Garcon, et al. v. Union Pacific Railroad Company, et al.

Filing 91

ORDER granting 75 Defendants' Motion for Summary Judgment. The Clerk of Court is directed to terminate this lawsuit. Signed by Judge G Murray Snow on 11/2/11.(TLJ)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiffs,
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vs.
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Union Pacific Railroad Co.; Alberto)
Hernandez; Todd C. Walters; Luis de la)
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Cruz,
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Defendants.
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Lionel Garcon; Marie Garcon,

No. CV-10-1006-PHX-GMS
ORDER

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Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. 75).
For the reasons stated below, the motion is granted.
BACKGROUND

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At approximately 2:00 a.m. on the morning of April 19, 2009, Engineer Alberto

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Hernandez and Conductor Luis de la Cruz were piloting locomotive UP3923 on train

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MPSNX-19 through Tempe on a scheduled trip from Phoenix to Tucson. (Doc. 76 ¶ 3). The

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train was traveling between 15 and 20 miles per hour on a section of track on which the

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speed limit is either 20 or 25 miles per hour. (Doc. 90 ¶ 3; Doc. 88 ¶ 3). The men noticed

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what appeared to be a person on or near the tracks, and a nearby police vehicle that they each

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identified as belonging to the Tempe Police Department. (Doc 88, Ex. 7, 8). They stopped

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the train, although they were unable to come to a complete stop before the locomotive had

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passed by the area in which the person appeared to be located. (Id.). Believing that the train

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had injured the person he had seen, Conductor de la Cruz exited the train and proceeded

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towards the person, in the hopes of applying first aid. (Doc. 88, Ex. 7). On the tracks he

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found Kerry Garcon (“Garcon”), Plaintiffs’ 23-year-old son, who, according to a later

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autopsy, had died of blunt force trauma. (Doc. 88, Ex. 4). The Tempe Police Department later

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concluded, relying on video evidence that Plaintiffs dispute, that in fact Garcon had been

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struck by an earlier train, number MPXTU-18, pulled by locomotive UP5450, which had

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traveled along the same track earlier that night at 10:10 p.m. (Doc. 88, Ex. 3). Plaintiffs

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contend both that the video purportedly taken from a camera mounted on locomotive

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UP5450, which shows a person walking alongside the tracks, is “FORGED and

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UNVERIFIED,” and that the person in the video is “obviously not Kerry Garcon in any

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shape or form.” (Doc. 84 ¶ 9). Defendants allege that Garcon was already dead when the 2:00

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a.m. train arrived, while Plaintiffs speculate that members of the Union Pacific Railroad

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Police Department “had all the possibilities to strike at Kerry Garcon, knock him

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unconscious, set his head on the side of the Railroad, watch under a spot light the train to

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mulch the left side of his face, flee the area soon after, and later compose a video” to conceal

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their wrongdoing. (Doc. 84).

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Plaintiffs filed a wrongful death complaint in Maricopa County Superior Court on

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April 6, 2010, alleging that Defendants engaged in “negligent, irresponsible, reckless, and

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dangerous acts” leading to the death of Garcon. (Doc. 1, Ex. 3). Defendants removed the

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action to the United States District Court pursuant to 28 U.S.C. § 1441 on May 7, 2010.

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(Doc. 1, Ex. 6). Plaintiffs are citizens of the state of Georgia and are seeking in excess of

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$75,000, while Defendant Union Pacific is a corporation incorporated under the laws of the

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State of Delaware, with its principal place of business in the state of Nebraska. (Doc. 1). The

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case therefore is one over which the district court has original jurisdiction, and therefore

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removal was proper. 28 U.S.C. § 1441; 28 U.S.C. § 1332. Pursuant to Rule 56 of the Federal

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Rules of Civil Procedure, Defendants moved for summary judgment on May 3. (Doc. 75).

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DISCUSSION
I.

