Summary
holding that claims of error raised in the argument portion of a brief but not encompassed in the associated point relied on will not be reviewed
Summary of this case from Tolu v. ReidOpinion
WD 83328
11-24-2020
Judith Ann CAMPBELL, As Guardian and Conservator of Krista Molly Barnhart, Appellant, v. UNION PACIFIC RAILROAD COMPANY; Richard Louis Alsbury and William Lamar Woodward, Respondents.
Louis C. Accurso, Burton Haigh, Clayton E. Gillette, KCMO; Terry M. Evans, William S. Lewis, Miles B. Figg, Smithville; John J. Benson, Kirksville, for appellant. Thomas E. Jones, Harlan A. Harla, Bellville, IL; Craig M. Leff, KCMO, C. David Rouner, Kirksville, for respondent.
Louis C. Accurso, Burton Haigh, Clayton E. Gillette, KCMO; Terry M. Evans, William S. Lewis, Miles B. Figg, Smithville; John J. Benson, Kirksville, for appellant.
Thomas E. Jones, Harlan A. Harla, Bellville, IL; Craig M. Leff, KCMO, C. David Rouner, Kirksville, for respondent.
Before Division Two: Lisa White Hardwick, Presiding Judge, Alok Ahuja and Karen King Mitchell, Judges
Lisa White Hardwick, Judge
Judith Campbell, guardian and conservator of Krista Molly Barnhart, appeals the circuit court's entry of two summary judgments in favor of Union Pacific Railroad Company, Richard Alsbury, and William Woodward on her negligence and punitive damages claims against them. Campbell contends that genuine issues of material fact remain precluding summary judgment and that the court's exclusion of the opinions of five of her experts was erroneous. We find that the circuit court erroneously granted summary judgment on Campbell's claims that Union Pacific, Alsbury, and Woodward failed to give an adequate audible warning; erroneously granted summary judgment on Campbell's punitive damages claim associated with the horn audibility claims; and erroneously excluded testimony from one of Campbell's experts concerning the horn's audibility. Therefore, the court's grant of summary judgment on the horn audibility claims and the punitive damages claim associated with those claims is reversed, as is the court's decision to exclude the expert's opinion concerning the horn's audibility. The cause is remanded for further proceedings consistent with this opinion. The judgments are affirmed in all other respects.
FACTUAL AND PROCEDURAL HISTORY
On the morning of April 11, 2015, Barnhart was driving her car on Gate Place Road in Mercer County. Gate Place Road intersects with Union Pacific's railroad tracks, resulting in the grade crossing designated as AAR/DOT crossing #605631A ("the crossing"). In the northeast quadrant of the crossing, there was a sign post with a crossbuck and a red-and-white yield sign that faced westbound traffic. As Barnhart's westbound car approached the crossing, a southbound Union Pacific freight train, operated by engineer Alsbury and conductor Woodward, was approaching. The train was traveling between 46 and 47.5 miles per hour. The train crew began sounding the locomotive horn 19 seconds before the train reached the crossing.
A crossbuck is a black-and-white, X-shaped sign that reads "RAILROAD CROSSING." Norfolk S. Ry. Co. v. Shanklin , 529 U.S. 344, 350, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000).
Barnhart drove her car onto the crossing, and the train collided with her car. Neither Alsbury nor Woodward saw Barnhart's car approach the crossing. When the train hit Barnhart's car, both men heard a loud thump. Barnhart's car first appeared on the locomotive's Track Image Recorder ("TIR"), a fixed-mount video camera pointed in the direction of the train's travel, 2.3 seconds before the collision. During the 2.3 seconds, her car was traveling at a speed of 22 miles per hour. Woodward went to investigate, saw glass on the platform of the train, and alerted Alsbury, who engaged the emergency brake. Barnhart suffered permanent injuries from the collision.
Barnhart's mother, Campbell, subsequently filed this suit against Union Pacific, Alsbury, and Woodward, as Barnhart's guardian and conservator. Campbell asserted several claims against Union Pacific, including that Union Pacific was negligent in the construction and maintenance of an ultrahazardous crossing because it failed to maintain the crossing and failed to install or maintain adequate signage or warning devices; Union Pacific was negligent per se for failing to maintain the vegetation within the right-of-way at a public grade crossing; Union Pacific was negligent for the dangerous operation of a train because, among other things, its employees operated the train at a high rate of speed, failed to slow or slacken the train's speed, and failed to provide Barnhart with an adequate audible warning in accordance with federal and state law and regulations; and Union Pacific was negligent per se for dangerously operating the train in violation of state and federal statutes and federal regulations. Campbell also asserted negligence claims against Woodward and Alsbury for dangerously operating the train, which included allegations of operating the train at a high rate of speed, failing to slow or slacken the train's speed, failing to keep a proper lookout, and failing to provide an adequate audible warning. Lastly, Barnhart asserted a claim for punitive damages against Union Pacific.
In June 2019, Union Pacific, Woodward, and Alsbury (hereinafter collectively referred to as "Union Pacific") moved for partial summary judgment on the ground that federal and state law preempts Campbell's claims regarding the adequacy of the warning devices at the crossing and the allegedly hazardous or dangerous nature of the crossing. In August 2019, Union Pacific moved for partial summary judgment on all of Campbell's remaining claims except her negligence per se claim for failing to maintain the vegetation at the crossing. Additionally, Union Pacific filed motions to exclude the opinions of several of Campbell's expert witnesses.
After these motions were fully briefed and argued, the court entered an order sustaining both of Union Pacific's summary judgment motions. The court found, inter alia , that Campbell's claims regarding the adequacy of the warning devices at the crossing and the hazardous or dangerous nature of the crossing are preempted by the Federal Railway Safety Act ("FRSA") and state law; her claims based on Union Pacific's operation of the horn are preempted by the FRSA; her claims regarding the placement of the horn are preempted by the federal Locomotive Inspection Act ("LIA") and fail as a matter of law because there is no evidence that the horn's placement could have prevented the accident; her claims based on the train's excessive speed are preempted by the FRSA; her claims that the train crew failed to keep a careful lookout and to slacken the train's speed fail as a matter of law because there is no evidence that such failure caused or contributed to cause the accident; and her claims for punitive damages fail as a matter of law because she cannot establish the underlying tort claims and cannot establish that Union Pacific's actions justify the imposition of punitive damages.
In addition to sustaining Union Pacific's motions for summary judgment, the court sustained Union Pacific's motions to bar the opinions of five of Campbell's expert witnesses. Campbell filed this appeal. After filing her appeal, she voluntarily dismissed without prejudice any remaining claims.
Campbell raises eleven points on appeal, which we will address out of order. We will first address her points challenging the court's grant of summary judgment on her claims, then we will address her points challenging the exclusion of the opinions of five of her expert witnesses.
STANDARD OF REVIEW
Appellate review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Rule 74.04(c). "Only genuine disputes as to material facts preclude summary judgment." Goerlitz v. City of Maryville , 333 S.W.3d 450, 453 (Mo. banc 2011).
Where, as in this case, the movant is the defendant, the movant establishes the right to judgment as a matter of law by showing one of the following:
(1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to—and will not be able to—produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support [its] properly pleaded affirmative defense.
Roberts v. BJC Health Sys. , 391 S.W.3d 433, 437 (Mo. banc 2013).
