MARY JANE CALHOUN, ET AL. V. CSX TRANSPORTATION, INC., ET AL.Annotate this Case
RENDERED : JANUARY 20, 2011
TO BE PUBLISHED
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MARY JANE CALHOUN, ET AL.
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2007-CA-001651-MR
BULLITT CIRCUIT COURT NO . 02-CI-01120
CSX TRANSPORTATION, INC ., ET AL.
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING IN PART AND REVERSING IN PART
I . Introduction
This is an appeal from a summary judgment order, entered by the Bullitt
Circuit Court and affirmed by the Court of Appeals, in favor of Appellees, CSX
Transportation, Inc., and one of its engineers. Appellants, Mary and Jesse
Calhoun, contend that summary judgment was not appropriate. We accepted
discretionary review to consider Appellants' contentions and for, the reasons
stated below, affirm in part and reverse in part .
The crux of the present controversy centers around whether the
particular railroad crossing was public or private, and the corresponding duty
a railroad owes at such crossing. Generally speaking, at a private crossing, a
railroad has no duty of lookout, or to warn (unless it knows that a person is in
actual peril of being struck), or to clear vegetation from around its right-of-way .
Yet, this minimal duty at private crossings is enhanced in three instances:
where a different duty was assumed ; if the crossing is, or becomes, ultrahazardous ; or where, by pervasive use, the character of a private crossing has
changed to a public one.
This case arises out of a non-fatal railroad accident at a crossing in
Bullitt County, I where a CSX train, operated by Paul L. McClintock, Jr., the
engineer, collided with a car driven by Mary Calhoun. As part of her morning
routine for three months prior to the accident, Mary drove her sons to work at
Bullitt County Sanitation (Sanitation Company), a privately owned company. 2
In doing so, she traversed an unnamed, partially gravel road (the road), which
eventually crossed a single set of CSX's north-south railroad tracks at the
crossing in question. The Sanitation Company was located on the west side of
the crossingg 3 So, her approach in the morning was from east to west and her
exit was the reverse.
CSX's track sets in a sixty-six foot right-of-way which perpendicularly
intersects the road . This crossing (the BCS crossing) is marked with
Near Shepherdsville, Kentucky.
2 The Sanitation Company is no longer in business .
3 One of the adjacent landowner's sons operated the Sanitation Company.
crossbucks, 4 but has no other warning signs; there is no whistle boards
immediately prior to the crossing. Additionally, on the Sanitation Company
side of the crossing, there is a tree line stretching north into the horizon,
running parallel with CSX's right-of-way . Furthermore, at the time of the
accident, there was extensive vegetation growth along the Sanitation
Company's side of the crossing.
At approximately 6 :30 a.m. on December 12, 2001, a dark and foggy
morning, Mary Calhoun dropped her sons off at the Sanitation Company, and
headed home back over the tracks (heading east) . At the same time, a CSX
train, operated by McClintock, was heading northbound, en route to Louisville
from Nashville. The train approached from Mary's right, traveling at
approximately fifty-three miles per hour .
As both approached the crossing, McClintock observed Mary's car
approaching through the tree-line near the crossing. At this point, the parties
disagree as to whether the train's whistle was sounded prior to reaching the
crossing. McClintock and the train's conductor, Ed Harris, testified that the
train's whistle was sounded when they saw Mary's car approaching the
crossing. According to the train's data recorder, however, the whistle was not
sounded in the seven seconds prior to impact .
A sign indicating a railroad crossing, shaped like an "X," generally placed
immediately before the crossing.
A whistle board is a sign located prior to the crossing, informing the engineer to
start sounding the whistle. In Kentucky, a train must start sounding its bell or
whistle at least fifty rods before a public crossing . KRS 277 .190 .
When exiting the Sanitation Company, the crossbuck sign (prior to the crossing)
was to Mary's right; the same direction as the approaching train.
Whatever else did--or did not occur-the train clipped Mary's car's
passenger's side rear quarter panel, spinning it around, and ejecting her . She
sustained serious injuries and has no memory of the collision.
