Opinion
DOCKET NUMBER 2023 CA 0457
11-03-2023
Duane Eddie JONES v. ILLINOIS CENTRAL RAILROAD COMPANY, Trevor Poole, and State of Louisiana, through Department of Transportation and Development
Jill L. Craft, W. Brett Conrad, Jr., Baton Rouge, Louisiana, Attorneys for Plaintiff-Appellant Duane Eddie Jones Jeff Landry, Attorney General, Jeannie C. Prudhomme, Barbara Pilat, Assistant Attorneys General, Baton Rouge, Louisiana, Attorneys for Defendant-Appellee Louisiana Department of Transportation and Development
ON APPEAL FROM THE 21ST JUDICIAL DISTRICT COURT, DIVISION D, LIVINGSTON PARISH, LOUISIANA, DOCKET NUMBER 169211, HONORABLE BRIAN K. ABELS, JUDGE PRESIDING
Jill L. Craft, W. Brett Conrad, Jr., Baton Rouge, Louisiana, Attorneys for Plaintiff-Appellant Duane Eddie Jones
Jeff Landry, Attorney General, Jeannie C. Prudhomme, Barbara Pilat, Assistant Attorneys General, Baton Rouge, Louisiana, Attorneys for Defendant-Appellee Louisiana Department of Transportation and Development
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
GREENE, J.
2A motorist appeals a summary judgment dismissing his personal injury claims against the Louisiana Department of Transportation and Development (DOTD). After review, we reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of January 28, 2020, Duane Eddie Jones was driving his truck southbound on Louisiana Highway 63 in Livingston, Louisiana. As Mr. Jones attempted to traverse a highway-railroad crossing, an Illinois Central Railroad Company (ICRC) train struck his truck. On January 21, 2021, Mr. Jones filed a petition for damages against ICRC, Trevor Poole, the alleged ICRC train driver, and DOTD. He alleged that the crossing was marked with a cross buck sign but that the lights attached to the sign were not visible. He also alleged that the approaching train did not sound a horn or audible alert. As to DOTD, the only defendant involved in this appeal, Mr. Jones alleged that DOTD was the custodian of the "unreasonably dangerous crossing" and failed to maintain it; failed to maintain the signage alerting the train engineer to sound an audible warning, siren, or horn; and, failed to improve, upgrade, or repair the crossing, despite knowledge of prior accidents there.
A "cross buck" sign is an X-shaped sign indicating a rail crossing. See La. R.S. 32:169(A) (requiring a "Railroad Cross Buck" sign to be white, reflectorized, and with "Railroad Crossing" in black letters).
DOTD answered the suit, denying liability and asserting certain affirmative defenses. After the parties conducted discovery, DOTD filed a motion for summary judgment seeking dismissal of Mr. Jones’ claims against it. Although DOTD admitted that it owned and maintained La. Hwy. 63, DOTD alleged it did not own or maintain the crossing or the traffic control devices associated with the crossing. Mr. Jones opposed the motion.
The trial court held a hearing on the matter, and later, on February 22, 2023, signed a judgment granting DOTD’s motion for summary judgment and dismissing DOTD from Mr. Jones’ suit with prejudice. Mr. Jones appeals from the adverse judgment.
ASSIGNMENTS OF ERROR
On appeal, in four assignments of error, Mr. Jones argues the trial court: (1) legally erred by not applying three statutes that impose a duty on DOTD to ensure that pavement markings and lighted signs on La. Hwy. 63 warn motorists of the crossing and of approaching 3trains; (2) erred by failing to find the evidence showed DOTD breached its duty; (3) erred in distinguishing between "active warning devices" and "advanced warning devices," because DOTD’s custody extends to both under La. R.S. 45:323; and (4) erred in failing to find that contradictions in a DOTD engineer’s affidavit, deposition testimony, and prior testimony in another case demonstrated genuine issues of material fact as to DOTD’s duty.
Although the Legislature recently amended La. C.C.P. art. 966, those amendments are not applicable to the instant appeal. See 2023 La. Acts No. 317, § 1 (eff. Aug. 1, 2023), and 2023 La. Acts No. 368, § 1 (eff. Aug. 1, 2023); Guilbeau Marine, Inc. v. Ledet, 23-0065 (La. App. 1 Cir. 9/15/23), 375 So.3d 977, 982, n.9.
