Rankin v. Union Pac. R.R. Co.

• Decision Date: 31 March 2010
• Docket Number: No. 04-09-00454-CV.,04-09-00454-CV.
• Parties: J.M. RANKIN and the Estate of Doris Stacy Rankin, Appellants,v.UNION PACIFIC RAILROAD COMPANY, Appellee.
• Court: Texas Court of Appeals

319 S.W.3d 58

J.M. RANKIN and the Estate of Doris Stacy Rankin, Appellants,v.UNION PACIFIC RAILROAD COMPANY, Appellee.

No. 04-09-00454-CV.

Court of Appeals of Texas San Antonio.

March 31, 2010.

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Elizabeth Conry Davidson, Attorney at Law, Bryan P. Cartall, The Cartall Law Firm, P.L.L.C., San Antonio, TX, for Appellant.

Robert B. Burns, Jr., Burns Anderson Jury & Brenner, L.L.P., Austin, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, and STEVEN C. HILBIG, Justice.

OPINION

Opinion by: KAREN ANGELINI, Justice.

J.M. Rankin and the estate of Doris Stacy Rankin (hereinafter referred to collectively as “Rankin”) sued Union Pacific Railroad Company for negligence after a pick-up truck driven by Rankin's wife, Doris, was struck by a train. Mrs. Rankin was seriously injured in the collision and died. The trial court granted no-evidence summary judgment against Rankin, dismissing his suit with prejudice. On appeal, Rankin argues the summary judgment must be reversed because (1) the summary judgment record contains more than a scintilla of evidence supporting the challenged element of his claims, and (2) the summary judgment was granted before an adequate time for discovery had passed. We affirm.

Factual and Procedural Background

Shortly before noon on May 19, 2006, a pick-up truck driven by Mrs. Rankin was traveling on a road that ran alongside railroad tracks in Pearsall, Texas. The truck turned onto a road that crossed the tracks, went over the tracks, made a u-turn, and attempted to re-cross the tracks from the opposite direction. ¹ At the time, a Union Pacific train was approaching the railroad crossing, which was marked on both sides with cross-arm warning signs. The train was traveling at fifty-nine miles per hour, a legal speed for this crossing. When the train engineer realized the truck would not clear the tracks before the train reached the crossing, he set the train's emergency brakes, but was unable to stop the train before it collided with the truck. In the collision, Mrs. Rankin was ejected from the truck and sustained fatal injuries.

On May 16, 2008, Rankin filed suit against Union Pacific. In his petition, Rankin alleged three negligence theories. First, Rankin claimed Union Pacific breached its duty to provide Mrs. Rankin a reasonably safe and timely warning of the approaching train. Specifically, Rankin alleged the Union Pacific employees operating the train failed to activate the train's whistle and bell in a timely manner as required by statute. Second, Rankin alleged the crossing was extra-hazardous because it was obstructed by vegetation and because of “the configuration of the public streets approaching the crossing.” According to this theory, because the crossing was extra-hazardous, Union Pacific had a duty to provide extraordinary warning devices, such as signal bells or lights on the crossing, lights on the train cars, or flagging at the crossing. Third, Rankin alleged Union Pacific breached its duty because, based on the extra-hazardous nature of the crossing, it should have instructed its train crews to pass the crossing at a reduced speed. Rankin alleged Union Pacific's breaches of duty constituted negligence and were the legal cause of the incident made the basis of his suit.

Union Pacific responded to the suit by filing a verified answer in which it denied the estate had the legal capacity to sue.

On May 4, 2009, almost a year after this suit was filed, Union Pacific filed a motion for no-evidence summary judgment, arguing there was no evidence to support the breach of duty element of Rankin's negligence claims.² Although unnecessary under no-evidence summary judgment procedure, Union Pacific attached evidence to its summary judgment motion. This evidence included the affidavit of the train engineer, the affidavit of the train conductor, the affidavit of a Union Pacific claims manager, and photographs of the crossing taken on the day of the collision.