Mary and her husband, Jesse,? initially filed suit against Appellees, CSX
and McClintock, as well as the Sanitation Company and the landowners
adjacent to the CSX right-of-way and crossing, Kerrin Hester and Charles
Burris .8 They asserted negligence, alleging, inter alia, that CSX and its
engineer violated their duties by failing to maintain the crossing allowing it to
become highly dangerous, and by failing to adequately warn Mary by horn or
Following discovery, the trial court granted summary judgment in favor
of CSX and McClintock. The court found that CSX did not breach any duty
owed to Mary because: (1) the BCS crossing was private and a railroad
company's only duty under the circumstances is to warn a person when he is
observed in actual peril of being struck by the train ; (2) the crossing was
private and so, CSX had no duty to clear the allegedly obstructive vegetation ;
and (3) this crossing was not ultrahazardous, was not pervasively used by the
public, and Mary did not rely on the train blowing its horn so as to alter CSX's
duties from the general rule applicable at private crossings ; i.e ., the three
exceptions to the minimal duty rule were inapplicable .
Only Mary was involved in the accident; Jesse, her husband, joined her in the
The Sanitation Company, Hester, and Burris are not longer parties.
Appellants then filed a notice of appeal. The Court of Appeals affirmed
the trial court's summary judgment order on all grounds stated above.
Additionally, the Court of Appeals' opinion found that Appellants' arguments
relating to drugs prescribed to McClintock were too speculative to defeat
summary judgment .9
Appellants now seek "a determination of whether the `no duty' private
crossing cases" are still viable precedent and "a determination of the proper
application of the extrahazardous crossing rule ." We address these questions
Summary judgment is proper when the evidence demonstrates "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." CR 56 .03. Furthermore, the
evidence "must be viewed in a light most favorable to the party opposing the
motion and all doubts are to be resolved in his favor ." Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) . Finally, to
defeat a properly supported motion, the respondent must "presen[t] at least
some affirmative evidence showing that there is a genuine issue of material fact
for trial." Id. at 482 . With this procedural structure in mind, we review de
novo the lower courts' legal conclusions that CSX was entitled to judgment as a
matter of law.
9 The Court of Appeals also ruled on several evidentiary matters that are not before
this Court .
A. Public/Private Crossing Distinction.
The distinction between public and private railroad crossings is critical
because "the duties required of persons who operate railroad trains, when
approaching and passing over public crossings, are very different from those
which are required of them at private crossings." Stull's Adm'x v. Kentucky
Traction & Terminal Co., 172 Ky. 650, 189 S .W. 721, 723 (1916) . As will be
further detailed below, our well-established common law imposes a minimal
duty for railroad companies at private crossings . The General Assembly, on the
other hand, imposes multiple duties on railroads at public crossings . KRS
277 .010, et. seq. Therefore, we must determine as a critical threshold matter,
whether the BCS crossing was public or private in order to determine the
extent of CSR's duty.
1 . The Gravel Road Traversing the BCS Crossing is Unnamed and Not
Maintained by the County
Although briefly detailed above, a. more thorough description of the
crossing is needed to properly consider whether it is public or private. In order
to access the Sanitation Company, a driver must turn off of Preston Highway
onto an unnamed paved road and proceed west. This paved road eventually
leads to the Bullitt County Highway Garage, ending almost immediately
thereafter . Bullitt County maintains the paved section of the road . Carroll
Samuels, an employee of the Bullitt County Road Department testified that the
county paved the road up to the garage . He stated that he considers this paved
roadway a driveway to the garage.
This unnamed paved road, however, does not lead directly to the
Sanitation Company; rather a driver must proceed further west to another
unnamed gravel road . This nameless gravel road traverses the railroad
crossing, and shortly thereafter ends at the Sanitation Company. Bullitt
County does not maintain this gravel road; rather, testimony in the record
suggests that Kerrin
ester and Charles Burris, the landowners of the two
tracts abutting the railroad right-of-way and crossing maintained the gravel
road as needed . 10
Based on our common law, the determinative factor is whether the
crossing is situated on a public road. In Deitz' Adm'x, we explained, "[flor a
crossing to be a public one the road or street on which it is situated must be a
public road or street established either in the manner prescribed by statute or
by dedication, and if in the latter manner there must be an acceptance ." Deitz'
Adm'x v. Cincinnati, N.O. & T.P. Ry. Co, 296 Ky. 279, 176 S .W.2d 699, 701
(1943) (emphasis added) . Furthermore, "the only way that a public highway
may be established is in the manner provided by statute, or by its dedication to
the public use and its acceptance by the proper authorities as a public
highway." Louisville & N.R. Co. v. Whittle's Adm`rs, 216 Ky. 314, 287 S .W. 894,
895 (1926) . 11 We also noted that, "although the acceptance need not be
formal, some control on the part of the county authorities must be exercised."
to Hester's son operated the Sanitation Company which lay on the Hester tract.
It appears our older cases used "public highway" and "public road" interchangeably.