An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Jefferson v. Nichols State University, 19-1137 (La. App. 1 Cir. 5/11/20), 311 So.3d 1083, 1085, writ denied, 20-00779 (La. 11/4/20), 303 So.3d 623. A court shall grant a motion for summary judgment if the pleadings, memorandum, and admissible supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3) and (4); Jefferson, 311 So.3d at 1085. The summary judgment movant maintains the burden of proof. La. C.C.P. art. 966(D)(1). Nevertheless, if the movant will not bear the burden of proof at trial on the issue before the court on the motion, his burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and, if appropriate, the court shall render summary judgment against him. La. C.C.P. arts. 966(D)(1) and 967(B).
CUSTODY OR OWNERSHIP OF A DEFECTIVE THING
[1, 2] Under La. R.S. 9:2800, to prove a public entity is liable for damages caused by a defective thing, the plaintiff must establish: (1) the public entity had custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the public entity had actual or constructive notice of the defect; (4) the public entity failed to take corrective action within a reasonable time; and (5) causation. See La. C.C. arts. 2317 and 42317.1; La. R.S. 9:2800; Chambers v. Village of Moreauville, 11-898 (La. 1/24/12), 85 So.3d 593, 597. A plaintiff’s failure to meet any one. of these statutory requirements defeats a claim against the public entity. Himes v. State through Department of Transportation and Office of Engineering, 21-0138 (La. App. 1 Cir. 6/4/21), 327 So.3d 536, 539.
[3] DOTD has a duty to maintain any public highway in a condition that is reasonably safe and does not present an unreasonable risk of harm to a motorist exercising ordinary care and reasonable prudence. See La. R.S. 48:21(A); 48:35(E)(l)(a); Brooks v. State ex rel. Dept. of Transp. and Development, 10-1908 (La. 7/1/11), 74 So.3d 187, 189. This duty extends to the shoulder of a public highway as well. Id. See also Forbes v. Cockerham, 08-0762 (La. 1/21/09), 5 So.3d 839, 858; Johnson v. State through Dep’t of Transp. & Dev., 17-0973 (La. App. 1 Cir. 4/3/19), 275 So.3d 879, 892-93, writ denied, 19-00676 (La. 9/6/19), 278 So.3d 970. Nonetheless, DOTD is not a guarantor of the safety of all the motoring public under every circumstance. Brooks, 74 So.3d at 189. Nor is DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Netecke v. State ex rel. DOTD, 98-1182 (La. 10/19/99), 747 So.2d 489, 495; Johnson, 275 So.3d at 892-93. The issue to be decided here is whether DOTD’s statutory duty to maintain La. Hwy. 63 and its shoulders included a duty to maintain the pavement markings and flashing lights on a cross buck sign located adjacent to the highway, i.e., whether DOTD had custody of the pavement markings and non-functioning flashing lights. See Flores v. Aleo Builders, Inc., 08-606 (La. App. 3 Cir. 11/5/08), 996 So.2d 1285, 1288.
Louisiana Revised Statutes 48:1(10) defines "highway" as a "public way for vehicular, mounted, and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes."
[4] DOTD contends that the trial court correctly granted summary judgment in its favor, because Mr. Jones will be unable to prove at trial that DOTD had custody, of or owned the La. Hwy. 63 crossing or its traffic control devices. In support of its motion, DOTD’s evidence consists solely of the affidavit of civil engineer William Shrewsberry, DOTD’s designated 5representative for federal railroad safety programs. Mr. Shrewsberry made the following attestations in his affidavit:
As custody or ownership is the only issue raised in DOTD’s motion for summary judgment, our review is likewise limited to that issue. See La. C.C.P. art. 966(F). Thus, we do not address the remaining statutory requirements of La. R.S. 9:2800.
DOTD owns and maintains La. Hwy. 63 including the asphalt paved approaches to the crossing, but does not own or maintain the crossing. Specifically, DOTD maintains the paved traffic lanes of La. Hwy. 63 to a point approximately four (4) feet from the rail on each side of the crossing (the crossing area)…. DOTD did not participate in or play any role whatsoever in the design or construction of the crossing area … or in the construction, installation, or maintenance of railroad warning lights, visible alerts, or audible alerts at the crossing.
[5] In opposition to DOTD’s motion, Mr. Jones argues that DOTD’s statutory duty to maintain a public highway under La. R.S. 48:21(A). and 48:35(E)(l)(a) includes maintenance of the pavement markings and maintenance of the highway’s shoulder. Mr. Jones acknowledges that ICRC, the railroad, had a statutory duty under La. R.S. 45:323(A) to maintain that portion of La. Hwy. 63 extending for a distance of two feet on the outside of each rail of the tracks. However, Mr. Jones argues that, beyond that two feet, it is DOTD’s duty to maintain La. Hwy. 63 and the shoulder area. Thus, according to Mr. Jones, on the day of the accident, DOTD had custody of the pavement markings and non-functioning lights on the cross buck sign located on the shoulder.
