Tapia, et al. v. Union Pacific Railroad Company, et al., No. 4:2023cv00042 - Document 24 (S.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER - Plaintiffs have not pointed to evidence of proximate causation - an essential element of negligence, negligence per se, and gross negligence. Union Pacific Railroad Company's 17 MOTION for Summary Judgment is therefore GRANTED as to each of Plaintiffs' claims. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
Download PDF
<![CDATA[
Tapia, et al. v. Union Pacific Railroad Company, et al. Doc. 24 Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 1 of 9 United States District Court Southern District of Texas ENTERED March 07, 2023 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JAVIER TAPIA, Individually and as Personal Representat of THE ESTATE OF A.W.T., and JENNIFER WELBORN, Plainti v. UNION PACIFIC RAILROAD COMPANY and JOHN DOE, Defendants. § § § § § § § § § § § § § Nathan Ochsner, Clerk 3-0042 CIVIL ACTION NO. MEMORANDUM OPINION AND ORDER aintiffs Javier Tapia and Jenni r Welborn ("Plaintiffs") brought this action individually and on behalf of their deceased child A.W.T. ("Decedent") against defendants Union Pacific Ra Company engineer. 1 A.W.T.'s ("UPRR") and John Doe, an unidentified road locomotive Plaintiffs allege that Defendants' negligence caused death. 2 Pending before the court is Union Pacific Railroad Company's Motion for Summary Judgment and Supporting Brief 1 Plaintiffs' Original Petition ("Complaint"), Exhibit 2 to Not of Removal, Docket Entry No. 1 2, pp. 2, 4. Plainti also named Union Pacific Corporation as a defendant but have since volunta ly dismissed it from the action. Id. at 2; Order, Docket For purposes of identification, all page numbers Entry No. 21. refer to the pagination imprinted at the top of the page by the court's Electronic Case Filing {"ECF") system. 2 Complaint, Exhibit 2 to Notice of Removal, No. 1-2, p. 4 1 15. Docket Entry Dockets.Justia.com Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 2 of 9 ("UPRR's MSJ") (Docket Entry No. 17). For reasons stated below, UPRR's MSJ will be granted. I. On November 15, 2022, Houston near conductor and Memorial Background a UPRR train was traveling east in Park. 3 engineer.4 Inside the train were a UPRR Just before 3:14 p.m. approached a railroad-only bridge over Memorial Drive. 5 the train There is fencing on either side of the bridge or beyond the bridge on the tracks' west side. 6 bridge.7 There is no railroad crossing at or near the Memorial Drive runs underneath the bridge, along with what appears to be a paved pedestrian path.8 A video camera on top of the train captured the fatal accident.9 In the video Decedent and a friend become recognizable at around 3:13:50, 10 when they were on the bridge, on the left edge of the tracks.11 An inward-facing 3 Affidavit of David Gitlitz, Exhibit 1 to UPRR's MSJ, Docket Entry No, 17-1, p. 2 1 2. 4 Affidavit of Mark Pollan ("Pollan Affidavit"), Exhibit 2 to UPRR's MSJ, Docket. Entry No. 17-2, p. 3 1 7. Outward Facing Locomotive Video, Exhibit 3 to UPRR's MSJ, Docket Entry No. 17-3, 3:13:48-3:13:56 p.m. 5 6 Id. at 3:13:56 p.m. 7 Id. at 3:13:30-3:14:30 p.m. 8 Id. at 3:13:55 p.m. 9 Id. at 3:13:50-3:13:59 p.m. 10 rd. at 3:13:50 p.m. 11 Id. -2- Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 3 of 9 video shows the conductor's and engineer's actions. 12 The conductor first starts reaching to sound the train's horn at 3:13:51.13 horn can be 3:13:53. 14 heard in the outward-facing video beginning The at The friend backed away, but between 3:13:55 and 3:13:57 Decedent ran across the track. 15 At 3:13:57 Decedent appears to be out of the train's path, even if still dangerously close. 16 But at 3:13:58 Decedent changed direction and headed back into the train's path. 17 Also at 3:13:58 the train engineer quickly reaches for and s the emergency brake. 18 appl per hour. 19 The train was traveling at 43 miles The camera angle does not show the train's impact with Decedent, but it can be heard at 3:13:59. 20 The emergency brake brought the train to a stop at 3:14:36. 