Doe v. National Railroad Passenger Corporation

Filing 51

OPINION AND ORDER granting 41 Motion for Summary Judgment; dismissing plaintiff's claim. Signed by Judge Susan Webber Wright on 12/29/2015. (ks)

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

SELENA CAPERS,
Plaintiff,
vs.
NATIONAL RAILROAD PASSENGER
CORPORATION a/k/a AMTRAK, a
Congressionally Incorporated Corporation,
Defendant.

*
*
*
*
*
*
*
*
*
*
*

No. 4:14CV00692 SWW

Opinion and Order

Plaintiff Selena Capers (“Capers”) filed this action against National Railroad Passenger
Corporation (“Amtrak”) alleging Amtrak was negligent in failing to protect her from an assault
by one of its employees while she was a passenger on an Amtrak train. Now before the Court is
Amtrak’s motion for summary judgment to which Capers responded. Amtrak filed a reply to the
response. For the reasons stated below, the motion is granted.
I.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). As a prerequisite to summary judgment, a moving party must demonstrate “an absence of
evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the moving party has properly supported its motion for summary judgment, the
non-moving party must “do more than simply show there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
An issue of fact is material only if it could affect the outcome of the case under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When a non-moving party cannot
make an adequate showing on a necessary element of the case on which that party bears the
burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S.
at 322-23.
II.
The following facts, taken from Amtrak’s statement pursuant to Local Rule 56.1, are
deemed admitted for the purpose of summary judgment review.1 Selena Capers was a passenger
on Amtrak’s Texas Eagle train on December 6-7, 2011. She boarded the train in San Antonio.
Texas, with a final destination of Chicago, Illinois. She testified that shortly after boarding, she
met and briefly chatted with Lonnie Sanders, an Amtrak porter. Later on, Sanders offered
Capers an upgrade to a room in the sleeper car, at no extra charge. She accepted, and Sanders
moved Capers and her bags to the sleeper room. Throughout the day, she continued to interact
with Sanders: she testified he brought her a menu and took her food orders; collected her dirty
dishes; and checked on her. He did not enter her room. Capers testified that later, Sanders
moved her to a different sleeper room across the hall, where she ate lunch and took a nap. After
waking up, Capers told Sanders she wanted to go eat with other people, and Sanders brought her
a ticket for the diner car. Capers left her room, stopped in the upper-level observation deck in

1

Local Rule 56.1 provides that a party moving for summary judgment must submit a statement of
the material facts as to which it contends there is no genuine issue to be tried, and the non-moving party
must file a responsive statement of the material facts as to which it contends a genuine issue exists to be
tried. “All material facts set firth in the statement filed by the moving party . . . shall be deemed admitted
unless controverted by the statement filed by the non-moving party . . .” Local Rule 56.1(c).

2

the lounge car, and then went to the diner car, where she socialized and ate with another couple.
Ms. Capers testified that at some point, Sanders came into the diner car and gave Capers
a note, saying he had moved her to a different room in the sleeper car. After Capers arrived in
the new room, Sanders made up the bed and performed routine turndown services. Ms. Capers
said that Sanders returned with a pair of shrink-wrapped pajamas and offered them to her. She
took them. Ms. Capers testified Sanders returned later, knocked on her door, and had two bottles
of wine. He poured wine into two small glasses and they toasted their new friendship. The door
was open during this interaction, which lasted a few minutes. Ms. Capers said she took a sip of
wine, told Sanders she was going to sleep, and asked him to turn off the lights and shut the door
on his way out.
Ms. Capers alleges that she woke up around 1:00 a.m. with Sanders lying next to her in
bed, touching her legs and buttocks while “grinding his pelvis on [her] butt.” She said she did
not see his face but recognized Sanders’s voice. In addition, he called her by her name. Ms.
Capers got out of the bed, located her purse, and when she heard Sanders lie back down on the
bed, she grabbed her purse and the glass of wine sitting next to it, popped the lock on the door,
and ran out.
She reported the incident to Curtis Jackson, the train’s conductor, who had Capers write a
statement. Mr. Jackson moved Capers to a room in a different car. After Sanders was located,
he was relieved from service and told to detrain at the next station stop. He detrained in St.
Louis, and Capers continued on the trip until she reached Chicago. Ms. Capers alleges she
suffers from PTSD and depression as a result of the incident with Sanders.
At the time of the alleged incident, Sanders had been an Amtrak on-board service