LEGAL STANDARD

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A court must grant summary judgment if the pleadings and supporting documents,

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viewed in the light most favorable to the non-moving party “show that there is no genuine

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issue as to any material fact and that the moving party is entitled to judgment as a matter of

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law.” Fed. R. Civ. P. 56(c). “One of the principal purposes of the summary judgment rule is

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to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett,

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477 U.S. 317, 323–324 (1986). Accordingly, summary judgment must be granted to

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Defendants if Plaintiffs “fail[] to make a showing sufficient to establish the existence of an

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element essential to [Plaintiffs’] case, and on which [Plaintiffs] will bear the burden of proof

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at trial.” Celotex, 477 U.S. at 322–323. “When the moving party has carried its burden under

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Rule 56(c), its opponent must do more than simply show that there is some metaphysical

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doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

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574, 586–87 (1986).

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II.

ANALYSIS

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Substantive state law governs state law claims brought in state court and removed for

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diversity of citizenship. Erie R. R. v. Tompkins, 304 U.S. 64, 78–79 (1938). To prevail in a

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negligence action under Arizona law, “the plaintiff must prove the existence of a duty, a

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breach of that duty, causation, and damages.” Seisinger v. Siebel, 220 Ariz. 85, 94, 203 P.3d

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483, 492 (2009). The question of whether a defendant owes a plaintiff a duty “is an issue of

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law for the court to decide.” Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 296,

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890 P.2d 69, 71 (1994). If a defendant does not owe plaintiff a duty, “the defendant cannot

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be liable, no matter the facts.” Id.

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Regarding the duties that landowners owe those on their property, Arizona follows

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the general rule from the Restatement of Torts that “the occupier of land owes no duty

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towards a trespasser except not to wilfully and wantonly injury him after discovering his

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peril.” Torres v. Southern Pac. Transp. Co., 584 F.2d 900, 903 (9th Cir. 1978). Courts

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interpreting Arizona law have uniformly found that those on the railroad cars or tracks
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without permission from the railroad are trespassers, and that the railroad does not owe them

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a duty of care. See, e.g., Delgado v. Southern Pacific Transp. Co., 763 F. Supp. 1509, 1511

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(D. Ariz. 1991) (railroad owes no duty to trespassers on railway cars); Barry v. Southern Pac.

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Co, 64 Ariz. 116, 122–23, 166 P.2d 825, 829 (1946) (railroad owes no duty to person

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unconscious on track not at a crossing).

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The Restatement does, however, impose a duty of care on a landowner who knows

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or should know “that trespassers constantly intrude upon a limited area thereof.”

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RESTATEMENT (SECOND) OF TORTS § 334. Courts applying Arizona law in railroad cases

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have typically applied the exception of section 334 to areas where the railroad crosses a

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public throughway, holding that “a railroad company owes to travelers on the highway the

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affirmative duty of care in the maintenance and safeguardings of its crossings.” Southern

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Pacific R. R. Co. v. Mitchell, 80 Ariz. 50, 58, 292 P.2d 827, 832 (1956); see also DeElena

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v. Southern Pac. Co., 121 Ariz. 563, 566, 592 P.2d 759, 762 (1979) (railroad “must take

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precautions commensurate with the danger involved at the crossing”). The exception may

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also apply to commonly-used pedestrian walkways, so long as the victim is struck while

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using such a walkway. See Beesley v. Union Pacific R. Co., 430 F. Supp. 2d 968, 970 (D.

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Ariz. 2006) (person who had fallen asleep on tracks in commonly-used pedestrian crossing

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cannot take advantage of the exception of § 334).

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Even viewed in the light most favorable to Plaintiffs, the evidence does not establish

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that the railroad owed Garcon a duty of care. Plaintiffs allege, for example, that the videotape

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evidence is faulty, and that Garcon was struck by the 2:00 a.m. train. (Doc. 83).No matter

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which train struck Garcon, however, Plaintiffs do not claim that the area where Garcon was

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struck was a crossing, and they do not put forth evidence that Garcon had been walking over

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a commonly used footpath. As such, Defendants did not owe Garcon a duty of care. See

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Beesley, 430 F. Supp. at 970; Barry, 64 Ariz. at 122–23.

