Schmoock v. Kansas City Southern Railway Company et al

Filing 54

RULING AND ORDER:Motion for Summary Judgment (Doc. 33) filed by Defendant the Kansas City Southern Railway Company against Plaintiff Travis J. Schmoock is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED in that Plaintiff's Failure to Warn Claim is DISMISSED WITH PREJUDICE. With respect to Plaintiff's Failure to Inspect/Maintain Claim, Defendant's motion is DENIED, and this matter will proceed to trial on such. Signed by Judge John W. deGravelles on 03/26/2024. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TRAVIS J. SCHMOOCK

CIVIL ACTION

VERSUS
THE KANSAS CITY SOUTHERN
RAILWAY COMPANY and STATE OF
LOUISIANA, through the Department of
Transportation and Development (DOTD)

NO. 20-309-JWD-SDJ

ORDER AND RULING
This matter comes before the Court on a Motion for Summary Judgment (Doc. 33) filed by
Defendant the Kansas City Southern Railway Company (“KCSR” or “Defendant”). Plaintiff,
Travis Schmoock (“Plaintiff”) opposes this motion. (Doc. 37.) KCSR has filed a reply. (Doc. 38.)
After obtaining leave of this Court, Plaintiff filed a sur-reply (Doc. 43), and KCSR filed a sur-surreply (Doc. 46). Oral argument is not necessary. After careful consideration of the law, facts in the
record, and the parties’ arguments and submissions, the Court is prepared to rule. For the following
reasons, the Motion for Summary Judgment is granted in part and denied in part.
I.

BACKGROUND
This case arises out of Plaintiff’s single-vehicle accident in Point Coupee Parish, Louisiana.

(Statement of Material Facts (“SMF”), Doc. 33-1 at ¶ 1; Plaintiff’s Opposing Statement of Material
Facts in Lieu of Affidavit of Material Witness (“POSMF”), Doc. 43-1 at ¶ 1.) 1 On July 25, 2018,
Plaintiff was operating a motorcycle and traveling between forty-five and fifty miles-per-hour as

This fact, among others, in the SMF is uncontested. As a result, under M.D. La. L.R. 56(f), the Court can deem these
facts admitted. Id. (“Facts contained in a supporting or opposing statement of material facts, if supported by record
citations as required by this rule, shall be deemed admitted unless properly controverted.”). However, in instances
where KCSR’s assertions in the SMF are contradicted by other summary judgment evidence in the record, the Court
may deviate from strict enforcement of this rule. See Smith v. Brenoettsy, 158 F.3d 908, 910 n.2 (5th Cir. 1998). This
fact is not one of those instances, as it is largely uncontroversial and unrebutted.
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he approached a railroad crossing owned by KCSR and located at Mile Post 767.50 on Chenal Road
(the “Railroad Crossing”). (SMF, Doc. 33-1 at ¶¶ 2–3; POSMF, Doc. 43-1 at ¶¶ 2–3.) Plaintiff
asserts negligence claims against KCSR for its failure to (1) take all precautions to avoid this
casualty; (2) properly inspect the tracks; (3) properly maintain the tracks; and (4) warn about the
allegedly defective condition. (Doc. 33-2 at 2 (citing Doc. 1, Ex. A, ¶ 4).)
II.

PREEMPTION
In its Motion for Summary Judgment, Defendant argues that Plaintiff’s state law negligence

claims are preempted by the Federal Railroad Safety Act, 49 U.S.C. 20101, et seq. (Doc. 33-2 at
4–7; see also Doc. 46 at 3.) While the Federal Railroad Safety Act does have an express preemption
provision (see 49 U.S.C. § 20106), the Act makes a carve out for state law personal injury claims:
(b) Clarification regarding State law causes of action.—(1) Nothing in this section
shall be construed to preempt an action under State law seeking damages for
personal injury, death, or property damage alleging that a party—
(A) has failed to comply with the Federal standard of care established by a
regulation or order issued by the Secretary of Transportation (with respect
to railroad safety matters), or the Secretary of Homeland Security (with
respect to railroad security matters), covering the subject matter as provided
in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard that it created
pursuant to a regulation or order issued by either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or order that is not
incompatible with subsection (a)(2).
49 U.S.C. § 20106(B)(1)(A)–(C). See also Harris v. Norfolk S. Ry. Co., 784 F.3d 954, 962 (4th
Cir. 2015) (alteration in original) (quoting 49 U.S.C. § 20106(b)(1)(A)) (“The FRSA’s preemption
provision does not prevent a state-law action seeking damages for personal injury based on an
allegation that the defendant ‘has failed to comply with the Federal standard of care established by
a regulation or order issued by the Secretary of Transportation . . . covering’ laws, regulations, and