On appeal, DOTD argues that we should disregard Mr. Jones’ claims regarding the faded pavement markings at the railroad crossing, because the issue was not raised in his petition. However, we find that Mr. Jones’ memorandum in opposition to DOTD’s motion and his summary judgment evidence sufficiently apprised DOTD that his claims included allegations of DOTD’s failure to maintain the pavement markings.
Louisiana Revised Statutes 45:323(A) pertinently provides:
All railroads … whose tracks are laid on or across the public street of any municipality, shall keep in good condition and suitable for vehicular traffic that portion of the street lying between the rails of the tracks of such railroad and railways, and for a distance of two feet on the outside of each rail of the tracks used or operated by them, together with the necessary headers; and when the street is paved, whether before or after the tracks are laid, they shall pave, repave, repair, and keep in good condition and suitable for vehicular traffic that portion of the public street lying between the rails of the tracks used by such railroad or railways, and for a distance of two feet on the outside of each rail of the tracks used or operated by them, with such character or kind of paving, together with the necessary headers, as may, from time to time, be designated by the governing body of the municipality. If the ties of any track shall extend for a greater distance than two feet on the outside of the rails, the duty and obligation of the railroads or railways to pave, repave, repair, and keep in good condition said pavement, shall extend to the ends of the ties…. (Emphasis added.)
To support his opposition, Mr. Jones filed his own affidavit with multiple attached photographs; excerpts from Mr. Shrewsberry’s deposition with multiple attached photographs; and, DOTD’s interrogatory responses. In his affidavit, Mr. Jones attested that, on the day of the accident, he was driving southbound toward the La. Hwy. 63 crossing; the pavement on La. Hwy. 63 approaching the crossing was in extremely poor condition, riddled with potholes, cracked asphalt, and faded unrecognizable markings; there was a sign with 6two lights attached on the righthand side of the highway "several feet" from the highway and the crossing; the lights on the sign were not illuminated and did not flash; there were no audible or visual alerts of the oncoming train at the crossing; and, suddenly and without warning, the ICRC train struck his truck and moved it hundreds of feet into a nearby parking lot.
Mr. Jones further attested that he returned to the scene almost a year after the accident; the pavement at the railroad crossing had been replaced, but the shoulder area, including the location of the sign and the two lights, was in the same condition as at the time of the accident. Mr. Jones also took multiple measurements with a tape measure and took close-up photographs showing the distances measured, and he attached photographs of the measured distances to his affidavit. According to Mr. Jones, the "end" of the circular base of the cross buck sign was four feet and eleven inches (or 59 inches) from the visible rail ties and five feet and five inches (or 65 inches) from the "end" of the pavement of the highway. He contends that the above evidence creates a genuine issue of material fact as to whether DOTD: (1) had custody of the La. Hwy. 63 pavement and had a duty to ensure the pavement markings warned him of the railroad crossing, and (2) had custody of the La. Hwy. 63 shoulder and a duty to maintain the non-functioning lights on the cross buck sign located there.
In opposition to DOTD’s motion for summary judgment, Mr. Jones references a second sign located on the lefthand side of southbound La. Hwy. 63 and on the south side of the crossing. Photographs attached to Mr. Shrewsberry’s deposition excerpt show that this second sign faced traffic proceeding northbound on La. Hwy. 63, the opposite direction traveled by Mr. Jones, Because the second sign did not control southbound traffic, including Mr. Jones, we need not address its functionality.
Mr. Jones also filed an excerpt of Mr. Shrewsberry’s deposition wherein Mr. Shrewsberry was questioned about his attestation that ["DOTD maintained] the paved traffic lanes of La. Hwy. 63 to a point approximately four (4) feet from the rail on each side of the crossing," but had no role "in the construction, installation, or maintenance of railroad warning lights, visible alerts, or audible alerts at the crossing." In his deposition, Mr. Shrewsberry acknowledged that there is a Louisiana statute that imposes maintenance duties on DOTD. He also admitted that DOTD has some responsibility for maintaining railroad crossing pavement markings and to "try to replace them within the confines of the budget and administration and priorities of what [DOTD is] given." However, he explained 7that the respective duties of DOTD and railroad companies to, maintain railroad crossings were unclear, and that over the years he had worked for DOTD, these respective duties had been interpreted differently, depending on legal advice given by DOTD attorneys. He stated that he would interpret "approximately four feet from the rail" as meaning DOTD’s duty to maintain the crossing began anywhere from three-and-a-half to four-and-a-half feet from the rail, whereas someone else might interpret that phrase as meaning DOTD’s duty began anywhere from two to six feet from the rail. He also stated that DOTD "expects" railroad companies to maintain "active warning devices" consistent with federal railroad administration guidelines and that DOTD had an agreement with ICRC that ICRC would main- tain the flashing lights at the La. Hwy. 63 crossing.