See Louisville & N.R. Co. v. Survant, 96 Ky. 197, 27 S .W. 999, 10.01 (1894) ("A public
road can only be established in two ways . . . statute [and] . . . dedication.") .
Hunt's Adm'r v. Chesapeake & O. Ry. Co., 254 S .W.2d 705, 707 (Ky. 1952)
(emphasis added) (citing Whittle's Adm'rs, 287 S .W. at 895)) .
When applying these principles to the case at bar, we conclude that the
BCS crossing is private. There is no contention that the unnamed gravel road
was established pursuant to statute and no evidence in the record suggesting
is controlled by Bullitt County under any form of public dedication.
Whittle's Adm'rs, 287 S .W. at 895 .
Moreover, the Kentucky Transportation Cabinet's listing of public roads
does not list this unnamed gravel road, nor is the road included in the listed
road systems of the City of Shepherdsville or Bullitt County. Appellants
concede this point, stating "[t]echnically, the roadway was never incorporated
into the state or county road system." They do claim, however, that the road
is owned by Bullitt County as evidenced by two deeds conveying the
surrounding lots to Bullitt County.
Without more information, however, Bullitt County's ownership of this
unnamed gravel road is unclear from the deeds' cryptic language . And even if
we were to assume that the deeds conveyed this nameless gravel road to Bullitt
County, there is no evidence that the county ever exercised control over this
road: it did not pave it, maintain it, name it, or incorporate it into its road
system . 12
As noted above, Appellants do not contend that this road was established in the
manner prescribed by statute.
After examining the evidence, we conclude that Appellants failed to
"presen[t] at least some affirmative evidence showing that there is a genuine
issue of material fact," as to whether the road was public . Steelvest, 807
S.W .2d 482. 13 Consequently, the Court of Appeals correctly concluded that the
crossing was private as a matter of law.
B. Minimal Duty Imposed at Private Crossings
Having resolved the threshold issue-determining that the crossing is
private-we next consider the duties our common law imposes on CSX.
At private crossings, our century-old precedent states that a railroad is
"not liable for injuries to a traveler at [a private] crossing unless after discovery
of his peril, they fail to use all means to avoid the accident." Hunt's Adm'r, 254
S .W.2d at 707 ; see also, Chesapeake 8s O. Ry. Co. v. Hunter's Adm'r, 170 Ky. 4,
185 S .W. 140 (1916) ; Stull's Adm'x, 189 S.W. at 723-24 (stating that railroad
operators must attempt to avoid the injury if they observe the peril in time) .
Our conclusion that this railroad crossing was private is bolstered by Gaw v.
CSX Traiisp., Inc ., wherein a federal court also concluded that this same crossing
was private . No. 3:05CV-220-MO, 2008 WL 793655 (W.D. Ky. March 24, 2008).
That court noted, as did the Court of Appeals in this case, that the U.S. Department
of Transportation lists the BCS railroad crossing as private .
We recognize that Gaw held that this same crossing was not ultra-hazardous as
a matter of law. However, we do not find this persuasive in the present case for
several reasons . Importantly, the accident in Gaw occurred in 2005; over three
years after the accident here . The extent that nature and human action altered the
vegetation landscape during these years is unknown (CSX did, however, concede
that the large cedar tree--which arguably played a part here-was removed after
Mary's accident) . Moreover, it is unclear from Gaw which the direction the train
approached the crossing from: north or south . Consequently, we do not know
which part of the vegetation (north or south of the crossing) the court evaluated and
found was not ultra-hazardous . Finally, Gaw was procedurally decided under
FRCP 56(c), the more liberal federal summary judgment standard.
Thus at private crossings, "a railway company owes no duty of lookout or
warning ." Hunt's Adm'r, 254 S.W.2d at 706-707 (emphasis added) .
Additionally, and central to the present case, a railroad has no duty to
clear vegetation at private crossings . Spalding v. Louisville & N.R. Co., 281 Ky.
357, 136 S .W.2d 1 (1940) . Spalding involved an allegation that the railroad
allowed bushes and weeds to grow up on its right-of-way adjacent to the
crossing, which obstructed the driver's view. Utilizing the law of easements, we
held that the landowner, as the dominant estate holder, was responsible for
vegetation removal . Id. at 3 . The railroad, as servient owner, had no duty "to
maintain in any way the safety of the private passway for travel." Id. We
further concluded that as long as the dominant estate owner is not causing
"any unnecessary injury" to the crossing, he may "enter upon the servient
estate to make whatever repairs were necessary for the safe use of [the
crossing] ." Id. That is not to say, however, that the crossing may not become
"ultra-hazardous" because of such growth-an issue we will discuss later.