In determining whether the movant has met this burden, we review the summary judgment record in the light most favorable to the party against whom the judgment was entered and accord that party the benefit of all reasonable inferences. Goerlitz , 333 S.W.3d at 453. We "do not weigh conflicting evidence or make credibility determinations." Brentwood Glass Co. v. Pal's Glass Serv., Inc. , 499 S.W.3d 296, 302 (Mo. banc 2016). "Instead, summary judgment tests ‘simply for the existence, not the extent’ of genuine issues of material fact." Id. (quoting ITT , 854 S.W.2d at 378 ). "A factual question exists if evidentiary issues are actually contested, are subject to conflicting interpretations, or if reasonable persons might differ as to their significance." Id. (citation omitted).
"Only evidence that is admissible at trial can be used to sustain or avoid summary judgment." Jones v. Union Pac. R.R. Co. , 508 S.W.3d 159, 162 (Mo. App. 2016) (citation omitted). "Hearsay statements cannot be considered in ruling on the propriety of summary judgment." Id. (citation omitted). The Supreme Court has quoted with approval Jones ’s description of the summary judgment principles underlying Rule 74.04:
[1] Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework. [2] Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record. [3] Affidavits, exhibits, discovery, etc. generally play only a secondary role, and then only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) record. [4] [S]ummary judgment rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses alone.
Green v. Fotoohighiam , 606 S.W.3d 113, 117-18 (Mo. banc 2020) (quoting Jones , 508 S.W.3d at 161 ). As the Court noted in Green , when read together, these principles "require a court to ‘determine whether uncontroverted facts established via Rule 74.04(c) paragraphs and responses demonstrate movant's right to judgment regardless of other facts or factual disputes. ’ " Id. at 118 (citation omitted). Moreover, these principles "do not require the circuit court or any appellate court to sift through the entire record to identify disputed issues, which, in turn, would cause a court to impermissibly act as an advocate for a party." Id.
Throughout the argument portion of her briefs, Campbell repeatedly cites Kivland v. Columbia Orthopaedic Group, LLP , 331 S.W.3d 299, 306 n.7 (Mo. banc 2011), for the proposition that we should "consider" evidence and court rulings that were outside of the Rule 74.04(c) record because they were part of the "whole record" below. In Kivland , 331 S.W.3d at 306 n.7, the Supreme Court stated that it could consider the plaintiffs’ expert's testimony in determining the propriety of summary judgment, even though such testimony had been struck, because the testimony was before the court on summary judgment. In so holding, the Court cited ITT ’s language that, on appeal, the court "reviews the whole record in deciding whether summary judgment was granted correctly." Id. (citing ITT , 854 S.W.2d at 376 ). As the Court clarified in Green , however, Rule 74.04 has been amended since ITT , and appellate courts are no longer required to examine the whole record to determine if summary judgment was appropriate. Green , 606 S.W.3d at 119 n.7. Rather, a court "need only consult what was properly put before it by way of Rule 74.04(c) paragraphs and responses." Id. at 121. Green does not affect the holding in Kivland because the plaintiffs in Kivland had relied on the expert's testimony in opposing the defendant's summary judgment motion. Kivland , 331 S.W.3d at 306. The plaintiffs’ expert's testimony in Kivland was put before the circuit court in the Rule 74.04(c) record; therefore, on appeal, the Court properly determined whether the testimony was admissible and considered it in ruling on the propriety of summary judgment. Id. at 306-12.
Pursuant to Kivland and Green , we will consider the five excluded experts’ opinions in reviewing the propriety of summary judgment to the extent that those opinions were properly put before the court by way of the Rule 74.04(c) paragraphs and responses, and we will determine their admissibility as requested by Campbell in her points relied on. We will not, however, review any other evidence or court rulings that were not part of the Rule 74.04(c) record in determining whether summary judgment was properly granted. Moreover, we will not review any allegations of error not encompassed by Campbell's points relied on. "Claims of error raised in the argument portion of a brief that are not raised in a point relied on are not preserved for our review." Terpstra v. State , 565 S.W.3d 229, 241 n.8 (Mo. App. 2019) (citation omitted). Lastly, we note that Campbell fails to provide factual and legal support for the majority of these additional allegations of error that she raises only in her arguments. Thus, to reach the merits of these issues, we "would have to become an advocate for [Campbell] by searching the record for the relevant facts ... and crafting a legal argument on her behalf. This we cannot do." Lattimer v. Clark , 412 S.W.3d 420, 423 (Mo. App. 2013).
ANALYSIS
Federal Funds Preemption
In Point I, Campbell contends the circuit court erred in granting summary judgment in favor of Union Pacific on her claims asserting inadequate warning devices at the crossing. She argues that genuine disputes remain concerning the material facts required to establish Union Pacific's affirmative defense that the FRSA preempts these claims. Specifically, she asserts that the admissible, uncontroverted facts do not prove that federal funds were spent at the crossing before the collision. She also asserts that Union Pacific assumed the duty of a safe crossing, which she asserts is an avoidance to preemption.
In 1970, Congress enacted the FRSA "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. "The FRSA grants the Secretary of Transportation the authority to ‘prescribe regulations and issue orders for every area of railroad safety’ ... and directs the Secretary to ‘maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem.’ " Norfolk S. Ry. Co. v. Shanklin , 529 U.S. 344, 347, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000) (quoting 49 U.S.C. §§ 20103(a) and 20134(a) ).
The FRSA contains an express preemption provision, which states that "[l]aws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable." Id. (quoting 49 U.S.C. § 20106(a)(1) ). The preemption provision allows a state to "adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement." Id. at 347-48, 120 S.Ct. 1467 (quoting 49 U.S.C. § 20106(a)(2) ).
The Secretary of Transportation's regulations and orders establish the federal standard of care for railroad safety. See 49 U.S.C. § 20106(b)(1)(A). The FRSA does not preempt an action under state law for a claim that a railroad failed to comply with the federal standard of care. Id. The FRSA does, however, preempt a claim alleging that the railroad violated a state standard of care when a federal regulation or order "cover[s] the subject matter" of the state standard. 49 U.S.C. § 20106(a)(2) ; CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 671, 675, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Preemption will not lie if the federal regulation merely "touch[es] upon" or "relate[s] to" the same subject matter; rather, "preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Easterwood, 507 U.S. at 664, 113 S.Ct. 1732. When the federal regulation or order covers the subject matter of state law, the state cannot "impose an independent duty on a railroad" by statute, regulation, or common law. Id. at 671, 675, 113 S.Ct. 1732. Thus, to the extent a plaintiff alleges that a railroad was negligent notwithstanding its compliance with the federal standard of care, the claim is preempted. Id. at 675, 113 S.Ct. 1732.
Shortly after passing the FRSA, Congress enacted the Highway Safety Act of 1973, which created the Federal Railway-Highway Crossings Program. Shanklin , 529 U.S. at 348, 120 S.Ct. 1467. The crossings program "makes funds available to States for the ‘cost of construction of projects for the elimination of hazards of railway-highway crossings.’ " Id. (quoting 23 U.S.C. § 130(a) ). To implement the crossings program, the Secretary of Transportation, through the Federal Highway Administration ("FHWA") promulgated several regulations, including those addressing the adequacy of warning devices installed under the program. Id. Pursuant to the regulations, when certain conditions are present, "adequate warning devices ... on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals." Id. at 348-49, 120 S.Ct. 1467 (quoting 23 C.F.R. § 646.214(b)(3) ). When those conditions are not present, however, "the decision of what devices to install is subject to FHWA approval." Id. at 349, 120 S.Ct. 1467 ; 23 C.F.R. § 646.214(b)(4).