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orders related to railroad safety.”). Plaintiff’s original Petition does make specific allegations as to
violations of state law through alleging negligence. (Doc. 1-1 at 4.) Further, Plaintiff provided the
following through his discovery response:
INTERROGATORY NO. 24:
Identify which specific law(s), rule(s), regulation(s), and/or policy(ies) that you
allege KCSR violated during the time period relevant to this litigation.
RESPONSE NO. 24:
All State and Federal regulations imposing a duty upon the defendants to inspect
and maintain the subjection railroad crossing, including but not limited to the
requirements under 49 CFR 213.233.
(See Doc. 33-8.) As such, the Court does not find that Plaintiff’s state law negligence claims for
his personal injuries are preempted by 49 U.S.C. § 20106.
Defendant relies on Ryder v. Union Pac. R.R. Co., No. 15-431, 2018 WL 3077792, at *5
(M.D. La. June 19, 2018), aff’d. 945 F.3d 194 (5th Cir. 2019) to support its preemption argument.
However, Ryder is distinguishable from the present case in one critical aspect. Unlike in the case
at issue where Plaintiff alleges that Defendant’s negligence resulted from its non-compliance with
federal regulations, the negligence claims in Ryder were preempted because the Plaintiff failed to
present evidence that Defendant violated a federal regulation. Id. (“[T]he FRSA comprehensively
covers the maintenance, repair, and inspection of track condition; including the frequency and
manner of inspection, and those who are qualified to do so. As such, Plaintiffs’ state law negligence
claims are preempted. Since Plaintiffs have presented no summary judgment evidence that UP was
in violation of any federal regulations in regards to inspecting and maintaining the crossing,
summary judgment is granted in favor of UP and those claims are dismissed with prejudice.”
(footnotes omitted)). For this reason, relying on Ryder to support Defendant’s claim of preemption
is unpersuasive.

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III.

NEGLIGENCE CLAIM:
Finding Plaintiff’s claims not preempted by federal law, the Court must next determine “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). To succeed in his negligence claims, Plaintiff
must satisfy Louisiana’s duty-risk analysis, which requires him to prove:
(1) the defendant had a duty to conform his or her conduct to a specific standard of
care; (2) the defendant failed to conform his or her conduct to the appropriate
standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries; (4) the defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries; and (5) actual damages.
Christy v. McCalla, 2011-0366 (La. 12/6/11); 79 So. 3d 293, 299 (citing Pinsonneault v. Merchs.
& Farmers Bank & Trust Co., 2001-2217, (La. 4/3/02); 816 So. 2d 270, 275–76). “A movant for
summary judgment need not set forth evidence when the nonmovant bears the burden of
persuasion at trial.” Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) (“[W]e find no express or implied
requirement in Rule 56 that the moving party support its motion with affidavits or other similar
materials negating the opponent’s claim.”). “The moving party may meet its burden to demonstrate
the absence of a genuine issue of material fact by pointing out that the record contains no support
for the non-moving party’s claim.” Id. (citing Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263
(5th Cir. 2002)). A dispute regarding a material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Further, when ruling on this motion for summary judgment, the
Court is required to view all inferences drawn from the factual record in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).

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In short, the Court will grant Defendant’s Motion for Summary Judgment in part and deny
in part. With respect to Plaintiff’s Failure to Warn Claim, Defendant’s motion is granted, and this
claim is dismissed with prejudice. As to Plaintiffs’ Failure to Inspect/Maintain Claim, Defendant’s
motion is denied.
A. Failure to Warn
Plaintiff alleges in his state court Petition that Defendant failed to warn drivers of the
railroad’s dangerous condition. (Doc. 1-1 at 4.) However, in his summary judgment briefing,
Plaintiff does not address this claim and instead suggests that facts relating to this claim are
immaterial to his suit.
Pursuant to La. R.S. § 32:169, Defendant is required to erect and maintain a crossbuck sign
at all public railroad crossings. (Doc. 33-2 at 10.) Defendant asserts in its SMF that “[t]he Railroad
Crossing is protected by a crossbuck sign, flashing lights, and an audible warning system[,]” and
“[i]n 2018, KCSR’s tested the Railroad Crossing’s warning systems each month leading up to
Plaintiff’s accident to ensure the warning systems were functional and operating.” (SMF, Doc. 331 at ¶¶ 10–11.) In his POSMF, Plaintiff does not admit or deny Defendant’s assertions and instead
asserts that “[t]he existence of a crossbuck sign, flashing lights, and an audible warning system is
immaterial to the facts of the case.” (POSMF, Doc. 43-1 at ¶ 10.)
The Court finds that Plaintiff has not properly denied Defendant’s assertions regarding
warning systems and instead has conceded that it cannot succeed in its Failure to Warn Claim. See
M.D. La. L.R. 56(f). As such, the Court finds that summary judgment as to this claim is warranted
and dismisses this claim with prejudice.