With this framework in mind, we turn to the present case to examine
whether CSX breached its duty by failing to utilize all means to avoid the
accident after it discovered Mary Calhoun's peril. Although difficult to discern
due to the structure of Appellants' brief, it does not appear that Appellants
actually address whether CSX breached this duty. 14 Rather, they claim that
Appellants make a fleeting argument that CSX was the defacto owner of the road
traversing the BCS crossing. They assert that CSX forbade adjacent landowners
from removing the trees; a claim based on a statement taken from Hester's
deposition wherein he claimed, "I'm not allowed to cut it so somebody is required to
cut it." Given this single accusation, and in light of the evidence suggesting that
"whether CSX had a duty to avoid the accident after discovering [Mary's] peril
on the tracks is not what this appeal is about."
Instead Appellants "propose a significant change in Kentucky railroad
law" and urge this Court to adopt a new rule based on the "universal doctrine
of care" doctrine as stated in Claywell. Grayson Fraternal Order of Eagles, Aerie
No. 3738, Inc. v. Claywell, 736 S .W.2d 328 (Ky. 1987) . Appellants ask us to
discard our long-standing, clearly delineated private crossing precedents, and
adopt a new framework that "everyone owes everyone else a duty to act
reasonably to prevent foreseeable harm to the other." Appellants are not
asking us to utilize broad strokes to re-paint this area, but rather they request
that we essentially whitewash the entire common law framework created over
the last two centuries . In its place, Appellants ask us to implement the
amorphous standard that "everyone owes everyone else a duty."
At the outset, the lack of any specificity or contours to Appellants'
proposed framework is troublesome . The practicality of replacing over a
century's worth of private crossing tort law-and we might add, other specific
tort law--and replacing it with a very general duty of care is dubious, at best.
Furthermore, Claywell was a dram shop liability case, which utilized the
universal duty of care doctrine to expose the archaic common law doctrine that
a tavern owner never owes a duty to a third person injured by an intoxicated
customer . Claywell is inapposite to the present case due to the absence of an
Hester and Burris maintained the road, we are unable to conclude that CSX was
the ,de facto owner. Therefore, CSX had no duty, under Spalding, to maintain the
vegetation at the BCS crossing.
equivalent to the "no duty" common law rule in the railroad crossing paradigm .
As detailed above, at private crossings, a railroad has a duty to exercise
ordinary care to avoid injuring a person after it discovers her peril . Therefore,
we find the comparison unpersuasive and consequently, decline the invitation
to alter our well-established precedent defining the duty owed at private
C. Three Exceptions to the Minimal Duty Rule
As previously noted, the private crossings minimal duty rule is qualified
by three exceptions : the assumed duty exception; the ultra-hazardous crossing
exception ; and the pervasive use exception. We now consider the applicability
of these exceptions to the present case .
1 . The Assumed Duty Exception
A traveler may avail himself of this exception when the railroad
customarily, signals at the particular private crossing, thereby inducing the
traveler to rely on that signal. We stated that "[w]here it had been customary
to do that and the traveler relied upon receiving such warning, the failure to
give it is negligence ." Illinois Central R. Co. v. Maxwell, 292 Ky. 660, 167 S .W.2d
841, 843 (1943) (citing Chesapeake 8a O. R. Co. v. Young's Adm'x, 146 Ky. 317,
142 S.W. 709 (1912) ; Kentucky Traction 8a Terminal Company v. Brawner, 208
Ky. 310, 270 S .W. 825 (1925) ; Illinois Cent. R. Co. v. Applegate's Adm'x, 268 Ky.
458, 105 S .W .2d 153 (1937)) . Thus, in order to utilize this exception,
Appellants must prove that (1) that CSX customarily signaled at this crossing;
and (2) that Mary Calhoun relied on CSX always signaling at that crossing.
The Court of Appeals in its reasoning, quoted from Mary Calhoun's
deposition where she thrice reiterated that she had "never heard a whistle ."
And in their briefs, Appellants concede that they cannot satisfy the above twopart standard, admitting that "Mary Calhoun had never encountered a train at
the actual crossing. Thus, she could never have relied on a signal to detect an
oncoming train ." 1 5 Instead, Appellants again urge this Court to change the law
and -"end the reliance requirement" stated in Maxwell . 1 6 We again decline .
Removing the reliance prong eviscerates the assumed duty exception. By
relying on a customary signal, travelers can reasonably presume that the
absence of a signal "is an assurance of safety and the equivalent of an
invitation to a traveler to proceed ." Maxwell, 167 S.W.2d at 843. We see no
reason to depart from Maxwell.