Therefore, "[w]hen the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds, §§ 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject." Id. at 357, 120 S.Ct. 1467. As the United States Supreme Court explained in Shanklin :
At that point, the regulation dictates the devices to be installed and the means by which railroads are to participate in their selection. It is this displacement of state law concerning the devices' adequacy, and not the State's or the FHWA's adherence to the standard set out in §§ 646.214(b)(3) and (4) or to the requirements of the [FHWA's Manual on Uniform Traffic Control Devices], that preempts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate, is immaterial to the pre-emption question.
Id. at 357-58, 120 S.Ct. 1467 (internal quotation marks and citations omitted). States that have installed federally-funded devices at a crossing cannot "hold the railroad responsible for the adequacy of those devices." Id. at 358, 120 S.Ct. 1467.
Union Pacific asserted in its June 2019 summary judgment motion that the uncontroverted facts show that the warning devices at the crossing where the collision occurred were approved by the FHWA and installed using federal funds and, therefore, like the claims in Shanklin , Campbell's claims of inadequate warning devices are preempted. Because Campbell challenges the admissibility of virtually every fact that Union Pacific alleged, the facts, and the evidence supporting those facts, are as follows.
Union Pacific alleged that, in 2014, it entered into an agreement with the Missouri Highway and Transportation Commission ("MHTC"), which governs the Missouri Department of Transportation ("MoDOT"), for the installation of yield or stop signs at certain Union Pacific grade crossings in Missouri that, at the time, had only crossbucks as warning devices. MHTC subsequently entered an administrative order approving the agreement to promote public safety and incorporated the agreement into the administrative order by reference. The agreement and administrative order required Union Pacific to install stop or yield signs and emergency notification system signs at each crossing on an attached list of affected crossings, which included the crossing at issue here. The project required MoDOT to pay Union Pacific for any and all materials actually used for the installation of the signs. Pursuant to the order, MoDOT was to fund 70% of the costs of the materials in this project from the Federal Grade Crossing Safety funds made available pursuant to the provisions of 23 U.S.C. § 130.
To support these facts, Union Pacific offered the affidavit and testimony of Eric Curtit, MoDOT's Administrator of Railroads since 2011 and the person responsible for overseeing projects and maintaining MoDOT's files regarding federally funded highway-railroad grade crossing sign installation projects for the State of Missouri. Curtit was personally involved in negotiating and administering the agreement. Curtit also testified in detail about the Statewide Transportation Improvement Program ("STIP"), which was a document that he was involved in preparing. Among other things, the STIP contained a list of projects, including this particular project, for which MoDOT was seeking approval from the FHWA and the Federal Transit Administration. According to Curtit, the STIP was a request that he, on behalf of MoDOT, was making to the federal government to receive federal funds to install stop and yield signs throughout the State of Missouri. Curtit testified that the federal government approved the STIP, including this project. Union Pacific also offered the affidavit of Michael Benjamin, Union Pacific's Manager of Special Projects, Industry and Public, who was familiar with both the agreement and administrative order because he was Union Pacific's representative for the purpose of administering the provisions of the agreement and administrative order. Additionally, Union Pacific offered copies of the agreement and administrative order, which were certified as business records by the MHTC secretary and records custodian and were, therefore, admissible under Section 490.692, RSMo 2016.
All state statutory references are to the Revised Statutes of Missouri 2016.
In the fall of 2014, Union Pacific had yield signs installed at the crossing. This fact was supported by Benjamin's affidavit, in which he stated that Union Pacific contracted with a company, KRW, to install either a stop or yield sign at the project's list of affected crossings and that the company installed the signs in the fall of 2014. Benjamin further stated that John Freise, Union Pacific's Public Project Coordinator, oversaw the installation of the stop or yield signs. In an affidavit, Freise stated that he received emails from KRW notifying him of the date the stop or yield signs were installed at each crossing and that he prepared a list showing the date of installation for each crossing. Freise's list showed that the yield signs at the crossing in this case were installed on October 8, 2014. Freise also stated in his affidavit that he went to each crossing and took photos of the installed signs, which were attached to his affidavit. The photos showed the date the photos were taken. Freise's photos showing the yield signs at the crossing were dated November 6, 2014.
In November 2014, Union Pacific billed MoDOT $20,916.75 for the cost of the signs installed pursuant to the project. To establish this fact, Union Pacific relied on the affidavit of Mohan Chirumamilla, Union Pacific's Senior Manager of Accounting. Chirumamilla averred that he was familiar with the process of billing outside entities for material used in projects performed for Union Pacific and that this is the amount that Union Pacific billed MoDOT for the project. He authenticated a copy of the invoice that Union Pacific sent to MoDOT, which was attached to his affidavit.
MoDOT received $14,641.72, or 70% of $20,916.75, from the FHWA. This amount was paid from the Federal Grade Crossing Safety funds, made available pursuant to the provisions of 23 U.S.C. § 130, for the payment of sign installations at the list of affected crossings in MHTC's administrative order, including the installation of the signs at the crossing. The evidence supporting these facts included Curtit's affidavit and deposition testimony. Curtit averred, based upon the personal knowledge he gained from his participation in and oversight of the project, that MoDOT received the funds from the Federal Grade Crossing Safety funds made available through 23 U.S.C. § 130. Additionally, Curtit authenticated, in his deposition, MoDOT's record of the wire transfer of the funds from the federal government to MoDOT.
MoDOT used these federal funds to pay Union Pacific in November 2014 for the installation of the signs at the affected crossings, including the installation of the signs at the crossing at issue here. Curtit averred this fact in his affidavit, and Chirumamilla averred in his affidavit that Union Pacific received the funds from MoDOT in November 2014. Chirumamilla supported his testimony with a screen capture of a document showing that MoDOT paid Union Pacific for the project. This document, which Chirumamilla testified was not editable, was made in the ordinary course of business and was contained in Union Pacific's accounts receivable system, a system Chirumamilla used as part of his job.
Union Pacific alleged sufficient facts demonstrating that the FHWA approved MHTC's sign installation project and that federal funds were used to install the signs at the crossing. Campbell argues, however, that the court erred in allowing Union Pacific to cite to "additional evidence" in its reply to her response to the summary judgment motion. She contends that Union Pacific's reply was outside the scope of Rule 74.04(c). We disagree. In her statement of additional uncontroverted material facts, Campbell alleged that Benjamin, Curtit, and Chirumamilla lacked personal knowledge of the information contained in their affidavits and that Union Pacific "has no admissible evidence of federal funding at the relevant crossing. " (Emphasis added.) To support these allegations, Campbell cited excerpts from the affiants’ depositions and exhibits attached to the depositions. In its reply, Union Pacific denied these allegations and supported its denial with evidence, largely from those same depositions and exhibits, demonstrating that the affiants did, in fact, have personal knowledge and that Union Pacific had admissible evidence of federal funding at the crossing. Rule 74.04(c)(3) allowed Union Pacific to deny Campbell's allegations in its reply and to support those denials with discovery, exhibits, or affidavits as prescribed by Rule 74.04(c)(2).
