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Jarvis v. Mid-South Rail Corp.8/24/1998
JARVIS v. MID-SOUTH RAIL, 30860 (La.App. 2 Cir. 8/24/98);
APPEAL FROM FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, NO. 30,860-CA, STATE OF LOUISIANA, HONORABLE MICHAEL S. INGRAM, J.
In this wrongful death action arising out of a railroad crossing accident, the widow and children of the decedent auto-driver appeal a summary judgment granted in favor of the Ouachita Parish Police Jury and a partial summary judgment granted in favor of Mid-South Railroad Corporation and its employees named as co-defendants.
On this record, we reverse these summary judgments and remand with leave being granted to the litigants to again seek summary judgments that are properly supported. La. C.C.P. arts. 966, 967.
FACTS
The accident occurred at U.S. DOT Crossing No. 302-527-S on Golson Road east of Calhoun in Ouachita Parish about 3:00 p.m. on December 19, 1989. The decedent, Charles Gaynor Jarvis, who was driving southerly in his 1984 Mazda automobile, was pronounced dead at the scene after the accident. The Mid-South train was proceeding easterly.
Decedent's widow and children alleged that Ouachita Parish failed to post an appropriate speed limit and a stop sign at the railroad crossing. They alleged that Mid-South and its employees failed in several respects: Lookout, warning whistle and bell, and excessive speed. Ouachita Parish cross-claimed against Mid-South and its employees seeking indemnification and contribution.
The parish moved for summary judgment, while alternatively moving in limine, based on federal law pre-emption, to exclude evidence regarding restricted sight distance or the adequacy of warning devices. The parish supported its motions with an affidavit of W.C. Shrewsberry, a safety engineer of the Louisiana DOTD, who oversees the Federal Railroad Safety Program and its implementation in Louisiana, and with excerpts from the deposition and report of John Glennon, a railroad crossing safety expert hired by plaintiffs. Mid-South adopted this support of its motion for partial summary judgment and motion in limine.
In a later filed supplemental motion for summary judgment, the parish effectively asserted plaintiffs had no cause of action because the parish was not alleged to have had notice of any vice or defect at the crossing, as required by La. R.S. 9:2800, and the parish is immune to liability. La. R.S. 9:2798.1. The parish claimed the statutory presumption of La. R.S. 32:235 that it had fulfilled any duty owed to plaintiffs, and asserted that plaintiffs cannot meet their burden of proving causation without showing that a lower speed limit on Golson Road would have prevented the accident.
In opposition to defendants' motions, plaintiffs objected to consideration of the grounds raised in the parish's supplemental motion that was filed less than ten days before the date of the hearing of the earlier motions for summary judgment.
At the scheduled hearing, held September 11, 1997, the trial court ruled in favor of all defendants on the preemption issue, granting the summary judgments as prayed for. The parish's summary judgment was signed September 23, 1997. The partial summary judgment in favor of Mid-South and its employees was signed October 9, 1997.
DISCUSSION
Plaintiffs argue that the affidavit of Shrewsberry is insufficient to prove that there was no issue of material fact. They secondly assert that the trial court legally erred in ruling that federal law preempts state tort law regarding the placement of signs along Golson Road approaching the railroad crossing.
When federal funds have participated in the installation of warning
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