Unable to satisfy either prong of the assumed duty exception, Appellants
contend that Roberson altered the assumed duty exception . In Roberson, we
recognized the "undertaker's doctrine," which imposes liability for the negligent
performance of a service undertaken for the protection of a third person.
Louisville Gas and Elec. Co. v. Roberson, 212 S.W.3d 107, 111 (Ky. 2006) . In
is By this admission, Mary Calhoun also would have no idea what CSX's custom is,
since "[she] had never encountered a train at the actual crossing."
16 We disagree with Appellants' claim that the reliance prong rewards railroads for
inconsistent practices. If a railroad inconsistently signals at the crossing, we fail to
see how a traveler could establish the custom prong-a prong requiring the train to
uniformly and invariably signal at the crossing .
Roberson, LG & E contracted with Jefferson County to install and maintain
street lamps. Id. At issue there was whether LG & E could be held liable for
the death of a minor, who was struck by a car after dusk, when one of the
street lamps was not illuminated . Id.
We refuse Appellants' request to extract a duty from another area of tort
law and attempt to remold it into the one-hundred-and-fifty year-old railroad
crossing framework. Furthermore, we note that a federal court likewise
declined to apply the undertaker's doctrine to a different railroad accident at
this very crossing. Gaw, 2008 WL 793655, at n. 4 (finding Roberson "easily
distinguishable," since the instant case pertained to a railroad crossing and
lacked a contractual relationship between the parties) . The parameters of tort
law at private crossings are clearly delineated, and we thus decline to create a
new exception .
Based on Appellants' concession, that Mary Calhoun never relied on a
train's signal, we affirm the Court of Appeals' holding that Appellants, as a
matter of law, cannot avail themselves of this exception.
2. Ultra-hazardous Crossing Exception
The second exception to the minimal duty rule concerns private
crossings that are found to be ultra-hazardous . Louisville & N. R. Co. v.
Quisenberry, 338 S.W .2d 409 (Ky. 1960) . There we explained that:
There is a well recognized exception to the general rule [at private
crossings] where there exist peculiar or extraordinary circumstances
surrounding a crossing and the facts are known to trainmen . In
such cases reasonable care may require .that an alarm or signal be
given by the approaching train and the question of whether
circumstances are such that require a signal is for the jury to
Id. at 411 (emphasis added). The question is whether the crossing:
was a highly dangerous crossing and was so constructed that
neither the engineer nor the [traveler] had enough time to do
anything to prevent the accident after they came within view of
each other . . . [thus] the engineer should have warned of the
train's approach to this crossing by proper signals.
Id. at 410-411 . Therefore, when a private crossing is ultra-hazardous, the
railroad has a duty to warn those using the crossing.
Quisenberry involved a fatal accident where a train struck the traveler's
.car at a private crossing. Id. at 410. The Court described the track as having a
sharp curve about 300 feet north of the crossing, and a bluff that "obscures the
vision of an operator proceeding south." Id. Furthermore, testimony
established "that a person approaching within 34 feet of the crossing would be
able to see the track for about 500 feet north of the crossing, but when getting
closer, he could see only 300 feet in that direction." Id. The trial court then
submitted the case to the jury "on theory that if they found the crossing, due to
its location and surroundings, to be unusually dangerous . . . [they] might
reasonably find that the railroad company was negligent in not sounding a
horn or whistle when approaching this crossing." Id . We held that the case
was properly submitted. Id. at 411 .
In the present case, the Court of Appeals concluded that the obstructive
vegetation on the west side of the tracks (the BCS side) could qualify as ultrahazardous. However, the Court of Appeals utilized a slightly different ultra-
hazardous standard set forth in Hare's Adm'x, which required the crossing to
be "so exceptionally dangerous" that "one exercising ordinary care . . . can not
see an oncoming train." Cincinnati N. O. & T. P. Ry. Co. v. Hare's Adm'x, 297
Ky. 5, 178 S.W.2d 835, 837 (1944) . 17
After reviewing the evidence, the Court of Appeals placed dispositive
weight on portions of Mary Calhoun's deposition along with two photos
depicting the BCS crossing taken by CSX's agent. The court quoted Mary
Calhoun's admission that it was possible to pull her car past the tree line and
obtain an unobstructed view of the tracks. Furthermore, the court found that
Appellants' forensic mapping expert's opinions (that twenty-two feet from the
crossing the sight distance is 263 feet) were "blatantly contradicted by the
record," namely, the two CSX photographs. Consequently, the Court of
Appeals refused to adopt Appellants' expert's opinions for the purposes of
summary judgment, and found that was "it was obvious" that a vehicle could
safely pull past the vegetation and see to the horizon . Therefore, the Court of
Appeals found the ultra-hazardous exception inapplicable to the BCS crossing
as a matter of law.
