P. 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. at 2553. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S.Ct. at 2552-2553.

Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-2514, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

III. Analysis

A. Defendant's Counterclaims

1. Negligent or Wanton Operation of the Train

The Defendant/Counterclaimant, Frazier, alleges in Counts I and II of his Counterclaim that Amtrak negligently or wantonly operated the train so as to allow it to strike the tractor-trailer which Frazier was operating. As a basis for this claim, Frazier asserts that as he approached the railroad crossing on Prattville Junction Road, he came to a complete stop at the stop sign just before the tracks. It was daytime, and there was no fog, rain, or smoke which would have obscured his vision. Frazier asserts that the driver's-side window of the tractor-trailer was rolled down, and that he checked the track in both directions before beginning to...