3

attendant for eleven years. Before hiring Sanders, Amtrak engaged a third-party company to
conduct a background check, which revealed nothing negative. In 2010 and 2011, Sanders
received training on Amtrak’s Anti-Discrimination and Anti-Harassment Policy. Mr. Sanders’s
manager at the time of the alleged incident, Jonathan Lombardi, never received any complaints
or negative comments about Sanders. His work record before the alleged incident was spotless.
His personnel file includes two letters of commendation for excellent service from Amtrak
management, and another letter from one of Sanders’s former managers, relating a compliment
the manager had received from customers about Sanders’s service. Mr. Sanders’s personnel file
contains no disciplinary records, negative performance reviews, or negative comments.
III.
Ms. Capers asserts Amtrak was negligent in that it had inadequate policies and
procedures in place to prevent foreseeable danger to passengers such as herself.2 She argues that
Amtrak should have had a policy in place for when a coach passenger is missing from his or her
seat for an extended period of time. She contends such an absence would raise a suspicion,
which should be reported to the conductor. Ms. Capers also alleges Amtrak had no policy or
procedure in place to check on the safety and security of passengers in the rear sleeper cars,
giving a single employee sole responsibility for access to and control over those cars. While
Amtrak policy and practice is for the conductor to walk through the entire train approximately
every thirty minutes, there is no requirement that the conductor check to make sure rooms that
are supposed to be unoccupied are not being used.

2

Plaintiff withdraws her claims of negligent retention and negligent supervision. See Pl’s. Br. in
Opp’n to Def’s. Mot. Summ. J. at n.7.

4

Arkansas law imposes on Amtrak a duty to exercise “the highest degree of care
consistent with . . . the practical operation of its business.” AMI 1701. See also Yellow Cab Co.
v. Dossett, 426 S.W.2d 792, 794 (Ark. 1968). Amtrak “is not an absolute insurer of the safety of
its passengers. It is only required to exercise towards its passengers the highest degree of care
which a prudent and cautious man would exercise and that which is reasonably consistent with
the mode of conveyance and practical operation of its trains.” Capital Transp. Co. v. Howard,
229 S.W.2d 998, 1000 (Ark. 1950)(internal quotation and citation omitted).
‘To constitute negligence, an act must be one from which a reasonably careful
person would foresee such an appreciable risk of harm to others as to cause him
not to do the act, or to do it in a more careful manner.’ Foreseeability is thus a
necessary ingredient of actionable negligence in this state. ‘Conduct becomes
negligent only as it gives rise to appreciable risk of injury to others, and there is
no negligence in not guarding against a danger which there is no reason to
anticipate.’ In other words, ‘negligence cannot be predicated on a failure to
anticipate the unforeseen.’
Ethyl Corp. v. Johnson, 49 S.W.3d 644, 648 (Ark. 2001)(internal citations omitted).
Because the claimed attack was not foreseeable, Amtrak argues it cannot be held liable
for failing to protect Capers. Ms. Capers admits that Amtrak had no reason to believe that
Sanders would sexually assault a passenger. However, she argues it was foreseeable that a
passenger who was missing for a significant amount of time from a coach car to which she had
been assigned faced an appreciable risk of harm. She cites Jordan v. Adams, 533 S.W.2d 210
(Ark. 1976) in support of her assertion that the attack was foreseeable.
In that case, Jordan took his companion’s purse and threw it across the room of a private
club in which people were eating and drinking. The purse landed on a table where a couple were
eating, breaking a glass candle holder. A .25 caliber pistol in the purse discharged upon impact
with the floor, wounding a diner in the leg. A jury found Jordan and his companion negligent.
5