We agree with the Appellants' contentions that the trial court, as well as
the Court of Appeals, made factual findings based on two of CSX's
photographs, ignored the factual parallels to Quisenberry, ignored other
That case involved what appears to be a public crossing (Higby Mill Road crossing) .
The standard quoted in Quisenberry-a private crossing case-thus is more
appropriate for the private crossing in the case sub judice.
explanatory parts of Mary Calhoun's deposition, is and erred by failing to allow
a jury to decide whether the ultra-hazardous exception applies. "Even though
a trial court may believe the party opposing the motion may not succeed at
trial, it should not render a summary judgment if there is any issue of material
fact." Steelvest, 807 S.W.2d at 480.
In this Commonwealth, it is axiomatic that appellate courts are not factfinders; and neither are trial courts when ruling on motions for summary
judgment . See e.g., Commonwealth v. Deloney, 20 S .W.3d 471, 473-474 (Ky.
2000) . And here, the Court of Appeals exceeded its scope of review when it
made factual findings regarding the validity of some of Appellants' evidence .
The purview of an appellate court reviewing a summary judgment order is to
determine whether there was "some affirmative evidence showing that there is
a genuine issue of material fact for trial." Steelvest, 807 S .W.2d at 482 .
Based on a review of the record, we hold that there is a genuine issue of
material fact for trial as to whether the BCS crossing was ultra-hazardous due
to the vegetation and the relevant positioning of the crossing. 19 Steelvest, 807
S.W.2d at 482 . As stated above, in Quisenberry, we approved the trial court's
submission to the jury of the issue of whether, inter alia, 300 feet of sight line
at a private crossing fell within the ultra-hazardous exception. Here,
18 Calhoun also claimed at her deposition that she never had to pull in front of the
tree line, stop, and wait as a train passed over the crossing .
1 9 If the BCS crossing is ultra-hazardous, the factual dispute regarding whether
McClintock sounded the train's whistle becomes crucial . See Quisenberry, 338
S.W.2d at 410 (jury may decide whether railroad company was negligent in not
sounding a horn when approaching an unusually dangerous crossing) .
Appellants introduced expert testimony that twenty-two feet from the crossing
the sight distance is 263 feet. Whether this crossing was as unusually
dangerous as the one described in Quisenbernj-under the facts of this caseis for a jury, not a trial or appellate court, to decide .
Furthermore, we are not persuaded that CSX's two photographs
"blatantly contradicted" Appellants' forensic mapping expert's opinions . A
photograph's perspective is easily manipulated by the photographer. In cases
such as the present one, photos taken of an accident scene are likely used for
litigious purposes . Thus, courts must be cognizant that photographs taken by
a litigant's agent are a form of advocacy . Based on the circumstances
surrounding these two photographs, we believe the Court of Appeals erred
when it assigned them dispositive weight over Appellants' forensic mapping
expert's opinions. Rather, the conflict between the expert's opinions and the
photographs created a material issue of fact for a jury to resolve .
Therefore, we reverse the Court of Appeals and hold that there is a
genuine issue of material fact as to whether the crossing was ultra-hazardous
due to the vegetation. As stated above, if the crossing is ultra-hazardous, our
common law imposes a duty on the railroad to warn of its approach . 20
3. Pervasive or Habitual Use Exception
The final exception to the minimal duty imposed on railroads -involves
private crossings pervasively used by the public . Under this exception, "if the
Were the jury to find a breach of such duty, then, of course, issues of comparative
fault also arise . See JOHN S. PALMORE 8v RONALD W. EADES, KY . INSTRUCTIONS TO
JURIES § 25.06 (4th ed. 1989) .
crossing is a private one and sufficient evidence is introduced to show habitual
use of the crossing by the public, then this use may impose the duty of lookout
and warning ." Hunt's Adm'r, 254 S .W.2d at 707. Although we have not
decided a definite number that qualifies as "habitual use," we have held that
this exception is inapplicable when sixty, seventy-five, one hundred, one
hundred and twenty-five, or one hundred and fifty persons cross daily.