Rankin filed a response, arguing the summary judgment motion should be denied because an adequate time for discovery had not passed and there was a genuine issue of material fact as to whether Union Pacific breached its duties as alleged in the petition. Attached to Rankin's response was the affidavit of Santiago “Jimmy” Rodriguez, a witness who was nearby when the collision occurred. Thereafter, Union Pacific filed a motion to strike Rodriguez's affidavit because Rankin failed to identify Rodriguez as a witness during the discovery period.

On June 2, 2009, the trial court granted Union Pacific's motion for summary judgment, dismissing all of the negligence claims made by Rankin. This appeal followed.

No-Evidence Summary Judgment Standards

A no-evidence summary judgment motion is essentially a motion for a pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine issue of material fact supporting each element contested in the motion. Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). Texas Rule of Civil Procedure 166a(i), which governs no-evidence summary judgment motions, provides,

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex.R. Civ. P. 166a(i). According to Rule 166a(i), the moving party must specifically state the elements as to which there is no evidence. Id.; see Gish, 286 S.W.3d at 310-11 (emphasizing that no-evidence summary judgment must be specific in challenging the evidentiary support for an element of a claim or defense). The burden then shifts to the nonmovant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged. Tex.R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If the nonmovant does not produce more than a scintilla of evidence to raise a genuine issue of material fact, the trial court must grant the motion. Tex.R. Civ. P. 166a(i); see

Ridgway, 135 S.W.3d at 602 (holding summary judgment was properly granted when plaintiffs failed to produce more than a scintilla of evidence on an essential element of their claim).

A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). On the other hand, less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a surmise or suspicion of a fact. Id.

A no-evidence summary judgment motion that attaches evidence should not be disregarded or treated as a traditional summary judgment motion. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004). However, when a no-evidence summary judgment motion attaches evidence, that evidence should not be considered unless it creates a fact question. Id. A fact question is created when the summary judgment record contains inconsistent or conflicting summary judgment proof. Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547, 557 (Tex.App.-Waco 2001, no pet.); see also Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex.1988) (concluding that a fact issue was presented when conflicting inferences could be drawn from a deposition and an affidavit filed by the same party).

When reviewing a no-evidence summary judgment, the appellate court reviews the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Gish, 286 S.W.3d at 310.

Applicable Law on Duties Owed By Railroads

Because every railroad crossing is hazardous, statutes set out the minimum standard of safe conduct for both drivers and train operators. Port Terminal R.R. Ass'n v. Richardson, 808 S.W.2d 501, 504 (Tex.App.-Houston [14th Dist.] 1991, writ denied); Missouri Pac. R.R. Co. v. Shaw, 620 S.W.2d 161, 163 (Tex.Civ.App.-Corpus Christi 1981, writ ref'd n.r.e.). The Texas Transportation Code requires (1) a railway company to place warning signs where its railroad crosses a public road, and (2) the engineer in charge of a locomotive to ring the bell and blow the whistle or siren at least one-quarter mile from the place where the railroad crosses a public road or street until the locomotive has crossed the road or stopped. Tex. Transp. Code. Ann.. §§ 471.002(a), 471.006(b) (Vernon 2007). The railway company is liable for any damages sustained by a person because of violations of these statutes. Tex. Transp. Code. Ann. §§ 471.002(b), 471.006(c) (Vernon 2007).

“Every railroad crossing is dangerous, but it is only crossings which are found to be extra hazardous that place the higher duty upon the railroad to use extraordinary means to warn travelers along the road.” Missouri Pacific R.R. Co. v. Cooper, 563 S.W.2d 233, 235 (Tex.1978); see Osuna v. S. Pacific R.R., 641 S.W.2d 229, 230 (Tex.1982); Richardson, 808 S.W.2d at 504. A crossing is extra-hazardous if it is so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the cross-arm sign. Richardson, 808 S.W.2d at 505. A crossing may be classified as extra-hazardous if a temporary or permanent condition obstructs a driver's view of an approaching train. Id. If...