21 nward Facing Locomotive Video, Docket Entry No. 17-4. Exhibit 4 to UPRR's MSJ, at 3:13:51 p.m. 14 0utward Facing Locomotive Video, Exhibit 3 to UPRR's MSJ, Docket Entry No. 17-3, 3:13:53 p.rn. at 3:13:55-3:13:57 p.m. at 3:13:57 p.m. at 3:13:58-3:13:59 p.m. Inward Facing Locomotive Video, Docket Entry No. 17-4, 3:13:58 p.m. 18 Exhibit 4 to UPRR's MSJ, ffidavit of Mark Pollan, Exhibit 2 to UPRR's MSJ, Entry No. 17-2, p. 5, Speed MPH at 15:13:59. 1 Docket woutward Facing Locomotive Video, Exhibit 3 to UPRR's MSJ, Docket Entry No. 17-3, 3:13:59 p.m. 21 Pollan Affidavit, Exhibit 2 to UPRR's MSJ, No. 17 , p. 5, Speed MPH at 15:14:36. -3- Docket Entry Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 4 of 9 Plaintiffs December 12, County. 22 brought 2022, action in the Judicial Plaintiffs al gross negligence.23 January 6, 2023. 24 this against Defendants on District Court of Harris ge negligence, negligence per se, and Defendants removed the case to this court on UPRR filed its Motion for Summary Judgment on January 30, 2023, Plaintiffs responded, and UPRR II. ied.25 Legal Standard "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the R. Civ. movant is entitled to judgment as a matter of law." P. 56(a). A party asserting that a fact is or is not genuinely disputed must support the assertion by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c) (1) (A). Summary judgment is proper "against a party who fails to make a showing sufficient to establish the existence of an element essent that party's case." 2552 (1986). 22 Celotex Corp. v. Catrett, 106 S. Ct. 2548, "[T]he burden on the moving party may be discharged Complaint, No. 1-2, p. 2. 23 1 to Exhibit 2 to Notice of Removal, Docket Entry Id. at 4 C][ 15. Notice of Removal, Docket Entry No. 1. 25 UPRR's MSJ, Docket Entry No. 1 7; Plaintiffs' Response to Defendant Union Pacific Railroad Company's Motion for Summary Judgment ("Plaintiffs' Response"), Docket Entry No. 22; Union Pacific Railroad Company's Reply Brief In Support of Its Motion for Summary Judgment ("UPRR's Reply"), Docket Entry No. 23. -4- Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 5 of 9 by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 2554. "[T]he court must draw all reasonable inferences in favor of the nonmoving party, determinations and it may not make credibil or weigh the evidence." Plumbing Products, Inc., 120 S. Ct. 2097, Reeves 2110 v. y Sanderson (2000). "[W] e review evidence in the light most favorable to the nonmoving party, [but] we assign greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene." Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) ting Scott v. Harris, 127 S. Ct. 1769 {2007)). III. Analysis In addition to disputing that its crew was negligent, UPRR argues that there is no evidence that its crew's actions or omissions proximately caused Decedent's death. In particular, UPRR argues that the video shows that Decedent got out of the train's path in time and that her last-second attempt to cross back over was an intervening cause. Plaintiffs respond that a railroad can be liable if its train approaches without adequate warning and by severe fright causes the person to enter the train's path. "To prevail on a negligence claim, a plaintiff must prove that the defendant's act or failure to act was a proximate cause of the plaintiff's injury." S.W.3d 643, 657 Seaway Products Pigeline Co. v. Hanley, 153 (Tex. App.-Fort Worth 2004). elements of proximate cause: "There are two cause-in-fact and foreseeability." -5- Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 6 of 9 Id. "'Cause-in-fact' means the act or omission was a substantial factor in producing the injury and, without it, the harm would not have occurred." Id. "'Foreseeability' means the actor, as a person of ordinary intelligence, should have anticipated the danger to others created by his act." Id. It is foreseeable to a railroad crew that a person lacking adequate warning may make sudden movements when startled by the nearby train. See Texas & Pacific Railway Co. v. Watkins, 29 S.W. 232, 234 (Tex. 1895). In Watkins the plaintiff was walking between two parallel railroad tracks toward a train depot. Id. at 233. A train approached from behind "without ringing the bell or blowing the whistle or