Louisville 8y N.R. Co. v. Arrowood's Adm'r, 280 Ky. 658, 134 S .W.2d 224, 226
Here however, the Court of Appeals held that the number of persons
utilizing the BCS crossing on a daily basis was "well under the level required
for the exception to apply." According to the record, the Sanitation Company
employed a couple dozen workers and, other than Hester and Burris, only an
occasional customer paying a bill used the crossing. Therefore, the Court of
Appeals found, as a matter of law, that this exception was not applicable. We
D. Other Assertions
Appellants assert several other arguments that are tangentially related to
the issues for which they sought discretionary review . These arguments all
implore this Court to expand or create new duties applicable to railroads . As
stated above, we decline to change this well-settled area of tort law.
Consequently, we succinctly discuss and dismiss the remainder of Appellants'
Appellants claim that, "as a matter of first impression," Kentucky law
should require CSX's engineer, Paul McClintock, to an act in a prudent
manner. Appellants assert that McClintock's failure to sound the horn,
warning Mary Calhoun of the train's approach, violated CSX's operating rules.
and his "common law duty to act as a reasonably prudent engineer." However,
the issue of whether McClintock violated CSX's rules brings us full circle to the
issue of an assumed duty, which we have already addressed . Moreover,
Appellants fail to direct us to a Kentucky case wherein we have recognized
such a duty in this context.
Finally, Appellants again seek to probe McClintock's pharmacy records .
Appellants allege that McClintock may have taken a combination of
prescription drugs before operating the train . We are not persuaded by this
argument, as Appellants concede that they "cannot prove or disprove what his
actual [drug] consumption level was." Therefore, the Court of Appeals correctly
concluded that this speculative argument was insufficient to withstand
summary judgment .
For the foregoing reasons, we reverse the Court of Appeals' decision
insofar as it relates to the ultra-hazardous crossing exception and remand for
further proceedings consistent with this opinion, but otherwise we affirm the
remainder of the Court of Appeals' opinion.
Minton, C .J . ; Abramson, Noble, and Schroder, JJ ., concur. Venters, J.,
dissents by separate opinion, in which Cunningham, J., joins.
VENTERS, J., DISSENTING : Because the Majority opinion reinvigorates
the railroad's virtual immunity from liability at private crossings, I must
respectfully dissent and express my concern that, in this case, an unjustified
allegiance to the concept of stare decisis has led us to neglect our duty, as the
highest court of this state, to shape the development of the common law of
Kentucky as changing conditions so require . Justice Charles Leibson noted, in
Hilan v. Hays, 673 S.W .2d 713, 717 (Ky. 1984), "the doctrine of stare decisis
does not commit us to the sanctification of ancient fallacy." Then, quoting the
Iowa Supreme Court2 l he added, "(S)tare decisis does not preclude the change .
That principle does not require blind imitation of the past or adherence to a
rule . . . . We must reform common law doctrines that are unsound and
unsuited to present conditions."
If ever a doctrine was unsuited to present conditions, it is this one . The
majority's ruling is based upon the century-old doctrine holding that, at a wellestablished and frequently used private rail crossing, a railroad company owes
no duty of care to warn pedestrians or motorists of an approaching train, and
no duty to use ordinary care to lookout for pedestrians or motorists unless the
train crew actually sees them in a position of imminent peril; it also exempts
railroads from the duty to use ordinary care to maintain its property at a
private crossing in a reasonably safe condition for persons whose presence on
Goetzman v. Wichem, 327 N.W.2d 742 (Iowa 1983)
the property it permits and reasonably anticipates. In essence, the railroad
owes no duty at an ordinary private crossing except to avoid intentionally
injuring someone . What other non-governmental .entity in our society enjoys
that degree of immunity from tort liability?
The rule I now condemn came into our jurisprudence in an era when the
approach of a locomotive was a sight to behold. Unlike the comparatively quiet
and unobtrusive diesel engines in use today, our rule was written when trains
were pulled by steam locomotives belching smoke and steam that could be
seen and heard for great distances . Trees and underbrush growing along the
tracks could not hide that approaching danger. Members of the public using a
private crossing in those days were not enclosed within the cab of a modern
automobile, with its own engine running . Instead, they were out in the open
air, on foot, astride the back of a horse or a mule, or sitting on the wooden
board of a wagon seat behind one or more horses, which also would not fail to
notice the approaching behemoth . Kentucky was more sparsely populated in
those days, and most likely had nowhere near the 2,396 private railroad
crossings now existent in the state . In summary, when the rule was created
the possibility that a private railroad crossing posed a hidden danger to the
travelling public was nil. With today's opinion, we perpetuate a rule that is
unsound and unsuited to present conditions .