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B. Failure to Inspect/Maintain
1. Duty and Breach
“The threshold issue in any negligence action is whether the defendant owed the plaintiff
a duty, and whether a duty is owed is a question of law.” Bufkin v. Felipe’s La., LLC, 2014-0288,
(La. 10/15/14); 171 So. 3d 851, 855 (citing Milbert v. Answering Bureau, Inc., 2013-0022, (La.
6/28/13); 120 So. 3d 678, 687–88). The parties offer differing views regarding the nature of the
duty owed by Defendant. Plaintiff contends that because “this incident occurred at a railroad
‘crossing,’ inspection at this location is governed by 49 C.F.R. § 213.235….” (Doc. 37 at 2.)
Defendant asserts, however, that “on-foot inspections are required for a completely different
railroad track composition than the one at issue: track crossings.” (Doc. 38 at 2.) Defendant argues
that the applicable regulation for the Railroad Crossing is 49 C.F.R. § 213.233. (Id. at 5.)
Regardless of what inspection requirement standard is applicable, a denial of summary
judgment is warranted. As this Court has previously stated:
[J]uries are generally entitled to hear evidence of applicable safety rules and
standards. See, e.g., Baham v. Nabors Drilling USA, LP, 721 F. Supp. 2d 499 (W.D.
La. 2010), aff’d sub nom. Baham v. Nabors Offshore Corp., 449 Fed. Appx. 334
(5th Cir. 2011) (“Violations of [national safety institute standards] are not bases for
negligence per se as they are not legislative enactments, laws or regulations...
Nevertheless, in some cases, those standards might be applicable to establish the
standard of care under a general negligence analysis”(citations omitted)); Bergeron
v. Wal–Mart Stores, Inc., 617 So. 2d 179, 180 (La. App. 3 Cir. 1993) (reducing
percentage for which plaintiff was comparatively at fault in part because of
defendant’s failure to comply with “numerous safety standards”); Bowles v. Litton
Indus., Inc., Monroe Sys. for Bus. Div., 518 So. 2d 1070, 1075 (La. App. 5 Cir.
1987) (“The ANSI standards represent precautionary measures adopted through the
consensus of governmental agencies, industry concerns, labor representatives and
insurance companies. Such standards, while not definitive in assessing liability, do
provide guidelines for determining whether a condition presents an unreasonable
risk of harm.” (collecting cases))
Baxter v. Anderson, 277 F. Supp. 3d 860, 864 (M.D. La. 2017).
Pursuant to 49 C.F.R. § 213.235, an on-foot inspection must be conducted at least once per
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month. Defendant’s own exhibits prove that on-foot inspections never occurred. (Doc. 37 at 3; see
also Doc. 33-6, Ex. D; Doc. 33-9, Ex. G.) Thus, if the Court were to consider 49 § C.F.R. 213.235
as evidence of the applicable standard of care, Defendant would be in breach. Alternatively,
assuming arguendo that 49 C.F.R. § 213.233 is the proper regulation, Plaintiff’s testimony, Mr.
Andre’s affidavit, and Plaintiff’s photograph exhibits establish a genuine issue of material fact as
to whether Defendant properly conducted visual inspections of the Railroad Crossing. (See Docs.
37-2; 39-2.)
Section 213.233(b) imposes the duty to conduct a reasonable visual inspection in light of
all the circumstances. Harris v. Norfolk S. Ry. Co., 784 F.3d 954, 967–68 (4th Cir. 2015) (citations
omitted). Section 233(d) provides that if an inspector conducting an inspection “finds a deviation
from the requirements of [the track safety standards], the inspector shall immediately initiate
remedial action.” Id. at 958–59 (citing 49 C.F.R. § 213.233(d)). Defendant asserts that it inspected
the Railroad Crossing in accordance with these provisions and did not observe a defect at the
Railroad Crossing. (Doc. 33-1, ¶¶ 3–4, 6–7; see also Doc. 33-2 at 2 (“To satisfy its duty to inspect
and maintain the crossing, KCSR inspected the crossing . . . in accordance with [49 CFR 213.233] . . .
twice a week, with the most recent inspection occurring one day before Plaintiff’s accident.”).)