Campbell next argues that the facts are disputed as to whether federal funds were used to pay for the project before Barnhart's collision occurred on April 11, 2015. She notes that one of the FHWA's Fiscal Management Information System documents attached to Curtit's deposition stated: "Project Completed: 12/9/2015"; "Last Payment: 5/5/2016"; and "Last Action: 10/24/2016." Campbell asserts that we should infer from this document that federal funds were not paid until after the collision. Curtit explained in his deposition that these dates in the document referred to a different project for installing signs at crossings owned by a different railroad. Nevertheless, even if Campbell is accorded the inference she seeks from the document, which she herself argues is inadmissible hearsay that should not be relied upon to support summary judgment, Shanklin does not require that the federal funds be transferred before the collision to trigger preemption. Shanklin states only that preemption occurs "[w]hen the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds." 529 U.S. at 357, 120 S.Ct. 1467. Likewise, the Eighth Circuit has stated that "[p]reemption occurs when all warning devices for which federal payment is to be made have been installed and are operating." O'Bannon v. Union Pac. R.R. Co. , 169 F.3d 1088, 1090 (8th Cir. 1999). See also St. Louis Southwestern Ry. Co. v. Malone Freight Lines, Inc. , 39 F.3d 864, 867 (8th Cir. 1994). The uncontroverted evidence shows that the yield signs were installed at the crossing pursuant to the FHWA-approved and funded project in October 2014, six months before the collision.
Campbell also argues that she provided evidence that contradicts Union Pacific's facts. Specifically, she cites the deposition testimony of Troy Hughes, a MoDOT railroad project manager since August 2014. Hughes testified that he was familiar with this project but that he had not personally seen any bank statements, wire transfer, or checks from the federal government showing that federal funds were used on this project. He further testified, however, that he knew such records existed and that MoDOT's financial services division would have those records. That Hughes – one MoDOT employee – may not have personally seen records that he otherwise knew existed does not create a genuine issue of material fact as to whether federal funds were used to install the yield signs at the crossing.
Lastly, Campbell contends that the court erred in denying her motion to file a supplemental response to the June 2019 motion for summary judgment to assert a claim that Union Pacific assumed the duty to keep the crossing safe by undertaking safety evaluations. She argues that Union Pacific's assumption of a duty to assess the safety of the crossing constitutes an avoidance to preemption. The court did not state its reason for denying Campbell's motion. Union Pacific opposed her motion to file a supplemental response on procedural and substantive grounds, none of which are addressed in her brief. Therefore, to reach the merits of whether the denial was proper, we would have to become Campbell's advocate by searching the record for the relevant facts and crafting a legal argument on her behalf, which we cannot do. Lattimer , 412 S.W.3d at 423.
Campbell has failed to demonstrate that a genuine issue of material fact remains on Union Pacific's affirmative defense that federal funding preemption bars her inadequate warning device claims. Therefore, the circuit court did not err in granting summary judgment on these claims. Point I is denied.
State Jurisdiction Warning Device Preemption
Because Campbell's inadequate warning device claims against Union Pacific are preempted by federal law, we need not address her contention in Point II that the circuit court erred in granting summary judgment in favor of Union Pacific on its affirmative defense that that those same claims are preempted by state law. Point II is denied. Preemption of Locomotive Horn Claims
In Point VIII, Campbell contends the circuit court erred in granting Union Pacific's August 2019 summary judgment motion on its affirmative defense that the FRSA and the LIA preempt her claims regarding the locomotive horn. She argues the uncontroverted, admissible facts do not support a finding that Union Pacific timely sounded a correct horn pattern that was sufficiently loud.
A federal regulation requires the "[s]ounding of the locomotive horn with two long blasts, one short blast and one long blast" when the "locomotive or lead cab car is approaching a public highway-rail grade crossing." 49 C.F.R. § 222.21(a). The timing of the horn is covered by 49 C.F.R. § 222.21(b)(2), which provides that "the locomotive horn shall begin to be sounded at least 15 seconds, but no more than 20 seconds, before the locomotive enters the crossing." In accordance with the FRSA's federal preemption provision in 49 U.S.C. § 20106, this federal regulation "preempts any State law, rule, regulation, or order governing the sounding of the locomotive horn at public highway-rail grade crossings." 49 C.F.R. § 222.7(a).
In its statement of uncontroverted material facts supporting its August 2019 summary judgment motion, Union Pacific alleged that the locomotive horn began sounding 19 seconds before the train entered the crossing. Union Pacific supported this fact with the TIR video and a printout of the train's event recorder. Campbell denied this fact and asserted that Union Pacific's expert, Gary Wolf, admitted in his deposition that he did "not believe the horn data is accurately recorded." As Union Pacific noted in its reply, however, Campbell mischaracterized Wolf's testimony. While Wolf testified that horn recordation technology is "[n]ot accurate to a precise level," he explained that some event recorders record horn application, i.e. , some locomotives have wired the event recorder to the pushing of the electrical button, while other event recorders use a pressure limit switch. The locomotive in this case used a pressure limit switch. This means that the sound level coming out of the bugle could differ from what is shown on the event recorder because the event recorder is showing the pressure in the horn line. According to Wolf, however, the difference is only "maybe a second or so." Wolf further testified that, with regard to the horn in this case, both he and Campbell's expert, James Loumiet, determined that the recording of the horn on the event recorder and the audio of the horn heard on the TIR video were "within a second" of each other.
Consequently, even if we were to find that Campbell successfully controverted Union Pacific's allegation that the locomotive horn was sounded 19 seconds before the train entered the crossing, it would make no difference. Wolf's unrefuted testimony was that the difference between the TIR video and the event recorder was "within a second" and that he believed the horn was sounded at "roughly 18 seconds" before the lead locomotive entered the crossing. This was within 49 C.F.R. § 222.21(b)(2) ’s prescribed time frame. Furthermore, we note that Campbell's experts, Loumiet, Michael Seidemann, and Jimmy Scott, all opined that that the horn was sounded in compliance with 49 C.F.R. § 222.21(b)(2). Although Seidemann's and Scott's opinions were ultimately excluded by the court, Loumiet's opinion was not. Therefore, the FRSA preempts any claim by Campbell that the horn was not sounded in a timely manner.
As the train approached the crossing, the locomotive horn sounded four separate blasts: (1) at 7:54:43, a blast lasting 2.8 seconds; (2) at 7:54:53, a blast lasting 3.4 seconds; (3) at 7:54:58, a blast lasting 0.5 seconds; and (4) at 7:54:59, a blast lasting 4.9 seconds. The event recorder printout confirmed this, and Campbell admitted it. Campbell asserted, however, the duration of each blast was insufficient. To support her claim, she offered the opinion of her expert, Seidemann, a forensic audiologist. According to Seidemann, whose opinion was excluded, "the horn pattern should be four seconds for the longs, two seconds for the short, with a half-second pause between, so that the horn can generate the required decibel potential of the horn."