Mr. Shrewsberry testified he has been employed by DOTD since 1981.
Notably, Mr. Shrewsbury did not specifically identify the Louisiana statute that defines the scope of DOTD’s duty to maintain a railroad crossing; did not identify the source that defines the scope of DOTD’s duty to maintain pavement markings; and did not identify a specific federal guideline (or any law or regulation) requiring that railroad companies maintain active warning devices. Further, DOTD did not file any documentary evidence of the alleged agreement it had with ICRC to maintain the flashing lights at the La. Hwy. 63 crossing. See Jarvis v. Mid-South Rail Corp., 30,860 (La. App. 2 Cir. 8/24/98), 716 So.2d 969, 972-73 (reversing summary judgment in DOTD’s favor where DOTD failed to produce records documenting Mr. Shrewsberry’s knowledge as to the use of federal funds to install railroad crossing signs).
Compare Ghrigsby v. Kansas City Southern Ry. CO., 38-988 (La. App. 2 Cir. 10/29/04), 888 So.2d 961, 965-66, writ denied, 04-2897 (La. 2/4/05), 893 So.2d 885 (concluding Mr. Shrewsberry’s affidavit attestations were sufficient because they were substantiated by certified official DOTD records attached to his affidavit); Renfro v. Burlington Northern Santa Fe Ry. Co., 15-372 (La. App. 3 Cir. 5/11/16), 193 So.3d 1192, 1203 (noting that DOTD’s duty to maintain a railroad crossing is guided by the Manual on Uniform Traffic Control Devices, which, under La. R.S. 32:235, sets forth minimum standards for DOTD to follow in the construction and maintenance of its highways).
Under La. R.S. 48:21(A), La. R.S. 48:35(E)(1)(a), and established jurisprudence, DOTD’s duty to maintain La. Hwy. 63 also extends to the shoulders of the highway. See Brooks, 74 So.3d at 189; Forbes, 5 So.3d at 858; Johnson, 275 So.3d at 892-93. Louisiana Revised Statutes 48:1(21) defines "shoulder" as "the portion of the highway contiguous with the roadway for accommodation for stopped vehicles, for emergency use and for lateral 8support of base and surface." Mr. Shrewsberry attested that DOTD maintains La. Hwy. 63, including the paved traffic lanes to a point approximately four feet from the rail on each side of the crossing. But, Mr. Shrewsberry’s affidavit contains no attestation regarding DOTD’s maintenance of the pavement markings and shoulders of La. Hwy. 63; further, his excerpted deposition testimony makes no reference to highway shoulders. In the photographs attached to his deposition excerpt, however, no pavement markings are visible at the crossing and the subject cross buck sign and lights are shown adjacent to La. Hwy. 63. Mr. Jones’ summary judgment evidence shows the measured location of the cross buck sign in relation to the railroad track and to La. Hwy. 63.
Based on our de novo review of the above summary judgment evidence, we conclude that Mr. Jones’ first and fourth assignments of error have merit, and he has carried his burden of showing that there are genuine issues of material fact as to DOTD’s duty in this case. See La. C.C.P. arts. 966(D)(1) and 967(B); Lain v. Chapa, 48,000 (La. App. 2 Cir. 5/15/13), 114 So.3d 563, 566-67, writs denied, 13-1753, 13-1759 (La. 11/1/13), 125 So.3d 433, 434. That is, the evidence shows there are genuine issues of material fact as to whether DOTD’s duty to maintain the paved traffic lanes of La. Hwy. 63 requires that DOTD maintain visible railroad pavement markings. The evidence also shows there are genuine issues of material fact as to whether the lights on the cross buck sign are on the "shoulder" of La. Hwy. 63, as that term is defined in La. R.S. 48:1(21). Consequently, there are genuine issues of material fact as to whether DOTD had custody of the railroad pavement markings and lights.
We pretermit discussion of the remaining assignments of error.
CONCLUSION
For the foregoing reasons, we reverse the February 22, 2023 judgment granting the motion for summary judgment filed by the Louisiana Department of Transportation and Development and dismissing Mr. Jones’ claims against the Louisiana Department of Transportation and Development with prejudice. We remand this matter for further proceedings. Pursuant to La. R.S. 13:5112, we assess costs of the appeal in the amount of $1,243 against the Louisiana Department of Transportation and Development.
REVERSED AND REMANDED.
Penzato, J., concurs.