Defendant contends that “[n]either KCSR nor its employees had any knowledge of the Railroad
Crossing’s alleged defects before Plaintiff’s accident.” (Doc. 33-1 at ¶ 9.)
However, according to Plaintiff, Mr. Andre’s affidavit “attested to the fact that loose boards
existed at the location for at least five (5) years prior to the date of the accident, and that some of
the loose timbers never had affixing hardware installed.” (Doc. 43-1, ¶¶ 3–5, 7, 9.) Moreover, Mr.
Andre attested to the accuracy of the images of the loose timbers, which show no markings
indicating that installation of affixing hardware ever occurred. (Doc. 43-2 at 3.) Plaintiff asserts
that this evidence indicates that the defects “were open and obvious, and are strongly suggestive
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of the fact that the defendants: 1. Did not inspect the location as they contend; 2. Were negligent
in their inspection of the site; or 3. Did not install the timbers according to required standards.”
(Id.)
Defendant counters that the evidence provided in Mr. Andre’s affidavit “merely depicts the
crossing’s condition on the date of the accident, which cannot in itself give rise to [Defendant’s]
legal liability because ‘[e]very railroad crossing has its own particular dynamics which may
include one or more hazards.’ ” (Doc. 46 at 2.) Thus, according to Defendant, “[t]his evidence
alone is insufficient to substantiate Plaintiff’s claim that [Defendant] failed to conform its conduct
to a standard of care (i.e., breached a duty owed to Plaintiff).” (Id. at 3.) However, in resolving
motions for summary judgment, the Court must deny the motion “so long as the evidence in the
record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could
arrive at a verdict in that party’s favor.” Imani v. City of Baton Rouge, 614 F. Supp. 3d 306, 334
(M.D. La. July 14, 2022) (deGravelles, J.) (quoting Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d
1257, 1263–64 (5th Cir. 1991) (cleaned up)). Indeed, “the nonmoving party may nevertheless
defeat the motion by countering with evidence of its own, which, if credited by the fact-finder,
would entitle the nonmoving party to a verdict in its favor.” Id.
Construing the evidence in a light most favorable to Plaintiff and drawing reasonable
inferences in his favor, a reasonable juror could conclude that Defendant breached its duty of
reasonable care by failing to conduct proper visual inspections pursuant to 49 C.F.R. § 213.233.
Specifically, a reasonable juror could find the photographs and the affidavit of the condition of the
Railroad Crossing for approximately 5 years adequately prove Defendant’s improper inspections
or knowledge of a defect the was not remedied. As such, the Court finds that Defendant has failed
to meet its burden as to the duty and breach elements of negligence.

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2. Damages and Causation
It is undisputed that Plaintiff suffered injuries following an accident on the Railroad Crossing.
However, the parties offer differing opinions as to the cause of that accident.
Plaintiff argues that the Defendant’s improper maintenance and inspection of the Railroad
Crossing caused the accident. (See Doc. 37 at 3–4.) Plaintiff supports this allegation with the testimony
of his personal knowledge and his observation of the crossing after the accident. (See id. (citing Doc.
37-2, Ex. B).) Further, the condition of the defective Railroad Crossing at the time of the incident,
Plaintiff contends, is evidenced by the photograph exhibits. (See id. (citing Doc. 37-2, Ex. B).)

Defendant asserts that “Plaintiff has no evidence to show that the allegedly defective crossing caused
his motorcycle accident.” (Doc. 33-2 at 11 (“Despite Plaintiff’s inspection and maintenance
allegations, the record lacks any corroborating evidence that the allegedly loose crossing timber was
the proximate cause of Plaintiff’s accident.”).) Defendant argues that summary judgment is appropriate
without factual evidence substantiating Plaintiff’s allegations and testimony regarding causation. (Id.)
However, this Court has acknowledged that “testimony based on personal knowledge and containing
factual assertions suffices to create a fact issue, even if it is self-serving.” Parkman v. W&T Offshore,
Inc., 673 F. Supp. 3d 811, 828 (M.D. La. 2023) (deGravelles, J.) (internal quotations omitted) (quoting
Hardy v. Wood Grp. PSN, Inc., No. 13-775, 2014 WL 1664236, at *3 (W.D. La. Apr. 25, 2014)).
Furthermore, Defendant argues that “KCSR properly installed the timber crossing, which is
appropriate and standard in the railroad industry.” (Doc. 33-2 at 11.) “Thus, Plaintiff’s negligence
claim must also fail because Plaintiff has no proof beyond his mere allegations that the crossing at
issue was the actual or legal cause of Plaintiff’s accident.” (Id.) However, Plaintiff’s photograph
exhibits and the affidavit of Mr. Andre are sufficient evidence to create a genuine issue of material fact
as to this element.
Finding that Plaintiff has shown issues of fact as to each disputed element of his Failure to

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Maintain/Inspect Claim, the Court finds that granting summary judgment as to this claim is
inappropriate. As such, Defendant’s motion with regard to this claim is denied.