The court properly excluded this opinion because the federal regulation "does not define ‘long blast’ or ‘short blast,’ nor does it impose specific time requirements for long and short blasts." Janero v. Norfolk S. Ry. Co. , No. 1:13-CV-155-TLS, 2017 WL 993055, at *13 (N.D. Ind. Mar. 15, 2017) (quoting Byrne v. CSX Transp., Inc. , No. 3:09 CV 919, 2012 WL 1965781, at *2 (N.D. Ohio May 31, 2012) ). In fact, the Federal Railroad Administration has expressly rejected attempts to define the duration of long and short blasts, finding that "[i]mposing strict time requirements for the sound pattern would impose unrealistic limits on engineers and add to their already full workload." Use of Locomotive Horns at Highway-Rail Grade Crossings, 68 Fed. Reg. 70586-01, 70626 (proposed Dec. 2003) (codified at 49 C.F.R. §§ 222, 229). "When a federal agency affirmatively exercises its full authority in ‘the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute, States are not permitted to use their police power to enact such a regulation.’ " Janero , 2017 WL 993055, at *13 (quoting Ray v. Atl. Richfield Co. , 435 U.S. 151, 178, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978) ). Because the regulation does not require each blast to be a certain length, and it is undisputed that each blast that was required to be "long" was, in fact, longer than the blast that was required to be "short" by a factor of five or more, the FRSA preempts any claim by Campbell that the horn pattern was incorrect. See Byrne , 2012 WL 1965781, at *2.
Campbell next argues that the horn was inaudible because it was placed on the locomotive backwards. To support this allegation, Campbell cited the deposition testimony of two of her experts, Seidemann and Scott. Seidemann testified in his deposition that he had "seen literally hundreds of locomotive horns" but he had "never seen one with the configuration of one trumpet facing forward and four trumpets facing the back," like the horn in this case. Seidemann testified that, "[f]rom an acoustical standpoint, that makes no sense to me that you'd be sending that much more sound to the rear of the locomotive than you would be producing to the front of the locomotive." In Seidemann's opinion, the horn trumpets were "improperly installed." Similarly, Scott, a railroad operations consultant, testified in his deposition that, in his opinion, the horn was "on there backwards." The court excluded both of these opinions.
In its reply to Campbell's allegation, Union Pacific denied that the horn was installed backwards. To support its denial, Union Pacific offered the affidavit of Daniel Murphy, the Senior Product Manager for GE Transportation, the company that manufactured the locomotive. GE Transportation developed and manufactured the locomotive and delivered it to Union Pacific in June 2008. Murphy averred that the locomotive horn's trumpet placement of one trumpet facing forward and four facing the rear was its intended design, orientation, and configuration.
Campbell argues that Murphy's affidavit was improperly attached to Union Pacific's reply to her response to the summary judgment motion. One of Campbell's allegations in her statement of additional uncontroverted material facts was that the horn was installed backwards. Rule 74.03(c)(3) allowed Union Pacific to deny this allegation in its reply and support its denial in the manner prescribed by Rule 74.04(c)(2), which included attaching Murphy's affidavit.
Campbell asserts that, regardless of Murphy's affidavit averring that the horn was installed properly, Seidemann's and Scott's opinions support an inference in her favor that Union Pacific "violated statutes/rules requiring proper horn installation." We disagree. Neither Seidemann nor Scott testified that the configuration of the trumpets violated any federal statute, rule, or regulation; rather, they simply testified that, in their opinion, the horn was installed improperly and should have been installed with the four trumpets facing forward. Essentially, Seidemann's and Scott's opinions challenge the design or construction of the horn, which makes Campbell's claim that the horn was installed backwards subject to preemption by the LIA.
The LIA, which was formerly known as the Boiler Inspection Act, requires that a locomotive "and its parts and appurtenances" be "in proper condition and safe to operate without unnecessary danger of personal injury," "have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter," and "can withstand every test prescribed by the Secretary under this chapter." 49 U.S.C. § 20701. In Napier v. Atl. Coast Line R.R. Co. , 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926), the United States Supreme Court determined that the LIA manifested Congress's "intention to occupy the entire field of regulating locomotive equipment." Kurns v. R.R. Friction Prods. Corp. , 565 U.S. 625, 631, 132 S.Ct. 1261, 182 L.Ed.2d 116 (2012) (quoting Napier , 272 U.S. at 611, 47 S.Ct. 207 ). The power delegated to the Interstate Commerce Commission to carry out the LIA's requirements "was a ‘general one’ that ‘extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances. " Id. (quoting Napier , 272 U.S. at 611, 47 S.Ct. 207 ) (emphasis added).
The Court in Kurns noted this authority has "since been transferred to the Secretary of Transportation." 565 U.S. at 631 n.3, 132 S.Ct. 1261
Because the LIA occupies the "entire field of regulating locomotive equipment," it preempts all state common-law claims alleging that any piece of locomotive equipment was improperly constructed or designed, even if the Secretary of Transportation has not issued a regulation or order addressing the specific device at issue. See Napier , 272 U.S. at 613, 47 S.Ct. 207 ; Kurns , 565 U.S. at 633-34, 637, 132 S.Ct. 1261. The purpose of "[t]his broad preemptive sweep" is "to maintain uniformity of railroad operating standards across state lines." Law v. Gen. Motors Corp. , 114 F.3d 908, 910 (9th Cir. 1997). "The virtue of uniform national regulation ‘is self-evident: locomotive companies need only concern themselves with one set of equipment regulations and need not be prepared to remove or add equipment as they travel from state to state.’ " Id. (citation omitted).
While the LIA preempts claims that the train horn was improperly constructed or designed, it does not preempt claims that a train horn failed to comply with federal decibel-level requirements. See 49 U.S.C. § 20106(b)(1)(A) (stating that federal law does not preempt state personal injury actions alleging that a party has failed to comply with the federal standard of care). There is one federal regulation concerning the audibility of locomotive horns, 49 C.F.R. § 229.129(a). This regulation provides, in pertinent part:
Each lead locomotive shall be equipped with a locomotive horn that produces a minimum sound level of 96 dB(A) and a maximum sound level of 110 dB(A) at 100 feet forward of the locomotive in its direction of travel.
In one of her negligence claims against Union Pacific, Campbell alleged in her first amended petition that Union Pacific's employees failed to provide Barnhart "with an adequate audible warning in accordance with federal and state laws and regulations." In her individual negligence claims against Alsbury and Woodward, she alleged that they "failed to provide an adequate audible warning." In its statement of uncontroverted facts, Union Pacific did not address the horn's decibel level or the role, if any, the audibility of the horn played in the collision. Specifically, missing from Union Pacific's allegations regarding the horn was any allegation that: (1) on the date of the accident, the horn emitted sound at 49 C.F.R. § 229.129(a) ’s required decibel level; or (2) Barnhart would not have heard the horn even if it had been sounded in full compliance with the federal regulation.
While Murphy's affidavit attached to Union Pacific's reply stated that, when the locomotive was delivered to Union Pacific in 2008, GE certified that it met 49 C.F.R. § 229.129 ’s audible warning device requirements, this affidavit did not establish that the train horn emitted a noise between 96 and 110 decibels, at a distance of 100 feet in front of the train, on April 11, 2015, the date of Barnhart's collision. On appeal, Union Pacific argues that Campbell failed to produce evidence showing that the horn did not comply with 49 C.F.R. § 229.129(a). It was Union Pacific, however, and not Campbell, who moved for summary judgment on the basis that Campbell's horn claims are "preempted by FRSA because the horn was operated in compliance with the applicable federal regulations." Until Union Pacific established its right to judgment as a matter of law by setting forth uncontroverted facts demonstrating that the horn's audibility complied with the regulation, Campbell had no burden to produce evidence to the contrary. Union Pacific failed to meet its burden. The circuit court erred in granting summary judgment on the basis that federal law preempts Campbell's claims involving the train horn's audibility.