I do not share the majority's concern that we lack "a proposed
framework" for restructuring a more fitting standard of care. Our
jurisprudence abounds with them . Except for railroads, all property owners
have a duty of ordinary care to maintain their property in a reasonably safe
condition, and a duty to discover unreasonably dangerous conditions on the
land, and to either correct them or warn of their presence. See Kentucky River
Medical v. McIntosh, 319 S.W.3d 385, 388 (Ky. 2010), citing Perry v. Williamson,
824 S.W .2d 869 (Ky. 1992) . That duty would impose no injustice upon the
Also, owners of electric power line rights-of-way, in constructing and
maintaining electric transmission lines where exposure to the dangers of
electricity exists, owe the highest degree of care and skill to protect all persons
at places where they have a right to be. But even where the danger posed by
power lines is not from the ultra hazard of electrical shock, an electric power
company stills bears the duty of any property owner to exercise ordinary care
for persons whose entry upon the property is foreseeable . See Lee v. Farmer's
Rural Elec. Co-op. Corp., 245 S.W.3d 209, 212 (Ky. App. 2007) . Likewise,
owners of natural gas transmission rights--of-way must exercise ordinary care
to inspect and maintain their lines in such condition as to prevent the escape
of gas therefrom. Moore v. London Gas Co., 372 S.W.2d 270, 272 (Ky. 1963) .
In this day and age, there is no reason why a railroad, crossing through or
beside another's land, should not observe the same standards of care we
impose upon an electric power line owner or gas line owner crossing though, or
beside, the same land.
The intersection of a railroad and a public highway is fundamentally
different from a private crossing, and it is reasonable to apply a different duty
to each type of crossing. But, using CSX's own words, private crossings are
subject to "the no-duty rule," and that notion is antithetical to modern tort
concepts . The three exceptions to the "no-duty rule" may breathe the air of
conscionability into an unduly harsh doctrine, but still allow railroa s the
freedom to be careless about all but the most "exceptionally dangerous"
crossings. We are remanding this case so that a jury may determin whether
this particular crossing was "ultra-hazardous," however that concep may be
defined, and hence, whether the railroad had a duty to warn of the t~ain's
approach . In doing so, we misdirect the focus of the inquiry toward the
geography of the railroad crossing, and away from the conduct of those using
the crossing, whether by rail or by private road way. A more direct approach,
and, in my view, a more just approach, is to recognize that every pri ate
crossing poses some degree of danger for both the railroad and thosO crossing
it on a private way, and to impose upon each a duty of ordinary carp. The
motorist has the traditional duty to exercise ordinary care in the operation of
his vehicle for his own safety, and the safety of his passengers and Others,
including railroad's personnel, and its property ; for the railroad, a digtY to
exercise ordinary care in the operation of the train for the safety of persons
crossing the tracks, and the traditional duty of any landowner to maintain its
property in a reasonably safe condition, and to exercise ordinary care to
discover and correct any unreasonably hazardous conditions, or to warn others
of the danger.
A return to this more reasonable standard of care would in no way relieve
Mrs . Calhoun of her own duty of ordinary care for her own safety. A jury would
undoubtedly take a close look at that. But, there was evidence that the train
failed to sound its horn as it approached the crossing on the dark and foggy
December morning; that it was travelling at a high speed, and accelerating as it
neared the crossing; that the railroad had not trimmed the growth of trees
along the tracks that, at least in part, screened the train from the vehicular
traffic on the approach to the crossing; and, that the train's engineer had
prescriptions for medications that could have impaired his ability. Under an
appropriately structured standard of care, those circumstances viewed in the
light most favorable to Appellant, sufficiently establish a genuine issue of
material fact to negate the railroad's demand for summary judgment .
Accordingly, I dissent because I believe that upon remand of this case to
the trial court, we should overrule the obsolete doctrine that unreasonably
shields railroads from the duty to exercise ordinary care for the safety of
persons at private crossings .
Cunningham, J., joins.
COUNSEL FOR APPELLANT:
Kevin B. Sciantarelli
Bubalo, Hiestand 8v Rotman, PLC
9300 Shelbyville Road, Suite 215
Louisville, KY 40222
Christopher W. Goode
Bubalo, Hiestand & Rotman, PLC
1344 South Broadway
Lexington, KY 40504
COUNSEL FOR APPELLEE:
David R. Monohan
James Thomas Blaine Lewis
Dinsmore 8s Shohl, LLP
250 National City Tower
Louisville, KY 40202-3175
Evan M. Tager
Melanie W. Rughani
1999 K Street, N .W.
Washington, D.C . 20006-1101