Haukereid v. National Passenger Railroad Corporation

Filing 21

ORDER granting in part and denying in part 13 Motion to Dismiss; granting 7 Motion to file an Amended Complaint; denying 3 Motion for an Order to preserve evidence; and denying as moot 5 Motion for leave to serve a subpoena. Amended Complaint, minus the outrage claim, due by July 3, 2013. Signed by Judge D. P. Marshall Jr. on 6/25/2013. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

SCOTT HAUKEREID, individually and as
Personal Representative of the Estate of
Andrew Haukereid Jr., deceased

v.

PLAINTIFF

No. 3:13-cv-92-DPM

NATIONAL PASSENGER RAILROAD
CORPORATION, t/dfb/a AMTRAK

DEFENDANT

ORDER
This lawsuit alleges that Andrew J. HaukereidJr., an elderly gentleman,
fell to his death from a moving Amtrak train. His family faults the design of
the doors and the conduct of Amtrak personnel. The railroad's motion to
dismiss is granted in part and denied in part.
The Court cannot say without more facts whether the door-safety
regulations apply to the cars and doors in the train Haukereid rode or
whether those regulations cover the subject matter of Arkansas tort law in
these circumstances. CSXTransportationlnc. v. Easterwood,507U.S.658 (1993);
Cearley v. General Am. Transportation Corp., 186 F.3d 887 (8th Cir. 1999).

Amtrak's motion to dismiss on preemption grounds is therefore denied

without prejudice. This issue is best addressed on summary judgment-a
focused motion based on the material facts and the governing law.
Amtrak's Donnelly argument is premature too. Arkansas law makes
proximate cause and intervening cause a jury question in most cases. Larson

Machine, Inc. v. Wallace, 268 Ark. 192, 207-08, 600 S.W.2d 1, 9-10 (1980); St.
Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650,662-63,553 S.W.2d 436,
441-42 (1977). We will see, after discovery, if the record leaves the jury to
guess at causation "between two equally probable possibilities." 261 Ark. at
663, 553 S.W.2d at 442. Compare Donnelly v. National Railroad Passenger Corp.

(Amtrak), 16 F.3d 941, 946 (8th Cir. 1994) (holding trial evidence insufficient
to show proximate cause).
Amtrak is right, however, that the pleaded facts, interpreted most
favorably to the Haukereids, do not support an outrage claim. Not all
offensive conduct is outrageous under Arkansas law. "The conduct at issue
must be so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in civilized society." Freeman v. Bechtel Construction Co., 87 F.3d
1029,1031 (8th Cir. 1996) (Arkansas law)(quotation omitted). The Haukereid

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Estate alleges that, in light of a many-year history of passengers falling off
trains, the failure to investigate that possibility, or alert Mr. Haukereid' s
family to it, was outrageous. This Court predicts the Arkansas Supreme
Court would hold otherwise. The complaint does not allege that Amtrak
exercised dominion over Mr. Haukereid' s body, or acted affirmatively in
some intolerable way. Compare Travelers Insurance Co. v. Smith, 991 S.W.2d
591,338 Ark. 81 (1999) and Growth Properties I v. Cannon, 669 S.W.2d 447,282
Ark. 472 (1984).

The railroad's alleged inaction and silence in these

circumstances, the Court predicts, would be adjudged to sound in negligence,
rather than outrage, given that intentional tort's short reach in Arkansas.
Motion, NQ 13, granted in part and denied in part. Unopposed motion
to file an amended complaint, NQ 7, granted. Amended complaint, minus the
outrage claim, due by 3 July 2013. Motion for an order to preserve evidence,
NQ 3, denied. The Court will follow precedent if a spoliation issue arises.

Morris v. Union Pacific Railroad,373 F.3d 896 (8th Cir. 2004); Stevenson v. Union
Pacific Railroad Co., 354 F.3d 739 (8th Cir. 2004). Motion for leave to serve a

subpoena on Union Pacific, NQ 5, denied as moot in light of the parties' Rule
26(£) report.

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So Ordered.

D.P. Marshall Jr.
United States District Judge

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