Although the circuit court found lack of causation as an alternative ground for granting summary judgment on claims involving the horn's audibility, Union Pacific did not properly assert this ground in its summary judgment pleadings. Union Pacific attempted to assert lack of causation in its suggestions in support of its summary judgment motion, arguing that "Plaintiff's own expert, Jimmy Scott, intends to opine that even if the locomotive horn produced 110 decibels, the horn would not have been audible to Ms. Barnhart." Union Pacific did not provide any citation to the record for this statement and did not include this statement in its statement of uncontroverted material facts. Moreover, we note that, while Campbell's expert, Seidemann, offered opinions on this issue, Scott did not. Union Pacific's pleadings were insufficient to assert lack of causation as a basis for granting summary judgment on the horn audibility claims. Thus, the circuit court erred in granting summary judgment on this alternative basis. Because Campbell failed to show that a genuine issue of material fact remains on Union Pacific's affirmative defense that the FRSA and LIA preempt her claims regarding the timing and pattern of the horn blasts and the horn's construction or design, the circuit court did not err in granting summary judgment on those claims. Union Pacific did not demonstrate that it was entitled to judgment as a matter of law on Campbell's claims that Union Pacific, Alsbury, and Woodward failed to provide an adequate audible warning to Barnhart. Therefore, the circuit court's grant of summary judgment on those claims was erroneous and must be reversed. Point VIII is granted, in part, and denied, in part.
Train Speed Preemption
In Point IX, Campbell contends the court erred in granting summary judgment in favor of Union Pacific on its affirmative defense that the FRSA preempts her claims based on excessive speed. She argues that she has proven an avoidance to the affirmative defense by presenting uncontroverted facts showing that the train crew, Woodward and Alsbury, knew or should have known of Barnhart's unwavering approach to the crossing, which constitutes a local safety hazard preventing train speed preemption.
It is undisputed that, during the minute preceding the collision, the train was traveling approximately 46 to 47.5 miles per hour. Pursuant to 49 C.F.R. § 213.9, the maximum authorized speed for a freight train on that particular type of track is 60 miles per hour. Thus, the train was traveling well below the maximum speed permitted by federal regulations at the time of the collision.
"The United States Supreme Court has ruled that while some claims based on dangerous conditions are permissible, federal law preempts state common law claims based merely on excessive speed." Alcorn v. Union Pac. R.R. Co. , 50 S.W.3d 226, 241 (Mo. banc 2001), overruled on other grounds by Badahman v. Catering St. Louis , 395 S.W.3d 29, 40 (Mo. banc 2013) (citing Easterwood , 507 U.S. at 675, 113 S.Ct. 1732 ). "However, Easterwood did not preempt a common law claim based on the duty of a train's crew to slow down or stop where a specific, individual hazard exists." Id. "A specific, individual hazard can include the ‘unwavering approach’ of a vehicle that the train crew either knew or should have known about." Id. at 242. A vehicle that is making an "unwavering approach" is one that is approaching the crossing and neither speeding up nor slowing down. See id. "[A]n unwavering approach by a vehicle at a railroad crossing, where the engineers knew or should have known that a collision was imminent, is a specific, identifiable hazard." Id. "Such a hazard requires the train's crew either to slow the train or stop, in addition to any other preventive measures it can take, to avoid the collision." Id. Because this situation is not "encompassed in or accounted for in federal regulations governing maximum operation train speed," a claim of failure to slacken speed based on the unwavering approach by a vehicle at a railroad crossing is not preempted. Id.
In arguing that Barnhart was making an unwavering approach to the crossing, Campbell relies on the undisputed evidence that Barnhart's car was traveling at a speed of 22 miles per hour for the 2.3 seconds it was visible on the TIR before the collision. She asserts that, from this evidence, an inference can be made that Barnhart's car was moving at 22 miles per hour, neither speeding up nor slowing down, during the entirety of her approach to the crossing. To support this inference, she relies on Vaeth v. Gegg , 486 S.W.2d 625, 627 (Mo. 1972). In that case, the Supreme Court considered whether the respondent had made a submissible case on his claim that the appellant's excessive speed caused an accident. Id. The Court found that the respondent's testimony that, before the accident, he saw the appellant's car "for a split second" and believed the appellant was traveling at a speed of 70 miles per hour was, along with other evidence such as the damage to the vehicles, the force of impact and other physical facts, sufficient to allow submission of the issue of excessive speed to the jury. Id. In so holding, the Court stated that the "[t]he brevity of respondent's observation of appellant's car prior to the collision would not destroy the credibility of [respondent]’s evidence as to appellant's speed but would only go to its weight and value." Id.
Campbell's reliance on Vaeth is misplaced. In Vaeth , the appellant disputed the accuracy of the respondent's estimate of appellant's speed at the time of the collision based upon the respondent's split-second observation; here, no one disputes the accuracy of the estimate that Barnhart was traveling 22 miles per hour at the time of the collision for the 2.3 seconds it was visible on the TIR. The issue in this case, which was not an issue in Vaeth , is for how long prior to this brief 2.3 second observation was Barnhart traveling at that speed and whether the train crew should have known that Barnhart was maintaining that speed and making an unwavering approach to the crossing.
To support her contention that Barnhart was maintaining the 22 miles per hour speed and making an unwavering approach, Campbell relied on the opinions of her expert Scott. In his affidavit, Scott averred that he reviewed a simulation/animation that was prepared for this case. He believed the simulation/animation was "substantially similar to the actual events leading up to the collision between the train and the car in this case." Scott stated that it is "clear from [the] simulation/animation and testimony in this case that the car was making an ‘unwavering’ approach to the crossing" and that, "[a]t 12.5 seconds from the crossing, the train crew should have observed the car's ‘unwavering’ approach and applied the emergency brakes at that time."
The court excluded this opinion of Scott's and the simulation/animation video on which it was based. Campbell did not rely on the simulation/animation video in her summary judgment pleadings; therefore, it was not part of the Rule 74.04(c) record before the circuit court. Furthermore, while she argues that we should review the propriety of the court's decision to exclude the simulation/animation video, she has not included the simulation/animation video as part of the record on appeal, does not raise its admissibility in her points relied on, and does not provide adequate factual and legal support for her argument, as she fails to address the procedural and substantive grounds that Union Pacific asserted for the video's exclusion.
Campbell contends that, even though the simulation/animation video upon which Scott's testimony was based was excluded, other expert testimony that was not excluded provided a basis for the unwavering approach of Barnhart's car that was depicted in the simulation/animation video. The record does not support Campbell's contention. Gary Huett, Campbell's expert who estimated that Barnhart's speed during the 2.3 seconds it was visible on the TIR was 22 miles per hour, testified that he had "no idea" what her speed was before those 2.3 seconds. When asked about using 22 miles per hour as the speed of Barnhart's vehicle before the 2.3 seconds, Huett testified, "[W]e don't know what it was doing there, so it's arbitrary." He later testified, "No one is going to use that 22 miles an hour. You could use it slightly before the two seconds, because it can't accelerate instantaneously, but that's somewhat arbitrary." Similarly, when another of Campbell's experts, Loumiet, was asked whether the 2.3 seconds the car was visible on the TIR provided enough time to do an analysis of the vehicle's speed, he responded, "Yeah, for that time in question, sure. Now, obviously, you can't determine speed of the vehicle, say 15, 20 seconds before that, but for that time, it should be enough."