IV.

EVIDENTIARY OBJECTIONS
The Court notes that Defendant asserts that certain evidence submitted by Plaintiff is

prohibited evidence of subsequent remedial measures. (Doc. 38-1 at 1 (citing FRE 407).) Federal
Rule of Evidence 407 provides:
When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment
or--if disputed--proving ownership, control, or the feasibility of precautionary
measures.
“The Fifth Circuit has held that evidence of subsequent remedial measures is admissible as ‘proof
of subsidiary issues in the case, such as knowledge of the dangerous condition.’ ” Matter of
Cheramie Marine, L.L.C., No. 21-2371, 2023 WL 4295710, at *9 (E.D. La. June 30, 2023)
(quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1342 (5th Cir. 1978)). The evidence of the
subsequent remedial measures in this case appears to be substantiating the testimony in Mr.
Andre’s affidavit and Plaintiff’s deposition that Defendant should have been aware of the
dangerous condition.
Second, Defendant argues that certain portions of Plaintiff’s testimony should be stricken
because it constitutes “self-serving, unsubstantiated deposition testimony.” (Doc. 38-1 at 2.)
Defendant argues that such testimony is not competent summary judgment evidence. (Id. at 1–2
(citing Clark v. Circle K Stores, Inc., No. 13-210, 2014 WL 4129496 (M.D. La. Aug. 14, 2014)).)
However, as this Court has recognized, “the fact that Plaintiff’s testimony may be self-serving
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does not preclude its consideration.” Parkman v. W&T Offshore, Inc., 673 F. Supp. 3d 811, 828 (M.D.
La. 2023) (deGravelles, J.). In fact, “[i]f all ‘self-serving’ testimony were excluded from trials, they

would be short indeed.” C.R. Pittman Constr. Co. v. Nat’l Fire Ins. Co. of Hartford, 453 F. App’x
439, 443 (5th Cir. 2011). One Court previously explained:
A party’s own testimony is often “self-serving,” but [a court] do[es] not exclude it
as incompetent for that reason alone. Instead, testimony based on personal
knowledge and containing factual assertions suffices to create a fact issue, even if
it is self-serving. In fact, characterizing a party’s testimony as “self-serving” is not
useful to the court. In a lawsuit, where each party is attempting to advance his own
cause and protect his own interests, we are scarcely shocked when a party produces
evidence or gives testimony that is “self-serving.”
Hardy v. Wood Grp. PSN, Inc., No. 13-775, 2014 WL 1664236, at *3 (W.D. La. Apr. 25, 2014)
(cleaned up) (quoting C.R. Pittman Const. Co., 453 F. App’x at 443; Dean v. Ford Motor Credit
Co., 885 F.2d 300, 306 (5th Cir. 1989)). See also Parkman v. W&T Offshore, Inc., 544 F. Supp.
3d 642, 650 (M.D. La. 2021). The statements that Defendant seeks to exclude are statements based
on Plaintiff’s personal knowledge of his accident, which is alone sufficient. Moreover, many of
the statements are additionally supported by corroborating evidence in the form of photographs
and the affidavit of Mr. Andre. Thus, the statements should not be stricken.
Lastly, Defendant argues that Plaintiff’s statements regarding the loose board’s lack of
affixing hardware should be stricken because “the referenced photographs do not evidence some
timbers having ‘no fasteners at all.’ ” (Doc. 38-1 at 2.) However, this argument in and of itself
creates an issue of fact. Thus, these statements were considered for purposes of this motion.

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V.

CONCLUSION
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment (Doc. 33) filed by Defendant

the Kansas City Southern Railway Company against Plaintiff Travis J. Schmoock is GRANTED
IN PART AND DENIED IN PART. The motion is GRANTED in that Plaintiff’s Failure to
Warn Claim is DISMISSED WITH PREJUDICE. With respect to Plaintiff’s Failure to
Inspect/Maintain Claim, Defendant’s motion is DENIED, and this matter will proceed to trial on
such.
Signed in Baton Rouge, Louisiana, on March 26, 2024.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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