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Plaintiffs instead allege that Union Pacific police officers assaulted Garcon, placed

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him on the tracks, and watched as the train struck him. (Doc. 84). The only evidence they

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offer for this theory is that engineer Hernandez and conductor de la Cruz both stated that they
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saw a police car nearby when they stopped the train. (Doc 88, Ex. 7, 8). Deducing from these

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statements that police officers or others had assaulted Garcon and intentionally left him on

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the tracks to die is pure invention, and does not even “show that there is some metaphysical

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doubt as to the material facts.” Matsushita, 475 U.S. at 586–87. Plaintiffs have had adequate

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discovery opportunity to obtain evidence to support their theory, and apart from statements

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supporting the presence of a police car, have provided none.

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Once railway employees realize that a person is in the path of the railway, even if that

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person is a trespasser, they have a duty “to carry on [their] activities upon the land with

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reasonable care for the trespasser’s safety.” RESTATEMENT (SECOND) OF TORTS § 336 (1965).

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Here, Plaintiff alleges that the train was speeding on the track too quickly to safely brake

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before striking Garcon. (Doc. 84). Plaintiffs and Defendants agree that the train was traveling

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no faster than 20 miles per hour when de la Cruz and Hernandez first saw Garcon. (Doc. 84;

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Doc. 90 ¶¶ 3–4). Plaintiffs submit the Federal Railroad Administration Track Safety

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Standards Compliance Manual, which states that the speed limit on “Class One” track is 10

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miles per hour and the speed limit for “Class Two” track is 25 miles per hour. (Doc. 88, Ex.

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9). They further submit a portion of the State of Arizona Rail Safety & Security Resource

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Guide, which states that Union is one of Arizona’s “two Class I railroads.” (Id.). Defendants

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submit an expert report by Brian Heikkila that finds that the section of track in question is

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“Class Two” track, which carries a speed limit of 25 miles per hour. (Doc. 90, Ex. 3).

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Plaintiffs have offered no evidence that Union, as a Class I railroad, operates exclusively on

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“Class One” track, a conclusion that would require all Union railcars to travel under 10 miles

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an hour at all times. Moreover, Plaintiffs have elsewhere conceded that they believe that the

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speed limit on the section of track where Garcon was struck is 20 miles per hour. (Doc. 88

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¶ 3). There is no evidence the train was speeding. Plaintiffs’ only other piece of evidence that

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the train was being operated recklessly is a newspaper article that reported that the train took

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1,000 feet to stop. (Doc. 88 Ex. 8). The article is inadmissible hearsay not subject to any

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exception, and is flatly contradicted by Engineer Hernandez, who claims that the train

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stopped within 50 to 100 feet of braking. FED. R. EVID. 802; (Doc. 88, Ex. 8). Plaintiffs have
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failed to raise a genuine issue of material fact regarding whether Hernandez and de la Cruz

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operated the train with reasonable care once they saw Garcon.

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The existence of a duty of care by Defendants towards Garcon is an “element essential

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to [Plaintiffs] case, and on which [Plaintiffs] will bear the burden of proof at trial.” Celotex,

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477 U.S. at 322–323. Plaintiffs have not alleged that Garcon had permission to be on the

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railway. Defendants have shown that the area where he died was neither a crossing nor a path

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commonly used by the public. While Plaintiffs contest that Garcon was rendered unconscious

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and his head placed on the track in a location where he would have been trespassing, they

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offer no admissible evidence from which a reasonable fact finder could draw such a

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conclusion. As such, the railway did not owe him a duty of care. See Beesley, 430 F. Supp.

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2d at 970; Barry, 64 Ariz. at 122–23.

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CONCLUSION

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Plaintiffs have failed to raise an issue of fact as to whether Defendants owed Garcon

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a duty of care—whether Garcon was walking in the path of the earlier train or lying on the

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railroad tracks and struck by the later one. Further, they have produced no admissible

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evidence that the engineer and the conductor failed to operate the train with reasonable care

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once they noticed Garcon on the tracks. They have not produced evidence from which a

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reasonable finder of fact could accept their theory that Garcon was assaulted and placed on

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the train tracks. Therefore, Plaintiffs’ claims fail as a matter of law and Defendants’ motion

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for summary judgment is granted.

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IT IS THEREFORE ORDERED:

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Defendants’ Motion for Summary Judgment (Doc. 75) is GRANTED.

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2.

The Clerk of Court is directed to terminate this lawsuit.

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DATED this 2nd day of November, 2011.

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