Even if Barnhart had been traveling at 22 miles per hour 12.5 seconds before the collision, we question whether Campbell could establish, at that time, that "the engineers knew or should have known that a collision was imminent." Alcorn , 50 S.W.3d at 242. We need not definitively resolve that issue.
Despite her own experts’ opinions indicating that an inference that Barnhart's car was traveling at 22 miles per hour before the 2.3 seconds it was visible on the TIR would be "arbitrary," Campbell insists that we should make this inference anyway. While we are to view all evidence in the light most favorable to Campbell and accord her all reasonable inferences from the evidence, we fail to see how such an inference would be reasonable under these circumstances. Because the evidence does not support a reasonable inference that Barnhart's car was maintaining a constant speed of 22 miles per hour and, furthermore, that at 12.5 seconds from the crossing, the train crew should have observed that she was making this unwavering approach, Campbell has failed to demonstrate that a genuine issue of material fact remains as to whether Barnhart made an unwavering approach to the crossing that the train crew should have known about. The circuit court did not err in finding that the FRSA preempts her claims based on excessive speed. Point IX is denied.
Failure to Keep a Careful Lookout and Slacken Speed
In Point X, Campbell contends the court erred in finding that she could not prove her claims that the train crew's failure to keep a careful lookout and slacken speed caused or contributed to cause the collision. She argues that genuine issues of fact remain regarding whether the train crew should have known about Barnhart's unwavering approach in time to slow the train and avoid the collision. We have already found, in Point IX, that Campbell failed to establish a genuine issue of material fact regarding whether Barnhart made an unwavering approach to the crossing that the train crew should have known about. Nevertheless, even if we were to accept that Barnhart did, in fact, make such an unwavering approach, Campbell has failed to demonstrate that the train crew should have known about Barnhart's unwavering approach in time to slow the train and avoid the collision.
To demonstrate that a train crew's failure to keep a careful lookout and to slacken speed caused a collision, a plaintiff must establish that the crew had the ability to take evasive action once they knew or should have known that a collision was imminent. Bunch v. Mo. Pac. R.R. Co. , 386 S.W.2d 40, 44 (Mo. 1965). See also Bryan v. Norfolk & W. Ry. Co. , 154 F.3d 899, 902 (8th Cir. 1998). In other words, the plaintiff must prove that, at the point that the train crew should have known that a collision was imminent, "the train crew could have braked in sufficient time to avoid the collision but failed to do so." Alcorn , 50 S.W.3d at 243.
In its statement of uncontroverted material facts, Union Pacific alleged that there was nothing the train crew could have done to avoid the collision once Barnhart's car was visible to the train crew. Union Pacific's expert, Wolf, calculated when Barnhart's car would have first been visible to the crew and whether, if they had put the brake on at that time, they could have prevented the accident. In making this calculation, Wolf assumed, based on Campbell's assertion, that Barnhart was traveling at a constant speed of 22 miles per hour, and he relied on testimony from Campbell's experts and his own measurements that there was a tree line 145 feet from the near rail that would have made Barnhart's car "difficult [for the crew] to see back beyond that." Wolf opined that, based upon the location of the tree line, "the only opportunity that she would have been visible to the crew is at maximum five to six seconds." According to Wolf, "even if this crew had seen her and even if they had a crystal ball knowing what her actions ultimately were and they applied the brake at six seconds, they still would have hit her."
In response, Campbell asserted that the train crew had "plenty of time" to observe Barnhart's vehicle and slow the train for her to pass. In support of this allegation, Campbell offered Woodward's estimate that he would have first been able to see the crossing when the train was 400 feet from it and Wolf's testimony that the train crew could have seen the crossing when the train was 1,000 feet from it. While this testimony indicates when the train crew could have seen the crossing, it does not indicate when the crew could have first seen Barnhart's car approaching the crossing and recognized that her approach was unwavering, which is the essential issue.
Similarly, while Campbell asserts that she raised a factual issue as to whether Barnhart's car created a dust cloud as it drove on the gravel road and that this dust cloud may have been visible to the train crew, she does not indicate at what point such dust cloud would have become visible or how the dust cloud would have alerted the train crew that Barnhart's approach to the crossing was unwavering.
The only expert evidence that Campbell presented in her summary judgment pleadings that opined when the train crew could have first seen Barnhart's car approaching the crossing and recognized that her approach was unwavering was Scott's affidavit. Scott opined that "the conductor and engineer had an unobstructed view of the roadway and car for at least 1200 feet and 17 seconds before the collision"; that "[a]t 12.5 seconds from the crossing, the train crew should have observed [Barnhart]’s ‘unwavering’ approach and applied the emergency brakes at that time"; and that, "[h]ad the train crew applied the emergency brakes between 10 ½ seconds and 11 seconds, the car would have cleared the track and the train would have missed the car." Scott expressly stated that these opinions were based upon the simulation/animation video that the court excluded. As discussed supra in Point IX, the admissibility of the simulation/animation video is not properly before this court. Moreover, as discussed infra in Point VI, the court properly excluded Scott's opinions based upon the simulation/animation video. Campbell has failed to demonstrate that a genuine issue of material fact remains as to whether the train crew should have known about Barnhart's unwavering approach to the crossing in time to slow the train and avoid the collision. Therefore, the circuit court did not err in granting summary judgment on the basis that she would be unable to prove her claims that the train crew's failure to keep a careful lookout and slacken speed caused or contributed to cause the collision. Point X is denied.
Furthermore, we note that a train crew has no duty to brake simply because they see a vehicle slowly approaching the crossing. Bryan , 154 F.3d at 902. Indeed, the duty to brake arises only when the train enters the "zone of danger," which is the point at which "an accident would certainly occur." Id. See also Bunch , 386 S.W.2d at 43 (noting that train crew members "were entitled to assume that the motorist was not oblivious to the approach of the train and would stop short of its path unless the driver showed some reasonable appearance of being oblivious"). Thus, even if Campbell had presented competent evidence of Barnhart's speed 12.5 seconds before the collision, which she did not, that evidence would not create a triable issue anyway.
Punitive Damages Claim
In Point XI, Campbell contends the circuit court erred in granting summary judgment on her claim for punitive damages. To recover punitive damages, a plaintiff must prevail on an underlying claim entitling her to actual damages. Kelly v. State Farm Mut. Auto. Ins. Co. , 218 S.W.3d 517, 526 (Mo. App. 2007). If the underlying claim fails, then the plaintiff cannot recover punitive damages. Id. Because it is unknown at this time whether Campbell will prevail on her negligence claims for failure to provide an adequate audible warning, we remand Campbell's claim for punitive damages associated with these claims for further proceedings should Campbell succeed on the underlying claims. The court's grant of summary judgment on Campbell's punitive damages claim associated with all of her other claims is affirmed. Point XI is granted, in part, and denied, in part.
As we do not know what evidence will be offered on the horn audibility claims, we express no opinion as to whether an award of punitive damages on these claims would be appropriate.
