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Robinson v. Norfolk Southern Corp.

United States District Court, E.D. Louisiana
Jul 10, 2003
CIVIL ACTION NO. 02-1619, SECTION "K"(1) (E.D. La. Jul. 10, 2003)

Summary

In Robinson v. Norfolk, 108 Va. 14, 60 S.E. 762, 128 Am. St. Rep 934, 15 L.R.A. (N.S.) 294, this court held that this statute was unconstitutional insofar as it authorized the levy by a city of a license tax upon a circus exhibition beyond its corporate limits for the sole purpose of raising revenue to defray the general expenses of the city government.

Summary of this case from Charlottesville v. Marks' Shows

Opinion

CIVIL ACTION NO. 02-1619, SECTION "K"(1).

July 10, 2003.


ORDER AND REASONS


A Motion for Summary Judgment (Doc. 21) was filed by Norfolk Southern Corporation, Donald Robinson and Guy Meador seeking judgment exonerating them from liability in the death of Bryan Christianson Robinson ("Robinson"). Having held oral argument on this motion; having reviewed a video tape of the accident and received testimony in conjunction therewith; and having reviewed the pleadings, memoranda, exhibits, and the relevant law, the Court finds that the Motion for Summary Judgment must be granted.

Robinson was killed when he was struck by train no. 130A8 on May 2, 2001 as he was walking on the track. It is uncontested that Donald Robinson was the engineer and Guy Meador was the conductor on train no. 130A8 on the day in question. The train was owned by Norfolk Southern Corporation. Train no. 130A8 was traveling at 37 miles per hour on that day, as it approached milepost 190. Bryan Robinson first stepped into the gauge of the railroad tracks at or near milepost 190 when the train was approximately 650 away. The train required 1478 feet to stop in an emergency. Thus, by virtue of plaintiff's stepping onto the track that point, it was a physical impossibility for the train to stop prior to hitting the decadent.

The only issue as to defendants' liability then centers on whether Engineer Robinson and/or Conductor Meador blew the train's whistle in order to alert the boy and whether the whistle was sufficiently loud. Plaintiff's counsel has attempted to create a question of fact in this regard; however, no reasonable jury could find that the defendants did or failed to do anything which would cause them to be liable to plaintiff.

Standard for Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "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." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial."Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).

Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The court now turns to the merits of the arguments with these standards in mind.

Duty-Risk Analysis

The parties agree and this Court concurs that in negligence cases, Louisiana courts employ a duty-risk analysis to determine whether liability exists under the facts of a particular case.LeJeune v. Union Pacific Railroad, 712 So.2d 491, 494 (La. 1998). Under this analysis, a plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Id. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover.

The Louisiana Supreme Court has stated:

Except for those areas designated for the public to cross the railway, a pedestrian has no right to be on the right-of-way, which is essentially private property. Equally obvious is the fact that an automobile is much easier to control than a train and the driver of an automobile has a much better chance to avoid injuring a pedestrian than does a locomotive engineer. There is a long line of jurisprudence in this State to the effect that an engineer, when sighting a person or a vehicle on the track, can presume that he or it will move from the position of danger upon the sounding of the train's bell or the blowing of its whistle or horn; and that it is only when the engineer realizes that the warnings are not going to be heeded that he should make an effort to stop the train.
Kaplan v. Missouri-Pacific Railroad Co., 409 So.2d 298, 306 (La. 1981).

There is affidavit testimony by the engineer that he immediately began sounding the train's horn, ringing the train's bell and flashing the train's ditch lights as soon as he saw Bryan Robinson step into the gauge of the railroad tracks and begin walking in the path of the train. Indeed, at a hearing the court reviewed a RailView System video recording of the of the accident. This video is a real time recording of the train's path; it captured the accident in question in its entirety. It captured not only what the engineer in the cabin saw as the engine proceeded but the sounds in the cabin. While the audio portion is not as clear as to the sounds outside of the cabin, using technology to help filter out other frequencies in the tape, the Court heard the horn sound immediately when the child appeared on the track.