The Arkansas Supreme Court affirmed on appeal. The court held: “It is well established that if
the act is one which the party in the exercise of ordinary care ought to have anticipated was
likely to result in injury to others, then such person is liable for the injury proximately resulting
therefrom although he might not have foreseen the particular injury which did happen. . . . Even
if we assume that Jordan was unaware that Womack had a pistol in her purse, it was a culpably
negligent act for him to throw a purse (large enough to hold a pistol and other things a woman
carries therein) 26 feet across an area where people were dining and drinking.” Id. at 212-13.
In support of her argument that there is an issue of fact for the jury as to foreseeability,
Capers cites the testimony of Jackson, the conductor, who agreed “that at some point there
would be a concern if a passenger has not appeared in their seat for a very long period of time.”3
He also agreed that it would be an option for train attendants to confer with each other to
determine a missing passenger’s whereabouts, and that if a train attendant were suspicious
because a passenger was missing from her seat for an entire trip, the employee should check on
the passenger or bring the concern to Jackson’s attention.4 Mr. Lombardi, Amtrak’s corporate
representative, agreed that an employee’s failure to bring a concern that a passenger may be in
danger would fall below the standard of care.5 Ms. Capers asserts that because Amtrak did not
have in place policies or procedures to locate “missing” passengers, monitor sleeper-car
attendants like Sanders, and require the conductor, during his routine walk-throughs, to confirm
that no one was in a sleeper-car room that was supposed to be unoccupied, it was foreseeable

3

Pl’s. App., Jackson Dep. (ECF No. 46-4) at 29-30 .

4

Id. at 37-8.

5

Pl’s. App., Lombardi Dep. (ECF No. 46-7) at 10-11.

6

that an attack like hers would happen.
Unlike in Jordan v. Adams, where it is clear that someone likely would be injured when a
purse is thrown across a room full of people, it does not follow that the absence of the three
suggested policies likely would result in an assault or other injury to a passenger at the hands of
an employee. As Capers concedes, Amtrak had no reason to believe that Sanders would sexually
assault a passenger.6 In addition to arguing the alleged assault on Capers was unforeseeable,
Amtrak argues there is no evidence that her assault was foreseeable because she did not remain
in her coach seat. There is no evidence she was “missing.” The evidence reflects Capers freely
moved about the train and, as train attendants Joshua Pryor and Timothy Bolhar testified,
passengers move about the train and may not be in their seats for any number of reason.7 The
Court agrees that there is no evidence that Amtrak should have more closely monitored Sanders
or that any failure to do so created a foreseeable risk of harm to Capers. Capers recognizes that
Amtrak had a “no tolerance” sexual harassment and anti-discrimination policy in place and
Sanders received training on policy in 2010 and 2011.8
Further, there is no evidence that the conductor’s failure to double check unoccupied
sleeper-cars created a foreseeable risk of harm to Capers. Mr. Jackson testified he boarded the
train in Little Rock at around 11:39 p.m., when the sleeper-car attendant is on his or her
mandatory downtime.9 He said that if he encountered a room with the door closed and curtain

6

Pl’s. Br. in Opp’n to Def’s. Mot. Summ. J. at 2, n.2, (ECF No. 44).

7

Id., Pryor Dep.(ECF No. 46-5) at 33-4; Bolhar Dep. (ECF No. 46-6) at 16-17, 20.

8

Pl’s. Br. in Opp’n. to Def’s. Mot. Summ. J. at 11. See also Def’s. Br. in Supp. Mot. Summ. J.,
Exs. 3 & 4 (ECF Nos. 43-3, 43-4).
9

Def’s. App., Ex. D (Jackson Dep.) at 11, 91 (ECF No. 46-4).

7

drawn, the only way he could tell if it were unoccupied would be to knock on and open the door.
He did not do that because he did not want to disturb passengers in the middle of the night.10 He
explained there are a number of reasons why a room might be listed as unoccupied on his
manifest but legitimately have passengers in it.11 Lastly, Amtrak argues that even if the policies
Capers suggest were in place, there is no evidence that they would have prevented the alleged
attack.
The Court finds Capers has no evidence from which a reasonable jury could find that the
alleged assault was foreseeable or that the lack of certain policies was the proximate cause of her
alleged harm.
IV.
IT IS THEREFORE ORDERED that defendant’s motion for summary judgment [ECF
No. 41] is granted. Plaintiff’s claim is dismissed. A separate judgment will be entered.
DATED this 29th day of December, 2015.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

10

Id. at 92-93, 97-97.

11

Id. at 92.

8