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Exclusion of Expert Opinions
In Points III, IV, V, VI, and VII, Campbell contends the circuit court erred in excluding the opinions of five of her experts from its consideration of Union Pacific's motions for summary judgment. She argues that those experts’ opinions refuted Union Pacific's preemption and lack of causation claims.
We review the circuit court's decision to exclude expert testimony for an abuse of discretion. Kivland , 331 S.W.3d at 311. Furthermore, "[f]or evidentiary error to cause reversal, prejudice must be demonstrated." State ex rel. Scherschel v. City of Kansas City , 470 S.W.3d 391, 399 (Mo. App. 2015) (citation omitted). "The admission and exclusion of expert testimony in civil cases in Missouri is governed by section 490.065." Kivland , 331 S.W.3d at 310. The circuit court abuses its discretion if it "erroneously finds that the requirements of the expert witness statute are not met." Id. at 311. Section 490.065.2(1), which governs the admissibility of expert opinions in this case, provides:
(1) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case[.]
As this statute models the Federal Rules of Evidence, Rules 702 through 705, courts have relied on federal authority to condense these requirements into a three-part test: (1) whether the expert is qualified, (2) whether the testimony is relevant, and (3) whether the testimony is reliable." Jones v. City of Kansas City , 569 S.W.3d 42, 54 (Mo. App. 2019), overruled on other grounds by Wilson v. City of Kansas City , 598 S.W.3d 888 (Mo. banc 2020) ; State ex rel. Gardner v. Wright , 562 S.W.3d 311, 319 (Mo. App. 2018).
In Point III, Campbell argues the court erred in excluding the opinions of Dr. Ellie Francis, a human factors expert in psychological/physiological factors applied to the engineering design of products, systems, and environments that humans encounter. In her statement of additional uncontroverted material facts, Campbell cited Francis's opinions to support her allegations that individuals in the cabin of the train have a better view of the surrounding areas than the TIR and that humans can move their heads to view a wide area and have a field of vision of about 180 degrees. Union Pacific admitted both of these allegations, so these allegations were taken as true. Thus, the exclusion of Francis's opinions to support these allegations did not prejudice Campbell.
Campbell also cited Francis's opinions to support her allegations that the crossing was without sufficient sight lines and was a complex crossing, lights and gates were required at the crossing, and lights and gates would have prevented the collision in this case. All of these allegations are related to the sufficiency of the warning devices at the crossing – claims that are barred by federal funds preemption. Campbell argues that she needed this evidence to refute preemption, but opinions concerning the safety of the crossing and allegedly optimal warning devices have no bearing on the FRSA preemption inquiry. If a crossing is equipped with federally funded warning devices, a railroad does not have an additional duty to erect other warning devices. See Shanklin , 529 U.S. at 358, 120 S.Ct. 1467. "Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate, is immaterial to the pre-emption question." Id. Francis's opinions about the safety of the crossing and the adequacy of the warning devices were irrelevant.
Lastly, Campbell argues that the court erred in excluding Francis's opinions because her "expert testimony regarding perception-reaction times is reliable." Campbell does not indicate in her brief the substance of Francis's expert opinion regarding perception-reaction times, nor does the record indicate that she relied on Francis's opinion on perception-reaction times in any of her Rule 74.04(c) pleadings to refute Union Pacific's facts or to support her own additional facts. Without any indication of what Francis's opinion on perception-reaction times was and how her opinion would have raised a genuine issue of material fact precluding Union Pacific's right to summary judgment, we are unable to adequately assess whether Campbell was prejudiced by the exclusion of Francis's opinion on this topic. Point III is denied.
In Point IV, Campbell contends the circuit court erred in excluding the opinions of Dr. Harvey Levine, an independent transportation consultant, regarding the economics of federal regulations and safety programs. In her brief on appeal, she argues that Levine would have opined that automated gates are the most effective safety device at crossings; that MoDOT's criteria for determining the need for automated gates was insufficient; that Union Pacific was not precluded from identifying the need for gates at the crossing and installing them; that Union Pacific shirked its responsibility to provide adequate safety at the crossing; and that the crossing was "ultra-dangerous" due to sight obstructions.
Levine's opinions about the safety of the crossing and adequacy of warning devices were, like Francis's similar opinions, irrelevant due to federal funds preemption. Moreover, while Campbell's point alleges that the circuit court erred in not considering Levine's opinions in ruling on the summary judgment motions, the record indicates that Campbell did not rely on Levine's opinions in any of her Rule 74.04(c) pleadings to refute Union Pacific's facts or to support her own additional facts. Thus, Campbell did not put Levine's opinions before the circuit court to consider in ruling on Union Pacific's summary judgment motions. We fail to see how Campbell was prejudiced by the court's exclusion of Levine's opinions. Point IV is denied.
In Point V, Campbell contends the circuit court erred in excluding the opinions of Dr. Stephen Richards, a transportation/traffic engineer, who she asserts would have provided testimony regarding the "application of regulations and industry standards regarding necessary safety/warning devices via engineering." In her statement of additional uncontroverted material facts, Campbell cited Richards's opinions to support her allegations that the crossing is significantly skewed; there is considerable rutting and loose gravel; there is a significant downgrade on the approach; the vegetation and brush is bad for visibility and exacerbated by the significant skew of the crossing; lights and gates were required at this crossing; and lights and gates would have prevented this collision. As with Francis's and Levine's opinions about the safety of the crossing and adequacy of warning devices, Richards's opinions on these issues were irrelevant due to federal funds preemption. Point V is denied.
In Point VI, Campbell contends the circuit court erred in excluding the opinions of Scott about the placement of the horn and Barnhart's speed and lookout claims. As discussed supra in Point VIII, Campbell's claim that the horn was installed backwards is preempted by the LIA, so Scott's opinion on this issue was irrelevant. Scott's opinions concerning the speed of Barnhart's vehicle, the alleged unwavering nature of her approach, and when the train crew should have first seen her approach the crossing were based upon the excluded simulation/animation video. The circuit court did not state why it excluded the video, but among the substantive grounds that Union Pacific asserted for its exclusion were that it lacked a factual foundation, misrepresented facts, and was purely speculative. Given that Campbell has failed to properly challenge the video's exclusion on any of these grounds, we cannot say that the circuit court abused its discretion in excluding Scott's opinions that were based on the video. Opinions based on a simulation/animation video that lacks a factual foundation, misrepresents facts, and is purely speculative are not reliable. The court did not err in excluding these opinions. Point VI is denied.
In Point VII, Campbell contends the circuit court erred in excluding the opinions of Seidemann about the audibility and operation of train horns. As discussed supra in Point VIII, Campbell's claims regarding the timing and pattern of the horn blasts are preempted by the FRSA, and her claim that the horn was installed backwards is preempted by the LIA. Therefore, Seidemann's opinions on those issues were irrelevant, and the court did not err in excluding them. Because Campbell's claims regarding the horn's audibility are not preempted, however, the court erred in excluding Seidemann's opinions on this issue. We reverse the court's decision to exclude Seidemann's opinions regarding the horn's audibility. Point VII is granted, in part, and denied, in part.
CONCLUSION
The court's grant of summary judgment on Campbell's horn audibility claims and her punitive damages claim associated with those claims is reversed, as is the court's decision to exclude her expert's opinion concerning the horn's audibility. The cause is remanded for further proceedings consistent with this opinion. The judgments are affirmed in all other respects.
All Concur.