Furthermore, in the same demonstration, the Court heard a recording of the same horn on the same train on the same day when there was not as much background noise, and to the Court, the horn's volume and resonance appeared to be more than adequate; indeed, it was extremely loud. In addition, there is unrebutted affidavit testimony presented by the same witness accepted as an expert by the Court, M. Adam Mastrangelo, averring that the horn conformed to federal requirements. There is also affidavit testimony by Engineer Robinson that the horn was working properly on May 2, 2001.

The mother of the child testified that the child had no hearing impediments and had no earphones on at the time of the accident. In a very eerie way, the child stepped onto the tracks and never looked behind him all the while the whistle was sounding.

In response to defendants' Motion for Summary Judgment, plaintiff framed the sole issues of contested facts as: (1) whether train no. 130A8 sounded an audible warning device in sufficient time to provide warning to Bryan Robinson; and (2) whether inactions of Engineer Robinson and Conductor Meador were a cause in-fact of Bryan Robinson's death; (3) whether Bryan Robinson's negligence was the sole cause of his death. To support his position, the only "evidence" filed was the unsigned affidavit of Michael Petty.

In the affidavit, Petty "averred" that he was employed with Aviaport at Lakefront Airport located nearby the accident site and that while he heard the emergency brakes being applied, he did not hear any horns, bells, or whistles. He apparently stated this in an interview to Jennifer Huntley of Channel 4 Eyewitness News. The Court continued the trial of this matter and ordered the deposition of this affiant to be taken. The affiant refused to respond to a subpoena and the affidavit was never executed. Thus, this "testimony" cannot be considered in ruling on this motion. Thus, no testimony has been adduced to contradict the clear evidence of the blowing of the train's horn.

In plaintiff s reply memorandum filed after the hearing and demonstration, plaintiff now argues that the duty imposed under state law may be beyond the scope of federal regulations and that volume of the horn may not have been enough to meet the 300 yard requirement under La. Rev. Stat. 45:561. Furthermore, he contends that there is no proof that the horn was that loud. This argument is without merit.

The Fifth Circuit held in United Transportation Union v. Foster, 205 F.3d 851, 861 (5th Cir. 2000), that the state statutes governing signaling equipment requirements were preempted under the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20106 and the Locomotive Boiler Inspection Act ("LBLA"), 49 U.S.C. § 20701, et seq. Furthermore, plaintiff simply has not met his burden of proof to show any evidence that the horn did not meet the federal requirements. As such, there simply is no credible evidence adduced to demonstrate anything other than Bryan Robinson's negligence was the sole cause of his death. Accordingly,

IT IS ORDERED that the Motion for Summary Judgment (Doc. 21) filed by Norfolk Southern Corporation, Donald Robinson and Guy Meador is GRANTED. Judgment shall be entered in favor of defendants and against plaintiff.


Summaries of

Robinson v. Norfolk Southern Corp.

United States District Court, E.D. Louisiana
Jul 10, 2003
CIVIL ACTION NO. 02-1619, SECTION "K"(1) (E.D. La. Jul. 10, 2003)

In Robinson v. Norfolk, 108 Va. 14, 60 S.E. 762, 128 Am. St. Rep 934, 15 L.R.A. (N.S.) 294, this court held that this statute was unconstitutional insofar as it authorized the levy by a city of a license tax upon a circus exhibition beyond its corporate limits for the sole purpose of raising revenue to defray the general expenses of the city government.

Summary of this case from Charlottesville v. Marks' Shows
Case details for

Robinson v. Norfolk Southern Corp.

Case Details

Full title:CAREY ROBINSON, ET AL. v. NORFOLK SOUTHERN CORP., ET AL

Court:United States District Court, E.D. Louisiana

Date published: Jul 10, 2003

Citations

CIVIL ACTION NO. 02-1619, SECTION "K"(1) (E.D. La. Jul. 10, 2003)

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