giving any other warning of its approach." Id. "When the engine was within a few feet of [the plaintiff], a rumbling noise caused her to turn and look back, whereupon she was so startled and frightened by the close proximity of the engine that she jumped against it, and was knocked down, injuries. Id. and received" On appeal from the jury verdict, the Texas Supreme Court stated that the jury instructions should have included the following proposition: [I] f [the plaintiff] was impelled by sudden terror, brought about by such negligence of the engineer, to jump against the engine, then the railroad would be liable, although [the plaintiff] did not act as a reasonably prudent person would have acted under similar circumstances. Id. at 234. -6- Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 7 of 9 But where a person knows of an approaching train and leaves the n's path, the person's decision to reverse course and reenter the train's path is an unforeseeable intervening cause. See Missouri, Kansas & Texas Railway Co. of Texas v. Riddle, 277 S.W. 164, 170 (Tex. C . App.-Waco 1925, writ ref'd). In Riddle the decedent was part of a bridge repair gang with the role of flagging down approach trains. at 165. The decedent flagged down an oncoming train, which slowed but did not stop as required. Id. Seeing that the train would not stop before reaching him, the decedent left the tracks when the train was 100250 away. Id. at 164. But he "then turned around and stepped toward the track and stopped as though he were picking up something off of the rail, when the [train] struck him on the head." Id. The court held that the decedent's act of putting himself back in the train's path "was a new, independent intervening act on the part of the deceased, in no way caused or contributed to by the original negligence of the train crew, and an act which could not reasonably have been foreseen or anticipated by the train crew." Id. at 170. Decedent's movements were less sudden and more deliberate than those the Watkins plaintiff. In Watkins the plaintiff, lacking any warning, made a startled jump against a train when it made a noise just feet away. But Decedent, warned of the train's approach at least six seconds away, had enough time to leave the train's -7- Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 8 of 9 path and deliberately did so before reversing course. Decedent's movement onto the track is therefore not the type of sudden, startled movement that train crews are expected to foresee under Watkins. Instead, decedent in Riddle. the tra Decedent's actions resemble those of the In both cases, the decedent successfully left 's path in time but then turned back. that Riddle is there applicable. The court concludes Decedent's last-second reversal back into the train's path was an intervening cause of her death that UPRR's crew could not have reasonably foreseen. Railroads are expected to foresee harm to persons who do not receive enough warning to get out of the way, and they are expected to harm to persons who make sudden, startled movements when a train comes very close with no warning. They are not expected to foresee harm to persons who deliberately try to cross the train's path at the last second. Proximate cause is a necessary element of all of Plaintiffs' claims, and Plaintiffs offer no evidence suggesting that the alleged negligence proximately caused Decedent's death. are Defendants refore entitled to judgment as a matter of law on the element of proximate cause. The court refore does not decide whether there is evidence to show that Defendants breached a duty to Decedent or Plaintiffs. IV. UPRR's MSJ will be granted. Conclusion and Order intiffs have not pointed to evidence of proximate causation -8- Case 4:23-cv-00042 Document 24 Filed on 03/07/23 in TXSD Page 9 of 9 - an essential element of negligence, negligence per se, and gross negligence. Union Pacific Railroad Company's Motion for Summary Judgment (Docket Entry No. 17) is therefore GRANTED as to each of Plaintiffs' claims. SIGNED at Houston, Texas, on this 7th day of March, 2023. SENIOR UNITED STATES DISTRICT JUDGE -9-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
